 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
[W] Builders Transport3/9/2005
nt activity theory sufficient to hold a premises owner liable. "Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." Timberwalks Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (quoting Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992)); accord Am. Indus. Life Ins. Co. v. Ruvalcaba, 64 S.W.3d 126, 133-34 (Tex. App.--Houston [14th Dist.] 2001, pet. denied). Appellees' negligence theories do not fit within this definition.
Appellees do not allege that Smith was injured "as a contemporaneous result" of Builders Transport's allegedly negligent hiring, training, or supervision of Landry nor of its allegedly negligent entrustment of the semi to Landry. Therefore, the limited duty owed a trespasser by a property owner in a premises defect or negligent activity case is not the duty applicable to Appellees' negligence theories.
Rather, a defendant may be liable under the negligence theories alleged by Appellees to any foreseeable plaintiff. Cf. Williams, 699 S.W.2d at 571 (negligent entrustment requires finding of proximate cause); Rosell, 89 S.W.3d at 655 (same).
t is not required that the particular accident complained of should have been foreseen. All that is required is "that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen."
Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) (emphasis added) (quoting Nixon v. Mr. Prop. Mgt. Co., 690 S.W.2d 546, 551 (Tex. 1985)).
Thus, we conclude that the trial court properly overruled Builders Transport's objection to the omission from the charge of a gross negligence instruction. Accordingly, we overrule Builders Transport's eighth issue.
VICARIOUS LIABILITY
Builders Transport argues in its first issue that there is no evidence to support the jury's finding that Landry was acting in the course and scope of his employment because Builders Transport's policies prohibited drivers from transporting unauthorized passengers. Builders Transport claims in the alternative that the court erred by failing to instruct the jury on the "unauthorized passenger rule." We conclude that the record contains some evidence to support the jury's finding but that the court did not properly instruct the jury because it failed to submit a question inquiring whether Landry had actual or apparent authority to invite Smith to ride.
Applicable Law
Resolution of this issue lies at the intersection of three settled principles: (1) an employer is liable for the torts of its employee committed while acting within the scope of employment; (2) a property owner owes a limited duty of care to a trespasser; and (3) an agent's representations to a third party are binding on the agent's principal when made with actual or apparent authority.
The Supreme Court determined more than a century ago that an employer is liable for the torts of its employee committed while acting within the scope of employment, "although [the employer] may have expressly forbidden the particular act." Intl. & Great N. R.R. v. Anderson, 82 Tex. 516, 520, 17 S.W. 1039, 1040 (1891). The principle that an employer can be liable for the acts of an employee done in violation of the employer's policies still obtains. E.g., G. T. Mgt., Inc. v. Gonzalez, 106 S.W.3d 880, 884 (Tex. App.--Dallas 2003, no pet.); Fontenot Petro-Chem & Marine Servs., Inc.
Page 1 2 3 4 5 6 7 8 9 10 11 12 Texas Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|