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Moore v. Strike, LLC

Court of Appeals of Texas, Fourth District, San Antonio

January 11, 2017

Angela MOORE a/k/a Angela Christine Roberts, Individually and as Representative of the Estate of Alexandra Elisabeth Anderson, Deceased, Jesse Amaya, and Jason Hays, Appellants
v.
STRIKE, LLC, Appellee

         From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 16-03-55764-CV Honorable Richard C. Terrell, Judge Presiding

          Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Patricia O. Alvarez, Justice

         AFFIRMED

          MEMORANDUM OPINION

          Marialyn Barnard, Justice

         This is an appeal from an order granting summary judgment in favor of appellee Strike, LLC ("Strike"). On appeal, appellants Angela Moore a/k/a Angela Christine Roberts, Individually and as Representative of the Estate of Alexandra Elisabeth Anderson, Deceased ("Moore"), Jesse Amaya, and Jason Hays argue summary judgment was improper because genuine issues of material fact exist as to their claims for vicarious liability, negligent entrustment, negligent hiring, negligent supervision, and negligent retention. Amaya and Hays also argue the trial court abused its discretion in striking certain summary judgment evidence, specifically an affidavit of an expert witness. Because we conclude Strike established its entitlement to judgment as a matter of law and appellants failed to produce any evidence establishing genuine issues of material fact, we affirm the trial court's judgment.

         Background

         This appeal arises out of an automobile accident that resulted in the death of Moore's daughter, Alexandra Elisabeth Anderson, and injuries to Amaya and Hays. On the evening of the accident, Bradley Price drove his personal pick-up truck from a recreational vehicle park ("RV park") where he was staying to another RV park to visit his supervisor, Phillip Parker. Two other co-workers, Wesley Ferrell and Joseph Magee, rode with him. On their way to the RV park, Price crossed over the center line and collided with two vehicles. Anderson, Amaya and Hays were in the first vehicle. As a result of the collision, Anderson sustained massive injuries and was pronounced dead at the scene. Amaya and Hays suffered serious injuries, but survived.

         At the time of the accident, Price was an employee of Strike, an oilfield services company in Jim Wells County. After completing a ten-hour shift, Price had returned to the RV park where he and other Strike employees were temporarily staying. Strike did not provide company housing to its employees, but rather paid each of them a per diem for living expenses. As a result, each employee made his own living arrangements. That evening, like most evenings, Price cooked barbeque for himself and several others. The group relaxed, ate barbeque, and drank beer from approximately 7:15 p.m. until 10:00 p.m. When the barbeque ended, Price and other members of the group decided to visit Parker, a Strike foreman. It is undisputed that at the time of the accident, Price was off duty and driving his personal vehicle with a blood alcohol level of 0.166, more than twice the legal limit.

         Price was ultimately charged with two counts of first degree intoxication manslaughter. Strike terminated Price for violating safety procedures, failing to perform duties as required, misusing company property, and insubordination. Moore, Amaya, and Hays ultimately filed suit against Strike, several Strike affiliates, [1] and Price. As to Strike and its affiliates, appellants alleged the company was liable under the doctrine of vicarious liability for Price's negligent conduct - being under the influence of alcohol and subsequently driving in an unreasonable manner during the course and scope of his employment. According to the petitions, Price's negligent conduct proximately caused the accident that resulted in Anderson's death and Amaya and Hays's injuries. The petitions also alleged Strike had negligently entrusted Price with a vehicle as well as negligently hired, supervised, and retained Price.

         Strike filed a traditional motion for summary judgment, arguing it was entitled to judgment as a matter of law on each of the asserted claims because it did not exercise control over or have the right to exercise control over Price's personal vehicle, and Price was acting outside the course and scope of his employment at the time of the accident. In support of its motion, Strike attached copies of Price's employment records, employee separation form, and time card history, as well as the police report regarding the accident, the indictment charging Price with intoxication manslaughter, and Price's trial testimony at the criminal proceeding. Strike also attached deposition excerpts from the depositions of Hays, Amaya, and Parker.

         In response, Moore objected to portions of Strike's summary judgment evidence, specifically the indictment and Price's trial testimony at the criminal proceeding. Moore alleged both exhibits contained inadmissible hearsay. Moore also argued summary judgment was improper because Strike failed to prove its entitlement to judgment as a matter of law. According to Moore, genuine issues of material fact existed as to each of her claims. Specifically, Moore argued her summary judgment evidence raised fact issues as to whether Price was acting in the course and scope of his employment and whether Strike exercised control - or at least had the right to exercise control - over Price's personal vehicle. To support her argument, Moore attached excerpts from Parker's deposition and a copy of Strike's employment separation form regarding Price's termination.

         According to Moore, Parker's testimony, in combination with the employment separation form, constitutes some evidence that Price was an authorized driver for Strike, was under Strike's control, and was using his personal vehicle in furtherance of Strike's business at the time of the accident. In his deposition, Parker testified several of Strike's employees, both laborers and operators, were from out of town and as a result, temporarily lived together in areas, such as RV parks, located near the work site. Parker testified Strike did not provide company housing or manage these living areas, rather employees "were on their own" in determining where they would live. He explained each employee received a per diem - the amount of which was based on whether the employee was either a laborer or an operator. Strike also paid "truck pay" to some operators who were considered authorized drivers. An authorized driver was an employee, typically an operator, who was authorized by Strike to drive his personal vehicle on the work site. After reviewing Price's employment separation form, Parker testified the form showed Price received truck pay. Parker also testified that on the night of the accident, Price along with the other Strike employees "could have" been coming to his RV park as it was not unusual for employees to come to his campsite for dinner.

         Amaya and Hays also filed a response with additional summary judgment evidence, which was ultimately adopted by Moore in her supplemental response. In their response, Amaya and Hays reiterated Moore's contentions that genuine issues of material fact existed as to whether, at the time of the accident, Price was acting within the course and scope of his employment and whether Strike exercised control over Price's vehicle. In addition to Moore's summary judgment evidence, Amaya and Hays attached excerpts from the depositions of Wesley Ferrell and Joseph Magee, arguing their testimony was some evidence that Price was driving himself and other co-workers to see Parker for a meeting.

         In his deposition, Ferrell testified he worked with Price and was having dinner with Price and other employees at Price's RV park when Parker called to see if he wanted to come over to his RV park to "hang out." According to Ferrell, it was not unusual for him and other employees to go to Parker's RV park after work hours. Ferrell added that sometimes, while hanging out with Parker at his RV park, they would discuss work. After dinner, on the night of the accident, Ferrell asked the group at Price's camp if anyone wanted to go to Parker's RV park. A couple of co-workers agreed, and Ferrell rode with Price to the RV park; it was during this ride that the accident occurred.

         Magee testified he was with Price on the night of the accident. Magee testified that after dinner, the group decided to go to Parker's camp to "hang out." Magee testified he had "no idea" whether they were going to discuss work, but "[a] lot of times we call - we call it pipelining, like if we just talk about work or something like that at the campground or what have you, or we'll tell stories of what we've seen or done or whatever."

         Amaya and Hays also attached affidavits from Matthew Daecher, an expert in risk management of commercial vehicle operations and commercial fleets, and Denise Kay, a human resources expert. In their affidavits, both experts stated they reviewed Price's employment file, Strike's employee handbook, Strike's transportation and travel expenses policy, the depositions of Parker, Ferrell, and Magee, as well as other Strike human resource material. Based on their review of these materials, they opined that: (1) Strike exercised control over Price, but did not properly prescreen, train, or supervise Price; (2) Price would not have been working in the area or driving to Parker's RV park but for his employment relationship with Strike; and (3) Strike knew or should have known several of its employees were operating vehicles in violation of Strike's policies.

         At the summary judgment hearing, the trial court sustained Moore's objections to Price's indictment and trial testimony, stating they would not be considered as evidence in support of Strike's motion. Thereafter, the trial court granted summary judgment in favor of Strike on all of appellants' claims. In its order, the trial court did not specify the grounds for its ruling. Thereafter, Strike filed a motion to sever all of appellants' ...


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