Opinion

Opinion issued March 29, 2012.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-07-00572-CV

———————————

Cory Wayne Magee and Tracey D'Ann Mayo, individually and as

representatives of the Estate of Douglass Magee and Lois Magee , Appellants

V.

G & H

Towing Company and G & H Towing Inc. , Appellees

On Appeal from the Probate Court No. 1

Harris County, Texas

Trial Court Case No. 350605-402

OPINION ON REMAND

FROM THE TEXAS SUPREME COURT

The trial

court rendered summary judgment in favor of the appellee-defendant, G&H

Towing Company. On appeal, we reversed

the summary judgment and remanded to the trial court because one of the appellants-plaintiffs’

claims was not addressed in G&H’s summary-judgment motion. 312 S.W.3d 807 . The supreme court reversed our judgment,

holding that G&H’s failure to address one of the plaintiffs’ claims was

harmless because that claim was derivative of another claim, against a

different party, on which we affirmed summary judgment. 347 S.W.3d 293, 295 . The supreme court then remanded to this Court

for consideration of the plaintiffs’ other arguments not reached in our earlier

opinion. We affirm the trial court’s

summary judgment in G&H’s favor.

BACKGROUND

The claims in this case arise from an

automobile accident involving one of G&H’s employees. Defendants William Colson and Joseph Violante

were employed by G&H 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, but G&H conceded

in the trial court that this practice was widespread and that there was some

evidence that the practice was pursuant to an unwritten company policy.

As was their custom, on May 14,

2004, Violante borrowed Colson’s vehicle at the end of his shift and drove

himself home. Later that night, Violante

drove Colson’s vehicle to a bar. After

leaving the bar, Violante was involved in a collision that killed Douglas and

Lois Magee. Violante was convicted on

two counts of failure to yield the right of way and intoxication manslaughter.

The Magees’ adult children 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. Relevant to this appeal, the

Magees asserted that G&H was negligent, through its agent Colson, by

entrusting Violante with a vehicle without investigating his driving

record. They further contended that

Colson had an independent duty to inquire about Violante’s competence as a

driver, and that G&H was vicariously liable for Colson’s negligent

entrustment of his vehicle to Violante because Colson was acting within the

course and scope of his employment with G&H at the time.

A. The Trial Court’s Judgment and Prior Appellate

Proceedings

G&H Towing filed a motion for

summary judgment, which the trial court granted, rendering an interlocutory

take-nothing summary judgment in G&H’s favor. The trial court later severed the Magees’

claims against G&H, rendering that summary judgment in G&H’s favor a

final, appealable order. A summary

judgment in favor of Colson was also severed, making a take-nothing summary

judgment in favor of Colson final as well. The Magees appealed both summary

judgments to this Court.

In our prior opinion, we affirmed

Colson’s take-nothing summary judgment, concluding that the trial court correctly

determined that there was no evidence of at least one element of the Magees’

negligent-entrustment claim against him because Colson did not have an

independent duty to investigate Violante’s competence as a driver. 312 S.W.3d at

812 . The Magees did not appeal our

determination in that regard to the supreme court.

In the same opinion, we reversed and remanded

the summary judgment favoring G&H Towing. Id .

at 813. Specifically, we concluded that

the trial court erred in rendering a take-nothing summary judgment in favor of

G&H 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. [1] Id .

at 810–11. Because of this omission, we

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)). We then 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 appealed to the Texas

Supreme Court. Because an employer

cannot be vicariously liable in tort when its agent or employee has not engaged

in tortious conduct, the supreme court concluded that we erred by remanding to

the trial court the claim that G&H was vicariously liable for Colson’s

alleged tortious conduct while simultaneously holding that Colson had not committed a tort. 347 S.W.3d at 297 (“If the defendant has

conclusively disproved an ultimate fact or element which is common to all

causes of action alleged, or the unaddressed causes of action are derivative of

the addressed cause of action, the summary judgment may be affirmed”). The supreme court thus reversed our judgment

and remanded the cause to this Court for consideration of the issues we did not

reach in our prior opinion.

B. Issues on Remand

The Magees raised five issues in

their prior appeal:

(1)

G&H’s summary judgment motion did not address all of Plaintiffs’

claims as required under McConnell v.

Southside Ind. Sch. Dist. , 585 S.W.2d 337 (Tex. 1993).

(2)

Plaintiffs produced legally sufficient evidence that Colson was acting

within the course and scope of his employment with G&H when he entrusted

the vehicle to Violante, and G&H admitted that the record contained legally

sufficient evidence on this issue.

(3)

Plaintiff produced legally sufficient evidence with respect to their

claims against G&H for vicarious liability for Colson’s negligent

entrustment of the vehicle to Violante; and therefore summary judgment with

respect to the Plaintiffs’ gross negligence claims against G&H, based on

the absence of evidence of ordinary negligence, was also improperly granted.

(4)

G&H’s summary judgment motion contained no other basis upon which

summary judgment with respect to Plaintiffs’ claims of vicarious liability

based upon Colson’s negligent entrustment of the vehicle to Violante could

properly be entered or affirmed because under the circumstances of this case,

Plaintiffs were not required to adduce evidence of proximate cause other than

the evidence of proximate cause otherwise required by the elements of a cause

of action for negligent entrustment — i.e., that Violante’s

negligence was a proximate cause of the fatal accident.

(5)

Plaintiffs produced legally sufficient evidence of each required element

of their causes of action for negligent entrustment against Colson, acting in

his capacity as agent of G&H.

The first issue was disposed of by

the supreme court’s opinion holding that G&H’s failure to address all the

Magees’ claims was harmless, and the second, third, and fourth were resolved by

our prior opinion concluding that there was no evidence to support at least one

element of the Magees’ negligent-entrustment claim against Colson (meaning

there was no independent negligent entrustment by Colson during the course and

scope of his employment for G&H to be vicariously liable for).

The remaining, unresolved fifth issue — i.e., whether there is evidence to support a

direct claim of negligent entrustment against G&H — is not dependent upon whether Colson was

individually negligent, so we address the merits of that claim in this opinion.

THE PARTIES’

ARGUMENTS

In addition to arguing that G&H

was vicariously liable, through respondeat

superior , for Colson’s negligent entrustment (a claim foreclosed by our

determination that Colson did not negligently entrust his vehicle to Violante),

the Magees argue in their brief that “G&H and Colson, in his capacity as

agent of G&H, should have known of Violante’s record of incompetent and

reckless driving because they had a duty to investigate his driving record prior

to entrusting Colson’s vehicle to him as part of G&H’s employee shuttle

transportation system.” They note that “G&H regularly checked the

driving records of all employees who drove company-owned vehicles in connection

with the ‘shore side’ i.e., the dockside activities of the company.” In contrast, “G&H took no action to

investigate the driving records of employees who would be using the vehicles of

their fellow employees as part of the company’s employee relief shuttle

system.” According to the Magees,

“[b]ecause the employee shuttle system involved regular use of motor vehicles

by company employees for the benefit of the company and the furtherance of its

business interests, G&H had a legal duty to investigate the driving records

of employees who would regularly use vehicles in connection with this shuttle

system.”

The Magees contend that G&H had

a duty — stemming from the special

employer-employee relationship G&H had with Violante — to investigate Violante’s driving record beyond

whether he was licensed. They also argue

that his driving record and criminal record provided legally sufficient

evidence of incidents in close enough temporal proximity to the May 2004 wreck

to show that he was an incompetent and reckless driver:

11/05/2003- injury accident with citation while

license suspended

06/23/2003- license suspension, no insurance

05/16/2 003- citation for

excessively wide turn

02/20/2003- citation for

speeding & no liability insurance

02/07/2002- injury accident with citation

05/1997 -

arrested & charged with reckless driving, speeding, DWI

11/1994 - arrested,

charged & pleaded guilty to driving with suspended license & carrying

unlawful weapon

08/1993 - charged &

acquitted of DWI

Despite these arguments by the

Magees about G&H’s direct liability for negligent entrustment, G&H

insists in its brief that the Magees have abandoned on appeal all direct

theories of liability advanced at trial, i.e., that G&H was liable for

negligent hiring, negligent supervision, and negligent entrustment. Alternatively, G&H asserts that the

Magees’ direct negligent-entrustment claims are conclusively defeated by the

fact that G&H was not the owner of the vehicle driven by Violante at the

time of the accident. They further

assert that, as a matter of law, “neither G&H nor Colson (i.e.,

individually or as alleged agent of G&H) had a duty to investigate

Violatne’s driving record prior to entrusting his vehicle to Violante” because

“Violante held a valid driver’s license when and at the time he took possession

of Colson’s vehicle” and because “there is no evidence that Violante was

intoxicated when and at the time he took possession of Colson’s vehicle.”

Finally, G&H argues that “the

record reflects that Violante’s driving record is not legally sufficient

evidence of the alleged incompetence or recklessness that allegedly caused the

accident in question.” Specifically, it

argues that, [i]n this case, there is no evidence of proximate cause because

the record of incompetence or recklessness, if any, of Violante was for minor

traffic violations, while the cause of the accident was arguably Violante’s

intoxication.” Similarly, G&H

contends that Violante’s criminal record is devoid of any indication of guilt

or fault for moving traffic-related offenses.

STANDARDS OF REVIEW

We review the district court’s summary

judgment de novo. See Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).

The standard governing a

traditional motion for summary judgment is well established: (1) the movant for

summary judgment has the burden of showing that no genuine issue of material

fact exists and that it is therefore entitled to summary judgment as a matter

of law; (2) in deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the nonmovant will be taken

as true; and (3) every reasonable inference must be indulged in favor of the

nonmovant and any doubts resolved in the nonmovant’s favor. See,

e.g. , Nixon v. Mr. Property Mgmt. Co. ,

690 S.W.2d 546 , 548–49 (Tex. 1985). Under

the “no-evidence summary judgment” rule, the movant may move for summary

judgment if, after adequate time for discovery, there is no evidence of one or

more essential elements of a claim or defense on which the nonmovant would have

the burden of proof at trial. Tex. R.

Civ. P . 166a(i).

When a trial court does not state

the basis for its decision in its summary judgment order, we must uphold the order

if any of the theories advanced in the motion is meritorious. Rogers

v. Ricane Enters., Inc. , 772 S.W.2d 76, 79 (Tex. 1989).

NEGLIGENT ENTRUSTMENT

A. Applicable Law

To establish liability under a

negligent entrustment theory for injuries arising from a vehicle collision, the

plaintiff must show that: (1) the defendant entrusted the vehicle to the driver;

(2) that person was an unlicensed, incompetent, or reckless driver; (3) at the

time of the entrustment, the defendant knew or should have known that the

driver was an unlicensed, incompetent, or reckless driver; (4) the driver was

negligent on the occasion in question; and (5) the driver’s negligence

proximately caused the accident. Goodyear Tire & Rubber Co. v. Mayes ,

236 S.W.3d 754, 758 (Tex. 2007) (citing Schneider

v. Esperanza Transmission Co. , 744 S.W.2d 595, 596 (Tex. 1987)). To sustain such a claim based on a failure to

screen, a plaintiff must show that anything found in a background check “would

cause a reasonable employer to not hire” the employee, or would be sufficient

to put the employer “on notice that hiring [the employee] would create a risk

of harm to the public.” Fifth Club, Inc. v, Ramirez , 196 S.W.3d

at 788, 796–97 (Tex. 2006). The

plaintiff must also prove that the risk that caused the entrustment or hiring

to be negligent caused the accident at issue. Schneider ,

744 S.W.2d at 597 .

B. Analysis

G&H specifically challenges the

first three elements of the Magees’ negligent entrustment claim: (1) whether

G&H entrusted a vehicle to Violante, (2) whether Violante was an

unlicensed, incompetent, or reckless driver, and (3) whether G&H knew, or

should have known that Violante was an unlicensed, incompetent, or reckless

driver. In addition, G&H argues

that, even if the Magees established the elements of a negligent-entrustment

claim, there is a fatal causal disconnect between the Violante’s alleged

incompetence as a driver and his intoxicated driving that caused the collision

and death of the Magees.

Whether a duty exists in a

negligence case is a question of law for the court. Greater

Houston Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990). The Magees’ theory is essentially that

G&H’s allegedly requiring Colson to share his personal vehicle with

Violante through the company’s relief shuttle system is — for purpose of negligent entrustment analysis — akin to G&H entrusting a company vehicle

directly to Violante. Under this theory,

for the Magees to prevail, we would have to conclude as a threshold matter that

an employer has a duty to investigate the driving record of any employee to whom

it entrusts a vehicle beyond ascertaining that the employee has a valid

driver’s license.

The Magees recognize that “the law

generally declines to recognize a duty to control the conduct of others,” but

insist that “this general rule does not apply to the situation of an employer

and employee.” They acknowledge that

there are negligent-entrustment cases refusing to impose a duty to investigate

a person’s driving record beyond ascertaining that the person has a valid

driver’s license, but point out that these cases do not involve

employee-employer relationships. See Avalos v. Brown Auto. Ctr., Inc. , 63

S.W.3d 42 , 48 – 49 (Tex. App.—San Antonio

2001, no pet) (no duty of automotive repair company to investigate record of

customer and licensed driver to whom loan vehicle was entrusted); Nobbie v. Agency Rent-a-Car, Inc. , 763

S.W.2d 590 , 591 – 93 (Tex.

App.—Corpus Christi 1988, writ denied) (no duty by rental car company to

investigate beyond confirmation of license).

In support of their argument that

G&H owed a duty to investigate Violante’s driving record, the Magees cite

three cases. See Russell v. Ramirez , 949 S.W.2d 480 (Tex. App.—Houston [14th

Dist.] 1997, no pet.); Lorillard v. Davis ,

770 S.W. 2d 606 (Tex. App.—Dallas 1989, writ dism’d w.o.j.); Montgomery Ward & Co. v. Marvin Riggs

& Co. , 584 S.W.2d 863 (Tex. Civ. App.—Austin 1979, writ ref’d n.r.e.).

We disagree that these cases support the argument that, on the facts presented

in this case, an employer has a duty to investigate its employee’s driving

record beyond ascertaining that the employee is a licensed driver, absent

evidence that the employer is otherwise on notice that the employee might be an

incompetent driver.

In Russell v. Ramirez , the Fourteenth Court of Appeals affirmed a

negligent-entrustment judgment against a mother and father whose son wrecked

their vehicle. 949 S.W.2d at 483 – 83. The

son’s driving record reflected that he received six or seven traffic citations

during the preceding two years. Id . at 490. While both parents denied knowing that their

son had a “bad driving record,” there was evidence that the father had previously

ridden with him and “commented to his son about his bad driving habits.” Id . Thus, in that case there was evidence that

the defendant should have known that the driver was incompetent, separate and

apart from a review of his driving record itself. The court therefore concluded that, given the

evidence, the “jury could have chosen not to believe” the defendants’ testimony

that they did not know that their son was a bad driver. Id . In dicta, the court further observed that even

if the defendants conclusively established their ignorance of their son’s

driving record, the jury could still have found them liable for negligent

entrustment. Id . The court reasoned that

the “jury could have found that a reasonable owner should have inquired into

[the son’s] driving record and that the failure to make an inquiry about [the

son’s] driving record constituted negligence.”

Id . The court stated that the “jury could have

also found a reasonable owner should have known [the son] was a bad driver and,

by failing to check [his] driving record and inquire into [his] driving habits”

the defendants were negligent in entrusting their son with their car. Id . We do not agree that Russell compels us to hold that an employer necessarily has the

duty to inquire about its employees’ driving records.

Unlike Russell , the other two cases cited by the Magees — Lorillard

v. Davis and Montgomery Ward & Co. v. Marvin Riggs

& Co.— do involve employment relationships, but neither case stands for

the proposition that an employer always has a duty to investigate its employees’

driving records when entrusting them with a vehicle. In Lorillard ,

the Dallas Court of Appeals affirmed a judgment on a gross-negligence finding

against an employer based on its entrustment of an employee with a company

vehicle. 770 S.W.2d at 611 – 13.

The court held the jury’s finding was supported by evidence that the

employer entrusted the employee with a vehicle even though (1) the company

investigated and discovered, at the time the employee was hired, that he had

five moving violations and two accidents on his record, and (2) the company

failed to ever again inquire about the employee’s driving record after he was

hired and given use of a car. Id . at 612. In Montgomery

Ward & Co , the Austin Court of

Appeals likewise affirmed a judgment on a gross-negligence finding against an

employer based on its entrustment of an employee with a company truck. 584 S.W.2d at 866 – 68. The

court held that the finding was supported by extensive testimony that a

supervisor that was charged with teaching the driver at issue how to drive a

truck expressed concern to the company that the driver could not judge

distances accurately, had trouble hearing, had trouble using truck mirrors, was

slow to learn how to drive, and was too flustered and nervous in stressful

situations to do anything. Id . at 866. Despite that supervisor’s expressed opinion

that it would be a “good long” time before the driver could become “really

safe” with the truck, if ever, the defendant-employer entrusted the driver with

a truck. Id . We disagree with the

Magees that Lorillard and Montgomery Ward & Co. impose a legal

duty on employers to investigate the driving record of an employee that holds a

valid driver’s license when there is no evidence that the employer has

additional information calling into question that employee’s driving ability. [2]

The Magees do not dispute that

Violante had a valid driver’s license both when he was hired by G&H and at

the time Colson entrusted his vehicle to him.

The Magees do not argue that there is any evidence that G&H had any

actual knowledge that Violante might be an unsafe driver. Because the Magees’ negligent entrustment

argument against G&H is dependent upon their argument that it had a duty to

investigate Violante’s driving record beyond ascertaining that he had a valid

driver’s license, and because we have concluded — on the facts of this case — that G&H

did not have a general duty to investigate Violante’s driving record absent other

indicators that he may be an unsafe driver, we hold that the trial court

properly granted summary judgment on the Magees’ direct negligent-entrustment

claims against G&H.

CONCLUSION

We affirm the trial court’s summary

judgment in G&H’s favor.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.

[1]

G&H’s summary-judgment

motion addressed the claim that it was directly responsible for allegedly

entrusting the vehicle to Violante through its agent Colson, but the motion did

not address the claim that it was vicarious liability for Colson’s negligent

entrustment.

[2]

Although not cited by the

Magees, we recognize that the Waco Court of Appeals in Southwestern Bell Telephone Co. v. Davis stated that evidence of an

employer’s hiring a driver without checking his driving record can support a

finding of ordinary negligent entrustment — but not gross negligence — even if the evidence establishes that the employer

had no actual knowledge of the employee’s driving record indicating that he was

an unsafe driver. 582 S.W.2d 191, 195

(Tex. Civ. App.—Waco 1979, no writ). This

was dicta, as the court was reviewing the sufficiency of the evidence to

support only a gross-negligence finding.

Moreover, such a broad proposition was not actually supported by the

authority the court cited in support. Id . (citing Union Transps., Inc. v. Braun , 318 S.W.2d 927 (Tex. Civ.

App.—Eastland 1958, no writ), Mundy v.

Pirie-Slaughter Motor Co. , 206 S.W.2d 587 (Tex. 1948), and Hines v. Nelson , 547 S.W.2d 378 (Tex.

Civ. App.—Tyler 1977, no writ)). We

accordingly decline to adopt such a sweeping rule. We also note that it is not clear whether, in

Southwestern Bell Telephone v. Davis ,

driving was part of the employee’s primary responsibilities — a situation we do not

opine on today.