Poynor v. BMW of North America, LLC
2013 Tex. App. LEXIS 1743
| Tex. App. | 2013Background
- In July 2005, Poynors visited Classic BMW for a test drive of a 2006 BMW 325i; Homer drove aggressively and lost control, injuring them.
- Plaintiffs sued fourteen defendants, including BMW NA and BMW US, asserting negligence, negligent undertaking, negligent entrustment, negligent hiring/training/supervision, negligence per se, and vicarious liability; trial court granted BMW NA/BMW US summary judgment.
- The Center Agreement stated Classic BMW was not BMW NA’s agent and that Classic operated independently; plaintiffs argued extrinsic evidence showed an agency-like control by BMW NA.
- The court analyzed whether BMW NA had right to control the test drive and found no agency relationship; BMW NA did not hire/train/supervise Homer and was not involved in the test drive.
- The court evaluated Restatement (Second) of Torts § 324A theories (subparts a–c) and concluded BMW NA did not negligently undertake, perform a duty of Classic BMW, nor did plaintiffs reasonably rely on such an undertaking.
- Appellants moved for continuance alleging additional compelled evidence; the court denied, and the en banc court ultimately affirmed summary judgment for BMW NA/BMW US.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Negligent undertaking by BMW NA | BMW NA undertook training and increased risk through demonstration drives. | BMW NA did not control test drives or training; no duty under Restatement §324A. | No genuine duty; no material fact issue on negligent undertaking. |
| Vicarious liability of BMW NA for Classic BMW | Respondeat superior applies despite independent-contractor center; BMW NA controlled aspects via Center Agreement and extrinsic evidence. | Center Agreement shows no agency; BMW NA had no right to control the test drive or Homer. | No agency/ vicarious liability; BMW NA entitled to summary judgment. |
| Credibility of extrinsic evidence of control | Extrinsic evidence demonstrates BMW NA influence over training and operations. | Extrinsic evidence does not establish control over the injury-producing activity. | Extrinsic evidence fails to create a material fact issue on control of the test drive. |
| Motion for continuance | Denial of continuance prevented discovery necessary for summary judgment. | No abuse of discretion; ample time and notice; due diligence lacking. | No abuse; denial sustained. |
Key Cases Cited
- St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. 2002) (vicarious liability framework; agency/employee concepts)
- Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998) (control/right-to-control test for master–servant relationships)
- Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex.1983) (right to control as pivotal in employee vs independent contractor)
- Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903 (Tex.App.-Fort Worth 2009) (contractual language and control evidence; agency determination fact-specific)
- Ely v. Gen. Motors Corp., 927 S.W.2d 774 (Tex. App.-Texarkana 1996) (no agency implied where GM lacked control over test drive; summary judgment proper)
- Patino v. Complete Tire, Inc., 158 S.W.3d 655 (Tex. App.-Dallas 2005) (employer duty to hire/train/supervise employees; separate from independent contractor status)
- Victoria Elec. Co-op. v. Williams, 100 S.W.3d 323 (Tex. App.-San Antonio 2002) (agency considerations tied to the specific injury-causing activity)