Gilmore v. Atcheson et al

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PAUL GILMORE,
Plaintiff,
v.
WAYNE ATCHESON, et al.,
Defendants.
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CIVIL ACTION NO. H-24-4892
MEMORANDUM AND OPINION
This case arises out of a collision between a vehicle owned and driven by Paul Gilmore
and a commercial tractor-trailer driven by Wayne Atcheson during the course of his employment
with Annett Holdings, Inc. d/b/a TMC. Both sides argue that they had the green light and that the
opposing party ran the red light. The defendants have moved for partial summary judgment on
the plaintiff’s gross-negligence and direct-negligence claims. (Docket Entry No. 18). The plaintiff
has responded. (Docket Entry No. 19).
Based on the pleadings, the motion, the record, and the applicable law, the court grants the
defendants’ motion for partial summary judgment. (Docket Entry No. 18). Summary judgment is
granted, dismissing Gilmore’s gross-negligence and direct-negligence claims. The reasons are set
out below.
I. 	Background
On June 15, 2023, Gilmore was driving northbound on the 7400 block of Scott Street in
the far-left lane. 	(Docket Entry No. 18-1 at 2). 	Atcheson was driving westbound on the South
Loop East Freeway service road in the middle lane. (Id.). The cars collided. 	Damage to a fuel
tank caused gas to leak over the roadway, requiring the hazardous response team to come to the
United States District Court
Southern District of Texas
ENTERED
April 15, 2026
Nathan Ochsner, Clerk
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scene for a cleanup. (Id.). The investigating officer found Atcheson at fault after obtaining footage
of the incident from a nearby gas station showing that Atcheson had a red light. (Id.). Atcheson’s
background report includes a notation for “Fail To Obey-Signal/Light,” for which Atcheson was
convicted on July 17, 2023. 	(Docket Entry No. 19-2 at 10). 	The incident report includes the
following diagram of the collision:
(Docket Entry No. 18-1 at 7).
The record does not contain the gas station surveillance video that the officer saw. 	It
instead contains the officer’s bodycamera footage, which shows the officer in the gas station
watching the surveillance footage. (Docket Entry No. 19-2). It is difficult to see the content of
the surveillance video through the bodycamera recording.
Atcheson denies that he ran a red light, denies that the investigating officer witnessed a
video of him running a red light, and asserts that he had a green light when he drove into the
intersection. (Docket Entry No. 19-3 at 3–6).
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II. 	The Legal Standard
Summary judgment is appropriate when no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 322–23 (1986). An issue of fact is genuine if a reasonable trier of fact could
return judgment for the non-moving party. 	Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). And a fact is material if it “might affect the outcome of the suit under the governing law”
and is not “irrelevant or unnecessary.” Id. “The court must construe all the evidence and draw all
reasonable inferences from the evidence in the light most favorable to the non-moving party.”
Maldonado v. Harris County, 2025 WL 2443389, at *2 (S.D. Tex. Aug. 25, 2025) (citing Walker
v. Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988)). “If the non-moving party prevails
as a matter of law after so construing the record, or if reasonable minds could differ on the import
of the evidence presented, the court must deny the motion for summary judgment.” 	Id. (citing
Sanchez v. Young County, 956 F.3d 785, 791 (5th Cir. 2020)); McMillan v. State Farm Ins. Lloyds,
No. CV H-24-504, 2025 WL 3760516, at *2 (S.D. Tex. Dec. 29, 2025).
III. 	Analysis
A. 	Gross Negligence (Atcheson)
Exemplary damages are available if a plaintiff proves, “by clear and convincing evidence,”
that her injuries resulted from the defendant’s gross negligence. TEX. CIV. PRAC. & REM . CODE
§ 41.003(a). 	Gross negligence has objective and subjective components, and means an act or
omission:
(A) which when viewed objectively from the standpoint of the actor at the time of
its occurrence involves an extreme degree of risk, considering the probability and
magnitude of the potential harm to others; and
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(B) of which the actor has actual, subjective awareness of the risk involved, but
nevertheless proceeds with conscious indifference to the rights, safety, or welfare
of others.
Id. § 41.001(11).
The objective component is not satisfied by either a remote possibility of serious injury or
a high probability of minor harm. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d
238, 248 (Tex. 2008). 	An “extreme degree of risk is a threshold significantly higher than the
objective reasonable person test for negligence.” Medina v. Zuniga, 593 S.W.3d 238, 249 (Tex.
2019) (cleaned up). “An act or omission that is merely thoughtless, careless, or not inordinately
risky cannot be grossly negligent.” 	Id. (quoting Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 22
(Tex. 1994)). 	Rather, there must be “such an entire want of care as to establish that the act or
omission was the result of actual conscious indifference to the rights, safety, or welfare of the
person affected.” Moriel, 879 S.W.2d at 21 (quoting TEX. CIV. PRAC. & REM . CODE § 41.001(5)).
The subjective component requires proof that the defendant knew about the extreme degree of risk
but demonstrated through acts or omissions that he did not care. Mobil Oil Corp. v. Ellender, 968
S.W.2d 917, 921 (Tex. 1998).
Gilmore argues that Atcheson was grossly negligent because he was a professionally-
trained driver operating an 80,000 pound tractor-trailer when he ran the red light. (Docket Entry
No. 19 at 9–11). But “Texas courts have repeatedly made clear that whether a driver is operating
a car or truck, acts that support a finding of ordinary negligence, such as a party’s failure to obey
traffic laws, will not support a finding of gross negligence.” 	Phillips v. Super Servs. Holdings,
LLC, 189 F. Supp. 3d 640, 656 (S.D. Tex. 2016) (collecting cases). A conscious failure to stop at
a red light or a stop sign does not constitute gross negligence. Rogers v. Blake, 240 S.W.2d 1001,
1004 (Tex. 1951) (conscious failure to stop at a stop sign, standing alone, does not constitute gross
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negligence); Terry v. Garcia, 800 S.W.2d 854, 857 (Tex. App.—San Antonio 1990, writ denied)
(running a red light did not amount to gross negligence). This case arises out of a “garden-variety”
car accident that does not constitute gross negligence. Medina, 593 S.W.3d at 250.
This rule does not change because a driver is licensed and specially trained to operate a
heavy commercial vehicle. 	Courts have rejected the argument that “operating a tractor-trailer
inherently involves an extreme degree of risk because any collision involving a tractor-trailer is,
by virtue of a tractor-trailer’s size and weight, likely to cause serious harm.” 	Drake v. Crete
Carrier Corp., No. 4:23-CV-01021-BD, 2026 WL 21361, at *6 (E.D. Tex. Jan. 5, 2026) (collecting
cases). Courts apply “the same standards to truckers as to other drivers.” Id. A Texas appellate
court, for example, concluded that there was no gross negligence when an admittedly “distracted”
commercial driver drove an “armored truck, weighing approximately 12,500 pounds to 15,000
pounds, while eating sunflower seeds,” into the back another car that was stopped at a red light.
Williams v. Crawford, No. 03-16-00696-CV, 2018 WL 1124306, at *15 (Tex. App.— Austin Mar.
2, 2018, no pet.). Gilmore argues that the tractor-trailer in this case is much larger than the armored
vehicle in Williams, but the case law shows that Gilmore’s argument raises a distinction of degree
that is without a difference.
Summary judgment is granted in the defendants’ favor on Gilmore’s gross-negligence
claim.
B. 	Direct Negligence (TMC)
“Under Texas law, if a defendant company stipulates to its vicarious liability for its
employee’s negligence, a company’s liability under respondeat superior and direct negligence are
mutually exclusive.” Adam v. Pope, No. CV H-24-4761, 2025 WL 963077, at *1 (S.D. Tex. Mar.
28, 2025) (cleaned up); see Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—
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Dallas 2002, pet. denied); see also Frazier v. U.S. Xpress, Inc., No. 19-cv-557, 2020 WL 4353175,
at *3 (W.D. Tex. July 29, 2020). Here, “TMC stipulates to the fact that Defendant Atcheson was
in the course and scope of his employment at the time of the subject accident.” (Docket Entry No.
18 at 11). The admission rule bars Gilmore’s direct-negligence claims.
Gilmore responds that the admission rule does not apply when a plaintiff alleges gross
negligence against an employer. 	(Docket Entry No. 19 at 18). 	Gilmore is correct that the
admission rule does not bar a direct gross-negligence claim against a driver’s employer. Rosell,
89 S.W.3d at 654. 	But Gilmore’s complaint contains no gross-negligence claim against TMC.
(See generally Docket Entry No. 1-1). The complaint quite clearly alleges gross negligence against
only Atcheson:
C. GROSS NEGLIGENCE
12. Defendant WAYNE ATCHESON’s acts were committed with complete and
reckless disregard for, and with willful, wanton and actual conscious indifference
to the rights, safety and welfare of Plaintiff and the general public. The nature of
Defendant WAYNE ATCHESON’s acts and omissions were of such a nature as to
constitute 	gross 	negligence 	and 	malice. 	Defendant 	WAYNE 	ATCHESON
undertook a continuous course of conscious decisions with subjective knowledge
and awareness of the risks and hazards of running a red light knowing that even a
minor collision with his tractor-trailer would expose Plaintiff and others on the
roadway to life threatening hazards or death. When viewed objectively from the
standpoint of Defendant WAYNE ATCHESON at the time of the occurrence, said
acts and omissions involved an extreme degree of physical risk and danger,
considering the probability and the magnitude of the potential harm to others.
Defendant 	WAYNE 	ATCHESON 	committed 	various 	acts 	and 	omissions
constituting gross negligence, as outlined above. Such gross negligence was a
proximate cause of the collision and Plaintiffs injuries and damages.
(Id. ¶ 12).
Even if Gilmore properly asserted gross-negligence claims against TMC, the record would
not support them. Gilmore argues that TMC was grossly negligent in hiring, training, supervising,
and entrusting Atcheson because “Atcheson received a violation involving a commercial vehicle
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within one month of hire and less than one week after completing his road test.” (Docket Entry
No. 19 at 19). This traffic violation was “for operating a vehicle with a gross weight over 26,001
pounds.” 	(Docket Entry No. 19-4 at 4). 	There is no evidence that the traffic violation alone
supports an inference that Atcheson was so untrustworthy a driver that TMC was not just negligent
but grossly negligent. 	Employers are not liable for gross negligence by failing “inquire into or
check the driver’s driving record.” Phillips, 189 F. Supp. 3d at 658. As a result, driving checks
that “come back clear or turn up convictions that do not speak to the driver’s driving abilities are
insufficient to raise an issue on gross negligence.” 	Id. 	“Indeed, the courts that find sufficient
evidence of gross negligence are faced with egregious driving records of which the employer was
aware and took no action to address.” Id. (collecting cases). There are no facts in the record that
suggest TMC was grossly negligent in hiring, training, or supervising Atcheson and entrusting him
with the vehicle he was driving.
Summary judgment is granted in the defendants’ favor on Gilmore’s direct-negligence
claim.
IV. 	Conclusion
The court grants the defendants’ motion for partial summary judgment. (Docket Entry No.
18). Summary judgment is granted on Gilmore’s gross-negligence and direct-negligence claims.
Gilmore’s ordinary-negligence claim against Atcheson remains for trial.
SIGNED on April 15, 2026, at Houston, Texas.
________________________________
Lee H. Rosenthal
Senior United States District Judge
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