G & H Towing Co. v. Magee

• Decision Date: 26 August 2011
• Docket Number: No. 10–0145.,10–0145.
• Citation: 54 Tex. Sup. Ct. J. 1751,347 S.W.3d 293
• Court: Texas Supreme Court
• Parties: G & H TOWING COMPANY, et al., Petitioners,v.Cory Wayne MAGEE, et al., Respondents.

347 S.W.3d 293

54 Tex. Sup. Ct. J. 1751

G & H TOWING COMPANY, et al., Petitioners,

v.Cory Wayne MAGEE, et al., Respondents.

No. 10–0145.

Supreme Court of Texas.

Aug. 26, 2011.

J. Mike Johanson, Chris M. Volf, Johanson & Fairless, L.L.P., Sugar Land, TX, for G & H Towing Company.Kathryn V. Smyser, Kathryn Smyser PLLC, Benjamin L. Hall III, Elizabeth B. Hawkins, Kimberly R. Bennett, The Hall Law Firm, Houston, TX, for Cory Wayne Magee.Jeffrey A. Fanaff, Acosta & Soule, Houston, TX, for William C. Colson.PER CURIAM.

This summary judgment appeal involves an employer's liability for a tragic vehicular accident involving one of its employees. At the time of the accident, the employee had left work and was driving a personal vehicle that he borrowed from a co-worker. The representatives of the decedent-occupants of the other vehicle sued the employer, alleging negligence, negligent hiring, and negligent entrustment. These plaintiffs also sued the co-worker, alleging negligent entrustment, and the employee, alleging negligence. Both the employer and the co-worker obtained summary judgments, which after severance orders, the plaintiffs appealed.

The court of appeals affirmed the co-worker's summary judgment, concluding that as a matter of law the co-worker had not negligently entrusted his vehicle to the other employee. 312 S.W.3d 807, 809, 812 (Tex.App.-Houston [1st Dist.] 2009). The court of appeals, however, reversed the employer's summary judgment because its summary judgment motion did not specifically address one of the plaintiffs' claims: the claim that the employer was vicariously liable for its agent's (the co-worker's) negligent entrustment. Id. at 810–11. Concluding that the employer's summary judgment granted more relief than requested, the court remanded the case against the employer without considering the plaintiffs' other claims or the employer's related grounds for summary judgment. Id. at 813.

Because an employer cannot be vicariously liable in tort when its agent or employee has not engaged in tortious conduct, we conclude that the court of appeals erred in remanding the vicarious liability claim while simultaneously holding that the employee had not committed a tort. We reverse the court of appeals' judgment and remand the cause to that court for consideration of the other grounds for summary judgment.

William Colson and Joseph Violante were employed by G & H Towing 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.

As was their custom, Violante borrowed Colson's vehicle at the end of one shift and drove himself home. Some time later, Violante drove Colson's vehicle to a bar at which he became inebriated. After leaving the bar, Violante was involved in a collision that killed Douglas and Lois Magee. Violante was subsequently convicted of intoxication manslaughter.

The Magees' adult children (the Magees) 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. Regarding the latter, the Magees asserted that G & H was vicariously liable for Colson's negligent entrustment of his vehicle to Violante because Colson was acting as G & H's employee and agent at the time. The Magees further asserted that Colson had a duty to make inquiry about Violante's competence as a driver because G & H had a company policy of checking the driving records of employees who would be driving in the course of their employment.

G & H Towing filed a motion for summary judgment, which the trial court granted, rendering an interlocutory take-nothing summary judgment. The Magees thereafter moved to sever their claims against G & H from the remainder of the case, and the trial court granted the motion making the summary judgment a final, appealable order. Colson also filed a motion for summary judgment, which the trial court similarly granted and then severed, making Colson's take-nothing summary judgment final. The Magees appealed both summary judgments.

The Magees moved to consolidate their two appeals, but the court of appeals denied the motion. The court also declined to hear oral argument in either case. G & H contended on appeal that its motion for summary judgment encompassed the issue of its vicarious liability for Colson's actions. In the alternative, G & H urged that even if its motion omitted this issue, the trial court's error in granting final summary judgment on the omitted issue was nevertheless harmless because of the court's determination that Colson had not negligently entrusted his vehicle to Violante. G & H reasoned that if Colson did not negligently entrust his vehicle, G & H could not be vicariously liable for negligent entrustment.

Although the appeals remained separate, the court discussed their respective merits in a single opinion. 312 S.W.3d at 809. In separate judgments, the court affirmed Colson's take-nothing summary judgment but reversed and remanded the summary judgment favoring G & H Towing. Id. at 813.

The court of appeals concluded that the trial court correctly granted Colson's no-evidence summary judgment because there was no evidence of at least one element of the Magees' negligent entrustment claim against him. Id. at 812. The court accordingly affirmed Colson's summary judgment, and the Magees have not appealed that judgment.

The court further concluded that the trial court had erred in rendering a take-nothing summary judgment in favor of G & H Towing 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. Id. at 810–11. G & H's summary judgment motion addressed its direct responsibility for allegedly entrusting the vehicle to Violante, but the motion did not also address its alleged vicarious liability for Colson's negligent entrustment. Because of this omission, the court of appeals 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)). The court, with one justice dissenting, 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 Towing again argues here that any error in granting summary judgment on this vicarious liability claim was harmless in light of the court's conclusion that there was no evidence to support the Magees' negligent entrustment claim against Colson. Generally, a master is vicariously liable for the torts of its servants committed in the course and scope of their employment. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex.1999). But having concluded as a matter of law that its alleged agent, Colson, did not commit the tort of negligent entrustment, G & H submits that the trial court's error is harmless and that remanding the vicarious liability claim is a meaningless gesture because its liability is derivative...