Arbelaez v. Just Brakes Corp.

149 S.W.3d 717, 2004 WL 1114572
CourtCourt of Appeals of Texas
DecidedAugust 12, 2004
Docket03-03-00587-CV
StatusPublished
Cited by48 cases

This text of 149 S.W.3d 717 (Arbelaez v. Just Brakes Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arbelaez v. Just Brakes Corp., 149 S.W.3d 717, 2004 WL 1114572 (Tex. Ct. App. 2004).

Opinions

OPINION

MACK KIDD, Justice.

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, Luz-stella 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 [719]*719employee 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 844, 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 plaintiffs 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 nonmov-ant 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 (TexApp.-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;
[720]*720• 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 plaintiffs claim. See El Chico Corp.

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149 S.W.3d 717, 2004 WL 1114572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arbelaez-v-just-brakes-corp-texapp-2004.