The El Paso Court of Appeals has reversed a $13 million judgment in favor of the plaintiff on vicarious liability and direct liability claims against a home care provider.
New Mission Home Care, LLC v. Tony Lawrence Read, Individually and as Independent Administrator of the Estate of George Read, Deceased, and Bertha Acosta, Individually and as Independent Administrator of the Estate of Teresa Acosta Read, Deceased (No. 08-23-00355-CV; September 29, 2025) arose from a fatal collision between a passenger vehicle and a train. Defendant was a licensed home care provider to elderly, sick, and disabled individuals. State law expressly forbids a licensee from “direct individual transportation.” New Mission also prohibited direct transportation in its Employee Handbook, which required providers and clients to sign and date its unauthorized tasks list. Debra Lopez, an employee of New Mission, broke this rule by transporting patient George Read and and three others. As they were returning from a shopping trip, they were halted at the train tracks by lowered crossing arms and flashing lights. After noticing a stopped train on her right, Lopez decided to follow other cars that were driving around the railroad crossing arms. Upon easing across the first track to make sure the coast was clear, a second train came down the second track, striking the vehicle and ejecting Mr. Read from the car. The accident was fatal.
The Reads sued Lopez, New Mission, and Union Pacific in March 2020. They asserted various negligence theories, respondeat superior, and gross negligence theories. After an initial dismissal of the case, transfer to another trial court, and Lopez’s nonsuit, a jury found that Lopez was acting within the course and scope of her employment with New Mission, Lopez and New Mission were negligent, Lopez was 52% responsible for Plaintiffs’ injuries, New Mission was 40% responsible, and Union Pacific was 8% responsible. The jury awarded $13 million to the Reads. Union Pacific settled out of court for an undisclosed amount, while New Mission unsuccessfully moved for a new trial. New Mission appealed.
In an opinion by Justice Soto, the court of appeals reversed and rendered a take nothing judgment in favor of New Mission. New Mission challenged the legal and factual sufficiency of the evidence supporting the jury’s finding that Lopez acted in the course and scope of her employment and that New Mission’s negligence was a proximate cause of the accident. New Mission also raised a jury charge error, arguing that the trial court erred by submitting a “narrow” definition to the jury, and including Lopez on the jury form despite the fact that she was non-suited. It further contended that joint and several liability was improperly imposed on New Mission and that the trial court erred by failing to include a credit for the Union Pacific settlement in the judgment.
The court took up the jury charge issue first. New Mission pointed to Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018), which held that “vicarious liability arises only if the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.” Here the charge defined “course and scope” to mean “that the employee is acting in furtherance of the business of her employer.” New Mission argued that omitting the “employee’s general authority” element negated its evidence that (1) Lopez had no authority to transport clients, (2) she and Plaintiff knew it and didn’t tell New Mission about it, (3) New Mission was not aware of employees transporting clients in violation of the law and its policies, (4) that Lopez characterized her action as motivated by personal feelings from the Reads, not by New Mission business, and (5) state law prohibited transporting clients. Additionally, Plaintiffs didn’t argue that New Mission’s pleadings were insufficient to identify and satisfy the Painter standard, only that Lopez repeatedly transported the Reads on various errands. Based on this record, the court ruled that the trial court erred by refusing New Mission’s requested definition of course and scope.
Turning to the legal sufficiency of the evidence supporting the imposition of vicarious liability on New Mission, the court observed that to impose vicarious liability on New Mission, its employee must have acted under general authority and in furtherance of New Mission’s business. Plaintiffs argued that the VA specifically requested or authorized client transportation, but the court determined that the evidence showed otherwise. They argued further that New Mission gave Lopez implied permission to transport the Reads, but again the court found no evidence supporting that contention. As to Plaintiffs’ argument that Lopez believed she had authority because New Mission authorized providers to accompany clients on shopping trips, there was no evidence that she believed that authority extended to transporting them.
The direct liability claims brought against New Mission included negligent hiring, retaining, and supervision. New Mission maintained that any such deficiencies did not proximately cause Lopez’s negligence, i.e. driving around an active crossing arm at a train crossing. The court emphasized that Plaintiffs must establish the specific link between New Mission’s hiring practices (in this case not requiring references), employee training, lack of requirement for an up-to-date driver’s license, and the accident. This connection proved too attenuated in the eyes of the court, which concluded that the Read’s evidence was insufficient to support their direct liability claims. The court added that numerous courts have held that more severe driving infractions than Lopez’s out-of-date driver’s license did not support a finding of proximate cause for driving related incidents in the past (citations omitted). Plaintiffs were likewise unable to prove that Lopez was in some way incompetent or unfit the job based on the relatively minimal nature of New Mission’s hiring and training practices. In any event, Plaintiffs failed to present legally sufficient evidence that those practices resulted in Lopez driving around lowered crossing arms into the path of an oncoming train. The court thus reversed the trial court’s judgment and rendered a take-nothing judgment against Plaintiffs.
TCJL Intern Satchel Williams researched and prepared the first draft of this article.
