                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-11-00279-CV


ROBERT NICHOLAS DONAHUE                                                  APPELLANT

                                         V.

POLARIS INDUSTRIES, INC.                                                  APPELLEE


                                      ----------

          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

                                      ----------

                         MEMORANDUM OPINION1
                                      ----------

      Appellant Robert Nicholas Donahue appeals the trial court’s summary

judgment in favor of appellee Polaris Industries, Inc. We will affirm.

                                Background Facts

      Polaris makes all-terrain vehicles (ATVs). In 2007, Polaris contracted with

a team of professional ATV stuntmen known as Bomb Squad, Inc. to promote

Polaris vehicles. Bomb Squad describes itself as an ―ATV freestyle team . . .

      1
       See Tex. R. App. P. 47.4.
comprised of the top riders in the world.‖ Bomb Squad performs in ―powersport‖

competitions and makes stunt videos distributed by H-Bomb Films, Inc. Bomb

Squad trains and films in a facility located in Krum, Texas, operated by Bomb

Squad team member Caleb Moore. Under the terms of the promotion contract,

Polaris provided Bomb Squad with nine ATVs. The contract stated that Polaris

would transfer title to the ATVs to Bomb Squad at the expiration of the contract

provided that Bomb Squad performed its promotional duties.          Those duties

included participating in ATV races, photo and video sessions for Polaris

marketing material, and product demonstrations.

      In August 2008, Bomb Squad offered Donahue an opportunity to audition

for membership on the team. Although Donahue ―had some experience riding

ATVs,‖ he had no experience with difficult stunts. He accepted the opportunity

because he ―knew [Bomb Squad was] on the cutting edge for free style ATV.‖

Donahue flew from his home in New Jersey to the Krum facility for the audition.

At the facility, Moore gave Donahue one of the Polaris ATVs and told Donahue to

perform a back flip on the ATV by riding up a ramp over a pit filled with foam

rubber.   Moore did not question Donahue about his experience or skill level

before asking Donahue to perform the stunt, nor did he or any other Bomb Squad

member ask Donahue to demonstrate more basic skills before the jump.

      Donahue’s first attempt at the back flip failed, but he landed safely in the

pit. Moore gave Donahue some instruction on how to flip the ATV, and Donahue




                                        2
tried again. The second time, Donahue failed, and the ATV fell on top of him,

breaking his neck and rendering him a quadriplegic.

      Donahue sued Polaris, Bomb Squad, H-Bomb Films, and Moore, among

others.   Against Polaris, Donahue asserted claims of joint enterprise and

negligent entrustment and a cause of action under section 390 of the

Restatement (Second) of Torts.2        Polaris filed for summary judgment on

Donahue’s causes of action against it, which the trial court granted. Polaris was

severed from the case, and this appeal followed.

                              Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to



      2
       Although Donahue had set out a negligence claim separately from his
negligent entrustment claim in his petition, he denied in his response to Polaris’s
motion for summary judgment that he had filed a ―general negligence‖ claim
against Polaris.


                                        3
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

                                   Discussion

      Because Donahue did not challenge summary judgment on his joint

enterprise claim against Polaris in the trial court or on appeal, we address only

Donahue’s negligent entrustment claim and his cause of action under the

Restatement of Torts.

      In his first issue, Donahue argues that summary judgment was improper

on his claim of negligent entrustment against Polaris. To establish liability for

negligent entrustment, Donahue must show that:            (1) Polaris entrusted the

vehicle to Bomb Squad; (2) Bomb Squad was an unlicensed, incompetent, or

reckless driver; (3) at the time of the entrustment, Polaris knew or should have

known that Bomb Squad was an unlicensed, incompetent, or reckless driver; (4)

Bomb Squad was negligent on the occasion in question; and (5) Bomb Squad’s

negligence proximately caused the accident. Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 758 (Tex. 2007) (citing Schneider v. Esperanza

Transmission Co., 744 S.W.2d 595, 596 (Tex.1987)). The negligent entrustment

must also be a proximate cause of the injury. Schneider, 744 S.W.2d at 596.

―For entrustment to be a proximate cause, the defendant entrustor should be

shown to be reasonably able to anticipate that an injury would result as a natural

and probable consequence of the entrustment.‖ Id.




                                        4
      In Schneider, the defendant company provided a truck to its employee,

Havelka, for business and personal use. Id. at 595. Havelka and a friend drove

the truck to a party, where Havelka became intoxicated. He asked his friend to

drive the truck home, and in doing so, the friend rear-ended Schneider.         Id.

Schneider sued Esperanza Transmission, arguing that it had negligently

entrusted the truck to Havelka because Havelka had a record of speeding tickets.

Id. at 595–96. The supreme court held that Esperanza Transmission was not

liable under a negligent entrustment theory because the negligence that caused

the accident (Havelka’s intoxication and his ―poor judgment in allowing others to

drive the truck‖) was not the same as ―[t]he risk that caused the entrustment to be

negligent‖ (Havelka’s speeding tickets). Id. at 596–97. Further, Schneider did

not provide evidence showing that the negligence that caused the accident was

foreseeable. Id. at 596.

      In this case, the risk that allegedly caused the entrustment to be negligent

was Bomb Squad’s use of the ATVs for dangerous stunts.              However, the

negligence that caused the accident was Moore’s failure to ascertain Donahue’s

skill level before allowing him to perform the dangerous stunts. There was no

evidence that Polaris could reasonably predict that Bomb Squad members would

allow anyone wanting to audition to get on its ATV and attempt the dangerous

tricks that Bomb Squad performs as a profession. See id. at 596 (―There is no

evidence that Esperanza was aware of any propensity of Havelka . . . to exercise

poor judgment in allowing others to drive the truck.‖); Frito-Lay, Inc. v. Queen,


                                        5
873 S.W.2d 85, 87 (Tex. App.—San Antonio 1994, writ denied) (holding that

negligent entrustment could not lie when there was no evidence that the person

to whom the vehicle was entrusted ―had the propensity in exercising poor

judgment in allowing others to drive‖ or that he had ever let anyone else use a

vehicle entrusted to him by the defendant company). While Donahue argues that

it may have been reasonably anticipated that Bomb Squad would use the ATVs

to audition new team members, Donahue provided no evidence to support that

assumption. The summary judgment evidence Donahue supplied instead shows

no actual use of Polaris ATVs for auditioning purposes. Donahue attached the

deposition testimony of Lindsay Ramagli to his response to the motion for

summary judgment. Ramagli testified that while she believed she saw Donahue

riding a Polaris at the time of the accident, she also knew there were Honda

ATVs at the Krum facility. She further testified that, while she was aware of other

injuries to riders that had occurred, she believed that ―most people [who] come

there bring their own bikes that they are comfortable on.‖

      The contract between Polaris and Bomb Squad obligates Bomb Squad to

endorse, promote, race, film, and test Polaris ATVs. The terms of the contract

are clear and in no way imply that Polaris was authorizing use of the vehicles for

anything other than the stated purposes, none of which is auditioning new

members for the team. Bomb Squad advertises itself as a leader in the industry

for creating new tricks and purports to have been the first to back flip an ATV.

H–Bomb’s videos of Bomb Squad were popular because of the difficulty of the


                                         6
stunts the riders performed. The value that Bomb Squad provided to Polaris was

the elite status of its stuntmen and their ability to do things most people could not

do.   Polaris could not therefore expect, without some knowledge of Bomb

Squad’s auditioning practices, that Bomb Squad would allow the average lay

person to attempt the feats that the team members have trained to perform.

Donahue presented no such evidence that Polaris was aware of how Bomb

Squad auditioned new members, and no such knowledge can be inferred from

their contractual relationship.

          Because Donahue did not demonstrate that Moore’s alleged poor

judgment in allowing Donahue to perform stunts on the ATV without testing his

skills beforehand was foreseeable to Polaris, he has not shown that Polaris’s

entrustment of the ATVs to Bomb Squad was a proximate cause of Donahue’s

injury.    See Newkumet v. Allen, 230 S.W.3d 518, 522 (Tex. App.—Eastland

2007, no pet.) (upholding summary judgment on a negligent entrustment claim

when plaintiff produced no evidence indicating that defendants knew or should

have known of the incompetence or recklessness of the driver entrusted with

their vehicle); Roach v. Dental Arts Lab., Inc., 79 S.W.3d 265, 269 (Tex. App.—

Beaumont 2002, pet. denied) (rendering judgment in favor of the defendant

because the defendant’s knowledge that the driver of the entrusted vehicle was

addicted to cocaine ―[did] not translate into the more specialized knowledge that

persons addicted to drugs loan cars out in exchange for drugs‖ to a third party

who would negligently cause an accident); see also TXI Transp. Co. v. Hughes,


                                         7
306 S.W.3d 230, 241 (Tex. 2010) (noting that a claim for negligent entrustment

cannot lie if a ―defendant’s negligence did no more than furnish a condition which

made the injury possible‖) (quoting Doe v. Boys Clubs of Greater Dallas,

Inc., 907 S.W.2d 472, 477 (Tex. 1995)). We find no summary judgment evidence

indicating that Polaris knew or should have known that Bomb Squad used the

Polaris ATVs to test potential new riders for the team or that, if they did, they did

so without testing candidates’ skills beforehand.      Polaris produced summary

judgment evidence establishing that it had no reason to know of Bomb Squad’s

auditioning practices or to anticipate them based on their contractual relationship.

Donahue failed to raise a fact issue concerning Polaris’s knowledge.            See

Schneider, 744 S.W.2d at 596; Newkumet, 230 S.W.3d at 522. We overrule

Donahue’s first issue.

      In oral argument, Donahue conceded that there is ―no articulable

distinction between section 390 and negligent entrustment.‖ 3        See Bartley v.

Budget Rent-A-Car Corp., 919 S.W.2d 747, 752 (Tex. App.—Amarillo 1996, writ


      3
       Section 390 states,

             One who supplies directly or through a third person a chattel
      for the use of another whom the supplier knows or has reason to
      know to be likely because of his youth, inexperience, or otherwise, to
      use it in a manner involving unreasonable risk of physical harm to
      himself and others whom the supplier should expect to share in or
      be endangered by its use, is subject to liability for physical harm
      resulting to them.

      Restatement (Second) of Torts § 390 (1965).


                                         8
denied) (holding that defendant did not need to address plaintiffs’ section 390

claims separately from their negligent entrustment claims in its motion for

summary judgment).     Therefore, we will not address Donahue’s section 390

claim separately.   Because we have held that Donahue did not meet his

summary judgment burden as to his negligent entrustment claim, we hold that he

has likewise failed to establish a claim against Polaris under section 390. We

overrule Donahue’s second issue.

      Because we uphold the summary judgment on Donahue’s negligent

entrustment and section 390 claims for the reasons recited above, we do not

reach his issues addressing other grounds for summary judgment.             See

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003)

(noting that when a trial court’s order granting summary judgment does not

specify the ground or grounds relied on for its ruling, summary judgment will be

affirmed on appeal if any of the theories presented to the trial court and

preserved for appellate review are meritorious).

                                   Conclusion

      Having overruled Donahue’s dispositive issues, we affirm the trial court’s

judgment.


                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.

DELIVERED: March 29, 2012


                                        9
