Luzstella Arbelaez v. Just Brakes Corporation

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00587-CV

Luzstella Arbelaez, Appellant

v.

Just Brakes Corporation, Appellee

FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT

NO. 02-694-C26, HONORABLE BILLY RAY STUBBLEFIELD, JUDGE PRESIDING

O P I N I O N

This is a summary judgment case. We are asked to review the grant of a traditional (1)

motion for summary judgment in favor of appellee, Just Brakes Corporation. The district court ruled

as a matter of law that Brian Paul, an employee of Just Brakes, was not within the course and scope

of his employment at the time of an automobile collision with appellant, Luzstella Arbelaez.

Concluding that Just Brakes failed to prove as a matter of law that Paul was not acting within the

course and scope of his employment, we reverse and remand.

BACKGROUND

In January 2001, Paul, a mechanic for Just Brakes, arrived at work at approximately

6:45 a.m. Within a few minutes, according to Paul's deposition testimony, the shop manager gave

Paul his "first assignment" of the day, which was to pick up breakfast for himself, his manager, and

his other co-workers at a nearby McDonald's restaurant. While exiting the Just Brakes parking lot

in his own vehicle, Paul collided with Arbelaez.

Arbelaez filed a negligence lawsuit against Paul. After some discovery, she amended

her petition to name Just Brakes as an additional defendant, claiming it was vicariously liable for

Paul's negligence. Through discovery, Arbelaez learned of several facts, some of which are

disputed, that indicated that Paul was within the course and scope of employment at the time of the

collision. Paul testified in a deposition that his manager had asked him to go to McDonald's as his

"first assignment" of the day. (2) In a summary-judgment affidavit, Paul's manager stated that he

merely allowed Paul to go after Paul had volunteered. However, in a later deposition, Paul's

manager admitted that he could not state for sure one way or the other and that he could have asked

Paul to go. Furthermore, Paul's manager affirmatively testified in his deposition that an employee

routinely picked up breakfast for the crew every morning. A corporate representative for Just Brakes

also testified via deposition that this practice was used not only at this particular Just Brakes location,

but at other Just Brakes locations as well. Moreover, the corporate representative testified that

minimizing the number of absent employees, as this method of obtaining breakfast did, benefitted

Just Brakes because it was able to service more cars in a shorter period of time.

Paul stated he typically made the breakfast run for the shop because "they"

reimbursed him ten dollars a week for his gas money. Just Brakes asserts that the term "they" refers

to his fellow employees, but Paul specifically stated in his deposition that it was his manager who

paid him. (3) Finally, on the morning in question, Paul was "on the clock" and was paid for the time

he spent running this errand.

Just Brakes filed a traditional motion for summary judgment, asserting that it was not

vicariously liable for Paul's negligence because he was not acting within the course and scope of his

employment at the time of the accident. The district court granted Just Brakes' motion. This appeal

followed.

DISCUSSION

Standard of review

Because the propriety of a summary judgment is a question of law, we review the trial

court's decision de novo. Natividad v. Alexsis, Inc. , 875 S.W.2d 695, 699 (Tex. 1994); Texas Dep't

of Ins. v. American Home Assurance Co. , 998 S.W.2d 344, 347 (Tex. App.--Austin 1999, no pet.).

A defendant who moves for a traditional summary judgment must disprove at least one essential

element of each of the plaintiff's theories of recovery or conclusively establish each element of an

affirmative defense. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548

(Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts

resolved in its favor. American Tobacco Co. v. Grinnell , 951 S.W.2d 420, 425 (Tex. 1997); Nixon ,

690 S.W.2d at 549 . We disregard all conflicts in the evidence and accept the evidence favoring the

nonmovant as true. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co. , 391 S.W.2d

41, 47 (Tex. 1965); Domizio v. Progressive County Mut. Ins. Co. , 54 S.W.3d 867, 871 (Tex.

App.--Austin 2001, pet. denied). As Just Brakes so succinctly states in its appellate brief: "The

purpose of the summary judgment rule is not to provide either a trial by deposition or a trial by

affidavit, but to provide a method of summarily terminating a case when it clearly appears that only

a question of law is involved, and that no genuine issue of fact remains." See Schlager v. Clements ,

939 S.W.2d 183, 186 (Tex. App.--Houston [14th Dist.] 1996, writ denied); Dallas Cent. Appraisal

Dist. v. G.T.E. Directories Corp. , 905 S.W.2d 318, 320 (Tex. App.--Dallas 1995, writ denied)).

Although the parties dispute some of the facts at issue, our standard of review requires

us to accept the following facts as true:

•Paul was asked by his manager to obtain breakfast for the crew as Paul's "first

assignment" of the day;

•Paul's breakfast run was a daily routine, both at this and other Just Brakes

locations;

•Just Brakes benefitted by having only one employee out of the shop at a time;

•Paul's manager paid him ten dollars a week in gas money to run this errand; and

•Paul was "on the clock" and paid by Just Brakes for the time spent running this

errand.

Vicarious liability in general

An employer may be held liable for the tortious acts of an employee if the acts are

within the course and scope of employment. See Baptist Mem'l Hosp. Sys. v. Sampson , 969 S.W.2d

945, 947 (Tex. 1998). To defeat Arbelaez's claim of vicarious liability, Just Brakes was required

to establish as a matter of law either that: (1) Paul was not an employee; (2) no negligent act

occurred; or (3) Paul was not acting within the course and scope of his employment at the time of

the collision. See Drooker v. Saeilo Motors , 756 S.W.2d 394, 396 (Tex. App.--Houston [1st Dist.]

1988, writ denied) (citing Leadon v. Kimbrough Bros. Lumber Co. , 484 S.W.2d 567, 569 (Tex.

1972)). Only the third prong--course and scope of employment--is at issue here.

Course and scope of employment is generally a fact issue like negligence or

proximate cause. See, e.g. , GTE Southwest, Inc. v. Bruce , 998 S.W.2d 605, 618 (Tex. 1999); Texas

Workers' Comp. Comm'n v. Garcia , 893 S.W.2d 504, 515 (Tex. 1995). In the context of a

traditional motion for summary judgment, controlling fact issues are generally for the trier of fact,

and summary judgment for a defendant is appropriate only if the defendant-movant proves that no

genuine fact issue exists on an essential element of the plaintiff's claim. See El Chico Corp. v.

Poole , 732 S.W.2d 306, 315 (Tex. 1987); Jacobs v. Theimer , 519 S.W.2d 846, 847 (Tex. 1975). The

primary test for determining whether an employee is acting within the course and scope of

employment is whether the employer has the right to direct and control the employee's performance

at the time of the alleged negligent act. St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 542 (Tex. 2003)

("the right to control remains the 'supreme test' for whether the master-servant relationship exists"

and thus whether the rule of vicarious liability applies) (quoting Golden Spread Council, Inc. No.

562 of Boy Scouts of Am. v. Akins , 926 S.W.2d 287, 290 (Tex. 1996)); American Nat'l Ins., Co. v.

Denke , 95 S.W.2d 370, 373 (Tex. 1936); see also Restatement (Second) of Agency §§ 212, 219, 235

cmt. a (1958). (4)

To ultimately prove that an employee acted within the course and scope of

employment, however, Arbelaez must prove at trial that the act was (1) within the general authority

given to the employee; (2) in furtherance of the employer's business; and (3) for the accomplishment

of the object for which the employee was employed. (5) Leadon v. Kimbrough Bros. Lumber Co. , 484

S.W.2d 567, 569 (Tex. 1972). We can only uphold the district court's summary judgment if Just

Brakes disproved as a matter of law at least one of these essential elements. See Tex. R. Civ. P.

166a(c); Nixon , 690 S.W.2d at 548 . Because Paul's manager authorized Paul to obtain breakfast for

the crew, Just Brakes does not dispute that Paul's actions were within the general authority given to

him. We therefore address only the second two prongs.

In conducting our summary-judgment review, however, we wish to stress that our task

is not to weigh the evidence to determine whether Paul was in fact within the course and scope of

employment at the time of the collision. That question must be resolved by the trier of fact. Rather,

we are to review the summary-judgment evidence, construed in favor of the nonmovant, Arbelaez,

and determine whether Just Brakes has carried its burden to establish as a matter of law that no

genuine fact issues exist regarding the question of course and scope. Therefore, Just Brakes' burden

is certainly a heavy one. It must establish as a matter of law that, construing the facts in the light

most favorable to Arbelaez, it is entitled to a finding that Paul was not within the course and scope

of employment at the time of the collision. We conclude Just Brakes has not met this burden.

Just Brakes' motion for summary judgment

The sole ground on which Just Brakes moved for summary judgment was that Paul

was not within the course and scope of his employment when the collision occurred. In its attempt

to prove as a matter of law that Paul was not within the course and scope of employment, Just Brakes

advances several arguments. First, Just Brakes states: "It is well established that an employee is not

acting in the furtherance of his employer's business when he deviates from that employer's business

for a personal purpose." Just Brakes then asserts that Paul's manager possibly "condoned," "knew

of, or allowed" Paul to make the breakfast run, but Paul was "not ordered" to go. Just Brakes

concludes that Paul's personal errand did not benefit Just Brakes, "regardless of whether [Paul's]

manager knew of, or condoned, the diversion."

Just Brakes' argument fails to prove that Paul was not within the course and scope

of his employment for several reasons. First, Just Brakes' argument presupposes that Paul's manager

merely acquiesced in allowing Paul to make the breakfast run. The summary-judgment evidence

indicates, however, that Paul's manager affirmatively asked Paul to make the breakfast run for the

shop. Under our standard of review, we cannot--as Just Brakes would have us do--assume that

Paul requested permission to make the breakfast run; we must assume Paul's manager asked Paul

to perform this errand. See American Tobacco Co. , 951 S.W.2d at 425 .

Next, Just Brakes argues that Paul deviated from his employment because the

breakfast run was for purely personal purposes. This argument is contradicted by the summary-judgment evidence that Paul made the breakfast run as his "first assignment" of the day after he was

requested to do so by his manager. See id. "If the purpose of serving the master's business actuates

the servant to any appreciable extent his acts are within the scope of employment." Howard v.

American Paper Stock Co. , 523 S.W.2d 744, 747 (Tex. Civ. App.--Fort Worth 1975), reformed and

aff'd , 528 S.W.2d 576 (Tex. 1975); accord Best Steel Buildings, Inc. v. Hardin , 553 S.W.2d 122,

128 (Tex. Civ. App.--Tyler 1977, writ ref'd n.r.e.); Dictaphone Corp. v. Torrealba , 520 S.W.2d

869, 872 (Tex. Civ. App.--Houston [14th Dist.] 1975, writ ref'd n.r.e.). Even if Paul was personally

benefitted to some degree by his breakfast run, his actions could still be within the course and scope

of his employment. See Gilgon, Inc. v. Hart , 893 S.W.2d 562, 568 (Tex. App.--Corpus Christi

1994, writ denied) (employee's actions may still be within course and scope of employment even

if private matters are mixed with business errand); Torrealba , 520 S.W.2d at 872 ("Conduct may be

within the scope of employment, although done in part to serve the purposes of the servant or of a

third person.") (citing Restatement (Second) of Agency § 236 (1958)); Josey-Miller Co. v. Sheppard ,

357 S.W.2d 488, 490 (Tex. Civ. App.--Beaumont 1962, no writ) (employee still within course and

scope even when "there is a mingling of the master's business with the servant's business"). We

therefore hold that Just Brakes failed to prove that Paul deviated from his employment by complying

with his manager's request to make the breakfast run.

Finally, Just Brakes argues that Paul's "personal errand" was not in furtherance of

Just Brakes' business. As explained above, the summary-judgment evidence does not prove that

Paul's errand was for purely personal purposes. Moreover, summary-judgment evidence exists to

indicate that Just Brakes was indeed benefitted by Paul's breakfast run. Just Brakes' corporate

representative testified in a deposition (6) that (1) Just Brakes can complete more work in a shorter time

period with more mechanics present; (2) the practice of using one employee to obtain breakfast for

the entire shop was common at various Just Brakes locations; (3) to get a day's work done, a store

requires a minimal number of mechanics; (4) it is important to have a manager present at all times;

and (5) a reasonable manager would try to reduce the number of mechanics missing at any given

time. Because this routine practice benefitted Just Brakes, albeit indirectly, Just Brakes has failed

to prove that Paul's conduct was a purely personal errand that was not in furtherance of Just Brakes'

business.

We also address the numerous cases Just Brakes cites in support of its contentions

laid out above. (7) Each of these cases is easily distinguishable. See Gant v. Dumas Glass & Mirror,

Inc. , 935 S.W.2d 202 (Tex. App.--Amarillo 1996, no writ) (employee commuting from lunch

break); Brown v. American Racing Equip., Inc. , 933 S.W.2d 734 (Tex. App.--San Antonio 1996,

no writ) (employee exceeded scope of manager's authorization when performing "favor" for

manager while on lunch break); J&C Drilling Co. v. Salaiz , 866 S.W.2d 632 (Tex. App.--San

Antonio 1993, no writ) (employee commuting to work site following dinner); Andrews v. Houston

Lighting & Power , 820 S.W.2d 411 (Tex. App.--Houston [14th Dist.] 1991, writ denied) (employee

going to lunch). None of these cases addresses a situation where an employee complied with an

employer's request to run an errand that benefitted, even indirectly, the employer's business.

Just Brakes also cites Mitchell v. Ellis , 374 S.W.2d 333 (Tex. App.--Fort Worth

1963, writ ref'd), for the proposition that no benefit flows to the employer by allowing an employee

to engage in a purely personal matter. (8) As explained above, Paul's breakfast run was not a purely

personal matter, as was at issue in Mitchell . See id. Paul was complying with his manager's request

to perform an errand that benefitted Just Brakes.

Finally, Just Brakes cites two cases for the proposition that an employer's

reimbursement of gas money to an employee does not create a fact issue on course and scope of

employment. These cases, too, are easily distinguishable in that they involve employees commuting

to or from work, where the reimbursement of gas money was the only factor supporting a contention

that the employee was within the course and scope of employment. See Wilson v. H.E. Butt Grocery

Co. , 758 S.W.2d 904, 907 (Tex. App.--Corpus Christi 1988, no writ) (employee driving home

following work was compensated for extra trip to office); London v. Texas Power & Light Co. , 620

S.W.2d 718, 720 (Tex. App.--Dallas 1981, no writ) (employee driving to work at temporary job site

was compensated for extra distance traveled to temporary job site). Here, the summary-judgment

evidence indicates not only that Paul was reimbursed his gas money on a weekly basis, but also that

Paul's manager asked Paul to perform this errand on a routine basis, and that the errand benefitted

Just Brakes.

Having reviewed Just Brakes' motion for summary judgment, we hold that Just

Brakes failed to prove as a matter of law that Paul was not acting within the course and scope of his

employment. (9)

CONCLUSION

Under our standard of review, every reasonable inference must be indulged in favor

of Arbelaez and all doubts resolved in her favor. Applying this summary-judgment standard,

genuine fact issues exist as to whether Paul's actions were within the course and scope of his

employment. Just Brakes has therefore failed to disprove as a matter of law Arbelaez's claim of

vicarious liability. The ultimate question of whether Just Brakes is vicariously liable for Paul's acts

must be decided by a trier of fact. We therefore reverse the summary judgment of the district court

and remand for further proceedings.

__________________________________________

Mack Kidd, Justice

Before Chief Justice Law, Justices Kidd and B. A. Smith: Opinion by Justice Kidd;

Dissenting Opinion by Justice B. A. Smith

Reversed and Remanded

Filed: May 20, 2004

1. The record does not contain a no-evidence motion for summary judgment.

2. Paul also testified in his deposition as follows:

Q. Okay. And, just so I'm clear on this, Mr. Paul, you are here today telling us

under oath that you were on a job assignment from Just Brakes when this

collision occurred. Isn't that right, sir?

Yes.

You had already punched in. You were on the clock. Right, sir?

Yes.

Your gas was paid for these trips. Right?

Yes.

Your manager had told you to go pick up breakfast. Right, sir?

Yes.

3. Just Brakes' corporate representative testified that mechanics would be reimbursed their

gas money by the manager when they used their personal vehicles to run business errands such as

picking up parts, driving mechanics between Just Brakes locations, or taking customers home. Just

Brakes concedes that these sorts of errands would be within the course and scope of employment.

4. The Restatement (Second) of Agency states that, when considering course and scope of

employment, "[i]t is the servant's state of mind that is material," and the servant's conduct can be

within the course and scope of employment "if the servant is actuated to some extent by an intent

to serve the master." Restatement (Second) of Agency § 235 cmt. a (1958). Where a servant was

carrying out the express orders of the master, an inference is created that the servant was within the

course and scope of employment; the master, however, "can rebut the inference by proving that [the

servant] was [acting] solely for a purpose of his own and not to [serve the master]." Id. illus. 1.

5. We note that this test was developed in fact situations where it was unclear whether the

servant was actually serving the master. None of the seminal cases that developed this test involved

a situation where the servant was carrying out, albeit negligently, the express directions of the

master. See, e.g. , Southwest Dairy Products Co. v. De Frates , 25 S.W.2d 282 (Tex. 1939) (driver

detoured from mission to obtain supper); International & G.N.R. Co. v. Anderson , 17 S.W. 1039

(Tex. 1891) (railroad brakeman had no implied authority to eject passengers).

6. In response to Arbelaez's use of this evidence, Just Brakes states that it "disputes the

'inference[s]' [Arbelaez] attempts to draw" from Just Brakes' corporate representative's testimony.

This, however, ignores that every reasonable inference must be indulged in favor of Arbelaez and

any doubts resolved in her favor. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 549 (Tex. 1985).

7. We have been unable to find a single case in Texas jurisprudence that supports the

proposition that an employee is not within the course and scope of employment when the employee

carries out the express instructions of his employer in an activity that benefitted, even indirectly, the

employer's business. The closest case is Brown v. American Racing Equipment, Inc. , 933 S.W.2d

734, 735 (Tex. App.--San Antonio 1996, no writ), where an employee on his lunch break performed

a "favor" for his manager. In Brown , however, the employee was exceeding the scope of his

manager's authorization when the accident occurred. Id. at 736 . The court held that the employee

was not within the course and scope of his employment because there was no evidence that the

employee was authorized to act as he did. Id.

8. In Mitchell v. Ellis , the employee deviated from his delivery duties to purchase cigarettes;

after exiting his vehicle, he crossed a street negligently, causing an accident. 374 S.W.2d 333, 335

(Tex. App.--Fort Worth 1963, writ ref'd).

9. Just Brakes also argues that Paul's actions did not constitute a "special mission" on behalf

of Just Brakes. See, e.g. , Upton v. Gensco, Inc. , 962 S.W.2d 620, 622 (Tex. App.--Fort Worth 1997,

pet. denied); J&C Drilling Co. v. Salaiz , 866 S.W.2d 632, 636 (Tex. App.--San Antonio 1993, no

writ). Because the special-mission doctrine is only applied in commuting cases and Paul was not

commuting, but was already at work when his manager instructed him to make the breakfast run, we

conclude that it is unnecessary to engage in a special-mission analysis. See, e.g. , Upton , 962 S.W.2d

at 622 ; Salaiz , 866 S.W.2d at 636 .