Magee v. G&H Towing Co.
| Decision Date | 29 March 2012 |
| Docket Number | NO. 01-07-00572-CV,01-07-00572-CV |
| Court | Texas Court of Appeals |
| Parties | CORY WAYNE MAGEE AND TRACEY D'ANN MAYO, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF DOUGLASS MAGEE AND LOIS MAGEE, Appellants v. G & H TOWING COMPANY AND G & H TOWING INC., Appellees |
The trial court rendered summary judgment in favor of the appellee-defendant, G&H Towing Company. On appeal, we reversed the summaryjudgment and remanded to the trial court because one of the appellants-plaintiffs' claims was not addressed in G&H's summary-judgment motion. 312 S.W.3d 807. The supreme court reversed our judgment, holding that G&H's failure to address one of the plaintiffs' claims was harmless because that claim was derivative of another claim, against a different party, on which we affirmed summary judgment. 347 S.W.3d 293, 295. The supreme court then remanded to this Court for consideration of the plaintiffs' other arguments not reached in our earlier opinion. We affirm the trial court's summary judgment in G&H's favor.
The claims in this case arise from an automobile accident involving one of G&H's employees. Defendants William Colson and Joseph Violante were employed by G&H as tugboat quartermasters. They worked on the same tugboat, but they were on different schedules. One would work for several days and then be relieved by the other, who then worked for a similar period. Because the tugboats did not have a regular route that allowed each man to return to the place he began his shift, the men would loan their personal vehicles to one another to drive home at the end of a shift. Whether G & H required or endorsed this practice was disputed, but G&H conceded in the trial court that this practice was widespread and that there was some evidence that the practice was pursuant to an unwritten company policy.
As was their custom, on May 14, 2004, Violante borrowed Colson's vehicle at the end of his shift and drove himself home. Later that night, Violante drove Colson's vehicle to a bar. After leaving the bar, Violante was involved in a collision that killed Douglas and Lois Magee. Violante was convicted on two counts of failure to yield the right of way and intoxication manslaughter.
The Magees' adult children sued Violante, Colson, G&H Towing, and others connected to the bar, asserting theories of negligence, negligent hiring, and negligent entrustment. The claims against G&H were both direct and vicarious. Relevant to this appeal, the Magees asserted that G&H was negligent, through its agent Colson, by entrusting Violante with a vehicle without investigating his driving record. They further contended that Colson had an independent duty to inquire about Violante's competence as a driver, and that G&H was vicariously liable for Colson's negligent entrustment of his vehicle to Violante because Colson was acting within the course and scope of his employment with G&H at the time.
G&H Towing filed a motion for summary judgment, which the trial court granted, rendering an interlocutory take-nothing summary judgment in G&H's favor. The trial court later severed the Magees' claims against G&H, rendering that summary judgment in G&H's favor a final, appealable order. A summary judgment in favor of Colson was also severed, making a take-nothing summaryjudgment in favor of Colson final as well. The Magees appealed both summary judgments to this Court.
In our prior opinion, we affirmed Colson's take-nothing summary judgment, concluding that the trial court correctly determined that there was no evidence of at least one element of the Magees' negligent-entrustment claim against him because Colson did not have an independent duty to investigate Violante's competence as a driver. 312 S.W.3d at 812. The Magees did not appeal our determination in that regard to the supreme court.
In the same opinion, we reversed and remanded the summary judgment favoring G&H Towing. Id. at 813. Specifically, we concluded that the trial court erred in rendering a take-nothing summary judgment in favor of G&H because G&H's motion for summary judgment failed to address the Magees' claim that G&H was vicariously liable for Colson's negligent entrustment of his vehicle to Violante.1 Id. at 810-11. Because of this omission, we held the motion to be "legally insufficient as a matter of law in regard to that ground." Id. at 811 (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993)). We then reversed the summary judgment and remanded the cause without considering the other grounds raised in the motion for summary judgment. Id. at 813.
G&H appealed to the Texas Supreme Court. Because an employer cannot be vicariously liable in tort when its agent or employee has not engaged in tortious conduct, the supreme court concluded that we erred by remanding to the trial court the claim that G&H was vicariously liable for Colson's alleged tortious conduct while simultaneously holding that Colson had not committed a tort. 347 S.W.3d at 297 (). The supreme court thus reversed our judgment and remanded the cause to this Court for consideration of the issues we did not reach in our prior opinion.
The Magees raised five issues in their prior appeal:
The first issue was disposed of by the supreme court's opinion holding that G&H's failure to address all the Magees' claims was harmless, and the second, third, and fourth were resolved by our prior opinion concluding that there was no evidence to support at least one element of the Magees' negligent-entrustment claim against Colson (meaning there was no independent negligent entrustment by Colson during the course and scope of his employment for G&H to be vicariously liable for).
The remaining, unresolved fifth issue—i.e., whether there is evidence to support a direct claim of negligent entrustment against G&H—is not dependent upon whether Colson was individually negligent, so we address the merits of that claim in this opinion.
In addition to arguing that G&H was vicariously liable, through respondeat superior, for Colson's negligent entrustment (a claim foreclosed by ourdetermination that Colson did not negligently entrust his vehicle to Violante), the Magees argue in their brief that "G&H and Colson, in his capacity as agent of G&H, should have known of Violante's record of incompetent and reckless driving because they had a duty to investigate his driving record prior to entrusting Colson's vehicle to him as part of G&H's employee shuttle transportation system." They note that "G&H regularly checked the driving records of all employees who drove company-owned vehicles in connection with the 'shore side' i.e., the dockside activities of the company." In contrast, "G&H took no action to investigate the driving records of employees who would be using the vehicles of their fellow employees as part of the company's employee relief shuttle system." According to the Magees, "[b]ecause the employee shuttle system involved regular use of motor vehicles by company employees for the benefit of the company and the furtherance of its business interests, G&H had a legal duty to investigate the driving records of employees who would regularly use vehicles in connection with this shuttle system."
The Magees contend that G&H had a duty—stemming from the special employer-employee relationship G&H had with Violante—to investigate Violante's driving record beyond whether he was licensed. They also argue that his driving record and criminal record provided legally sufficient evidence ofincidents in close enough temporal proximity to the May 2004 wreck to show that he was an incompetent and reckless driver:
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