“The evidence does not create an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014))
How later courts described this case
- “The evidence does not create an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014))
- Phillips, C.J., concurring and dissenting, joined by Enoch, Baker, Abbott, and Hankinson, JJ.
Written by the judges who cited it.
The opinion
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-22-00736-CV
Sarah Cook, Appellant
v.
Texas Highway Walls, LLC, Appellee
FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-22-006133, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING
C O N C U R R I N G AND D I S S E N T I N G O P I N I O N
Because I conclude that Sarah Cook failed to raise a fact issue that Texas
Highway Walls (THW) is vicariously liable for the alleged negligence of Blake Cervenka, I
respectfully dissent from the majority’s disposition of that claim. 1
“As a general rule, one person is under no duty to control the conduct of another,
even if he has the practical ability to exercise such control.” Pagayon v. Exxon Mobil Corp.,
536 S.W.3d 499, 504 n.17 (Tex. 2017) (citing Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309
(Tex. 1983)). The common-law doctrine of vicarious liability, however, makes “a principal
liable for the conduct of his employee or agent.” F.F.P. Operating Partners, L.P. v. Duenez,
237 S.W.3d 680, 686 (Tex. 2007). This liability is based on “the principal’s control or right to
control the agent’s actions undertaken to further the principal’s objectives.” Id. Vicarious
1I agree with the majority that Cook failed to raise a fact issue on her claims against
THW for negligence and gross negligence.
liability requires the plaintiff to prove that, at the time of the negligent conduct, the worker was
(1) an employee or agent of the defendant, and (2) the worker was acting in the course and scope
of his employment. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018);
Duenez, 237 S.W.3d at 686.
I agree with the majority that Cook raised a fact issue on the first element.
However, I cannot agree with the majority’s analysis or conclusion as to the second issue. This
element hinges on an “objective analysis” of “whether the employee was performing the tasks
generally assigned to him in furtherance of the employer’s business. That is, the employee must
be acting with the employer’s authority and for the employer’s benefit.” Painter, 561 S.W.3d at
138–39. 2
The majority concludes that the facts, viewed in the light most favorable to Cook,
“create a lattice of circumstances that would enable reasonable and fair-minded people to
develop more than a mere suspicion or surmise that Cervenka was acting within his role as an
agent of THW at the time of the accident.” Ante at 7. I respectfully disagree because there is no
evidence that would permit a reasonable person to infer that he was acting in that role at the time
of the collision. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220
(Tex. 2017) (“The evidence does not create an issue of material fact if it is ‘so weak as to do no
more than create a mere surmise or suspicion’ that the fact exists.” (quoting Kia Motors Corp. v.
Ruiz, 432 S.W.3d 865, 875 (Tex. 2014))). Although circumstantial evidence may be relied upon
to establish a material fact, under the equal-inference rule, when “circumstances are consistent
with either of the two facts and nothing shows that one is more probable than the other, neither
2 Put differently, the employee’s negligent conduct “must be of the same general nature
as the conduct authorized or incidental to the conduct authorized to be within the scope of
employment.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007).
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fact can be inferred.” Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (Phillips, C.J.,
concurring and dissenting, joined by Enoch, Baker, Abbott, and Hankinson, JJ.) (quoting Litton
Indus. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984)). “Evidence that is so slight
as to make any inference a guess is in legal effect no evidence.” Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 601 (Tex. 2004) (citing Lozano, 52 S.W.3d at 148; Browning-Ferris, Inc.
v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993)). Such is the evidence in this case, which reviewed
in the light most favorable to Cook, is equally consistent with Cervenka traveling on a work task
or completing a personal errand.
According to Cervenka’s undisputed testimony, his afternoons were a mix of
personal errands and professional tasks, including occasional travel “to a job site or a meeting.”
Cervenka evidently enjoyed the discretion to work when and where he chose. Even if he had a
job meeting or trip to a work site scheduled later that day, the evidence that he received a work-
related phone call before the accident, made work-related phone calls afterwards, and returned to
the office later that day does not permit a reasonable person to infer that he was on
THW’s business at the time of the accident. See, e.g., Mejia-Rosa v. John Moore Servs., Inc.,
No. 01-17-00955-CV, 2019 WL 3330972, at *7–9 (Tex. App.—Houston [1st Dist.]
July 25, 2019, no pet.) (mem. op.) (holding that record of calls placed and received on company
cell phone, one ending a half-hour before driving accident and two brief calls beginning about a
half-hour after the accident, did not establish fact issue regarding course and scope of
employment at time accident occurred).
Without—at minimum—some fact that would permit a reasonable person to infer
Cervenka’s destination, the record does no more than raise a surmise or suspicion that Cervenka
was acting in the course and scope of his employment. See Painter, 561 S.W.3d at 137
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(explaining that “employee was not within the scope of employment while using his employer’s
vehicle to run a personal errand, even though he was not restricted from using the truck for
personal business” (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757–58
(Tex. 2007))); Breedlove v. Moffitt, No. 12-21-00037-CV, 2022 WL 1286564, at *3 (Tex.
App.—Tyler Apr. 29, 2022, pet. denied) (mem. op.) (concluding that while “there is no doubt
that [the employee] was working on the day in question,” the “evidence does not permit a
factfinder reasonably to determine the location of [the employee’s] primary destination at the
time of the accident so as to support a finding that he was within the course and scope of his
employment at that time”).
Because Cook failed to raise a fact issue on whether Cervenka was acting in the
course and scope of his employment/agency at the time of the accident, I would affirm the
district court’s grant of no-evidence summary judgment on that claim.
For these reasons, I concur in part and respectfully dissent in part.
__________________________________________
Rosa Lopez Theofanis, Justice
Before Chief Justice Byrne, Justices Triana and Theofanis
Filed: February 16, 2024
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