     Case: 12-40421       Document: 00512163108         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013

                                       No. 12-40421                        Lyle W. Cayce
                                                                                Clerk

CHRISTOPHER D. WRIGHT,

                                                  Plaintiff - Appellant
v.

JUDSON T. WEAVER; JOE K. WEAVER; CATHEY T. WEAVER,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:07-CV-369


Before JONES, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Sometime after 12:15 a.m. on March 7, 2007, Judson Weaver (“Judson”)
and Chris Wright (“Wright”) got into a fight in the parking lot of the Bright Star
Lounge in Sulphur Springs, Texas. The fight took place while Judson was
sitting in the driver’s seat of a 2002 G.M.C. Yukon (“the Yukon”), and he
remained in the car during the altercation. According to the allegations, Judson
spit on Wright and used a racial epithet, in response to which Wright lunged at
Judson through the open, driver’s-side window of the Yukon. This led to Judson

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40421

accelerating the vehicle through the bar’s parking lot until it hit a curb, halting
the vehicle and sending Wright flying into the pavement, causing him injuries.
       Wright brought suit in federal district court against Judson and his
parents, Joe K. Weaver (“Joe”) and Cathey T. Weaver (“Cathey”) (collectively,
“the Weavers”).1 Wright asserted a negligence claim against Judson and a
negligent-entrustment claim against the Weavers. (At the time of the incident,
Judson was twenty-four years old and therefore not a minor.) Despite initially
denying the Weavers’ motion for summary judgment, the district court
subsequently changed course, granting the Weavers’ motion because there was
insufficient evidence to conclude that Judson was a reckless driver, a necessary
element for a claim of negligent entrustment under Texas law. And although
Wright requested that any negligence finding by the jury against Judson bind
the Weavers, the district court denied his request. Wright’s negligence claim
against Judson went to trial, and a jury determined that Judson was negligent
on the night of the incident and that Judson’s negligence proximately caused
Wright’s injuries. We do not disturb the jury’s verdict against Judson.
       Wright now appeals the district court’s grant of summary judgment in
favor of the Weavers on the negligent-entrustment claim. In the event that the
panel reverses the district court’s judgment, he also asks that the Weavers be
collaterally estopped from challenging the jury’s determination that Judson was
negligent and that his negligence proximately caused Wright’s injuries, two
necessary elements for a claim of negligent entrustment under Texas law.
       On review of the record, we conclude that there is no genuine issue of
material fact that Judson’s driving record is insufficient to demonstrate that he



       1
        The district court exercised jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because
complete diversity of citizenship exists between Wright, on the one hand, and Judson, Joe, and
Cathey, on the other. Further, Wright sued the Weavers for an amount in excess of $75,000
exclusive of interest and costs.

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                                  No. 12-40421

was a reckless driver. Wright argues in the alternative that, based on the
application of Revisore v. West, 450 S.W.2d 361, 364 (Tex. App. 1970), he may
succeed on his claim against the Weavers even assuming Judson has a driving
record insufficient to prove recklessness. Under Texas law, a plaintiff is not
limited to the prior driving record of the entrustee; rather, evidence of the
condition, state, or situation of the driver at the time of the entrustment may
also be considered in determining negligent entrustment. See id. Nonetheless,
there is insufficient evidence that, even assuming the Weavers spoke to their son
on the night of the incident, either of them knew that he was so intoxicated that
he would be a danger to others. Accordingly, we AFFIRM the district court’s
grant of summary judgment in favor of the Weavers.
                               BACKGROUND
      On March 6, 2007, Judson and a group of friends, following dinner at a
local Chili’s restaurant, went to the Bright Star Lounge to celebrate a successful
day of business at the dealership where Judson worked. One of the people who
went to the Bright Star Lounge with Judson was Ashley Stubblefield
(“Stubblefield”), a friend of Judson’s. Also at the bar were Wright and his
girlfriend, Sarah Ashley (“Ashley”), who was a bartender at the Bright Star
Lounge (but who was not working that night) and with whom Judson was
acquainted. Rebecca Nelson (“Nelson”) was bartending that night. The parties
disagree regarding how much Judson had to drink overall that evening and how
much he had to drink at the Bright Star.
      Sometime between 11:00 p.m. and 11:30 p.m., Judson reportedly
approached Ashley and made a racially charged comment about Ashley dating
Wright, who is black. Subsequently, there was a confrontation between Wright
and Judson in the parking lot of the bar. At roughly 12:15 a.m., Judson and his
friends were asked to leave the premises, and Judson evidently got into the
Yukon and drove away. Wright remained at the Bright Star Lounge while the

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bartenders closed the bar. However, as Wright and Ashley were leaving the bar,
Judson and his friends returned, and a fight ensued between Judson and Wright
in the bar’s parking lot.
      Judson remained in the Yukon during the altercation, but after Judson
made a racial epithet and spit on Wright, Wright approached the window, and
punches were thrown. Wright, according to Judson, lunged into the open,
driver’s-side window of the car, grabbed Judson, and knocked off Judson’s
glasses. Judson then accelerated through the parking lot with Wright hanging
out of the window. When Judson hit a curb, Wright was thrown from the
window and injured.
                            STANDARD OF REVIEW
      We review a district court’s grant of summary judgment de novo, applying
the same standards as did the district court. Downhole Navigator, L.L.C. v.
Nautilus Ins. Co., 686 F.3d 325, 328 (5th Cir. 2012). “Summary judgment is
appropriate where the movant shows that there is no genuine issue of material
fact and that the movant is entitled to judgment as a matter of law.” Id. “In
reviewing the record, all facts and inferences are construed in the light most
favorable to the non-movant.” Id. However, “[i]f the record, taken as a whole,
could not lead a rational trier of fact to find for the non-moving party, then there
is no genuine issue for trial.” Hernandez v. Yellow Transp., Inc., 670 F.3d 644,
650 (5th Cir. 2012) (internal quotation marks omitted).
      When the non-moving party—in this case, Wright—bears the burden of
proof on a claim on which summary judgment is sought, the movant—in this
case, the Weavers—may discharge its burden by showing that there is an
absence of evidence to support the nonmovant’s case. See Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986). “Once a movant who does not have the burden
of proof at trial makes a properly supported motion, the burden shifts to the
nonmovant to show that a summary judgment should not be granted.” Ragas

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v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).            However,
“conclusory statements, speculation, and unsubstantiated assertions cannot
defeat a motion for summary judgment.” RSR Corp. v. Int’l Ins. Co., 612 F.3d
851, 857 (5th Cir. 2010). Rather, “the nonmoving party must set forth specific
facts showing the existence of a ‘genuine’ issue concerning every essential
component of its case.” Morris v. Covan World Wide Moving, Inc., 144 F.3d 377,
380 (5th Cir. 1998).
                                 DISCUSSION
                                        A.
                                         1.
      “The parties agree that Texas law governs this dispute. Because federal
jurisdiction in this case is based on diversity, we follow Texas’s substantive law.”
Downhole Navigator, 686 F.3d at 328. The parties agree on the elements of
negligent entrustment under Texas law. To make out a negligent-entrustment
claim, a plaintiff generally must show each of the following: “(1) entrustment of
a vehicle by the owner; (2) to an unlicensed, incompetent, or reckless driver; (3)
that the owner knew or should have known to be unlicensed, [incompetent, or
reckless,] (4) that the driver was negligent on the occasion in question and (5)
that the driver’s negligence proximately caused the accident.” Schneider v.
Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987). Thus, generally
speaking, if there is no genuine issue of material fact with respect to any of these
five elements, Wright’s claim fails.
                                         2.
      The parties focus their attention on whether Judson’s driving record
reveals that he was a reckless driver. The definition of “recklessness” under
Texas law depends on context:
      [D]rivers have been determined to be reckless when their history of
      driving habits, traffic violations, or intemperance (whether due to


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       wilful and wanton actions or otherwise) exhibits a pattern of such
       deviations from lawful and proper manner of vehicle operation that
       if the entrustor had knowledge of the history, the entrustor should
       reasonably have anticipated that the driver would operate the
       entrusted vehicle in a wrongful manner and thereby damage
       persons or property.
Pesina v. Hudson, 132 S.W.3d 133, 137-38 (Tex. App. 2004). That said, although
an individual’s driving record and accident history are relevant to show
recklessness, evidence of isolated or remote incidents is insufficient.       See
Aboushadid v. Ward, No. 07-05-0140-CV, 2007 WL 397117, at *4 (Tex. App. Feb.
5, 2007) (“Courts have uniformly held individual or isolated driving violations
are not evidence of recklessness or incompetence.”); Avalos v. Brown Auto. Ctr.,
Inc., 63 S.W.3d 42, 49 (Tex. App. 2001) (holding that a seven-year-old driving-
while-intoxicated (“DWI”) conviction was too remote to create a fact issue
regarding the driver’s recklessness); see also Beall v. Cooke, No. 01-00-00150-CV,
2001 WL 699915, at *4 (Tex. App. June 21, 2001) (same with respect to a five-
year-old DWI conviction).
       The parties vigorously dispute which events from Judson’s past are
relevant for the purpose of evaluating whether he was a reckless driver.
Nevertheless, because the events on which Wright focuses are either too remote
in time or are not driving-related, we conclude that there is no genuine issue of
material fact that Judson’s driving record is insufficient to demonstrate that he
was a reckless driver. See Pesina, 132 S.W.3d at 137-38; Avalos, 63 S.W.3d at
49.
       First, Wright introduced evidence that in June 2000, Judson, who was
eighteen at the time, drove his parents’ truck, crashed it into a ditch, and was
arrested for public intoxication. This event, which took place seven years prior
to the incident giving rise to this suit, is too remote in time to be relevant to
show recklessness. See Avalos, 63 S.W.3d at 49.


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      Second, Wright presented evidence that in April 2001, Judson was
arrested for public intoxication and criminal mischief after he was found having
pulled the fire alarm and damaged vehicles on the fourth floor of the parking
garage at the Omni Hotel in Austin, Texas. Although Wright reasons that it is
a “fair inference” that Judson would have driven but for the public-intoxication
arrest, this is mere conjecture. See RSR Corp., 612 F.3d at 857 (“[S]speculation[]
. . . cannot defeat a motion for summary judgment.”). Even if we were to assume
that this event is not too remote in time, but see Avalos, 63 S.W.3d at 49, we
conclude that it is not driving-related and therefore irrelevant to show
recklessness in driving, see Pesina, 132 S.W.3d at 137-38.
      Third, Wright introduced evidence that in April 2002, a police officer
arrested Judson for possession of marijuana and prescription medication without
a prescription. Despite Wright’s arguments to the contrary, there is no support
in the record for either the proposition that Judson was driving at the time of the
arrest or even the proposition that he was under the influence when this
occurred. Therefore, the arrest does not relate to driving and is therefore not
relevant to our determination. See Pesina, 132 S.W.3d at 137-38.
      Fourth, Wright presented evidence that Judson was stopped in February
or March of 2005 for a defective headlamp. However, because no fault was
indicated in the stop and because a stop for a defective headlamp does not
represent the kind of “deviation[] from lawful and proper manner of vehicle
operation” as required to show reckless driving under Texas law, this event is
also irrelevant to our determination. Pesina, 132 S.W.3d at 137; see Hines v.
Nelson, 547 S.W.2d 378, 386 (Tex. App. 1977) (“[A] driving record containing
listed violations or accidents in which no indication of guilt or fault is indicated
is insufficient to show that the individual concerned was a habitually reckless
and incompetent driver.”).



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        Fifth, Wright introduced evidence that in June 2005, Judson read-ended
another vehicle while driving his father’s Jeep. However, no citation was issued
and no fault was determined, rendering this event insufficient to demonstrate
that Judson was a reckless driver. See Monroe v. Grider, 884 S.W.2d 811, 815
(Tex. App. 1994) (“Involvement in a previous collision alone does not create an
inference or conclusion that a driver is incompetent or reckless.”); Hines, 547
S.W.2d at 386.
        Lastly, Wright presented evidence that in July 2005, a police officer
arrested Judson, whose license had been suspended the previous month, for a
defective taillight while driving his father’s Jeep. The arresting officer was
responding to a “disturbance,” and, because Judson was arrested and the car
impounded, Wright suggests that the incident involved more than a mere
defective headlight. Wright’s insinuations, however, are mere conjecture not
supported by the record. See RSR Corp., 612 F.3d at 857. As such, a defective
headlight is insufficient to show that Judson was a reckless driver under Texas
law.
        In sum, neither the April 2001 nor the April 2002 arrests were driving-
related. The June 2000 public-intoxication arrest is too remote in time under
Texas law, and the 2005 defective-headlamp stop, the June 2005 rear-end
collision, and the July 2005 defective-taillight arrest included no fault
determinations and otherwise involved minor traffic violations. Accordingly, we
conclude that there is no genuine issue of material fact regarding whether
Judson was a habitually reckless driver under Texas law, a necessary element
of Wright’s negligent-entrustment claim.
                                       3.
        To make out a negligent entrustment claim, the “defendant entrustor
should be shown to be reasonably able to anticipate that an injury would result
as a natural and probable consequence of the entrustment.” Schneider, 744

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S.W.2d at 596. Generally, if the entrustee has no history of reckless driving, the
entrustor is not “reasonably able to anticipate that an injury would result.” Id.
That said, Texas law provides that a plaintiff may succeed on a negligent-
entrustment claim even though the driver has an insufficient record of
recklessness. This is because a plaintiff is not limited to the prior driving record
of the entrustee; rather, evidence of the condition, state, or situation of the driver
at the time of the entrustment may also be considered in determining negligent
entrustment. See Louis Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604
(Tex. App. 1986); Revisore, 450 S.W.2d at 364.
        In Revisore, the plaintiff was involved in an auto accident with another
driver, Eagerton, who was driving a car loaned to him by the defendant. 450
S.W.2d at 362. The plaintiff sued the defendant for negligent entrustment. Id.
The plaintiff conceded that Eagerton’s record was insufficient to demonstrate
that he was a reckless driver. Id. Rather, the plaintiff’s theory of the case
asserted that “there was negligence in the entrustment of the . . . car by [the
defendant] because of the physical and mental condition of Eagerton at the time
in question.” Id. at 263. The Revisore court agreed, stating that, in determining
whether Eagerton was reckless, it could consider “the condition, state, or
situation of an entrustee at the time he is loaned an automobile.” Id. at 364.
Thus:
        An entrustment may be deemed negligent where an entrustee is
        physically or mentally incapacitated, intoxicated or for any reason
        lacking in judgment or perception. In such instances knowledge of
        the entrustor of the incompetency or recklessness of the driver is
        apparent. Such factors may evidence negligence on the part of the
        entrustor who, oblivious to them or their potential impact, entrusts
        an automobile under the circumstances here prevailing.
Id.
        From Revisore, Wright reasons that because both parents spoke to Judson
on the phone on March 6, 2007, they should have known that he was intoxicated

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and therefore unfit to drive. We disagree. First, with respect to Judson’s father,
Joe, the record reflects that Judson and Joe spoke while Joe was on his way to
Chili’s. However, Revisore requires that, at the time of the entrustment, Judson
be evidently intoxicated such that Joe’s knowledge that Judson would drive
recklessly would be apparent. Yet there is no record evidence that Judson had
been drinking, let alone was intoxicated, prior to his arrival at the Chili’s, a
point which Wright implicitly concedes. Therefore, his Revisore claim with
respect to Joe cannot succeed.
      With respect to Cathey, the record suggests that she and Judson spoke
while Judson was at the Bright Star Lounge.2 According to Stubblefield, who sat
next to Judson at the bar, Judson spoke to his mother. Specifically, she recalled
that Judson and his mother spoke on the phone because Judson reported that
his mother remembered teaching Stubblefield in school. However, Stubblefield
could not recall at what time Judson spoke to his mother. Moreover, although
Ashley, Nelson, and Stubblefield reported that Judson was intoxicated at the
Bright Star Lounge, they did not state when they observed that Judson was
drunk. Even assuming that Judson was intoxicated at the bar, Stubblefield did
not—and likely could not—testify that Cathey knew that Judson was unfit to
drive. This means that there is insufficient summary-judgment evidence that
Cathey knew her son’s operation of a motor vehicle would be dangerous.
Accordingly, we conclude that Wright’s theory of the case under Revisore cannot
survive summary judgment and judgment in favor of the Weavers was properly
granted.
                                              B.
      Wright also argues that the district court erroneously denied his request
to bind the Weavers to any negligence finding by the jury against Judson.


      2
          Both Cathey and Judson, however, deny that they spoke on the night of the incident.

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However, the parties agree that the panel need only address this issue if the
panel reverses the grant of summary judgment in favor of the Weavers. Because
we affirm the judgment of the district court, we decline to address this issue.
                               CONCLUSION
      For these reasons, we AFFIRM the judgment of the district court.




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