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Jurisdiction: Texas Eastern District Court
Decision Date: 9/22/2015

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Walters v. FedEx Corp. Walters v. FedEx Corp. (E. D. Tex., 2015)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        KEVIN WALTERS and MISTY WALTERS
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        FEDEX CORPORATION, FEDEX EXPRESS, INCFEDEX GROUND PACKAGE SYSTEM, INC FEDEX FREIGHT, INCFEDEX CUSTOM CRITICAL, INC FEDEX TRADE NETWORKS TRADE SERVICES, INC FEDEX SUPPLYCHAIN SYSTEMS, INC NELL ENTERPRISES, LLC, CATHERINE HOOVER AND MICHAEL HOOVER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CASE NO. 4: 15-CV-69-LEAD

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 22, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        KEVIN WALTERS and MISTY WALTERS v. FEDEX CORPORATION, FEDEX EXPRESS, INCFEDEX GROUND PACKAGE SYSTEM, INC FEDEX FREIGHT, INCFEDEX CUSTOM CRITICAL, INC FEDEX TRADE NETWORKS TRADE SERVICES, INC FEDEX SUPPLYCHAIN SYSTEMS, INC NELL ENTERPRISES, LLC, CATHERINE HOOVER AND MICHAEL HOOVER

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CASE NO. 4: 15-CV-69-LEAD

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States District Court EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        September 22, 2015

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Judge Mazzant

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        MEMORANDUM OPINION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Pending before the Court is Defendants Catherine Hoover and Michael Hoover's Motion for Partial Summary Judgment (Dkt. #29). The Court, having considered the relevant pleadings, finds that Defendants' motion should be granted.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        BACKGROUND

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                This case arises out of a motor vehicle collision that occurred on November 14, 2012. Plaintiffs have sued various Defendants, including Defendants Catherine Hoover and Michael Hoover for negligence and negligence per se. Specifically, Plaintiffs claim Catherine Hoover and Michael Hoover were negligent in the following respects: (1) Violating Section 545. 002 of Vernon's Texas Statutes and Codes Annotated, Transportation Code; (2) Failing to keep a proper lookout; (3) Failing to timely apply brakes; (4) Failing to control the vehicle; (5) Failing to act and/or respond in a reasonable manner; and (6) Failing to control the speed of the vehicle.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 2

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                On August 11, 2015, Defendants Catherine Hoover and Michael Hoover filed a motion for partial summary judgment (Dkt. #29). No response was filed by Plaintiff.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        LEGAL STANDARD

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. " Fed. R. Ci v. P. 56(a). A dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. " Anderson v. Liberty Lobby Inc 477 U.S. 242, 248 (1986). The trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enterprises Inc. v. American Hardware Mut. Ins. Co 655 F.2d 598 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson 477 U.S. at 248.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes "beyond peradventure all of the essential elements of the claim or defense. " Fontenot v. Upjohn Co 780 F.2d 1190 1194 (5th Cir. 1986). But if the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex 477 U.S. at 325; Byers v. Dallas Morning News Inc 209 F. 3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 3

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        nonmovant must "respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial. " Byers 209 F. 3d at 424 (citing Anderson 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson 477 U.S. at 257.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISCUSSION AND ANALYSIS

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Defendants first move for summary judgment asserting that Defendant Michael Hoover was not driving the tractor-trailer at the time of the collision in question, but was merely a passenger. Since these facts are uncontested, the Court agrees that Plaintiffs' claims against Defendant Michael Hoover fail as a matter of law.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiffs have also asserted a negligence per se cause of action against both Michael and Catherine Hoover for an alleged violation of Section 545. 062 of the Texas Transportation Code. Defendants move for summary judgment asserting that a breach of section 545. 062 of the Texas Transportation Code does not constitute negligence per se. The Court agrees. Under Texas law, "a statute that requires a driver proceed safely imposes on the driver a duty of reasonable care, thus precluding a negligence per se instruction. " La. -Pac. Corp. v. Knighten 976 S.W.2d 674 675 (Tex. 1998). "A breach of section 545. 062 does not constitute negligence per se. " Benavente v. Granger 312 S.W.3d 745 749 (Tex. App. —Houston 1st Dist. 2009, no pet. ). Thus, Plaintiffs cannot maintain a negligence per se cause of action premised on an alleged violation of section 545. 062 of the Texas Transportation Code.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        CONCLUSION

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                It is therefore ORDERED that Defendants Catherine Hoover and Michael Hoover's Motion for Partial Summary Judgment (Dkt. #29) is hereby GRANTED and Defendant Michael Hoover is

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 4

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DISMISSED and Plaintiffs' negligence per se claim for an alleged violation of Section 545. 062 of the Texas Transportation Code is hereby DISMISSED.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                SIGNED this 22nd day of September 2015.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                /s/_________        AMOS L. MAZZANT        UNITED STATES DISTRICT JUDGE

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        --------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiffs' claims against Michael Hoover were asserted as an alternative theory.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Footnotes:

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 Plaintiffs' claims against Michael Hoover were asserted as an alternative theory.

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                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cites
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Levin v. United States, 5 F.2d 598 (9th Cir., 1925)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1925-05-11 Citations: 36
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Fontenot v. Upjohn Co., 780 F.2d 1190 (5th Cir., 1986)
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Decision Date: 1986-01-17 Citations: 22
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
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