Legal Document: SALOME BONANO vs. A TO B AUTO TRANSPORT LLC, et al

On November 29, 2022 a MOTION FOR PARTIAL SUMMARY JUDGMENT - MOTION - PARTIAL SUMMARY JUDGMENT was filed involving a dispute between Bonano, Salome, and A To B Auto Transport Llc, Brewer, Brian Keith, for MOTOR VEHICLE ACCIDENT in the District Court of Dallas County.

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FILED
11/10/2023 9:26 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Lauren Beavers DEPUTY

CAUSE NO. DC-22-16342
SALOME BONANO, § IN THE DISTRICT COURT
§
Plaintiff, §
§
§
V. §
§ 44TH JUDICIAL DISTRICT
§
A TO B AUTO TRANSPORT LLC, §
and BRIAN KEITH BREWER, §
§
Defendants. § DALLAS COUNTY, TEXAS

DEFENDANT A TO B AUTO TRANSPORT LLC'S
NO-EVIDENCE MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendant A to B Auto Transport LLC ﬁles its No-Evidence Motion for

Partial Summary Judgment:

I.
SUMMARY OF MOTION
Defendant A to B Auto Transport moves for partial summary judgment

because Plaintiff cannot provide any evidence to support direct claims against it: (1)

negligent entrustment; (2) negligent hiring, training, and supervision, and (3) gross

negligence. As shown by this motion, Defendant is entitled to a take-nothing

judgment on these claims. This motion will eliminate unsubstantiated claims and

ready this lawsuit for trial.

II.
PROCEDURAL HISTORY
Plaintiff ﬁled this lawsuit on November 29, 2022. Trial is set for January 8,

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1
13474033V1 / 13481.003
2024. Discovery closes on December 8, 2023. Accordingly, this no-evidence motion is

ripe.

III.
BACKGROUND
This personal injury case arises from an August 18, 2022 minor car accident

that occurred on Interstate 30 in Garland. Plaintiff and Defendant Brewer were

driving eastbound in dense trafﬁc. Plaintiff, who was unlicensed, changed lanes in

front of Defendant Brewer’s tractor-trailer and clipped his bumper. Plaintiff alleges

Defendant Brewer failed to control his speed and caused the collision.

There is no evidence that Defendant Brewer was a dangerous or unsafe

driver at any time leading up to and including this accident, and there is no

evidence of gross negligence. Accordingly, the Court should dismiss the direct

claims against Defendant A to B Auto Transport for its own alleged negligence (in

contrast to the claims for Vicarious liability) related to permitting Defendant

Brewer to drive a commercial vehicle.

IV.
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
A. No-Evidence Summary Judgment Standard

Rule 166a of the Texas Rules of Civil Procedure governs no-evidence motions

for summary judgment:

(i) No-Evidence Motion. After adequate time for discovery, a party
without presenting summary judgment evidence may move for
summary judgment on the ground that there is no evidence of one or
more essential elements of a claim or defense on which an adverse
party would have the burden of proof at trial. The motion must state
the elements as to which there is no evidence. The court must grant

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2
13474033V1 / 13481.003
the motion unless the respondent produces summary judgment
evidence raising a genuine issue of material fact.1

A no-evidence summary judgment shifts the burden of proof to the party having the
burden of proof at trial?

Defendant A to B Auto Transport moves the Court for partial summary

judgment under Texas Rule of Civil Procedure 166a(i) dismissing the following

claims: (1) negligent entrustment; (2) negligent hiring, training, and supervision,

and (3) gross negligence.

B. Plaintiff Has No Evidence to Support Negligent Entrustment
Plaintiff alleges that Defendant A to B Auto Transport negligently entrusted

Defendant Brewer with the tractor-trailer he was driving.3 To prevail on a negligent

entrustment cause of action, Plaintiff must show the following:4

(1) The owner entrusted its vehicle to another person;

(2) That person was an unlicensed, incompetent, or reckless driver;

(3) The owner knew or should have known the driver was unlicensed,

incompetent, or reckless;

(4) The driver was negligent on the occasion in question; and

(5) The driver's negligence proximately caused plaintiff's injuries.

i. Entrustment to Unlicensed. Incompetent or Reckless Driver

To prevail on this cause of action, Plaintiff must prove that Defendant

1
TEX. R. CIV. P. 166a(i).
2
Dyer v. Accredited Home Lenders, Inc, No. O2-11-OOO46—CV, 2012 WL 335858, at *2 (Tex. App—Fort Worth
Feb. 2, 2012, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex. App—Austin 1998, no writ).
3
See Plaintiff’s First Amended Petition, Paragraphs 14-16.
4
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007); Schneider v. Esperanza Transmission
00., 744 S.W.Zd 595, 596 (Tex. 1987).

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3
13474033V1 / 13481.003
Brewer was an unlicensed, reckless, or incompetent driver at the time Defendant A
to B Auto Transport entrusted him with the truck.5 It is undisputed that Defendant

Brewer was properly licensed at the time of the subject accident and Plaintiff does

not make such an allegation; therefore, Plaintiff must prove that Defendant Brewer

was reckless or incompetent.

To show that a driver is reckless or incompetent, evidence must show a

pattern of "deviations from lawful and proper manner of vehicle operation that if
the entrustor had knowledge of the history, the entrustor should reasonably have

anticipated that the driver would operate the entrusted vehicle in a wrongful

manner and thereby damage persons or property."6 Plaintiff has no such evidence.

ii. Knowledge

Assuming arguendo Plaintiff could show that Defendant Brewer was a

reckless or incompetent driver, Plaintiff must also show that Defendant A to B Auto

Transport knew or should have known of same when it entrusted Brewer with the

truck.7 A vehicle owner cannot know that a driver is incompetent or reckless unless

the driver actually is incompetent or reckless.8 This element is not satisﬁed unless

the knowledge is such that "a prudent person, considering the safety of others on

the highways, would deny [the driver] access to [an] automobile."9 Plaintiff has no

evidence to support his element.

5 See Huynh v. R. Warehousing & Port Servs., 973 S.W.2d 375, 378 (Tex. App—Tyler 1998, no pet).
6 Pesina v. Hudson, 132 S.W.3d 133, 137—38 (Tex. App—Amarillo 2004, no pet); see Schneider 744 S.W.2d at
596.
7
See Mayes, 236 S.W.3d at 758.
8 Mireles v.
Ashley, 201 S.W.3d 779, 783 (Tex. App—Amarillo 2006, no pet).
9
Louis Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604 (Tex. App—Houston [lst Dist.] 1986, no writ).

DEFENDANT A TO B AUTO TRANSPORT LLC'S
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13474033V1 / 13481.003
iii. Causation

Finally, Plaintiff must prove the entrustment proximately caused her alleged

injuries. Proximate cause consists of two elements: (1) cause-in-fact; and (2)

foreseeability.10 Cause-in-fact asks, "whether the act or omission was a substantial

factor in causing the injury without which the harm would not have occurred."11 But

"cause-in-fact is not established where defendant's negligence does no more than

furnish a condition which makes the injuries possible!“

Foreseeability, on the other hand, requires that a person of ordinary

intelligence should have anticipated the danger created by a negligent act or

omission.13 "Foreseeability requires more than someone, Viewing the facts in

retrospect, theorizing an extraordinary sequence of events whereby the defendant's

conduct brings about the injury."14 Negligent entrustment claims "cannot lie if '[t]he

risk that caused the entrustment to be negligent did not cause the collision.'"15

Stated another way, the vehicle owner must be able to reasonably anticipate that an

injury would result due to the entrustment.” Plaintiff has no evidence to establish

causation.

iv. Plaintiff Has No Evidence
Plaintiff cannot produce the requisite summary judgment evidence to support

elements numbers 2 (incompetent/reckless), 3 (knowledge) and 5 (causation) of her

10
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
11
W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).
12
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995).
13
Nixon Property Management C0., 690 S.W.2d 546, 549-50 (Tex. 1985).
14 Continued
Care, Inc. v. Fournet, 979 S.W.2d 419, 422 (Tex. App—Beaumont 1998, writ denied).
15 TXI
Transp. Co. v. Hughes, 306 S.W.3d 230, 241 (Tex. 2010) (quoting Schneider, 744 S.W.2d at 597).
16
Schneider, 744 S.W.2d at 596.

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5
13474033V1 / 13481.003
negligent entrustment claim.” As such, it must be dismissed.

C. Plaintiff Has No Evidence to Support Negligent Hiring, Training, and
Supervision
Plaintiff alleges Defendant A to B Auto Transport was negligent in the

hiring, training, and supervision of Defendant Brewer as a commercial driver."18

Plaintiffs direct negligence claims fall under a simple negligence cause of action

based on an employer's direct negligence.19 The elements of a negligence action are

duty, a breach of that duty, and damages proximately caused by the breach.20

Plaintiff must show that Defendant A to B Auto Transport’s failure to investigate

and screen Defendant Brewer prior to his hiring proximately caused the injuries the

plaintiff alleges.21 Further, Plaintiff must Show she “suffer[ed] some damages from

the foreseeable misconduct of an employee hired pursuant to the defendant’s

negligent practices.”22 If an employee’s job responsibilities include driving, “[a]n

employer is not negligent when there is nothing in the employee’s background that

would cause a reasonable employer not to hire or retain the employee.”23 There is no

evidence of anything in Defendant Brewer’s background to support a claim that he

was a dangerous driver. Accordingly, there is no evidence to support the plaintiffs

claims of direct negligence against Defendant A to B Auto Transport in this regard.

To succeed on negligent training, Plaintiff must establish that “a reasonably

17
Defendant does not concede element 4.
18 See Plaintiffs First Amended Petition, Paragraphs 19-21.
19
Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App—Fort Worth 2008, no pet.).
20
Id.; see also Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).
21
Dangerfield, 264 S.W.3d at 912; see also Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006).
*
22 Black v. Smith Protective
Services, 2016 Tex. App. LEXIS 10475, 9 (Tex. Ct. App., 1st Dist—Houston 2016).
23 Martinez v.
Hays Constr., Ina, 355 S.W.3d 170, (Tex. Ct. App., lst Dist—Houston 2011).

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6
13474033V1 / 13481.003
prudent employer would have provided training beyond that which was given.”24

Again, there is no evidence that Defendant A to B Auto Transport is deﬁcient in its

training practices.

An employer is liable for negligent retention or supervision if it hires an

incompetent or unﬁt employee whom it knows, or by the exercise of reasonable care

should have known, was incompetent or unﬁt, thereby creating an unreasonable

risk of harm to others.25 To establish a claim for negligent supervision, Plaintiff

must show that the failure to supervise Defendant Brewer caused her injuries.26

There is no evidence of any prior incompetence or lack of ﬁtness on the part of

Defendant Brewer such that Defendant A to B Auto Transport could have been

negligent in retaining and supervising him.

There is no evidence to support any element of Plaintiffs direct negligence

claims against Defendant A to B Auto Transport. Of specific relevance here,

Plaintiff can present no evidence to establish that Defendant Brewer was an

incompetent, or reckless driver, or that Defendant A to B Auto Transport had any

reason to believe, or should have had any reason to believe, that Brewer fell into

any of those categories.” Without such evidence, Plaintiff‘s claims of negligent

hiring, training, and supervision fail. Accordingly, Defendant A to B Auto Transport

asks that this Court grant its no-evidence motion for summary judgment on this

Meija-Rose v. John Moore Servs., 2019 Tex. App. LEXIS 6405,
24 **
30—31 (Tex. App —Houston [1st Dist],
2019).
25 Morris v. JTM
Materials, 78 S.W.3d 28, 49 (Tex. App—Fort Worth 2002, no pet. h.).
26
Dangerfield, 264 S.W.3d at 913; see also Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—
Houston [14th Dist] 2005, no pet.); Morris, 78 S.W.3d at 49.
27 Pesina v.
Hudson, 132 S.W.3d 133, 137—38 (Tex. App—Amarillo 2004, no pet.); see Schneider 744 S.W.2d at
596.

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7
13474033V1 / 13481.003
claim.

D. Plaintiff Has No Evidence to Support Gross Negligence
Plaintiff have pleaded a gross negligence cause of action against Defendant A

to B Auto Transport.28 To recover exemplary damages, Plaintiff must establish the

following elements of gross negligence by clear and convincing evidence:

(1) The act or omission, when Viewed objectively from the defendant's

standpoint at the time it occurred, involved an extreme degree of risk,

considering the probability and magnitude of the potential harm to

others; and

(2) The defendant had actual, subjective awareness of the risk but

proceeded with conscious indifference to the rights, safety, or welfare of

others.”

Unlike ordinary negligence, gross negligence contains both an objective and a

subjective component.30

There is no evidence to support any element of a claim for gross negligence

against Defendant A to B Auto Transport. Plaintiff cannot create a genuine issue of

fact as to the requisite elements of a gross negligence claim. Further, Plaintiff

cannot prove the objective and subjective components of a gross negligence claim.

Accordingly, Plaintiffs claim for gross negligence and exemplary damages should be

dismissed.

28 SeePlaintiffs First Amended Petition, Paragraphs 22-24.
29 U-Haul Int ’l v. Waldrip, 380 S.W.3d 118, 137 (Tex. 2012); see TEX. CIV. PRAC. & REM. CODE § 41.001(11)(A)-
(B).
30 Reeder v. Wood Cnty. Energy, L.L.C., 395 S.W.3d 7891 796 (Tex. 2012).

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8
13474033V1 / 13481.003
V.
PRAYER
Defendant A to B Auto Transport LLC requests the Court grant this No-

Evidence Motion for Partial Summary Judgment. Defendant prays the Court enter

a take-nothing judgment on Plaintiffs claims for (1) negligent entrustment; (2)

negligent hiring, training, and supervision, and (3) gross negligence against A to B
Auto Transport.

Defendant also prays for additional relief to which it may be justly entitled.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, LLP

By: ls/

Texas Bar No. 24059232
sriddle@thompsoncoe.com
700 North Pearl Street
25th Floor
Dallas, TX 75201
Telephone: (214) 292-3908
Facsimile: (214) 871-8209

ATTORNEY FOR DEFENDANT
A TO B AUTO TRANSPORT LLC

CERTIFICATE OF SERVICE
I hereby certify that this instrument was served upon all parties on
November 10, 2023, pursuant to the Texas Rules of Civil Procedure.

/s/ ScottRiddle
Scott Riddle

DEFENDANT A TO B AUTO TRANSPORT LLC'S
N O-EVIDEN CE MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 9
13474033V1 / 13481.003
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.

Diane Trent on behalf of Scott Riddle
Bar No. 24059232
DTrent@thompsoncoe.com
Envelope ID: 81511411
Filing Code Description: Motion - Partial Summary Judgment
Filing Description:
Status as of 11/10/2023 12:24 PM CST

Associated Case Party: SALOME BONANO

Name BarNumber Email TimestampSubmitted Status

Jorge Sotelo jorge@shamiehlaw.com 11/10/2023 9:26:57 AM SENT
Nicholas JCoward nic@shamiehlaw.com 11/10/2023 9:26:57 AM SENT
LAURA RIVAS LRIVAS@JALEXLAWFIRM.COM 11/10/2023 9:26:57 AM SENT

Associated Case Party: A TO B AUTO TRANSPORT LLC

Name BarNumber Email TimestampSubmitted Status
Scott Riddle SRiddle@thompsoncoe.com 11/10/2023 9:26:57 AM SENT
Diane Trent DTrent@thompsoncoe.com 11/10/2023 9:26:57 AM SENT
Marissa Marron MMarron@krcl.com 11/10/2023 9:26:57 AM ERROR

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November 10, 2023

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November 29, 2022

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