Friday, April 19, 2013

Right to control details of work for purposes of respondeat superior liability of employer


Under the doctrine of respondeat superior, an employer may be vicariously liable for the negligence of its agent or employee who was acting within the scope of employment even though the employer did not personally commit a wrong. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002).

But a person or entity that hires an independent contractor is generally not vicariously liable for the tort or negligence of that person. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The right of control is the "supreme test" for determining whether a master-servant relationship exists. See Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290 (Tex. 1996).

In determining whether a worker is an employee or independent contractor, the focus is on who had the right to control the details of the work. See Exxon Corp. v. Tidwell, 867 S.W.2d 19, 23 (Tex. 1993). An independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work. Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex. App.-Fort Worth 2009, pet. denied).

We may consider several factors in determining the extent of the right of control: (1) the independent nature of the person's business; (2) the person's obligation to furnish necessary tools, supplies, and material to perform the job; (3) the right to control progress of the work, except as to final results; (4) the time for which the person is employed; and (5) the method of payment, whether by time or by the job. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584-85 (Tex. 2005). However, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely v. Gen. Motors Corp., 927 S.W.2d 774, 778 (Tex. App.-Texarkana 1996, writ denied).

A contract expressly providing that a person is an independent contractor is determinative of the relationship absent evidence that the contract is a mere sham or subterfuge designed to conceal the true legal status of the parties or that the contract has been modified by a subsequent agreement between the parties. See Bell v. VPSI, Inc., 205 S.W.3d 706, 713 (Tex. App.-Fort Worth 2006, no pet.); Id. (citing Newspapers, Inc. v. Love, 380 S.W.2d 582, 588-90 (Tex. 1964)). Evidence that the parties did not intend for an independent contractor relationship can come from the contract itself or from extrinsic evidence. See Farlow, 284 S.W.3d at 911.

The right to control is ordinarily a question of fact, but whether a contract gives a right to control is generally a question of law. See id. at 912
SOURCE: DALLAS COURT OF APPEALS - 05-10-00724-CV – 2/21/2013

Here, like in the Ely decision, the "activity" causing appellants' injuries was the test drive. See Ely, 927 S.W.2d at 778-79. See also Victoria Electric Cooperative, Inc. v. Williams, 100 S.W.3d 323, 327 (Tex. App.-San Antonio 2002, pet. denied). As we have already noted, to trigger vicarious liability, the right to control must extend to the specific activity from which the injury arose. Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. The referenced sections of the Center Agreement, however, provide no evidence of BMW NA's control of the test drive. Having determined the Center Agreement did not provide an agency relationship, we turn to appellants' argument that extrinsic evidence demonstrates BMW NA's agency relationship with Classic BMW and Homer. See Farlow, 284 S.W.3d at 911 (evidence parties did not intend an independent contractor relationship can come from extrinsic evidence).

In their brief, appellants assert that "[i]t is undisputed that [BMW NA] required salesmen like Homer to submit to its training and that it controlled how many of [Classic BMW's] salesmen were trained in particular areas or subjects." However, merely making recommendations is no evidence of a right of control. See Shell Oil Co. v. Khan, 138 S.W.3d 288, 294 (Tex. 2004). Furthermore, although BMW NA required Classic BMW to train its salespeople, the evidence, similar to that in the Ely case, establishes BMW NA was not responsible for hiring, training, and supervising Homer. See Ely, 927 S.W.2d at 778. Rather, Classic BMW's management team was responsible. In addition, the evidence before us shows BMW NA was not involved in the test drive, the injury-producing event. See Victoria Electric Co., 100 S.W.3d at 327.

Still, in an effort to demonstrate BMW NA's control, appellants refer us to evidence that BMW NA representatives would visit Classic BMW, select a topic for the visits, and then require Classic BMW's employees to sit down with him and evaluate its performance with relation to that topic. Our review of the record shows Smerek testified that examples of such topics included: customer satisfaction, sales, market share, service, service sales, warranty, warranty indexes, parts sales, and wholesale parts sales. Appellants also argue control was asserted through these visits when the representative reviewed Classic BMW's records to ensure it was in compliance with BMW NA's requirements under the Center Agreement. However, again, the evidence cited by appellants fails to establish BMW NA's control related to the injury-producing activity itself. See id.

Rather, the evidence shows that: (1) Classic BMW is an independently owned dealership that is not and has never been owned by BMW NA and (2) BMW NA did not play any role in the hiring of Homer, in training Homer on how to conduct test drives, or in supervising Homer's activities at Classic BMW. Thus, appellants have provided no summary judgment evidence that BMW NA had the right to control Homer or Classic BMW during the act resulting in appellants' injuries, namely the test drive. See Exxon, 867 S.W.2d at 23; Farlow, 284 S.W.3d at 911-12; Ely, 927 S.W.2d at 778. Because BMW NA has established the absence of an essential element of appellants' vicarious liability cause of action based on an agency relationship, BMW NA was entitled to summary judgment. See Ely, 927 S.W.2d at 779. We overrule appellants' second issue.


Thursday, April 18, 2013

Res ipsa loquitur and HCLC expert report requirement

Dallas Court of Appeals says that pleading res ipsa loquitur does not suspend expert report requirement applicable to health care liability claims. Dismissal of suit was proper because no timely report was filed.

RES IPSA LOQUITUR [the thing speaks for itself}

Res ipsa loquitur is not a separate cause of action from negligence; it is a rule of evidence by which the jury may infer negligence. Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990); Broxterman v. Carson, 309 S.W.3d 154, 158 (Tex. App.-Dallas 2010, pet. denied). It applies to situations in which (1) the character of the accident is such that it would not ordinarily occur in the absence of negligence, and (2) the instrumentality causing the injury is shown to have been under the management and control of the defendant. Haddock, 793 S.W.2d at 951. Further, it applies only when "the nature of the alleged malpractice and injuries are plainly within the common knowledge of laymen, requiring no expert testimony." Id.

The legislature specifically limited the applicability of the doctrine in health care claims only to those cases in which the doctrine had been applied by Texas appellate courts as of August 29, 1977. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.201. The categories where appellate courts have typically applied the doctrine in health care claims are (1) negligence in the use of mechanical instruments, (2) operating on the wrong portion of the body, and (3) leaving surgical instruments or sponges within the body. Broxterman, 309 S.W.3d at 158-59.

SOURCE: DALLAS COURT OF APPEALS - No. 05-11-01039-CV – 4/2/2013
Sherman v. Healthsouth Specialty Hospital, Inc dba Healthsouth Dallas Rehab Hospital

We express no opinion on whether the use or non-use of a seatbelt for purposes of strapping a wheelchair in a van would fall within any of the three categories because even if the doctrine applies to Sherman's claims, section 74.351 still requires her to file an expert report. See Garcia v. Marichalar, 198 S.W.3d 250, 255-56 (Tex. App.-San Antonio 2006, no pet.). As previously noted, section 74.351's expert report requirement is a procedural threshold "over which a claimant must proceed to continue a lawsuit." Murphy, 167 S.W.3d at 838; Garcia, 198 S.W.3d at 255. While section 74.201 allows for the limited applicability of res ipsa loquitur in health care liability cases, it is not "an exception to section 74.351's expert report requirement." Garcia, 198 S.W.3d at 255 (citing Hector v. Christus Health Gulf Coast, 175 S.W.3d 832, 838 (Tex. App.-Houston [14th Dist.] 2005, pet. denied)). Nor was the section intended to allow Sherman to simply plead the doctrine as a way to eliminate the procedural requirement of an expert report at the commencement of the litigation. Hector, 175 S.W.3d at 839. Consequently, we overrule Sherman's second issue.


We conclude Sherman's petition alleges health care liability claims under chapter 74 and she therefore was required to serve an expert report. We also conclude the requirement that she file an expert report at the commencement of her suit is a procedural requirement that is not eliminated by pleading the doctrine of res ipsa loquitur. Because Sherman did not file an expert report within 120 days of filing suit, the trial court did not err in granting HealthSouth's motion to dismiss. Accordingly, we affirm the trial court's order.

Tuesday, April 16, 2013

Cites for elements of negligent misrepresentation cause of action and list thereof

Negligent Misrepresentation

The elements of a negligent misrepresentation cause of action are:

 1. the defendant made a representation to the plaintiff in the course of defendant's business or in a transaction in which the defendant had an interest;

 2. the defendant supplied false information for the guidance of others;

 3. the defendant did not exercise reasonable care or competence in obtaining or communicating the information;

 4. the plaintiff justifiably relied on the representation; and

 5. the defendant's negligent misrepresentation proximately caused the plaintiff's injury.

McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999); Miller v. LandAmerica Lawyers Title of El Paso, 362 S.W.3d 842, 845 (Tex.App.-El Paso 2012, no pet.). The type of false information contemplated in a negligent misrepresentation case is a misstatement of existing fact, not a promise of future conduct. Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Airborne Freight Corp., Inc. v. C.R. Lee Enterprises, Inc., 847 S.W.2d 289, 294 (Tex.App.-El Paso 1992, writ denied).

SOURCE: EL PASO COURT OF APPEALS - 08-11-00069-CV – 3/20/2013