Bomar v. Walls Regional Hosp.

• Decision Date: 09 December 1998
• Docket Number: No. 10-97-335-CV,10-97-335-CV
• Parties: Kym BOMAR, et al., Appellants, v. WALLS REGIONAL HOSPITAL, A Texas Corporation, et al., Appellees.
• Court: Texas Court of Appeals

Page 834

983 S.W.2d 834

Kym BOMAR, et al., Appellants, v. WALLS REGIONAL HOSPITAL, A Texas Corporation, et al., Appellees.

No. 10-97-335-CV.

Court of Appeals of Texas,

Waco.

Dec. 9, 1998.

Jim Claunch, The Jim Claunch Law Firm, Fort Worth, for appellant.

Dan M. Boulware, MacLean & Boulware, Cleburne, Jonathan Nelson, Broude, Nelson & Harrington, Fort Worth, Robert B. Wagstaff, Abilene, Kent R. Smith, Jackson & Walker, L.L.P., Fort Worth, for appellee.

Before Chief Justice DAVIS, Justice CUMMINGS and Justice VANCE.

OPINION

DAVIS, Chief J.

This is an appeal from the trial court's order granting summary judgment in favor of the Appellee, Walls Regional Hospital. Appellants present two issues in which they claim that the trial court erred when it granted summary judgment because: (1) the exclusivity provision of the Texas Workers' Compensation Act does not pre-empt their claims against the hospital and (2) the hospital is liable to the plaintiffs under the doctrine of negligent hiring. We will reverse the order of the trial court and remand this cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs were nurses employed by the defendant, Walls Regional Hospital. They claim that Dr. George Boyett, a doctor to whom the hospital granted staffing privileges, sexually harassed them on numerous occasions. ¹ They claim that they told their supervisors many times about Dr. Boyett's actions, yet Dr. Boyett's harassment continued. The plaintiffs sued the hospital alleging that it: (1) failed to keep the workplace safe; (2) negligently hired Dr. Boyett; and (3) negligently credentialed Dr. Boyett.

The hospital moved for summary judgment on the grounds that: (1) there is no evidence of malice by the hospital when it credentialed Dr. Boyett as required by the Medical Practice Act ² so the plaintiffs cannot recover under a negligent credentialing cause of action; and (2) it did not owe a duty to the plaintiffs, but assuming it did owe a duty to the plaintiffs, their injuries arose out of the course of their employment and are barred by the Texas Workers' Compensation Act. The court granted the hospital's summary judgment motion without specifying the grounds for its ruling.

The plaintiffs appealed the court's order. We originally dismissed their appeal for want of jurisdiction. The court's order granted summary judgment in favor of the hospital, but did not address the plaintiffs' claims against the remaining defendants. Thus, the hospital's summary judgment was interlocutory and not appealable. Subsequently, the plaintiffs severed their cause of action against the hospital from their claims against the remaining defendants. The plaintiffs then filed a motion to reinstate their appeal, which we granted. See Bomar v. Walls Regional Hosp., 971 S.W.2d 670 (Tex.App.--Waco 1998, no pet. h.).

SUMMARY JUDGMENT STANDARD OF REVIEW

The summary judgment movant bears the burden to prove that no genuine issue of material fact exists and that she is entitled to summary judgment as a matter of law. TEX.R.CIV.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 425 (Tex.App.--Waco 1997, writ denied). If the movant is the defendant, she must conclusively negate at least one of the elements of the non-movant's cause of action or conclusively establish every element of her affirmative defense. Kinnard v. Circle K Stores, Inc., 966 S.W.2d 613, 616 (Tex.App.--San Antonio 1998, no pet. h.). Even if the non-movant does not file a response and the motion for summary judgment is uncontroverted, the movant still retains the burden to prove that she is entitled to summary judgment as a matter of law. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Hubert v. Ill. State Assistance Comm'n, 867 S.W.2d 160, 162 (Tex.App.--Houston [14th Dist.] 1993, no writ). Once the movant establishes a right to summary judgment, the burden then shifts to the non-movant to present issues that would preclude a summary judgment. City of Houston, 589 S.W.2d at 678; Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 817 (Tex.App.--Amarillo 1995, writ denied).

When determining whether a material fact issue exists, we must accept as true all evidence favorable to the non-movant. Nixon, 690 S.W.2d at 548-49; Delta Air Lines, Inc., 949 S.W.2d at 425. We must also resolve all doubts and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 549; Delta Air Lines, Inc., 949 S.W.2d at 425. The purpose of a summary judgment proceeding is to determine if there are any questions of fact to be tried, not to try the cause by weighing the evidence or determining its credibility; or trying the cause by affidavit or deposition. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); Walls v. First State Bank of Miami, 900 S.W.2d 117, 123 (Tex.App.--Amarillo 1995, writ denied). Summary judgment is not intended to deprive the litigants of their right to a full hearing on the merits of any real fact issue. Kim v. State Farm Mut. Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex.App.--Dallas 1998, no pet. h.).

If the trial court's order affirming the movant's summary judgment does not specify the grounds relied upon for its ruling, we will affirm the judgment if any of the grounds within the motion for summary judgment are meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Gardner v. Best Western Int'l, 929 S.W.2d 474, 479 (Tex.App.--Texarkana 1996, writ denied).

TEXAS WORKERS' COMPENSATION ACT

The plaintiffs' first issue claims that the trial court erred when it granted summary judgment in favor of the hospital because there is a question of material fact regarding whether their injuries occurred within the course of their employment. Therefore, the plaintiffs contend that the hospital is not entitled to summary judgment because it did not conclusively establish as a matter of law that their negligence claims are pre-empted by the Texas Workers' Compensation Act ("the Act"). ³ They contend that Dr. Boyett's harassment was directed at them because of personal reasons and not because of their employment at the hospital. Therefore, Dr. Boyett's harassment fit within the "personal animosity" exception to the Act and they are free to bring their negligence claims against the hospital as independent rather than derivative actions. ⁴ See Campbell v. Tex. Employers' Ins. Ass'n, 920 S.W.2d 323, 328 (Tex.App.--Houston [1st Dist.] 1995, no writ); Security Ins. Co. v. Nasser, 755 S.W.2d 186, 190 (Tex.App.--Houston [14th Dist.] 1988, no writ).

The hospital states that it conclusively established that the plaintiffs were injured within the course of their employment. Thus, the Act is the plaintiffs' exclusive remedy and precludes the plaintiffs' negligence claims brought outside the Act. ⁵

The Act provides that the recovery of workers' compensation benefits is the exclusive remedy of an employee, covered by workers' compensation insurance, for injuries resulting from the employer's negligence or gross negligence, that are sustained in the employee's course of employment. TEX. LABOR CODE ANN. § 406.034(a) (Vernon 1996); Larchmont Farms, Inc. v. Parra, 941 S.W.2d 93, 95 (Tex.1997); Rodriguez v. Naylor Indus., Inc. 763 S.W.2d 411, 412 (Tex.1989). However, the Act does not exempt an employer from common law liability for intentional injuries that occur within the employee's course of employment. TEX.LAB.CODE ANN . § 406.032(1)(B) (Vernon 1996); Horton v. Montgomery Ward & Co., 827 S.W.2d 361, 364 (Tex.App.--San Antonio 1992, writ denied). Also, the Act does not preclude an employee's common law liability claim against the employer if the employee's injury falls within the "personal animosity" exception of the Act. See TEX. LABOR CODE ANN. § 406.032(1)(C) (Vernon 1996).

We must first address whether the hospital conclusively established that the plaintiffs were injured within the course of their employment. If the plaintiffs' injuries did occur within the course of employment, the Act is the plaintiffs' exclusive remedy and they are precluded from bringing their negligence claims against the hospital outside the Act. If their injuries did not occur within the course of their employment, then the Act does not preclude their negligence claims. ⁶

Whether an injury occurred within the course of employment is ordinarily a question of fact. Trevino v. Kent County, 936 S.W.2d 488, 492 (Tex.App.--Amarillo 1996, writ denied); Campbell, 920 S.W.2d at 327; Shutters v. Domino's Pizza, Inc., 795 S.W.2d 800, 802 (Tex.App.--Tyler 1990, no writ); Masuccio v. Standard Fire Ins. Co., 770 S.W.2d 854, 857 (Tex.App.--San Antonio 1989, no writ). An assault that occurs at work does not necessarily occur within the course of one's employment. Mackey v. U.P. Enter., Inc., 935 S.W.2d 446, 452 (Tex.App.--Tyler 1996, no writ). The fact that a fellow employee is the assailant is not dispositive over whether an injury occurs within the course of employment. Id.; Shutters, 795 S.W.2d at 802. If the assault is personal to the victim or victims, is not connected with the employment, or committed for reasons personal to the victim or assailant, then the assault does not occur within the course of employment. Mackey, 935 S.W.2d at 452; Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 695 (Tex.App.--Houston [1st Dist.] 1993, writ denied).

The hospital claims that no question of fact exists regarding whether the assaults occurred within the course of the plaintiffs' employment. The hospital contends that the plaintiffs admit in their petition ⁷ that their assaults occurred within the course of their employment. Specifically, the hospital refers to the statement made by the plaintiffs in their petition that alleges "... such acts of harassment were committed upon Plaintiffs while they were engaged in their work at the Defendant hospital."

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