Opinion issued January 28, 2014




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas


                           NO. 01-13-00406-CV


                 OMORINSOLA OGUNBANJO, Appellant
                                     v.

           DON MCGILL OF WEST HOUSTON, LTD., Appellee


                  On Appeal from the 269th District Court
                          Harris County, Texas
                    Trial Court Cause No. 2012-00308


                       MEMORANDUM OPINION
     Omorinsola Ogunbanjo appeals the trial court’s rendition of summary

judgment in favor of Don McGill of West Houston, Ltd. Ogunbanjo sued Don

McGill, alleging causes of action for negligence and gross negligence.   Don
McGill moved for summary judgment on all of Ogunbanjo’s claims. The trial

court granted Don McGill’s motion, rendering a take-nothing judgment against

Ogunbanjo. In a single issue, Ogunbanjo contends that the trial court erred in

granting summary judgment. We affirm.

                                    Background

      According to Ogunbanjo’s deposition testimony, she took her car to be

serviced at a Don McGill dealership in October 2011. After dropping off her car,

she was told to wait in the waiting room for the driver of the shuttle service to take

her home. While she was waiting, a Don McGill salesman, John Thompson,

offered to give her a ride home. They left the dealership in Thompson’s personal

vehicle. While driving to Ogunbanjo’s house, Thompson tried several times to

remove Ogunbanjo’s hat and to lift up her skirt. She repeatedly hit his hand and

told him to stop. When they arrived at her house, Thompson tried to touch her

buttocks as she was getting out of the car. The next day, Ogunbanjo returned to

the dealership with her uncle and brother to report the incident to the manager.

The manager immediately fired Thompson.

      Ogunbanjo sued Don McGill, contending that Don McGill was negligent in

failing to provide a safe shuttle service, to follow proper management and

supervision policies, to provide adequate supervision of its employees, and to warn

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her of the dangers of its negligence. She also alleged that these failures were

conscious or intentional and therefore constituted gross negligence.

      After the case had been pending for a year, Don McGill moved for summary

judgment, arguing that there was no evidence to support Ogunbanjo’s claims for

gross negligence and mental anguish, and that Ogunbanjo’s negligence claim failed

on traditional and no-evidence grounds. The trial court granted the motion.

                                    Discussion

      Ogunbanjo contends that the trial court erred in granting Don McGill’s

summary judgment motion. She argues that, because there is a fact issue regarding

whether Don McGill was negligent, summary judgment on her claims for

negligence, gross negligence, and mental anguish damages was also improper.

A. Standard of Review

      We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary

judgment without specifying the grounds for granting the motion, we must uphold

the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch

Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). When a party has filed both a traditional and no-evidence summary

judgment motion, we typically first review the propriety of the summary judgment

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under the no-evidence standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).          If the no-evidence summary

judgment was properly granted, we need not reach arguments under the traditional

motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600.

      To prevail on a no-evidence motion for summary judgment, the movant

must establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).      The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each

of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

      In a traditional summary judgment motion, the movant has the burden to

show that no genuine issue of material fact exists and that the trial court should

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick

v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A

defendant moving for traditional summary judgment must conclusively negate at

least one essential element of each of the plaintiff’s causes of action or




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conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

B. Negligence

      In its motion for summary judgment, Don McGill asserted that Ogunbanjo’s

negligence claims could not survive summary judgment because she could adduce

no evidence to raise a fact issue regarding whether Don McGill could be held

liable under the theory of negligent hiring, and because the evidence showed that

Don McGill was not liable under the theory of respondeat superior. With respect

to Ogunbanjo’s negligent hiring claim, Don McGill argued that there was no

evidence that Thompson’s conduct was a foreseeable consequence of his hiring.

Don McGill argued that it was not liable under the theory of respondeat superior

because Thompson’s actions were not within the course and scope of his

employment.

         1. Negligent hiring

      The elements of negligence are the existence of a duty, a breach of that duty,

and damages proximately caused by the breach. Kroger Co. v. Elwood, 197

S.W.3d 793, 794 (Tex. 2006).       A claim of negligent hiring is based on an

employer’s direct negligence. CoTemp, Inc. v. Houston West Corp., 222 S.W.3d

487, 492 n.4 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To prevail on a

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claim of negligent hiring, the plaintiff must show that the employer (1) owed a

legal duty to protect the plaintiff from an employee’s actions and (2) the plaintiff

sustained damages proximately caused by the employer’s breach of that legal duty.

See Thomas v. CNC Invs., L.L.P., 234 S.W.3d 111, 123 (Tex. App.—Houston [1st

Dist.] 2007, no pet.).

      The components of proximate cause are cause in fact and foreseeability, and

these elements may not be established by mere conjecture, guess, or speculation.

See id. at 124. The test for cause in fact is whether the negligent act or omission

was a substantial factor in bringing about injury, without which the harm would

not have occurred. Id. Cause in fact is not shown if the defendant’s negligence

did no more than furnish a condition that made the injury possible.         Id.   A

negligent hiring claim “requires that the plaintiff suffer some damages from the

foreseeable misconduct of an employee hired pursuant to the defendant’s negligent

practices.” Wansey v. Hole, 379 S.W.3d 246, 247 (Tex. 2012).

      Don McGill asserted in its motion for summary judgment that there was no

evidence that its actions in hiring Thompson were the cause in fact of Ogunbanjo’s

alleged injuries, and that Thompson’s alleged behavior was not a foreseeable

consequence of Don McGill’s hiring of Thompson.           Accordingly, the burden

shifted to Ogunbanjo to produce more than a scintilla of evidence that Don

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McGill’s hiring of Thompson was the cause in fact of her alleged injuries and that

Thompson’s alleged assault was a foreseeable consequence of Don McGill’s hiring

of Thompson. See Mack Trucks, Inc., 206 S.W.3d at 582; Thomas, 234 S.W.3d at

124.

       With respect to her negligent hiring claim, we conclude that Ogunbanjo’s

summary judgment evidence failed to raise a fact issue regarding foreseeability. In

her response, Ogunbanjo presented evidence that Thompson had been previously

terminated and then rehired by Don McGill. She asserted that this created a fact

issue regarding whether Thompson’s alleged assault was foreseeable. However,

Obgunbanjo did not present any evidence showing the basis for Thompson’s first

termination, let alone that the first termination was due to similar misconduct. She

relied on the deposition testimony of Mike Hartman, the dealership sales manager,

in which he stated that he was aware that Thompson had been terminated

previously by Don McGill. But Hartman testified that he did not know the reason

for the previous termination because he had not been in his position at the time.

       Ogunbanjo also offered as summary judgment evidence an employee

timecard report for Thompson for the period from October 1, 2011 to October 8,

2011, which showed that he had been tardy and clocked out too early or too late on

several days. But this evidence does not raise a fact issue regarding whether

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Thompson ever engaged in sexual misconduct prior to the alleged assault or

whether Don McGill should have foreseen such misconduct. See Thomas, 234

S.W.3d at 124. Accordingly, we conclude that Ogunbanjo did not present more

than a scintilla of evidence that Thompson’s alleged assault was a foreseeable

consequence of his hiring, and that summary judgment for Don McGill on the

theory of negligent hiring was proper. See Houser v. Smith, 968 S.W.2d 542, 545

(Tex. App.—Austin 1998, no pet.) (affirming judgment on negligent hiring claim

based upon employee’s sexual assault of customer, where evidence showed

employee had previously committed misconduct, but not sexual misconduct, and

therefore the complained-of assault was not foreseeable to employer); Guidry v.

Nat’l Freight, Inc., 944 S.W.2d 807, 811–12 (Tex. App.—Austin 1997, no writ.)

(affirming summary judgment on negligent hiring claim where truck driver

committed sexual assault while on trip for employer because employer could not

be expected to foresee assault, even though driver had prior criminal record of

sexual misconduct).

         2. Respondeat superior

      Under the doctrine of respondeat superior, an employer may be vicariously

liable for the tortious act of an employee who was acting within the scope of his

employment, even though the employer has not personally committed a wrong. St.

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Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42 (Tex. 2002). To hold an employer

liable for the tortious actions of its employee, a claimant must prove the following:

(1) an agency relationship existed between the employee (the tortfeasor) and the

employer; (2) the employee committed a tort; and (3) the tort was in the course and

scope of the employee’s authority. See Zarzana v. Ashley, 218 S.W.3d 152, 159

(Tex. App.—Houston [14th Dist.] 2007, pet. struck). To show an employee acted

within the course and scope of his employment, the plaintiff must demonstrate the

conduct occurred (1) within the general authority given the employee, (2) in

furtherance of the employer’s business, and (3) for the accomplishment of the

object for which the employee was employed. See id.; Mata v. Andrews Transp.,

Inc., 900 S.W.2d 363, 366 (Tex. App.—Houston [14th Dist.] 1995, no writ).

Generally, committing an assault is not within the course and scope of an

employee’s authority, unless the employer places the employee in a position that

involves the use of force. See Knight v. City Streets, L.L.C., 167 S.W.3d 580, 583

(Tex. App.—Houston [14th Dist.] 2005, no pet.) (citing Tex. & Pac. Ry. Co. v.

Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 239 (1952)). However, an employee’s

intentional, tortious conduct falls within the scope of employment when the

conduct, even if contrary to express orders, is of the same general nature as that

authorized or incidental to the conduct authorized. See Zarzana, 218 S.W.3d at

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159; Durand v. Moore, 879 S.W.2d 196, 199 (Tex. App.—Houston [14th Dist.]

1994, no writ).

      Don McGill argued that the evidence conclusively showed that Thompson’s

actions were outside the course and scope of his employment. The summary-

judgment evidence demonstrates that Thompson was employed by Don McGill as

a car salesman. Ogunbanjo contends that Thompson’s offer to give her a ride to

her home was within the course and scope of his employment. Even if that were

true, committing an assault on a service center customer was not.        Because

Thompson’s alleged assault was not in furtherance of Don McGill’s business or for

the accomplishment of the object for which he was employed, it was not within the

course and scope of Thompson’s employment as a matter of law. See Zarzana,

218 S.W.3d at 159. Accordingly, summary judgment for Don McGill on the

theory of respondeat superior was proper. See Buck v. Blum, 130 S.W.3d 285, 289

(Tex. App.—Houston [14th Dist.] 2004, no pet.) (affirming summary judgment for

hospital on sexual assault claim where doctor allegedly made inappropriate sexual

contact with patient during neurological examination, because sexual contact was

not closely connected to employment tasks and did not further object of

employment as required for respondeat superior liability); Mackey v. U.P. Enters.,

Inc., 935 S.W.2d 446, 454 (Tex. App.—Tyler 1996, no writ) (alleged sexual

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assaults were not within scope of employment because they were not within

general authority of employees and therefore could not support respondeat superior

liability).

       We conclude that the trial court properly granted summary judgment on

Ogunbanjo’s negligence claim.

C. Gross Negligence

       Other than in worker’s compensation cases, a finding of ordinary negligence

is a prerequisite to a finding of gross negligence. See Sonic Sys. Int’l, Inc. v. Croix,

278 S.W.3d 377, 394–95 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).

Here, we conclude that the trial court properly granted summary judgment on

Ogunbanjo’s gross negligence claim because summary judgment was proper on

her predicate negligence claim. See Sonic Sys. Int’l, 278 S.W.3d at 394–95 (where

party was entitled to summary judgment on negligence claim, party was also

entitled to summary judgment on gross negligence claim); Seaway Prods. Pipeline

Co. v. Hanley, 153 S.W.3d 643, 659 (Tex. App.—Fort Worth 2004, no pet.)

(because appellant failed to show some evidence of negligence, appellant was not

entitled to recover for gross negligence).




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D. Mental Anguish

      Mental anguish is a type of damage and is not an independent cause of

action. Hall v. Stephenson, 919 S.W.2d 454, 460 n.2 (Tex. App.—Fort Worth

1996, writ denied). “A claimant may recover mental anguish damages only in

connection with defendant’s breach of some other legal duty.” Boyles v. Kerr, 855

S.W.2d 593, 594 (Tex.1993); see also Verinakis v. Medical Profiles, Inc., 987

S.W.2d 90, 95 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (Texas does

not recognize a general legal duty to avoid negligently inflicting mental anguish).

      Here, Ogunbanjo’s claim for mental anguish damages depends upon her

predicate claims of negligence and gross negligence. Because we have held that

summary judgment was proper on Ogunbanjo’s negligence and gross negligence

claims, summary judgment on her claim for mental anguish damages was also

appropriate. See Boyles, 855 S.W.2d at 594 (“A claimant may recover mental

anguish damages only in connection with defendant’s breach of some other legal

duty.”); Hall, 919 S.W.2d at 460 n.2 (mental anguish is a type of damages and is

not an independent cause of action).

      We overrule Ogunbanjo’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Rebeca Huddle
                                             Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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