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Taylor v. Sunbelt Management8/17/1995
This is an appeal from a summary judgement in favor of appellee, Sunbelt Management. Appellants brought suit to recover for the wrongful death of Mary Leonard Taylor who died as a result of a gunshot wound inflicted by Fred Gibson. Gibson, a security guard at an apartment complex, was an employee of an independent contractor hired to provide security at appellee's property. Appellants bring two points of error contending the trial court erred in granting summary judgement in favor of appellee because appellee did not present evidence to rebut appellants' claims of "intentional conduct" by Gibson, or, because a material fact issue existed as to whether appellee was liable for the "intentional acts" of an employee of its independent contractor. We affirm the judgement of the trial court. On the evening of February 7, 1991, Mary L. Taylor and her son, Benjamin Taylor, visited a resident of the Orleans Apartments, a property managed by appellee. Upon exiting the property, Fred Gibson, a uniformed security guard employed by First Security Guard Company, stopped Taylor's car. Gibson began to question Benjamin and then suddenly pulled him out as if to arrest him. Mary got out and went around the car to aid her son. Gibson then shot and killed Mary Taylor. At the time of the shooting, the undisputed summary judgment proof showed that Gibson was an employee of First Security Guard Company, was in the course and scope of his employment, and that First Security Guard Company was an independent contractor of appellee. Appellants sued Gibson, First Security Company and appellee for the wrongful death of Mary Taylor. Appellants have reached a settlement with First Security Company and Gibson is not party to this appeal. In their first point of error, appellants contend the trial court erred in granting summary judgement for appellee because appellee failed to negate a cause of action for the "intentional acts" on the part of Gibson. In the second point of error, appellants contend the trial court erred in failing to grant a motion for rehearing based on Appellees' failure to negate a cause action for the "intentional torts" of the independent contractor's employee. Because both points of error hinge on whether appellants adequately pled a cause of action for the intentional torts of Gibson, we discuss both points of error together.
Under Texas law, a party is not liable for the negligent acts of its independent contractor and only is liable for the intentional acts of its independent contractor. Exxon Corp. v. Quinn, 726 S.W.2d 17, 19 (Tex. 1987); Ross v. Texas One Partnership, 796 S.W.2d 206, 209 (Tex. App. -- Dallas 1990, writ denied, per curiam, 806 S.W.2d 222 (1991)). The doctrine of respondeat superior does not apply to an employee of an independent contractor. Phillips Pipe Line Co. v. McKown, 580 S.W.2d 435, 438 (Tex. Civ. App. -- Tyler 1979, writ ref'd n.r.e.). As explained by the Dallas Court of Appeals in Ross, this rule is particularly important when the independent contractor is hired to provide security for a property owner. Owners of premises should be able to hire independent contractors, for purposes of providing armed security and protection of their property, without being exposed to automatic liability for the negligent discharge of firearms by such employees in the course and scope of their employment. Ross, 796 S.W.2d at 215. As a matter of law, work undertaken by the security company is not inherently dangerous and can be delegated to an independent contractor. Ross, 796 S.W.2d at 215; Brien v. 18925 Collins Avenue Corp., 233 S.E.2d 847 (Fla. Dist. Ct. App. 1920), 38 A.L.R.3d 1332, 1340.
Appellants, like the plaintiffs in Ross, failed to allege an intentional tort. Appellants' Seco
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