Navarrette v. Contract Freighters, Inc., et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
MARIE ANNETTE NAVARRETE,
Plaintiff,
VS.
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CIVIL ACTION NO. 2:24-CV-00111
TA DEDICATED, INC., et al.,
Defendants.
MEMORANDUM AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This case has been referred to United States Magistrate Judge Mitchel Neurock for case
management and recommendations on dispositive matters, see 28 U.S.C. § 636, but with Judge
Neurock’s consent and in accordance with Special Order C-2023-1,1 United States Magistrate
Judge Jason B. Libby enters the following memorandum and recommendation.
This case arises from a trucking accident in Live Oak County, Texas. (Doc. No. 56, p. 2).
There are three defendants: (1) the driver of the truck, Jafarrh Jaquavious Beverly (“Mr.
Beverly”); (2) Mr. Beverly’s employer and owner of the truck that he was operating, Contract
Freighters, Inc., (“CFI”); and (3) the owner of the trailer that Mr. Beverly was towing, TA
Dedicated, Inc., (“TA Dedicated”). Plaintiff Marie Annette Navarrette filed this lawsuit against
1 Special Order C-2023-1 is a standing order concerning civil matters referred to magistrate judges in this division.
The order allows magistrate judges to assist each other on any referred matter by agreement, including entering
orders, notices, recommendations, and presiding over judicial proceedings.
United States District Court
Southern District of Texas
ENTERED
December 29, 2025
Nathan Ochsner, Clerk
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these defendants in state court, and the suit was removed to federal court in May 2024. (Doc.
No. 1).
A. Proceedings and background.
Before the district court is CFI’s partial motion for summary judgment on
Plaintiff’s “direct” negligence claims against it. (Doc. No. 37). Plaintiff responded to
this motion (Doc. No. 53), and CFI replied (Doc. No. 59). A separate motion for
summary judgment by TA Dedicated is pending in this case, see Doc. No. 40, but this
memorandum and recommendation only pertains to CFI’s motion. (Doc. No. 37).2
B. Plaintiff’s allegations, legal claims, and requested relief.
1. Plaintiff’s allegations.
Plaintiff claims that Mr. Beverly, while employed and driving a vehicle owned and
operated by CFI, struck her vehicle while traveling on Highway 59 in Live Oak County,
Texas. (Doc. No. 56, p. 2.)3 Plaintiff alleges that Mr. Beverly did not “keep a proper
lookout and disregarded the stop and go signal” resulting in the incident in question. Id.
2. Plaintiff’s claims.
Plaintiff’s Second Amended Complaint raises the following causes of action: (1) a
negligence claims against Mr. Beverly; (2) a negligent entrustment claim against CFI and
TA Dedicated; (3) negligent hiring, training, or retention claims against CFI and TA
2 CFI’s reply, Doc. No. 59, implies that this motion for summary judgment applies for both CFI and TA Dedicated.
That appears to be a mistake, as CFI and TA Dedicated are separate entities, and TA Dedicated has not stipulated to
vicarious liability on Mr. Beverly’s behalf. Accordingly, this motion is construed as applying only to the direct
claims against Contract Freighters.
3 Plaintiff’s second amended complaint, Doc. No. 56, is the operative complaint in this case.
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Dedicated; (4) respondeat superior claims against CFI and TA Dedicated; (5) a gross
negligence claim against Mr. Beverly; and (6) a claim or theory of liability of strict
liability against CFI and TA Dedicated. (Doc. No 56, pp. 3-7).
The instant motion for summary judgment only concerns Plaintiff’s claims in
groups 2 and 3 against CFI. The claims in groups 2 and 3 are claims in which Plaintiff
alleges CFI is liable to Plaintiff for CFI’s own negligence, or stated otherwise, CFI’s
direct negligence. For these direct negligence claims, Plaintiff alleges CFI is directly
liable or responsible to Plaintiff for negligently entrusting its vehicle to Mr. Beverly.
Plaintiff further alleges CFI is directly liable or responsible to Plaintiff for negligently
hiring, training or retaining Mr. Beverly. These theories of liability seek to hold CFI
responsible for its own negligence, as opposed to being held responsible for the
negligence, if any, of Mr. Beverly. Plaintiff’s claims against CFI based on theories of
respondeat superior and strict liability could be considered “indirect” because they are
claims seeking to hold CFI responsible for the negligence of its employee, Mr. Beverly.
CFI’s instant motion for summary judgment only addresses Plaintiff’s direct negligence
claims against CFI. (Doc. No. 37; Doc. No. 56, pp. 3-6.)
Regarding the direct negligence clams, Plaintiff alleges CFI negligently entrusted
its vehicle to Mr. Beverly, who was an “incompetent and/or reckless driver.” (Doc. No.
56, p. 3.) Plaintiff claims that this entrustment amounted to negligence by CFI, and this
negligence proximately caused Plaintiff’s damages. Id. Plaintiff also alleges that CFI
had a duty to hire, supervise, train, or retain competent employees in a manner that avoids
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harm to others. Id. at 4. Specifically, Plaintiff claims CFI was negligent in its hiring,
training, and retaining of Jafarrh Jaquavious Beverly. Id.
3. Requested relief.
Plaintiff requests money damages for her bodily and property injuries. (Doc. No.
56, p. 6.) Plaintiff includes among her injuries her medical expenses, physical
impairment, physical pain and suffering, and mental anguish. Id. Plaintiff alleges that
her injuries amount over $1,000,000.00 in damages. Id. at 7.
C. The motion, response, and reply.
1. CFI’s motion for summary judgment.
CFI moves for summary judgment against Plaintiff’s direct negligence claims.
(Doc. No. 37.) CFI argues that summary judgment is proper because (1) Plaintiff’s direct
causes of action do not exist, and (2) even if such causes of action do exist, respondeat
superior precludes them, and (3) if respondeat superior does not preclude the direct
claims, Plaintiff has not established duty owed to Plaintiff. Id. at 2. First, in asserting
that the direct causes of action do not exist, CFI argues Texas law has never recognized a
cause of action for negligent hiring, training, or retention. Id. at 2 (citing JBS Carriers,
Inc. v. Washington, 564 S.W.3d 830, 842 (Tex. 2018); Waffle House, Inc. v. Williams,
313 S.W.3d 796, 804 n.27 (Tex. 2010); Alpizar v. John Christner Trucking, LLC, 2019
WL 1643743, at *7 (W.D. Tex. April 26, 2019)).
Second, CFI argues Plaintiff’s direct causes of action are precluded because CFI
has stipulated to a respondeat superior theory of liability, making the direct causes of
action duplicative. (Doc. No. 37, p. 4.) (“Accordingly, if respondeat superior is already
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established or not in dispute, the employer’s flow-through responsibility for the employer
is already fixed. Thus, negligent training (or any of the other ‘direct’ claims) provides no
function in the case and is immaterial.”). CFI argues that such is the case here, admitting
that Mr. Beverly was in his “course and scope” of employment when the accident with
Plaintiff occurred. Id. at 2, 5. (“Thus, where, as here, vicarious liability under respondeat
superior is not contested . . . .”). And because CFI concedes vicarious liability, it argues
Plaintiff “may not pursue [her] ‘direct’ liability claims for negligent hiring, managing,
retention, and supervision, as they are ‘mutually exclusive’ modes of recovery under
Texas law.” Id. at 5 (citing Ochoa v. Mercer Transportation Co., No. 5:17-CV-1005,
2018 WL 7505640, at *2 (W.D. Tex. Dec. 10, 2018); Fuller v. Werner Enters., Inc., No.
3:16-CV-2958, 2018 WL 3548886, at *2 (N.D. Tex. July 24, 2018); Sanchez v.
Transportes Internacionales Tamaulipecos S.A de C.V., No. 7:16-CV-354, 2017 WL
3671089, at *2 (S.D. Tex. July 20, 2017) (Crane, J.)).
Finally, CFI argues that Plaintiff’s direct claims fail as a matter of law for several
reasons. (Doc. No. 37, pp. 6-16.) Among those reasons is that Plaintiff has not pointed
to anything in Mr. Beverly’s driving record that would have disqualified him from being
employed by CFI, as required to show negligent hiring. Id. at 9. CFI further argues there
is no factual predicate to establish negligent entrustment because “Mr. Beverly had not
been involved in anything either before or during his employment at [Contract Freighters]
that would have raised a sufficiently “red” flag such that he should have not been
entrusted with the [Contract Freighters] truck.” Id. at 11. CFI concludes its “matter of
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law” argument by asserting that Plaintiff’s negligent training claim fails, too, because
“there is absolutely no duty to train an experienced driver on how to properly operate his
vehicle with regard to normal rules of the road.” And because “[t]he need to stop at a
stop sign is clearly a decision that all drivers make on a daily basis,” there was no duty to
train him on this aspect. Id. (citing National Convenience Stores, Inc. v. Matherne, 987
S.W.2d 145, 149 (Tex. App. – Houston 1999); Garay v. G.R. Birdwell Const., L.P., 2014
WL 6680347, at *13 (Tex. App. – Houston 2014)).
2. Plaintiff’s response.
Plaintiff argues that Texas law does not preclude direct negligence claims if the
employer stipulates to vicarious liability. (Doc. No. 53, p. 7). Specifically, Plaintiff
argues that Texas does not recognize an “admission rule” in this situation which would
render its direct negligence claims “redundant.” Id. at 13. Plaintiff asserts that this rule
does not apply to these direct negligence claims because it logically would conflict with
Texas’ proportionate responsibility statute. Id. at 14. To support this proposition,
Plaintiff cites Bedford v. Moore, 166 S.W.3d 454 (Tex. App.—Fort Worth 2005, no pet.),
a case concerning dram shop liability. (Doc. No. 53, p. 14). She includes a quote from
Bedford which likens dram shop liability to vicarious liability under negligent
entrustment claims: “The reasoning of the majority of the supreme court parallels the
negligent hiring/entrustment theory of recovery. Under both theories, neither are pure
vicarious liability situations because liability stems from distinct wrongful conduct.” Id.
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(citing Bedford, 166 S.W.3d at 462).4 She also cites F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 682 (Tex. 2007), for the same proposition that the logic of
dram shop liability maps on to negligent hiring, entrustment, and retention. (Doc. No. 53,
p. 15-16).
Plaintiff further argues that her direct negligence claims do exist, citing Walgreens
v. McKenzie, 713 S.W.3d 394, 399 (Tex. 2025). (Doc. No. 53, p. 8.) (“‘Although we
have not ruled definitively on the existence, elements, or scope of [a negligent hiring,
training, and supervision] claim, we have recognized that any such claim would require
proof of the employer's negligence in hiring, training, and supervising the employee as
well as the employee's subsequent negligent act or omission, both of which must
proximately cause the injury.’”).
3. CFI’s reply.
CFI argues that Plaintiff’s argument misses the point or the “question here,” which
is “what happens when the employer agrees that the employee is in the course and scope
of employment and the effect on how the claims are handled.” (Doc. No. 59, p. 3). CFI
reiterates its position that “once an employer admits that an employee was acting in the
course and scope of employment, the so called ‘direct’ claims” against it become
“redundant.” Id. CFI attacks Plaintiff’s argument regarding Texas’ proportionate
responsibility provisions, asserting that “this District has long and repeatedly rejected the
very argument that plaintiff makes under Chapter 33 here.” Id. at 4 (citing Williams v.
4 Plaintiff did not supply this full quote in her brief, but for completeness, the entire passage is included here.
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McCollister, 671 F. Supp. 2d 884, 892 (S.D. Tex. 2009) (Alvarez, J.); Baker v. Rhodes,
2025 WL 19110, at *2 (S.D. Tex. 2025) (Hanen, J.).
CFI also argues that Plaintiff’s reliance on Bedford v. Moore is “misplaced,” citing
Conkle v. Chery, 2009 WL 483226, at *4 (Tex. App. — Austin 2009, no pet.), to support
that Bedford incorrectly relied on a withdrawn Texas Supreme Court decision “rather
than the Court’s later substituted opinion.” (Doc. No. 57, p. 4). Further, CFI points to
two decisions in federal court—one involving Contract Freighters in another suit—that
also suggest Bedford was wrongly decided. Id.
D. Legal standards.
1. Summary judgment standard.
“The purpose of summary judgment is to isolate and dispose of factually
unsupported claims or defenses to help ‘secure the just, speedy and inexpensive
determination of every action.’” Ellis v. Klawonn, No. 4:21-CV-00977, 2023 WL
3993043, at *2 (E.D. Tex. June 8, 2023) (quoting Nat’l Cas. Co. v. Kiva Const. & Eng’g,
Inc., 496 F. App’x 446, 449 (5th Cir. 2012)). Summary judgment is proper if there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a). A genuine issue exists “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 Court must examine “whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it is so one-
sided that one party must prevail as a matter of law.” Id. at 251-52.
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2. Erie Doctrine and Erie Guesses.
“Except in matters governed by the Federal Constitution or by acts of Congress,
the law to be applied in any case is the law of the state.” Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938). Under the Erie doctrine, federal courts sitting in diversity apply state
substantive law and federal procedural law.
To determine state substantive law, “federal courts look to the law of that state's
highest court.” City of Alexandria v. Brown, 740 F.3d 339, 351 (5th Cir. 2014). In the
absence of a final decision by that court, federal courts “must make an Erie guess and
determine” how the state high court would decide the issue “if presented with the same
case.” In re Katrina Canal Breaches Litigation, 495 F.3d 191, 206 (5th Cir. 2007);
accord QBE Syndicate 1036 v. Compass Mins. Louisiana, Inc., 95 F.4th 984, 992 (5th
Cir. 2024). In making an Erie guess, federal courts “defer to intermediate state appellate
court decisions, unless convinced by other persuasive data that the highest court of the
state would decide otherwise . . . .” Chaney v. Dreyfus Serv. Corp., 595 F.3d 219 (5th
Cir. 2010) (quoting Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d
475, 483 (5th Cir. 2008)).
E. Analysis.
1. Plaintiff’s direct negligence claims against CFI are precluded because CFI has
stipulated to vicarious liability on behalf of its employee, Mr. Beverly.
CFI argues that by stipulating to vicarious liability on behalf of Mr. Beverly, the
direct negligence claims against it—negligent entrustment, hiring, retention, and
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training—are all precluded. This is the “admission rule,” and both parties have referred
to it as such. (Doc. No. 37, p. 1; Doc. No. 53, p. 13; Doc. No. 59, p. 3).
Neither party contests that Texas substantive law governs this dispute, and Texas’
choice of law analysis leads to that conclusion as well. Hooper v. Marriott Int'l, Inc., 979
F. Supp. 2d 735, 738 (N.D. Tex. 2013) (citing Restatement (Second) of Conflict of Laws
§ 156(2)) (“[t]he applicable law will usually be the local law of the state where the injury
occurred.”). Because Plaintiff’s claims are governed by state substantive law under Erie,
it is necessary to apply Texas law to assess the merits of CFI’s arguments.
a. The Supreme Court of Texas has not adopted or rejected the
admission rule.
The Supreme Court of Texas confirmed in Werner Enters., Inc. v. Blake, 719
S.W.3d 525 (Tex. 2025), reh’g denied (Sept. 26, 2025), that the “admission rule,” while
not rejected, has not been formally adopted either:
“The defendants and some amici ask us to adopt the “Admission Rule,” under
which defendants who admit that an employee was acting in the course and
scope of employment need not also defend against other derivative theories
of negligence. Because our holding regarding proximate cause disposes of
all claims against Werner even in the absence of the Admission Rule, we
need not consider the matter further.”
Id. at 541 n.7.
Two concurring justices commented that they would vote to adopt the admission
rule in a more appropriate case in the future. Id. at 543 (Young, Huddle, JJ., concurring)
(“I am inclined to vote to adopt the admission rule . . . that the admission rule barred the
derivative-negligence claims proffered in this case as wholly derivative of the driver's
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alleged negligence—that is, [the employer’s] admission of respondeat superior liability
already encompassed the entire injury.”). Justice Young also observed in his concurrence
that at least six courts of appeals have recognized the doctrine, id. at 542 n.*, suggesting
that the appellate courts have “generally taken it as a given” that respondeat superior and
negligent entrustment claims “are mutually exclusive theories of recovery.”5 Id. at 542.
He remarked further that he was “aware of no other Texas court to have rejected the
admission rule.” Id. at 541.
b. Applying the Erie guess, the admission rule applies here.
Because there is no clear authority from the state high court, the district court is
required to make an Erie guess about how that court would resolve the dispute in this
case. Federal courts consider seven factors in making an Erie guess:
“(1) decisions of the state supreme court in analogous cases, (2) the rationales
and analyses underlying state supreme court decisions on related issues, (3)
dicta by the state supreme court, (4) lower state court decisions, (5) the
general rule on the question, (6) the rulings of courts of other states to which
state courts look when formulating substantive law and (7) other available
sources, such as treatises and legal commentaries.”
Weatherly v. Pershing, L.L.C., 945 F.3d 915, 920 (5th Cir. 2019) (citing In re DePuy
Orthopaedics, Inc., 888 F.3d 753, 765 n.5 (5th Cir. 2018)).
5 Justice Young cited the following six decisions in which the admission rule was adopted: Atl. Indus., Inc. v. Blair,
457 S.W.3d 511, 517 (Tex. App.—El Paso 2014), rev’d on other grounds, 482 S.W.3d 57 (Tex. 2016); Rosell v.
Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—Dallas 2002, pet. denied); Arrington's Est. v. Fields,
578 S.W.2d 173, 178-79 (Tex. Civ. App.—Tyler 1979, writ ref'd n.r.e.); Frasier v. Pierce, 398 S.W.2d 955, 957-58
(Tex. Civ. App.—Amarillo 1965, writ ref’d n.r.e.); Luvual v. Henke & Pillot, 366 S.W.2d 831, 838 (Tex. Civ.
App.—Houston 1963, writ ref’d n.r.e.); Patterson v. E. Tex. Motor Freight Lines, 349 S.W.2d 634, 636 (Tex. Civ.
App.—Beaumont 1961, writ ref’d n.r.e.)
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Because there is no determinative state supreme court analogue, it is proper to
consider other sources of authority to ascertain state substantive law. First, it is pertinent
that, while expressed using different terms, the Supreme Court of Texas recognizes that
respondeat superior and vicarious liability stand for the same theory. Painter v.
Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018) (cleaned up) (“[u]nder the
common-law doctrine of respondeat superior, or vicarious liability, ‘liability for one
person's fault may be imputed to another who is himself entirely without fault solely
because of the relationship between them.’”). Many of the Texas intermediate courts use
the terms interchangeably, but the Supreme Court of Texas established that they have the
same meaning.
Because there are no relevant state supreme court analogues, relevant analyses, or
instances of dicta, the next step is to consider lower state court opinions. In those lower
court opinions, Texas’ intermediate courts have routinely held that direct negligence and
respondeat superior claims are “mutually exclusive.” Rosell, 89 S.W.3d 643 at 654
(citing Arrington’s Est., 578 S.W.2d at 178). The courts have reached that conclusion
because “negligent entrustment and respondeat superior are both means to the same
end—making an employer liable for the negligence of an employee.” Ferrell Gas, Inc. v.
Reese, No. 12-22-00025-CV, 2022 WL 17843996, at *4 (Tex. App. Dec. 21, 2022). The
logic underlying those decisions is that “[o]nce the applicability of the respondeat
superior doctrine is established, the competence or incompetence of the [employee] and
the care which was exercised in his employment are immaterial issues.” Arrington’s Est.,
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578 S.W.2d at 178; accord Rosell, 89 S.W.3d at 654. This understanding tracks the
Supreme Court of Texas’ holdings that the “deliberate allocation of risk” by the employer
typically results in them “bear[ing] the loss” through their employee. Painter, 561
S.W.3d at 130 (cleaned up)
District courts in the Southern District of Texas have uniformly applied the
admission rule, and the rationale underlying the rule, to vicarious liability, negligent
entrustment, training, hiring, and retention claims. Adam v. Pope, No. 6:24-cv-4761,
2025 WL 963077, at *1 (S.D. Tex. Mar. 28, 2025) (Rosenthal, J.) (finding that plaintiff
could not “simultaneously maintain claims for negligent entrustment and vicarious
liability”); Gonzalez v. Jouett, No. 4:20-CV-02907, 2021 WL 4925380, at *3-4 (S.D.
Tex. Oct. 21, 2021) (Hoyt, J.) (finding that stipulation to vicarious liability precludes
direct negligence claims); Mire v. Bryan Truck Line, Inc., No. 1:20-CV-110, 2021 WL
5855317, at *3 (S.D. Tex. Oct. 29, 2021) (Torteya, M.J.), adopted, No. 1:20-CV-000110,
2021 WL 5851018 (S.D. Tex. Dec. 9, 2021) (same); Arif v. XPO Logistics, Express,
LLC, No. CV 24-4522, 2025 WL 307211 (S.D. Tex. Jan. 13, 2025) (Rosenthal, J.)
(same); Sanchez, 2017 WL 3671089, at *2-3 (same).
Here, CFI has stipulated to vicarious liability, so Plaintiff’s direct negligence
claims are precluded. (Doc. No. 59, p. 3 n.1) (“Without suggesting that some sort of
formal stipulation is actually necessary, to the extent necessary to do so, Defendant
stipulates that the driver was in the course and scope of employment”); (Doc. No. 37, p.
6) (“Mr. Beverly was in the course and scope of employment at the time of the
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accident.”). Additionally, Plaintiff has conceded that CFI is Mr. Beverly’s employer and
does not appear to contest that in her response to CFI’s motion, so there is no factual
dispute of employment. (Doc. No. 53, p. 9) (“CFI owed plaintiff a tort duty as [Mr.]
Beverly’s employer.”).
Accordingly, the district court should adopt the rationale of the state and federal
courts that have confronted this issue, and it should dismiss Plaintiff’s direct negligence
claims against CFI.
c. Plaintiff’s counterarguments regarding Texas’ proportionate
responsibility statute, Bedford, and dram shop liability all fail.
Plaintiff argues that under Texas’ proportionate responsibility statute, her
negligent entrustment claims are distinct from the vicarious liability to which CFI
stipulates. (Doc. No. 53, p. 13) (citing Tex. Civ. Prac. & Rem. Code Ann. § 33.003). To
support her argument, she cites Bedford v. Moore: “neither negligent hiring [n]or
negligent entrustment ‘are pure vicarious liability situations because liability stems from
distinct wrongful conduct.’” (Doc. No. 53, p. 15) (quoting Bedford, 166 S.W.3d at 459-
460). Relying on Bedford, she argues that, as was the case there, submitting negligent
hiring and negligent entrustment to the jury in addition to simple negligence is proper.
Id. (citing Bedford, 166 S.W.3d at 462).
CFI counters, however, that this reliance is misplaced because Bedford’s holding
was based on a withdrawn Supreme Court of Texas opinion. (Doc. No. 57, p. 4.) CFI’s
argument is persuasive, and it undermines Bedford’s holding and reliability. Several
courts have likewise recognized this error in Bedford’s reasoning. See Cristo v. C.R.
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England, Inc., No. 5:18-CV-1344, 2021 WL 801340, at *5 (W.D. Tex. Jan. 7, 2021) (“the
Bedford court relied on the original, withdrawn opinion of the Texas Supreme Court in
Duenez . . . .”); Conkle, 2009 WL 483226, at *4 (noting that Bedford relied “on [an]
original version of Duenez, which was later withdrawn and substituted” for an opinion
correcting those statements); Medina v. Cont. Freighters, Inc., No. 5:21-CV-1224, 2023
WL 9503469, at *3 (W.D. Tex. Dec. 7, 2023) (finding that Bedford has been negated and
therefore “declined to follow” it).
These courts diverged from Bedford because Duenez’s revised opinion omits this
key sentence which Bedford relied on: “[u]nder the court's analysis, the provider and the
intoxicated patron are one and the same, like the employer and the employee in a case
founded upon the doctrine of respondeat superior.” Bedford, 166 S.W.3d at 462 (citing
F.F.P. Operating Partners, L.P. v. Dueñez, No. 02-0381, 2004 WL 1966008 (Tex. Sept.
3, 2004), opinion withdrawn and superseded sub nom., F.F.P. Operating Partners, L.P.
v. Duenez, No. 02-0381, 2006 WL 3110426 (Tex. Nov. 3, 2006), opinion withdrawn and
superseded on denial of reh'g, 237 S.W.3d 680 (Tex. 2007)). Bedford’s outcome, which
relied on this comparison, has thus reasonably been called into question by these courts.
Accordingly, the district court should also reject Plaintiff’s argument that Bedford is
instructive in any way.
Plaintiff’s comparison of negligent hiring to dram shop liability also fails for
similar reasons. The revised Duenez opinion, which Plaintiff ultimately cites as well,
specifically explained that the Dram Shop Act does not impose vicarious liability but
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instead holds an owner liable for its own negligence in selling or serving alcohol to an
obviously intoxicated person. Williams, 671 F. Supp. 2d at 892 n.8 (citing Duenez, 237
S.W.3d at 681, 686). This relationship differs from that of an employee and employer
through vicarious liability, and as previously discussed, no court has found negligent
entrustment, hiring, training, or retention to be non-vicarious claims. Any argument
likening negligent entrustment, training, hiring, or retention to dram shop liability thus
fails.
F. Conclusion and recommendation.
The district court should GRANT CFI’s partial motion for summary judgment
(Doc. No. 37) and DISMISS Plaintiff’s direct claims—negligent entrustment, negligent
hiring, negligent training or negligent retention—against CFI.
G. Notice.
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within 14 days after being served with a copy of the
Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R.
Civ. P. 72(b), 28 U.S.C. § 636(b)(1), and General Order No. 2002-13, United States
District Court for the Southern District of Texas.
A failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within 14 days after
being served with a copy shall bar that party, except upon grounds of plain error, from
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attacking on appeal the unobjected-to proposed factual findings and legal conclusions
accepted by the District Court. See Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415
(5th Cir. 1996) (en banc).
Respectfully submitted on December 29, 2025.
_______________________________
Jason B. Libby
United States Magistrate Judge
Case 2:24-cv-00111 Document 69 Filed 12/29/25 in TXSD Page 17 of 17