Riсhard CASTILLO and Patsy Castillo, Appellants, v. GULF COAST LIVESTOCK MARKET, L.L.C., Appellee.
No. 04-11-00851-CV
Court of Appeals of Texas, San Antonio.
Dec. 19, 2012.
The Rose court explained, “When a plaintiff‘s credentialing complaint centers on the quality of the doctor‘s treatment, as it does here, the hospital‘s alleged acts or omissions in credentialing are inextriсably intertwined with the patient‘s medical treatment and the hospital‘s provision of health care.” Id. at 546. In Rose, the patient‘s negligent credentialing claim derived from the physician‘s alleged negligent treatment of her. Id. The court stated that, “without negligent treatment, a negligent credentialing claim could not exist.” Id. The court concluded that the hospital‘s acts or omissions in credentialing the physician were an inseparable part of the treatment that was provided to the patient. Id. The court held that the patient‘s negligent credentialing claims against the hospital were health care liability claims under Chapter 74 because they involved a claimed departure from an accepted standard of health care. Id.
Similarly, in McAllen Medical Center, former patients of a hospital alleged negligent credentialing claims against the hospital based on allegedly negligent treatment that they had received from a doctor at the hospital. 275 S.W.3d at 462. The patients claimed that the hospital had been negligent in hiring, retaining, and supervising the doctor. Id. Citing its earlier opinion in Rose, the court recognized that the patients werе asserting health care liability claims. Id.
In Rose and McAllen Medical Center, the hospitals’ granting of privileges allowed the doctors to provide treatment to the plaintiffs at the hospitals. The plaintiffs’ claims against the hospitals centered on the quality of treatment that the doctors rendered to them at the hospitals. In this case, appellees’ allegations do not involve the rendition of health care to any person. Quality of treatment is simply not at issue here. This case is distinguishable from Rose and McAllen Medical Center. Accordingly, those cases do not support the contention that аppellees are asserting health care liability claims.
For the reasons stated above, we conclude that appellees’ claims are not health care liability claims under Chapter 74. The trial court did not err when it denied Hendrick‘s motion to dismiss. Hendrick‘s appellate issue is overruled.
This Court‘s Ruling
We affirm the trial court‘s order denying Hendrick‘s motion to dismiss.
Carlos A. Villarreal, McKibben, Woolsey & Villarreal, Corpus Christi, TX, for Appellee.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI and MARIALYN BARNARD, Justices.
OPINION
Opinion by KAREN ANGELINI, Justice.
This is an appeal from a take-nothing judgment on claims filed by Richard Castillo and his wife, Patsy Castillo, against Gulf Coast Livestock Market, L.L.C. Castillo was injured when a tractor trailer backed into him on Gulf Coast‘s premises. The Castillos brought claims against Gulf Coast for premises liability, negligent hiring of the driver of the tractor trailer, and negligence. Gulf Coast filed three summary judgment motions, which together addressed all of the claims brought by the Castillos. The trial court granted all of Gulf Coast‘s summary judgment motions, and rendered final judgment that the Castillos take nothing on their claims. On appeal, the Castillos argue the trial court erred in granting summary judgment on their negligence and negligent hiring claims, and in excluding the affidavit of their expert witness. We affirm the trial court‘s judgment.
BACKGROUND
Gulf Coast is in the business of brokering the sale of livestock. It operates a livestock auction barn in Alice, Texas. Ninety-percent of Gulf Coast‘s business involves selling animals that are transported to the auction barn by their owners.
Castillo is an animal inspector, employed by the Texas Animal Commission.
On August 5, 2008, Castillo was injured on Gulf Coast‘s premises when a tractor trailer loaded with cattle backed into him. Gulf Coast did not own the tractor trailer. The traсtor trailer was driven by Charles W. Hellen, III, who was not a Gulf Coast employee. Hellen did not own the tractor trailer, nor did he own the cattle in the tractor trailer. The cattle in the tractor trailer, owned by someone who is not a party to this case, were being delivered to the auction barn for sale. The accident occurred when Hellen was backing the tractor trailer into a designated area for unloading by Gulf Coast employees.
The Castillos sued Gulf Coast for premises liability, negligence, and negligent hiring. After answering the suit and conducting discovery, Gulf Coast filed three summary judgment motions. The first summary judgment motion addressed the Castillos’ premises liability claim. The trial court granted the first summary judg-
The second summary judgment motion addressed both the Castillos’ negligence and negligent hiring claims. In this motion, which was both a traditional and no evidence summary judgment motion, Gulf Coast asserted the Castillos could not recover on their negligent hiring claim because (1) Gulf Coast did not hire Hellen and therefore it owed no duty to the Castillos, and (2) there was no evidence that Gulf Coast hired Hellen on the day of the accident. Attached to its second summary judgment motion was the affidavit of Gulf Coast managing owner, David Shelton. In the affidavit, Shelton testified as follows:
On the date of the accident I had an agreement with Freddie Moore to distribute a portion of the proceeds from the sale of livestock in exchange for his delivery of livestock to Gulf Coast Livestock Market. On the date of the accident I expected Freddie Moore to deliver the livestock to Gulf Coast Livestock Market. I did not know that Mr. Moore had hired Charles Hellen to deliver the сattle on that day. Gulf Coast Livestock Market had no written agreement with Charles Hellen and did not hire him. Gulf Coast Livestock Market is not involved in the business of transporting livestock. Neither myself nor Gulf Coast Livestock Market were involved in hiring, or the decision to hire, Charles Hellen.
Alternatively, Gulf Coast argued in its second summary judgment motion that the Castillos’ negligence and negligent hiring claims were foreclosed because there was no evidence of proximate cause.
The third summary judgment motion addressed the Castillos’ negligence claim, which was based on a vicarious liability theory. The Castillos alleged Gulf Coast was liable for Hellen‘s negligence because, even if Gulf Coast did not literally employ Hellen, Gulf Coast was liable because it was a motor carrier and Hellen was its statutory employee. In this motion, which was a no-evidence summary judgment motion, Gulf Coast alleged there was no evidence it was a motor carrier as that term is defined in
The Castillos filed responses to the second and third summary judgment motions, and attached evidence to these responses. The Castillos’ evidenсe included Hellen‘s deposition testimony, Gulf Coast‘s bookkeeping records, and an expert witness affidavit. Gulf Coast objected to the expert witness affidavit, arguing the expert was not qualified to offer legal conclusions, and his testimony was conclusory and unreliable. The trial court sustained these objections, and excluded the expert witness‘s affidavit. Thereafter, the trial court granted Gulf Coast‘s second and third summary judgment motions, and rendered judgment that the Castillos take nothing on their claims. The Castillos appealed.
NO-EVIDENCE SUMMARY JUDGMENT STANDARD
After an adequatе time for discovery, a party who does not have the burden of proof at trial, may move for a no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of the respondent‘s claim or defense.
NEGLIGENCE CLAIM
The Castillos argue the trial court erred in granting summary judgment as to their negligence claim because Gulf Coast was Hellen‘s statutory employer and therefore was vicariously liable for Hellen‘s negligent conduct. Statutory employment is a theory of vicarious liability created by the Federal Motor Carrier Safety Regulations (FMCSR). Omega Contracting, Inc. v. Torres, 191 S.W.3d 828, 848 (Tex.App.-Fort Worth 2006, no pet.). Under the FMCSR, a “motor carrier” is vicariously liable for the negligence of its “statutory employee” drivers. Martinez v. Hays Constr., Inc., 355 S.W.3d 170, 184 (Tex.App.-Houston [1st Dist.] 2011, no pet.); Tamez v. S.W. Motor Transp., Inc., 155 S.W.3d 564, 573 (Tex.App.-San Antonio 2004, no pet.); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 43 (Tex.App.-Fort Worth 2002, no pet.).
The Texas Department of Public Safety has adopted a majority of the FMCSR.
Here, Gulf Coast moved for summary judgment asserting there was no evidence it was a “motor carrier” as that term is defined in
The only Texas case applying the definition of “motor carrier” found in
The summary judgment evidence in Martinez showed the construction company had contracted with a county to perform excavation work at a particular site. Id. at 173. The excavation work consisted of removing dirt from the excavation site and hauling it to another site. Id. The construction company obtained quotes from multiple truck drivers about hauling the dirt on a per-load basis. Id. After the construction company and the truck drivers agreed on a cost per load, the construction company called the drivers each day and requested their services based on the amount of dirt that needed to be removed from the excavation site. Id. When the truck drivers arrived at the excavation site to pick up a load, construction company employees would check thеir drivers’ licenses and proof of insurance. Id. at 174. Construction company employees would then load the dump trucks at the excavation site. Id. The truck drivers had no control over how much dirt was loaded in their trucks, and could not request removal of the dirt if they felt the truck was overloaded. Id. The truck drivers would then deliver the dirt to the drop-off site. Id. At the drop-off site, the truck drivers were given a receipt for each load delivered, and were ultimately paid based on the number of receipts they obtained. Id. The construction company also provided hauling permits for the truck drivers. Id. After viewing the evidence in the light most favorable to the non-movant, the First Court of Appeals concluded that the evidence in Martinez raised a material fact issue as to whether the construction company fell within the definition of motor carrier provided in
Here, the Castillos maintain they presented evidence raising a genuine issue of material fact as to whether Gulf Coast controlled, operated, or directed Hellen‘s work. To raise a genuine issue of material fact as tо whether Gulf Coast was a motor carrier, the Castillos had to produce more than a scintilla of evidence that Gulf Coast controlled, operated, or directed the operation of the tractor trailer driven by Hellen. See
The Castillos produced three relevant pieces of evidence. First, the Castillos produced the deposition testimony of Gulf Coast‘s managing owner, David Shelton. Shelton acknowledged in his deposition that Gulf Coast‘s website stated it had “hauling available.” Shelton explained this meant that Gulf Coast could find a truck
Second, the Castillos produced the deposition testimony of Gulf Coast‘s assistant manager and yard foreman, Richard Shimer. Shimer testified that Gulf Coast accommodates its customers in a variety of ways, including assisting those customers who are unable tо bring livestock to its auction barn on their own. Shimer stated he owned a truck and trailer and, if a customer needed help transporting a small load of livestock to the auction barn, he would haul the livestock himself. Shimer stated that if he hauled livestock for a customer in his truck he would either be paid on the spot, or he would receive a check from Gulf Coast. Shimer explained this fee was not part of his salary from Gulf Coast, but was paid out of the seller‘s fee. Shimer further stated Gulf Coast did not have a list of truckers it called when a client exрressed a need for hauling.
Third, the Castillos produced a sign that was posted near the accident site stating, “Loading and unloading of livestock is to be done by employees only.”
The Castillos contend their case is similar to the situation presented in Martinez, where the First Court concluded that a material fact issue existed as to whether the construction company was a motor carrier under the definition provided in section 643.001(6) of the Texas Transportation Code. Id. at 185. We disagree. The present case is distinguishable from Martinez. In Martinez, the evidence showed the construction company was ultimately responsible for hauling dirt from the construction project. Id. Additionally, the construction company obtained hauling permits and determined the ultimate location for transporting and unloading the dirt; the construction company‘s employees actually loaded each dump truck, checked each driver‘s license and proof of insurance, and informed each driver where to take the dirt; and the construction company indirectly paid the drivers on a per-load basis. Id.
Herе, 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
We conclude the Castillos 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 or highway in this state. See
NEGLIGENT HIRING CLAIM
Next, the Castillos argue the trial court erred in granting summary judgment as to their negligent hiring claim. The Texas Supreme Court has “not ruled definitively on the existence, elements, and scope” of negligent hiring claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex.2010). However, Texas appellate courts have ruled that a negligent hiring claim is a simple negligence cause of action based on an emрloyer‘s direct negligence. Morris, 78 S.W.3d at 49; Castillo v. Gared, Inc., 1 S.W.3d 781, 786 (Tex.App.-Houston [1st Dist.] 1999, pet. denied); see Verinakis v. Med. Profiles, Inc., 987 S.W.2d 90, 97 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Doege v. Sid Peterson Mem‘l Hosp., No. 04-04-00570-CV, 2005 WL 1521193, at *7 (Tex.App.-San Antonio 2005, pet. denied); Malone v. Ellis Timber, Inc., 990 S.W.2d 933, 936 (Tex.App.-Beaumont 1999, no pet.). To prevail on a simple negligence action, the plaintiff must prove (1) a legal duty, (2) a breach of that duty by the defendant, and (3) damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990); see Doege, 2005 WL 1521193, at *7. The basis of responsibility for negligent hiring is the employer‘s own negligence in hiring an incompetent individual whom the employer knows, or by the exercise of reasonable care, should have known to be incompetent or unfit, thereby creating an unreasonable risk of harm to others. Donaldson v. J.D. Transp. Co., Inc., No. 04-04-00607-CV, 2005 WL 1458230, at *2 (Tex.App.-San Antonio 2005, no pet.).
Generally, there is no duty to control the conduct of third persons unless a special relationship exists between the actor and the third person that imposes a duty upon the actor to control the third person‘s conduct. Triplex Commc‘n, Inc. v. Riley, 900 S.W.2d 716, 720 (Tex.1995); Verinakis, 987 S.W.2d at 97. Special relationships giving rise to such a duty include the relationship between employer and employee, and independent contractor and contractee, provided the contraсtee retains the right to control the contractor‘s work. Phillips, 801 S.W.2d at 525; Verinakis, 987 S.W.2d at 97.
“To raise a genuine issue of material fact ... the evidence must transcend mere suspicion.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, no evidence. Id. (citing Kin-dred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).
In its second summary judgment motion, which invoked both the traditional and no-evidence standards, Gulf Coast asserted it was entitled to summary judgment on the Castillos’ negligent hiring claim because (1) it had no duty to control Hellen‘s conduct because it did not hire Hellen; and (2) there was no evidence it hired Hellen. If the Castillos failed to produce more than a scintilla of evidence under the no-evidence standard, there is no need to determine whether Gulf Coast‘s summary judgment proof satisfied the traditional summary judgment standard. See id. at 600;
To support their contention that they produced evidence raising a material fact issue as to whether Gulf Coast hired Hellen on the day of the accident, the Castillos point to Gulf Coast‘s bookkeeping records and Hellen‘s deposition testimony. The bookkeeping records, which consist of four pages titled, “Account Quick Report,” cover the years 2008 to 2011. Each page lists by date, check number, and amount, checks paid to Hellen. The first page lists a payment of $55.00 on August 6, 2008, for “SALE 08/05/...” and a payment of $300.00 on August 11, 2008, for “SALE 08/05/...” However, the summary judgment evidence established that the checks Gulf Coast issued to Hellen were paid out of the sale proceeds due to the livestock owner. This evidence was unсontroverted. Therefore, under the circumstances presented in this case, the bookkeeping records showing checks payable to Hellen did not constitute evidence that Gulf Coast hired Hellen as a contractor on the day of the accident.
Hellen‘s deposition testimony was as follows:
Q: Do me a favor and explain to me, please, how you‘re notified from Gulf Coast [Livestock Market, LLC] that there‘s livestock that they want you to pick up and deliver to them.
A: Well, I‘ll get a call that they have a load for me to—to the sale barn, and I‘ll just go pick them up. I‘ll get а phone call from either Dick Shimer or David [Shelton] or Freddy Moore that receives the cattle.
***
Q: Okay. So essentially what would happen when Gulf Coast would have a load for you to transport is they would contact you, David Shelton or Dick Shimer or Freddy Moore would call you and say, Mr. Hellen we want you to pick up some livestock? Is that pretty much how it would go?
A: Yes, sir.
Q: And you would say something like, where do you want me—
A: I‘ll get—
Q:—to pick it up?
A: I‘ll get them there. I already know where to pick them up and where to go.
Q: Okay. Is that what happened for the load that you were delivering on August 5, 2008?
A: Had to be.
(emphasis added). The summary judgment еvidence in this case showed that Shimer and Shelton were representatives of Gulf Coast; and Moore, who operated a separate business called Hebbronville Pens, was not a representative of Gulf Coast.
Contrary to the representations made in the Castillos’ brief, Hellen did not testify that Gulf Coast hired him on the day of the accident. Hellen only testified that either a representative from Gulf Coast or a representative from Hebbronville Pens notified him that there was a load of cattle for him to pick up. In fact, Hellen wаs not
The Castillos argue in their brief that “Gulf Coast cannot escape the reality that either it hired Hellen or it hired the entity that hired [] Hellen to transport livestock for Gulf Coast without checking the competence of either.” At oral argument, the Castillos again argued it did not matter if the evidence showed that Gulf Coast hired Hellen to transport the cattle, or if the evidence showed Gulf Coast hired Hebbronville Pens to transport the cattle. We disagree. If Hebbronville Pens hired Hellen to transport the cattle, the relatiоnship between Hellen and Gulf Coast would be too attenuated to support a claim for negligent hiring. See Malone, 990 S.W.2d at 936 (concluding the relationship between the employer and the contractor was too attenuated to support a claim for negligent hiring when there was no evidence that an employer hired the contractor to transport timber to a mill).
We conclude the Castillos presented no more than a scintilla of evidence that Gulf Coast hired Hellen to transport cattle on the day of the accident. As a consequence, the Castillos failed to meet their burden of producing summary judgment evidence raising a genuine issue of material fact. We, therefore, conclude the trial court did not err in granting summary judgment on the Castillos’ negligent hiring claim.
EXCLUSION OF THE EXPERT‘S AFFIDAVIT
Finally, the Castillos argue the trial court abused its discretion in excluding the affidavit of their commercial trucking and safety expert, Roger C. Allen. To obtain reversal of a judgment based on the erroneous admission or exclusion of evidence, an appellant must show that the trial court‘s ruling was in error, and that the error рrobably caused the rendition of an improper judgment. See
Here, the Castillos essentially argue the exclusion of Allen‘s affidavit caused the rendition of an improper judgment because Allen‘s affidavit had a direct bearing on the proximate cause elements of their claims. Yet, we have already concluded the summary judgment was properly granted on grounds other than the absence of evidence of proximate cause. The Castillos’ argument concerning the exclusion of the expert witness‘s affidavit is therefore unnecessary to the disposition of this appeal. See
CONCLUSION
The trial court‘s judgment is affirmed.