Brown v. Builders Trans Inc

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________________

No. 97-10717
(Summary Calendar)
________________________

GLENN BROWN AND HENRIETTA MILLER,

Plaintiffs-Appellants,

versus

BUILDERS TRANSPORT INC.
AND EDDIE HILL,

Defendants-Appellees.

_______________________________________________

Appeal from the United States District Court
for the Northern District of Texas
(95-CV-376)
_______________________________________________
February 26, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiffs-Appellants Glenn Brown and Henrietta Miller

(Plaintiffs) appeal the district court’s grant of summary judgment

in favor of Defendant-Appellee Builders Transport Inc. (BTI),

holding that BTI was not liable for injuries sustained by

Plaintiffs in an automobile accident caused by Eddie Hill, an

employee of BTI. Plaintiffs assert that the district court erred

in holding that Plaintiffs presented no genuine issues of material

fact regarding BTI’s vicarious liability and its liability for

*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
negligent supervision and negligent entrustment. Plaintiffs also

claim that the district court erred in concluding that Hill was not

a permissive user of a BTI truck. Finding no merit in any of these

arguments, we affirm.

I

FACTS AND PROCEEDINGS

This litigation stems from an automobile collision which

occurred in the early morning hours of May 8, 1993 in Dallas,

Texas. The summary judgment evidence shows that on May 7, Hill was

instructed by a BTI dispatcher at its West Memphis, Arkansas

terminal to take a flat-bed trailer load of steel from Jewett,

Texas to Savannah, Georgia. At approximately 10:00 p.m., Hill

contacted the terminal to advise dispatch that he was departing

Jewett for Savannah. Instead of taking his scheduled route, Hill

drove to Dallas, leading officers of the Texas Department of Public

Safety (DPS) on a high-speed chase, and at times driving the wrong

way on major streets and highways. At approximately 2:25 a.m. on

the morning of May 8, Hill —— still fleeing from DPS —— drove

across a median and struck the car containing Plaintiffs.

Continuing to evade DPS, Hill proceeded eastbound on a westbound

ramp and collided with another vehicle. Finally, after DPS fired

shots at Hill’s truck, he crashed into a median wall. He was

arrested and jailed for evading arrest and suspicion of driving

while intoxicated. He was subsequently determined to have been

insane at the time of the accident. The BTI dispatcher did not

2
learn that Hill was not travelling to Savannah until the morning of

May 8, after the collision.

Plaintiffs filed suit in Texas state court, alleging that BTI

was (1) vicariously liable for Hill’s actions, (2) liable for its

own negligent hiring, supervision, and training of Hill, and (3)

liable for negligent entrustment. BTI removed the case to federal

district court based on diversity jurisdiction. In July 1996, BTI

filed a motion for summary judgment. Plaintiffs filed a response,

and attached as summary judgment evidence (1) the parties’ joint

status report and proposed discovery plan, (2) Plaintiffs’

responses to the interrogatories propounded by BTI, (3) the

deposition testimony of appellant Brown, (4) police reports from

the accident, (5) Hill’s employment records at BTI, and (6) the

handwritten notes of Dr. James Grigson, a psychiatrist who examined

Hill on October 8, 1993.1 Plaintiffs failed, however, to set forth

the disputed facts upon which their response relied, in

contravention of Local Rule 5.2(a) of the Northern District of

1
Dr. Grigson’s handwritten notes of the interview —— in his
own shorthand —— are illegible, and Plaintiffs did not supply a
transcription of the notes until January 13, 1997, after the
district court had already ruled on the summary judgment motion and
Plaintiffs had filed their motion for reconsideration. That
transcription, in sum, recounts Hill’s statement that on the night
of the accident, he was extremely fatigued and paranoid. In
addition, Hill states that he called the BTI dispatcher several
times that night because he was afraid he was being followed and
did not trust the police. Dr. Grigson concluded that Hill was
insane at the time of the accident.

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Texas.2 The district court granted the motion in its entirety.

After Plaintiffs’ “Motion for Reconsideration, Motion to Modify and

Motion for New Trial” was denied, they timely appealed.3

II

ANALYSIS

A. Standard of Review

We review a district court’s grant of summary judgment de

novo, applying the same standard as did the district court.4

Summary judgment is appropriate if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment

as a matter of law.”5 The moving party satisfies its burden by

pointing out the lack of evidence to support the nonmoving party’s

case.6 To defeat a motion for summary judgment, the nonmoving

party must direct the court’s attention to admissible evidence in

2
Local Rule 5.2(a) provided, in relevant part, that “[t]he
response to a motion for summary judgment shall list in numerical
order (i) the disputed facts upon which the response relies and
(ii) the issues of law.” This rule is now embodied in Rule 56.1(b)
of the Local Civil Rules of the Northern District of Texas.
3
Plaintiffs obtained a default judgment against Hill in
December 1996.
4
Stults v. Conoco, Inc., 76 F.3d 651, 654 (5th Cir. 1996).
5
Fed. R. Civ. P. 56(c).
6
Conticommodity Servs., Inc. v. Ragan, 63 F.3d 438, 441 (5th
Cir. 1995), cert. denied, 116 S. Ct. 1318 (1996).

4
the record which demonstrates that it can satisfy a “fair-minded

jury” that it is entitled to a verdict in its favor.7 At this

stage, conclusional allegations in pleadings are insufficient; the

nonmovant must identify specific evidence in the record and

articulate the precise manner in which that evidence supported his

claim.8 For purposes of the summary judgment determination, all

fact questions are viewed in the light most favorable to the

nonmovant.9

B. Vicarious Liability

Plaintiffs maintain that BTI is vicariously liable for the

negligence of Hill, its employee. Under Texas law, “to render the

master liable for an act of his servant, the act must be committed

within the scope of the general authority of the servant in

furtherance of the master’s business and for the accomplishment of

the object for which the servant is employed.”10 “When it is proved

that [a] vehicle involved in an accident was owned by the defendant

and the driver was an employee of the defendant, ‘a presumption

arises that the driver was acting within the scope of his

7
International Shortstop, Inc. v. Rally’s, Inc., 939 F.2d
1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992).
8
Conticommodity Servs., 63 F.3d at 441; International
Shortstop, 939 F.2d at 1263.
9
Hassan v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th
Cir.), cert. denied, 116 S. Ct. 532 (1995).
10
Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357
(Tex. 1971).

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employment when the accident occurred.’”11 If it is unrefuted, this

presumption prevails.12 The presumption vanishes, however, when

positive evidence is introduced that the employee was not acting

within the course and scope of his employment at the time of the

collision.13 At that point, “the burden is on the plaintiff to

produce other evidence that the driver was in the course and scope

of his employment.”14

BTI does not dispute that the presumption is applicable in

this case. It asserts —— and we agree —— that it rebutted that

presumption through competent summary judgment evidence, showing

that (1) Hill was instructed to take a load of steel from Jewett,

Texas to Savannah, Georgia; (2) Dallas was not on the scheduled

route; and (3) BTI officials were not aware until after the

accident that Hill was driving to Dallas instead of Savannah. In

addition, Hill led DPS officials on a high speed chase, another

deviation from the rules of his employment. This evidence is

sufficient to rebut the presumption that Hill was acting in the

course of his employment.15

11
J&C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636-7 (Tex. App.
—— San Antonio 1993, no writ) (quoting Robertson Tank Lines, 468
S.W.2d at 357).
12
Id. at 637.
13
Id.
14
Id.
15
See Robertson Tank Lines, 756 S.W.2d at 357-60 (employee who
drove eight miles in opposite direction from employer’s destination

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 In contrast, Plaintiffs produced no evidence in their response

to BTI’s summary judgment motion that Hill was acting within the

scope of his employment with BTI. Noting that BTI’s guidelines

instruct its drivers to take the most direct safe route, Plaintiffs

urge us to take judicial notice that (1) there are three possible

interstate routes from Jewett to Savannah, (2) Dallas lies on two

of these routes, and (3) the distances for these routes are

similar. They also assert that travelling on interstate highways

is much safer than driving on state highways. In essence,

Plaintiffs now argue —— for the first time on appeal —— that Dallas

was on a direct safe route to Savannah. They contend that Dr.

Grigson’s notes establish that Hill was already travelling this

route when he became paranoid, and thus was acting within the

course and scope of his employment with BTI.

Plaintiffs have waited too long to establish this claim. In

their response to BTI’s summary judgment motion, Plaintiffs did not

set forth the disputed facts upon which their response relied, as

required by Local Rule 5.2(a). The district court concluded that

this failure alone required it to accept BTI’s facts as

and spent hours visiting “various beer joints, lounges and saloons”
had deviated from scope of employment); Drooker v. Saeilo Motors,
756 S.W.2d 394, 397-8 (Tex. App. —— Houston [1st Dist.] 1988, writ
denied) (employee not in course and scope of employment when
travelling to dinner); Mitchell v. Ellis, 374 S.W.2d 333, 335-6
(Tex. Civ. App. —— Fort Worth, 1964, writ ref’d) (presumption
rebutted where evidence showed that employee driving employer’s
truck had pulled truck over on shoulder to purchase cigarettes for
his own use).

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undisputed.16 In any event, it is well-settled that “[o]n a motion

for summary judgment, the opponent bears the burden of establishing

that there are genuine issues of material fact, and may not wait

until . . . appeal to develop claims or defenses in response to the

summary judgment motion.”17 Furthermore, “we have rejected the

assumption ‘that the entire record in the case must be searched and

found bereft of a genuine issue of material fact before summary

judgment may be properly entered.’”18 Instead, the nonmoving party

must “designate ‘specific facts showing that there is a genuine

issue for trial.’”19 Albeit Rule 201(f) of the Federal Rules of

Evidence allows a court to take judicial notice at any stage of a

proceeding, including on appeal,20 we refuse to take notice of these

“facts,” which were available to Plaintiffs during the pendency of

the summary judgment motion.21 Consequently, we conclude that there

16
See EEOC v. American Airlines, Inc., 835 F. Supp. 911, 913
n.3 (N.D. Tex. 1993), aff’d, 48 F.3d 164 (5th Cir. 1995).
17
C.F. Dahlberg & Co. v. Chevron U.S.A., Inc., 836 F.2d 915,
920 (5th Cir. 1988). In the absence of exceptional circumstances,
“questions not presented to the trial court will not be considered
on appeal.” Id.
18
Savers Fed. Savings & Loan Ass’n v. Reetz, 888 F.2d 1497,
1501 (5th Cir. 1989) (quoting Nossho-Iwai Am. Corp. v. Kline, 845
F.2d 1300, 1307 (5th Cir. 1988)).
19
Id. (quoting Fed. R. Civ. P. 56(e)).
20
See Fed. R. Evid. 201 (f) and Advisory Committee’s Note; see
also In re Indian Palms Assocs., Ltd., 61 F.3d 197, 205 (3d Cir.
1995).
21
See Knox v. Butler, 884 F.2d 849, 852 n.7 (5th Cir. 1989),
cert. denied, 494 U.S. 1088 (1990) (“[W]e decline to add to the

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is no genuine issue of material fact regarding BTI’s vicarious

liability, and the district court did not err in awarding summary

judgment on this claim.

C. Negligent Supervision and Negligent Entrustment

Next, Plaintiffs argue that the district court erred in

holding that they presented no genuine issue of material fact as to

BTI’s negligent supervision of Hill. Plaintiffs maintain that an

employer who exercises control over its employee has a duty to act

prudently to prevent that employee from causing an unreasonable

risk of harm.22 Part of BTI’s duty in this regard, contend

Plaintiffs, is to refrain from using drivers who are fatigued,

intoxicated, or otherwise have a diminished capacity to drive

safely on public highways.23 Plaintiffs claim that Dr. Grigson’s

notes show that Hill was extremely fatigued at the time BTI

record through judicial notice evidence that was never presented to
the district court.”); Kemlon Products & Dev. Co. v. United States,
646 F.2d 223, 224 (5th Cir.), cert. denied, 454 U.S. 863 (1981) (“A
court of appeals will not ordinarily enlarge the record on appeal
to include material not before the district court. . . . [W]e
conclude that it would be inappropriate in this case to take
judicial notice of the extrarecord facts . . . .”); see also United
States v. Glass, 744 F.2d 460, 461 (5th Cir. 1984); Melong v.
Micronesian Claims Comm’n, 643 F.2d 10, 12 n.5 (D.C. Cir. 1980)
(“Judicial notice was never intended to permit such a widespread
introduction of substantive evidence at the appellate level,
particularly when there has been absolutely no showing of special
prejudice or need.”); Zell v. Jacoby-Bender, Inc., 542 F.2d 34, 38
(7th Cir. 1976).
22
See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523,
525-6 (Tex. 1990).
23
See Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309-11 (Tex.
1983); J&C Drilling Co., 866 S.W.2d at 639.

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instructed him to drive from Jewett to Savannah, and insist that

BTI’s dispatch of Hill when he was so fatigued violated its duty

toward others on the public highways.

Unfortunately for Plaintiffs, they again failed to designate

any of these facts in their response to BTI’s summary judgment

motion. As previously discussed, the district court had no

obligation to search the entire record to find support for

Plaintiffs’ contentions.24 Moreover, Plaintiffs directed the

court’s attention to no evidence that BTI knew that Hill was

suffering from sleep deprivation or fatigue, either in their reply

or even in their motion for reconsideration.25 None of the competent

evidence before the district court indicated that Hill was

suffering from paranoia when he called in to say that he was

departing for Savannah. Accordingly, we reach the same conclusion

as the district court that Plaintiffs adduced insufficient evidence

to present a genuine issue of material fact regarding BTI’s

negligent supervision of Hill.

Plaintiffs’ negligent entrustment claim fails for this same

reason. Under Texas law, the elements of negligent entrustment

24
See Savers Fed. Savings & Loan Ass’n, 888 F.2d at 1501.
Further, Plaintiffs did not supply a legible transcription of Dr.
Grigson’s notes until after Plaintiffs’ motion for reconsideration.
25
See Estate of Catlin v. General Motors Corp., 936 S.W.2d 447,
451 (Tex. App. —— Houston [14th Dist.] 1996, n.w.h.) (“Texas courts
of appeals and the supreme court have shown an unwillingness to
enlarge the duty established in Otis to include situations where
the employer either had no knowledge of the employee’s condition or
did not exercise control over the employee.”).

10
are: “(1) entrustment of the vehicle by the owner; (2) to an

unlicensed, incompetent, or reckless driver; (3) that the owner

knew or should have known was unlicensed, incompetent, or reckless;

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

(5) that the driver’s negligence was the proximate cause of the

accident.”26 The district court concluded that Plaintiffs’

negligent entrustment claim failed “because, at the time the

company truck was entrusted to Hill, BTI did not know, and had no

reason to know, that Hill was incompetent or reckless.” As we have

already found that Plaintiffs did not present sufficient evidence

in their reply to the summary judgment motion to show that BTI knew

of Hill’s fatigue or incompetence, we likewise find no error in the

district court’s conclusion regarding negligent entrustment ——

which is the same as ours.

D. Permissive Use

In its summary judgment motion, BTI prayed for —— and the

district court granted —— judgment that (1) as BTI is self-insured

under 49 C.F.R. § 1043, there is no policy of insurance and thus no

omnibus insured clause on which Plaintiffs can rely for purposes of

establishing additional insured status for Hill; and (2) even if

the doctrine applied, and Hill was initially a permissive user,

permission was destroyed by his deviation. On appeal, Plaintiffs

complain that they never raised the issue of insurance in any of

26
Drooker, 756 S.W.2d at 398-9.

11
their pleadings, and thus this issue was not properly before the

district court. Plaintiffs have waived this complaint, however,

because —— despite the fact that they had notice of BTI’s plea for

judgment on the permissive use issue —— they never even mentioned,

much less argued, this point in their response to the motion for

summary judgment.27 That Plaintiffs subsequently raised the matter

“in the district court by a motion to reconsider the summary

judgment [does] not suffice to save the day for [them].”28 Based

on the competent summary judgment evidence that was presented to

the district court, we agree that, even if Hill was initially a

permissive user of the BTI vehicle, permission evaporated with his

deviation.29 Accordingly, we conclude that the district court did

not err in holding that BTI is not liable under the permissive use

doctrine.

III

CONCLUSION

Our de novo review satisfies us that the judgment of the

district court should be and therefore is, in all respects,

27
See Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957,
960 (9th Cir. 1994); Wiley v. United States, 20 F.3d 222, 226 (6th
Cir. 1994); Savers Fed. Savings & Loan Ass’n, 888 F.2d at 1501.
28
Savers Fed. Savings & Loan Ass’n, 888 F.2d at 1501; see also
Jorge Rivera Surillo & Co. v. Falconer Glass Indus., 37 F.3d 25, 29
(1st Cir. 1994) (stating that a motion for reconsideration “is not
appropriately used to present new issues or evidence”).
29
See Coronado v. Employers’ Nat’l Ins. Co., 596 S.W.2d 502,
506 (Tex. 1979); James v. Vigilant Ins. Co., 674 S.W.2d 925, 927-8
(Tex. App. —— Amarillo 1984, writ ref’d n.r.e.).

12
AFFIRMED.

13