Opinion
CIVIL ACTION NO. 7:19-CV-00100
2022-08-02
Maria Antonia DE LA ROSA, et al., Plaintiffs, v. SWIFT TRANSPORTATION CO. OF ARIZONA, LLC, Defendant.
Lannie Todd Kelly, William G. Rossick, Nicholas Paul Merz, The Carlson Law Firm, P.C., Austin, TX, David Jay Campbell, O'Hanlon Demerath et al., Austin, TX, Jesus Alberto Zambrano, Zambrano Law Firm, McAllen, TX, for Plaintiffs. Jeffrey Christopher Wright, Michael P. Sharp, Efrain Forte, III, Fee, Smith, Sharp & Vitullo, LLP, Dallas, TX, Brandy Wingate Voss, Law Offices of Brandy Wingate Voss, PLLC, Edinburg, TX, for Defendant.
Lannie Todd Kelly, William G. Rossick, Nicholas Paul Merz, The Carlson Law Firm, P.C., Austin, TX, David Jay Campbell, O'Hanlon Demerath et al., Austin, TX, Jesus Alberto Zambrano, Zambrano Law Firm, McAllen, TX, for Plaintiffs.
Jeffrey Christopher Wright, Michael P. Sharp, Efrain Forte, III, Fee, Smith, Sharp & Vitullo, LLP, Dallas, TX, Brandy Wingate Voss, Law Offices of Brandy Wingate Voss, PLLC, Edinburg, TX, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR FINAL SUMMARY JUDGMENT
Randy Crane, United States District Judge
I. Factual and Procedural Background
Now before the Court is Defendant Swift Transportation Co. of Arizona's Motion for Final Summary Judgment. (Dkt. No. 88). In this long-pending Texas-law wrongful death and survival action removed from state court on federal diversity grounds, Plaintiffs Maria Antonia De La Rosa, individually and as administrator of the estate of Arnold De La Rosa (deceased), among others, seek to hold Defendant liable in negligence for damages arising from a single-vehicle accident that resulted in the death of the driver, Arnold De La Rosa (De La Rosa). (Dkt. Nos. 1, 9). Plaintiffs allege that the accident occurred on February 27, 2017, in Bushland, Cotton County, Texas, where De La Rosa "was operating a red truck tractor with a semi-trailer attached when he drove off the road, travelled down the embankment," "struck the pillars supporting the west bound overpass bridge," and died on impact. (Dkt. No. 9 at ¶¶ 3, 5). Plaintiffs identify De La Rosa as Defendant's employee, and Defendant has spent considerable time and effort contesting this label; it has twice moved for the Court to hold that De La Rosa was working as Defendant's independent contractor at the time of the accident. See (Dkt. No. 9 at ¶ 8; Dkt. Nos. 34, 73). In ruling on Defendant's motions, the Court determined that De La Rosa's work status bore hallmarks of an employee under the Texas common-law test, but did not meet the statutory employee test posed by Texas Labor Code § 406.122(c), such that Defendant may assert the defenses of contributory negligence and assumption of risk made available to it through § 406.033(a). See (Dkt. Nos. 39, 84). Now, having been given leave to do so past the relevant scheduling order deadline, Defendant moves for final summary judgment on the grounds that Plaintiffs cannot establish all required elements of their claims, regardless of whether De La Rosa was an employee or an independent contractor. (Dkt. No. 88).
Additional Plaintiffs are Abigail Moncivais, Shania De La Rosa, Arnold De La Rosa, Jr., Consuelo De La Rosa, and Alberto De La Rosa, Sr.
The Court found good cause for granting leave given the importance of the motion—it seeks final resolution of issues dispositive of the entirety of the case—and the absence of undue prejudice to Plaintiffs. See (Dkt. No. 87).
In essence, Plaintiffs advance two theories of negligence: that Defendant breached its duty to De La Rosa by failing to prevent him from driving (1) while suffering from a medical condition that impaired his ability to drive and (2) while fatigued, which breach(es) proximately caused the accident, and therefore Plaintiffs’ asserted damages. Upon consideration of the Motion and the parties’ responsive briefing, in light of the relevant law, the Court finds that Plaintiffs lack medical evidence and expert testimony sufficient to sustain their claims premised on the first theory, and that Plaintiffs’ fatigue claims falter in the absence of evidence placing the element of proximate cause in genuine dispute. Accordingly, summary judgment must be granted.
(Dkt. Nos. 89, 90, 91).
II. Standard of Review
A district court must grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; FED. R. CIV. P. 56(c). In conducting its review of the summary judgment record, the court "may not make credibility determinations or weigh the evidence" and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Dean v. City of Shreveport , 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with "conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence." Chaney v. Dreyfus Serv. Corp. , 595 F.3d 219, 229 (5th Cir. 2010) ; see also Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 2003) ("Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.").
III. Analysis
A. Overview of Applicable Law and Plaintiffs’ Pleaded Theories of Negligence
Plaintiffs’ First Amended Complaint, their live pleading, identifies Plaintiffs as statutory wrongful death beneficiaries of De La Rosa who are entitled to recover for Defendant's negligence, negligent control, gross negligence, nondelegable duty, and negligent supervision premised on various alleged breaches of duty resulting in De La Rosa's death and Plaintiffs’ consequent damages. (Dkt. No. 9 at ¶¶ 11-32). Plaintiff Maria Antonia De La Rosa, as the legal representative of De La Rosa's estate, brings a survival action premised on the same alleged breaches of duty, seeking to recover damages to which De La Rosa would have been entitled had he survived. (Id. at ¶¶ 37-40). No party disputes that in this diversity case, where the substantive law of Texas applies, Plaintiffs must prove the following to sustain their negligence claims: (1) a legal duty owed by Defendant to De La Rosa; (2) Defendant's breach of that duty; and (3) damages to Plaintiffs proximately caused by the breach. See (Dkt. No. 88 at ¶¶ 17, 18; Dkt. No. 89 at ¶ 11); D. Houston, Inc. v. Love , 92 S.W.3d 450, 454 (Tex. 2002).
Plaintiffs’ pleading alleges that Defendant had a duty to De La Rosa, its driver, "to exercise ordinary care and/or a high degree of care as a common carrier ... to ensure [De La Rosa] was operating a vehicle for [Defendant] in a reasonable and prudent manner." (Dkt. No. 9 at ¶ 16; see also ¶ 29). Plaintiffs’ theories of negligence consist in the following alleged breaches of this duty:
• Failing to prevent foreseeable injury to De La Rosa due to allowing, permitting, enticing, or ordering him to drive in excess of permitted hours;
• Failing to exercise ordinary care to prevent a foreseeable injury;
• Failing to prevent De La Rosa from a work-related hazard;
• Failing to exercise control as retained;
• Failing to take proper precautions against dangers involved in work entrusted to De La Rosa;
• Failing to prevent foreseeable injury to De La Rosa due to allowing, permitting, enticing, or ordering him to drive with a debilitating and/or disqualifying medical condition; and
• Failing to prevent foreseeable injury to De La Rosa due to allowing him to drive while having knowledge that he was suffering from a medical condition affecting his ability to drive.
(Id. at ¶ 17; see also ¶¶ 22, 25, 27, 28, 30, 31, 40). In generalized terms, Plaintiffs plead that Defendant's breach(es) proximately caused De La Rosa's injuries and death, and therefore the various categories of damages sought by Plaintiffs. (Id. at ¶¶ 20, 23, 32; see also ¶¶ 41, 42).
Plaintiffs allege that their damages include, but are not limited to: loss of companionship and society; loss of inheritance; loss of consortium; loss of earning capacity; past physical pain and suffering; past and future mental anguish; future physical impairment; past and future loss of enjoyment of life; property damage; diminution of value; pecuniary damages; and exemplary damages. (Dkt. No. 9 at ¶¶ 41, 42).
B. Medical Condition Claims
Defendant seeks summary judgment on Plaintiffs’ claims premised on the latter two breaches—that Defendant failed to prevent De La Rosa from driving "with a debilitating and/or disqualifying medical condition," and "while having knowledge that he was suffering from a medical condition affecting his ability to drive"—by taking the position that "[t]here is no medical evidence or medical expert testimony that [De La Rosa] had any medical or health condition [a]ffecting his ability to drive" on the date of the accident. (Dkt. No. 88 at ¶ 8). To the contrary, Defendant's driver qualification file for De La Rosa reflects that an independent medical examiner conducted a physical exam of De La Rosa, and found him qualified to drive a commercial motor vehicle, less than five months before the accident. (Id. at ¶ 23, Exh. E at p. 886). Defendant also points to testimony from De La Rosa's family members that they were not aware of any medical condition or physical limitation that De La Rosa may have had prior to the accident. (Id. at ¶¶ 44-46, Exh. G at pp. 40, 71, Exh. H at pp. 89-90). Thus, Plaintiffs cannot establish that Defendant breached a duty owed to De La Rosa, resulting in the accident in question, when it allowed him to drive in his then-existing state of health.
The medical examiner's certificate is signed October 3, 2017. (Dkt. No. 88, Exh. E at p. 886).
In response, Plaintiffs point to the statement in the crash report that De La Rosa "was known to have high blood pressure and had been ill for the past week with a flu virus," and claim that Defendant admitted, through the deposition of its corporate representative, Scott Evans, that high blood pressure contributes to fatigue and that a driver with the flu cannot drive safely. (Id. , Exh. A at p. 17; Dkt. No. 89 at ¶ 50). Evans, though, is not qualified to speak to the issue of whether high blood pressure contributes to fatigue, which falls within the purview of a medical expert. See Guevara v. Ferrer , 247 S.W.3d 662, 665 (Tex. 2007) ("The general rule has long been that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors."). Further, De La Rosa's wife and daughter testified that he had the flu two weeks prior to the accident, and that he was "good" by the time he left home for his final trip. (Dkt. No. 88 at ¶ 43, Exh. G at p. 38, Exh. H at pp. 54-55). Plaintiffs present no argument or evidence to suggest that Defendant knew or should have known of De La Rosa's illness, much less that his recovery was insufficient to allow for safe driving.
Defendant's reply lodges a general objection to Plaintiffs’ reliance, in their response, on Power Point slides created by Plaintiffs’ counsel for use in Evans's deposition as synonymous with his testimony, but no slide is determinative of the Motion; the Court need only consider Evans's testimony as supplied by the deposition excerpts themselves. (Dkt. No. 89 at ¶ 7; Dkt. No. 90 at ¶¶ 25-29).
The pages of Evans's deposition to which Plaintiffs cite are not part of the excerpts supplied to the Court, although on a separate page included in the excerpts, Evans agreed that high blood pressure could lead to chronic fatigue. See (Dkt. No. 89 at ¶ 50, Exh. A at p. 259).
In the alternative, Plaintiffs seek to avoid summary judgment on their medical condition claims by asking for a continuance to obtain the records underlying the medical examiner's certification, or to "determine whether that physical was even done" and Defendant's knowledge of the same, based on evidence that two clinics for which the medical examiner has worked either have no records for De La Rosa (Advantage Medical Clinic) or were not in operation at the time of the exam (Texas Specialty Clinic). (Dkt. No. 89 at ¶¶ 53-57, Exhs. C, D). Plaintiffs’ inability to locate the records has an alternate explanation: under the Federal Motor Carrier Safety Regulations, 49 C.F.R. §§ 391.41 - 49, which impose the certification requirement and prescribe the form contained in De La Rosa's file, the underlying report "must be retained on file at the office of the medical examiner for at least 3 years from the date of examination," a period that had elapsed at the time Plaintiffs requested the records. See (Dkt. No. 88, Exh. E at p. 886; 49 C.F.R. § 391.43(i) ). Thus, Plaintiffs’ "no records" affidavits do not offer compelling reason to reopen discovery. In any event, assuming Plaintiffs could now obtain the records, or even that the exam was not done and Defendant knew this, Plaintiffs otherwise have no means of linking the existence of any medical condition to the accident in question, which remains an issue on which medical expert testimony would be required. See (Dkt. No. 90 at ¶ 23). The Court declines Plaintiffs’ request to reopen discovery on their medical condition claims, and finds that summary judgment be granted.
Again, the date given on the form is October 3, 2017, and Plaintiffs’ "no records" affidavits are dated April 13 and 14, 2022, respectively. (Dkt. No. 88, Exh. E at p. 886; Dkt. No. 89, Exhs. C, D).
C. Fatigue Claims
The remaining alleged breached of duty are subsumed into a single, principal theory: that Defendant breached a duty owed to De La Rosa when it failed to prevent him from driving while fatigued. Defendant's Motion parcels out its challenges to the duty, breach, and proximate cause elements of Plaintiffs’ fatigue claims, and the Court will address each in turn.
1. Duty
The parties agree that under Texas law, duty is a threshold question of law for the Court to decide from the facts surrounding the occurrence at issue. See (Dkt. No. 88 at ¶ 18; Dkt. No. 91 at ¶ 3); Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). Defendant's Motion acknowledges the potential duties of general contractors and employers under Texas law, but argues that Plaintiffs have no evidence to impose any such duty in the present case. See (Dkt. No. 88 at ¶¶ 20-24). As Defendant observes, Texas law imposes no duty on a general contractor to ensure that its independent contractor performs work in a safe manner, except when it "retains some control over the manner in which [its] contractor performs the work that causes the damage." (Id. at ¶ 20); Fifth Club, Inc. v. Ramirez , 196 S.W.3d 788, 791 (Tex. 2006). A general contractor "can direct when and where an independent contractor does the work and can request information and reports about the work" without assuming liability, and lacks sufficient control to impose a duty if "there was no prior knowledge of a dangerous condition and no specific approval of any dangerous act." (Dkt. No. 88 at ¶ 20); Gonzalez v. Ramirez , 463 S.W.3d 499, 506 (Tex. 2015) (quoting Fifth Club , 196 S.W.3d at 792 ); Dow Chem. Co. v. Bright , 89 S.W.3d 602, 609 (Tex. 2002). In the employment context, Texas follows the general rule that an employer has a duty to use ordinary care to provide a reasonably safe workplace. Kroger Co. v. Elwood , 197 S.W.3d 793, 794 (Tex. 2006) ; see Martinez v. Delta Brands, Inc. , 515 S.W.2d 263, 265 (Tex. 1974) ("[W]hen the servant enters the employment of the master, he has the right to rely upon the assumption ... that the business is conducted in a reasonably safe manner.") (quoting Missouri, K. & T. Ry. Co. of Texas v. Hannig , 91 Tex. 347, 351, 43 S.W. 508 (1897) ). An employer is not, though, "an insurer of its employees’ safety"; "when an employee's injury results from performing the same character of work that employees in that position have always done, an employer is not liable if there is no evidence that the work is unusually precarious." (Dkt. No. 88 at ¶ 21); Kroger , 197 S.W.3d at 795. To argue that it owed no duty as a general contractor or employer under these principles, Defendant points to the portion of De La Rosa's driver qualification file reflecting that he had held a valid commercial driver license since 1987, and to the testimony of Defendant's trucking industry expert, Mark Respass, that De La Rosa's truck left the roadway for "some unknown reason." (Dkt. No. 88 at ¶¶ 22, 24, Exh. E at 888, Exh. F at pp. 23-25). According to Defendant, Plaintiffs have no contravening evidence that Defendant had prior knowledge of any dangerous condition or specifically approved of any dangerous act, or that De La Rosa's work was "unusually precarious." (Id. at ¶ 24).
In response, Plaintiffs argue that the Federal Motor Carrier Safety Regulations (FMCSR) preempt the principles of Texas law on which Defendant relies. See (Dkt. No. 89 at ¶¶ 12-27). The FMCSR, which apply to motor carriers and their drivers (to include independent contractors) who operate in interstate commerce—and indisputably to Defendant and De La Rosa at the time of the accident —set minimum safety guidelines for the commercial trucking industry and impose equal duties of regulation compliance on carriers and drivers. (Id. at ¶¶ 12, 26); see 49 U.S.C. § 31136(a) (FMCSR "shall prescribe minimum safety standards for commercial motor vehicles"); 49 C.F.R. §§ 390.3(a)(1) (FMCSR "are applicable to all employers, employees, and commercial motor vehicles that transport property ... in interstate commerce"), 390.5T ("employee" includes "an independent contractor while in the course of operating a commercial motor vehicle"), 390.11 ("Whenever ... a duty is prescribed for a driver or a prohibition is imposed upon the driver, it shall be the duty of the motor carrier to require observance of such duty or prohibition."). Relevant to Plaintiffs’ fatigue claims, the FMCSR impose the general rule that "[n]o driver shall operate a commercial motor vehicle, and a motor carrier shall not require or permit a driver to operate a commercial vehicle, while the driver's ability or alertness is so impaired or so likely to become impaired ... through fatigue ..., as to make it unsafe for him/her to begin or continue to operate the commercial vehicle." 49 C.F.R. § 392.3. In service of this general rule, the regulations impose additional "hours of service" rules that structure drivers’ time as follows: during any 24-hour period, no more than 14 hours on duty (of which 11 may be spent driving) and no less than 10 hours off duty (of which 8 must be spent in the sleeper berth); and during any 8-day period, no driving after 70 cumulative hours on duty until the driver takes a break of at least 34 consecutive hours. (Dkt. No. 89 at ¶ 7(g)); see 49 C.F.R. §§ 395.1(g), 395.3, 395.5(b)(2) ; Hours of Service of Drivers, 70 Fed. Reg. 49978-01 (Aug. 25, 2005) (final rule implementing on-duty/off-duty time rules intended to "maintain a 24-hour clock (circadian cycle) and provide[ ] enough time for most drivers to obtain adequate sleep before returning to work," and 70-hour/34-hour rules intended to allow for recovery from cumulative fatigue, thus reducing fatigue-related accidents). A motor carrier "must require each driver used by the motor carrier to record the driver's duty status for each 24-hour period," and "[n]o driver or motor carrier may make a false report in connection with a duty status." (Dkt. No. 89 at ¶ 13); 49 C.F.R. § 395.8(a)(1), (e)(1). For these rules to preempt Texas law, Congress's intent to do so must be expressly stated in the regulations or their enacting statute, or in relevant part, implied through the existence of an actual conflict with state law. (Dkt. No. 89 at ¶ 18); e.g., Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992) ; see also Fid. Fed. Sav. & Loan Ass'n v. de la Cuesta , 458 U.S. 141, 153, 102 S.Ct. 3014, 73 L.Ed.2d 664 (1982) ("Federal regulations have no less pre-emptive effect than federal statutes."). Plaintiffs do not argue express preemption; instead, they submit that "[r]equiring that a motor carrier have ‘prior knowledge of a dangerous act’ or requiring the driver's work to be ‘unusually precarious’ would relieve a motor carrier of its minimum FMCSR regulatory duties ... to monitor driver hours of service and ensure those hours are being reported accurately," and set up an impermissible conflict between Texas and federal law. (Dkt. No. 89 at ¶ 23).
See (Dkt. No. 89 at ¶ 7(a), Exh. A at p. 28).
Defendant's reply does not address Plaintiffs’ appeal to conflict preemption, choosing instead to argue that the FMCSR are irrelevant because Plaintiffs did not plead negligence per se. (Dkt. No. 90 at ¶¶ 6, 7). Defendant's argument relies solely on Rodriguez v. Transportes De Carga FEMA, S.A. de C.V. , 2020 WL 6938330 (S.D. Tex. Sept. 30, 2020), but as Defendant's own citations reveal, that court found the alleged hours of service violations irrelevant not only because the plaintiff failed to plead them as stand-alone negligence per se claims, but also because there existed no "causal nexus" between the alleged violations and the motor vehicle accident which caused the harm, and therefore no common-law negligence claim. (Id. ); Rodriguez , 2020 WL 6938330, at *9. The court acknowledged a collection of cases supporting the proposition that " ‘violation of the FMCSRs can constitute evidence of negligence’ in the absence of a properly pleaded negligence per se claim," and that the defendant's alleged violations of the FMCSR were not singly determinative of, but still relevant to, the plaintiff's negligence claims. (Dkt. No. 91 at ¶ 5); Rodriguez , 2020 WL 6938330, at *7 (quoting McCon v. Perez , 2018 WL 8808147, at *2 (S.D. Miss. Jul. 24, 2018) ). Consistent with this acknowledgment, the Fifth Circuit has observed that "[e]ven if a violation of a [federal] regulation does not constitute negligence per se, failure to comply with a regulation may still provide evidence that the defendant deviated from the applicable standard of care." Campbell v. Keystone Aerial Surveys, Inc. , 138 F.3d 996, 1003 (5th Cir. 1998). That the plaintiff's negligence claim based on hours of service violations failed the causation element in Rodriguez does not render the FMCSR irrelevant to the question of duty in this case.
As Plaintiffs observe, conflict preemption may arise in two ways: when compliance with both state and federal law is impossible, or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress[.]" (Dkt. No. 89 at ¶ 20); e.g., de la Cuesta , 458 U.S. at 153, 102 S.Ct. 3014 (quoting Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941) ). Plaintiffs’ argument, as the Court understands it, is not that Defendant faced an impossible choice, but that Texas law afforded it a more lenient duty of care than the one required by the FMCSR, thereby posing a preemptive conflict. See (Dkt. No. 89 at ¶¶ 12-29); 49 C.F.R. § 392.2 (if FMCSR "imposes a higher standard of care than [state law], the [FMCSR] must be complied with"). To the extent that Texas law relieved Defendant of its duty to provide a reasonably safe workplace if De La Rosa's work was not "unusually precarious," the Court finds no conflict, for the simple reason that the exception does not apply. As Plaintiffs note, the line of cases cited by Defendant reflects that work is not "unusually precarious" when an employee suffers injury while engaged in tasks that other workers regularly perform without injury. See (Dkt. No. 88 at ¶ 21; Dkt. No. 89 at ¶ 16 n.2); Kroger , 197 S.W.3d at 795 (no evidence that loading groceries on sloped portion of parking lot was unusually dangerous or resulted in similar injuries to other courtesy clerks); Werner v. Colwell , 909 S.W.2d 866, 869 (Tex. 1995) (no evidence that lifting bags of meat was unusual or posed threat of injury); Azubuike v. Fiesta Mart, Inc. , 970 S.W.2d 60, 66 (Tex. App.-Houston [14th Dist.] 1998, no pet.) (no summary judgment proof to establish that plaintiff's job-related lifting was unusual or posed threat of injury); Southerland v. Kroger Co. , 961 S.W.2d 471, 473 (Tex. App.-Houston [1st Dist.] 1997, no pet.) (same). Defendant cites to no cases, and the Court is aware of none, that classify commercial truck driving—a highly-regulated profession by reason of the unusual risks as compared to non-commercial driving—among these tasks. See (Dkt. No. 89 at ¶ 16 n.2). The Court accepts that De La Rosa was engaged in unusually precarious work within the meaning of Texas law at the time of the accident, such that Defendant (if his employer) retained a duty to provide him with a reasonably safe workplace.
The Court's remaining preemption inquiry further elucidates what that duty entailed, relevant to this case. Again, the principles of Texas law on which Defendant relies to evade a duty to De La Rosa, if an independent contractor, require that it exercise a sufficient degree of control over the work that caused the injury, and that it previously know or specifically approve of the dangerous condition or act resulting in injury. Here, the alleged dangerous condition or act consists of De La Rosa's driving of a commercial vehicle after exceeding his hours of service permitted by the FMCSR, and thus (as the theory goes) in a state likely impaired by fatigue. See (Dkt. No. 89 at ¶ 7(i)-(l)). Under Texas law, Defendant's prior knowledge of the dangerous condition must be actual, but the record contains no evidence of the same, or that Defendant specifically approved of hours of service violations or fatigued driving by De La Rosa. See Joeris Gen. Contractors, Ltd. v. Cumpian , 531 S.W.3d 187, 196 (Tex. App.-San Antonio 2016, pet. denied) ("[T]o fall within the exception to the no-duty general rule, a general contractor must have actual knowledge, not constructive knowledge, of an independent contractor's safety violations."); (Dkt. No. 88, Exh. F at pp. 76-77). Rather, Plaintiffs proceed under the theory that Defendant should have known that De La Rosa had repeatedly falsified his driver's duty status logs, to the point that he was driving after exceeding 70 cumulative hours on duty, and when he should have been taking the required 34-consecutive-hour break, at the time of the accident. See (Dkt. No. 89 at ¶¶ 7(i)-(l), 31). The Court agrees with Plaintiffs that the duty of care imposed on carriers by the FMCSR require them to have some measures in place to discover whether their drivers—whether employees or independent contractors—are keeping accurate record of their hours of service and do not exceed them, with the aim of guarding against driver fatigue, whereas the above-cited Texas law principles relieve general contractor carriers of the duty to take proactive steps to uncover their independent contractors’ fatigued driving. This reality does not make carriers’ compliance with both federal and state law impossible—Texas law does not prevent them from taking such steps—but it undermines Congress's intent, as expressed in the enacting statute and various regulatory provisions discussed supra —to impose a higher duty of care, requiring carriers to take and even prioritize such steps as a matter of both driver and public safety, regardless of the employment status of the driver. See (Dkt. No. 89 at ¶ 24); 49 U.S.C. §§ 113 ("In carrying out its duties, the [Federal Motor Carrier Safety Administration] shall consider the assignment and maintenance of safety as the highest priority, recognizing the clear intent, encouragement, and dedication of Congress to the furtherance of the highest degree of safety in motor carrier transportation."), 31131 ("Congress finds ... it is in the public interest to enhance commercial motor vehicle safety and thereby reduce highway fatalities [and] injuries," and to enhance "protection of the health of commercial motor vehicle operators," and that "improved, more uniform commercial motor vehicle safety measures and strengthened enforcement would reduce the number of fatalities and injuries ... related to commercial motor vehicle operations"). To the extent that Texas law holds that Defendant lacked sufficient control over or actual knowledge of De La Rosa's hours of service violations to impose a duty to take reasonable steps to prevent him from driving while fatigued, the FMCSR preempt it. Defendant owed him this duty regardless of his employment status.
So limited, this holding does not conflict with the Court's previous ruling that De La Rosa may not claim federal "statutory employee" status as a bar to the defenses of Texas Labor Code § 406.033(a), which does not set a duty of care. See, e.g. , (Dkt. No. 84 at p. 14). In fact, that Defendant may raise the defense of contributory negligence is consistent with the FMCSR, which place a co-equal burden on carriers and drivers to avoid fatigued driving.
2. Breach
Whether Defendant breached the same duty is a simpler question, at least when confronted with the record at this stage. Defendant's Motion disputes the existence of competent evidence that it violated any recognized industry standards or regulations relating to De La Rosa's hours of service, since Plaintiffs’ trucking industry expert, Respass, could not identify any relevant "safety management controls" that Defendant had or should have had in place. See (Dkt. No. 88 at ¶¶ 25-28, Exh. F at pp. 74-77). "Safety management controls," as used in the FMCSR and defense counsel's line of questioning, "means the systems, policies[,] programs, practices, and procedures used by a motor carrier to ensure compliance with applicable safety ... regulations ... to reduce the risk of highway accidents ... resulting in fatalities, injuries, and property damage." See (id. , Exh. F at p. 74); 49 C.F.R. § 385.3. Although Respass did not know what controls Defendant had relevant to the duty in this case, nor did he detail what any such controls should have looked like, he testified to Defendant's "responsibility under ... [§] 385.3 to have controls in place where they are monitoring [driver's] logs and identifying ... driver[s] such as De La Rosa with his violations." (Dkt. No. 88 at pp. 75-76; see Dkt. No. 89 at ¶ 33). According to Evans, Defendant's controls consist of automated driver's log audits, which if performed in this case, would have revealed De La Rosa's hours of service violations and resulted in "a counseling session just talking to [De La Rosa] about his ... violations that he had those 30 days prior," although Evans conceded that Defendant also had the ability to bar De La Rosa from driving. (Dkt. No. 89, Exh. A at pp. 190, 202; see Dkt. No. 89 at ¶¶ 7(p), (ff)). In view of Evans's admission that Defendant has no evidence of an audit or any other review of De La Rosa's logs to ascertain his now-conceded hours of service violations in the month preceding the accident, Respass's own failure to delineate the precise controls Defendant had or should have had in place does not defeat a showing of breach. See (id. at ¶ 31, Exh. A at pp. 181-83, 188-89, 213-14).
The Court notes Plaintiffs’ complaint that Defendant "produced only one month of [De La Rosa's] Driver Log," and their request for a continuance to obtain discovery relating to any previous automated audits of De La Rosa's logs to show breach of the relevant duty, but since the record suffices to defeat summary judgment on both of these elements, the Court need not entertain this request. See (Dkt. No. 89 at ¶ 46).
3. Proximate Cause
Even if Defendant breached its duty by failing to take reasonable steps to prevent De La Rosa from driving while fatigued, Defendant's Motion disputes the existence of a genuine link between that breach and Plaintiffs’ damages resulting from the accident in question, given both the opinion of Plaintiffs’ singular expert, Respass, that De La Rosa's truck left the roadway for "some unknown reason," and evidence that De La Rosa spent the night before the accident at a hotel and had just begun driving when the crash occurred. See (Dkt. No. 88 at ¶¶ 29-42, Exh. A, Exh. F at pp. 23-25). Under Texas law, the link between breach and damages must rise to the level of proximate cause, which has two elements: cause in fact and foreseeability. (Dkt. No. 88 at ¶ 31); e.g., W. Invs., Inc. v. Urena , 162 S.W.3d 547, 551 (Tex. 2005). Defendant's Motion engages the former. As Defendant observes, the test for cause in fact is whether the defendant's act or omission was a "substantial factor" in causing the injury, without which the harm would not have occurred. (Dkt. No. 88 at ¶ 31); W. Invs. , 162 S.W.3d at 551. If, however, "the defendant's negligence merely furnished a condition that made the injuries possible, there can be no cause in fact." (Dkt. No. 88 at ¶ 34); W. Invs. , 162 S.W.3d at 551. "The evidence must go further, and show that such negligence was the proximate, and not the remote, cause of resulting injuries.... [and] justify the conclusion that such injury was the natural and probable result thereof." (Dkt. No. 88 at ¶¶ 31, 34); Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 477 (Tex. 1995) (quoting Carey v. Pure Distrib. Corp. , 133 Tex. 31, 124 S.W.2d 847, 849 (1939) ) (alteration in original). "[P]roximate cause may be established by direct or circumstantial evidence and the reasonable inferences that may be drawn from that evidence," but not "by mere conjecture, guess, or speculation." (Dkt. No. 88 at ¶ 31; see Dkt. No. 89 at ¶ 37); Hulsey v. Attalla , 2019 WL 3484082, at *6 (Tex. App.-Houston [1st Dist.] Aug. 1, 2019, no pet.) (citing McClure v. Allied Stores of Tex., Inc. , 608 S.W.2d 901, 903-04 (Tex. 1980) ); Doe , 907 S.W.2d at 477.
Plaintiffs have no evidence to question whether De La Rosa spent the night before the accident at a hotel, nor do they identify any hours of service violations occurring the morning of the accident or the day preceding (which was, in Respass's own words, "a noticeably shorter [driving/on duty] day compared to previous days"). (Dkt. No. 89, Exh. B at pp. 8-9). Rather, they point to Respass's calculation that De La Rosa "had already accumulated 90.05 duty hours since his trip began without the required intervening 34 consecutive hour rest period" when the accident occurred. (Dkt. No. 89 at ¶ 7(l), Exh. B at pp. 8-9). In other words, Plaintiffs’ theory of negligence hinges on a showing that Defendant's failure to take reasonable steps to prevent De La Rosa from driving in a state of cumulative fatigue served as a substantial factor in bringing about the accident, without which the accident would not have occurred.
Defendant's Motion asserts that Plaintiffs need an expert to make this showing, and that Respass cannot, both because his causation opinion is a new one—his affidavit attached to the Motion, but not his deposition testimony or expert report, opine that "it is more likely than not [De La Rosa] was overly-fatigued at the time of the crash, which was a substantial factor in his ability to avoid said crash"—and one he is not qualified to render. See (Dkt. No. 88 at ¶¶ 32, 35-40; see also ¶¶ 27, 28; Dkt. No. 89, Exh. B at p. 10). Defendant's reply goes still further, taking the position that Respass cannot testify about FMCSR violations or fatigue at all, since whether Defendant violated the regulations constitutes a legal conclusion, and Repass did not even mention fatigue in his deposition or expert report. See (Dkt. No. 90 at ¶¶ 11, 13). The Court is satisfied that testimony from Respass explaining the FMCSR's hours of service requirements and reasons for their existence, and his calculations of De La Rosa's hours of service during the month leading up to the accident, are within his expertise, would aid jurors in understanding relevant facts outside their common knowledge, and could be provided without supplying a legal conclusion or posing undue prejudice to Defendant. See FED. R. EVID.. 702 (standard for admissibility of expert testimony). The Court accepts, though, Defendant's argument that Respass cannot take the next steps of opining that De La Rosa himself had likely reached a state of cumulative fatigue, which in turn served as a substantial factor in causing the accident, because this opinion contradicts his deposition testimony in which he disclaimed any expertise as to why the accident occurred. See (Dkt. No. 88, Exh. F at pp. 23-24; Dkt. No. 90 at ¶¶ 10, 11); Hacienda Recs., L.P. v. Ramos , 718 F. App'x 223, 235 (5th Cir. 2018) (party examined at deposition cannot raise issue of fact by submitting affidavit contradicting his own prior testimony). Plaintiffs’ argument that no contradiction exists, because defense counsel failed to pointedly ask whether De La Rosa's hours of service violations were a substantial factor in the crash, does not persuade; Respass pointedly testified that he had no opinion on causation. See (Dkt. No. 91 at ¶¶ 10-17).
Even if no expert testimony is required, and although a jury may reasonably infer causation from circumstantial evidence, the Court agrees with Defendant that the link between its breach of the relevant duty and the accident causing the damages at issue is ultimately too tenuous to place the existence of cause in fact in genuine dispute. See (Dkt. No. 88 at ¶¶ 33, 42; Dkt. No. 89 at ¶ 37). That De La Rosa was driving at all that day is the condition furnished by the breach, which does not suffice to show cause in fact, and even accepting that he was driving in a state of cumulative fatigue does not allow for the additional inference that Defendant's failure to take reasonable steps to prevent him from doing so played a substantial role in the accident. See (Dkt. No. 88 at ¶ 49). The parties do not dispute how the accident occurred: the tractor-trailer driven by De La Rosa ran off the eastbound, inside lane of the interstate, past the guardrail, and down the embankment, where it struck the pillars supporting the westbound overpass bridge, resulting in De La Rosa's death on impact and causing the tractor-trailer to burst into flames that "completely consumed" it. See (Dkt. No. 88, Exh. A). Why the accident occurred remains unknown, leading Plaintiffs to posit that, more likely than not, De La Rosa's presumed fatigued state was a substantial factor in his ability to respond to whatever immediate event may have precipitated it. (Dkt. No. 89 at ¶¶ 38, 39) (citing Windrum v. Kareh , 581 S.W.3d 761, 778 (Tex. 2019) ) (defendant's negligence need only be a substantial factor, not the immediate cause). Windrum , though, also cautions that a plaintiff must exclude, with reasonable certainty, other plausible causes of the damages at issue. Windrum , 581 S.W.3d at 778. In the Court's view, other plausible causes for why De La Rosa ran off the road are mechanical failure, a sudden medical event, or driver distraction/inattentiveness, any of which could have occurred in any number of ways, leading to the accident notwithstanding the supposed effect of cumulative fatigue on De La Rosa's ability to respond to them. The sad reality is that Plaintiffs have no evidence to rule out these causes, given the fiery and fatal circumstances of the crash, yet it falls within the prohibited realm of conjecture, guess, and speculation to accept that Defendant's failure to guard against De La Rosa's cumulative fatigue likely affected any immediate cause of the accident. A jury could not reasonably infer cause in fact from the record before the Court, which therefore fails to raise a genuine issue of material fact on the proximate cause element of Plaintiffs’ fatigue-based negligence claims.
This is especially the case if Defendant's breach consisted of its failure to counsel De La Rosa on his hours of service violations prior to the accident, rather than its failure to stop him from driving while in a state of cumulative fatigue; if the former, Defendant's fulfillment of its duty would not have barred De La Rosa from continuing to drive in that state.
The myriad of ways in which these events may have occurred qualify as possible causes, which Plaintiffs admittedly need not exclude. See Windrum , 581 S.W.3d at 778.
D. Gross Negligence
Since Plaintiffs cannot establish their ordinary negligence claims, neither can they show gross negligence supporting the recovery of exemplary damages, and summary judgment must be granted in full. See (Dkt. No. 88 at ¶ 50); e.g., James v. Dasilva Transp., Inc. , 2021 WL 863772, at *9 (S.D. Tex. Feb. 5, 2021), report and recommendation adopted sub nom. James v. DaSilva Transp. Inc. , 2021 WL 861450 (S.D. Tex. Mar. 8, 2021) (under Texas law, finding of ordinary negligence is prerequisite to finding of gross negligence and exemplary damages); cf. Bykowicz v. Pulte Home Corp. , 950 F.2d 1046, 1053 (5th Cir. 1992) (upon showing of elements of negligence, "[w]hat lifts ordinary negligence into gross negligence is the mental attitude of the defendant; that is what justifies the penal nature of the imposition of exemplary damages") (quoting Burk Royalty Co. v. Walls , 616 S.W.2d 911, 922 (Tex. 1981) ) (emphasis omitted).
The Court need not, therefore, consider Defendant's alternate argument that "[i]f ... the Court permits Plaintiffs to move forward with their driver fatigue claims," a prospective release in the Contractor Agreement between Defendant and De La Rosa precludes such claims, although the Court acknowledges Plaintiffs’ responsive arguments that the release "has zero bearing" on Defendant's Motion, Defendant has not pleaded release as an affirmative defense, and whether the release is legally enforceable "is questionable and can be addressed when properly raised." (Dkt. No. 90 at ¶ 8; Dkt. No. 91 at ¶ 9 n.4).
IV. Conclusion
For the foregoing reasons, the Court hereby ORDERS that Defendant's Motion for Final Summary Judgment is GRANTED .
SO ORDERED August 2, 2022, at McAllen, Texas.