Pinkham v. Apple Computer, Inc., 2-85-021-CV
| Decision Date | 07 November 1985 |
| Docket Number | No. 2-85-021-CV,2-85-021-CV |
| Parties | Roger PINKHAM, Sr. and Linda Blalock, Individually and as Next Friend of Carl Atwater, a minor, Appellants, v. APPLE COMPUTER, INC., Appellee. |
| Court | Texas Court of Appeals |
Cox & Bader, and Bertran T. Bader, III, Dallas, for appellants.
Vial, Hamilton, Koch, Tubb & Knox, and Gerald R. Powell, Dallas, for appellee.
Before ASHWORTH, JOE SPURLOCK, II and HILL, JJ.
This is an appeal from a summary judgment granted on the basis that there is no liability on the part of an employer for subsequent acts of negligence by an employee who became intoxicated at a company party for employees.
We agree that under the summary judgment evidence in this case, there is no liability on the part of the employer and affirm the judgment of the trial court.
Appellants, Roger Pinkham, Sr. and Linda Blalock, brought suit individually and as next friend of Carl Atwater, a minor, against Steven Wayne Denney and Apple Computer, Inc. (Apple) for damages resulting from the death of Roger M. Pinkham, Jr., son of Pinkham, Sr. and Blalock, and injuries to Carl Atwater, a minor. Appellants alleged Denney operated a motor vehicle in a negligent manner allowing it to strike a bicycle operated by Atwater with Pinkham, Jr. as a passenger; that Pinkham, Jr. was killed and that Atwater suffered serious injuries. It was alleged that Denney had attended a company party prior to the incident and Apple was negligent in: (1) furnishing intoxicating liquors to Denney; (2) furnishing intoxicating liquors to him after he was intoxicated; (3) failing to ascertain whether he was so intoxicated he could not properly drive before allowing him to leave the premises; (4) allowing him to leave the premises while intoxicated; (5) failing to restrain him from leaving; and (6) failing to provide him an alternative means of transportation home.
Apple filed a motion for summary judgment. The motion is not included in the transcript before us, but the briefs of both parties indicate that it was granted on the basis that there was no duty on the part of Apple to control the off-duty, off-premises conduct of its employee, Denney. The trial court severed the action against Denney and dismissed as moot a cross action by Apple against the caterer who supplied the intoxicating liquor (beer), as well as the other food and drinks for the party. These actions resulted in a final judgment of dismissal of appellants' cause of action against Apple.
The summary judgment proof which the trial court had before it consisted of the answers to interrogatories made by Apple and the depositions of Denney, David Lietzke (Apple's Personnel Manager), James Gay (fellow employee), George Knowles (fellow employee), James Day (Denney's supervisor), and Lee Steele (an engineer employee).
Much of the summary judgment proof concerned the status of Denney as an employee. Apple was in need of some temporary help in its Maintenance Department and as a practice contracted with an employment service for additional temporary help. Denney was furnished by the employment service as a temporary employee; he worked along with regular employees and was subject to the same hours and conditions of employment. While he submitted to Apple records of hours worked, he also submitted such records to the employment service which paid him. He was not entitled to such company benefits as insurance, sick leave and vacation time. He had worked at Apple for a period of about five or six weeks at the time of the party. While there is no formal stipulation in the record before us, in their briefs and in oral argument the parties have agreed that for purposes of this appeal, Denney should be considered as an employee of Apple at the time of the party. It is undisputed that Denney was not in the course and scope of employment on the day in question.
The deposition of Apple's Personnel Manager, David Lietzke, shows the company party in question was a chili cook-off planned by Apple's Personnel Department. All employees, their families, and employees of certain sub-contractors were invited to attend and participate. Certain departments, including maintenance, set up booths and organized cooking teams. Apple furnished the ingredients for the chili; Butch Arnold and Associates, the caterer, furnished other food and drink, consisting of one thousand hot dogs, one thousand nachos, twelve hundred cold drinks, and twenty-four hundred beers. Keg beer was provided and served in twelve ounce cups. Service of the food and drink apparently began about 11:00 a.m.
In his deposition, Denney stated he arrived at the party site which was Apple's parking lot at about 8:00 a.m. Denney arrived early in order to assist in setting up the Maintenance Department booth. During the course of the day starting about 12:00 noon, he drank about ten or fifteen cups of beer and took three drinks of tequila furnished by an employee of a sub-contractor in the maintenance group. At about 1:00 p.m. Denney and a fellow employee went to the residence of the latter which was about four miles from the party site. Denney smoked one "joint of pot" at the residence and then the two of them returned to the party. Denney socialized and danced until he decided to leave the party at about 3:30 p.m.; he said goodbye to his supervisor, Day, and drove away as if his car "was on top of eggshells." Denney could not recollect anything that happened after that, but the collision with the bicycle occurred shortly thereafter about one mile away.
In his deposition, a fellow employee, James Gay, testified that he was an employee in the Maintenance Department. Gay saw Denney on several occasions at the party, and saw him for the first time at about 10:30 or 11:00 a.m. Gay saw Denney for the last time about 2:00 or 3:00 p.m. when Denney was dancing in the parking lot without his shirt. Gay did not know whether Denney was intoxicated at the party.
The deposition of George Knowles, a fellow Maintenance Department employee, was taken. Knowles saw Denney for the first time at about 10:30 a.m. Denney was walking around visiting the various booths. Knowles saw Denney drinking beer and dancing with his shirt off. Knowles and Denney left the party at about 12:30 p.m., went to Knowles' residence which was two or three miles from the party site, and then they returned to the party about 1:00 or 1:15 p.m. Knowles drank from a bottle of tequila brought by another employee but could not testify Denney drank any tequila. Knowles thought Denney appeared to be intoxicated about 3:00 p.m. because of his manner of speaking and the appearance of his eyes. Denney was not stumbling, staggering, loud, or rowdy, but did take his shirt off. Knowles saw Denney backing out in his car to leave the party at about 4:00 p.m. Knowles believed he saw Denney's glasses on his car as Denney was...
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