In Fuller v. Biggs, No. 3:20-CV-2146-G, 2021 U.S. Dist. LEXIS 64672, at *14-17 (N.D. Tex. Apr. 2, 2021), Judge Fish allowed a personal injury claim to proceed against the lessor of a vehicle.  The facts were as follows:

This suit arises out of a motor vehicle collision involving the plaintiffs and Scott Biggs (“Biggs”).1Link to the text of the note On September 5, 2019, the plaintiffs were traveling northbound on North Central Expressway along with Biggs, who was operating an 18-wheeler. Plaintiffs’ Original Petition and Discovery Requests to Defendants (“Original Petition”) (docket entry 1-10) at 3.  The plaintiffs assert that “Biggs failed to slow and/or stop and lost control of his vehicle, colliding hard with the back and side of” Fuller’s vehicle, which then “hit the side of the expressway.” Id. Biggs then allegedly “continued northbound and collided with the side of” Davis’ vehicle. Id. The plaintiffs allege that they “were injured and continue to suffer injuries and damages from this incident.” Id.  PACCAR owned the “tractor” that was operated by Biggs at the time of the alleged accident.3Link to the text of the note Motion to Dismiss ¶ 13. However, PACCAR maintains that it had no relationship with Biggs and did not lease the tractor to him. Rather, PACCAR asserts, it leased the tractor to DKL Transportation, LLC (“DKL”) which, in turn, leased the tractor to Biggs. Id. It appears that DKL owned the trailer that Biggs was pulling at the time of the accident. Brief in Support of Plaintiffs’ Response to Defendant PACCAR Leasing Company, a Division of PACCAR Financial Corp.’s Motion to Dismiss or Motion for Summary Judgment (“Response”) (docket entry 37) at 15.

The District Court allowed the claim to proceed.

The Graves Amendment does not preempt the plaintiffs’ claims for two reasons. First, neither of the plaintiffs’ negligence claims are predicated on a theory of indirect, vicarious liability. Instead, both the negligent entrustment and negligent hiring claims are “direct” theories of liability. Second, even if one or the other negligence claim is indeed a form of vicarious liability, such a claim is not preempted by the Graves Amendment because subsection (2) of the statute is not satisfied.  It is settled law that negligent hiring is a “direct” theory of liability. Texas state courts have routinely held that negligent hiring is not a form of, or predicated on, a theory of vicarious liability. See, e.g., Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 496 (Tex. App. — Ft. Worth 2002, no pet.) (“A claim of negligent hiring, supervision, or retention [*15]  is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred. The cause of action is based on an employer’s direct negligence instead of the employer’s vicarious liability for the torts of its employees.”) (citations omitted); Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 100-01 (Tex. App. — Houston (14th Dist.) 2013, pet. denied). As have courts in this district. See Campos v. Lone Star Wheel Components, Inc., 2015 WL 11120533 at *2-*3 (N.D. Tex. May 29, 2015) (Godbey, J.). This is because liability for negligent hiring is predicated on independent conduct of the employer, rather than solely by virtue of being an employer. Bedford v. Moore, 166 S.W.3d 454, 462 (Tex. App. — Ft. Worth 2005, no pet.) (“Under both theories [of negligent hiring and negligent entrustment], neither are pure vicarious liability situations because liability stems from distinct wrongful conduct. In order to impose liability under both situations, the fact finder must conclude that a preceding independent action occurred that caused the plaintiff harm . . . .”). State and federal courts treat claims of negligent entrustment in largely the same manner. See Green v. Texas Electrical Wholesalers, Inc., 651 S.W.2d 4, 6-7 (Tex. App. — Houston (1st Dist.) 1982, writ dism’d by agrt.); O’Donnell v. Diaz, 2019 WL 1115715, No. 3:17-CV-1911 (N.D. Tex. Mar. 11, 2019) at *2 (Scholer, J.) (assuming without deciding that “the Graves Amendment does not preempt a negligent entrustment claim asserted directly against the lessor”). However, there appears to be some disagreement among Texas courts as to whether negligent entrustment is a form of vicarious liability. See Atlantic Industrial Inc. v. Blair, 457 S.W.3d 511, 517 (Tex. App. — El Paso 2014), reversed on other grounds, 482 S.W.3d 57 (Tex. 2016).  Even if negligent entrustment is viewed as a form of vicarious liability, however, preemption under the Graves Amendment is still inapplicable. As considered above, the Graves Amendment only preempts vicarious liability claims if both subsections (1) and (2) are satisfied. Here, even if it is assumed that PACCAR “is engaged in the trade or business of renting or leasing motor vehicles” within the meaning of subsection (1), the plaintiffs allege negligence on part of PACCAR in the form of negligently hiring Biggs. Thus, the condition outlined in subsection (2) is not satisfied, leaving preemption as described in section(a) inapplicable. Accordingly the Graves Amendment preempts neither the negligent hiring nor negligent entrustment claims.  PACCAR’s motion to dismiss does not speak to the nature of the claims brought by the plaintiffs. Rather, PACCAR’s arguments and evidence challenge only the existence of an employment relationship between PACCAR and Biggs. See Motion to Dismiss ¶ 13 (“Plaintiffs’ alleged negligence claims against PACCAR Leasing fail because PACCAR Leasing was not Defendant Biggs’ employer.”). Although this may or may not be an important issue in ultimately resolving the case, the fact of an employment relationship is in no way determinative of whether the plaintiffs’ claims are predicated on a theory of vicarious liability as required by section (a) of the Graves Amendment. Accordingly, because the sole basis for PACCAR’s motion to dismiss is inapplicable, the court declines to convert the motion to dismiss into a motion for summary judgment under Rule 12(d). See Fed. Prac. & Proc. Civ. § 1366 (3d ed.) (“As the language of [Rule 12(d)] suggests, federal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.”); Richardson v. U.S. Bank National Association, 2016 U.S. Dist. LEXIS 139502, 2016 WL 5871327, No. 3:16-CV-2434-N (N.D. Tex. Oct. 6, 2016) at *2 (Horan, M.J.), report adopted, 2016 U.S. Dist. LEXIS 139492, 2016 WL 5871328 (N.D. Tex. Oct. 7, 2016).