Lead Opinion
OPINION
' Samuel Lee Jackson, individually, as next friend of his minor son, and as personal representative of the estate of Rexee Jo Jackson, appeals the trial court’s summary judgment in favor of defendant, Cua-hutemoc “Tim” Gonzalez. Erma Ramirez, individually and as next friend of five minor children, and Janie Crosby, individually, also appeal the trial court’s summary judgment in favor of Gonzalez on their claims against him. Appellants bring to the Court a variety of issues relating to Gonzalez’s liability for a fatal traffic collision resulting in the death of three people. We will affirm in part and reverse and remand in part.
Factual and Procedural History
In addition to his several other duties associated with the farming business, Gonzalez is the owner and sole proprietor of Gonzalez Farms, an entity engaged in the custom harvesting business. In this particular instance, Gonzalez contracted with Chester Farms to harvest silage. The verbal agreement between Chester Farms and Gonzalez included the task of hauling the harvested silage from the Chester Farms field to the Littlefield Feedyard. Chester Farms agreed to pay Gonzalez $6.00 for each ton harvested and delivered to the , feedyard and eighteen .cents per mile for the hauling.
As was typical, Gonzalez utilized his own equipment, including harvesters, a combine, grain carts, plows, rakes, and three eighteen-wheeler trucks. However, his own trucks were insufficient to efficiently haul the volume of harvested silage and, after Gonzalez was contacted by a number of other drivers looking for this type of work, he utilized them as well. One such driver was Robert Garcia, owner of 3R/Garcia Trucking and with whom Gonzalez had not previously done business. When Garcia first contacted Gonzalez, Gonzalez informed Garcia that there was no need for extra trucks and, therefore, no work available at that time. Garcia called Gonzalez back about a week later and learned that Gonzalez did have a need for extra trucks and extra drivers at that time. Garcia and two drivers arrived at the designated location with a total of three seemingly well-maintained eighteen-wheeler trucks and carried on the business of hauling silage from field to feedyard. Beginning in mid-September 2009, Garcia and the other 3R/Garcia Trucking drivers apparently hauled loads for Gonzalez without incident.
Gonzalez agreed to pay to the truck drivers $2.75 per ton delivered to the feed-yard and eighteen cents per mile, meaning that Gonzalez kept $3.25 of the $6.00 Chester Farms agreed to pay for each ton harvested and delivered. Gonzalez Farms employed two harvester operators, one of them being Gonzalez’s brother, Javier Gonzalez. In the field, Javier operated one of the harvesters, which would empty the harvested silage through a spout into the bed of a trailer. This process called
Due to weather conditions, harvesting was halted over the weekend of October 3-4, 2009, and delayed throughout the misty and foggy morning of Monday, October 5. When the weather conditions and moisture content of the silage were acceptable, harvesting resumed sometime in the afternoon of Monday, October 5. When harvesting resumed, Garcia brought the usual three eighteen-wheelers belonging to 3R/Garcia but also brought along a fourth truck, a smaller 1980 International tandem truck belonging to Garcia, along with a fourth driver, Raymond Ramirez.
Without incident, apparently, the tandem truck lined up along with the other trucks and was loaded with silage. After it was loaded, it started en route to the feedyard. But along the relatively short route, tragedy stuck when a tire blew out on the tandem truck, causing Ramirez to lose control of the loaded truck and careen headlong into oncoming traffic where the SUV driven by Tammy Jackson and cárry-ing her teenaged daughter, Rexee Jo, was travelling. The head-on impact killed Tammy and Rexee Jo instantly, and Ramirez also died a short time later at the hospital.
Jackson, father of Rexee Jo and former husband of Tammy, sued Garcia and Gonzalez; Ramirez and Crosby intervened. Gonzalez moved for traditional and no-evidence summary judgment against Ramirez and Crosby, and the trial court granted both motions in May 2011. Their claims against Garcia remained.. On August 22, 2011, the trial court signed a default judgment against Garcia in favor of Jackson, awarding over $4.5 million and severing Jackson’s claims against Garcia. Jackson’s claims against Gonzalez remained, as did, it seems, Ramirez and Crosby’s claims against Garcia, not having been specifically identified in the severance language. Jackson and Gonzalez filed competing hybrid motions for summary judgment. The trial court granted Gonzalez’s no-evidence motion, denied Jackson’s, and found it unnecessary to rule on Gonzalez’s traditional motion for summary judgment.
As noted, when it signed the default judgment against Garcia in favor of Jackson, the trial court severed Jackson’s claims against Garcia, leaving-Ramirez and Crosby’s claims against Garcia. In its final order, the trial court specifically severed both Jackson’s and Ramirez and Crosby’s claims against Garcia so as to make final both summary judgments in favor of Gonzalez. The default judgment in favor of Jackson against Garcia had already been severed, not appealed, and appears to be final as to Jackson’s claims against Garcia. Ramirez and Crosby non-suited their claims against Garcia, and those claims are not before us; Garcia is not a party to this appeal.
At issue are two summary judgments granted in favor of Gonzalez against two separate sets of appellants, meaning that there are, in essence,' two appeals. Though some of the issues raised by appellants are similar, each seems to raise
Standard and Scope of Review
-A no-evidence motion for summary judgment is essentially a motion for a pretrial directed verdict. See Tex.R. Civ. P. 166a(i); King Ranch, Inc. v. Chapman,
Because a no-evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing, a no-evidence summary judgment as we apply in reviewing a directed verdict. Chapman,
A no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact on a challenged element: Tex.R. Civ. P. 166a(i); see Forbes Inc. v. Granada Biosciences, Inc.,
Negligent Loading or Overloading
In his first point of error, Jackson contends that the trial court erred by granting Gonzalez’s, no evidence motion for summary judgment on Jackson’s allegation of negligent loading of the tandem truck Ramirez was. driving. Gonzalez contends that the evidence of breach on which Jackson relies is effectively no evidence and, therefore, the trial court did not err by concluding that Jackson failed to bring forth more than a scintilla of evidence to support the breach element of his cause of action in negligence.
Analysis
Bearing in mind the proper standard of review, our task becomes to determine whether Jackson, as nonmovant, pro
Duty is the threshold inquiry, which is a question of law for the court to decide. See Greater Houston Transp. Co. v. Phillips,
As evidence of breach, Jackson points to the responding DPS Trooper William Pace’s notation in his accident report under the heading “Damage to Property Other Than Vehicles” that listed “Silage Cargo-20 tons.” Jackson maintains that Pace’s notation in conjunction with the expert testimony that this particular tandem truck could safely carry no more than 13.8 tons is sufficient to clear the no-evidence hurdle.
However, Pace, by his own admission, was merely guessing or estimating the size of the load when he made the “twenty tons” notation in his report; he does not contend that he was able to accurately weigh the load. In his affidavit, Pace explained his “twenty tons” statement:
I do not have any personal knowledge that the 1980 International being driven by Raymond Ramirez, Jr. was actually hauling 20 tons of silage, nor did I do any independent testing or analysis to determine the weight of the load. It was impossible to determine due to it being spilled all around the accident site. Additionally,' I do not have any personal knowledge of the moisture content of the silage that was being hauled or the load history of the 1980 International truck. I guessed 20 tons after inquiring with Littlefield Feedyard about their estimate of average weight of all trucks that were unloading silage. The silage that spilled from the truck after the accident was never weighed. It could not be utilized because it was rendered damaged goods due to the diesel fuel that had spilled on it.
There was no way to get an accurate weight of the spilled silage, and 20 tons was the weight purported to me by Little Feedyard as an estimate of the average of all trucks, including semi-truck-trailer rigs, unloading from Chester Farms.
Even indulging, as we must, every reasonable inference in favor of nonmovant Jackson, we cannot conclude that the “twenty tons” notation is more than a scintilla of evidence that the tandem truck was over
The record contains no other evidence of how much silage the tandem truck was hauling that day. Alternatively, Jackson points to Gonzalez’s testimony that a truck like the tandem truck involved in the collision probably could haul a load of twelve to fourteen tons. According to Jackson’s expert’s calculations, the maximum load for this particular tandem truck was 13.8 tons, given the specifications and safety rating of the truck. Gonzalez’s testimony that the truck could, in theory, haul a fraction of a ton more than what the specifications of the truck would dictate, according to Jackson, is additional evidence that the truck was overloaded. We disagree. Gonzalez’s testimony that the truck could have hauled a load of twelve to fourteen tons of silage, regardless of whether such testimony is an accurate statement on the payload of the truck, is of no moment when we review the record for evidence of the actual weight of the load the tandem truck was hauling the day it collided with the Jack-sons’ vehicle. That is, regardless of what Gonzalez thought the load could be in such a truck, there remains no evidence of the weight of the actual load on the day of the collision.
Without evidence of how much silage had been loaded into the truck Ramirez was driving, Jackson’s negligent loading cause of action cannot survive a no-evidence motion for summary judgment. See Rodriguez-Escobar,
Statutory Employment
Another manner in which Jackson seeks to impose liability upon Gonzalez is by way of the principle of “statutory employment” under the federal motor carrier safety regulations , (FMCSR), as adopted in Texas. Generally
Statutory employment is a theory of vicarious liability created by the FMCSR. Omega Contracting, Inc. v. Torres,
Applicability and Definitions
Texas has adopted the FMCSR in part. See 37 Tex. Admin. Code § 4.11(a) (2012) (Tex. Dep’t of Pub. Safety, Gen. Applicability & Definitions). Among the FMCSR definitions adopted in Texas are the definitions of “employer” and “employee” set out in section 390.5 of the FMCSR. Martinez v. Hays Constr., Inc.,
An “employer” under the FMCSR is “any person engaged in a business affecting interstate commerce who. owns or leases a commercial motor vehicle in connection with that business, or assigns' employees to operate it.” 49 C.F.R. § 390.5. As adopted in Texas, “interstate commerce” includes all movements by motor vehicle, both interstate and intrastate, over the streets and highways of this state. 37 Tex. Admin. Code § 4.11(b)(3). Under the FMCSR, an “employee” is described as follows:
any individual, other than an employer, who is employed by an • employer and who in the course of his or her employment directly affects commercial motor vehicle safety. Such term includes a driver of a commercial motor vehicle (including an independent contractor while in the course of operating a commercial motor vehicle), a mechanic, and a freight handler.
49 C.F.R. § 390.5. Independent contractors are statutory employees under the FMCSR definition set forth above only when they are “in the course of operating a commercial motor vehicle.” Id.
Texas did not, however, adopt the FMCSR definition of “motor carrier,” opting instead to retain the definition outlined in the Texas Transportation Code: .
“Motor carrier” means an individual, association, corporation, or other legal entity that controls, operates, or directs the operation of one or more vehicles that transport persons or cargo over a road or highway in this state.'
Tex. Transp. Code Ann. § 643.001(6) (West 2011); 37 Tex. Admin. Code § 4.11(b)(1).
Is Gonzalez a “Motor Carrier, ” “Ultimately Responsible”? ■
Two -sister courts have explored the application of the Texas definition of “motor carrier” in section 643.001 of the Texas Transportation Code in the context of statutory employment. See Castillo v. Gulf Coast Livestock Mkt., L.L.C.,
• The Martinez court examined a set of facts not dissimilar to the facts of the case at bar. In Martinez, Hays Construction, had contracted with the Harris County Flood Control District to perform excavation work on a bayou. Martinez,
Bello recruited his brother, Delfino, to join in the work, and, for two days, Delfino hauled dirt from the bayou to the dump site without incident. See id. On his third day of work, however, his loaded truck collided with a car driven by Luis Martinez, who was fatally injured in the collision. Id. Martinez’s family and estate initially sued Delfino,. Salvador, Salvador’s wife, and Bello Transportation but later also sued Hays Construction and Melendez, alleging among other things that they violated applicable provisions of the FMCSR as adopted in Texas. Id. at 174-75. More specifically, Martinez alleged that Hays Construction was the “statutory employer” of Melendez and the Bellos and was therefore vicariously liable for their negligence. Id. at 175.
The trial court granted summary judgment in favor of Hays Construction on all the claims' against it. See id. at 177. Among the several arguments raised on appeal from that judgment was Hays Construction’s contention that it was not a .“motor carrier” and that, therefore, the FMCSR did not apply. See id. at 175-76, 184. The Martinez court noted that it was Hays Construction which was “ultimately responsible” for hauling dirt from the bayou to the drop-off site. Id. at 185. The court also observed that it was Hays Construction which obtained the hauling permits and determined the ultimate destination for the load. Id. Further, Hays Construction employees actually loaded each. dump truck, checked each driver’s license and proof of insurance, and informed each driver where to take the dirt. Id. Hays Construction also indirectly paid the drivers for each load. Id. Viewing the cited evidence in the requisite light most favorable to Martinez, the court concluded that Martinez had raised a fact issue as to whether Hays Construction was a legal entity that “controls, operates, or directs” the operation of the dump trucks used to haul dirt for the excavation project such that it would fall within the Texas definition of “motor carrier.” Id.
Confronted with a rather different fact scenario and called on to determine the “motor carrier” issue, the San Antonio Court came to the opposite but fundamentally consistent conclusion that a plaintiff had failed to raise a fact issue concerning whether the defendant livestock auction barn was a “motor carrier” within the Texas definition. See Castillo,
Castillo contended that Gulf Coast Livestock Market (Gulf Coast) was liable for Hellen’s negligence as Hellen’s statutory employer under the FMCSR as adopted in Texas. Id. at 303. The San Antonio Court addressed the first issue: whether Castillo presented more than a scintilla of evidence that Gulf Coast was a “motor carrier.” Id. at 303-04. In examining the issue, the court studied the Martinez court’s decision and outlined the evidence
Castillo contrasted this evidence with that in Martinez which supported the conclusion that Hays Construction was “ultimately responsible” for the transport:
Here, by contrast, Gulf Coast exercised no control over the drivers and the trucks. Gulf Coast contacted drivers on an as-needed basis to accommodate a small percentage of its customers. Gulf Coast’s employees did not perform the loading, nor did Gulf Coast direct the size of the load at the pick-up site. Gulf Coast did not direct the route to be taken by the drivers, nor did it exercise any other control over the trucks or the drivers as they transported the livestock to Gulf Coast’s auction barn. Although Gulf Coast’s employees unloaded the livestock on Gulf Coast’s premises, this was done only after the truck was parked in the unloading area. In fact, the evidence showed that Gulf Coast employees were expressly instructed not to enter the trucks delivering livestock, and to begin unloading only after the truck was parked in the designated unloading area. Finally, the sign on Gulf Coast’s property stating, “Loading and unloading of livestock is to be done by employees only,” was not specific to drivers hauling livestock on behalf of a third party. The sign applied to all of the drivers delivering livestock to the auction barn.
Id. at 305-06. The San Antonio Court concluded that summary judgment was proper on the “motor carrier” issue because Castillo failed to bring forth more than a scintilla of evidence that Gulf Coast controlled, operated, or directed the operation of one or more vehicles that transport persons or cargo over a road in this state. See id. at 306 (citing Tex. Transp. Code Ann. § 643.001(6)).
In the instant case, Gonzalez testified by deposition that he or his employee, Javier, would direct the drivers where to be in order to pick up the silage and where to deliver it. Javier or the other operator would operate the harvester in a manner so as to load the trailers, and the operator would signal to the driver when the trailer was full. Gonzalez explained that he decided what equipment to use on a given project and agreed that he was in control of the harvesting, but, he pointed out, it was the individual driver who decided which of the three available routes to take to the feedyard. Javier testified similarly by deposition, confirming that it was he who signaled to the driver that the trailer was full. He also elaborated on the amount of control Gonzalez retains over the conditions of the trucks used: the truck to be filled has to be approved by Gonzalez. When shown photographs of the tandem truck’s tires, Javier responded that he would not have put tires in such poor condition on his truck.
The tandem truck and Ramirez showed up for the first time on that Monday after
The drivers were paid, as was Gonzalez, at the end of the harvest. Chester Farms and Gonzalez came to agreement on the eighteen cents per mile figure and then the task became Gonzalez’s to get the silage hauled at eighteen cents per mile. Gonzalez was adamant, however, that “[he] set[s] the rates” for hauling. The per-ton and per-mile rates that Gonzalez paid to the drivers were included in the price Chester Farms agreed to pay for each ton of silage harvested mid delivered.
Gonzalez maintained that responsibility for the condition of each truck fell on the truck’s owner. He also explained that, while Javier noticed that the tandem truck was new to the line-up, he was not in the position to notice or inspect the truck’s condition. Nonetheless, when confronted with photographs showing the poor condition of the tandem truck’s tires, Gonzalez testified that he “would have advised him about the tires” and that he “could not have loaded him” with tires in that condition. He later repeated his position that he would not have loaded the tandem truck out of safety concerns had he seen its condition, noting that retreaded tires on the front steering axle was ill-advised. He described a very general inspection process, agreeing that he would not hire those who showed up with a bunch of pick-up trucks or an unsafe truck. He acknowledged that he is in charge out in the field and can decide which trucks to load. In his absence, such as the day of the collision; Javier would substitute for him and have the authority to decide whether to load a truck. Gonzalez testified that he would expect Javier to fill only safe trucks and added that Javier was probably even more experienced than he was in terms of truck safety and maintenance.
Even though he recognized a driver’s safety history as a very important concern, Gonzalez admits that, during a conversation with a fellow harvester, he did not ask about Garcia’s history. Gonzalez excused his failure to inquire into Garcia’s safety at that point — after Garcia had been working for him: he had already seen Garcia’s equipment and had no reason to be concerned about safety. Gonzalez did not ask Garcia about his drivers and did not inquire into insurance, maintenance, or licen-sure.
From the record, we see that Gonzalez’s employees loaded the trailers with silage and determined when the trailer was full. Gonzalez also made the determination of which equipment to use and coordinated the harvesting in terms of moisture and weather conditions and directing drivers where to go and when. The record suggests, too, that he retained some authority to control the transport from the farm to feedyard; by his own testimony, he had the authority to refuse to fill a truck he considered unsafe. Further, there is evidence that, per the agreement with Chester Farms, it was Gonzalez who was “ulti
Is Gonzalez an “Employer"?
The Martinez court also noted that, for Hays Construction to be vicariously liable for Delfíno’s negligence, it must also qualify as Delfíno’s “statutory employer” under section 390.5 of the FMCSR. Martinez,
Hays Construction emphasized that it exercised no control over the route that drivers took to the drop-off location and that it played no role in requiring independent contractor drivers to operate a particular truck at a particular time. Id. Drivers could make as.many or as few trips as they deemed fit; Hays Construction did not control such decisions. See id. Nonetheless, the court pointed out, Martinez presented evidence that the drivers reported to Hays Construction’s- bayou worksite and that Hays Construction employees checked licensure and insurance, provided hauling permits, loaded the dump trucks, and informed the drivers of the unloading destination. Ultimately, the drivers returned their receipts to and were paid by Hays Construction. See id. Based on a view of such evidence in a light most favorable to the non-moving Martinez, the. court concluded that Martinez raised a fact issue
Keeping in mind that Gonzalez may be an “employer” under the FMCSR if he owns or leases a commercial motor vehicle or if he “assigns an employee to operate” a commercial motor vehicle, we see that much of the same evidence that raises a fact issue as to whether Gonzalez is a “motor carrier” also serves to raise a fact issue as to whether Gonzalez “assigns” employees to operate commercial motor vehicles and would, therefore, qualify as an “employer.” See Martinez,
Were Garcia and Ramirez “Employees”?
Certainly, the evidence suggests that both Garcia and Ramirez were drivers of a commercial motor vehicle and were therefore specifically included within the definition of “employee.” While Gonzalez characterizes both Garcia and Ramirez as independent contractors, such a characterization does not end our inquiry on the issue of “employee” status under the FMCSR. See 49 C.F.R. § 390.5; Martinez,
Based on the contractual relationships, business arrangements, and details related to performance of the hauling duties, the Martinez court concluded that there was evidence sufficient to raise a fact issue as to whether Hays Construction hired Delfi-no as an independent contractor and that, therefore, Delfino could be an “employee” as “an independent contractor in the course of operating a commercial motor vehicle.” See Martinez,
Conclusion as to Jackson’s Issues on Appeal
The trial court properly granted no-evidence summary judgment on Jackson’s negligent overloading claims. However, because Jackson responded to Gonzalez’s
Narrowing Issues and Scope of Review
Turning now to those issues, we see that they raise five issues on appeal, contending that the trial court improperly granted summary judgment in favor of Gonzalez for the following reasons: (1) Gonzalez owed Ramirez a legal duty; (2) Gonzalez assumed a legal duty; (3) there is more than a scintilla of evidence that Gonzalez entered into a joint enterprise with Garcia and Gonzalez would, therefore, be liable for Garcia’s negligence, his negligence being an issue upon which all parties seem to agree; (4) Gonzalez, as a motor carrier, owed Ramirez a duty; and (5) the trial court erred by granting summary judgment when Gonzalez owed Ramirez a legal duty not to negligently hire an .independent contractor.
We first begin by addressing which issues are properly before us as potential grounds for reversing the trial court’s summary judgment. The record reveals that Ramirez and Crosby’s Third Amended Petition in Intervention and their Second Supplemental Response to Gonzalez’s hybrid motion for summary judgment were filed after the trial court granted summary judgment. That said, we have closely studied the timing of and the issues raised in - their petitions and responses.
The trial court granted Gonzalez’s motion for summary judgment and ordered that Ramirez and Crosby take nothing. The trial court signed its judgment on May 19, 2011. On May 23, 2011, Ramirez and Crosby filed their Third Amended Petition in Intervention in which they first alleged negligent hiring of an independent contractor, statutory employment, motor carrier safety regulations, and negligent overloading of the truck. It was also here where Ramirez and Crosby specifically alleged that Gonzalez assumed a duty to Ramirez. On May 26, Ramirez and Crosby filed their second supplemental response to Gonzalez’s motion for summary judgment. In it, Ramirez and Crosby attempt to adopt portions of the arguments raised by Jackson in his own hybrid motion for summary judgment. More specifically, Ramirez and Crosby’s post-judgment response attempts to adopt Jackson’s contentions regarding negligent overloading and various arguments he makes regarding statutory employment and the FMCSR.
Attempt to Amend Pleadings Post-Judgment
Generally, the trial court has wide latitude in permitting amendments. See Boarder to Boarder Trucking, Inc. v. Mondi, Inc.,
Ramirez and Crosby’s Third Amended Petition was filed after the trial court entered summary judgment in favor of Gonzalez on all of Ramirez and Crosby’s claims against him at the time summary judgment was rendered. Ramirez and Crosby’s attempt at amending their petition in intervention to allege additional cause of actions was too late. See id. Allegations of assumed duty, statutory employment, FMCSR violations, negligent overloading, and negligent hiring they attempted to raise by this post-judgment amendment to their pleading were not presented to the trial court. See Marshall,
Likewise, Ramirez and Crosby’s second supplemental response to Gonzalez’s motion for summary judgment was too late, also having been filed after judgment had been rendered. That said, we also do not consider such response. Because no allegations of assumed duty, statutory employment, FMCSR violations, negligent overloading, or negligent hiring had been lodged against him by Ramirez and Crosby, Gonzalez had not expressly moved for summary judgmént on such grounds. From that, we observe that Ramirez and Crosby’s attempted adoption of Jackson’s contentions in their “response” to a motion that had not been made is of no effect; it follows naturally that the trial court could not have granted summary judgment on these issues. See Prater,
Ramirez and Crosby’s third amended petition and their second supplemental response to Gonzalez’s motion for summary judgment were filed after the trial court entered summary judgment and were, therefore, too late. Consequently, neither the newly added allegations outlined in their post-judgment amended petition nor the attempted adoption of Jackson’s contentions related to similar issues were before the trial court; nor are they before this Court.
Consistent with our treatment of the impact in the trial court of Ramirez and Crosby’s attempted post-judgment amendment and supplementation, we must also limit the scope of our review on appeal. Appellate review of a summary judgment is limited to the record that was before the trial court when it granted summary judgment. Davis v. Med. Evaluation Specialists, Inc.,
The limited scope of our review means that the points of error Ramirez and Crosby raise on appeal which present issues of assumed duty, statutory employment under the FMCSR, and negligent hiring are not properly before us and may not serve as grounds for reversing the trial court’s summary judgment. We address their two remaining points in turn: negligence relating to breach of a duty owed by way of a retained control over 3R/Garcia Trucking and negligence by application of joint enterprise liability.
Retained Control
Ramirez and Crosby contend that Gonzalez’s actual control over the transportation of the silage gave rise to a legal duty on the part of Gonzalez to inspect and ensure the safety of the tandem truck used to haul silage from the field to the feed-yard.- That is, Ramirez and Crosby maintain that Gonzalez retained control over 3R/Garcia’s. hauling operations to such a degree that he owed a duty to Ramirez, an employee of an independent contractor, not to engage the services of the unsafe tandem truck.
Applicable Law
In this arena, the Texas Supreme Court adopted the rule enunciated in the Restatement (Second) of Torts:
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for- physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Redinger v. Living, Inc.,
The Texas Supreme Court outlined the degree of control necessary to create a duty, again referring to the Restatement’s position:
[T]he employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.
Koch Ref. Co. v. Chapa,
A general contractor’s right to control may be established through evidence of a contractual agreement that explicitly assigns the right to control the independent contractor’s employee’s work. See id. The right to control may also be established if the evidence demonstrates that the general contractor actually exercised control over the manner in which the independent contractor’s work was performed. See id. To further delineate and clarify the issues raised by the related but distinct concepts of contractual and actual control, the Texas Supreme Court has' explained that, although courts have frequently used the terms “right of control” and “retained control” interchangeably, “[t]he distinction remains important, however, because determining what a contract says is generally a question of law for the court, while determining whether someone exercised actual control is [] generally a question of fact for the jury.” Lee Lewis Constr.,
In Redinger, the Texas Supreme Court held that the general contractor was liable for the actions of one independent contractor which led to another independent contractor’s employee’s injuries because the general contractor retained “the power to direct the order in which the work was to be done and to forbid the work being done in a dangerous manner.” Redinger,
When an independent contractor’s employee fell to his death from the tenth floor of a remodeling project, the Texas Supreme Court was faced with a similar question of the general contractor’s liability for the safety measures used during the project. See Lee Lewis Constr.,
There are also cases in which a general contractor’s retained control, if any, was insufficient to give rise to a duty. For instance, an injured employee of an independent contractor argued that a duty arose based on the presence of a safety representative of the employer/premises owner and the possibility that the safety representative could intervene and forbid the employee and a co-worker from lifting a pipe in a dangerous manner. See Koch Ref.,
Analysis
From these cases, we see that we must determine whether Gonzalez retained control of the activities or conditions that actually caused Ramirez’s injuries and death. See Exxon Corp. v. Tidwell,
Ramirez and Crosby responded to the no-evidence motion for summary judgment with, inter alia, Gonzalez’s deposition testimony in which Gonzalez explained that the truck drivers would decide which of three available routes to take to deliver the silage to the feedyard. At one point, when asked about what he would have done if a truck entered the transport lineup but appeared to be improperly maintained, Gonzalez directed the responsibility toward the truck owners: “I think I would have left it up to them. They are the owners of the truck.”
Despite this and other initial efforts to distance himself and his employees from safety related issues concerning the trucks used in transport, Gonzalez seemed to accept some degree of authority over the safety of independent contractors’ equipment:
*152 Q: Okay. And if you had seen the condition of the tires, like are in the photographs that are part of Exhibit Number 4, would you have let Mr. Garcia slide this tandem in?
A: I would have advised him about the tire. Could I have made him not haul? No, sir. I could have not loaded him, yes, sir, but I couldn’t make him change the tires.
Q: If you had seen the condition of the tires before the tandem was loaded, would you have loaded it and sent it on its way?
A: I would advise him about it. I don’t know if I could have stopped him. I probably wouldn’t have loaded him.
After some efforts at clarifying questions, the exchange continued in the same vein:
Q: If you had seen the condition of the tires like you see in these photographs, if you’d seen that before you loaded him, before you loaded the tandem, would you have loaded the tandem anyway and sent it on its way?
A: No, sir.
Q: Okay. And the reason you would not have loaded it is because of safety’s sake, correct?
A: Correct, sir.
Q: And the reason you would not have loaded it is because you would have recognized the condition of the tandem as being dangerous?
A: Correct, sir.
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Q: Would you have allowed the loading of a tandem that had recapped tires on the front steering axle?
A: No, sir.
Q: And that, again, is because you recognize that as a safety issue?
A: Correct. My experience ... [is] you are not supposed to do that.
Gonzalez went on to repeat that a recapped or retreaded tire should not be on the steering axle. Gonzalez also expressed his hypothesis that Garcia felt that he could slip the unsafe tandem truck into the transport line-up because Gonzalez had not been present in the field for a few days, suggesting that Gonzalez could have refused to utilize the tandem truck and that Garcia knew that Gonzalez had that authority.
Gonzalez later elaborated on his role in the harvest and transport:
Q: Your title is owner?
A: Correct.
Q: Is that fair to say that puts you in charge out there in the field?
A: Of my machinery, yes, sir.
Q: And of your people?
A: Yes, sir.
Q: So you are in charge on which truck, because you’ve already told me you can tell somebody, “Don’t load that truck or do load that truck,” right?
A: Correct.
Q: So you are the person who would be in charge of making the decision to load or to not load a truck?
A: That — yes, sir.
As we have noted, because Gonzalez was ill, he did not go out to the Chester Farms field on the day of the collision. Gonzalez testified that, in his absence, Javier would take on Gonzalez’s responsibilities. Gonzalez testified that Javier would have “the authority to say load or don’t load” and Gonzalez would have expected Javier to only load those trucks that were safe. Gonzalez agreed, too, that Javier probably had even more experience in truck safety and maintenance than did Gonzalez.
Further, taking as true the evidence that suggested that Gonzalez had communicated with Garcia about using the tandem truck because of the sandy soil condi
Gonzalez agreed that a quick visual inspection of the equipment brought to the field to transport the silage was “an important part of the process” and that he would not hire a driver who showed up to the work site in an inappropriate vehicle, such as a pick-up truck or an unsafe truck. He also acknowledged that a driver’s safety record and attitude toward safety is “a very high consideration” but testified that he had not checked into Garcia’s reputation or work history prior to hiring him. Shortly after Garcia came to work for Gonzalez, Gonzalez did speak with a friendly competitor in the harvesting business and inquired into his experience working with Garcia. When asked whether he discussed with his competitor Garcia’s safety history and attitude, Gonzalez explained that he did not because Garcia had already been hauling for him and Gonzalez did not feel as though safety or safety of Garcia’s equipment was an'issue:
A: As far as we were concerned, he had no issues at all about safety, so the conversation never came up.
Q: Who said he had no issues on safety?
A: I said it didn’t come up. No issue. He said he was dependable and had good equipment.
Q: Oh, he did say he had good equipment?
A: Yes.
Gonzalez recognized that making inquiry into a driving company’s background is necessary to make sure that the equipment being used is safe. But he admitted that he did not inquire into Garcia’s driver hiring process, his maintenance practice, his safety record, insurance, registration, or licensure related to the trucks to be used in transport.
It appears that Gonzalez undertook the task of checking into the safety of his independent contractor’s equipment and, to some degree, personnel. And there is evidence that he retained the authority to decide which trucks would be loaded, authority which is consistent with his checking into an independent contractor’s safety history. ■ The record indicates that Gonzalez was concerned about the safety of trucks used to transport silage and that he made efforts in furtherance of his control relating to the safety of trucks used in the transport. He testified that he did make a visual inspection of 3R/Garcia’s three trucks when they first arrived at the field; those three trucks appeared to be late-model, well-maintained trucks and did not raise any safety concerns. The problems arose only when, either by Gonzalez’s direction or by Garcia’s design in Gonzalez’s absence, the tandem truck showed up and, apparently, was not inspected but was loaded despite its now-recognized very poor, unsafe condition.
While not in direct control of whom the trucking companies hired as drivers or which trucks- were brought to the work site and while unable to directly order or coordinate maintenance of the- trucks brought to the field by independent con
The cited evidence is more than a scintilla of evidence that Gonzalez retained control beyond the “general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.” See Koch Ref.,
Whether Gonzalez retained sufficient control over 3R/Garcia’s operations to give rise to a general contractor’s duty to exercise that control in a reasonable manner is more properly a matter for a finder of fact’s determination upon examination of a fully-developed record. See Lee Lewis Constr.,
Joint Enterprise
Ramirez and Crosby also contend that there is more than a scintilla of evidence that Gonzalez and Garcia were engaged in a joint enterprise such that Gonzalez should be held liable for the negligence of Garcia. We disagree.
Applicable Law
“The theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other.” Shoemaker v. Estate of Whistler,
To successfully allege that Gonzalez and Garcia were engaged in a joint enterprise, Ramirez and Crosby were required to show the following elements: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose, among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control. Shoemaker,
Community of Pecuniary Interest
In determining whether evidence of a “community of pecuniary interest” exists, the Texas Supreme Court has “focused upon evidence showing pooling of efforts and monetary resources between entities to achieve common purposes, namely reduction in costs and contemplation of economic gain by approaching the project as a joint undertaking.” Blackburn v. Columbia Med. Ctr. of Arlington Subsidiary, L.P.,
In finding a “community of pecuniary interest” in Able, the Texas Supreme Court relied upon evidence that the state highway had been a joint effort between the parties and involved substantial sums of money from federal, state, and local funds. See Able,
Citing details of the arrangement between a hospital and a radiology group, the Fort Worth Court found no scintilla of evidence of “community of pecuniary” interest even though the agreement was a convenience to the hospital and its patients and also benefitted the radiology group. See Blackburn,
Analysis
Likewise, in the instant cause, there was no evidence of a “community of pecuniary interest.” There was no evidence that suggested Gonzalez and Garcia pooled funds and resources, as contemplated by the law of joint enterprise. See Able,
Because Ramirez and Crosby failed to bring forth a scintilla of evidence that Gonzalez and Garcia shared a “community of pecuniary interest,” their allegation of joint enterprise fails, and the trial court properly granted Gonzalez’s no-evidence summary judgment on that issue. See Chapman,
Conclusion
The trial court properly granted summary judgment in favor of Gonzalez on Jackson’s claims of negligent overloading and on Ramirez and Crosby’s claims of negligence based on joint enterprise. We, therefore, overrule the corresponding points of error of the respective parties. We do not reach three of Ramirez and Crosby’s points of error, having concluded that they were not before the trial court at the time it granted summary judgment and may not serve as bases for reversing the judgment.
No-evidence summary judgment in favor of Gonzalez was improper, however, on Jackson’s claims of statutory employment and on Ramirez and Crosby’s negligence claims based on retained control. We, therefore, sustain those corresponding points of error of the respective parties. Accordingly, we affirm the trial court’s no-evidence summary judgment in part, reverse it in part, and remand the cause to the trial court for further proceedings consistent with this opinion. See Tex.R.App. P. 43.2(a), (d).
CAMPBELL, J., concurring and dissenting.
Notes
. For clarity, the following parties remain: (1) Jackson: plaintiff/appellant, Tammy's ex-husband and Rexee Jo’s father; (2) Ramirez: intervenor/appellant, widow of Raymond Ramirez; (3) Crosby: intervenor/appellant, Raymond Ramirez’s mother; and (4) Gonzalez: defendant/appellee, harvesting business owner who hired Garcia to provide trucks and drivers who, in turn, hired Ramirez.
. Gonzalez maintains that this portion of the definition of "employer” necessarily refers to the previous clause concerning the ownership or leasing of a truck. In other words, he argues, we should read the "assigns employees- to operate it" language as limited only to a "commercial motor vehicle” which is owned or leased by the alleged motor carrier. This reading requires us to construe the statute in a rather circular manner: "any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate [a commercial motor vehicle owned or leased by that person].” Read in such a manner, the second clause — the "or assigns” clause— would serve no real purpose because, in every case, the commercial motor vehicle in question would be owned or leased by the motor carrier; the only question to be answered would always be whether the motor carrier owned or leased the vehicle, and the "or assigns” language is mere surplusage and without purpose. We must avoid reading a statute in such a way as to render a portion of it useless. See Martinez,
. Our conclusion remains despite the fact that Ramirez and Crosby filed a motion for reconsideration. Ordinarily, when a motion for reconsideration or a motion for new trial is filed after summary judgment is granted, the trial court may only consider the record as it existed before granting summary judgment. See Circle X Land & Cattle Co. v. Mumford Indep. Sch. Dist.,
Concurrence in Part
concurring and dissenting.
The court affirms the trial court’s grant of summary judgment in favor of Cuahu-temoc (“Tim”) Gonzalez on Samuel Lee Jackson’s claim based on, the allegation of negligent loading of the tandem truck. I join in the affirmance of summary judgment on that claim, and in the parts of the court’s opinion addressing it.
I also join in the court’s disposition of the issues brought on appeal by Erma Ramirez and Janie Crosby, and in the parts of the court’s opinion addressing those issues.
However, I am unable to agree with the court’s reversal of the trial court’s grant of summary judgment on Jackson’s claim seeking to impose liability on Gonzalez under the federal motor carrier safety regulations (FMCSR).
Under the FMCSR an employer is defined as “Any person engaged in a business affecting interstate commerce who owns or leases a commercial motor vehicle in connection with that business, or assigns employees to operate it....” 49 C.F.R. § 390.5. Relying on Martinez v. Hays Construction, Inc.,
The court points to evidence Gonzalez told the truck drivers where the field being harvested was located and where they were to haul the silage. Surely virtually every person who finds'it necessary to hire a truck to haul a cargo also must tell the trucker where to get the cargo and where to haul it. That Gonzalez did so seems to me no evidence that he thereby “assigned” the truck driver to operate the truck.
The court points also to evidence that Gonzalez’s employees loaded the trucks and signaled the drivers when the load was full. Again, these unremarkable facts seem to me no evidence of assignment of drivers.
Thirdly, the court finds it significant that Gonzalez testified he retained the authority to refuse to load a truck he considered unsafe. Keeping in mind that the assignment leading to statutory employer status is assignment of drivers, not vehicles,
Taken individually or together, and viewing them in the light most favorable to the non-movants, these evidentiary facts show nothing more than Gonzalez hired 3R/Garcia Trucking to haul silage from the field to the feedyard and' he would not have loaded the tandem truck if he had seen the condition of its tires. Nothing in their transaction is evidence that Gonzalez assigned drivers for Garcia’s trucks.
As the court accurately states, the facts in Martinez were similar. See Martinez,
. While the court focuses on evidence Gonzalez assigned drivers, Jackson's brief urged, "This Court should join the overwhelming majority of courts to decide this issue and hold that one who leases a commercial motor vehicle is the statutory employer of the driver
. See Schramm v. Foster,
. Employees, under the FMCSR, are individuals. See 49 C.F.R. § 390.5 (defining employee). And, as the court points out, the definition includes an independent contractor while in the course of operating a commercial motor vehicle. It follows that a person, like Gonzalez, becomes a statutory employer through assigning employees only by assigning individuals to operate motor vehicles.