Affirmed and Memorandum Opinion filed August 20, 2015.
In the
Fourteenth Court of Appeals
NO. 14-14-00332-CV
RAMIRO NAJERA, Appellant
V.
RECANA SOLUTIONS, LLC, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Cause No. 69057
MEMORANDUM OPINION
Ramiro Najera appeals from a take-nothing summary judgment rendered in
his suit against Recana Solutions, LLC. Recana, a staffing company, placed two of
its workers to provide manual labor to American Rice, Inc., at American Rice’s
plant. These workers were on the team that fumigated the packaged rice. One of
them was Najera. The other was James Prodoehl, who reported to Najera. On
June 4, 2012, close to the end of their shift, Prodoehl assaulted Najera with a hard
hat. Najera sustained injuries to his teeth and shoulder. Najera filed suit against
Recana, alleging respondeat superior, negligence, and gross negligence. Najera
claimed Recana was negligent in hiring and retaining Prodoehl because it did not
perform a criminal background check, and also was negligent in supervising and
training Prodoehl. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
American Rice, Inc. operates a rice mill at the port in Freeport, Texas.
Recana Solutions, LLC, is a staffing company. Pursuant to a service agreement,
Recana serves as the primary vendor for staffing laborers at the mill.
Ramiro Najera was employed by Recana and worked at the mill. Najera
worked with several others on a fumigation team. The team’s duties included
cutting and stretching large plastic sheets over pallets of packaged rice, fumigating
the rice, picking up garbage and dead pests, and sweeping. The team did its work
after the night shift “had already left.” Najera was in charge of the team and
reported to Francisco Ayala.
James Prodoehl worked for Recana. Prodoehl was a member of the
fumigation team and worked with Najera for about three months. Najera believed
Prodoehl did a good job at work and did not remember any complaints about him.
On June 4, 2012, Ayala informed Najera that his team needed to stay late
that day to remove plastic sheets from the pallets. Najera told his team, and some
of them got upset. Prodoehl told Najera that he was not going to work. Najera
responded that he would call Ayala and tell him. Prodoehl began hitting Najera
with a hard hat. Najera suffered loose front teeth and an injured shoulder. Recana
immediately terminated Prodoehl for fighting.
In his Recana employment application, Prodoehl indicated that he was not a
2
convicted felon. Prodoehl’s criminal record includes misdemeanor convictions for
possession of a controlled substance, DWI, and assault. Recana did not conduct a
criminal background check of Prodoehl.
Najera filed suit against Recana and American Rice,1 alleging negligence
and respondeat superior, and gross negligence as to Recana. Specifically, as to
negligence,2 Najera alleged that Recana had a duty to hire, supervise, and retain
competent and nonviolent employees; Recana breached that duty by failing to
check Prodoehl’s criminal history; and Recana’s negligence proximately caused
physical harm to Najera.
Recana filed a combined no-evidence and traditional motion for summary
judgment. With regard to respondeat superior, Recana argued that there was no
evidence that Prodoehl assaulted Najera in the course and scope of his
employment. With regard to negligence, Recana argued that there was no
evidence Recana owed Najera a duty to conduct a criminal background check on
Prodoehl for the American Rice position, Recana breached any duty, and any
breach was the proximate cause of Najera’s injuries. To the extent Najera alleged
that Recana negligently undertook the duty to conduct background checks based on
the service agreement,3 Recana argued there was no evidence of any of the
elements of negligent undertaking. Recana contended there was no evidence that:
1
Najera settled with American Rice, and the parties filed an agreed motion to dismiss
American Rice with prejudice. Although the record does not contain the trial court’s signed
dismissal order, the court’s order granting final summary judgment in favor of Recana states that
it finally disposed of all parties and all claims and was appealable.
2
Najera asserted his claims of negligence against Recana pursuant to section 406.033 of
the Texas Labor Code, a statutory provision governing employee common law claims against
employers not subscribed to workers’ compensation. See Tex. Lab. Code Ann. § 406.033 (West,
Westlaw through 2015 R. Sess.).
3
Section 6.3 of the service agreement provided that Recana would be responsible for
advertising, interviewing, reference screening, criminal background screening, drug testing, I-9
screening, and basic safety training.
3
(1) Recana undertook to conduct criminal background checks it knew or should
have known were necessary for Najera’s protection; (2) Recana failed to exercise
reasonable care in its performance of such services; (3) Najera relied on Recana’s
performing background checks or Recana’s performance increased Najera’s risk of
harm; and (4) any such negligence proximately caused Najera’s injuries. See Nall
v. Plunkett, 404 S.W.3d 552, 555–56 (Tex. 2013) (citing Torrington Co. v.
Stutzman, 46 S.W.3d 829, 838–39 (Tex. 2000)). Recana also argued there was no
evidence that Recana breached its duty to supervise or train Prodoehl or that any
breach was the proximate cause of Najera’s injuries. Further, Recana asserted
there was no evidence that Recana’s acts or omissions fulfilled the objective and
subjective components of gross negligence.
Recana also argued various traditional grounds for summary judgment: as a
matter of law, Prodoehl’s assault on Najera was not within the scope of his
employment; the evidence affirmatively proved Recana had no duty to perform a
criminal background check, Recana did not undertake any duty to perform a
criminal background check on Prodoehl and the service agreement did not require
that Recana conduct any background check, Recana did not breach any duty, and
no such breach proximately caused Najera’s injuries; and the evidence
affirmatively proved Recana did not breach any duty to supervise or train
Prodoehl, and no such breach proximately caused Najera’s injuries.
Recana attached Najera’s deposition and an affidavit from Michael
Cervantes, Recana’s safety manager and a business records custodian, with
exhibits. These exhibits consisted of the service agreement, a safety form where
Prodoehl acknowledged Recana prohibited horseplay and fighting, and the notice
of Prodoehl’s termination for fighting.
Najera responded, and attached various documents, including his deposition,
4
the service agreement, Recana’s incident report, Freeport Police Department
records, arrest and criminal case search documents for Prodoehl, an affidavit from
Billy Crowell,4 various medical records, and Prodoehl’s Recana employment
records.
Recana filed a motion to exclude Najera’s experts and an objection and
motion to strike Najera’s summary judgment evidence. The trial court held a
hearing on the motions. The trial court granted Recana’s motion to exclude as to
Crowell and motion to strike as to Crowell’s affidavit. The trial court granted
Recana’s motion for summary judgment without specifying the grounds. Najera
timely appealed.
II. ANALYSIS
A. Standard of review
We review the trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a trial court’s
order granting summary judgment does not specify the ground or grounds relied on
for its ruling, summary judgment will be affirmed on appeal if any theories
advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
A no-evidence motion for summary judgment is essentially a motion for a
pretrial directed verdict. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party
without the burden of proof may, without presenting evidence,
seek summary judgment on the ground that there is no evidence to support one or
more essential elements of the nonmovant’s claim or defense. Tex. R. Civ. P.
166a(i). A no-evidence motion for summary judgment must be granted if: (1) the
4
Najera had designated Crowell as a rebuttal expert witness on safety and OSHA
standards.
5
moving party asserts that there is no evidence of one or more specified elements of
a claim or defense on which the adverse party would have the burden of proof on
at trial and (2) the respondent produces no summary judgment evidence raising a
genuine issue of material fact on those elements. Navy v. Coll. of the
Mainland, 407 S.W.3d 893, 898 (Tex. App.–Houston [14th Dist.] 2013, no pet.);
see Tex. R. Civ. P. 166a(i). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007) (per curiam). The evidence is insufficient if it is so
weak as to do no more than raise a mere surmise or suspicion that the challenged
fact exists. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. &
Research Corp., 299 S.W.3d 106, 115 (Tex. 2009).
In a traditional motion for summary judgment, the movant bears the burden
of showing that no genuine issue of material fact exists and that it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c). Once the movant produces
sufficient evidence conclusively establishing its right to summary judgment, the
burden of proof shifts to the nonmovant to present evidence sufficient to raise a
fact issue. See Centeq. Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
A defendant who conclusively negates at least one of the essential elements of a
cause of action or conclusively establishes an affirmative defense is entitled
to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.
2010).
“When both parties bring forth summary judgment evidence, the ultimate
issue is whether a fact issue exists.” Cohen v. Landry’s Inc., 442 S.W.3d 818,
823–24 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Neely v.
Wilson, 418 S.W.3d 52, 59 (Tex. 2013)). In reviewing either type
6
of summary judgment motion, we take as true all evidence favorable to the
nonmovant and we indulge every reasonable inference and resolve any doubts in
the nonmovant’s favor. Navy, 407 S.W.3d at 898.
B. The trial court did not err in granting summary judgment to Recana.
In three issues, Najera contends that the trial court erred in granting
Recana’s motion for summary judgment. Najera complains that the trial court
erred: (1) by determining there was no duty to perform a criminal background
check, (2) by determining there was no duty to supervise Prodoehl, and (3) because
there were questions of material fact.
1. Negligence
We first consider Najera’s negligence claims.
Although an employer is not an insurer of its employees’ safety at work, it
has a duty to use ordinary care in providing a safe workplace. Patino v. Complete
Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas 2005, pet. denied). An
employer owes a duty to its other employees and to the general public to ascertain
the qualifications and competence of the employees it hires, especially when the
employee is engaged in a job that requires skill or experience and that could be
hazardous to the safety of others. Wise v. Complete Staffing Servs., Inc., 56
S.W.3d 900, 902 (Tex. App.—Texarkana 2001, no pet.).5 Therefore, an employer
is liable if it hires, retains, or supervises an employee whom it either knows or
should have known was not competent or fit for the job and whose incompetence
5
Although the Supreme Court of Texas has not yet set out what duty an employer has in
negligent hiring or supervision claims, it has indicated that to recover on these theories, a
plaintiff must show more than just negligent hiring practices. Davis-Lynch, Inc. v. Asgard
Techs., LLC, —S.W.3d—, No. 14-13-01112-CV, 2015 WL 3988232, at *7 & n.11 (Tex. App.—
Houston [14th Dist.] June 30, 2015, no. pet. h.) (citing Wansey v. Hole, 379 S.W.3d 246, 247
(Tex. 2012) (per curiam)).
7
or unfitness creates an unreasonable risk of harm to others because of the
employee’s job-related duties. See Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78,
100–01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Wise, 56 S.W.3d at
902; Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied).
Negligent hiring, retention, and supervision claims are all simple
negligence causes of action based on an employer’s direct negligence rather than
on vicarious liability. See Verinakis, 987 S.W.2d at 97. While the employee need
not be acting in the scope of his employment to impose liability on the employer,
the theory of negligent hiring and supervision does require that a plaintiff’s harm
be the result of the employment. Houser v. Smith, 968 S.W.2d 542, 544 (Tex.
App.—Austin 1998, no pet.). As with any negligence case, the plaintiff must
prove the existence of a legal duty, a breach of that duty, and damages proximately
caused as a result of the breach. See IHS Cedars Treatment Ctr. of DeSoto, Tex.,
Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Duty is the threshold inquiry and is a question of law for the court to decide
based upon facts surrounding the occurrence in question. Greater Houston Transp.
Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). In determining whether to
impose a duty on a particular defendant, courts weigh: (1) the risk involved; (2)
foreseeability of the risk; (3) likelihood of injury; and (4) the social utility of the
actor’s conduct and the magnitude of the burden on the defendant. See Greater
Houston Transp., 801 S.W.2d at 525. Foreseeability of the risk is the foremost and
dominant consideration. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.
1987). “In the absence of foreseeability, there is no duty.” NationsBank, N.A. v.
Dilling, 922 S.W.2d 950, 954 (Tex. 1996). Foreseeability means that a person of
ordinary intelligence should have anticipated the dangers that his negligent act
8
created for others. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549–50
(Tex. 1985).
a. Negligent hiring and retention
With regard to Recana’s hiring practices, the parties essentially disagree
about whether Recana had a duty to perform a criminal background check of
Prodoehl. Najera complains that the trial court erred in determining there was no
duty owed to him.
Both parties cite Wise v. Complete Staffing Services., Inc. Wise, an
employee of Mrs. Baird’s Bakery, was attacked and severely injured by a
temporary worker employed by a staffing company and placed at the bakery as an
unskilled laborer. 56 S.W.3d at 901. Wise alleged that the staffing company was
negligent and grossly negligent in employing the temporary worker because it did
not sufficiently investigate his criminal background and that the staffing company
had a “special relationship” with the temporary worker and failed to adequately
supervise his activities and adequately check his credentials. Id. Wise also alleged
that, because of its special relationship with the temporary worker, the staffing
company had a duty to discover and warn Mrs. Baird’s about the temporary
worker’s criminal background. Id. The staffing company moved for summary
judgment, contending that under the facts alleged by Wise, it had no general duty
to seek or obtain criminal records of its employees, no special circumstance existed
that would impose any heightened level of duty on it, and there was no evidence
that it assumed such a duty.6 Id. at 901–02.
6
The Wise court determined a fact issue existed as to the negligent performance of the
criminal background check that the staffing company did undertake to perform. 56 S.W.3d at
904. Here, Najera’s claim of negligence relates to failing to perform a criminal background
check, not performing one negligently. In any event, like the Wise court, we separately consider
any negligent undertaking claim brought by Najera.
9
The Wise court analyzed whether the temporary worker was placed in a
situation that foreseeably created a risk of harm to others because of his
employment duties. Id. at 903. The court noted that the case was unlike Estate of
Arrington v. Fields, 578 S.W.2d 173, 178 (Tex. Civ. App.—Tyler 1979, writ ref’d
n.r.e.), in which an employer was found liable for negligently hiring someone as a
security guard when he had a long criminal record, as it was foreseeable that a
customer might be harmed (there, shot) by an armed employee performing a
hazardous job. Wise, 56 S.W.3d at 903. The Wise court concluded that its facts
were closer to Guidry v. National Freight, Inc., 944 S.W.2d 807, 811–12 (Tex.
App.—Austin 1997, no writ), in which a truck driver sexually assaulted a third
party and the court held such “bad acts” to be unforeseeable. Wise, 56 S.W.3d at
903. The employer’s duty in Guidry did not extend to investigating non-vehicular
criminal backgrounds. Wise, 56 S.W.3d at 903. The Wise court explained that the
result in Guidry was consistent with the general negligent hiring rule, which is not
aimed at avoiding a general propensity for bad acts, but rather at protecting against
workers who are unsafe or dangerous on the job—i.e., their incompetency must be
somehow job-related. Wise, 56 S.W.3d at 903. The Wise court held that, similarly,
the temporary worker did not injure Wise as a result of incompetence or unfitness
for the job, but by an intervening criminal act, and the staffing company had no
duty to check the criminal histories of its employees unless it was directly related
to the duties of the job at hand. Id.
This court recently has applied the Wise court’s analysis in Davis-Lynch,
Inc. v. Asgard Technologies, LLC, —S.W.3d—, No. 14-13-01112-CV, 2015 WL
3988232, at *9 (Tex. App.—Houston [14th Dist.] June 30, 2015, no pet. h.). In
Davis-Lynch, a staffing company placed an employee as a receptionist at Davis-
Lynch, an oilfield manufacturing company. Id. at *1. The employee subsequently
10
was promoted and eventually became head of accounting. Id. at *1-2. Davis-
Lynch ultimately discovered that while in the accounting department the employee
had embezzled over $15 million and that her criminal history included a deferred
adjudication for a misdemeanor theft and a conviction for misdemeanor theft. Id.
at *2. Davis-Lynch brought various claims against the staffing company, including
for negligent hiring of the employee. Id. at *2, 9. This court affirmed the
summary judgment in favor of the staffing company as to the claim for negligent
hiring, concluding that the company did not have a duty to perform a criminal
background check when hiring and placing the receptionist at Davis-Lynch. Id. at
*10, 14 (“The facts do not show that [staffing company] knew or should have
known that, because of its acts of hiring and placing [employee] without
performing a background check, the crime (or one like it) might occur.”).
We conclude that Prodoehl’s assault on Najera falls more in line with Wise,
Guidry, and Davis-Lynch than with Estate of Arrington. Even when properly
viewed in the light most favorable to Najera, the evidence shows Prodoehl’s job as
a laborer on the fumigation team did not require any special or unique skills or
experience, and did not involve circumstances of heightened confrontation or
particularly dangerous tools or weapons. Therefore, this is not a situation that
foreseeably created a peculiar risk of harm to others by reason of the employment
duties. Compare Davis-Lynch, —S.W.3d—, 2015 WL 3988232, at *10, Wise, 56
S.W.3d at 903, and Guidry, 944 S.W.2d at 811, with Estate of Arrington, 578
S.W.2d at 178; see also Houser, 968 S.W.2d at 545 (sexual assault and harm to
customer were not foreseeable and transmission shop owner did not owe legal duty
beyond that of providing competent transmission mechanic).
There is no evidence that Prodoehl assaulted Najera as a result of his
incompetence or unfitness for the job. See Wise, 56 S.W.3d at 903. There is also
11
no evidence that Prodoehl proved to be incompetent in his job duties such that
Recana was negligent in retaining him as a laborer after he was hired. See Fifth
Club, Inc. v. Ramirez, 196 S.W.3d 788, 797 (Tex. 2006) (certified peace officer
was fit for security guard position and no conflicting evidence of unfitness prior to
incident). To the contrary, Prodoehl had previously performed his job duties well
and there were no complaints about his performance.7
Beyond that of employer and employee, these circumstances do not reflect
any special relationships that would enlarge Recana’s duties with regard to
investigating Prodoehl’s criminal background. See Wise, 56 S.W.3d at 904–05.
There is no evidence that Prodoehl would have potential contact with particularly
vulnerable individuals.8
In addition to the lack of foreseeability, performing criminal background
checks on every unskilled laborer Recana places would likely impose a significant
administrative burden and costs. See Houser, 969 S.W.2d at 546; Guidry, 944
S.W.2d at 811. Public policy and societal interests also affect the decision to
impose a legal duty. See Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Doe v.
Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942, 950 (Tex. App.—Amarillo
1994, aff’d, 907 S.W.2d 472 (Tex. 1995). For example, imposing such a duty
under these circumstances could limit the ability of former offenders to attain
7
Further weighing against the foreseeability of the risk, the record indicates that Recana
had previously hired and rehired Prodoehl for temporary labor positions at American Rice,
apparently without incident.
8
See, e.g., Scott Fetzer Co. v. Read, 945 S.W.2d 854, 868 (Tex. App.—Austin 1997),
aff’d, 990 S.W.2d 732 (Tex. 1998) (door-to-door vacuum salesman sexually assaulted
homeowner); Porter v. Nemir, 900 S.W.2d 376, 386 (Tex. App.—Austin 1995, no writ) (drug
counselor sexually assaulted psychologically fragile client); Doe v. Boys Clubs of Greater
Dallas, Inc., 868 S.W.2d 942, 950–51 (Tex. App.—Amarillo 1994) (club volunteer performing
community service molested minor boys), aff’d, 907 S.W.2d 472 (Tex. 1995); Deerings W.
Nursing Ctr. v. Scott, 787 S.W.2d 494, 496 (Tex. App.—El Paso 1990, writ denied) (unlicensed
nurse assaulted an elderly visitor to nursing home).
12
gainful and productive employment. See Ponticas v. K.M.S. Invs., 331 N.W.2d
907, 913 (Minn. 1983), cited in Mindi M. v. Flagship Hotel, Ltd., 439 S.W.3d 551,
561 (Tex. App.—Houston [14th Dist.] 2014, pet. granted, judgm’t vacated,
remanded by agr.).
We disagree with Najera that Wise is materially distinguishable. Najera
contends that here the location involved a secure zone at the port where laborers
were subject to criminal background screening. However, such evidence does not
raise a fact issue that performing a criminal background check was directly related
to the duties of the fumigation job at hand. All the evidence raises is that a
Transportation Worker Identification Card (TWIC) badge was required to access
the port and that TWIC enrollment could be more problematic for serious felons,
but even they could apply for a waiver.9 Najera also contends that the evidence
shows Prodoehl used “dangerous instrumentalities.” That the job involved
handling fumigants does not constitute evidence that a risk of assault not involving
fumigants was foreseeable.
Here, the facts do not show that Recana knew or should have known that,
because of its acts in hiring, placing, and retaining Prodoehl as a laborer without
performing a criminal background check, the assault might occur. See Davis-
Lynch, —S.W.3d—, 2015 WL 3988232, at *10. We conclude that, considering the
facts surrounding Recana’s hiring and placement of Prodoehl, Recana had no
general duty to perform a criminal background check. See id.
Next, we consider whether Recana nevertheless could be subject to liability
for negligent hiring or retention based on any assumed duty to undertake a criminal
background check of Prodoehl. Najera further argues that, within the service
agreement, Recana agreed to undertake criminal background screening and drug
9
At the time of the incident, Prodoehl held an unexpired TWIC access card.
13
testing10 for American Rice. Construing Najera’s negligence claim as
encompassing negligent undertaking, and even assuming without deciding for
purposes of our analysis that Recana agreed to perform criminal background
checks for American Rice in the service agreement for Najera’s protection, giving
rise to an undertaking duty, Recana moved for no-evidence summary judgment
with regard to all the elements of negligent undertaking, including the essential
element of whether Najera relied on Recana’s performance or Recana’s
performance increased Najera’s risk of harm. See Torrington, 46 S.W.3d at 838–
39 & n.7.
Najera did not argue in his summary judgment response and does not argue
on appeal that Najera relied on Recana’s performance or that Recana’s
performance increased Najera’s risk of harm. Nor does the summary judgment
record reveal any evidence of reliance or increased harm. Therefore, Najera did
not meet his burden to raise a fact issue as to reliance or increased harm, and the
trial court correctly granted Recana’s no-evidence summary judgment as to
Najera’s negligent undertaking claim. See Tex. R. Civ. P. 166a(i); Lampasas v.
Spring Ctr., Inc., 988 S.W.2d 428, 432, 436–37 (Tex. App.—Houston [14th Dist.]
1999, no pet.).
Under these circumstances, we conclude the trial court properly granted
summary judgment as to Najera’s claim for negligent hiring and retention,
including any negligent undertaking claim.
We overrule Najera’s first issue.
10
The summary judgment evidence reveals no correlation between any use of drugs and
the incident. Cf. Morris v. JTM Materials, 78 S.W.3d 28, 51–52 (Tex. App.—Fort Worth 2002,
no pet.) (truck driver involved in accident while intoxicated).
14
b. Negligent supervision and training
In his second issue, Najera argues that the trial court erred in determining
there was no duty to supervise Prodoehl. However, with regard to Najera’s claim
of negligent supervision and training, we note that Recana’s position on summary
judgment was not that it did not owe a general duty to supervise or train Prodoehl,
but rather there was no evidence that it breached its duty or that any such breach
was the proximate cause of Najera’s injuries.
To establish a claim for negligent supervision and training, a plaintiff must
show that the employer owed a legal duty to supervise and train its employees, the
employer breached that duty, and that breach proximately caused his injuries. 11
Knight v. City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—Houston [14th
Dist.] 2005, no pet.); see Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex.
App.—Fort Worth 2008, no pet.). The breach component requires proof that a
reasonably prudent employer would have provided supervision or training beyond
that which was given. See Dangerfield, 264 S.W.3d at 912–13; see also Patino,
158 S.W.3d at 661 (concluding plaintiff failed to meet burden as to breach on no-
evidence summary judgment on negligent training and supervision).
Najera essentially argues that Recana breached its duty to supervise because
Ayala was not on site at the time of the assault, but rather was in communication
with Najera by cell phone. However, according to Najera, his supervisor Ayala
worked for American Rice, not Recana. Najera also contends that Recana was
required to provide an “on-site manage/coordinator” under the service agreement
and did not do so. Even assuming that to be the case, Najera provided no evidence
11
The components of proximate cause are cause-in-fact and foreseeability. Knight v.
City Streets, L.L.C., 167 S.W.3d 580, 584 (Tex. App.—Houston [14th Dist.] 2005, no pet.)
(citing Doe, 907 S.W.2d at 477).
15
regarding what any supervisor could or should have done to prevent or stop the
assault. Nor did Najera provide any evidence regarding what training a reasonably
prudent employer could or should have provided to prevent or stop the assault. See
Knight, 167 S.W.3d at 585 (no breach where no evidence that nightclub manager if
present could have intervened to stop assault); see also Patino, 158 S.W.3d at 661
(no breach where plaintiff employee “presented no evidence showing that training
and supervision beyond that given by [tire company employer] would be necessary
or proper by a reasonably prudent employer”); Dangerfield, 264 S.W.3d at 913 (no
breach where no evidence sporting goods store should have provided more training
or supervision beyond that which was given regarding shoplifting incidents).12
Najera’s summary judgment proof fails to raise a genuine issue of material
facts as to whether Recana breached its legal duty to supervise or train Prodoehl.
Therefore, we conclude that the trial court properly granted summary judgment on
his negligent supervision and training claim because Najera failed to raise a
material fact issue as to breach. See Knight, 167 S.W.3d at 584–85.
We overrule Najera’s second issue.
c. Crowell’s affidavit
In his third issue, Najera asserts that the trial court erred because questions
of material fact existed on his negligence claims. His arguments substantially
overlap with his previous issues.
In addition, Najera attempts to create fact issues based on Crowell’s
testimony. Recana moved to strike Crowell’s affidavit as summary judgment
12
See also Watkins v. Basurto, No. 14-10-00299-CV, 2011 WL 1414135, at *7 (Tex.
App.—Houston [14th Dist.] Apr. 14, 2011, no pet.) (mem. op.) (reversing and rendering
summary judgment as to negligent supervision based on causation where patron “presented no
evidence about what training the [bar] bouncer[]s should have received”).
16
evidence. The trial court granted this motion without specifying the grounds for
striking Crowell’s affidavit.13 Najera contends that the trial court abused its
discretion in striking Crowell’s affidavit.
We conclude that Najera has waived this subissue because he has not
challenged on appeal all possible grounds for the trial court’s ruling. See Gulley v.
Davis, 321 S.W.3d 213, 218 (Tex. App.—Houston [1st Dist.] 2010, pet. denied);
Cantu v. Horany, 195 S.W.3d 867, 871 (Tex. App.—Dallas 2006, no pet.). The
entirety of Najera’s contentions on this subissue consists of the following:
Mr. Najer[a] provided the affidavit of an expert with 25 years[’]
safety experience. The trial [c]ourt struck that affidavit based on a
challenge to his qualifications. The decision of a trial court to
consider evidence presented by a non-movant is reviewed for an abuse
of discretion. BNSF Ry Co. v. Phillips, [434 S.W.3d 675, 699] (Tex.
App.—[Fort] Worth 2014, pet[.] filed). The qualifications of the
expert need not be in the exact field, so long as the expert has
sufficient expertise relating to the subject matter.
Mr. Crowell has 25 years[’] experience is employee safety, and
OSHA regulation of the workplace. He spent several years actually
reviewing backgrounds to determine suitability. He opined that a
propensity to drug abuse, as shown in Mr. Prodoehl’s criminal history,
would make him unsuitable for employment that required manual
labor and the use of dangerous chemicals (fumigants). (CR 954–
956).
Although qualified, relevant, and reasonably based on the
documents provided by Recana, the Court struck his affidavit. (CR
1305). This is an abuse of discretion because it is in derogation of the
prior controlling case law that would allow his testimony. In essence,
the Court discredited his testimony, which is not the role of the trial
court during a motion for summary judgment. Credibility questions
are left for the jury.
Najera’s brief fails to address the substance of Recana’s multiple, specific
13
The trial court also excluded Crowell as an expert.
17
objections—not just lack of qualifications—to virtually every paragraph of
Crowell’s affidavit. Najera cites to the entirety of Crowell’s affidavit and simply
concludes that the trial court should not have struck it because of “prior controlling
case law.” By failing to attack all possible grounds for the trial court’s ruling,
Najera has waived his challenge on appeal.
Accordingly, we overrule Najera’s third issue.
2. Najera’s additional claims
Recana gave fair notice to Najera in its no-evidence motion that it also was
challenging elements of negligence liability on a theory of respondeat superior.
Recana argued there was no evidence that Prodoehl was acting within the course
and scope of his authority when he assaulted Najera—there was no evidence: (1)
Recana gave Prodoehl the authority to assault Najera, (2) such assault was in
furtherance of Recana’s business, and (3) such assault was for Prodoehl’s job. See
Knight, 167 S.W.3d at 583. While the nonmovant is not required to marshal his
evidence, in his summary judgment response he must point out evidence that raises
a fact issue on the challenged elements. Hamilton v. Wilson, 249 S.W.3d 425, 426
(Tex. 2008) (per curiam). We conclude that the trial court properly granted no-
evidence summary judgment on respondeat superior because Najera made no
attempt in his response to point out any evidence raising a fact issue as to that
claim. See Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352
S.W.3d 191, 195, 200 (Tex. App.—Houston [14th Dist.] 2011, no pet.). “The
evidence presented cannot support an argument that has not been made, and the
trial court is not required, sua sponte, to assume the role of [Najera’s] advocate and
supply his arguments for him.” Burns v. Canales, No. 14-04-11786-CV, 2006 WL
461518, at *4 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet. struck) (mem.
op.).
18
On appeal, Najera does not argue that he raised a fact issue as to the
challenged elements of respondeat superior, but instead merely asserts that Recana
did not provide an on-site manager as required by the service agreement. Even
assuming this to be the case, the lack of any on-site manager does not raise a fact
issue as to the course-and-scope element of respondeat superior. Moreover, in his
brief Najera does not challenge the summary judgment as to gross negligence and
therefore has abandoned this claim on appeal. See Duerr v. Brown, 262 S.W.3d
63, 69 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
III. CONCLUSION
Having resolved all of Najera’s issues against him, we affirm the trial court’s
final summary judgment.
/s/ Marc W. Brown
Justice
Panel consists of Justices Jamison, Busby, and Brown.
19