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this opinion should not be published and is not precedent except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.
3
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).
5
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
6
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).
7
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
8
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.
9
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