TORTS & MOTOR CARRIER (VICARIOUS LIABILITY) / Plaintiffs who sued livestock company for negligence of truck driver while on livestock company’s premises on an episodic contract basis failed to raise genuine issue of material fact as to whether livestock company was a “motor carrier” under Texas state law so as to render livestock company vicariously liable as a “statutory employer”.

Castillo v. Gulf Coast Livestock Market, L.L.C., 2012 WL 6604492 (Court of Appeals of Texas, December 19, 2012). Free copy available here.

Who is affected? Texas companies who hire trucks and drivers on an episodic basis; and those potential tort plaintiff with whom such trucks and drivers might collide.

On injured plaintiffs’ claim of negligence against livestock company for harm caused by trucker on company premises who collided with plaintiffs, court opinion notes: 

(1)  Federal law defines a basis of vicarious liability for a “motor carrier” truck-caused torts based on “statutory employer” status under regulations promulgated by the FMCSA – that status extends beyond common law idea of “employee” truck driver to an “independent contractor” truck driver as a matter of federal regulation. 

(2)  Texas law has its own distinct definition of “motor carrier” which is distinct from the FMCSA definition. 

In any event, the court ruled that the plaintiffs raised “not a scintilla” of evidence that the truck that caused their injury was operated by a “motor carrier” as defined by Texas law. 

Court opinion text on fact that livestock company had not hired trucker: 

“In this motion, which was both a traditional and no evidence summary judgment motion, Gulf Coast asserted the Castillos could not recover on their negligent hiring claim because (1) Gulf Coast did not hire Hellen and therefore it owed no duty to the Castillos, and (2) there was no evidence that Gulf Coast hired Hellen on the day of the accident. Attached to its second summary judgment motion was the affidavit of Gulf Coast managing owner, David Shelton. In the affidavit, Shelton testified as follows:

“On the date of the accident I had an agreement with Freddie Moore to distribute a portion of the proceeds from the sale of livestock in exchange for his delivery of livestock to Gulf Coast Livestock Market. On the date of the accident I expected Freddie Moore to deliver the livestock to Gulf Coast Livestock Market. I did not know that Mr. Moore had hired Charles Hellen to deliver the cattle on that day. Gulf Coast Livestock Market had no written agreement with Charles Hellen and did not hire him. Gulf Coast Livestock Market is not involved in the business of transporting livestock. Neither myself nor Gulf Coast Livestock Market were involved in hiring, or the decision to hire, Charles Hellen.”

Court opinion text on argument that livestock company did not have status as “statutory employer”: 

“The third summary judgment motion addressed the Castillos’ negligence claim, which was based on a vicarious liability theory. The Castillos alleged Gulf Coast was liable for Hellen’s negligence because, even if Gulf Coast did not literally employ Hellen, Gulf Coast was liable because it was a motor carrier and Hellen was its statutory employee.”

The livestock company (Gulf Coast) focused on the statute text: 

“’Motor carrier’ means an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a road or highway in this state.”

Court text discussing plaintiff’s evidence: 

“Here, the Castillos maintain they presented evidence raising a genuine issue of material fact as to whether Gulf Coast controlled, operated, or directed Hellen’s work. To raise a genuine issue of material fact as to whether Gulf Coast was a motor carrier, the Castillos had to produce more than a scintilla of evidence that Gulf Coast controlled, operated, or directed the operation of the tractor trailer driven by Hellen. See TEX. TRANSP. CODE ANN. § 643.001(6) (West 2011) (emphasis added). A no-evidence summary judgment motion is properly granted when the respondent fails to bring forth more than a scintilla of probative evidence that raises a genuine issue of material fact. See Sanchez v. Mulvaney, 274 S.W.3d 708, 711 (Tex.App.-San Antonio 2008, no pet.); Tex.R. Civ. P. 166a(i). More than a scintilla exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Sanchez, 274 S.W.3d at 711. Less than a scintilla exists if the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.

“The Castillos produced three relevant pieces of evidence. First, the Castillos produced the deposition testimony of Gulf Coast’s managing owner, David Shelton. Shelton acknowledged in his deposition that Gulf Coast’s website stated it had “hauling available.” Shelton explained this meant that Gulf Coast could find a truck and a trucker to transport a customer’s livestock to its facility. Shelton testified that ninety percent of the livestock sold by Gulf Coast was transported by the owners themselves; Gulf Coast arranged hauling for about ten percent of the livestock it sold. Shelton further testified that when a customer inquired about hauling, Gulf Coast would identify a trucker to transport the livestock, and would contact the trucker. According to Shelton, Gulf Coast would tell the trucker how many heads of livestock were involved and where they were located. Shelton further testified the trucker, not Gulf Coast, was responsible for his truck. When the trucker arrived at the auction barn, Gulf Coast employees would unload the livestock from the trailers. According to Shelton, Gulf Coast was responsible for the livestock as it stepped onto its property; however, Gulf Coast employees were instructed not to enter the delivery trucks.

“Second, the Castillos produced the deposition testimony of Gulf Coast’s assistant manager and yard foreman, Richard Shimer. Shimer testified that Gulf Coast accommodates its customers in a variety of ways, including assisting those customers who are unable to bring livestock to its auction barn on their own. Shimer stated he owned a truck and trailer and, if a customer needed help transporting a small load of livestock to the auction barn, he would haul the livestock himself. Shimer stated that if he hauled livestock for a customer in his truck he would either be paid on the spot, or he would receive a check from Gulf Coast. Shimer explained this fee was not part of his salary from Gulf Coast, but was paid out of the seller’s fee. Shimer further stated Gulf Coast did not have a list of truckers it called when a client expressed a need for hauling.

“Third, the Castillos produced a sign that was posted near the accident site stating, “Loading and unloading of livestock is to be done by employees only.”

“The Castillos contend their case is similar to the situation presented in Martinez, where the First Court concluded that a material fact issue existed as to whether the construction company was a motor carrier under the definition provided in section 643.001(6) of the Texas Transportation Code. Id. at 185. We disagree. The present case is distinguishable from Martinez. In Martinez, the evidence showed the construction company was ultimately responsible for hauling dirt from the construction project. Id. Additionally, the construction company obtained hauling permits and determined the ultimate location for transporting and unloading the dirt; the construction company’s employees actually loaded each dump truck, checked each driver’s license and proof of insurance, and informed each driver where to take the dirt; and the construction company indirectly paid the drivers on a per-load basis. Id.

“Here, by contrast, Gulf Coast exercised no control over the drivers and the trucks. Gulf Coast contacted drivers on an as-needed basis to accommodate a small percentage of its customers. Gulf Coast’s employees did not perform the loading, nor did Gulf Coast direct the size of the load at the pick-up site. Gulf Coast did not direct the route to be taken by the drivers, nor did it exercise any other control over the trucks or the drivers as they transported the livestock to Gulf Coast’s auction barn. Although Gulf Coast’s employees unloaded the livestock on Gulf Coast’s premises, this was done only after the truck was parked in the unloading area. In fact, the evidence showed that Gulf Coast employees were expressly instructed not to enter the trucks delivering livestock, and to begin unloading only after the truck was parked in the designated unloading area. Finally, the sign on Gulf Coast’s property stating, “Loading and unloading of livestock is to be done by employees only,” was not specific to drivers hauling livestock on behalf of a third party. The sign applied to all of the drivers delivering livestock to the auction barn.

“We conclude the Castillos failed to bring forth more than a scintilla of evidence that Gulf Coast controlled, operated, or directed the operation of one or more vehicles that transport persons or cargo over a road or highway in this state. See TEX. TRANSP. CODE ANN. § 643.001(6); see also Alaubali v. Rite Aid Corp., 320 F. App’x 765, 767–68 (9th Cir.2008) (concluding the defendant was not acting as a motor carrier when it hired a third party to provide transportation services, and the third party controlled the execution of those services). Absent such evidence, Gulf Coast was not a motor carrier, and could not be vicariously liable for Hellen’s negligent conduct. We, therefore, conclude the trial court did not err in granting summary judgment on the Castillos’ negligence claim.”