Opinion filed January 15, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-12-00363-CV
                                     __________

        UNION PACIFIC RAILROAD COMPANY, Appellant
                                        V.
  DUDLEY HAYNIE AND MASTER CORPORATION, Appellees


                     On Appeal from the 358th District Court
                             Ector County, Texas
                      Trial Court Cause No. D-130,001-A

                      MEMORANDUM OPINION
      This is an appeal of a summary judgment in a suit for damages arising from
an accident wherein a train derailed after it collided with a tractor-trailer rig
carrying a crane. Union Pacific Railroad Company sued the driver of the truck; the
owner of the truck; the owner of the trailer; the owner of the crane, Master
Corporation; Master’s vice president, Dudley Haynie; and the trucking company
that Master hired to transport the crane. The trial court granted summary judgment
in favor of Master and Haynie on all claims against them and severed those claims.
We conclude that the trial court did not err when it ruled that Master and Haynie
were entitled to judgment as a matter of law, and we affirm.
      The summary judgment evidence shows that Master Corporation hired A.S.
Manriquez Trucking, Inc. to move a “Grove” crane from one of its job sites to
Master’s yard. Craig Echols, Master’s manager of construction, was responsible
for securing third-party contractors to haul Master’s equipment. Manriquez had
transported equipment for Master in the past. The first time that Master contracted
with Manriquez to haul equipment, Echols obtained a certificate of insurance and
verified coverage. Echols was pleased with the past performance of Manriquez,
and he personally retained Manriquez to transport the crane to Master’s yard on
July 16, 2010. After he retained Manriquez to haul the crane, Echols had no
further contact with any representatives of Manriquez.
      Manriquez did not haul the crane but, rather, apparently contracted with
Jaime Flores Parra to transport it. According to Union Pacific’s allegations, Jaime
Parra used his 1990 Peterbilt truck and a lowboy trailer, owned by Efrain F. Parra,
to move the crane. Union Pacific alleged that Jaime was neither licensed nor
qualified as a motor carrier and that he was not entitled to operate commercial
motor vehicles that transported cargo over public roads or highways in Texas.
While he was moving the crane, Jaime attempted to cross railroad tracks. As he
attempted to drive across the tracks, the lowboy trailer that Jaime was using
became stuck on the railroad tracks. Jaime did not call 911, nor did he call the
emergency number posted at the crossing, to notify anyone of the vehicle blocking
the train tracks. Before Jaime could move the tractor-trailer rig carrying the crane,
a Union Pacific train crashed into it. Several train cars and engines derailed, and
the crane was a total loss.


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      Union Pacific initially asserted claims against the driver and against the
owners of the truck, trailer, and crane. When Union Pacific sued Master, as owner
of the crane, Master moved to join Manriquez as a third-party defendant and
alleged that Master had retained Manriquez to move the crane and that Manriquez
had employed the services of Jaime “unbeknownst to Master.” In Union Pacific’s
first amended petition, it added Manriquez as a defendant and alleged that
Manriquez was negligent when it hired Jaime and was vicariously liable for
Jaime’s actions because Manriquez retained control over the manner and methods
of the work Jaime was to perform. Union Pacific sued Master and Haynie for
negligent hiring and negligent entrustment, as well as negligence and negligence
per se under several theories of vicarious liability.
      Master and Haynie filed a traditional motion for summary judgment in
which they argued that the evidence conclusively established that they owed no
duty to Union Pacific, that their actions were not the proximate cause of the
accident, and that they were not vicariously liable because Master did not hire
Jaime or supervise the transport of the crane. Master and Haynie attached the
affidavits of Haynie and Echols in support of their motion. In its response, Union
Pacific objected to the affidavits as “nothing more than conclusory, self-serving
statements of interested parties [that] constitute no evidence.”   Union Pacific
argued that the evidence did not support a summary judgment and that fact issues
remained.    The trial court granted Master and Haynie’s motion for summary
judgment and ordered that Union Pacific take nothing against Master and Haynie.
The trial court severed the claims against Master and Haynie, and Union Pacific
filed this appeal.
      In its first issue, Union Pacific argues that the trial court erred when it
considered the affidavits of Haynie and Echols because the facts alleged were


                                           3
incompetent summary judgment evidence and “nothing more than conclusory, self-
serving statements of interested parties.”
      We review a trial court’s ruling on the admissibility of summary judgment
evidence for an abuse of discretion. Paciwest, Inc. v. Warner Alan Props., LLC,
266 S.W.3d 559, 567 (Tex. App.—Fort Worth 2008, pet. denied). When a trial
court acts without reference to any guiding rules or principles, it abuses its
discretion. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex.
2002). We will uphold the trial court’s ruling if there is any legitimate basis in the
record for an erroneous evidentiary ruling unless the error probably caused the
rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Wal-Mart Stores,
Inc. v. Johnson, 106 S.W.3d 718, 723 (Tex. 2003).
      We first address Union Pacific’s objection to certain statements in the
affidavits that it claims were not based on personal knowledge; Union Pacific
refers us to general “subjective statements about what [Haynie and Echols]
‘understood’ or ‘believed.’” Affidavits supporting summary judgment “shall be
made on personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.” TEX. R. CIV. P. 166a(f). A recitation that the facts are
based on personal knowledge is insufficient if the affidavit fails to show a basis for
the knowledge. Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008). “An affidavit
containing conclusory and subjective determinations of fact may support a motion
for summary judgment if the remaining statements contain sufficient factual
information to sustain the movant’s burden of proof.”           First Nat’l Bank in
Munday v. Lubbock Feeders, L.P., 183 S.W.3d 875, 881 (Tex. App.—Eastland
2006, pet. denied).    A person’s position or job responsibilities can peculiarly
qualify him to have personal knowledge of facts and to establish how he learned of
those facts. Id.
                                             4
      We find two such statements in the affidavits, and we will address each of
them in turn.    We first consider Echols’s statement that he “understood and
believed that Manriquez was a qualified carrier of property and had satisfied [state]
requirements . . . and any pertinent [state and federal] requirements or regulations.”
We agree with Union Pacific that this statement is conclusory because there are no
facts contained elsewhere in the affidavit to show why Echols believed Manriquez
was a “qualified carrier.” Because Echols did not explain how or why he believed
that Manriquez was a qualified carrier, this evidence was not based on personal
knowledge.
      Next we consider Echols’s and Haynie’s identical statements in their
respective affidavits that they “did not understand or know, or have reason to
understand or know,” the intended route, that Jaime was transporting the crane, or
that he was not qualified. In Echols’s position as manager of construction, and
given his responsibility for securing third-party contractors to haul Master’s
equipment as well as being the person who engaged Manriquez to haul the crane,
Echols was particularly qualified to have personal knowledge of facts related to
third-party contractors hauling Master’s equipment. However, other facts alleged
in the affidavit support Echols’s lack of knowledge or understanding. Echols
stated that he did not meet Jaime until after the accident, had never engaged Jaime
to transport equipment, was never informed by a representative of Manriquez that
it hired third-party drivers, and could not find any reference to Jaime in past
invoices to indicate the use of Jaime or any other third-party drivers.         Thus,
Echols’s statement was supported by other facts contained in the affidavit.
      Union Pacific also argued that the facts alleged in the Echols and Haynie
affidavits were not competent evidence because they were self-serving statements
of interested witnesses that could not be readily controverted.        Union Pacific
contends that, because Master and Haynie had the burden to establish as a matter
                                          5
of law that there were no genuine issues of material fact, demonstrating a lack of
knowledge on an issue was not sufficient to support summary judgment.
Specifically, Union Pacific argues that the affidavits “do nothing more than show
that they knew nothing and did nothing in regard to the transport of the crane other
than to request that Manriquez haul the crane” and “attempt to absolve Haynie and
Master from liability by pleading ignorance of facts about which they had a duty to
inquire.” Union Pacific makes similar arguments about several other statements
that it contends are insufficient “to absolve Haynie and Master of their legal duty
to make an investigation as to the qualifications and competency of Manriquez.” If
Union Pacific’s true complaint is that the facts alleged are insufficient to establish
that Master and Haynie discharged their duty to investigate Manriquez to
determine whether it was competent to transport Master’s equipment, the
complaint goes to the merits of the case against Manriquez and not to whether the
evidence offered established that Master and Haynie were entitled to summary
judgment as a matter of law. The causes of action alleged against Master and
Haynie do not require Master and Haynie to show that they sufficiently inquired
into Manriquez and its ability to transport equipment for Master.
      We have reviewed the affidavits and the objections, and the only statement
that we see that was improper summary judgment evidence is Echols’s statement
that he “understood and believed” that Manriquez was qualified and had satisfied
the relevant state and federal regulations.       However, because the summary
judgment did not turn on Master’s investigation into Manriquez’s qualifications, as
discussed in Issue Two, if the trial court erred and considered this evidence, any
such error was harmless. See TEX. R. APP. P. 44.1(a)(1). Union Pacific’s first
issue is overruled.
      In its second issue, Union Pacific argues that summary judgment in this case
was not proper. To be entitled to summary judgment, a defendant must either
                                          6
negate an element of each of the plaintiff’s causes of action or establish each
element of its affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997). We review a trial court’s ruling on a traditional
motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). We must determine whether the movant established
that no genuine issue of material fact existed and that the movant was entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548–49 (Tex. 1985); Apcar Inv. Partners VI, Ltd. v. Gaus,
161 S.W.3d 137, 139 (Tex. App.—Eastland 2005, no pet.).
      To determine whether there is a genuine issue of material fact that precludes
summary judgment, we take as true summary judgment evidence favorable to the
nonmovant, indulge reasonable inferences in favor of the nonmovant, and resolve
doubts in favor of the nonmovant. KPMG Peat Marwick v. Harrison Cnty. Hous.
Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). “When the trial court does not
specify the basis for its summary judgment, the appealing party must show it is
error to base it on any ground asserted in the motion.” Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995). We consider only the grounds that “the movant
actually presented to the trial court” in its motion. Cincinnati Life Ins. Co. v.
Cates, 927 S.W.2d 623, 625 (Tex. 1996).
      Union Pacific alleged that Master and Haynie were directly liable for the
negligent hiring of Jaime as an independent contractor and for negligent
entrustment when they entrusted the crane to Jaime. Union Pacific also alleged
that Master and Haynie were vicariously liable for the actions of Jaime as a bailee
and as a borrowed servant under the theory of respondeat superior. Master and
Haynie challenged liability under each cause of action.
      We will first consider Union Pacific’s claim that Master and Haynie are
vicariously liable for the actions of Jaime under a “borrowed servant” theory.
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Master and Haynie argued in their motion for summary judgment that the evidence
conclusively established that Jaime was not a borrowed servant of Master or
Haynie.
      The “employee of one employer may become the borrowed employee of
another with respect to some activities,” and “it is the shift of the right to direct and
control the details of the work that transforms a general employee of one employer
into a borrowed employee of another, rendering the new employer vicariously
liable for the borrowed employee’s actions.” St. Joseph Hosp. v. Wolff, 94 S.W.3d
513, 537, 542 (Tex. 2002) (emphasis added). According to the Echols affidavit,
Echols was responsible for securing third-party contractors to haul Master’s
equipment; he called Tony and asked him “to transport Master’s ‘Grove’ crane
from a Master job site” to Master’s yard; Echols had no further contact with Tony
or any representatives of Manriquez. Echols did not know what route would be
taken to transport the crane to Master’s yard, an indication that Master and Haynie
lacked control over the details of the work. Moreover, Echols stated that he did not
know that Manriquez had contracted with a third party to move the crane prior to
the accident.
      The only evidence offered by Union Pacific was the driving record of Jaime.
In its response, Union Pacific argued that the affidavits were insufficient because
the evidence is silent as to, among other things, who loaded the crane onto the
trailer at the job site, who had the keys to the crane, and who inspected the trailer
after the crane was loaded. However, even if there was evidence that a Master
employee had the keys to the crane, drove the crane onto the trailer, and inspected
the loaded trailer, this would not establish a shift from Manriquez to Master of
control over the details of Jaime’s work. See Hoechst-Celanese Corp. v. Mendez,
967 S.W.2d 354, 357 (Tex. 1998) (requiring independent contractor to comply


                                           8
with standard safety practices and applicable laws does not impose an unqualified
duty of care to ensure that contractor’s employees did nothing unsafe).
      The summary judgment evidence shows that neither Master nor Haynie
exercised any actual control in this case. Master’s employee contracted with
Manriquez to transport the crane, and the lack of further dealings and
communication between Echols and Manriquez is evidence of a lack of the right to
control. Because of his position with Master, the fact that Echols was unaware that
Manriquez had hired Jaime is sufficient to establish that there was not a shift in
control over Jaime from Manriquez to Master.
      Based on the foregoing, we must conclude that the summary judgment
evidence conclusively established that Jaime was not a borrowed servant. Instead,
the evidence shows that Master contracted with Manriquez to transport the crane
and that Manriquez engaged Jaime as a subcontractor. Under these circumstances,
we cannot conclude that liability for Jaime’s actions should be imputed to Master
and Haynie. Accordingly, it was not error to grant summary judgment on the
ground that Jaime was not Master’s borrowed servant.
      We next consider Union Pacific’s cause of action against Master and Haynie
for negligently hiring “Jaime F. Parra . . . as an independent contractor.” A claim
for negligent hiring arises when there is a lack of the use of ordinary care when
hiring an independent contractor. Wasson v. Stracener, 786 S.W.2d 414, 422 (Tex.
App.—Texarkana 1990, writ denied). In their motion for summary judgment,
Master and Haynie argued that they were not liable for the negligent hiring of
Jaime as an independent contractor because they did not retain or hire Jaime to
transport the crane.   As the person who hires third-party contractors to haul
equipment, Echols hired Manriquez to transport the crane from the Master job site
to Master’s yard. Echols first learned “that someone other than Manriquez had
hauled the ‘Grove’ crane” when he arrived at the scene of the accident and saw
                                         9
“Jaime Parra Trucking Co.” on the doors of the truck. Echols further stated that
“[o]nly Manriquez had Master’s permission to haul the crane.”           Because the
summary judgment evidence conclusively shows that Master and Haynie did not
hire Jaime, it was not error to grant summary judgment in favor of Master and
Haynie for negligent hiring.
      Union Pacific also alleged that Master and Haynie were liable for negligent
entrustment because they entrusted the crane to “Jaime F. Parra when [Haynie]
and/or [Master] knew or should have known that Jaime F. Parra was an unlicensed,
unqualified, incompetent[,] and reckless driver and knew that the crane was going
to be transported on the public roadways.” Master and Haynie argued in their
motion for summary judgment that the evidence conclusively established that they
did not “entrust[ ] their crane to Jaime Parra.” As discussed above, the summary
judgment evidence shows that Master hired Manriquez to haul the crane and did
not know that Jaime was transporting the crane until after the accident. Because of
Echols’s position and duties, the evidence conclusively establishes that Master and
Haynie entrusted the crane only to Manriquez. Accordingly, it was not error to
grant summary judgment on Union Pacific’s claim for negligent entrustment.
      We next consider Union Pacific’s claim that Master and Haynie were liable
as bailors of the crane for the acts of Manriquez and Jaime as bailees. A bailor of a
vehicle is only liable for the acts of the bailee if the bailor had control over the
bailee’s operation of the vehicle. Bertrand v. Mut. Motor Co., 38 S.W.2d 417
(Tex. Civ. App.—Eastland 1931, writ ref’d); see also Rollins Leasing Corp. v.
Barkley, 531 S.W.2d 603, 605 (Tex. 1975) (“[I]f the bailor cannot be held
vicariously liable for the negligence of a bailee in custody of his chattel, then
neither can the contributory negligence of that bailee be imputed to him . . . .”).
Just as with the borrowed servant doctrine, the summary judgment evidence shows
that Master and Haynie had no knowledge that Jaime was transporting the crane
                                         10
and exercised no control over how Manriquez was transporting the crane,
including whether it hired a third-party operator to transport the crane. Because
the summary judgment evidence shows that Master contracted with Manriquez to
move the crane and exercised no control over how the train was transported,
Master and Haynie cannot be held vicariously liable for the negligence of a
subcontractor whose existence was unknown to Master and Haynie. Accordingly,
it was not error to grant summary judgment in favor of Master and Haynie on the
theory that they were liable as a bailor of property.
      After reviewing each ground raised in support of summary judgment, we
conclude that the trial court did not err when it granted summary judgment in favor
of Master and Haynie on all claims asserted against them. See Star-Telegram, 915
S.W.2d at 473. Accordingly, Union Pacific’s second issue is overruled.
      We affirm the judgment of the trial court.




                                                        JIM R. WRIGHT
                                                        CHIEF JUSTICE


January 15, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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