Deerings West Nursing Center, a Division of Hillhaven Corp. v. Scott

787 S.W.2d 494, 1990 WL 26987

• Court: Court of Appeals of Texas
• Decided: May 2, 1990
• Docket: 08-89-00294-CV
• Status: Published

Opinions

OPINION

WOODARD, Justice.

This is an appeal from a judgment for $35,000.00 actual damages and $200,000.00 punitive damages, founded upon the jury’s finding that the Appellant was both negligent and grossly negligent in the hiring of an unlicensed nurse employee who assaulted the Appellee in its nursing home. We affirm.

On November 2, 1986, at approximately 5:30 a.m., eighty-year-old Velma Ponder Scott came to Deerings to visit her infirm older brother. It was her habit to come at all hours, though it was contended that she had been informed to restrict her visitation to certain hours. On that particular morning, Ken Hopper, an unlicensed, approximately thirty-six-year-old, 6 foot 4 inch, nurse employee, attempted to prevent Scott from visiting. He testified that he was attempting to usher Scott from the premises when she fell while resisting. She testified that Hopper, appearing greatly agitated, yelled out that she had been told not to come before 9:00 a.m. Upon his approach, she threw up her hands but was hit on the chin. He slapped her down and followed her to the floor, pinning her there with his knee upon her chest.

Point of Error No. One alleges that there is no evidence to sustain the finding that the failure of Hopper to have a Texas nursing license was a proximate cause of Scott’s damages.

In considering a “no evidence” legal insufficiency point, we consider only the evidence which tends to support the jury’s findings and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

The nursing home had a duty to exercise reasonable care in the selection of its medical staff. In Texas, it is akin to the doctrine of negligent entrustment, which places a duty on an automobile owner to determine the driving competency of a person to whom he entrusts his automobile. Park North General Hospital v. Hickman, 703 S.W.2d 262 (Tex.App.—San Antonio 1985, writ ref'd n.r.e.). To establish the automobile owner’s liability in a negligent entrustment case, there must be a showing of: (1) entrustment of a vehicle by the owner; (2) to an unlicensed, incompetent or reckless driver; (3) that the owner knew or should have known to be unlicensed; (4) that the driver was negligent on the occasion in question; and (5) that the driver’s negligence proximately caused the accident. Schneider v. Esperanza Transmission Company, 744 S.W.2d 595 (Tex.1987). Punitive damages can be imposed if the owner of the vehicle knows or should have known that the entrusted driver was incompetent or habitually reckless, and the owner was grossly negligent in entrusting the vehicle to that driver. For entrustment to be a proximate cause, the defendant entrustor should be shown to be reasonably able to anticipate that an injury would result as a natural and probable consequence of the entrustment. Id. Liability of the owner does not arise out of the relationship of the parties, but is based on the theory that an automobile may become a dangerous instrumentality if placed in the hands of an incompetent or reckless driver, and that an owner is negligent who knowingly places his car in the hands of such a driver. Butler v. Spratling, 237 S.W.2d 793 (Tex.Civ.App.—Fort Worth), rev’d on other grounds, 150 Tex. 369, 240 S.W.2d 1016 (1951). Deviation from the scope of the driver’s authority does not relieve the negligent entrustor from consequent liability. Frontier Theatre, Inc. v. Whisenant, 291 S.W.2d 395 (Tex.Civ.App.—El Paso 1956, writ dism’d by agr.).

We see no reason not to continue the analogy between negligent entrustment and negligent hiring. Tex.Rev.Civ.Stat. Ann. art. 4528c, sec. 10(a) (Vernon Supp. 1990) provides for the exclusion of nurse licensing for persons convicted of felonies or crimes of moral turpitude and (11) lack of fitness to practice by reason of mental health that may result in injury to patients. Nurse Hopper had fifty-six prior convictions for theft, which are crimes of moral turpitude. Compton v. Jay, 389 S.W.2d 639, 642 (Tex.1965). Martini v. State, 371 S.W.2d 387 (Tex.Crim.App.1963). Aggravated assault on a female by a male involves moral turpitude. Trippell v. State, 535 S.W.2d 178 (Tex.Crim.App.1976). This would most assuredly be so when the female is eighty years of age. It is common knowledge that the bleakness and rigors of old age, drugs and the diseases of senility can cause people to become confused, irascible and cantankerous. It is predictable that elderly patients will be visited by elderly friends and family. It is reasonable to anticipate that a man of proven moral baseness would be more likely to commit a morally base act on an eighty-year-old woman. Fifty-six convictions for theft is some evidence of mental aberration. Hopper was employed not only to administer medicine, but to contend with the sometimes erratic behavior of the decrepit. It is foreseeable that a nurse tending to the needs of the aged would have to be a person of sound personality strengths and not be subject to a proven pattern of impulsive behavior. The investigative process necessary to the procurement of a Texas nursing license would have precluded the licensing of Hopper. In the hiring of an unlicensed and potentially mentally and morally unfit nurse, it is reasonable to anticipate that an injury would result as a natural and probable consequence of that negligent hiring. Point of Error No. One is overruled.

Point of Error No. Two contends there is no evidence to support the finding that the negligent hiring was a heedless and reckless disregard to the rights of others. The Texas definition of gross negligence is "that entire want of care which would raise the belief that the act or omission complained of was the result of a conscious indifference to the right or welfare of the person or persons to be affected by it.” The mental state may be inferred from actions. The test for gross negligence is both an objective and a subjective test. A plaintiff may prove a defendant’s gross negligence by proving that the defendant had actual subjective knowledge that his conduct created an extreme degree of risk. In addition, a plaintiff may objectively prove a defendant’s gross negligence by proving that under the surrounding circumstances a reasonable person would have realized that his conduct created an extreme degree of risk to the safety of others. Williams v. Steves Industries, Inc., 699 S.W.2d 570 (Tex.1985). By consciously not requiring the presentment of a license, the Appellant consciously jeopardized the health, welfare and safety of its patients and visitors by making it possible for a mentally and morally unfit employee to create a dangerous situation. The want of care in hiring Hopper amounted to conscious indifference. Point of Error No. Two is overruled.

Judgment of the trial court is affirmed.