Justice Rosa Lopez Theofanis
Over a vigorous dissent, the Austin Court of Appeals has reversed a trial court order granting summary judgment and severing Plaintiff’s vicarious liability claim against a truck driver’s employer.
Sarah Cook v. Texas Highway Walls, LLC (No. 03-22-00736-CV; February 16, 2024) arose from a rear-end collision that occurred on Capitol of Texas Highway in Travis County. Defendant’s employee collided with the rear of another vehicle when he apparently became distracted by items in the front seat and failed to recognize traffic slowing for a red light. Plaintiff sued the employee and Defendant, alleging negligence and gross negligence. Defendant filed a motion for summary judgment and to sever, which the trial court granted. Plaintiff appealed.
A panel majority of the court of appeals reversed and remanded. In an opinion by Chief Justice Byrne, the court held that Plaintiff raised a genuine issue of material fact as to whether Defendant’s employee was acting as an “agent” of the employer at the time of the accident. Plaintiff had the burden to show that the employee was acting for and on behalf of the employer under the employer’s control. Plaintiff must further show that “the principal has both the right to assign the agent’s task and the right to control the means and details by which the agent will accomplish the task” (citation omitted). In this case, the employee was a part owner of Defendant who did project management, engineering, job procurement, and estimating. There was evidence of a number of text messages and phone calls placed by the employee both before and after the accident that could show that he was acting in furtherance of his employer’s business at the time. The majority thus concluded that there was more than a scintilla of evidence that the employee was engaged as Defendant’s agent at the time of the wreck.
As to Plaintiff’s direct negligence claim against Defendant, the court found no evidence or authority supporting Plaintiff’s claim that Defendant had a general duty to train employees on distracted driving, which Plaintiff alleged caused the accident. There is nothing particularly complex or hazardous about a Ford 250 pickup truck, and the employee used it as a private vehicle as well. Further, there was no evidence that Defendant was aware that the employee was driving while calling and texting or otherwise distracted by items in the front seat. Plaintiff pointed to Defendant’s safety handbook and failure to conduct a post-crash investigation as evidence of negligence, but the majority disagreed that such evidence gave rise to a duty to train the employee on how to pay attention while driving a vehicle. The trial court thus did not err when it granted summary judgment for Defendant on Plaintiff’s direct negligence and gross negligence claims. Finally, the majority found no fault with the trial court’s order severing Plaintiff’s vicarious liability claim, but left it to the trial court to decide whether to consolidate that claim with Plaintiff’s claims against the employee on remand.
Justice Theofanis dissented. She would have held that Plaintiff presented no evidence supporting her each element of her vicarious liability theory. Though agreeing with the majority that Plaintiff offered some evidence that the employee was Defendant’s employee or agent, Justice Theofanis saw no evidence that the employee was acting in the course and scope of his employment at the time of the accident. Instead, she argued, the evidence at best supports a 50-50 proposition that the employee was either working or running a personal errand, thus constituting no evidence and precluding a reasonable person from concluding either way. According to his testimony, the driver generally didn’t work in the afternoons, when the accident occurred, and he did not recall being on a business call that afternoon. Just because he made or received a phone call or text prior to the accident is not sufficient to show course and scope. At the most, the record raises a mere “surmise or suspicion that [the employee] was acting in the course and scope of his employment” (citation omitted), not enough to reach the “scintilla of evidence” threshold for defeating summary judgment.
Justice Theofanis’s dissent is both rigorously researched and vigorously argued, and we are inclined to to agree with it. The evidence of course and scope is entirely circumstantial here. While that is not in itself determinative, it does seem that the majority is stretching a bit and altogether avoided discussing the equal-inference rule. We don’t know how big the stakes are in terms of damages, but given the strength of the dissent, a petition for review might be worth the effort, if not the expense.
