GUILLERMO ACOSTA and JOSE MOLINA, Appellants, v. UBER TECHNOLOGIES, INC. and RASIER, LLC, Appellees.
No. 08-24-00099-CV
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
July 1, 2025
Appeal from the 261st District Court of Travis County, Texas (TC# D-1-GN-24-001726)
SUBSTITUTED MEMORANDUM OPINION1
We withdraw our opinion and judgment of February 28, 2025, and substitute the following opinion and corresponding judgment in their place. Appellants’ motion for rehearing is denied.
This case involves a car accident that occurred on a trip arranged through a ride-sourcing cell phone application owned and operated by Appellees Uber Technologies, Inc. and Rasier, LLC2 (collectively, Uber). Passengers on that trip, Appellants Guillermo Acosta and Jose Molina (collectively, Riders3) allege they were injured when their driver, Brian Keith Inman (Driver),
I. BACKGROUND
A. Factual background
Uber owns and operates the Uber App, a ride-sourcing cell phone application. The Uber App includes two components: the Rider App and the Driver App. Together, these components facilitate connections between individuals seeking a ride and individuals wishing to provide rides. Before using the Rider App, a rider must agree to Uber‘s Terms of Use, which specify that drivers are independent third-party providers. Before using the Driver App, a driver must agree to Uber‘s Technology Services Agreement, which provides that drivers are independent contractors and have no employment, agency, or joint-venture relationship with Uber.
Uber drivers have no schedules or set hours imposed by Uber, instead choosing themselves “whether, when, where, and how they wish to work.” Uber drivers do not report to an Uber supervisor. There is no Uber uniform or dress code. Uber drivers determine their own routes, based on personal knowledge, input from the rider, or their choice of online navigator. Uber drivers use their own vehicles and pay all vehicle expenses, including gas, maintenance, and service. They are free to have other jobs and to use applications created by Uber‘s competitors, e.g., Lyft, DoorDash, and Grubhub.
On October 14, 2017, Driver was driving Riders into Austin from an outlying suburb on a trip arranged through the Uber App. Driver allegedly ran a red light and collided with another vehicle, injuring Riders.
B. Procedural background
Riders sued Uber for the accident, maintaining it was (1) directly liable under a number of
Uber filed a traditional and no-evidence motion for summary judgment, contending that (1) because “[t]he evidence affirmatively establishes all requirements of
In response, Riders argued that even if Uber met the requirements of
The trial court held a hearing on Uber‘s motion, at which Uber requested that Riders’ latest petition and one of their summary judgment exhibits (Acosta‘s declaration) be struck. The trial court granted these two requests then granted summary judgment in Uber‘s favor.
Riders filed a motion to reconsider and an amended motion to reconsider, arguing (1) they had presented more than a scintilla of evidence to support their negligence, ostensible agency, and joint enterprise claims; (2) the trial court had erred in striking their pleading and Acosta‘s declaration; and (3) newly discovered evidence, namely, records from the Texas Department of Licensing and Regulation, showed that Uber was operating without a required permit at the time of the accident.
The trial court denied Riders’ amended motion to reconsider and severed the claims against Uber into a new case. This appeal followed.
II. ISSUES ON APPEAL
Riders raise two issues on appeal. First, Riders maintain the trial court erred by (a) striking their July 20, 2023, supplemental petition; (b) striking Acosta‘s declaration; (c) granting summary judgment on their direct negligence claim; (d) determining [Driver] was an independent contractor; and (e) granting summary judgment on their vicarious liability claims, (ostensible agency and joint enterprise). Second, Riders argue the trial court erred by denying their motion to reconsider.
III. STANDARD OF REVIEW
We review a trial court‘s granting of summary judgment de novo; in doing so, “we take as true all evidence favorable to the nonmovant and we indulge every reasonable inference and resolve any doubts in the nonmovant‘s favor.” Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 624 (Tex. 2018). Where a party moves for summary judgment on both no-evidence and traditional grounds, we generally address the no-evidence grounds first.5 Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). “If the nonmovant fails to overcome its no-evidence burden on any claim, we need not address the traditional motion to the extent it addresses the same claim.” Id. A defendant‘s no-evidence motion for summary judgment is properly granted if the plaintiff fails to produce at least a scintilla of evidence raising a genuine issue of material fact as to each challenged element of the plaintiff‘s claim. Id.
To prevail on a traditional motion for summary judgment, a defendant must conclusively negate at least one necessary element of the plaintiff‘s claim or establish all the elements of an affirmative defense. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). If the defendant carries this burden, the burden shifts to the plaintiff to raise a genuine issue of material fact. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).
IV. DISCUSSION
A. Chapter 2402‘s requirements
In May 2017, four months before the accident at issue, the Texas Legislature enacted
TNCs are required to obtain a permit and pay an annual fee.
Before permitting a driver to log in to its network, a TNC must (1) confirm that the driver is 18 years of age and has a driver‘s license, proof of registration, and proof of financial responsibility (liability insurance); (2) obtain a criminal background check; and (3) obtain the driver‘s driving record. TNCs must also prohibit a driver from using its network if the driver has been convicted of certain criminal offenses or is registered as a sex offender.
Chapter 2402 also contains vehicle occupant restrictions, allowing “shared rides” by multiple passengers if the passengers consent,
In addition to imposing these and other requirements, Chapter 2402 provides that a driver authorized to use a TNC‘s network “is considered an independent contractor for all purposes, and not an employee of the company” if: (1) the TNC does not (a) prescribe the driver‘s work hours, (b) restrict the driver‘s use of other TNC networks, (c) limit the driver‘s territory, or (d) restrict the driver from other employment; and (2) the TNC and driver agree in writing that the latter is an independent contractor.
B. Chapter 2402‘s applicability
We begin with sub-issue (d) of Riders’ first issue—whether “the trial court err[ed] in . . . [a]pplying Chapter 2402 to deem [Driver] an independent contractor“—as the answer to this
Riders acknowledge that a TNC driver is deemed an independent contractor under
Because Uber was operating without a permit on the day in question, Riders argue, it cannot claim “benefits” or “immunity” under Chapter 2402. That is, “[g]enerally, operating a transportation company without a proper license or permit is illegal, and courts will not enforce illegal contracts.” In support of their argument, Riders cite Peniche v. Aeromexico, 580 S.W.2d 152, 155 (Tex. App.—Houston [1st Dist.] 1979, no writ), which involved a driver-for-hire operating without a chauffeur license, and Ben E. Keith Co. v. Lisle Todd Leasing, Inc., 734 S.W.2d 725, 727 (Tex. App.—Dallas 1987, writ ref‘d n.r.e.), which involved a common carrier operating without a contract carrier permit. In both cases, the party operating without a permit was held to be doing so illegally and thus unable to enforce contract terms relating to such operations. Peniche, 580 S.W.2d at 155; Keith, 734 S.W.2d at 727.8
Uber does not try to distinguish cases like Peniche and Keith; instead, it approaches the issue from a different angle, citing Freyer v. Lyft, Inc., 639 S.W.3d 772, 780 (Tex. App.—Dallas 2021, no pet.). Freyer involved a car accident that occurred on a trip arranged by Lyft, one of Uber‘s competitors. Id. at 778. There, the injured passenger argued the Lyft driver “was not an independent contractor pursuant to [Chapter 2402] because [the driver] did not satisfy a statutory requirement” (i.e., he “did not have liability insurance at the time of the accident“); “therefore, [the passenger‘s] respondeat superior claim against Lyft should not be barred.” Id. at 780. The Dallas Court of Appeals rejected this argument, holding that “the plain language of [§] 2402.114 for independent contractors does not incorporate a liability insurance requirement or a cross-reference to [§] 2402.107[,]” which contains the relevant driver insurance requirement. Id. at 781. Similarly, Uber argues,
Riders maintain Freyer‘s logic is inapplicable here, urging us to hold that “a company like Uber does not get the statutory protections afforded to licensed TNCs where it chooses not to obtain the necessary license(s) and operates illegally.” We disagree with Riders that Uber “chose not to comply with [Chapter 2402‘s] licensing requirements” during the relevant interval. First,
Uber‘s purported choice not to obtain a TNC permit is the sole reason Riders assert that Freyer‘s reasoning does not apply here. That is, Riders offer no other objection to Uber‘s argument that under Freyer‘s logic, Chapter 2402‘s independent contractor provision is no more connected to its permit requirement than to its driver insurance requirement. As noted above, Riders do not dispute that all requirements under Chapter 2402‘s independent contractor provision were met here. We conclude that Riders have not shown the trial court erred in determining Driver was an independent contractor on the day in question.
Accordingly, we overrule sub-issue (d) of Riders’ first issue.
C. Direct liability
We next turn to sub-issue (c) of Riders’ first issue—that the trial court erred in granting summary judgment on the direct negligence claims.
(1) Exercise of control
As Riders point out, “the central premise of Uber‘s traditional motion for summary judgment was that Uber is a TNC under Chapter 2402, and as such, its [Driver] was an independent contractor,” thereby insulating Uber from liability. As Riders further correctly note, the independent contractor doctrine is not absolute; one who hires an independent contractor but retains control may lose the benefit of the doctrine:
The general rule is that an owner or occupier does not have a duty to see that an
independent contractor performs work in a safe manner. . . .
However, when the [owner] exercises some control over [the independent contractor‘s] work he may be liable unless he exercises reasonable care in supervising the [independent contractor‘s] activity.
Redinger, 689 S.W.2d at 418 (citing
Riders maintain Uber “exercises significant control over its drivers,” and “[a]mong the many ways it does so, the most notable here is how [d]rivers must have the App turned on at all times and how [d]rivers must respond to the App while they are driving,” thereby leading to distracted driving (emphasis added).12 In support of the contention that Uber “require[s] Drivers to interact with their phones while driving,” Riders cite: (1) testimony by Uber‘s corporate representative, Brad Rosenthal, that a driver using the Uber App “might be presented an offer [for
Uber, in contrast, contends there is no evidence that it required Driver to have the Driver App displayed while he was driving. For example, Rosenthal clarified that while it was possible for drivers to be offered new trips while driving, they can also “opt out in receiving further or additional offers if they would like.” When asked, “assuming that the driver is working and trying to make money using the Uber application, would the Uber [A]pp . . . be running while the vehicle is in motion,” Rosenthal answered that the driver “doesn‘t have to have the app running, no, and the app could be in the background,” or the driver “could . . . hit the close button on all [his] apps, so it‘s just a black screen.” Rosenthal further testified that it is “up to the driver” whether to have the sound on.13
In short, the evidence before us indicates that Uber does not require drivers to interact with their phones while driving, although its software allows such interaction.14 Under Texas law,
(2) Existence of distracted driving cause of action against TNCs
Uber argues that because neither the Texas Legislature nor the Texas Supreme Court has recognized a cause of action for distracted driving caused by a cell phone application, the trial court was correct to reject such a novel claim and we should do so as well. In support of its position,
In response, citing three Texas disruptive-passenger cases, Riders maintain their direct negligence claim is “grounded both in precedent and in longstanding and fundamental tort concepts of foreseeability and causation.” See Choctaw Nation of Okla. v. Sewell, No. 05-16-01011-CV, 2018 WL 2410550, at *4 (Tex. App.—Dallas May 29, 2018, pet. dism‘d) (mem. op.); Escamilla v. Garcia, 653 S.W.2d 58, 61–62 (Tex. App.—San Antonio 1983, writ ref‘d n.r.e.); and Adams v. Morris, 584 S.W.2d 712, 716 (Tex. App.—Tyler 1979, no writ).
However, each of these cases involved a passenger who engaged in disruptive conduct that distracted the driver immediately before the accident. See Choctaw Nation, 2018 WL 2410550, at *4 (passenger argued with bus driver about route to follow); Escamilla, 653 S.W.2d at 61–62 (passenger yelled and grabbed at driver or steering wheel); Adams, 584 S.W.2d at 716 (passenger asked driver to clean up seat while passenger attempted to stand up in moving car).
Here, in contrast, Riders do not contend Uber did anything to distract Driver immediately before he allegedly ran the red light. To the contrary, Riders concede that the most recent communications between Uber and Driver had occurred at earlier points in time: “[Uber] sent [Driver] a text message at 2:14 pm (about 1 hour and 21 minutes before the accident) alerting him to the end of a music fest where persons would need rides,” and “[a]bout fourteen minutes before
To establish causation despite the gap in time, Riders proffered cognitive psychologist Dr. Paul Atchley‘s expert opinion that “[w]hen a phone is present in a vehicle, users are compelled to use them, sometimes doing so without awareness, and when they do their ability to perceive the level of driving risk declines.” In Atchley‘s opinion, cell phone users have a “compulsion” that is “driven by automatic behavior patterns of checking the phone.” With regard to Uber drivers, Atchley testified that Uber “promoted” such a compulsion:
Uber . . . promotes driver attention to their phone while driving. The Uber [A]pp alerts [D]rivers to possible rides, even while that [D]river is driving another passenger. Uber [D]rivers must attend to, read and respond to a possible ride within twenty seconds, creating a strong incentive for drivers to monitor their phone.
As a result, Atchley opined, “it [is] more likely than not that inattention on the part of [Driver] was a result of the design of the Uber [A]pp.”17
In Meador v. Apple, Inc., 911 F.3d 260 (5th Cir. 2018), the United States Fifth Circuit Court of Appeals analyzed a distracted driving claim brought against Apple, Inc. based on a similar
As to whether a useful analogy was provided by disruptive-passenger cases like Choctaw v. Sewell, the Fifth Circuit stated, “[n]one of the causes [of action] alleged in [such] cases strains the sensibilities of a reasonable person, nor does any resemble the [compulsion-based] cause [of action] advanced . . . here.” Id. at 266 n.5.
Furthermore, as to whether a useful analogy was provided by the Texas Supreme Court‘s adoption of dram shop liability in El Chico Corp. v. Poole, 732 S.W.2d 306, 310 (Tex. 1987) superseded by statute,
The recognition of dram shop liability in Texas came about in a noteworthy way. The common law did not make an alcohol seller liable for harms caused by intoxicated patrons, but, noting developments in other states, the Texas Supreme Court saw it as its duty “to recognize the evolution” in the law. It held that “an alcoholic beverage licensee owes a duty to the general public not to serve alcoholic beverages to a person when the licensee knows or should know the patron is intoxicated.” Concurrently, the Texas Legislature passed the Dram Shop Act, which created a cause of action with different contours. In the years that followed, a productive exchange between judicial and legislative branches unfolded, gradually resolving various further questions, large and small. The result was a comprehensive regulatory scheme reflecting the two branches’ extensive deliberations and considered judgments.
. . .
To the extent there is a meritorious analogy between smartphone manufacturers and dram shops, it is for the state to explore, not us.
With the state not yet speaking directly to this issue, we note that the debilitating effects of alcohol have been recognized much longer than the effects of smartphones, and the proper regulation of the former has been debated much longer than the latter. Moreover, the law development that has occurred places the onus of distracted driving on the driver alone.
Meador, 911 F.3d at 266–67 (citations omitted).
Like the Fifth Circuit, state intermediate appellate courts are not the proper forum to recognize new causes of action. See Anderson, 490 S.W.3d at 177; Petco, 144 S.W.3d at 565; see also Burgess v. El Paso Cancer Treatment Ctr., 881 S.W.2d 552, 556 (Tex. App.—El Paso 1994, writ denied) (“[C]hanges in the common law should be left to the Texas Legislature and our Supreme Court.“). We agree with the Fifth Circuit that a distracted driving claim based on compulsion to use a cell phone has not been recognized by the Texas Legislature or the Texas Supreme Court. Accordingly, we decline Riders’ invitation to create such a claim in this case.18
Because the trial court did not err in granting summary judgment on Riders’ direct negligence claim, we overrule sub-issue (c) of their first issue.
D. Vicarious liability
Turning to sub-issue (e) of their first issue, Riders contend the trial court erred in granting summary judgment on two of their vicarious liability claims: ostensible agency and joint enterprise. We discuss each in turn.
Riders argue “[a]n ostensible agency claim is not defeated by a showing that the tortfeasor is an independent contractor,” citing Baptist Mem‘l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). In Sampson, the Texas Supreme Court held that a party who hires an independent contractor is generally not vicariously liable for its conduct, but may act in a way that makes it liable under the doctrine of ostensible agency. Id. at 947, 949. Ostensible agency has the following elements: (1) the plaintiff “had a reasonable belief that the [independent contractor] was the agent or employee of the [hiring entity]“; (2) “such belief was generated by the [hiring entity] affirmatively holding out the [independent contractor] as its agent or employee or knowingly permitting the [independent contractor] to hold herself out as the [hiring entity‘s] agent or employee“; and (3) “[the plaintiff] justifiably relied on the representation of authority.” Id.
The facts and holding in Sampson are instructive. There, the plaintiff, a hospital patient who claimed the doctors working at the hospital were its ostensible agents, signed a consent form “explaining that all physicians at the [h]ospital are independent contractors who exercise their own professional judgment[.]” Id. at 950. In an effort to raise a fact issue, the plaintiff cited evidence that although “directed . . . to sign several pieces of paper before she was examined,” she “did not read them and no one explained their contents to her“; she “did not recall signing the documents“; she “did not . . . see any signs stating that the doctors who work in the emergency room are not [hospital] employees“; and she “did not choose which doctor would treat her and . . . believed that a physician employed by the hospital was treating her.” Id. Based on this evidence, the court concluded that the hospital “took no affirmative act to make actual or prospective patients think the emergency room physicians were its agents or employees,” thus the plaintiff failed to raise a fact issue on the affirmative-holding-out element of her ostensible agency claim. Id.
Here, Riders acknowledge the existence of the Uber rider agreement in effect on the day
Relying on three further factors identified in our unpublished opinion in Moreno v. Columbia Med. Ctr.-E., No. 08-00-00040-CV, 2001 WL 522432, at *2 (Tex. App.—El Paso May 17, 2001, pet. denied)21 —“separate billing,” “control,” and “general circumstances,
As to separate billing, Riders contend “Uber bills the User and it then splits the money with the Driver via a formula unknown to the User[,]” and here “the ‘receipt’ . . . came from Uber.” However, such an arrangement is not inconsistent with a non-agency relationship, and the rider agreement‘s billing language indicates Uber drivers are in fact separate from Uber. Examples of such language include “Uber may use the proceeds of any Charges for any purpose, subject to any payment obligations it has agreed to with any Third Party Providers“; “In certain cases, with respect to Third Party Providers, Charges you incur will be owed directly to Third Party Providers, and Uber will collect payment . . . from you, on the Third Party‘s behalf as their limited payment collection agent“; and “In all other cases, Charges you incur will be owed and paid directly to Uber or its affiliates, where Uber is solely liable for any obligation to Third Party Providers.”
As to control, Riders contend Uber “exercises significant control over the entire ride process as detailed above,” but they do not explain which particular aspect or aspects of such “control” might bear on whether Uber affirmatively holds its drivers out as its agents.23
Finally, as to “general circumstances, appearance, and reliance,” Riders contend they “filed an accident report through the Uber App” (emphasis in original), but do not explain how or why this might bear on whether Uber affirmatively held Driver out as its agent.
Considering all the evidence in the light most favorable to Riders, we conclude that they
(2) Joint enterprise
Uber maintains that Driver‘s independent contractor status precludes the existence of a joint enterprise between Driver and Uber, citing Walker v. Messerschmitt Bolkow Blohm GmBH, 844 F.2d 237, 243 (5th Cir. 1988) (“the principal/independent contractor relationship is fundamentally incompatible with a joint enterprise“) and Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P., 58 S.W.3d 263, 276 (Tex. App.—Fort Worth 2001, pet. denied) (“[T]he summary judgment evidence provided conclusively disproves any community of pecuniary interest [which is required for a joint enterprise], as it supports an independent contractor relationship.“).
Riders counter that Walker and Blackburn are irrelevant; because they involved independent contractor status under the common law, they do not apply here, at least not to the extent Uber relies on
[Driver] is an “independent contractor” only in the sense that the Legislature set out four special criteria for TNCs which Uber contends it meets. The four criteria that statutorily define an independent contractor are not the same criteria that courts have used for years to distinguish independent contractors. The rationale from Walker, built on a common law determination of independent contractor status, does not apply to an independent contractor label based on the four statutory requirements.
In other words, according to Riders, Chapter 2402‘s independent contractor provision “omits many of the key elements of a common law determination of independent contractor status“; ”Walker and cases like it thus cannot be unrooted from their decisional underpinnings and applied to this unique statutorily based situation.”
However, as Uber points out, the statutory provision at issue provides that if certain conditions are met, “[a] driver who is authorized to log in to a [TNC‘s] digital network is
Because the trial court did not err in granting summary judgment on Riders’ vicarious liability claims, we overrule sub-issue (e) of Riders’ first issue.
V. CONCLUSION
For the reasons stated above, we conclude: (1) the trial court did not err in determining that Driver was an independent contractor or in granting summary judgment on Riders’ direct liability claim (distracted driving) and vicarious liability claims (ostensible agency and joint enterprise); and (2) we need not decide Riders’ second issue as well as sub-issues (a) and (b) of their first issue, i.e., whether the trial court erred in striking Riders’ July 20, 2023 supplemental petition, striking Acosta‘s affiant declaration, or denying their motion to reconsider, as we have considered all of the allegations, evidence, and arguments briefed by Riders in relation to these filings.
Accordingly, we affirm the judgment of the trial court.
LISA J. SOTO, Justice
July 1, 2025
Before Salas Mendoza, C.J., Palafox and Soto, JJ.
Notes
A driver who is authorized to log in to a transportation network company‘s digital network is considered an independent contractor for all purposes, and not an employee of the company in any manner, if:
(1) the company does not:
(A) prescribe the specific hours during which the driver is required to be logged in to the company‘s digital network;
(B) impose restrictions on the driver‘s ability to use other transportation network companies’ digital networks;
(C) limit the territory within which the driver may provide digitally prearranged rides; or
(D) restrict the driver from engaging in another occupation or business; and
(2) the company and the driver agree in writing that the driver is an independent contractor.
Section 2 of the legislation provided as follows:
SECTION 2. A [TNC] operating under a municipal ordinance in a municipality of this state immediately before the effective date of this Act may operate at any location in this state without the permit required under
(1) the 30th day after the date rules adopted by the [TDLR] to administer
(2) the date the company‘s application for a permit under
Act of May 17, 2017, 85th Leg., R.S., ch. 231, 2017 Tex. Gen. Laws 440.
Section 3 of the legislation provided as follows:
SECTION 3. On the effective date of this Act, any municipality‘s or other local entity‘s ordinance or policy related to [TNCs] or drivers authorized to access [TNCs‘] digital networks is void and has no effect.
Act of May 17, 2017, 85th Leg., R.S., ch. 231, 2017 Tex. Gen. Laws 440.
In a “preliminary statement” in their brief, Riders similarly assert, “Uber is directly liable for its own negligence in proximately causing the accident—its business policies and the App it designed and requires all Drivers to keep on at all times distracted [Driver]” (emphasis added). Riders underscore the point again in their reply:
This case presents a classic example of when liability can attach to an entity that purports to rely on independent contractors to carry out its business when that entity retains control over the part of the independent contractor‘s performance that led to the underlying injury.
. . .
That is precisely what Uber did here. Uber required [Driver] to use the Uber [A]pp, while driving, in ways that distracted attention from his job of safely driving customers where they want to go (emphasis added).