                                 NO. 07-02-0438-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL A

                                   MARCH 31, 2004

                         ______________________________


                     CHRISTINE PESINA, INDIVIDUALLY
             AND AS NEXT FRIEND OF ERIC MARTINEZ, APPELLANT

                                          V.

                     MARK ALAN HUDSON, GERALD HUDSON
                       AND BECKY HUDSON, APPELLEES

                       _________________________________

            FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2001-513,832; HONORABLE JOHN FORBIS, JUDGE

                        _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                       OPINION


      Appellant Christine Pesina, individually and as next friend of Eric Martinez, sued

Mark Hudson and his parents, appellees Gerald and Becky Hudson, because of injuries

Eric suffered while a passenger in an automobile being driven by Mark. Christine alleged

that Gerald and Becky (collectively, “the Hudsons”) negligently entrusted the automobile
to Mark. The trial court granted summary judgment to the Hudsons. We reverse and

remand.


                                       BACKGROUND


       On April 11, 2001, the Hudsons allowed their son, Mark, to use an automobile to

drive himself and Eric Martinez, Christine’s son, to school. While he was driving to school,

Mark collided with another vehicle and Eric was injured.


       Christine filed suit against Mark and the Hudsons. According to Christine’s petition,

Mark pulled up to a stop sign, then pulled into the intersection without yielding to an

automobile on the intersecting roadway. Christine alleged, inter alia, that Mark negligently

failed to keep a proper lookout, failed to stop at the stop sign, failed to yield the right of way

to the other vehicle, and entered the intersection when he could not do so safely. She

alleged that the Hudsons acted negligently in entrusting their vehicle to Mark because they

knew or should have known that Mark was a reckless or incompetent driver.


       The Hudsons filed a motion for summary judgment supported by summary judgment

evidence. They urged that no genuine issues of material fact existed regarding whether,

at the time the Hudsons entrusted their vehicle to Mark on the morning of April 11th, (1)

Mark was an unlicensed, incompetent or reckless driver, or (2) the Hudsons knew or

should have known that Mark was an unlicensed, incompetent or reckless driver. The

Hudsons urged both that there was no evidence on the challenged elements of negligent




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entrustment, see TEX . R. CIV. P. 166a(i),1 and that the summary judgment evidence proved,

as a matter of law, that (1) Mark was not an unlicensed, incompetent or reckless driver,

and (2) the Hudsons did not know, nor should they have known, that Mark was an

unlicensed, incompetent or reckless driver. See TRCP 166a(c).


       The Hudson’s motion for summary judgment sets out the several instances of

Mark’s driving history on which Christine relied in her claim of negligent entrustment,

although the Hudsons disputed Christine’s claim that the several instances were evidence

supporting her position. According to their motion and the summary judgment evidence,

Mark was involved in six motor vehicle incidents as a driver during a period of less than two

years prior to the April 11, 2001 accident in which Eric was injured:


       a. In October 1999, Mark, Eric, and two other boys drank whiskey, rum,
       vodka and tequila at one of the boy’s homes. Mark then drove the four of
       them to school. He was sent home and suspended for three days. Mark
       testified that he was intoxicated on the occasion, although he was not
       stopped while driving and no test was administered to determine his blood
       alcohol level. The Hudsons were aware of the incident and took corrective
       action by removing Mark’s driving, television, telephone and other privileges
       for a time. According to Mark’s testimony, “They felt that if I didn’t have the
       responsibility to drive safe, I shouldn’t be driving, and I was grounded there
       for some time.”
       b. In the spring of 2000, Mark bumped a tree while practice driving in a
       church parking lot. His mother was with him at the time, and the impact
       damaged the car’s bumper and grille. Gerald was aware of the incident.
       c. During the summer of 2000, Mark, while alone late at night, was ticketed
       for driving 75 mph in a 65 mph speed zone. The Hudsons were aware of the
       ticket. They punished Mark by taking away his driving privileges for a time.




       1
           Further reference to a rule of Civil Procedure will be by reference to “TRCP __.”

                                              -3-
       d. A collision incident occurred in October 2000.2 Mark was following a
       vehicle which slowed to turn and Mark pulled out to go around the vehicle.
       To avoid an oncoming car he braked, turned back toward the vehicle he was
       trying to pass, and rear-ended it in what was referred to as a minor collision.
       Mark told his parents about the accident.
       e. On two separate occasions in late 2000 or early 2001, Mark used
       marijuana and then drove an automobile. The Hudsons found out later about
       the incidents. They took corrective action by taking Mark’s vehicle away from
       him and did not return the vehicle until Mark had two “clean” drug tests.


       The Hudsons urged in the trial court and maintain on appeal that none of the

incidents, taken separately, comprise more than a scintilla of evidence that Mark was an

unlicensed, incompetent, or reckless driver, and thus that the Hudsons could not have

known that he was such a driver. In addition, the Hudsons’ motion for summary judgment

asserted that Mark was in nowise impaired or had any condition on the morning of the

accident.


       Christine’s response to the motion for summary judgment attached and referenced

deposition testimony from Mark and the Hudsons. Her response claimed that summary

judgment should be denied because the evidence she attached was sufficient to raise a fact

question as to whether the Hudsons entrusted a vehicle to Mark when they knew or should

have known that he was a reckless driver. Her response did not urge that Mark was

unlicensed or was an incompetent driver.




       2
        Mark’s testimony dated both the collision incidents in 2000; other testimony raised
the inference that they may actually have occurred in 1999. In their summary judgment
motion, the Hudsons represented to the trial court that the second collision incident
occurred in October of 2000.

                                             -4-
       The trial court signed an order granting summary judgment as to the negligent

entrustment claim on April 29, 2002. By a July 26th order of severance, the negligent

entrustment claim against the Hudsons was severed from the remainder of the case.3


       On appeal Christine contends that Mark’s driving history prior to April 11, 2001,

inferences to be drawn from that history, and the Hudsons’ knowledge of the history

comprise more than a scintilla of evidence that Mark was a reckless driver and that the

Hudsons knew or should have known of his recklessness. She also contends that the

Hudsons’ motion for summary judgment was legally insufficient. Because of our disposition

of the appeal we do not consider whether the motion for summary judgment was legally

sufficient. TEX . R. APP. P. 47.1.


                                     STANDARD OF REVIEW


       A no-evidence summary judgment will be granted only when: (1) there is a complete

absence of evidentiary support for a necessary element of the claim, (2) rules of law or rules

of evidence will not allow the court to give weight to the evidence offered to prove a

necessary element of the claim, (3) the evidence offered to prove a necessary element of

the claim is no more than a mere scintilla, or (4) the evidence conclusively establishes that

a necessary element of the claim does not exist. See Merrell Dow Pharms., Inc. v. Havner,


       3
       Christine’s notice of appeal identifies the July 26, 2002 order as the order appealed
from. The July 26th order merely severs the negligent entrustment claim from the
negligence claim. We conclude, however, that the notice of appeal constitutes a bona fide
attempt to invoke this court’s jurisdiction over the summary judgment and is sufficient to
invoke our jurisdiction. See City of San Antonio v. Rodriguez, 828 S.W.2d 417, 418 (Tex.
1992) (per curium); Grand Prairie Indep. Sch. Dist. v. Southern Parts Imports, Inc., 813
S.W.2d 499, 500 (Tex. 1991).

                                             -5-
953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment may not be granted

if the non-movant presents more than a scintilla of probative evidence to establish the

disputed element(s). See TRCP 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d

502, 506 (Tex. 2002). More than a scintilla of evidence is presented if the evidence enables

reasonable and fair-minded people to reach differing conclusions. Merrell Dow Pharms.,

953 S.W.2d at 711. Less than a scintilla of evidence is presented if the evidence does no

more than create mere surmise or suspicion of a fact. See Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983).


       A traditional summary judgment requires application of the standards established in

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985): (1) the

movant for summary judgment has the burden of showing that no genuine issues of

material fact exist and that the movant is entitled to judgment as a matter of law, (2) in

deciding if there is a disputed material fact issue, the reviewing court must take as true all

evidence favorable to the non-movant, and (3) every reasonable inference must be indulged

in and any doubts resolved in favor of the non-movant. Id. Summary judgment is proper

for a defendant if the defendant affirmatively disproves at least one element of the plaintiff’s

claim or establishes all necessary elements of an affirmative defense to the claim. See

American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).


       We will examine the record in light of Christine’s response in the trial court which

urged that more than a scintilla of evidence was presented on the issue of Mark’s being a

reckless driver. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 203-04 (Tex.

2002). In examining the record, we consider any evidence presented in the light most

                                              -6-
favorable to the non-movant Christine. See Wal-Mart Stores, 92 S.W.3d at 506; Johnson,

73 S.W.3d at 208.


                             NEGLIGENT ENTRUSTMENT


      A cause of action for negligence has three elements: (1) a legal duty owed by one

party to another, (2) a breach of that duty, and (3) damages proximately caused by that

breach. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

A claim for damages based on the theory that a party negligently entrusted a vehicle to

another and thereby caused damages has the same three elements. See Garcia v. Cross,

27 S.W.3d 152, 155 (Tex.App.--San Antonio 2000, no pet.).


      Christine claims that the Hudsons negligently entrusted their vehicle to Mark

because: (1) the Hudsons entrusted to Mark a vehicle they owned or over which they had

the right of control, (2) at the time of entrustment Mark was a reckless driver, (3) the

Hudsons knew or should have known at the time of entrustment that Mark was a reckless

driver, (4) Mark was negligent on the occasion in question, and (5) Mark’s negligence

proximately caused the accident. See Schneider v. Esperanza Transmission Co., 744

S.W.2d 595, 596 (Tex. 1987); McCarty v. Purser, 379 S.W.2d 291, 294 (Tex.1964).


      To obtain recovery against the Hudsons, Christine essentially must prove two

negligence causes of action in one lawsuit. One cause of action requires proof that Mark’s

negligence in operating the vehicle proximately caused the accident and Eric’s injuries

(elements 4 and 5 of her allegations). The other cause of action requires proof that the

Hudsons were negligent in entrusting a vehicle to Mark because he was a reckless driver

                                           -7-
and that their negligence was a proximate cause of Eric’s injuries (elements 1, 2 and 3 of

her allegations together with proximate causation). See Schneider, 744 S.W.2d at 596-97

(entrustment liability rests upon the combined negligence of the entrustor in entrusting the

vehicle and the negligence of the driver entrusted with the vehicle; the risk that forms the

basis for determining that the entrustment was negligent must also be a proximate cause

of the accident in question for the entrustor to be liable); McCarty, 379 S.W.2d at 294. It

is the elements of the latter of the two negligence causes of action that the Hudsons

challenged by their summary judgment motion.


       On appeal, the Hudsons seek to sustain their summary judgment by asserting that

Mark was not a reckless driver and, therefore, they could not have known that he was a

reckless driver. Additionally, the Hudsons argue that there was no evidence that their

entrustment, even if negligent, was a proximate cause of the damages asserted. See

Schneider, 744 S.W.2d at 596-97; McCarty, 379 S.W.2d at 294.


       At the outset, we decline to consider the Hudsons’ assertion that their entrustment

of the vehicle to Mark, even if negligent, was not a proximate cause of Eric’s injuries. The

issue was not expressly presented in the trial court by their motion for summary judgment.

See TRCP 166a(c); Johnson, 73 S.W.3d at 204; Casso v. Brand, 776 S.W.2d 551, 553

(Tex. 1989).


       In focusing on the issue of whether Mark was a reckless driver, the Hudsons urge

us to apply the definition of “reckless” which the Legislature has used in criminalizing

reckless driving. The criminal offense of reckless driving is committed when a person drives


                                            -8-
a vehicle in wilful or wanton disregard for the safety of persons or property. TEX . TRANSP .

CODE ANN . § 545.401 (Vernon 1999). Wilful and wanton disregard is synonymous with

conscious indifference. See White v. State, 647 S.W.2d 751, 753 (Tex.App.–Fort Worth

1983, writ ref’d). The Hudsons do not cite authority for their proposition. Nor do we find

authority requiring the driving history of an entrustee to reflect a pattern of wilful and wanton

actions in disregard for the safety of other persons or property before the entrustee can be

found to be “reckless” for the purposes of a negligent entrustment action.


       On the other hand, we note that in regard to negligent entrustment, drivers have

been determined to be reckless when their history of driving habits, traffic violations, or

intemperance (whether due to wilful and wanton actions or otherwise) exhibits a pattern of

such deviations from lawful and proper manner of vehicle operation that if the entrustor had

knowledge of the history, the entrustor should reasonably have anticipated that the driver

would operate the entrusted vehicle in a wrongful manner and thereby damage persons or

property. See Schneider, 744 S.W.2d at 596; Louis Thames Chevrolet Co. v. Hathaway,

712 S.W.2d 602, 604 (Tex.App.–Houston [1st Dist.] 1986, no writ); Revisore v. West, 450

S.W.2d 361, 364 (Tex.Civ.App.–Houston [14th Dist.] 1970, no writ); Broesche v. Bullock, 427

S.W.2d 89, 93 (Tex.Civ.App.–Houston [14th Dist.] 1968, writ ref’d n.r.e.). We decline to

engraft the heightened standard for criminalized reckless driving onto the common-law

negligent entrustment cause of action.


       The Hudsons also argue that because there is no evidence that Mark actually was

under the influence of alcohol or marijuana on the occasions in question, the evidence that



                                               -9-
he drove after using the substances cannot be considered in regard to whether he was a

reckless driver. We disagree.


       The episodes of Mark’s driving after using alcohol and marijuana were of sufficient

concern to the Hudsons that they temporarily suspended Mark’s privileges to drive when

they found out about the situations. Mark testified that the suspension for his drinking and

driving was because the Hudsons considered the matter a safety issue. Viewing the

evidence in the limited record before us in the light most favorable to Christine, evidence

that Mark used marijuana4 and that the Hudsons restricted Mark’s driving privileges based

on their knowledge of that usage raises a similar inference that they considered the matter

a driving safety issue. Such matters could be considered5 in regard to whether Mark was

a reckless driver; that is, whether Mark’s driving history was such that the Hudsons should

reasonably have anticipated that Mark would operate an entrusted vehicle in an unsafe

manner, resulting in damage to persons or property.


       The Hudsons further argue that the instances in which Mark drove after drinking and

after using marijuana should not be considered in regard to the negligent entrustment claim

because there is no allegation that Mark used alcohol, marijuana or any similar substance



       4
        Whether evidence that Mark used alcohol or marijuana before driving will be
admissible at trial without proof that his driving abilities were impaired thereby or that he
was intoxicated while driving are questions not presented and we offer no opinion on those
matters.
       5
        We offer no opinion as to whether the instances of Mark’s driving after using
alcohol and marijuana, without consideration of the additional driving incidents and
speeding ticket, comprise evidence that Mark was a reckless driver sufficient for Christine
to avoid summary judgment.

                                            -10-
on the morning of the accident, and the risk which might have been anticipated from those

past instances was not a proximate cause of the accident. See Schneider, 744 S.W.2d at

596-97. As noted previously, we will not consider the proximate cause aspect of the

Hudsons’ argument because they did not present the issue in their motion for summary

judgment.


                          NO-EVIDENCE SUMMARY JUDGMENT


          If each incident is viewed separately, as the Hudsons assert should be done, none

of the episodes might, in and of themselves, be sufficient evidence for Christine to avoid

summary judgment. But, they are not to be viewed separately and in isolation from one

another. The term “history” commonly is used to reference those past events that form the

subject matter of a history. See In the Matter of the Marriage of Stein, No. 07-03-0289-CV

*7 (Tex.App.--Amarillo 2004, no pet. h.); MERRIAM -W EBSTER ’S COLLEGIATE DICTIONARY 549

(10th ed. 2002).     Mark’s “history” of driving habits, traffic violations and intemperance

includes all such events predating the Hudsons’ entrustment of a vehicle on the date of the

accident. And, viewing the events of that history in the light most favorable to Christine’s

claim, each of the instances could be considered in relation to whether Mark was a reckless

driver.


          The series of events, compressed as they were to within an approximate two-year

period preceding the date of the accident, presented more than a scintilla of evidence that

Mark was a reckless driver within the context of a negligent entrustment cause of action.

Thus, the grant of a no-evidence summary judgment would have been improper.


                                             -11-
                           TRADITIONAL SUMMARY JUDGMENT


          Mark testified in his deposition that he was intoxicated when he drove himself and

several friends to school after drinking whiskey, rum, vodka and tequila. He testified that

he drove after using marijuana on at least two other occasions, and summary judgment

evidence was not presented to conclusively prove that he was not impaired by the

marijuana. See TEX . TRANSP . CODE ANN. §§ 521.343(a)(3), 521.372(a)(1) (Vernon 1999 and

Supp. 2004). Nor does the summary judgment proof show that, as a matter of law, Mark

(1) did not deserve the speeding ticket, (2) was not at fault in the collision with the tree (a

fixed object), or (3) was not at fault in the rear-end collision with another automobile.


          In sum, the Hudsons did not prove, as a matter of law, that one or more of the

referenced incidents were not of a type to be considered on the question of Mark’s alleged

recklessness as a driver. We have previously determined that the events comprising Mark’s

history, as a whole, presented at least a scintilla of evidence that Mark was a reckless driver

within the context of a negligent entrustment cause of action. Thus, the Hudsons did not

prove by their summary judgment evidence that, as a matter of law, Mark was not a reckless

driver.


          Finally, we consider the Hudsons’ uncontroverted proof that they took corrective

action following Mark’s driving transgressions. Given the record before us those actions

and the small amount of time which elapsed between the last corrective action and the

accident did not prove that, as a matter of law, Mark had changed, by overcoming his

driving history and the risk it presented, and was no longer a reckless driver. We offer no


                                             -12-
opinion on what part, if any, the Hudsons’ corrective actions would play in regard to the

proximate cause issue.


      Summary judgment on a traditional basis was not warranted.


                                    CONCLUSION


      Because the Hudsons were not entitled to either a no-evidence summary judgment

or a traditional summary judgment, we reverse the judgment and the cause is remanded

for further proceedings.




                                                 Phil Johnson
                                                 Chief Justice




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