Cates v. Creamer, 03-10404.

• Decision Date: 28 November 2005
• Docket Number: No. 03-10404.,03-10404.
• Citation: 431 F.3d 456
• Parties: Priscilla S. CATES, Individually and as Guardian of the Person and Estate of Bobby Ray Cates, an Incapacitated Person, Plaintiff-Appellant-Cross-Appellee, v. Matthew Scott CREAMER, Defendant-Appellee-Cross-Appellant, Lamae Creamer; Hertz Corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

431 F.3d 456

Priscilla S. CATES, Individually and as Guardian of the Person and Estate of Bobby Ray Cates, an Incapacitated Person, Plaintiff-Appellant-Cross-Appellee, v. Matthew Scott CREAMER, Defendant-Appellee-Cross-Appellant, Lamae Creamer; Hertz Corporation, Defendants-Appellees.

No. 03-10404.

United States Court of Appeals, Fifth Circuit.

November 28, 2005.

COPYRIGHT MATERIAL OMITTED

Charles William Fillmore (argued), The Fillmore Law Firm, Fort Worth, TX, Stephen Morris Briley, Banner, Briley & White, Wichita Falls, TX, for Cates.

Charles William Oldham (argued), Meredith Lea Kennedy, Oldham, Hanson & Florendine, Wichitia Falls, TX, for the Creamers.

Blazena Psurny (argued), Thomas William Long, Tribble & Sanders, Houston, TX, for Hertz Corp.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, JONES and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The lease for the Hertz rental car was executed in Florida. The wreck and Bobby Cates's injuries occurred in Texas. The defendant driver, Matthew Scott Creamer, momentarily went to sleep while driving. Mr. Cates's car had stalled on the side of the highway when Creamer hit it, severely injuring Bobby Cates. The first jury found no negligence and returned its verdict for the defendant, Creamer. The district court granted a new trial. The second jury found Creamer 70% at fault for the accident and awarded damages to the plaintiff. The court, however, applied Texas law and exonerated Hertz from liability. Cates hopes to collect the award from Hertz based on the Florida law relating to vicarious liability. Creamer hopes to reinstate the first jury's verdict, which means we have to decide whether Creamer's falling asleep at the wheel was fault-free. If we uphold the grant of a new trial and the verdict of the second jury, then we must decide whether Texas or Florida law applies to determine Hertz's vicarious liability. If Texas law applies, Hertz prevails in this appeal. If Florida law applies, Cates prevails.

Ultimately, we uphold the district court's grant of a new trial to Cates and, consequently, the verdict of the second trial. We further hold that Florida law applies to the vicarious liability issue and remand the case to the district court for further proceedings applying Florida law.

I

A

On June 29, 1998, Florida residents Matthew and Lamae Creamer rented a mini-van from Hertz Corporation ("Hertz") in Florida.¹ They planned to travel from Panama City, Florida to Spearman, Texas for a family reunion. They apparently told the Hertz agent that they planned to make the 24-hour trip without stopping for the night by alternating drivers. The Creamers signed a rental agreement that stated: "This agreement is solely for the purpose of creating a bailment that allows You to use the car as permitted by this agreement." Under the agreement, the Creamers could drive the minivan anywhere in the United States and Canada, but they were obligated to return it to Florida. The agreement referenced Florida's financial responsibility and "no fault" personal injury laws but did not contain a choice-of-laws provision.

The Creamers began driving at around noon on June 29. Matthew Creamer ("Creamer") drove approximately eight hours from Panama City to New Orleans, Louisiana, at which time Mrs. Creamer began to drive. She drove through the night into Texas while Creamer slept in the car. He awoke near daybreak to discover that the car was pulled over to the side of the road and that Mrs. Creamer was asleep. He then resumed driving and set the cruise control to 70 miles per hour, the highway's speed limit. Creamer fell asleep at the wheel and awoke as he hit Bobby Ray Cates's ("Mr. Cates") parked car. Tragically, Mr. Cates was standing in front of the front passenger door and the impact of the collision projected him several feet into the roadway.

As a result of the severe head injuries he sustained, Mr. Cates is unable to work and is almost completely incapacitated. Mr. Cates's medical expenses exceed $200,000. He resides at a long-term care facility. Priscilla Cates ("Cates") is his legal guardian.

B

Cates filed a diversity suit in the Northern District of Texas against Creamer for negligent operation of a motor vehicle under Texas law, seeking compensation for medical expenses and lost wages. She also sued Hertz under Florida's "dangerous instrumentality doctrine," which imposes vicarious liability on the owner/lessor of a vehicle who entrusts it to a lessee who operates it negligently, causing damages. Hertz moved for summary judgment, contending that Texas law, not Florida law, controls the vicarious liability issue. Texas does not recognize the dangerous instrumentality doctrine; instead, it has adopted the doctrine of negligent entrustment, which provides that for Cates to make Hertz vicariously liable she 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, (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 district court granted Hertz's motion and dismissed Cates's suit against Hertz after finding that Cates could not make a prima facie case of negligent entrustment against Hertz under Texas law. It subsequently denied Cates's motion to reconsider its summary judgment order.

The first trial, with Creamer as the sole defendant, began on July 9, 2002. Creamer denied that he was liable and argued that Cates was contributorily negligent. The jury returned a verdict in which it found that Creamer was not negligent. The district court, however, granted Cates's motion for new trial. The second jury returned a verdict in favor of Cates, finding that Creamer was 70% negligent and Mr. Cates was 30% negligent. The jury assessed actual damages of $3,080,000.00. The district court entered judgment of $2,156,000 plus prejudgment interest of $851,782.47.

This appeal and cross appeal present two issues. First, Cates appeals the summary judgment dismissing Hertz, contending that Florida law, not Texas law, controls the issue of vicarious liability. Creamer cross-appeals the grant of Cates's motion for new trial. He urges that the district court abused its discretion in granting the motion for new trial because the first verdict was not against the great weight of the evidence. Creamer requests that we reinstate the first verdict. We will address this issue first.

II

We review a district court's grant of a motion for new trial for abuse of discretion. Gov't Fin. Servs. One Ltd. Partnership v. Peyton Place, Inc., 62 F.3d 767, 774 (5th Cir.1995). Where a motion for a new trial is granted, we scrutinize that decision more closely. Scott v. Monsanto Co., 868 F.2d 786, 789 (5th Cir.1989) (noting that when a motion for new trial is granted "the broad discretion allowed to the trial court is tempered by the deference due to a jury[]"). We review a grant of summary judgment de novo, applying the same standard as the district court. U.E. Texas One-Barrington, Ltd. v. Gen. Star Indem. Co., 332 F.3d 274, 276 (5th Cir.2003). Finally, we review a district court's conflict of laws determination de novo. Spence v. Glock, 227 F.3d 308, 311 (5th Cir.2000).

III

A

A district court can grant a motion for new trial if the first trial was unfair or if the jury verdict was against the great weight of the evidence. Monsanto, 868 F.2d at 789. Several factors guide us in the review of a district court's order granting a new trial: We consider the simplicity of the issues, "pernicious occurrences" at trial, and the extent to which the evidence is in dispute. Id. (quoting Smith v. Transworld Drilling Co., 773 F.2d 610, 613 (5th Cir.1985)). If we determine that one or more of the above factors supports the district judge, we generally affirm the grant of a new trial. Shows v. Jamison Bedding, Inc., 671 F.2d 927, 931 (5th Cir.1982). However, even if we find that all three of these factors weigh against the grant of a new trial, we may still apply an overriding consideration and affirm the district court's order of a new trial by determining "independently[] that the jury verdict was against the great weight of the evidence." Id.

We will assume that each of the three factors tilts against the grant of a new trial here. The question thus becomes whether the fourth consideration, standing alone, supports the grant of a new trial. See Shows, 671 F.2d at 931. We have frequently affirmed district court grants of motions for new trials on evidentiary grounds alone. See, e.g., Shows; United States v. Horton, 622 F.2d 144 (5th Cir.1980); Bazile v. Bisso Marine Co., Inc., 606 F.2d 101 (5th Cir.1979); Massey v. Gulf Oil Corp., 508 F.2d 92 (5th Cir.1975); Weyerhaeuser v. Bucon Construction Co., 430 F.2d 420 (5th Cir.1970).

Creamer argues that he presented sufficient evidence for the jury to find in his favor. He maintains that falling asleep at the wheel creates only a rebuttable inference of negligence. Creamer further argues that he successfully rebutted that inference by submitting evidence that Mr. Cates was drunk at the time of the accident, that Mr. Cates did not turn on his hazard lights after pulling over, that Mr. Cates's car may not have been entirely off the road,² that Creamer had no reason to anticipate that he would fall asleep at the wheel because he was well-rested when he began driving that morning, and that Creamer had nodded off only momentarily.

Cates counters that Creamer did not present any evidence that justified or excused his falling asleep at the wheel and thus did not rebut the inference of negligence. She further argues that any evidence tending to show Mr. Cates's negligence goes only to comparative negligence and does not relieve Creamer of...