Newkumet v. Allen

• Decision Date: 26 July 2007
• Docket Number: No. 11-06-00073-CV.,11-06-00073-CV.
• Citation: 230 S.W.3d 518
• Parties: Travis NEWKUMET et al, Appellants, v. Tim ALLEN and Melissa Allen, Appellees.
• Court: Texas Court of Appeals

230 S.W.3d 518

Travis NEWKUMET et al, Appellants, v. Tim ALLEN and Melissa Allen, Appellees.

No. 11-06-00073-CV.

Court of Appeals of Texas, Eastland.

July 26, 2007.

Rehearing Overruled August 23, 2007.

Terry Rhoads, Sean Guerrero, William Clark Lea, Cotton, Bledsoe, Tighe & Dawson, P.C., Leslie G. McLaughlin, Midland, for appellants.

Phillip Godwin, Phillip Godwin & Associates, P.C., Odessa, for appellees.

Panel consists of: WRIGHT, C.J., McCALL, J., and McCLOUD, S.J.^*

OPINION

AUSTIN McCLOUD, Senior Justice (Retired).

This is an appeal from a take-nothing summary judgment entered in favor of third-party defendants Tim Allen and Melissa Allen. Tim and Melissa and their minor daughter, Risty Allen, were sued by third-party plaintiffs Travis Newkumet, formerly a minor; Wayne and Linda Newkumet, individually and as next friends of Travis Newkumet, formerly a minor; and Live Oak Springs Ranch, Ltd. (the Newkumets). The lawsuit stemmed from a boating accident involving three minors: Risty, Travis, and Risty's passenger. Tim and Melissa moved for summary judgment on the basis that the summary judgment evidence did not support the Newkumets' claims against them for negligent supervision or negligent entrustment. The trial court granted Tim and Melissa's motion for summary judgment, rendered a take-nothing judgment in their favor, and severed the claims against Tim and Melissa from the remaining claims.¹ The Newkumets appeal. We affirm.

Issues

The Newkumets present four issues on appeal. In the first two issues, they contend that the trial court erred in granting summary judgment on the negligent supervision claim because Tim and Melissa failed to identify a specific element of that cause of action for which there was no evidence and, alternatively, because there was some evidence to support the claim. In their final two issues, the Newkumets challenge the granting of summary judgment on the negligent entrustment claim. Specifically, they argue in the third issue that the trial court erred "by concluding that legally sufficient evidence did not exist that Risty Allen was an unlicensed incompetent, or reckless driver." In the fourth issue, the Newkumets assert that there was a genuine issue of fact regarding the negligent entrustment claim.

Summary Judgment

It appears that Tim and Melissa may have asserted both traditional and no-evidence grounds in their motion for summary judgment. The parties address both in their briefs, and the trial court did not specify whether it granted the summary judgment based upon no-evidence or traditional grounds. Because the trial court did not specify the grounds it relied upon in granting the summary judgment, we will affirm the summary judgment "if any of the theories advanced are meritorious." State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

We will apply the well-recognized standards of review for summary judgment. We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.2002). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX.R. CIV. P. 166a(i); Wal-Mart, 92 S.W.3d at 506. We may not consider any evidence presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.2004).

With respect to a traditional motion, a trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). When reviewing a traditional summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The appellate court "must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented" and may not ignore "undisputed evidence in the record that cannot be disregarded." Goodyear Tire & Rubber Co. v. Mayes, No. 04-0993, ___ S.W.3d ___, ___, 2007 WL 1713400, at *1-2 (Tex. June 15, 2007).

Parental Liability

The mere fact of paternity or maternity does not make a parent liable to third parties for the torts of his or her minor child. Rodriguez v. Spencer, 902 S.W.2d 37, 42 (Tex.App.-Houston [1st Dist.] 1995, no writ); Aetna Ins. Co. v. Richardelle, 528 S.W.2d 280, 285 (Tex.Civ. App.-Corpus Christi 1975, writ ref'd n.r.e.); Moody v. Clark, 266 S.W.2d 907, 912 (Tex. Civ.App.-Texarkana 1954, writ ref'd n.r.e.). As a general rule, minors are civilly liable for their own torts. Rodriguez, 902 S.W.2d at 42; Williams v. Lavender, 797 S.W.2d 410, 412 (Tex.App.-Fort Worth 1990, writ denied); Brown v. Dellinger, 355 S.W.2d 742, 746 (Tex.Civ.App.-Texarkana 1962, writ ref'd n.r.e.). A parent may, however, be liable for his own negligence with respect to his child's tort, such as when the parent negligently allows his child to act in a manner likely to harm another, when he entrusts the child with a dangerous instrumentality, or when he fails to restrain a child known to have dangerous tendencies. Rodriguez, 902 S.W.2d at 42.

A. Negligent Entrustment.

In this case, the Newkumets alleged that Tim and Melissa were negligent by entrusting a powerful and dangerous jet boat to Risty, a thirteen-year-old incompetent and reckless driver, when they knew or should have known of her incompetence and recklessness. The elements for negligent entrustment of an automobile are as follows: (1) the owner entrusted a vehicle (2) to an unlicensed, incompetent, or reckless driver; (3) the owner knew or should have known that the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent on the occasion in question; and (5) the driver's negligence proximately caused the accident. Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex.1987). In their motion for summary judgment, Tim and Melissa asserted that the Newkumets must come forward with evidence showing that Tim and Melissa knew or should have known of Risty's alleged incompetence or recklessness. We understand this portion of Tim and Melissa's motion for summary judgment to be a challenge to the third element of negligent entrustment (Tim and Melissa's knowledge of Risty's incompetence); we, therefore, disagree with the Newkumets' contention on appeal that the second element of negligent entrustment (Risty's incompetence) was the only one that Tim and Melissa challenged in their motion for summary judgment. In their motion, Tim and Melissa further asserted that the evidence established that Risty had a boater education certificate issued by the State of Texas and that the certificate constituted prima facie evidence of Risty's competence to operate the boat.

In response to the motion for summary judgment, the Newkumets brought forth summary judgment evidence indicating that Risty was unsure about a basic navigational rule regarding yielding to another boat and that, on one occasion, one passenger was a "little" scared when Risty made a sharp turn. Thus, we agree that the summary judgment evidence created an issue of fact regarding Risty's competence, or lack thereof, to operate a motorboat. The Newkumets, however, produced no summary judgment evidence indicating that Tim and Melissa knew or should have known of Risty's incompetence or recklessness. Consequently, the element regarding Tim and Melissa's knowledge is dispositive of the negligent entrustment claim.

With respect to Tim and Melissa's knowledge of their daughter's competence to operate a boat, the summary judgment evidence, when viewed in the light most favorable to the Newkumets, does not create an issue of fact. The summary judgment evidence shows that Risty had grown up around boats, that Tim had taught her how to operate a boat, that Risty's boat — a SeaDoo X-20 — was a simple boat to operate, and that Tim and Melissa did not allow Risty to operate the boat by herself until she had taken the required course and received a Boater Education Certificate.² According to Tim, Risty could maneuver park, and back a boat as well as any adult.

The Newkumets argue that, because Risty did not have a motor vehicle driver's license, Risty was "unlicensed." We disagree. The Newkumets rely on caselaw regarding the negligent entrustment of a motor vehicle to an unlicensed driver.³ The State of Texas generally requires that a person operating a motor vehicle on a public roadway have a valid driver's license. TEX. TRANSP. CODE ANN. § 521.021 (Vernon 2007). Here the object entrusted was a boat, rather than a motor vehicle. The State of Texas does not require that a person operating a motorboat possess a motor vehicle driver's license, and we decline to impose such a requirement in this case. See TEX. PARKS & WILD.CODE ANN. §§ 31.106-.110 (Vernon 2002). Pursuant to Section 31.107, a thirteen-year-old may legally operate a motorboat after successfully passing...