Jesse A. Rocamontes and Kimberly S. Grobe v. Evergreen Presbyterian Ministries, Inc.

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00471-CV

JESSE A. ROCAMONTES AND APPELLANTS
KIMBERLY S. GROBE

V.

EVERGREEN PRESBYTERIAN APPELLEE
MINISTRIES, INC.

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FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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This is a summary judgment appeal. One afternoon, an automobile driven

by Patsy R. Wilson struck and killed a fifteen-year-old pedestrian, Cody

Rocamontes. Wilson is employed by Appellee Evergreen Presbyterian

Ministries, Inc. Cody’s parents, Appellants Jesse A. Rocamontes and Kimberly

S. Grobe, sued Evergreen alleging that it was vicariously liable for any
1
See Tex. R. App. P. 47.4.
negligence by Wilson in hitting Cody because she was in the course and scope

of her employment or was on a special mission when she struck Cody. The trial

court granted Evergreen’s no-evidence and traditional motion for summary

judgment. Appellants perfected this appeal.

When a party moves for both no-evidence and traditional summary

judgment, we first review the trial court’s summary judgment under the no-

evidence standard. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004). Under that standard, after an adequate time for discovery, the party

without the burden of proof may, without presenting evidence, move for summary

judgment on the ground that there is no evidence to support an essential element

of the nonmovant’s claim or defense. Tex. R. Civ. P. 166a(i). The motion must

specifically state the elements for which there is no evidence. Id.; Timpte Indus.,

Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the

motion unless the nonmovant produces summary judgment evidence that raises

a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v.

Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

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S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

Evergreen’s no-evidence summary judgment motion alleged that no

evidence exists that Wilson was in the course and scope of her employment with

Evergreen at the time of the accident or that Wilson fell within the special mission

exception to the course and scope requirement. The summary judgment

evidence filed by Appellants establishes that Wilson was employed part time as a

caregiver by Evergreen and was paid on an hourly basis. Evergreen operates

numerous assisted living homes. Approximately 90% of the time, Wilson worked

at Evergreen’s Echo Summit House. On the date of the accident, Wilson was

scheduled to work at Evergreen’s Endicott House because of staffing problems

there. Prior to reporting for work at the Endicott House, Wilson drove her car to

the Echo Summit House to check the posted work schedule and to confirm that

she was to go to the Endicott House. After checking the schedule, Wilson left the

Echo Summit House to drive to the Endicott House; she stopped at Albertson’s

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on the way to purchase a bag of pretzels. Albertson’s is approximately two miles

from the Echo Summit House and is on the way to the Endicott House. After

leaving Albertson’s, Wilson took the most direct route to the Endicott House, and

on her way, she struck and killed Cody.

Wilson’s deposition and the deposition of Barbara Jobe, Wilson’s

supervisor, both were attached to Appellants’ response to Evergreen’s no-

evidence and traditional motion for summary judgment. Wilson testified in her

deposition that she signs in and out on a time sheet each day to show the hours

she worked that day; she did not sign in at the Echo Summit House when she

checked the schedule. Jobe testified in her deposition that Evergreen provides

company vehicles at each of its assisted living facilities, and employees do not

use their personal vehicles when they are performing work duties. Wilson

explained that Evergreen does not reimburse mileage or pay for time that

employees spend in their personal vehicles and that Evergreen did not instruct

her on any route to take from the Echo Summit House to the Endicott House.

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). In order to

render the master liable for an act of his employee, the act must be committed

within the scope of the general authority of the employee, in furtherance of the

master’s business, and for the accomplishment of the object for which the

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servant was hired. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567,

569 (Tex. 1972); Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354,

357 (Tex. 1971). An employer is liable for the negligent acts of his employee

only if, on the occasion in question, the employer had the right and power to

direct and control the employee in the performance of the causal act or omission

at the time of its occurrence. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 542

(Tex. 2003); Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 720 (Tex. App.—

Austin 2004, no pet.).

An employee generally is not in the course and scope of employment while

driving a vehicle to and from his place of work. London v. Tex. Power & Light

Co., 620 S.W.2d 718, 720 (Tex. Civ. App.—Dallas 1981, no writ). However, an

exception to this general rule exists “where an employee has undertaken a

special mission at the direction of his employer.” Chevron U.S.A., Inc. v. Lee,

847 S.W.2d 354, 356 (Tex. App.—El Paso 1993, no writ). To be on a special

mission, an employee must be under the control or acting in furtherance of the

employer. Upton v. Gensco, Inc., 962 S.W.2d 620, 621 (Tex. App.—Fort Worth

1997, pet. denied); Direkly v. ARA Devcon, Inc., 866 S.W.2d 652, 654 (Tex.

App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.).

Although the summary judgment evidence produced by Appellants

establishes that Wilson was driving her own vehicle and was on her way to work

at the Endicott House when the accident occurred, Appellants nonetheless argue

that genuine issues of material fact exist on the course and scope element of

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their vicarious liability claim because Wilson elected to travel to the Echo Summit

House to check the work schedule. Appellants argue that checking the schedule

was within the scope of Wilson’s authority, was in furtherance of Evergreen’s

business, and was for the accomplishment of the object for which Wilson was

hired, see Direkly, 866 S.W.2d at 654, and thus put her travel from the Echo

Summit House to the Endicott House within the course and scope of her

employment. Essentially, Appellants contend that Wilson’s conduct in checking

the work schedule was in furtherance of the interest of Evergreen because she

was ensuring that she would be at the proper jobsite at the proper time. 2 Despite

Appellants’ thorough efforts at flushing this issue out in their briefing, the

summary judgment evidence in the record shows no more than that Wilson was

on her way to work when the accident occurred; she was not in furtherance of the

accomplishment of Evergreen’s business after stopping at the Echo Summit

House to check the schedule any more than she would have been had she

driven straight from her home to the Endicott House. And an employee is not in

2
Wilson was asked the following at her deposition:

Q. Were you furthering the interest of Evergreen Presbyterian Ministries,
Inc., to show up for work that day?

A. Yes.

Q. And were your furthering the interest of Evergreen Presbyterian
Ministries, Inc., to show up at the proper location at the proper time - -

A. Yes.

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the course and scope of his employment merely by driving to and from his place

of work. See, e.g., Upton, 962 S.W.2d at 621; Chevron, U.S.A., 847 S.W.2d at

356; Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907 (Tex. App.—Corpus

Christi 1988, no writ).

Appellants point out that a special mission exception exists to the course

and scope vicarious liability requirement and argue alternatively that a fact issue

exists as to whether Wilson was on a special mission for Evergreen. Again, the

special mission evidence that Appellants point to is Wilson’s obtaining of

information that will enable her to arrive at work at the correct time and location.

The summary judgment evidence establishes that Evergreen did not direct

Wilson to check the schedule at the Echo Summit House, no evidence exists of

any policy requiring employees to check the schedule in person at the Echo

Summit House, and no evidence exists that Evergreen directed or controlled

Wilson’s decisions on how to drive from the Echo Summit House to the Endicott

House. Again, despite Appellants’ thorough efforts at flushing this issue out in

their briefing, the summary judgment evidence in the record shows no more than

that Wilson was on her way to work when the accident occurred; she was not on

a special mission directed by Evergreen because of her stop at the Echo Summit

House to check the schedule any more than she would have been had she

driven straight from her home to Endicott House. See, e.g., Upton, 962 S.W.2d

at 621; Direkly, 866 S.W.2d at 654.

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 Examining the entire record in the light most favorable to Appellants as the

nonmovants, indulging every reasonable inference and resolving any doubts

against Evergreen’s no-evidence motion, no evidence exists that Wilson was in

the course and scope of her employment with Evergreen when the accident

occurred, and no evidence exists that Wilson was on a special mission for

Evergreen when the accident occurred. We overrule Appellants’ sole issue and

affirm the trial court’s no-evidence summary judgment for Evergreen on

Appellants’ vicarious liability claim against Evergreen.

SUE WALKER
JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: October 18, 2012

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