                                   NO. 07-05-0140-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL E

                                 FEBRUARY 5, 2007
                          ______________________________

            GEORGE ABOUSHADID, INDIVIDUALLY AND ON BEHALF
       OF THE ESTATE OF JANELL ABOUSHADID, DECEASED, APPELLANT

                                             V.

           GARY WARD, SHANA WARD AND COURTNEY WARD, APPELLEES
                     _________________________________

              FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2004-524,832; HONORABLE BLAIR CHERRY, JUDGE
                       _______________________________


Before CAMPBELL, J., and BOYD and REAVIS, S.J.1


                                MEMORANDUM OPINION


       George Aboushadid appeals an adverse summary judgment on his claims arising

from the death of his daughter Janell, which occurred when the vehicle in which she was

a passenger left the roadway and rolled over. This appeal concerns only Aboushadid’s

claims, individually and on behalf of his daughter’s estate, against the parents of the teen-

aged driver of the vehicle. We affirm.



       1
        John T. Boyd, Chief Justice (Ret.) and Don H. Reavis, Justice (Ret.), Seventh
Court of Appeals, sitting by assignment.
        Courtney Ward obtained her driver’s license within a few days after her sixteenth

birthday in mid-July 2003. In August her parents, Gary and Shana Ward, bought a 2003

Chevrolet Trailblazer for Courtney to drive, with the title in their names. In late September

Courtney asked permission to drive from Lubbock to Odessa with her friend Shannah

Davis to attend a football game between her high school, Lubbock Monterey High School,

and Odessa Permian High School. The plan was for Courtney and Shannah to follow

Shannah’s brother to Odessa for the 7:30 p.m. game, have something to eat after the

game, and arrive back in Lubbock between midnight and 1 a.m. After some discussion,

including discussion with Shannah’s mother, the Wards gave their permission.


        Janell Aboushadid was a classmate of Courtney and Shannah who also attended

the game. The person with whom Janell rode to Odessa remained there over the weekend

so Janell accepted Courtney’s offer of a ride back to Lubbock. After eating in the parking

lot of a fast-food restaurant, the girls left for Lubbock at 11:30 p.m. Shannah and Janell

were riding in the back seat and soon fell asleep. Near the town of Seminole, Courtney’s

vehicle left the roadway, rolled over and ejected Janell. She died of injuries sustained in

the accident. The parties differed on the cause of the incident. Courtney asserted she was

struck from behind by another vehicle attempting to pass her. Appellant’s theory is that

Courtney fell asleep, drifted off the road and “over-corrected,” causing the vehicle to roll

over.


        The Wards executed a settlement agreement with Janell’s mother “individually and

as representative of the estate of Janell Aboushadid” releasing all claims against the

Wards arising out of the event. Janell’s father George Aboushadid, divorced from her

                                             2
mother, brought suit against Courtney and the Wards2 the following month. His claims

were asserted individually and on behalf of the estate of Janell for negligence and

negligence per se against Courtney. He also asserted claims of negligent entrustment and

negligence per se against the Wards, and alleged they were grossly negligent.


      Courtney and the Wards filed a motion for partial summary judgment on the

negligence per se claim against Courtney and each of appellant’s claims against the

Wards. They asserted both traditional and no-evidence grounds. See Tex. R. Civ. P.

166a(c), (i). Evidence submitted in support of the motion included the affidavits of Gary

and Shana Ward, Courtney’s deposition testimony, a copy of her driving record from the

Department of Public Safety, the Aboushadid divorce degree granting Janell’s mother the

power to represent her in legal actions and the settlement agreement.3


      After a hearing, the trial court granted the motion, leaving only the negligence claim

against Courtney for trial. The order did not state the grounds on which it was based. On

agreement of the parties the court severed the claims against the Wards, making

disposition of those claims final. This appeal is brought from the judgment on the severed

claims. The two issues appellant’s brief asks us to determine are whether the trial court

erred in (1) granting partial summary judgment on his claims for negligent entrustment,

negligence per se, and gross negligence on traditional grounds, and (2) granting partial



      2
          In this opinion, we refer to Gary and Shana Ward as “the Wards.”
      3
        The motion challenged appellant’s standing to assert a claim on behalf of Janell
and raised the defense of release based on the settlement agreement. We do not reach
those issues.

                                            3
summary judgment on no-evidence grounds on his claims of negligent entrustment,

negligence per se and his ability to maintain a survival action.4


       In our review of the trial court’s grant of summary judgment, we apply the standards

of review set forth in Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49

(Tex. 1985) (traditional motion) and King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51

(Tex. 2003) (no-evidence motion).


                                  Negligent Entrustment


       We begin by considering whether the Wards established entitlement to summary

judgment on appellant’s negligent entrustment claim. To establish a claim for negligent

entrustment the plaintiff must show (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).


       The Wards’ summary judgment motion addressed the second and third elements

through traditional and no-evidence grounds. We focus on the third element, which

requires proof the owner knew or should have known the driver was unlicensed,

incompetent or reckless. Schneider, 744 S.W.2d at 596. There is no dispute Courtney



       4
         The Wards’ brief parses these issues into twelve reply issues. Global challenges
to the propriety of the summary judgment are permitted, Malooly Bros., Inc. v. Napier, 461
S.W.2d 119, 121 (Tex. 1970), and we address the issues as presented in appellant’s brief.

                                             4
held a valid driver’s license permitting operation of the type of vehicle she was driving. Via

their no-evidence motion, the Wards asserted appellant had no evidence they knew or

should have known her to be an incompetent or reckless driver.


       To raise a fact issue regarding the Wards’ knowledge of their daughter’s asserted

incompetence or recklessness, appellant relies on evidence they knew of Courtney’s youth

and her lack of experience as a driver on a night-time highway trip like she undertook on

that occasion, and knew that Courtney would violate Texas Transportation Code section

545.424(a) during the fatal return trip to Lubbock.


       Appellant does not contend the Wards knew, or should have known, of any instance

in which Courtney, on any prior occasion, had driven in an unlawful, unsafe or otherwise

improper manner.5 The record contains no evidence she had been issued a traffic citation

or been involved in a previous accident, or that the Wards’ experience riding with their

daughter had revealed incompetence or recklessness. Cf. Pesina v. Hudson, 132 S.W.3d

133 (Tex.App.–Amarillo 2004, no pet.) (parents knew of six driving incidents in previous

two years); Batte v. Hendricks, 137 S.W.3d 790, 791 (Tex.App.–Dallas 2004, pet. denied)

(summary judgment for owner affirmed in absence of evidence she knew entrustee had

driven while intoxicated before); Russell, 949 S.W.2d at 490 (father aware, or should have



       5
          Nor does appellant argue there was evidence of Courtney’s recklessness or
incompetence as a driver of which the Wards were not aware, but should have been. See,
e.g., Russell v. Ramirez, 949 S.W.2d 480, 490 (Tex.App.–Houston [14th Dist.] 1997, no
writ) (father should have known, even if he did not, of son’s six or seven tickets in previous
two years); Bartley v. Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex.App.–Amarillo
1996, writ denied) (under circumstances, rent car company had no duty to “inquire further”
into competency of licensed driver).

                                              5
been, of son’s six or seven tickets in previous two years). Rather, appellant emphasizes

evidence that Courtney had limited experience driving long distances, at night on the open

road, and evidence she had never before driven out-of-town “by herself.”


       Appellant cites the holding in Seinsheimer v. Burkhart, 132 Tex. 336, 122 S.W.2d

1063 (Tex.Comm.App. 1939), that “the condition and experience of a young driver was

some evidence of his incompetence.” Examination of that opinion shows the court’s

conclusion some evidence supported a finding of incompetence was based on more than

youth and inexperience. The opinion does not indicate whether the driver possessed a

license. It recites he “had but a limited experience in driving automobiles; had never driven

a car of the same make[.]” 122 S.W.2d at 1067. The court also had before it the

testimony of the car owner that during their trip from Galveston to Houston, she “didn’t let

him drive long, because I was just afraid,– wasn’t used to him and my daughter said she

couldn’t ride with him driving[.]” Id. Appellant also cites Revisore v. West, 450 S.W.2d 361

(Tex.Civ.App.–Houston [14th Dist.] 1970, no writ.), pointing to language from that opinion

stating an entrustor may be deemed negligent where an entrustee is “for any reason

lacking in judgment or perception.” Id. at 364. Viewed in the light most favorable to

appellant, the evidence here bears little resemblance to that of Seinsheimer or Revisore.

We do not agree that evidence of Courtney’s inexperience permits an inference she lacked

judgment or perception, or was otherwise an incompetent driver.


       Appellant also contends an amended answer raising the issue of Janell’s negligence

“in riding with an inexperienced driver after . . . midnight” is an admission Courtney “lacked



                                              6
the experience necessary to be a competent driver.” It is undisputed Courtney did not

have experience driving a relatively long distance at night and the Wards were aware of

that.   We agree the pleading can be taken as an admission Courtney was an

inexperienced driver, but do not agree it is an admission of her incompetence. As

appellant acknowledges, inexperience alone does not constitute incompetence as a driver.

See Bartley, 919 S.W.2d at 752 (noting “inexperience” is not present in the “elemental

definition” of negligent entrustment).


        We turn to appellant’s contention that a fact issue is raised on the knowledge

element by evidence the Wards knew Courtney would be in violation of Texas

Transportation Code section 545.424(a) on the return trip to Lubbock. Enacted by the

Legislature in 2001, section 545.424(a) contains restrictions on operation of a motor

vehicle by a person under eighteen during the six-month period following issuance of the

new driver’s license.   Tex. Transp. Code Ann. § 545.424(a) (Vernon Supp. 2006).

Appellant cites two of the restrictions as applicable here, section 545.424(a)(1), which

prohibits such drivers from operating a motor vehicle “after midnight and before 5 a.m.

unless operation of the vehicle is necessary for the operator to attend or participate in

employment or a school-related activity or because of a medical emergency”; and section

545.424(a)(2), which prohibits such drivers from carrying more than one passenger under

21 years old who is not a family member. The Wards do not dispute that Courtney was

subject to the restrictions of section 545.424(a) in September 2003.


        Assuming, arguendo, that knowledge Courtney would violate section 545.424(a)(2)

by having two passengers of minor age in the vehicle on her return to Lubbock would be

                                           7
probative of recklessness, we see no summary judgment evidence that the Wards were

made aware of that possibility at the time they gave permission for the trip. As noted, Janell

decided to ride back to Lubbock with Courtney after they arrived in Odessa. Courtney’s

apparent violation of section 545.424(a)(2) on that occasion does not raise a fact issue on

the knowledge element of negligent entrustment.


       The parties apply very different interpretations to the language of section

545.424(a)(1), the driving curfew statute. Appellant argues that because Courtney’s

attendance at the game was not required, she violated the statute and the Wards knew she

would be in violation when returning from the game. The Wards contend Courtney’s

voluntary attendance at the University Interscholastic League-sanctioned football game fell

within the exception for attendance of school-related activities. Summary judgment

evidence showed the Wards expected Courtney to arrive home between midnight and 1

a.m. Disposition of this appeal does not require us to determine whether a fact issue was

raised concerning Courtney’s violation of the driving curfew statute. Even assuming her

return trip violated the statute, and further assuming the violation of the driving curfew

statute would be probative of recklessness, it is evidence the Wards knew of a single

prospective violation of the Transportation Code. Courts have uniformly held individual or

isolated driving violations are not evidence of recklessness or incompetence. See Louis

Thames Chevrolet Co. v. Hathaway, 712 S.W.2d 602, 604 (Tex.App.--Houston [1st Dist.]

1986, no writ) (single ticket not legally sufficient to establish incompetence or

recklessness); Broesche v. Bullock, 427 S.W.2d 89, 93 (Tex.Civ.App.--Houston [14th Dist.]

1968, writ ref’d n.r.e.) (proof of single violation “grossly inadequate to establish


                                              8
incompetency or recklessness”); Mayer v. Johnson, 148 S.W.2d 454, 457 (Tex.Civ.App.--

Amarillo 1941, writ dism’d) (single incident not sufficient to establish driver was

incompetent, reckless or careless).


       Viewing the evidence in the light most favorable to appellant, as we must, we

conclude nonetheless there is no summary judgment evidence the Wards knew or should

have known Courtney was an incompetent or reckless driver, either generally or with

regard to the trip from Odessa to Lubbock. The trial court did not err by granting the Wards

summary judgment on the negligent entrustment claim.


                                    Negligence Per Se


       Appellant’s pleadings alleged the Wards violated Transportation Code section

545.424(a) by allowing Courtney to operate a motor vehicle after midnight and before 5

a.m., and with more than one passenger under the age of 21 who was not a family

member. Those asserted violations of sections 545.424(a)(1) and (2) form the basis for

appellant’s negligence per se claim against the Wards. As appellant’s reply brief puts it,

his “negligence per se claim is based on the Wards’ actions in allowing their daughter to

knowingly violate Texas Transportation Code § 545.424.”


       The elements of a negligence cause of action are a duty, a breach of that duty, and

damages proximately caused by the breach of duty. Doe v. Boys Club of Greater Dallas,

Inc., 907 S.W.2d 472, 477 (Tex. 1995). The doctrine of negligence per se permits a court

to use a penal statute to define the applicable standard of conduct in some circumstances.



                                             9
Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001); Perry v. S.N., 973 S.W.2d 301, 304

(Tex. 1998). When applicable, proof of violation of the statute establishes breach of the

standard of conduct. Carter v. William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex.

1979); Borden, Inc. v. Price, 939 S.W.2d 247, 250 (Tex.App.–Amarillo 1997, writ denied).


       The Wards’ no-evidence and traditional motions for partial summary judgment

presented the contention that violation of section 545.424(a)(1) and (2) could not support

a negligence per se claim against them. We initially note that the Wards contended in the

trial court, and continue to do so here, that appellant’s negligence per se claim based on

section 545.424(a) simply asserted another variation of his negligent entrustment claim,

and cannot exist outside the framework of negligent entrustment. Appellant insists that the

duty recognized in Rodriguez v. Spencer, 902 S.W.2d 37, 42 (Tex.App.–Houston [1st Dist.]

1995, no writ), by which a parent may be “directly liable to a third party when the parent

negligently permits the child to act in a manner likely to cause injury to another,” provides

the basis for a cause of action against the Wards, independent of his negligent entrustment

claim. We need not address this initial disagreement,6 because we agree with the Wards

that section 545.424(a) cannot provide a standard of conduct for parents of a newly-

licensed under-18 driver that makes application of negligence per se appropriate.


       The conduct proscribed by section 545.424(a) is the operation of a motor vehicle

by the newly-licensed under-18 driver under certain circumstances. On its face, the statute




       6
       And we express no opinion on the possible application to the Wards of the quoted
language from Rodriguez, 902 S.W.2d at 42.

                                             10
neither prescribes nor proscribes conduct by the parents of such a driver.7 Undisputed

evidence establishes that the Wards did not violate section 545.424(a) because they were

not driving the vehicle at the time of the accident, and could not violate it because they are

over 18 years of age. Responding on appeal to the Wards’ contention that violation of

section 545.424 was impossible for them, appellant cites Rodriguez and its language

concerning parental duties. But to establish negligence per se, appellant would be

required to prove not simply that the Wards owed a duty under our tort law to Janell

Aboushadid but that the statute provides the required standard of conduct. Perry, 973

S.W.2d at 304-05. The standard for the Wards’ conduct can hardly be provided by a

statute that by its terms is inapplicable to them.


       Among the factors courts consider to determine whether a penal statute can be the

basis for negligence per se is the clarity with which it defines the prohibited or required

conduct. Perry, 973 S.W.2d at 307. Section 545.424 defines no prohibited or required

conduct applicable to the Wards or other parents who, under appellant’s contention, would

be subject to liability. See Perry, 973 S.W.2d at 305 (court must consider whether

imposition of tort liability on “any and every person” violating statute is appropriate). This

factor alone requires the conclusion that appellant could not maintain a negligence per se

action against the Wards based on section 545.424(a). See Perry, 973 S.W.2d at 306

(issue whether statute should form basis of negligence per se not properly resolved by

counting factors); Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 841-42 (Tex.App.–


       7
         Neither appellant’s pleadings nor its response to the Wards’ summary judgment
motion alleged the Wards had violated Transportation Code section 542.302, and the
effect of that statute is not before us.

                                             11
Fort Worth 2006, no pet.) (applying Perry factors). Summary judgment on appellant’s

negligence per se claim was proper.


                                   Gross negligence


      Appellant’s pleadings asserted the Wards were grossly negligent and sought

exemplary damages under chapter 41 of the Civil Practice & Remedies Code. See Tex.

Civ. Prac. & Rem. Code Ann. § 41.003 (Vernon Supp. 2006) (standards for recovery of

exemplary damages).     The Wards’ partial summary judgment motion asserted that

appellant could not recover exemplary damages because he had no viable negligence

cause of action against them. We agree. Tex. Civ. Prac. & Rem. Code Ann. § 41.004;

Juliette Fowler Homes v. Welch Assoc., 793 S.W.2d 660, 667 (Tex. 1990) (recovery of

actual damages prerequisite to award of exemplary damages).


      Appellant’s issues are overruled, and the trial court’s judgment is affirmed.




                                         James T. Campbell
                                             Justice




                                           12
