Arbelaez v. Just Brakes Corp.

• Decision Date: 20 May 2004
• Docket Number: No. 03-03-00587-CV.,03-03-00587-CV.
• Citation: 149 S.W.3d 717
• Parties: Luzstella ARBELAEZ, Appellant, v. JUST BRAKES CORPORATION, Appellee.
• Court: Texas Court of Appeals

149 S.W.3d 717

Luzstella ARBELAEZ, Appellant, v. JUST BRAKES CORPORATION, Appellee.

No. 03-03-00587-CV.

Court of Appeals of Texas, Austin.

May 20, 2004.

Rehearing Overruled August 12, 2004.

Christopher H. Sapstead, Mark W. Crampton and Clint A. Harbour, Crampton & Associates, P.C., Austin, for appellant.

Craig A. Courville, Brantley Ross Pringle Jr., and Michael Thompson Jr., Wright & Greenhill, P.C., Austin, for appellee.

Before Chief Justice LAW, Justices KIDD and B.A. SMITH.

OPINION

MACK KIDD, Justice.

This is a summary judgment case. We are asked to review the grant of a traditional¹ motion for summary judgment in favor of appellee, Just Brakes Corporation. The district court ruled as a matter of law that Brian Paul, an employee of Just Brakes, was not within the course and scope of his employment at the time of an automobile collision with appellant, Luzstella Arbelaez. Concluding that Just Brakes failed to prove as a matter of law that Paul was not acting within the course and scope of his employment, we reverse and remand.

BACKGROUND

In January 2001, Paul, a mechanic for Just Brakes, arrived at work at approximately 6:45 a.m. Within a few minutes, according to Paul's deposition testimony, the shop manager gave Paul his "first assignment" of the day, which was to pick up breakfast for himself, his manager, and his other co-workers at a nearby McDonald's restaurant. While exiting the Just Brakes parking lot in his own vehicle, Paul collided with Arbelaez.

Arbelaez filed a negligence lawsuit against Paul. After some discovery, she amended her petition to name Just Brakes as an additional defendant, claiming it was vicariously liable for Paul's negligence. Through discovery, Arbelaez learned of several facts, some of which are disputed, that indicated that Paul was within the course and scope of employment at the time of the collision. Paul testified in a deposition that his manager had asked him to go to McDonald's as his "first assignment" of the day.² In a summary-judgment affidavit, Paul's manager stated that he merely allowed Paul to go after Paul had volunteered. However, in a later deposition, Paul's manager admitted that he could not state for sure one way or the other and that he could have asked Paul to go. Furthermore, Paul's manager affirmatively testified in his deposition that an employee routinely picked up breakfast for the crew every morning. A corporate representative for Just Brakes also testified via deposition that this practice was used not only at this particular Just Brakes location, but at other Just Brakes locations as well. Moreover, the corporate representative testified that minimizing the number of absent employees, as this method of obtaining breakfast did, benefitted Just Brakes because it was able to service more cars in a shorter period of time.

Paul stated he typically made the breakfast run for the shop because "they" reimbursed him ten dollars a week for his gas money. Just Brakes asserts that the term "they" refers to his fellow employees, but Paul specifically stated in his deposition that it was his manager who paid him.³ Finally, on the morning in question, Paul was "on the clock" and was paid for the time he spent running this errand.

Just Brakes filed a traditional motion for summary judgment, asserting that it was not vicariously liable for Paul's negligence because he was not acting within the course and scope of his employment at the time of the accident. The district court granted Just Brakes' motion. This appeal followed.

DISCUSSION

Standard of review

Because the propriety of a summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Texas Dep't of Ins. v. American Home Assurance Co., 998 S.W.2d 344, 347 (Tex.App.-Austin 1999, no pet.). A defendant who moves for a traditional summary judgment must disprove at least one essential element of each of the plaintiff's theories of recovery or conclusively establish each element of an affirmative defense. Tex.R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Nixon, 690 S.W.2d at 549. We disregard all conflicts in the evidence and accept the evidence favoring the nonmovant as true. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965); Domizio v. Progressive County Mut. Ins. Co., 54 S.W.3d 867, 871 (Tex.App.-Austin 2001, pet. denied). As Just Brakes so succinctly states in its appellate brief: "The purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by affidavit, but to provide a method of summarily terminating a case when it clearly appears that only a question of law is involved, and that no genuine issue of fact remains." See Schlager v. Clements, 939 S.W.2d 183, 186 (Tex.App.-Houston [14th Dist.] 1996, writ denied); Dallas Cent. Appraisal Dist. v. G.T.E. Directories Corp., 905 S.W.2d 318, 320 (Tex.App.-Dallas 1995, writ denied).

Although the parties dispute some of the facts at issue, our standard of review requires us to accept the following facts as true:

• Paul was asked by his manager to obtain breakfast for the crew as Paul's "first assignment" of the day • Paul's breakfast run was a daily routine, both at this and other Just Brakes locations;

• Just Brakes benefitted by having only one employee out of the shop at a time;

• Paul's manager paid him ten dollars a week in gas money to run this errand; and

• Paul was "on the clock" and paid by Just Brakes for the time spent running this errand.

Vicarious liability in general

An employer may be held liable for the tortious acts of an employee if the acts are within the course and scope of employment. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.1998). To defeat Arbelaez's claim of vicarious liability, Just Brakes was required to establish as a matter of law either that: (1) Paul was not an employee; (2) no negligent act occurred; or (3) Paul was not acting within the course and scope of his employment at the time of the collision. See Drooker v. Saeilo Motors, 756 S.W.2d 394, 396 (Tex.App.-Houston [1st Dist.] 1988, writ denied) (citing Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex.1972)). Only the third prong — course and scope of employment — is at issue here.

Course and scope of employment is generally a fact issue like negligence or proximate cause. See, e.g., GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.1999); Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995). In the context of a traditional motion for summary judgment, controlling fact issues are generally for the trier of fact, and summary judgment for a defendant is appropriate only if the defendant-movant proves that no genuine fact issue exists on an essential element of the plaintiff's claim. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex.1987); Jacobs v. Theimer, 519 S.W.2d 846, 847 (Tex.1975). The primary test for determining whether an employee is acting within the course and scope of employment is whether the employer has the right to direct and control the employee's performance at the time of the alleged negligent act. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542 (Tex.2003) ("the right to control remains the `supreme test' for whether the master-servant relationship exists" and thus whether the rule of vicarious liability applies) (quoting Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex.1996)); American Nat'l Ins., Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 373 (1936); see also Restatement (Second) of Agency §§ 212, 219, 235 cmt. a (1958).⁴

To ultimately prove that an employee acted within the course and scope of employment, however, Arbelaez must prove at trial that the act was (1) within the general authority given to the employee; (2) in furtherance of the employer's business; and (3) for the accomplishment of the object for which the employee was employed.⁵ Leadon v. Kimbrough Bros Lumber Co., 484 S.W.2d 567, 569 (Tex.1972). We can only uphold the district court's summary judgment if Just Brakes disproved as a matter of law at least one of these essential elements. See Tex.R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548. Because Paul's manager authorized Paul to obtain breakfast for the crew, Just Brakes does not dispute that Paul's actions were within the general authority given to him. We therefore address only the second two prongs.

In conducting our summary-judgment review, however, we wish to stress that our task is not to weigh the evidence to determine whether Paul was in fact within the course and scope of employment at the time of the collision. That question must be resolved by the trier of fact. Rather, we are to review the summary-judgment evidence, construed in favor of the nonmovant, Arbelaez, and determine whether Just Brakes has carried its burden to establish as a matter of law that no genuine fact issues exist regarding the question of course and scope. Therefore, Just Brakes' burden is certainly a heavy one. It must establish as a matter of law that, construing the facts in the light most favorable to Arbelaez, it is entitled to a finding that Paul was not within the course and scope of employment at the time of the collision. We conclude Just Brakes has not met this burden.

Just Brakes' motion for summary judgment

The sole ground on which Just Brakes moved for summary judgment was that Paul was not within the course and scope of his employment when the collision occurred. In its attempt to prove as a matter of law that Paul was not within the course and scope of employment, Just Brakes advances several arguments. First, Just Brakes states: "It is well...