Following information excerpted by Pamela S. Evers, Assoc. Prof. of Business Law,
University of North Carolina Wilmington, from materials available through the State of
Texas Bar Association. For educational purposes only.
Brinson Ford, Inc. v. Alger (also listed under Litigation: Personal
Injury)
Supreme Court of Texas - Austin
June 15, 2007 - 05-0722
Premises Defect Not Shown To Be Unreasonably Dangerous.
Alger exited through the front door of Brinson Ford, where a pedestrian
ramp leads to the parking lot. Although there were handrails along most
of the ramp, as it sloped down to ground level, a small portion of the
ramp extended beyond the handrails to the sidewalk. The highest point
of this unrailed section was four inches above the sidewalk, and it was
marked by yellow paint along the ramp’s edges and around the parking
space next to the ramp. The ramp is the dealership’s main entrance, and
Brinson Ford had no record that anyone had ever fallen from it in the
nearly ten years between the business’s opening and Alger’s fall. Alger
testified that when she reached the point where the handrails ended,
she thought the ramp had ended too. When she turned to walk toward her
car, Alger stepped off the unrailed portion of the ramp and fell. The
trial court granted summary judgment for Brinson Ford. The court of
appeals reversed. Held: Reversed and rendered for Brinson Ford. As a
matter of law, the ramp at issue in this case did not pose an
unreasonable risk of harm. The area of the ramp without handrails met
applicable safety standards, and was further outlined in yellow
striping that the dealership added, which is a common method used to
indicate a change in elevation. The highest point of the downwardsloping unrailed portion of the ramp was four inches, less than the
height of an average step. No other customer visiting the property over
a ten-year period had ever been injured by the ramp, nor has the
dealership received complaints about the ramp’s safety. Thus, the trial
court properly granted summary judgment in the dealership’s favor.
Premises Liability.
Plaintiff’s Burden Of Proof.
The plaintiff in a premises liability case must establish that the
premises owner knew, or should have known, of a dangerous condition
the premises, that presented an unreasonable risk of harm, and that
condition proximately caused the plaintiff’s injuries. The duty a
premises owner owes to its invitees is not that of an insurer. That
to say, a condition is not unreasonably dangerous simply because it
not foolproof. A condition is unreasonably dangerous if it presents
unreasonable risk of harm.
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Goodyear Tire and Rubber Co. v. Mayes
Personal Injury)
Supreme Court of Texas - Austin
June 15, 2007 - 04-0993
(also listed under Litigation:
Summary Judgment. Appellate Court To Determine Whether Fair-Minded
Jurors Could Differ In Their Conclusions.
An appellate court, reviewing a summary judgment, must consider whether
reasonable and fair-minded jurors could differ in their conclusions in
light of all of the evidence presented.
Summary Judgment. Court Of Appeals Erred In Considering Only The
Evidence Favorable To The Nonmovant, Ignoring Undisputed Evidence That
Cannot Be Disregarded.
The employee-Adams had permission to take a D-company truck home, and
was available by pager 24 hours each day. He could be required to make
deliveries at the beginning and/or ending of his work day. He went to
his father’s home to sleep, awoke, and drove to get cigarettes for his
father. planning to return to his father’s home. Adams fell asleep at
the wheel, and hit the plaintiff’s truck. Adams may have received
workers’
compensation benefits. The trial court granted summary judgment for the
defendant-employer-Goodyear. Assuming all evidence favorable to the
nonmovant (Mayes) was true, and indulging every reasonable inference,
and resolving any doubts in his favor, the court of appeals held there
existed sufficient evidence to raise a genuine issue of material fact
on whether Adams was acting in the course and scope of his employment
at the time of the accident. The court of appeals reversed and
remanded. 144 S.W.3d 50.
Held:
The court of appeals erred in applying the wrong standard of
review. There is no conflicting evidence, or conflicting set of
inferences, to raise a genuine issue of material fact over whether, at
the time of the accident, Adams was acting in furtherance of Goodyear’s
business or for the accomplishment of the object for which Goodyear
hired him. The court of appeals erred in considering only the evidence
favorable to Mayes, ignoring undisputed evidence in the record that
cannot be disregarded.
Respondeat Superior.
Deviation.
Extent Of Liability. Employer Not Responsible For
Generally, a person has no duty to control the conduct of another.
Under the theory of respondeat superior, however, an employer may be
vicariously liable for the negligent acts of its employee, if the
employee’s actions are within the course and scope of his employment.
An employer is liable for its employee’s tort, only when 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. The employee’s acts must
be of the same general nature as the conduct authorized or incidental
to the conduct authorized to be within the scope of employment.
Accordingly, if an employee deviates from the performance of his duties
for his own purposes, the employer is not responsible for what occurs
during that deviation.
Negligent Entrustment. No Evidence To Show That Driver Was Unlicensed,
Incompetent, Or Reckless.
It is undisputed that Goodyear entrusted its truck to Adams, that Adams
was negligent by falling asleep behind the wheel, and that his
negligence proximately caused the accident. However, the record
contains no evidence that, at the time Goodyear entrusted the vehicle
to Adams, Adams was an unlicensed, incompetent, or reckless driver or
that Goodyear knew or should have known Adams was an unlicensed,
incompetent, or reckless driver. First, there is no dispute that Adams
was a licensed driver.
Second, the evidence upon which Plaintiff-Mayes relies to raise a fact
issue, regarding Adams’s alleged incompetence or recklessness as a
driver is insufficient. Mayes claims that the three-year driving
record, obtained as part of Goodyear’s hiring process in 1998, is some
evidence that Goodyear knew, or should have known, that Adams was an
incompetent or reckless driver when Goodyear entrusted the vehicle to
Adams. The 1998 record includes two citations: one for driving without
liability insurance in July 1995, and another for a June 1996 collision
in which Adams rear-ended a vehicle at a stoplight. Mayes adds that the
only ticket Adams received while driving a Goodyear truck—for exceeding
the speed limit by about five miles per hour—also constitutes some
evidence that Goodyear knew that Adams was an incompetent or reckless
driver. It is undisputed that Adams’s only accident in a Goodyear truck
was his collision with Mayes. This evidence does not raise a genuine
issue of material fact as to whether Adams was, or Goodyear knew, or
should have known, that Adams was, an incompetent or reckless driver,
at the time Goodyear entrusted him with the truck. Goodyear’s
knowledge of Adams’s work schedule and his commute, without more, does
not raise a fact issue that he was, or that Goodyear knew or should
have known that he was, an incompetent driver due to insufficient
sleep. The court of appeals erred in reversing summary judgment on the
issue of negligent entrustment.
Liberty Mutual Insurance Co. v Camacho
Personal Injury)
9th Court of Appeals - Beaumont
June 21, 2007 - 09-06-305-CV
(also listed under Litigation:
Workers’ Compensation. “Skull Injury” Includes A Blow To The Head That
Does Not Cause Skeletal Damage.
P was a rancher with more than 20 years’ experience when his horse
reared up & struck him in the face; he was employed by JMR Ranching at
the time.
Treatment revealed that he suffered a concussion but no fracture. A
neuropsychologist categorized P as an incurable imbecile & testified
that his condition is permanent. Dissatisfied with the results of his
Workers’
Compensation Commission proceedings, P appealed to district court. A
jury found sufficient evidence of a skull injury & found P entitled to
lifetime benefits. The carrier appealed. Held: Reversed & remanded.
Although there is sufficient evidence of a skull injury, though P
suffered no skeletal damage, the trial court improperly instructed the
jury they were to give no special weight to the Commission Appeals
Panel’s decision. The jury was entitled to give the decision whatever
weight it thought the decision deserved. Such error was found harmful,
requiring reversal.
Countrywide Home Loans, Inc. v Howard 3rd Court of Appeals - Austin
June 19, 2007 - 03-06-00733-CV
Lis Pendens Was Improper & Did Not Provide Constructive Notice Of A
Claim For A Constructive Trust On Real Estate.
Tesher Corp., an insurance entity, was placed in receivership after
only
18 months in business. P-receiver discovered that X, a Tesher employee
intimately involved with Tesher’s president & sole shareholder,
received $144,500 & a car from Tesher. X purchased real property with
the funds, & P sued X for fraud, breach of contract, etc., & prayed for
a judgment decreeing a constructive trust on the property & car; he
filed a notice of lis pendens in the real property records of the
county in which the property is located. Countrywide intervened,
requesting a declaratory judgment that is lien on the property securing
a $100,000 loan to X has priority over any rights that P may acquire in
the property. The trial court granted summary judgment for P. Held:
Reversed & rendered that Countrywide’s lien has priority. Because P
alleged that X used funds that were illegally obtained from Tesher to
purchase real property & that P should thus be awarded a constructive
trust on the property, P asserted only a collateral interest in the
property, which was insufficient to authorize his filing of a notice of
lis pendens. Consequently, the notice of lis pendens did not impart
constructive notice of P’s claim to Countrywide, & it is undisputed
that Countrywide did not have actual notice of P’s claim against the
property.