Laurie Mejia-Rose v. John Moore Services, Inc, MBS Fountains of Tomball Ltd. D/B/A Fountains of Tomball, and Henry S. Miller Realty Management, LLC, 01-17-00955-CV

Background

Plaintiff Laurie Mejia-Rosa was struck in her apartment-complex parking lot by a van driven by John Moore Services employee Kim Allen Madden while Madden was driving home at 6:45 p.m.; Mejia-Rosa sued JMS for vicarious liability and direct negligence theories (negligent entrustment, negligent hiring/training/supervision/retention/monitoring, and gross negligence).
JMS moved for traditional and no‑evidence summary judgment, supporting its motion with Madden’s affidavit and deposition in which he said he was off duty, not on call, and driving home when the collision occurred; JMS also produced a clean Driver Record Service Report from hiring.
Mejia-Rosa relied on JMS internal policies (on‑call policy, fleet safety manual) and company phone records showing brief calls on the evening of the accident; she argued those materials raised fact issues as to course and scope and direct negligence.
The trial court granted JMS’s summary-judgment motion; an initial severance order was ambiguous but the trial court later amended it to render the JMS dismissal final and appealable, and Mejia-Rosa’s premature notice of appeal was deemed effective when amended severance made the order final.
On appeal, the court reviewed de novo, addressing (1) whether JMS was vicariously liable under respondeat superior (course-and-scope) and (2) whether JMS was directly negligent (negligent entrustment, negligent hiring/training/supervision/retention/monitoring, and gross negligence).

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Respondeat superior: Was Madden acting in course and scope?	Madden was driving a JMS van and phone records/JMS policies create a fact issue that he was on call or furthering JMS’s business.	Madden’s testimony showed he was driving home, not on call or performing work; coming-and-going rule applies.	Summary judgment for JMS affirmed; uncontroverted testimony that Madden was off duty and driving home rebutted presumption from company vehicle and defeated course-and-scope.
Negligent entrustment: Was Madden incompetent or reckless when entrusted with the van?	Two traffic citations during Madden’s first year with JMS and JMS’s failure to follow its High Risk Driver policy raise an issue about incompetence/recklessness.	Two citations are legally insufficient to show incompetence or recklessness; internal policy violations don’t substitute for proof of driver unfitness.	No-evidence summary judgment for JMS affirmed; citations insufficient to raise a fact issue of incompetence/recklessness.
Negligent hiring/retention: Did JMS breach by hiring/retaining Madden?	JMS’s prehire screening and posthire conduct (not disciplining despite citations) were inadequate.	There was nothing in Madden’s background to show unfitness; employer’s procedures do not alone establish breach.	No-evidence summary judgment for JMS affirmed; plaintiff failed to show Madden was unfit/incompetent, so no breach.
Negligent training/supervision and gross negligence: Did JMS fail to train/supervise or act grossly negligent?	Limited driver training and failure to follow safety policies show breach and gross negligence.	Plaintiff produced no evidence that additional training was required by a reasonably prudent employer; gross negligence depends on predicate liability.	No-evidence summary judgment for JMS affirmed; no evidence of breach of training/supervision and gross-negligence claims fail absent underlying negligence proof.

Key Cases Cited

Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) (final-judgment/severance principles for appealability)
Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018) (course-and-scope standard and limits on coming-and-going rule)
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (insufficient prior citations to prove incompetence/recklessness for negligent entrustment)
Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex. 1971) (presumption that employee driving employer vehicle acted within scope and how it is rebutted)
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (summary-judgment proof and conclusiveness standard)
Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39 (Tex. 2017) (summary-judgment burdens and review)
FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84 (Tex. 2004) (employer’s internal policies do not alone establish standard of care)