holding that the district court properly considered only the appellant’s claims raised in the complaint when granting summary judgment against the appellant (citation omitted)
How later courts described this case
- holding that the district court properly considered only the appellant’s claims raised in the complaint when granting summary judgment against the appellant (citation omitted)
- requiring clear and convincing evidence that the corporate defendant itself committed gross negligence
- collecting cases that held that reports printed directly from government websites satisfy the public records exception to the hearsay rule
- requiring the plaintiff to satisfy a two-step process of showing the worker was an employee and was acting in the course and scope of his employment to prove an employer’s vicarious liability
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WACO DIVISION
TYLER BROWN, §
§
Plaintiff, §
§
v. § CASE NO. 6:23-CV-00474-ADA-DTG
§
NIKOLAY MUZYKA, et al, §
§
Defendants. §
REPORT AND RECOMMENDATION TO GRANT DEFENDANTS’
MOTION FOR PARTIAL SUMMARY JUDGMENT (DKT. NO. 35)
TO: THE HONORABLE ALAN D ALBRIGHT,
UNITED STATES DISTRICT JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. §
636(b)(1)(C), Fed. R. Civ. P. 72(b), and Rules 1(d) and 4(b) of Appendix C of the Local Rules
of the United States District Court for the Western District of Texas, Local Rules for the
Assignment of Duties to United States Magistrate Judges. Before the Court is the defendants’,
Nikolay Muzyka, Aleksei Dulepin, and Amload LLC’s, motion for partial summary judgment
(Dkt. No. 35). The motion has been fully briefed,1 and the Court finds that a hearing is
unnecessary. After carefully considering the briefs, arguments, and the applicable law, the Court
RECOMMENDS that the defendants’ motion for partial summary judgment be GRANTED.
1 Both parties are reminded that Local Rule CV-10(a), titled “Form of Pleadings,” requires
footnotes to be 12-point or larger font and double-spaced unless they are more than two lines
long.
I. BACKGROUND
This case involves a rear-end collision between the plaintiff’s sedan and a sprinter van
driven by one of the defendants. Dkt. No. 1-1 at 8. On July 29, 2021, Defendant Nikolay Muzyka
was driving the sprinter van in the far right lane of Interstate 35 when he saw lights from
emergency vehicles ahead. Dkt. No. 35-1 at 3, 4 (Accident Report); Dkt. No. 67-10 at 3, 4
(same). Defendant Muzyka began to slow down and moved over two lanes into the far-left lane.
Dkt. No. 67-10 at 3, 4. Plaintiff Tyler Brown, who was driving in the far-left lane, collided with
the sprinter van causing both cars to turn facing oncoming traffic. Id.
At the time of the accident, Defendant Aleksei Dulepin owned the sprinter van and leased
it to Defendant Amload LLC. Dkt. No. 35-5 (Vehicle Leasing Agreement). It is undisputed that
Defendant Muzyka was operating the sprinter van in the course and scope of his employment
with Amload at the time of the accident. See Dkt. No. 35 at 3–4 (stipulating to course and scope).
The plaintiff sued Defendant Muzyka for negligence and negligence per se. Dkt. No. 1-1. The
plaintiff also asserts claims of negligent entrustment, hiring, and retention, vicarious liability, and
gross negligence against Defendants Dulepin and Amload. Id.
II. ANALYSIS
The defendants’ motion is governed by Rule 56 of the Federal Rules of Civil Procedure.
That rule requires a court to grant summary judgment when “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.” Fed. R. Civ. P. 56(a); see also Meadaa v. K.A.P. Enters., LLC, 756 F.3d 875, 880 (5th Cir.
2014). Substantive law determines which facts are material. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the non-moving party.” Id. The defendants, as the movants, bear the initial
burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the defendants meet their burden, the plaintiff must come forward
with specific facts that establish a genuine issue for trial. Distribuidora Mari Jose, S.A. de C.V. v.
Transmaritime, Inc., 738 F.3d 703, 706 (5th Cir. 2013) (quoting Allen v. Rapides Par. Sch. Bd.,
204 F.3d 619, 621 (5th Cir. 2000)). “Where the record taken as a whole could not lead a rational
trier of fact to find for the non-moving party, there is no genuine issue for trial.” Hillman v.
Loga, 697 F.3d 299, 302 (5th Cir. 2012).
A. The Court should grant summary judgment for Defendant Dulepin on all claims.
Defendant Dulepin requests that the Court grant summary judgment in his favor for two
reasons. Dkt. No. 35 at 5. First, he argues that the plaintiff’s vicarious liability, gross negligence,
and negligent hiring and retention claims fail because he never hired or employed Defendant
Muzyka. Id. Second, Defendant Dulepin argues that the plaintiff’s negligent entrustment claim
against him fails because the sprinter van was leased to Defendant Amload when the accident
occurred. Id. The Court agrees.
i. Defendant Dulepin cannot be vicariously liable.
The Court finds as a matter of law that Defendant Dulepin cannot be vicariously liable
for Defendant Muzyka’s negligence. To survive the defendants’ motion for summary judgment
on her vicarious liability claim against Defendant Dulepin, the plaintiff bears the burden of
proving that Defendant Muzyka was (1) an employee of Defendant Dulepin’s and (2) acting in
the course and scope of this employment at the time of the accident. See Painter v. Amerimex
Drilling I, Ltd., 561 S.W.3d 125, 138 (Tex. 2018) (requiring the plaintiff to satisfy a two-step
process of showing the worker was an employee and was acting in the course and scope of his
employment to prove an employer’s vicarious liability). The defendants contend that Defendant
Dulepin cannot be vicariously liable for Defendant Muzyka’s negligence because Defendant
Muzyka was not employed by Defendant Dulepin. Dkt. No. 35 at 5–6. The plaintiff does not
contest that Defendant Muzyka was employed by Defendant Amload, not Defendant Dulepin. It
is therefore undisputed that Defendant Muzyka was not an employee of Defendant Dulepin at the
time of the accident.
Because there is no evidence that Defendant Muzyka was employed by Defendant
Dulepin when that accident occurred, there is no genuine dispute as to a material element of the
plaintiff’s vicarious liability claim against Defendant Dulepin. The undersigned therefore
RECOMMENDS that the Court grant summary judgment for Defendant Dulepin on this claim.
ii. Defendant Dulepin cannot be grossly negligent.
The plaintiff asserts a gross negligence claim against Defendant Dulepin because he
“hired [Defendant] Muzyka despite his extensive driving history” and “had actual subjective
awareness that Defendant Muzyka had been involved in multiple collisions prior to the collision
at issue in this suit.” Dkt. No. 1-1 at 7. Because the plaintiff’s gross negligence claim is based on
a theory of negligent hiring or retention and it is uncontested that Defendant Dulepin did not hire
or employ Defendant Muzyka, the plaintiff’s gross negligence claim fails as a matter of law. See
Phillips v. Super Servs. Holdings, LLC, 189 F. Supp. 3d 640, 648 (explaining that an employer is
liable for negligent hiring, retention, or supervision if it hires an incompetent employee, when
the employer knows or should have known the employee was incompetent). The undersigned
therefore RECOMMENDS that the Court grant summary judgment on the plaintiff’s gross
negligence claim in favor of Defendant Dulepin.
iii. Defendant Dulepin cannot be liable for direct negligence.
Defendant Dulepin cannot be liable for negligent entrustment, hiring, or retention
because there is no genuine dispute for trial on these direct negligence claims. As explained
above, the plaintiff cannot maintain her negligent hiring and retention claims against Defendant
Dulepin without evidence that he hired Defendant Muzyka. The plaintiff’s negligent entrustment
claim likewise fails because Defendant Dulepin did not entrust the sprinter van to Defendant
Muzyka. Dkt. Nos. 35 at 10 & 35-5. Negligent entrustment requires the entrustment of a vehicle
by the owner to an unlicensed, incompetent, or reckless driver. Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 758 (Tex. 2007). At the time of the accident, Defendant Dulepin leased
the sprinter van to Defendant Amload. Dkt. No. 35-5 at 1–2 (defining the term of the lease as
twenty-four months beginning on January 1, 2021). Under Texas law, “lessees of vehicles
generally assume complete responsibility for the operation of the leased vehicles for the duration
of the lease.” McDorman v. Texas-Cola Leasing Co. LP, LLLP, 288 F. Supp. 2d 796, 802 (N.D.
Tex. 2003) (citations omitted).
The plaintiff does not dispute that Defendant Dulepin did not entrust the van to
Defendant Muzyka, but instead focuses on Defendant Amload. The plaintiff attempts to argue
that Defendant Dulepin negligently entrusted his sprinter van to Defendant Amload despite
knowing that Amload violated the Federal Motor Carrier Safety Act. Dkt. No. 67 at 7–9. This
argument is unsupported by the plaintiff’s pleadings. See Dkt. No. 1-1 at 11 (alleging that
Defendant Dulepin entrusted the sprinter van to Defendant Muzyka despite knowing Defendant
Muzyka was unfit to operate the vehicle). The Court therefore will not address this argument.
See Cutrera v. Bd. of Sup’rs of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005) (holding that
the district court properly considered only the appellant’s claims raised in the complaint when
granting summary judgment against the appellant (citation omitted)). The plaintiff further asserts
without support that the lease may not be valid. Dkt. No. 67 at 6. To survive the motion for
summary judgment, the plaintiff must offer evidence establishing beyond mere speculation that
there is genuine dispute that Defendant Dulepin entrusted the sprinter van to Defendant Muzyka.
Because the plaintiff has not done so, the undersigned RECOMMENDS that the Court grant
summary judgment for Defendant Dulepin as to all of the plaintiff’s direct negligence claims—
negligent hiring, retention, and entrustment.
B. The Court should grant summary judgment for Defendant Amload on the plaintiff’s
gross negligence and direct negligence claims.
The plaintiff similarly asserted direct negligence claims against Defendant Amload for
negligent hiring, retention, and entrustment. Dkt. No. 1-1 at 9. The plaintiff also asserted gross
negligence against Defendant Amload for hiring Defendant Muzyka “despite his extensive
driving history” and for continuing to employ him as a driver despite Amload’s subjective
awareness that doing so posed an extreme risk to the safety of other motorists and pedestrians.
Id. at 11–12.
i. Defendant Amload cannot be held liable for gross negligence.
To be grossly negligent, the plaintiff must show Defendant Amload authorized or ratified
an agent’s gross negligence, committed gross negligence through the actions of a vice principal,
or was grossly negligent in hiring an unfit agent. See Mobil Oil Corp. v. Ellender, 968 S.W.2d
917, 921 (Tex. 1998) (requiring clear and convincing evidence that the corporate defendant itself
committed gross negligence).
There is no evidence that Defendant Amload authorized an agent’s gross negligence. The
plaintiff does not allege gross negligence against Defendant Muzyka. There is also no evidence
that Defendant Muzyka was a vice principal for Defendant Amload. See id. at 922. (explaining
that corporate officers, persons with authority to employ, direct, and discharge other employees,
those who perform the corporation’s nondelegable duties, or those responsible for management
of the corporation are vice principals). Even assuming Defendant Dulepin was a vice principal,
for the reasons explained above Defendant Dulepin did not commit gross negligence. This leaves
only one basis for the plaintiff's gross-negligence claim—that Defendant Amload was grossly
negligent in hiring an unfit agent. But the defendants argue, and the Court agrees, that there is no
evidence that Defendant Muzyka was unfit or that Defendant Amload was negligent in hiring
him. See Dkt. No. 35 at 12.
Before this accident, Defendant Muzyka was only involved in two car accidents. The first
was a single-vehicle property damage incident caused by bad weather conditions, and it occurred
before Defendant Muzyka was hired by Defendant Amload. Dkt. No. 35-4 at 6 (Exhibit D at
36:5–25). The second accident occurred while Defendant Muzyka was employed by Defendant
Amload. The only summary judgment evidence about this second accident indicates that the
other driver was under the influence and was operating his vehicle in an unsafe manner causing
Defendant Muzyka to collide with him. Id. at 6–7 (Exhibit D at 32:6–34:2). Additionally,
Defendant Muzyka had a valid driver’s license and a single speeding ticket when he was hired by
Defendant Amload. See Dkt. No. 35-3 at 2-3 (Exhibit C – New Jersey Driver License). This
evidence is not enough to create a genuine dispute that Defendant Muzyka was an unfit driver.
Rather than offering evidence that Defendant Muzyka was unfit, the plaintiff instead
attempts to argue that Defendant Amload was grossly negligent in violating the Federal Motor
Carrier Safety Act. Dkt. No. 67 at 11–12. The Court is not persuaded by the plaintiff’s argument.
The plaintiff fails to demonstrate the Federal Motor Carrier Safety Act applies here. Compare
Dkt. No. 67-4 (showing the sprinter van had a gross vehicle weight of 8550 pounds) with 49
C.F.R. § 390.5 (defining a commercial motor vehicle as having a gross vehicle weight of 10,001
or more pounds). For these reasons, the plaintiff’s gross negligence and negligent hiring and
retention claims fail, and the undersigned RECOMMENDS that the Court grant summary
judgment for Defendant Amload.
ii. Defendant Amload’s direct negligence, if any, is irrelevant under the Court’s
previous rulings.
Unlike the plaintiff’s gross negligence and negligent hiring and retention claims, the
defendants do not attack the factual sufficiency of the plaintiff’s negligent entrustment claim
against Defendant Amload. Rather, the defendants attack this claim as unsustainable as a matter
of law. The defendants argue that the direct liability claims against Defendant Amload are
improper under the respondeat superior admission rule. Dkt. No. 35 at 13.
Some courts applying Texas law, including this Court, have held that where an employer
assumes liability for the employee’s alleged negligence, any direct negligence by the employer is
irrelevant. See, e.g., Fraizer v. U.S. Xpress, Inc., No. 6-19-CV-00557-ADA-JCM, 2020 WL
4353175, at *3 (W.D. Tex. July 29, 2020) (Albright, J.) (granting summary judgment on a claim
of direct liability against employer where the employer stipulated to liability for the employee’s
negligence). “Where only ordinary negligence is alleged, the case law supports [the defendants’]
contention that negligent hiring or entrustment and respondeat superior are mutually exclusive
modes of recovery.” Rosell v. Cent. West Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex. App.—
Dallas 2002, no pet.) (citation omitted). While the plaintiff alleges gross negligence against
Defendant Amload, the undersigned finds that the gross negligence claim fails as a matter of law
leaving the vicarious liability and ordinary negligence claims against Defendant Amload. Other
courts in this district have addressed the defendant’s argument, including the lack of a Texas
Supreme Court case on point and the uncertainty noted by the Texas Pattern Jury Charge 10.12
comments. Medina v. Cont. Freighters, Inc., No. 5:21-CV-1224-DAE, 2023 WL 9503469, at *3-
4 (W.D. Tex. Dec. 7, 2023) (discussing the respondeat superior admission rule and finding its
application appropriate). In light of this Court’s rulings in Fraizer and Medina, however, the
undersigned RECOMMENDS granting summary judgment for Defendant Amload on the
plaintiff’s direct negligence claims.
C. The Court should grant summary judgment for Defendant Muzyka on the plaintiff’s
negligence per se claims.
Violations of Texas Transportation Code Sections 545.060 and 545.062(A) cannot
support negligence per se claims against Defendant Muzyka. When a statute includes an
ordinary-prudent-person standard, “negligence per se does not apply because the statute does not
establish a specific standard of conduct different from the common-law standard of ordinary
care.” Salas v. United States, 667 F. Supp. 3d 380, 387 (W.D. Tex. 2023) (citing Supreme Beef
Packers, Inc. v. Maddox, 67 S.W.3d 453, 456 (Tex. App.—Texarkana 2002, pet. denied)).
The plaintiff alleges that Defendant Muzyka violated Texas Transportation Code Sections
545.060 and 545.062(A). Dkt. No. 1-1 at 10. Section 545.060 of the Texas Transportation Code
requires that “(a) an operator on a roadway divided into two or more clearly marked lanes for
traffic: (1) shall drive as nearly as practical entirely within a single lane; and (2) may not move
from the lane unless that movement can be made safely.” Tex. Transp. Code Ann. § 545.060.
This statute charges a person with the duty to exercise reasonable care to drive within a single
lane. The statute does not establish a specific standard of conduct different from the common-
law standard of ordinary care. See State v. Alvarez, No. 13-14-00061-CR, 2015 WL 4593832, at
*4 (Tex. App.—Corpus Christi July 30, 2015, no pet.) (finding that swerving and failing to drive
in a single lane is not a per se violation of any law or evidence that the driver was driving
unsafely); see also Aviles v. State, 23 S.W.3d 74, 77 (Tex. App.—Houston [14th Dist.] May 18,
2000, no pet.) (finding that a multiple lane change in a single maneuver is not a per se violation
of any law citing § 545.060(a))). Similarly, “§ 545.062 incorporate[s] an ordinary negligence
standard and cannot be actionable under a negligence per se theory.” Morales v. Manider Singh,
No. 23-CV-00043-DC-DF, 2025 WL 88853, at *5 (W.D. Tex. Jan. 2, 2025), report and
recommendation adopted, No. 23-CV-00043-DC-DF, 23-CV-00043-DC (W.D. Tex. Jan. 14,
2025).
The plaintiff acknowledges that these sections of the Transportation Code are not
actionable under a negligence per se theory. The plaintiff argues instead that the defendants’
argument is moot if the Court grants the plaintiff’s motion for leave to file her first amended
complaint asserting violations of the Federal Motor Carrier Safety Act. Dkt. No. 67 at 18; see
also Dkt. No., 46-1 at 6–7 (Proposed First Am. Compl.). This argument is unpersuasive for two
reasons. First, for the reasons explained in the Court’s order, the plaintiff’s motion for leave was
denied. Dkt. No. 69 (Order Denying Leave to File First Am. Compl.). Second, the plaintiff fails
to demonstrate that the Federal Motor Carrier Safety Act applies. Compare Dkt. No. 67-4
(showing the sprinter van had a gross vehicle weight of 8550 pounds) with 49 C.F.R. § 390.5
(defining a commercial motor vehicle as having a gross vehicle weight of 10,001 or more
pounds). The undersigned therefore RECOMMENDS that the Court grant summary judgment
for Defendant Muzyka on the plaintiff’s negligence per se claims.
D. The Court sustains-in-part the defendants’ objections to the plaintiff’s summary
judgment evidence.
Finally, the Court SUSTAINS-IN-PART and OVERRULES-IN-PART the defendants’
objections to the plaintiff’s summary judgment evidence. The defendants object to the plaintiff’s
Exhibits F, G, I, L, M, and N (Dkt. Nos. 67-6, 67-7, 67-9, 67-12, 67-13, & 67-14, respectively)
as incompetent summary judgment evidence because these exhibits contain inadmissible hearsay
and have not been authenticated. Dkt. No. 70 at 1–2. The defendants request that the Court strike
these Exhibits from the summary judgment record. Id. The plaintiff did not respond to the
defendants’ objections. The Court therefore SUSTAINS the defendants’ objections to Exhibits
G, I, L, and N (Dkt. Nos. 67-7, 67-9, 67-12, & 67-14). See Garcia v. Roy’s Trucks & Equip.,
Inc., No. 3:17-cv-0950-C, 2018 WL 6338364, at *3 (N.D. Tex. Aug. 24, 2018) (sustaining
objections to summary judgment evidence where the plaintiff offered no response as to why the
evidence should not be considered hearsay, despite noting that the business records exception to
the hearsay rule likely applied).
The Court, however, OVERRULES the defendants’ objections to Exhibits F and M
(Dkt. Nos. 67-6 & 67-13). Exhibit F is a printout of an entity search for Amload LLC from
“sunbiz.org”—an official government website. Exhibit M is a printout of search results for
Amload LLC from the United States Department of Transportation. Printouts from government
websites are self-authenticating under Rule 902(5) of the Federal Rules of Evidence and satisfy
the public records exception to hearsay under Rule 803(8). Brown v. JNH Invs., Inc., No. 4:16-
CV-675, 2017 WL 3205716, at *2 (E.D. Tex. July 7, 2017), report and recommendation
adopted, No. 4:16-CV-675, 2017 WL 3193513 (E.D. Tex. July 27, 2017) (considering a printout
of the Texas Secretary of State website as competent summary judgment evidence because
government websites are self-authenticating under Rule 902(5)); Riverkeeper v. Taylor Energy
Co., LLC, 113 F. Supp. 3d 870, 881 n.52 (E.D. La. 2015) (collecting cases that held that reports
printed directly from government websites satisfy the public records exception to the hearsay
rule). The Court will therefore consider Exhibits F and M as part of the summary judgment
record.
III. CONCLUSION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate
Judge to the United States District Judge that the defendants’ motion for summary judgment
(Dkt. No. 35) be GRANTED and judgment be entered against the plaintiff on the following
claims:
1. Vicarious liability against Defendant Dulepin;
2. Gross negligence against Defendant Dulepin;
3. Direct negligence against Defendant Dulepin;
4. Gross negligence against Defendant Amload;
5. Direct negligence against Defendant Amload; and
6. Negligence per se against Defendant Muzyka.
IV. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing
objections must specifically identify those findings or recommendations to which they object.
The District Court need not consider frivolous, conclusive, or general objections. See Battle v.
U.S. Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the
Report shall bar that party from de novo review by the District Court of the proposed findings
and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140,
150-53 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415 (Sth Cir. 1996) (en banc).
Except upon grounds of plain error, failing to object shall further bar the party from appellate
review of unobjected-to proposed factual findings and legal conclusions accepted by the District
Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1415.
SIGNED this 26th day of June, 2025.
UNITED STATES MAGISTRATE JUDGE
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