Opinion
NO. 01-19-00744-CV
04-27-2021
JENNY DAY AND GUILLERMO MORENO, Appellants v. CLASSIC AUTOPLEX GM LLC CLASSIC CHEVROLET BUICK GMC CADILLAC, Appellee
On Appeal from the 212th District Court Galveston County, Texas
Trial Court Case No. 17-CV-0081
MEMORANDUM OPINION
Appellants, Jenny Day and Guillermo Moreno (collectively, "appellants"), challenge the trial court's rendition of summary judgment in favor of appellee, Classic Autoplex GM LLC Classic Chevrolet Buick GMC Cadillac ("Classic"), in their suit against Classic for negligent entrustment. In their sole issue, appellants contend that the trial court erred in granting Classic summary judgment.
We affirm.
Background
In their petition, appellants alleged that, on or about August 25, 2015, they were traveling northbound on Interstate 45 when Arthur Maxwell, Jr., who was driving a car he had rented from Classic in Galveston, Texas, "struck [appellants' car] from behind at a high rate of speed, violently knocking [appellants'] vehicle into the guard rails." Appellants further alleged that, "on information and belief[,] . . . Maxwell was driving while impaired[] and was unlicensed at the time of the collision."
Appellants also brought suit against Maxwell in the trial court, but their claim against him was settled. Appellants filed a notice of non-suit related to their claim against Maxwell. He is not a party to this appeal.
Appellants brought a claim against Classic for negligent entrustment and sought actual and exemplary damages. They asserted that Classic "entrusted the [rental car] to" Maxwell when it "knew, or through the exercise of reasonable care should have known, that [Maxwell] was an unlicensed, reckless, and incompetent driver." Appellants further asserted that Maxwell "was negligent on the occasion in question" and his "negligence was the proximate cause of [appellants'] damages."
In its second amended answer, Classic generally denied the allegations in appellants' petition and asserted various affirmative defenses.
Classic then moved for summary judgment, asserting it was entitled to judgment as a matter of law on appellants' negligent entrustment claim. Classic attached to its motion the affidavit of Ryan Orewiler, its General Sales Manager, and an authenticated copy of the rental agreement between Classic and Maxwell. In the affidavit, Orewiler declared, among other things, that Maxwell presented Classic "with a valid Texas driver's license at the time he took possession of the [rental car]." Thus, Classic argued that, "because [Maxwell's] presentation of a driver's license" gave "rise to a presumption that he was competent to drive," Classic had no duty to make further inquiry into Maxwell's competence.
In their response to Classic's summary-judgment motion, appellants asserted that, according to Classic's rental agreement with Maxwell, Classic rented a car to Maxwell in Galveston at 12:19 p.m., and eleven minutes later, "[a]t approximately 12:30 p.m.," Maxwell, while "traveling north on [Interstate 45] fell asleep, clipped a truck, was startled awake, swerved suddenly, and hit [appellants], who were traveling north on [the highway] in their [car], pushing [appellants' car] into a concrete median." Appellants referenced, in their response, the Texas Peace Officer's Crash Report (the "crash report"), asserting that Maxwell "confessed that he hadn't slept the night before and had fallen asleep at the wheel." Appellants also noted that Maxwell was handcuffed by law enforcement officers at the crash site, and they attached to their response a photograph of a law enforcement officer standing next to Maxwell, who was in handcuffs. Appellants asserted that if Maxwell "was clearly impaired [eleven] minutes after [Classic] entrusted the [rental car] to him, it [was] reasonable . . . to infer that he was also obviously impaired at the time of the entrustment."
Appellants also attached to their response a copy of the crash report, which stated that the crash occurred at the 13900 block of Interstate Highway 45 North. Maxwell told a law enforcement officer that he "just drove up from Texas City[, Texas] and [he] did not get much sleep [the] night [before] and [he] got sleepy and drifted over and clipped the hitch on the back of [a] truck and it scared [him] and [he] jerked the car to the right and then [he] hit the back of the other car."
In its reply, Classic challenged appellants' assertion that the crash occurred eleven minutes after the rental agreement was executed by Maxwell. Classic asserted that the "evidence prove[d] [that] the accident occurred over an hour after Classic rented the [car] to [Maxwell], and after [Maxwell] had driven over [thirty-one] miles." Classic acknowledged that the rental agreement showed that Maxwell rented a car from Classic at Classic's location at 8020 Broadway Street in Galveston "on August 25, 2015, at 12:19 p.m." But Classic explained that its software system had a default setting to "Eastern Time, not Central Standard Time," and "[t]his default had not been changed when . . . Maxwell rented the [car] from Classic on August 25, 2015." Thus, according to Classic, "Maxwell actually rented the [car] at 11:19 a.m. Central Standard Time, . . . more than an hour before the [crash] occurred." Classic also noted that crash could not have occurred eleven minutes after the rental agreement was executed because the crash site, as recorded in the crash report, was "more than [thirty-one] miles from the rental location."
Classic attached to its reply a December 28, 2018 affidavit from Howie Bentley, the Managing Partner of Classic, in which he stated that Classic "began using the TSD Rental software [program] more than five years ago. The software default[ed] to Eastern Time and it was never changed to Central Standard Time after [Classic] started using the software." The rental agreement that Maxwell "executed on August 25, 2015, was generated by the TSD Rental software [program]." Accompanying Bentley's affidavit was a November 19, 2018 email addressed to Bentley from Jason Suozo, a Technical Support Analyst for TSD Rental LLC, in which Suozo stated that: "The [t]ime [z]one [was] set a[t] the location level under the policies tab. By default[,] the time zone [was] set to Eastern Time, the . . . location was never changed to the proper time zone."
The trial court granted Classic summary judgment on appellants' negligent entrustment claim, and appellants moved for new trial. The trial court granted appellants' motion and vacated its previous order granting Classic summary judgment.
The trial court then determine that it would reconsider Classic's summary-judgment motion and it allowed appellants to supplement their summary-judgment response with transcripts of the depositions of Orewiler and Mike Graves, Classic's Finance Director and General Sales Manager, who authorized the transaction between Classic and Maxwell.
In their supplemental response, appellants directed the trial court to Orewiler's testimony that if a customer appeared impaired, such as by smelling of alcohol or acting strangely, a car should not be given to that customer. Appellants also questioned the veracity of Orewiler's testimony during his deposition that "until this litigation, some [four] or [five] years after the [TSD Rental software] program was first implemented, there had been no problems or questions associated with the time stamps on any of the hundreds of [previous] transactions . . . ." Appellants did not identify any part of Graves's deposition testimony to support their argument.
After a hearing, the trial court granted Classic summary judgment on appellants' negligent entrustment claim.
Standard of Review
We review a trial court's decision to grant summary judgment de novo. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020); Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). In conducting our review, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any of the asserted grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).
To prevail on a summary-judgment motion, a movant has the burden of establishing that it is entitled to judgment as a matter of law and there is no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). Once the defendant meets its burden, the burden shifts to the plaintiff, the non-movant, to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Transcon. Ins. Co. v. Briggs Equip. Tr., 321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The evidence raises a genuine issue of fact if reasonable and fair-minded fact finders could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Summary Judgment
In their sole issue on appeal, appellants argue that the trial court erred in granting Classic summary judgment on their negligent entrustment claim because "material facts preclude[d] it."
To establish a claim for negligent entrustment of an automobile, a plaintiff must prove the following elements: (1) the owner entrusted the automobile, (2) to a person who was an incompetent or reckless driver, (3) who the owner knew or should have known was incompetent or reckless, (4) the driver was negligent, and (5) the driver's negligence proximately caused the accident and the plaintiff's injuries. See Mayes, 236 S.W.3d at 758; De Blanc v. Jensen, 59 S.W.3d 373, 375-76 (Tex. App.—Houston [1st Dist.] 2001, no pet.). Knowledge or constructive knowledge of the driver's incompetency at the time of entrustment is an essential element of a negligent entrustment action. Briseno v. Martin, 561 S.W.2d 794, 796 n.1 (Tex. 1977). Texas courts have concluded, though, that an owner of a car does not have an affirmative duty to investigate the background of a driver before permitting him to drive the car when the undisputed evidence shows that the driver had a valid driver's license. Kilpatrick v. Vasquez, No. 01-09-00731-CV, 2011 WL 1233468, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.).
Here, the undisputed evidence shows that Maxwell presented a valid driver's license when he rented the car from Classic. But appellants assert that the closeness in time between Classic's entrustment of the car to Maxwell and the crash—after which Maxwell admitted to a law enforcement officer that he had not gotten "much sleep" the night before and, while driving, "got sleepy" and drifted" from his lane—raised a fact issue as to whether Maxwell was "obviously impaired," that is, visibly fatigued to the point of incompetency, when Classic provided Maxwell with the car.
The undisputed evidence also shows that Maxwell collided with appellants' car about thirty-one miles away from the location where Classic rented its car to Maxwell in Galveston. Appellants assert that the discrepancy between the time stamp on the rental agreement and Classic's evidence that the computer had defaulted to the Eastern Time Zone creates a fact issue as to whether the crash took place eleven minutes or one hour and eleven minutes after the Maxwell rented the car. But given the thirty-one-mile distance traveled, reasonable and fair-minded fact finders could not reach different conclusions based on this evidence. See Mayes, 236 S.W.3d at 755. And in any event, appellants rely on bare speculation to assert that Classic knew or should have known that Maxwell was incompetent to drive based on the time interval between the rental and the crash. This assertion is not evidence and thus does not raise a material fact issue as to Maxwell's competence to drive at the time he rented a car from Classic. See Studemeyer v. Diaz, No. 04-08-00563-CV, 2009 WL 1232425, at *2 (Tex. App.—San Antonio May 6, 2009, no pet.) (mem. op.) (in negligent entrustment case, assertion in summary-judgment response that father should have foreseen that twenty-three-year-old daughter with three young children "would be reckless and in a hurry at the end of a long, hot day" did not raise fact issue as to whether father knew daughter was incompetent or reckless driver when he loaned her his car). No objective criteria would have allowed Classic to determine whether Maxwell was fatigued to the point of incapacitation when he rented the car. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 411-12 (Tex. 2009) (refusing to impose duty on employer to prevent driving-related injuries resulting from fatigue following employee's shift-work schedule in part because "no quantitative measure or criteria are available to determine an employee's level of fatigue or assess whether an employee is merely tired or is actually incapacitated," preventing employer from being able to "consistently judge when employees have gone beyond tired and become impaired"). For these reasons, we conclude that Classic conclusively negated at least one essential element of appellants' negligent entrustment claim, entitling Classic to judgment on that claim as a matter of law. See TEX. R. CIV. P. 166a(c). We hold that the trial court did not err in granting Classic summary judgment on appellants' negligent entrustment claim.
Maxwell would have had to be traveling at a speed of about 169 miles per hour to arrive at the crash site eleven minutes after he rented the car from Classic.
We overrule appellants' sole issue.
Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice Panel consists of Justices Kelly, Goodman, and Countiss.