     Case: 18-41191      Document: 00515188003         Page: 1    Date Filed: 11/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                      No. 18-41191                          FILED
                                                                     November 5, 2019
                                                                       Lyle W. Cayce
DIEGO ALEXIS OBREGON,                                                       Clerk

              Plaintiff - Appellant

v.

UNITED STATES OF AMERICA,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 5:17-CV-30


Before STEWART, CLEMENT, and HO, Circuit Judges.
PER CURIAM:*
       Diego Alexis Obregon appeals the district court’s grant of summary
judgment in favor of the United States (the “government”) and dismissal of
Obregon’s claims under the Federal Tort Claims Act (“FTCA”) against the
government for damages arising from a car accident with a Border Patrol
(“BP”) agent. We AFFIRM the district court’s judgment.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 18-41191
                                            I.
      On the night of June 7, 2015, after attending muster at about 10:00 p.m.,
BP Agent Robert Garcia went to pick up coffee for himself and two co-workers
at a convenience store on Mines Road, a highway in Laredo, Texas. He drove
his government-issued Ford F-150. About five miles into his drive back, while
driving approximately 70 miles per hour (the speed limit on Mines Road),
Agent Garcia collided with Appellant Diego Alexis Obregon’s sedan. Obregon
was entering Mines Road from a side road called Verde Boulevard that
connected a subdivision to the highway. There is a stop sign at the intersection
of Mines Road and Verde Boulevard, and cars on Verde Boulevard must yield
to traffic traveling on Mines Road. Agent Garcia contends that he first saw
Obregon’s vehicle a split second before impact.
      Immediately after the crash, Agent Garcia went to check on Obregon.
Garcia found Obregon unconscious and went back to his car to call for help.
His dispatch radio was not working, so he called 911 from his cellphone. In his
deposition, Garcia testified that he turned on his “red and blues,” (or
“emergency lights”), to make approaching traffic aware of the accident.
Another BP agent arrived at the scene by chance, and Garcia used the agent’s
radio to contact his supervisor. Shortly thereafter, the ambulance arrived and
took Obregon to the hospital. Agent Garcia’s supervisor also came and took
photos of the scene. By this time, a group of onlookers had gathered at site of
the crash. Finally, the Laredo Police Department (“LPD”) investigators
arrived. They put together a full crash report, including photos, witness
statements, and a diagram of the crash.
      Obregon testified that he did not recall anything from the accident.
Additionally, LPD found that Obregon did not have a driver’s license and had
not taken any formal driver’s education courses. Following the accident, LPD
cited Obregon for failing to yield at a stop sign and driving without a license.
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                                  No. 18-41191
      Obregon sued the United States under the FTCA, claiming Agent Garcia
was negligent under Texas law. The government moved for summary
judgment. The district court granted the government’s motion, holding that no
reasonable juror could find that Agent Garcia had breached his duty of care to
Obregon. Further, the district court held that Obregon breached his own duty
of care by running the stop sign on Verde Boulevard, and was unable to recover
under Texas comparative-liability law as he was more than fifty-percent
responsible for the accident.
      Obregon asserts on appeal that there are genuine disputes of material
fact as to (1) whether Agent Garcia’s headlights were on at the time of the
collision and (2) whether Agent Garcia was using his cellphone before the
accident. Obregon claims that the district court made improper credibility
determinations by crediting only the government’s evidence on these issues,
and thus, erred in granting summary judgment in favor of the government.
                                            II.
      We review the district court’s grant of summary judgment de novo,
applying the same standards as the district court. Coleman v. United States,
912 F.3d 824, 828 (5th Cir. 2019). The court’s role is “not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a
genuine issue for trial.’” Tolan v. Cotton, 572 U.S. 650, 656 (2014) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). Summary judgment
is proper “only if, viewing the evidence in the light most favorable to the
nonmovant, ‘the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’”
Davenport v. Edward D. Jones & Co., 891 F.3d 162, 167 (5th Cir. 2018) (quoting
Fed. R. Civ. P. 56(a)); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
However, we “may not make ‘credibility assessments,’ which are the exclusive
province of the trier of fact.” La Day v. Catalyst Tech., Inc., 302 F.3d 474, 477
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                                 No. 18-41191
(5th Cir. 2002) (quoting Dibidale of La., Inc. v. Am. Bank & Trust Co., 916 F.2d
300, 307–08 (5th Cir. 1990)). “[T]he mere existence of some alleged factual
dispute between the parties will not defeat an otherwise properly supported
motion for summary judgment; the requirement is that there be no genuine
[dispute] of material fact.” Anderson, 477 U.S. at 247–248.
                                           III.
      The FTCA waives the sovereign immunity of the United States, making
it liable for certain tort damages “caused by the negligent or wrongful act or
omission of any employee of the [g]overnment while acting within the scope of
his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
      The district court properly applied Texas negligence law. “To determine
Texas law, this court looks first to the final decisions of the Texas Supreme
Court.” Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014). Under
Texas law, a negligence action requires the plaintiff to produce “evidence of a
legal duty owed by the defendant to the plaintiff, a breach of that duty, and
damages proximately caused by that breach.” Lee Lewis Constr., Inc. v.
Harrison, 70 S.W.3d 778, 782 (Tex. 2001); see Shakeri v. ADT Sec. Servs., Inc.,
816 F.3d 283, 292 (5th Cir. 2016). Here, Agent Garcia and Obregon owed each
other and other drivers a general duty of ordinary care. Ciguero v. Lara, 455
S.W.3d 744, 748 (Tex. App. 2015); see Bell v. Campbell, 434 S.W.2d 117, 120
(Tex. 1968). Additionally, Texas drivers have a general duty to keep a proper
lookout, which “encompasses the duty to observe, in a careful and intelligent
manner, traffic and the general situation in the vicinity, including speed and
proximity of other vehicles as well as rules of the road and common
experience.” Carney v. Roberts Inv. Co., 837 S.W.2d 206, 210 (Tex. App. 1992).


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                                      No. 18-41191
       The district court held that Obregon could not survive summary
judgment “[b]ecause no reasonable juror could find that [Agent Garcia]
breached his duty of care, [as] [Obregon] has failed to make the requisite
showing on a necessary element of his prima facie case [of negligence].”
Obregon contends that the district court made improper credibility
determinations and ignored his summary judgment evidence that creates
genuine disputes of material fact. Thus, he believes the district court erred in
granting summary judgment in favor of the government. See Richardson v.
Oldham, 12 F.3d 1373, 1379 (5th Cir. 1994) (“Credibility determinations have
no place in summary judgment proceedings . . . [if] [t]he district court cho[oses]
to believe the defendants’ evidence over the plaintiffs’ . . . that [is] error.”).
       Obregon first argues that there is a dispute of material fact about
whether Agent Garcia was driving with his headlights on at the time of the
accident. Obregon argues that the district court did not consider a sworn
declaration from Gina Santillana, who claims she arrived at the scene of the
accident “shortly after it occurred.” Santillana’s declaration stated that she
“clearly saw . . . that the taillights of that Border Patrol government vehicle
were not on,” which “led [her] to the belief that the headlights of this vehicle
were also off.” She also stated that “there were no emergency lights on.”
       The photos in the record shows the taillights on, save for one photo that
could be perceived as ambiguous. The emergency “red and blue” lights that
Garcia says he turned on following the collision are on in the initial photos
taken by Agent Garcia’s supervisor, but off in the LPD photos. 1 However, the
question at hand is whether there is a genuine dispute of material fact as to


       1 Obregon also claims that Agent Garcia’s supervisor’s photos “show no lights on the
pickup were illuminated.” This assertion contradicts the record. The photos that Obregon
relies on to support this claim were not taken by Agent Garcia’s supervisor, but instead were
taken by the LPD. The photos that Agent Garcia’s supervisor took show the surviving
headlight, emergency lights, and taillights on.
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                                 No. 18-41191
whether Garcia’s headlights were on when the collision occurred. Santillana
merely stated her “belief that the headlights were off.” Our precedent dictates
that “statements in affidavits . . . be based on personal knowledge and not
based on information and belief.” Bolen v. Dengel, 340 F.3d 300, 313 (5th Cir.
2003) (emphasis added). So, we must consider only the part of Santillana’s
statement that concerns her personal knowledge—her statement that the
government vehicle’s taillights and emergency lights were off when she arrived
after the accident. Even viewing this evidence in the light most favorable to
Obregon, the only evidence in the record regarding Garcia’s headlights is (i)
the LPD photos that show the single surviving headlight of the truck shining
and (ii) Agent Garcia’s supervisor’s photos, which show that same headlight
on. Obregon has not presented any other evidence supporting the headlight
issue as a genuine dispute for trial. Therefore, we find that Santillana’s
declaration is not enough to create a genuine dispute of material fact as to
whether Agent Garcia had his headlights on when the collision occurred. We
conclude on this point that the district court was correct in finding that Garcia
did not breach his duty of care to Obregon by driving without headlights, and
that the district court considered all available evidence in making this
determination.
      Obregon further argues that there is a genuine dispute of material fact
as to Garcia’s cellphone use while driving prior to the accident. This claim is
based on alleged discrepancies as to the time and length of Garcia’s 911-call.
AT&T recorded the 911-call as two minutes and twenty-six seconds, made at
11:42 p.m. But, (i) the police report notes that the accident occurred at 11:44
p.m., and (ii) the 911-call recording was allegedly one minute and seven
seconds. Obregon argues that the difference between the time of the 911-call
recorded on the police report and the AT&T record (approximately two
minutes) and the difference in the reported lengths of the 911-call (one minute
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                                  No. 18-41191
and nineteen seconds) show that Garcia was on his phone prior to the collision.
However, Agent Garcia’s phone records show that he made no other calls prior
to his 911-call. We agree with the district court that the assertion that Garcia
called 911 before the collision occurred “defies logic.” Here, Obregon has
presented only an “alleged factual dispute,” as nothing in the record
demonstrates the existence of a genuine dispute as to Garcia’s cellphone use
before the accident. The district court was correct in holding that “[n]o
reasonable juror could find that [Agent Garcia] was on his cellphone prior to
the wreck based on his 911-call . . . to report the collision.” Likewise, we find
that the district court did not make improper credibility determinations with
respect to the cellphone issue.
      Because Obregon fails to survive summary judgment on his prima facie
case of negligence, we need not address whether he was more than fifty-percent
responsible for the accident under Texas comparative-liability law. For the
foregoing reasons, we AFFIRM the district court’s grant of summary judgment
in favor of the government.




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