Motion for Summary Judgment in Danielle Ybarra VS. Best Hot Shots LLC| Trellis.Law

On August 30, 2022 a Motion,Ex Parte was filed involving a dispute between Ybarra, Danielle, and Best Hot Shots Llc, for Injury or Damage - Motor Vehicle (OCA) in the District Court of Hidalgo County.

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Electronically Filed
2/14/2024 5:15 PM
Hidalgo County District Clerks
Reviewed By: Oscar Castillo

CAUSE NO. C-3383-22-I

DANIELLE YBARRA § IN THE DISTRICT COURT
§
v. § 398TH JUDICIAL DISTRICT
§
BEST HOT SHOTS, L.L.C. § HIDALGO COUNTY, TEXAS

DEFENDANT’S TRADITIONAL AND NO EVIDNCE MOTION FOR SUMMARY
JUDGEMENT
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, BEST HOT SHOTS, L.L.C., Defendant in the above styled and numbered

cause (hereinafter "Defendant"), and ﬁles this Motion for Summary Judgment and in support

thereof, would respectfully show unto the court as follows:

I. FACTUAL BACKGROUND
1. Plaintiff ﬁled this personal injury lawsuit against Defendant on August 30, 2022, for her

alleged injuries from a motor vehicle accident that occurred on June 5, 2022. Plaintiff‘s allegations

are as follows: On June 5, 2022, Steve Arellano, a driver of Best Hot Shots, L.L.C., was involved

in a rollover accident. See Pltf.'s Orig. Pet. at 2. At the time of the accident Mr. Arellano was

driving a 2014 Kenworth T680 with an attached trailer. Id.

2. In her instant lawsuit, Plaintiff asserts several theories of liability against Defendant. Under

the doctrine of respondeat superior Plaintiff asserts her negligence and gross negligence claims

against Defendant. Further alleging that Defendant was negligent and grossly negligent in the

hiring, retention, training, supervision ofits driver. Plaintiff also alleges that Defendant negligently

entrusted its vehicle t0 its driver. See Id. at 3.
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Hidalgo County District Clerks
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3. As the movant will demonstrate herein, Plaintiff has failed to create a genuine issue of

material fact for either of her claims such that a jury would ﬁnd in favor of Plaintiff. Thus,

Defendant would show this Court that they are entitled to summary judgment as a matter 0f law.

II. SUMMARY JUDGMENT EVIDENCE

4. Defendant incorporates by reference all pleadings on ﬁle in this case. In addition to all

pleadings 0n ﬁle in this case, Defendant attaches the following summary judgment evidence and

incorporate it herein as it sets out in full:

Exhibit 1: Plaintiff's Interrogatory Responses

Exhibit 2: Mr. Arellano's Commercial Driver's License

III. ARGUMENT & AUTHORITIES
A. TRADITIONAL MOTION FOR SUMMARY JUDGMENT

5. A movant is entitled to a traditional Rule 166a(c) summary judgment if the movant

establishes that there is no genuine issue regarding any material fact and the movant is entitled to

ajudgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex. Dep ofCriminal Justice,
’t

148 S.W.3d 374, 381 (Tex. 2004) (emphasis added). Further, “a material fact is ‘genuine’ only if

the evidence is such that a reasonable jury could ﬁnd the fact in favor of the nonmoving party.”

Rayon v. Energy Specialties, Ina, 121 S.W.3d 7, 11-12 (Tex. App.—Fort Worth 2002, no pet.)

(citing Lampasas v. Spring Ctr, Inc. 988 S.W.2d 428, 433 (Tex. App. —Houston [14th Dist] 1999,

no pet.) Importantly, a defendant moving for summary judgment may either (1) disprove at least

one element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential

element 0f an aﬁirmative defense to rebut the plaintiff’s cause. Cathay v. Booth, 900 S.W.2d 339,

341 (Tex. 1 995).
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Hidalgo County District Clerks
Reviewed By: Oscar Castillo

6. A defending party may move for summary judgment with 0r without supporting affidavits

and summary judgment may properly be rendered upon consideration of deposition transcripts,

interrogatory answers, and other discovery responses referenced or set forth in the motion, and the

pleadings, admissions, afﬁdavits, stipulation ofthe parties and any authenticated or certiﬁed public

records 0n ﬁle or ﬁled with leave of court, or other summary judgment evidence. See TEX. R.

CIV. P. 166a.

7. Under the rules governing a legal-sufﬁciency analysis, a nonmovant presents no evidence

when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of

law or evidence from giving weight t0 the only evidence offered t0 prove a vital fact, (c) the

evidence offered t0 prove a vital fact is no more than a mere scintilla, or (d) the evidence

conclusively establishes the opposite of the vital fact. City ofKeller v. Wilson, 168 S.W.3d 802,

810 (Tex. 2005). The evidence is insufﬁcient if “it is so weak as to do no more than create a mere

surmise 0r suspicion” that the challenged fact exists. Akin, Gump, Strauss, Hauer & Field, L.L.P.

v. Nat’l Dev. & Research Corp, 299 S.W.3d 106, 115 (Tex. 2009). Additionally, speculation 0r

conclusory statements will not defeat a properly supported motion for summary judgment because

merely conclusory statements do not constitute effective summary judgment proof and need not

be given the same presumptive force as allegations of fact. Abbot Laboratories, Inc. v. Siegler, 907

S.W.2d 503, 508 (Tex. 1995).

a. Summary judgment is proper because Plaintiff has not created a genuine issue of
material fact regarding her negligence claim.

8. The essential elements of a negligence cause of action are 1) a legal duty owned by one

person to another, 2) a breach of that duty, and 3) damages actually and proximately caused by the

breach. See Greater Houston Trasnp. C0. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Further to

meet the requirements of gross negligence the Plaintiffs must show an act 0r omission which
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Hidalgo County District Clerks
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involved an extreme degree of risk, considering the probability and magnitude of harm and (2) the

actor had actual or subjective awareness 0f the risk, but proceeded with conscious indifference.

See Tex. Civ. Prac. & Rem. Code § 41.001(11).
9. As noted above, Plaintiff asserts that Defendant was negligent in "failing to operate the

tractor trailer in a reasonable and prudent manner, failing to take proper evasive action and failing

to maintain a single land and keep the tractor & trailer upright." See P1ﬁ.'s Org. Pet. at 3.

10. Plaintiff has failed to create a genuine issue of material fact regarding whether Defendant

breached any duty owed to Plaintiff. As per Plaintiff‘s own responses to written interrogatories,

Plaintiff stated that "the accident occurred when the load of the vehicle shifted and caused the truck

lu ﬂip." Exhibit 1 at 3 — 4. (January 5, 2023 Pltf.s Resp. t0 ROGS). Plaintiff has not created a

genuine issue 0f fact regarding whether Defendant breached any duty owed to Plaintiff with respect

to the load of the vehicle being loaded improperly. Plaintiff further states that "they were traveling

at a normal speed." Id. at 4. However, by Plaintiﬁ‘s own admission, Defendant‘s driver was driving

in a prudent and reasonable manner.

11. Thus, without more, Plaintiff has failed to create a genuine issue of material fact such that

a jury would ﬁnd in favor of Plaintiff regarding her negligence claim. Therefore, Defendant is

entitled to summary judgment on Plaintiff‘s negligence claim.

b. Defendant is entitled to summary judgment on Plaintiff‘s claim of Negligent Hiring

12. Plaintiff has alleged that Defendant was negligent in "hiring, supervising and retaining its

employee/driver who was an unqualiﬁed, an incompetent, and a careless driver." See P1tf.'s Org.

Pet. 3. Under Texas common law, a Plaintiff must prove that (1) the employer owed the plaintiff a

duty t0 hire, supervise, train, or retain competent employees; (2) the employer breached that duty;

(3) the employee committed a tort; and (4) the employer's breach and the employee's tort
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proximately caused the plaintiff‘s injury. See THI ofTex. at Lubbock I, LLC v. Perea, 329 S.W.3d

548, 573 (Tex. App.—Amarillo 2010, pet. denied). However, an employer is not liable for

negligent hiring or retention When there is nothing in the employee's background that would cause

a reasonable employer not to hire 0r retain the employee. Fiﬁ‘h Club, Inc. v. Ramirez, 196 S.W.3d

788, 796 (Tex. 2006); Dangerﬁeld v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—F0rt Worth

2008, n0 pet.).

13. Here, Plaintiff has failed t0 create a genuine issue of material fact regarding the second

element, that being whether Defendant breached the duty to hire, supervise, train, or retain

competent employees. However, Plaintiff has failed to create any genuine issue such that a jury

would ﬁnd Defendant hired an "incompetent or unﬁt" employee. See Dangerfield v. Ormsby, 264

S.W.3d 904, 912 (Tex.App.--Fort Worth 2008, no pet.).

14. As noted above, Plaintiff admits that the vehicle was being driving at a normal speed. Thus,

admitting t0 the reasonable manner in which Defendant's driver was operating the tractor trailer at

the time 0f the accident. Moreover, there is n0 genuine issue regarding Mr. Arellanos background

0r any conduct during his working for Defendant that would have put Defendant on notice that Mr.

Arellano was an incompetent or unﬁt driver.

15. Thus, without more, Plaintiff has failed to create a genuine issue of material fact such that

a jury would ﬁnd in favor 0f Plaintiff regarding her negligent hiring claim. Therefore, Defendant

is entitled to summary judgment on Plaintiffs negligent hiring claim.

c. Defendant is entitled t0 summary judgment on Plaintiff‘s claims of Negligent
Training and Supervision

16. Plaintiff alleges that Defendant negligently trained and supervised its employees. In her

petition Plaintiff claims that Defendant negligently by its:
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Hidalgo County District Clerks
Reviewed By: Oscar Castillo

Failure m properly tr-ain its drivers;
Failure t0 establish an adequate safety program
.

r9999?»
Failing to adequateiy supervise its drivers;
Failure tn properly quaiﬂy its clrivur‘s:
Fallgre
t9 cstabﬁsh adequate
policies anclfor adequately enforce
policies
for Its driver‘s, including a
policy for keeping a proper lookout
driving in a .

sgfe‘niannur. and with vigilance:

Defendant contends that each 0f the above fall within the Negligent Training and/or Supervision

claims.

17. Under Texas common law, a Plaintiff must establish that "a reasonably prudent employer

would have provided training beyond that which was given and that failure t0 d0 so caused his

injuries." Dangerﬁeld, 264 S.W.3d 904, 913 (Tex. App. — Fort Worth 2008, no pet). Plaintiff has

failed to create a genuine issue of material fact regarding Defendant's training or lack thereof. As

such, Defendant is entitled t0 summary judgment with regard t0 Plaintiff‘s negligent training claim.

18. Plaintiff has also failed to create a genuine issue of material fact regarding her negligent

supervision claim. Under Texas common law, to impose liability on an employer for negligent

supervision, a plaintiff must show that an employer's failure to supervise its employees caused his

inj uries. See Id. There is nothing in the record that would create a genuine issue regarding whether

Defendant properly supervised its driver. Without more, Plaintiff has failed to create a genuine

issue such that a jury would ﬁnd in favor 0f Plaintiff. Therefore, Defendant is entitled to summary

judgment on Plaintiffs negligent supervision claim.

d. Defendant is entitled to summary judgment on Plaintiff's claim of Negligent
Entrustment.

19. Plaintiff has asserted that Defendant "Negligently entrust[ed] the vehicle to its

employee/driver." See Pltf.'s Orig. Pet. at 3. Under Texas common law, a Plaintiff must prove that

(1) Defendant entrusted the vehicle to Mr. Arellano, (2) Arellano, was an unlicensed, incompetent,
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or reckless driver, (3) at the time of the entrustment, Defendant knew or should have known that

Mr. Arellano was an unlicensed, incompetent, or reckless driver, (4) Mr. Arellano was negligent

on the occasion in question, and (5) Mr. Arellano‘s negligence proximately cause the accident. See

Schneider v. Esperanza Transmission C0., 744 S.W.2d 595, 596 (Tex. 1987).

20. Plaintiff has failed t0 show that at the time Defendant entrusted Mr. Arellano with their

vehicle that Mr. Arellano was an unlicensed, incompetent, or reckless driver. On the contrary, Mr.

Arellano was a licensed driver as he held a Commercial Driver's License. See Exhibit 2. (Arellano's

DL). Additionally, Plaintiff has failed to create a genuine issue of material fact regarding whether

Defendant knew or should have known that Mr. Arellano was an unlicensed, incompetent, 0r

reckless driver.

21. Given Mr. Arellano’s commercial driver license and no evidence to show that Mr. Arellano

was incompetent 0r reckless, Plaintiff will not be able t0 create a genuine issue 0f fact regarding

the second and third elements 0f her negligent entrustment claim. Therefore, Defendant is entitled

to summary judgment on Plaintiff‘s negligent entrustment claim.

e. Defendant is entitled to summary judgment on Plaintiff‘s claim of gross negligence.

22. Plaintiﬂ' further asserts that Defendant was grossly negligent with regard to one of the

above claims. However, Plaintiﬂ‘never asserts which other claim Defendant was grossly negligent.

Nevertheless, under a gross negligence theory of liability Plaintiff must prove the two elements:

(1) viewed objectively from the actor‘s standpoint, the act or omission must involve an extreme

degree of risk, considering the probability and magnitude of the potential harm to others, and (2)

the actor must have actual, subj ective awareness of the risk involved, but nevertheless proceed in

conscious indifference to the rights, safety, or welfare of others. Mobil Oil Corp. v. Ellender. 968

S.W.2d 917, 921 (Tex. 1998).
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Hidalgo County District Clerks
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23. "Under the ﬁrst element, 'extreme risk' is not a remote possibility of injury or even a high

probability of minor harm, but rather the likelihood of serious injury to the plaintiff." Id. "Under

the second element, actual awareness means that the defendant knew about the peril, but its acts

or omissions demonstrated that it did not care." Id.

24. As with the other claims, Plaintiff has failed t0 create a genuine issue of material fact

regarding both elements of Plaintiff‘s gross negligence claim. Here, there was n0 act that involved

an extreme degree of risk, unless Plaintiff is willing t0 contend that anytime a driver is driving a

commercial vehicle they are engaged in an act that involves an extreme degree ofrisk. A contention

that would be unreasonable if made.

25. Regarding the subjective element, Plaintiff has failed to create a genuine issue of material

fact regarding whether Defendant knew of the accident and simply continued with conscious

indifference to the rights, safety, or welfare of others. As such, without more, Plaintiff has failed

to create a genuine issue 0f material fact regarding her gross negligence claims. Therefore,

Defendant is entitled to summary judgment on Plaintiffs gross negligent claim.

26. Defendant is entitled to summary judgment, as a matter of law for Plaintiff’s claims for

negligence, gross negligence, negligent hiring, negligent training and supervision, and negligent

entrustment. There is no issue of material fact that Defendant acted with reckless disregard for the

safety and welfare of others and/or malice towards Plaintiff. There is n0 issue 0f material fact that

Mr. Arellano was an incompetent or reckless driver; or an incompetent and unﬁt employee and

that Defendant did know 0r had reason to know that he was incompetent, reckless, or unﬁt. There

is no issue of material fact that Defendant failed to train or supervise a commercially licensed

driver, nor is there any fact issue that any such failure would have caused Plaintiff‘s injuries.

Without any evidence t0 show otherwise, Plaintiff has failed to create a genuine issue of material
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Hidalgo County District Clerks
Reviewed By: Oscar Castillo

fact such that a jury would ﬁnd in favor of Plaintiff on these claims.

B. NO EVIDENCE SUMMARY JUDGMENT
27. Under Texas Rules 0f Civil Procedure 166a(i), a court may grant a no-evidence motion for

summary judgment if the movant can show adequate time for discovery has passed and the non-

movant has no evidence to support one or more essential elements of a claim or defense 0n which

an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). Aﬁer the movant

identiﬁes one 0r more essential elements 0f a claim or defense as to which there is no evidence,

the burden shifts to the nonmovant t0 produce summary judgment evidence raising a genuine issue

ofmaterial fact. B.C. v. SteakN Shake Operations, Ina, 598 S.W.3d 256, 259 (Tex. 2020). If the

nonmovant fails t0 carry this burden, then the court must grant the motion for summary judgment.

Id. Here, Plaintiff has failed t0 show any evidence to support her negligence, gross negligence,

negligent hiring, negligent training, and negligent entrustment claims.

28. Defendant incorporates the above paragraph 8 herein. Regarding Plaintiff‘s negligence

claim, Plaintiff has failed to show, by even a scintilla of evidence that it was Defendant who

breached any duty owed to Plaintiff. Speciﬁcally, there is no evidence that Defendant or their

driver was the one who improperly loaded the tractor trailer. Moreover, Plaintiff has failed to

produce any evidence that Defendant was the proximate cause 0f Plaintiff‘s injuries.

29. Defendant incorporates the above paragraph 12 herein. Plaintiff has further failed t0 show,

by even a scintilla of evidence that Defendant Negligently hired Mr. Arellano. Speciﬁcally,

Plaintiff has failed to show by any evidence that Defendant breach any duty owed.

30. Defendant incorporates the above paragraph 17 and 18 herein. Plaintiff has not supported

her negligent training and supervision claims with any evidence. Plaintiff has failed to show that

a reasonable employer would have provided Mr. Arellano with more training than what he already
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Reviewed By: Oscar Castillo

had. Furthermore, Plaintiff failed to show, through any evidence, that Defendant failed to

adequately supervise Mr. Arellano.

3 1. Defendant incorporates the above paragraph 19 herein. Plaintiff has failed to support her

through any evidence, that Mr. Arellano was an unlicensed, incompetent or reckless driver.

Moreover, Plaintiff has failed to produce any evidence to support her claim that Defendant knew

or should have known that Mr. Arellano was an unlicensed, incompetent, or reckless driver.

32. Defendant incorporates the above paragraphs 22 and 23 herein. Plaintiff has also failed to

show through any evidence that Defendant was grossly negligent. Plaintiff has failed to show that

Defendant objectively was engaged in an act that involved a extreme degree of risk. Moreover,

there is n0 evidence to support any contention that Defendant knew 0f any accident in question

and proceeded with a conscious disregard of the Plaintiff‘s rights, safety, or welfare.

33. There is no evidence to support one 0r more elements of either of Plaintiffs claims. As

such, Defendant is entitled to a no evidence summary judgment on all of Plaintiff‘s claims.

IV. PRAYER

WHEREFORE, Defendant prays that the Court grant its Traditional and No Evidence

Motion for Summary Judgment on Plaintiff’s claims of Gross Negligence, Negligent Hiring,

Negligent Training and Supervision, and Negligent entrustment and grant such other and further

relief, both at law and in equity, to which Defendant may be justly entitled.

Respectfully submitted,

10
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Hidalgo County District Clerks
Reviewed By: Oscar Castillo

By:
Tamara odriguez
State Bar No. 00791647

Of Counsel:

Vidaurri, Rodriguez & Reyna, LLP.
202 North 10th Avenue
Edinburg, Texas 78541
Telephone: (956) 38 1 -6602
Facsimile: (956) 381-0725
Email: trodriguezéﬂvrrtxlawcom
Attorney for Defendant

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy ofthe above and foregoing document has been
forwarded to opposing counsel on this the day of February 2024 as follows:
‘q
VIA ESERVICE: jhoeischer shhlaw.com' mcook -shhlaw.com
Jason P. Hoelscher
Miranda J. Cook
SICO HOELSCHER HARRIS, LLP
819 N. Upper Broadway
Corpus Christi, Texas 78401

T odﬁguez

11
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.

Karina Hernandez on behalf of Tamara Rodriguez
Bar No. 791647
khernandez@vrrtxlaw.com
Envelope ID: 84526050
Filing Code Description: Motion (No Fee)
Filing Description: Defendant's Traditional and No Evidence Motion for
Summary Judgment
Status as of 2/15/2024 10:08 AM CST

Case Contacts

Name BarNumber Email TimestampSubmitted Status

Jason PatrickHoelscher teamhoelscher@shhlaw.com 2/14/2024 5:15:37 PM SENT

HOEL SCHER teamhoelscher@shhlaw.com 2/14/2024 5:15:37 PM SENT

Tamara Rodriguez trodriguez@vrrtxlaw.com 2/14/2024 5:15:37 PM SENT

KARINA HERNANDEZ KHERNANDEZ@VRRTXLAW.COM 2/14/2024 5:15:37 PM SENT

N VEGA NVEGA@VRRTXLAW.COM 2/14/2024 5:15:37 PM SENT

JASON HOELSCHER JHOELSCHER@SHHLAW.COM 2/14/2024 5:15:37 PM SENT

MIRANDA COOK MCOOK@SHHLAW.COM 2/14/2024 5:15:37 PM SENT

Case Info

Judge

Librado Keno Vasquez Track Judge’s New Case

Case No.

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Document Filed Date

February 14, 2024

Case Filing Date

August 30, 2022

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Motion,Ex Parte: Danielle Ybarra VS. Best Hot Shots LLC

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