Mayes v. Goodyear Tire and Rubber Co.

• Decision Date: 10 June 2004
• Docket Number: No. 01-03-00157-CV.,01-03-00157-CV.
• Parties: Patrick MAYES, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee.
• Court: Texas Court of Appeals

144 S.W.3d 50

Patrick MAYES, Appellant, v. GOODYEAR TIRE AND RUBBER COMPANY, Appellee.

No. 01-03-00157-CV.

Court of Appeals of Texas, Houston (1st Dist.).

June 10, 2004.

Rehearing Overruled September 24, 2004.

Appeal from the 269th District Court, Harris County, John Thomas Wooldridge, J Denise Wells Novotny, Davenport, Goranson, L.L.P., Valorie W. Davenport, Davenport Legal Group, Houston, TX, for Appellant.

Robert C. Scruggs, King, LeBlanc & Bland, P.L.L.C., Houston, for Appellee.

Panel consists of Justices NUCHIA, JENNINGS, and KEYES.

OPINION

EVELYN V. KEYES, Justice.

This is an appeal of a take-nothing summary judgment rendered in favor of defendant/appellee Goodyear Tire & Rubber Co., against plaintiff/appellant, Patrick Mayes, in his personal injury suit against Goodyear and co-defendant Corte Adams, one of Goodyear's employees. The trial court granted Goodyear's motion for summary judgment on the causes of action for vicarious liability and negligent entrustment, then severed the cause from the suit against Adams. In two issues, Mayes challenges the rendition of summary judgment, contending there are genuine issues of material fact precluding summary judgment on either cause of action. We agree with this contention; accordingly, we reverse.

Facts

Goodyear hired Adams in April 1998 to work as a service technician — changing tires and fixing flats — in its Houston, Texas shop. In September 1998, Adams transferred to the Bryan, Texas shop, which specializes as a commercial truck tire center; he was trained and promoted to the position of truck alignment specialist. After the transfer, Adams continued to live in Houston and commuted each day to and from Bryan. Primarily because Adams did not own a reliable car of his own, Goodyear allowed him to use a one-ton GMC pickup truck it owned to travel between Houston and Bryan. This extended use by an employee of a company truck was not exactly routine, but neither was it unusual.

Goodyear did not hire Adams as a driver; nevertheless, once or twice a week Adams dropped off or picked up tires at the Houston shop on his way home from Bryan in the evenings or on the way back to Bryan the next morning. When he had a delivery or pick-up, Adams was "on the clock" for Goodyear until he either dropped the tires off at the Houston shop in the evening or arrived at the Houston shop in the morning to pick up tires. If he was making a delivery or a pick-up, Adams was paid for the driving time. But whether he was paid for the driving time or not, Adams made the four-hour round-trip commute each day he reported for work, and Goodyear was aware of this. In addition, Goodyear required Adams to carry a pager at all times.

Adams normally worked five to six days a week, roughly 10 hours per day, plus the four hour drive each day. As noted, he was only paid while driving between the two cities when he had to pick up or deliver tires. The week preceding the accident was typical for Adams — he had accumulated approximately 66 hours on the clock, including one delivery day, and had logged another 20 hours commuting, for which he was not paid.¹

On February 26, 1999, Adams left Bryan in the late afternoon and attempted to deliver tires to the Houston shop, where occasionally someone would wait for him after shop hours, but the store was closed. Adams picked up some Chinese take-out, drove to this father's house, had supper and a few beers, then went to sleep. At about 3:00 a.m., Adams awakened and left the house in the Goodyear truck. He intended to stop at a convenience store to get some cigarettes for his father, then drive home, change clothes, and head for the Houston shop on his way to Bryan to begin work at 6:00 a.m. Just minutes after leaving his father's house, Adams caused a traffic accident when he fell asleep at the wheel and crossed the center stripe into oncoming traffic. He crashed his truck into Mayes's car, severely injuring Mayes. Adams, too, was injured and unable to work for months. While Adams was absent on sick leave, he collected workers compensation insurance payments. Two months later, Goodyear fired Adams for using the truck in an unauthorized manner.

Mayes sued Goodyear under the theory of respondeat superior, contending that Adams was within the course and scope of his employment when the accident happened. In his petition, Mayes contended Goodyear was negligent for (1) allowing Adams to drive, (2) not restricting access to company vehicles, and (3) not creating and enforcing safety rules regarding company vehicles. Mayes also contended that Goodyear was grossly negligent for permitting Adams to drive its truck after he had worked so many hours that week, been awake for 23 hours, and been drinking alcohol. He sought to recover $750,000 in damages and exemplary damages from Adams and Goodyear.

Goodyear filed a hybrid traditional/no-evidence motion for summary judgment in which it contended Adams was not in the course and scope of his employment when the accident occurred, and in which it characterized the remainder of Mayes's claims against it as an improper claim for negligent entrustment. The trial court rendered summary judgment for Goodyear, severed the cause, reconsolidated the two cases, then deconsolidated them, making the summary judgment final for purposes of appeal.

Analysis

In issues one and two, Mayes contends that genuine issues of material fact precluded summary judgment for Goodyear on both claims — respondeat superior and negligent entrustment. We note at the outset that, although Mayes's pleadings do not specifically include a claim for negligent entrustment, he did not object to the variance between his pleadings and Goodyear's characterization of his claims and he argues on appeal that fact issues exist in regard to negligent entrustment. Accordingly, we treat this unpleaded claim as having been tried by consent. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991) (noting that parties may try an issue by consent in summary judgment proceedings).

Standard of Review

After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex.R. Civ. P. 166a(i); Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 866 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The motion must specify which essential elements of the opponent's claim or defense lack supporting evidence. See Brewer & Pritchard, 7 S.W.3d at 866-67. Once the party seeking the no-evidence summary judgment files a proper motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 71 (Tex.App.-Austin 1998, no pet.). The party with the burden of proof at trial thus has the burden of proof in the summary judgment proceeding. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.). The respondent need not "marshal its proof" as for trial but need only "point out" evidence that raises a fact issue on the challenged elements. See Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 715 (Tex.App.-Houston [1st Dist.] 2002, no pet.).

The standard of review in an appeal from a traditional summary judgment requires a defendant who moved for a summary judgment on the plaintiff's causes of action (1) to show there is no genuine issue of material fact as to at least one element of each of the plaintiff's causes of action or (2) to establish each element of the defendant's affirmative defense. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995).

In reviewing a traditional or a no-evidence summary judgment, we assume all the evidence favorable to the nonmovant is true, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in favor of the nonmovant. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When, as here, the trial court's summary judgment order does not specify the ground or grounds on which summary judgment is rendered, we will affirm the summary judgment if any of the grounds stated in the motion is meritorious. Id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)).

Respondeat Superior

In issue one, Mayes contends there is a genuine issue of fact concerning whether Adams was acting within the course and scope of his duty, thus subjecting Goodyear to vicarious liability. Generally, to impose vicarious liability on an employer under the doctrine of respondeat superior for the tortious conduct of an employee, the conduct must have occurred within the course and scope of the employee's general authority and must have been undertaken to further the employer's business and to accomplish the objective for which the employee was hired. Wrenn v. G.A.T.X. Logistics, Inc., 73 S.W.3d 489, 493 (Tex.App.-Fort Worth 2002, no pet.); Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 680 (Tex.App.-El Paso 1997, writ denied). Tortious conduct is within the scope of employment when it is of the same general nature as the authority given an employee or is incidental to authorized conduct. Wrenn, 73 S.W.3d at 493; Soto, 942 S.W.2d at 681.

Goodyear offers a number of facts tending to show Adams was on a personal errand, and thus not in the course and scope of his employment duties. We, however, must view only the evidence and inferences favorable to Mayes, the nonmovant. See Ernst & Young, 51 S.W.3d at 577. While there is conflicting evidence in the record as to when Adams' work day began and ended, Mayes provided evidence that Adams made deliveries at Goodyear's request and carried a pager at all times. The record also shows that Adams had responsibility and control over the Goodyear tires in his truck when the accident happened and intended to deliver them to the Houston shop before...