                                                                                   ACCEPTED
                                                                              01-14-00969-CV
                                                                    FIRST COURT OF APPEALS
                                                                            HOUSTON, TEXAS
                                                                         3/17/2015 3:43:30 PM
                                                                          CHRISTOPHER PRINE
                                                                                       CLERK

                       NO. 01- 14-00969-CV

                                                              FILED IN
                                                       1st COURT OF APPEALS
               IN TIIE FIIIS'| COUIìT OII ,APPEAI,S        HOUSTON, TEXAS
                      AT IIOUS]'ON, TI]XAS             3/17/2015 3:43:30 PM
                                                       CHRISTOPHER A. PRINE
                                                               Clerk

                         BI{YAN I]I-ACK
                                          Appellant,
                                \/

              SMITI_I PROI]EC'|IVI] SEIìVICIJS, INC.

                                          Appcllcc.


                    ON APPEAL IìITOM'|I-IE
I89TI_I JUDICIAL DISTRICT COIJR]' OIì I_IAIìIì.IS COIJN'|Y, '|I]XAS



           BIIIII,F OF API'IILLAI\T, I}IIYAI\ III,,,\CK

                ORAI- AI{GUMIINT RIIQUIiS1'l:li)
                                               Iìcspcctl'ully    S u [r   m   itl ccì,

                                               LAW OIIFICtrÙS OtrI
                                               PATIìICK G. IIUllll,,\ItD, P.C.
                                               Patrick G. I-lubbarcJ
                                               Texas Ilar No. 101 39500
                                                I075l(ingwoocl Drive, Suitc 203
                                               I-Ior-rston,'fexas 77 339
                                               'felephone: (28 1 ) 358-7035
                                               Facsimile: (281) 358-7008

                                               A'I"f Olli\E Y IrOlì AP l, Il Ltr,.,\.N'l'
                                               Ilryan lllacl<,




                   IDEN:IITY OIr PAIìTIIIS AND COtlfilslill

Appellant;         Ilryan Black

Ilepresented By:   Patrick G. Ilubbarcl
                   Law Offices of Patrick G. I-lubbarcl, P"C"
                   phubbard @patri cl<hu bbarcl I aw. com
                   Texas Bar No. 10139500
                    1075 Kingwood Drive, Suite 203
                   i-Iousion,'fexas 77339
                   Telephone: (28 1) 358-7035
                   Iìacsirnile : (2Bl ) 358-700ti

Appellee:          Smith Protective Services, Inc.

Iìepresented by:   Todd I-L 'finker
                   Law Office of Todd LI. Tinker, I'. C.

                   f'exas Bar No. 20056150
                   P. O. Ilox 75380
                   I)allas, Texas 75380
                   Teleplrone: (214) 914-37 60
                   Facsimile: (214) 853-4328
                           .TABI-,N,
                                       OF COI\TIINTS

IDITNTII'Y OF I'I-IE PAI{'|ÌES AND     COUNSIIL....        .....,.ii

TAI]I,E OF CONTENTS                                                .....iii

TABLE OF AUTI-IOR.ITIES                                   ..   .    ....iv-v

ISSIJES   PRIISEN'TI]D.                                    ".      "...    I



S]-A]'EMENT OF TI_IE CASE.                             ..,.,,.....2
S]'ATIIMI]NT   OIr FAC'rS...                               ....          .,3-8

SUMMAI{Y OF T]_IE AI{GTJMENT.                                       .. .. .8

ARGUMEN| AND           AUTIIOIIITII]S                              ......8-39

PRAYER                                                              "....38-3e

STA'|]]MI]NT R]]GARDING OIIAI-         AIìGIJMNNT.         , " .,.             39

CEIì'|II]ICAT'I] OIì   SEIìVICE.                                   .. ....40

CEIìT]F'ICAI'E OIì     COMPLIANCE                              ..   ..   ...41




                                        III
                            TAIILE OI,' ATJTII OIIII'I         ES


                                                                                      Pagc
ßaptist Ment'l l:Iosp. ^5"yr. u. Santpson,969 S.W.2d 945, 947 ('I'ex. 1995) ......26,29
Iluclcv. Bltrm, 130 S.V/.3d 285, 28B (Tex.App.-I-Iouston [14th Dist.l 2004, no pct.)
                                                                                  t1
Cosgrove v. Grintes,774 S.W.2d 662, 666 ('l'cx. 1989)                                          28
Country lLoads, Inc. v. Witt,737 S.W.2cl 362,364 ('fex. App.-Ilcxrston             ll4th
Dist.l 1987, no writ)                                                               .......... 30
I)eLuna v. Gtrynes Printing Co. [nc.,884 S.W.2d 206,210 ('l'cx. App.-LÌl Paso
 1994, writ denied).                                                      ......32
Dieter v. Ilalcer Service Tools (Dieter I),739 S.W.2d 405, 408 ('l'cx. A¡rp.-- OorpLrs
Clrristi 1987, writ denied); ..........                                         .....32
Durand v. Moore, 879 S.W.2d 196, 199 ('l'ex. App.-I"Iouston f 14th Dist. | 1994, no
writ)                                                                               ....11   ,29
Dutcher v. Ctvens, 647 S.W.2cl 948, 950-51 (Tex.        1983)                           .....17
Garrett v. Great Western Ðistributing Co.l29 S.W.3 d 797 (1'ex. App.
                                                                                -Äurarillo
2004, no   pet.).                                                                   ..........3t1
Greater Houston Transp. Co.,801 S"W.2d 523,526-27 ('l-ex.              1990)       ...........32
Guidry v. l{at'l ltreight, lnc.,944 S.W.2d 807,    B1   1   ('l'ex. App.--Austin 1997 , n<>
writ) .......,.......                                                               .,........31
I-looper v. Pitney lSovtes, Inc., 895 S.W.2d 773,777 ('l'ex. ,z\pp"--'l'cx¿rrkana I995,
writ denied);                                                                       ....29
I-louser v. Smith,968 S.W.2d 542,544 ('L-ex. App.__-u\r-rstin 1998, no pcr.) 30,32,32
IÇng lLanch, Inc. v. Chapntan, 118 S. W. 3d742 ('l'ex.         2003).                      .... 16
I{elly v. Stone,898 S.W.zd 924, 927 ('l'ex. App.-llastlancl 1995, u,rit clonic t|) ..29
LaBella v. Charlie Thomas, [nc,,942 S.W.2d 127, 137 (Tex. App.--Amarillo
1997,   writ   clenied)                                                                .30,31
Leadon v. IÇntbrottgh llros. Luntber Co., 484 S.W.2cl 567 , 569 ('l'ex. 1972);,26,28
Leyendeclcer & Assocs., Inc. v. Wechler, 6tì3 S.W.2d 369,375 ('l'ex.         1984) ........ 17


                                            1V
Lorant Maintenctnce of Woy, Inc., 14l S.V/.3 c\722_('Iex. App.-Lìl Paso 2004, pcL.
filed).                                                              25,36, 37 ,38
Minyard Food Stores, Inc. v. Goodntan, 80 S.W.3d 573,577 ('I'cx.2002); ..".28,29
Netuspapers, Inc. v. Love,380 S.W.2d 582,589         (Tex.1964)                       16,29
l{ixon v. Mt'. Property Managentent Co.,690 S. W. 2wd 546, 548-49 ('l'cx           198-5)
                                                                                            15

Oberpriller,lT0 S.W.2d 607 (Tex" Comm.       App.-19a3)                           ..,.......30
Otis Eng'g Corp. v. Clarlc,668      S.W"2d307,309 ('l'ex. 1983)                 ,...... 30, 31
Peelcv. Equipntent Services, [nc.,906 S.W.2d 529,534 ('l'cx.        App.-San     Antor-rio
1995, no  writ)                                                                    "...,....32
Porter v. lVetnir,900 S.W.2d376 (Tex. App.-Austin 1995, no writ)                            :1?

lLobertson v" Church of God, Int'1,978 S.W.2d 120, 125 ('l'cx.       .App.**'l'y|:    1997,
pet.   denied)                                                                      ........32
lLobertson Tanlc Lines, Inc. v. Van Cleave, 468 S.W.2cl 354,357 ('I'cx.        I97I) .....29
Sotov. El Paso Natural Gas Co.,942 S"V/.2d 671,680 ('l'cx.          App.-lJl   Paso 1997,
writ   denied)                                                                   26,27,29
Texas & jlctc.   Ily. Co. v. trIagenlolt,247 S.W.2cl 236 ('L'ex.   1952)             ".....1l
Tierra Drilling Corp. v. Detmar, 666 S.V/.2d 661, 662-63 ('l'cx. A1rp.-Corpus
Christi 1984, no writ)                                                      ........ 18
Tex. & Pac. Ry. Co. v. I-Iagenloh, 151 'I'ex. 191,247 S.W.2d 236,239 (1952) ....17
l4/al-Mart Stores, Inc. v. Odem,929 S.W.2d 513 ('fex. App.--San Antonirl 1996,
writ denieci)                                                          ....."....2(t
Wolff 94 S"W.3d 513 (Tex       2002)                                                 ......17
Wrenn v. G.A.T.X Logistics, Inc., 73 S.W.3d 489 ('l'ex.     App.-lìort Worth      2002, n<¡
pet.)                                                                          ..30, 31, 33
                   ISSUES PRESENTBÐ

rssuE No.   1:

    THE TRIAL COURT ERRED BY GRANTING APPELLEE'S MOTION
    FOR PARTIAL SUMMARY JUDGMENT, BOTH TRADITIONAL AND
    NO-EVIDENCE, ON THE ISSUE OF NEGLIGENCE.
                              STATBMBNT OF THE CASE

       Black filed this suit against Muhammad Zaffør ("Zaffar"), Smith Protective

Services, Inc. ("Smith") and the owners/managers of the condominium complex at

which the relevant events took place. Black alleged that he had been falsely arrested

and maliciously prosecuted following his arrest pursuant to an assault charge by

Zaffar. Black was no-billed by the grand j,rry.

        Smith was granted judgment on both traditional and no-evidence summary

judgment motions. A non-jury trial was held, at which Black was granted judgment

against Zaffar, the only remaining defendant.

      Black's appeal is only against Smith being granted summary judgment, and

not against Zaffar' s judgment.
                               STATEMENT OF FACTS


      On or about March 6, 2012, Plaintiff, Bryan Black, a resident of Houston,

Texas, The Oaks of Woodlake Townhomes, was visiting a friend in another unit

shortly after 5:00 p.m. His friend had a guest that they were expecting, and the

townhouse complex was a community that had a guard gate at the entryway for

security purposes. One of the security guards at the front gate, MuhammadZaffar,

was an employee of Defendant, Smith Protective Services, lnc. Zaffar refused to

allow the guest into the complex. Bryan Black and his friend spoke to Muhammad

Zaffar and asked him to allow the visitor entrance into the complex, and Zaffar

refused the request   in a very rude   fashion and called Bryan Black's f¡iend an

offensive name. Guests are routinely permitted entry onÇe they were identified.


      This was not the first time that Muhammad Zaffar had refused to allow guests

into the complex, and several complaints had been lodged against him by other

tenants by way of letter and documented oral complaint. Zaffar had refused to allow

guests into the complex, and when confronted about this conduct, he became rude

and standoffish, and offen times threatened the guests. Bryan Black went to the

front of the complex to the guardhouse area and confronted MuhammadZaffar, who

was outside the guardhouse permitting other guests and residents through the

entryway. \When confronted by Bryan Black, Zaffar became very angry and upset
after Bryan Black t"old Zaffar that he felt Zaffar had a bad attitude and performed his

job poorly. Bryan Blaok argued with him and told him he was stupid, but by then

the guest had already left. There was no physical contact with one another, and the

verbal confrontation ended while both persons were outside the guardhouse in plain

sight of others that were coming and going. Bryan Black did not realize at the tirne

how upset Muhammad Zaffar became when his authority was questioned.


       Muhammad Zaffar called first called the FBI, and then the Houston Police

Department to make a report that he had been assaulted. The authorities did not

show up, and when Zaffar left work, he stopped by the Houston Police Department

substation and filed a criminal complaint against Bryan Black. Zaffar told the police

that he had been physieally assaulted by Bryan Black who had threatened him and

claimed Black had swung a baseball bat at      Zaffar.   The police department accepted

Muhammad Zaflar's story as the truth and did not check out Bryan Black's version

of the incident. Zaffar, through the Houston Police Department, fîled          criminal

charges against Bryan Black under Section 22.02             of the Texas Penal Code;
Aggravated Assault with a Deadly Weapon;           a Znd degree felony that carries a
punishment range of 2 to 20 years in prison.


       Two days later on March 8, 2012, when Bryan Black arrived home from

work he was surrounded by l{ouston Police Department Officers in the parking lot
in plain view of other residents, with a shotgun pointed at his head and arrested by

officers and taken to the City of Houston jail. The off,rcers had an aruest warrant and

search warrant, and searched Bryan Black's apartment and automobile while asking,

"Where is the baseball ba|?" No bat was found. From there, he was transported to

the Harris County Jail where after about 48 hours later he eventually was allowed to

arrange for a bail bond and was bonded out so that he could return to work.


       Smith Protective Services, Inc. had no written policy in place concerning the

filing of criminal complaints by the Security Company in charge of security on the

premises for alleged wrongs committed on the premises. Further, The Oaks of

Woodlake had video cameras placed at the entrance way by the guard house leading

residents and others that did know better to believe that the actions of those in view

of the cameras would be recorded; however, there was no recording or monitoring

device connected to the cameras in question, and Smith Protective Services, Inc.

knew the cameras were not functioning with recording devices.


       For the next few months Bryan Black waited in anticipation and fear of

whether or not he would be indicted by a Harris County Grand Jury. Bryan Black

was required to employ a criminal attomey who fortunately employed a private

investigator who questioned many witness and persons with knowledge             of   the

situation and determined that there were inconsistencies in Muhammad Zaffar's
story to the police, and that Zaffar had a history of getting angry with tenants and an

unsatisfactory   job performance as a security guard involving issues of authority.

When the Grand Jury met and heard all the evidence, they "No Billed" Bryan Black,

thereby exonerating him from the false charges made against him. Even with the

charges being determined to be false, there   still   stands a public record   of an arrest

and charges made against Bryan Black that is a stain on his record for everyone to

see, as he had never been charged or convicted        with any criminal charges in     the

past.



        Other inhabitants of the Oaks of Woodlake condominiums saw the arrest take

place with at least four police cars and many more officers physically detain,

handcufi and arrest Bryan Black with guns pointed               at him eausing shear
embarrassment and grief from the incident.


        There were two impot1rant incidents shortly before the Bryan Black incident

that put Smith Protective Services, Inc. on notice of Mohammad Zaffar's actions

with those he came into contact with. The first was the Collins incident that

occurred on February     I1,2012   and   is found in the Dispatcher's log of        Smith

Protective Servioes. Records reflect that Forward      Air called to talk to someone at

Smith Protective Services, Inc. complaining about Mohammad Zaffar's encounter

with their employee named Torres. When Zaffar was questioned about it he advised
that Torres threatened to shoot him, and that he "might have to call police."

Supervisor, Amaya did not have any recollection of handling this matter, but                          it   was

found in Smith Protective Services, Inc.'s records. That should have been the first

notice that Zaffar was having issues in getting along with persons he encountered on

his job.

   The second incident was on February 25, 2012, foufteen days later when Mrs.

Collins, a resident at The Oaks of \Moodlake, wrote a complaint letter about

Mohammad Zaffar, who had called the police while at work and reported that her

son had threatened to shoot him. Apparently Zaffar had detained her grown son at

the entry gate and questioned his coming on the premises when he had done so

every week to visit his elderly mother, and Zaffar was described as becoming angry

over the confrontation and reported the incident to the police as an assault. Smith

Protective Services, lnc. had knowledge of this as the letter was sent to the Oaks of

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incident and was verbally counseled. This was the second of two incidents before

the Black incidents. Two persons coming to his guard gate had threatened to kill

him in a two-week period. Smith Protective Services, lnc. had notice of the fact that

Zaffar had issues with many he encountered, and was unduly paranoid about

persons threatening him and resorted to calling the police when he was confronted

or became angry but there was no such policy in place" On February                         2I, in between
these incidents, Zaffar had received a written warning notice about not wearing a tie

and needing a haircut. This was his third notice of some type of warning notice

Zaffar had received, but interestingly enough, Zaffar did not receive a warning

notice about either incident where he alleged he had been threatened.


                           SUMMARY OF THE ARGUMENT


       The areas of negligence were all outlined in the Appellant, Black's responses

to both the No Evidence and Traditional Summary Judgments including the specific

elements   of negligence of    inadequate hiring, inadequate training, inadequate

supervision, and negligent retention. Evidence was established of Smith Protective

Service's employee, Zaffar, being in the furtherance of his employer's business and

the duty that arose to control third persons' conduct based upon foreseeability and

upon actual knowledge of Zaffar's actions. The failure of Smith Protective Service

to   act by either counseling, disciplining, inadequately training, inadequately

supervising   or   dismissing Zaffar was clearly set out    in both of Defendant's
Responses   to Summary Judgment. Zaffar's general guard post orders of "deter
criminal activity" were far too vague to deny liability upon course and scope.
                          ARGUMENT AI{D AUTHORTTIES


      These two prior incidents involving Zaffar should have placed Smith

Protective Services, Inc. on notice that there was something very unusual and

serious going on       in Zaffar'slife. For two different   persons to have allegedly

threatened to   kill   a security guard (Zaffar) in less than two weeks, and then

for him to threaten to kill them should have placed the employer on notice

that Zaffar had serious issues going on, and that he was either the most

disliked security guard in town, or he was not telling the truth. It should have

been enough to raise a serious red flag with Zaffar's supervisor, Amaya, when

Zaffar allegedly told him on March 6, 2012 that a resident at the Oaks of

Woodlake had gone after him with a baseball bat. Plaintiff believes that by

Smith's inaction in not counseling Zaffar at that moment that filing false

charges against a resident where one works is a serious matter and a crime,

and speaking to the other guard on duty who would have verified that she was

present, but did not witness anything of the sort would have been a must

before telling Zaffar to handle the situation as he saw         fit, and should have
notified the Oaks of Woodlake management of the allegations as well as the

Plaintiff. Defendants' failure to act by either dismissingZaffar or removing

him from his post and Defendants' failure to discipline Zaffar acted as an

encouragement to Zaffar        to continue his increasingly paranoid behavior    and
repofting of false allegations.


      In Black's Sixth Amended Original Petition, Black alleged a number of

specific complaints of negligence; the first of which was negligent hiring.

Smith Protective Seruices, Inc. failed to adhere to their own standards by

obtaining information about the 5 years of prior experience that Muhammad

Zaffar had. Zaflar only supplied 2 years of information. Zaffar's application

for employment also contained inaccurate dates of employment according to

the Texas Department of Public Safety's records. Smith also             requested

information on the application for 7 years previous job experience, and Zaffar

did not give it to them. Smith failed to adhere to their own requirements to

check prior employment references and only relied upon the fact that Zaffar

passed the state administered security guard   test. Before Zaffar   was placed at

the Oaks of Woodlake, two other companies had asked Smith Protective

Services to remove him from their locations, so that fact alone should have

alerted Smith Protective that there was something going on with Zaffar to

warrant two other employers asking him to leave.


      The Plaintiff also alleged negligence for inadequate training. Such

training should have included the protocol for reporting assaults on guards to

supervisors immediately after their occurrence, and after they had been put on


                                          10
notice that something serious was going on with Zaffar after two similar

occurrences where Zaffar alleged that two persons attempting         to enter   the

Oaks of Woodlake had threatened to      kill him. Smith was negligent for failing

to properly train Zaffar about the illegality of making false reports on persons

attempting   to enter the Oaks of Woodlake, and on how to diffuse           such

situations before they got to the point of violent threats.


      Another point of negligence was negligence for inadequate supervision,

failing to investigate and failing to warn. After knowledge of two prior

incidents on the location of The Oaks of Woodlake, and after two previous

employers had asked Zaffar to be released from duty on their premises, Smith

Protective Services, Inc. should have warned other residents about Zaffar's

propensity to cause problems and Smith should have conducted a reasonable

investigation as to whether Plaintiff committed a criminal act against Zaffar

and should have counseled Zaffar and warned Bryan Black of potential

danger from Zaffar before allowing Muhammad Zaffar             to file a criminal

complaint against Bryan Black,        a   resident   of their customer, Oaks of
Woodlake. They further owed a duty to Plaintiff to adequately supervise

Zaffar after knowing that he had claimed two other guests, Nita Collins son

and Mr. Torres, an employee of Forward            Air had allegedly threatened   to

shoot Zaffar andyet took no significant actions to properly supervise Zaffar,

                                             11
remove him, or seek professional help for him.


        Plaintiff, Black, also claimed that Smith Protective Services should

have removed Muhamm ad Zaffar from the Oaks of V/oodlake immediately

upon learning of Zaffar's claim that a visitor to the property, Nick Collins,

had threatened to shoot him and Zaffar called the police. Smith Protective

Services' Ruben Amaya verbally counseled Zaffar and should have given him

instructions on how to diffuse such situations or should have either discharged

Zaffar as an employee or moved him to a different security post. Smith

Protective Services, Inc. should have addressed Zaffar's claim that Mr. Torres

from Forward Air had threatened him with bodily harm by either discharging

Zaffar as an employee or moving him to a different security post, and any

employer should have reasonably foreseen that Zaffar had a problem dealing

with people he encountered, and as such began making false claims against

them.


         Black also alleged that Smith Protective Services, Inc. was negligent

in not demanding that the security   cameras and recorders be working at the

time their guards were on duty, or to warn residents that such cameras were

not recording. Such negligence as a proximate cause of the wrongful charges

filed against Plaintiff as had there been a recorded record as advertised on the


                                           12
front gate, then it would have given the police something to look at to

determine that no assault had occurred.


       IJnder the doctrine    of   respondeat superior, an employer may         be   held

vicariously liable for the intentional or negligent acts of an employee if the act is (1)

within the scope of the actual or apparent general authority of the employee, (2) in

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

for which the employee was employed. Muhammad Zaffar was acting in the Çourse

and scope of Smith Protective Security Services, Inc.'s employment as a security

guard, and    it is not ordinarily within the scope of a servant's authority to file
criminal charges against residents for whom they should be protecting, but           if a
resident commits an assault against a Smith Protective Services' employee, then the

employee has the right to protect himself andlor file criminal charges for assault.

Smith Protective Services, Inc.'s actions of failing to take any action or measures in

the two prior alleged assault incidents that it gave "encouragement and assistaîçe"

to Zaffar in the furtherance of his false criminal complaints of assault. Each tirne

Zaffar got a little more confidence to go a step further. The first incident was just   a

eomplaintby a contractor who was doing work at the townhome complex. The next

was a call to the police and the making of a report of alleged threats to kill that he

decided not   to follow up on, and the third resulted in the actual pursuing of         a

criminal complaint after Smith Protective Services failed to put a halt to Zaffar's

                                           13
career of making fälse criminal complaints. Smith Protective Services is responsible

to Plaintiff under the theory of respondeat superior for proximately causing       the

damages caused by Zaffar.


       Smith's primary argument against the respondeat superior argument was that

Zaffar was outside the course and scope of duties at Smith primarily because he

waited until after his shift to go to the police substation and report the alleged

assault, but the facts remain that Zaffar called not only the Houston Police

Department (CR 200), but first called the FBI, and the Houston Police Department

did come out to the apartment complex, but Zaffar had already left work. Smith

further alleges that reporting of crimes was not part of the duties of a security

officer. Smith's own post orders they refer to in their Motion for Summary
Judgment stated: "Purpose: Gate access control, deter criminal activity and from

3:00 pm to 5:00 am patrol the property providing visual deterrence." Deterring

criminal activity is a very broad term that could be construed by a jury of reasonable

minds to also mean taking action against anyone who allegedly threatened a guard

or tried to get access to the property for themselves or others.


      Smith filed a second Motion for Summary Judgment, entitled, "No Evidence

Motion for Partial Summary Judgment" (CR 432-438) on Plaintiffls issues of fraud,

negligent hiring, general negligence and intentional infliction of emotional distress.


                                            t4
  Plaintiff amended their petition (CR 457-467) dropping the claims of fraud and

  intentional infliction of emotional distress, leaving only the claims of negligence.

  Smith alleged that there was no evidence of negligence, proximate cause or

  foreseeability.


         The Court granted an lnterlocutory Summary Judgment (CR 62I) on August

  2t, 2AI4 in favor of Smith on both       panfial summary judgments. The remainder    of

  the case was called to trial on September 17, 2014 and the Court granted a Final

  Judgment (CR 647-648).


                                     Standard of Review

                       Traditional Motion for Summary Judgment

          The standards in viewing summary judgment evidence are:

(l)The Movant for summary judgment has the burden of showing that there is no

   genuine issue of fact and that !t ic entitlcd rn i'rlg¡¡¡s¡f as a matter of larv.

(2)In deciding whether there is a material fact issue precluding summary judgment,

   evidence favorable to the non-movant      will    be taken as true.

(3)Every reasonable inference must be indulged in favor of the non-movant and any

  doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S. W.

  Zwd 546,548-49 (Tex. 1985).




                                                t5
        If   the evidence favorable to Plaintiff is to be taken as true that is contained in

the Exhibits, Affidavits, and Depositions, then there were clearly sufficient

elements of each Çause of action listed in the Plaintiff s Sixth Amended Original

Petition. Accordingly, Appellant's motion should be denied.

                            No-Evidence Summary Judgment

        Plaintiff has presented evidence raising issues of material fact as to the

elements specified       in Appellant's motion. No-evidence summary judgment is
improper if more than a scintilla of evidence exists which conclusively establishes

the basic elements of Appellant's claims. Appellant has more than met that burden

in this case. See King Ranch, Inc. v. Chapman. 118 S. W. 3d742 (Tex. 2003).

        The Appellant frled two separate responses with attached exhibits opposing

both Motions for Summary Judgment, and the following arguments and evidence

were used in response thereto:

                             R.espondeat Superior Argument

        Appellant argued that liability upon Smith Protective Services, Inc. rested at

least   in parl on one parlicular form of vicarious liability             the doctrine of
                                                                      -
respondeat superior. This doctrine "holds the master liable           for the torts of his

servant committed in the course of his employment" and is "essentially a policy

doctrine...." Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (.Tex.I964). "Except

for acts personally directed by the principal, the liability of the master is founded

                                              t6
upon the contractual arrangement with the seruant; either expressed or implied

which vests in him the right to control the details of the work." Id.; see               ctlso

            her   & Assocs., Inc. v. Wechter.683             S.W.2d 369.375 (Tex.19B4

(employer and employee were jointly and severally liable for tort committed by

employee in the course and scope of his employment). "The theories of vicarious

and    joint and several liability   are   judicially created vehicles for enforcing remedies

for wrongs committed." Dutcher v. Owens, 647 5.W.2d948.950-51 (Tex. 1983).

"Justified on public policy grounds, they represent a deliberate allocation of risk."

Id.;   see also Wol.{f 94 S.W.3d     at 541.


         "The typical respondeat superior claim involves an allegation of negligence

on the part of the employee" occurring within the course and scope of                     the

employee's employment. Buck v. Blum, 730 S.W.3d 285^ 288 (.Tex.App.-Houston

[14th Dist.l 2004. no pet.). "It is not ordinarily within the scope of a seryant's

authority to commit an assault on a third person." Tex. & Pac. Ry. Co. v. Hagenloh,

151 Tex. 191,247 S.W.2d 236,239 (1952). However, an assault aan be

considered to be "in the course and scope of employment when the nature of the

employment necessitated the use of force (such as the duty to guard property fdeter

criminal activity]) so that the use of force may be in furtherance of the employer's

business even     if more force than necessary is applied ." Buck,     130 S.W.3 d at 289 n.

2 (citing Hagenloh, 247 S.W.2d at 239); see also Durand v. Moore, 879 S.W.2d

                                                  t7
196, 199 (Tex.App.-Houston ll4th Dist.l 1994, no writ) ("When an employee

commits an assault,   it is for the trier of fäct to determine whether the employee
ceased   to act as an employee and acted instead upon his own responsibility.");

Tierra Drilling Corp. v. Detmar, 666 S.W.2d 661, 662-63 (Tex. App.-Corpus

Christi 1984, no writ) (no evidence supported finding that employee was acting

within the course of his employment, in pursuit of his duties, or in the furtherance

of Tierra's business when he assaulted co-worker).


      Fufther, Plaintiff alleges in their Sixth Amended Original Petition (CR 457-

467) that Defendant, Smith Protective Selices, Inc.'s actions of failing to take any

action   or   measures   in the prior   alleged assault incidents that     it   gave

"enoouragement and assistance" to Zaffar in the furtherance of his false criminal

complaints of assault (See time line CR 78-83). The simplest explanation requires

the knowledge of the short history of Mohammad Zaffar on the post at Oaks of

Woodlake. The best way to understand the timeline is to look at the timeline

created by Plaintiffls expert witness, Patrick   Murphy. There were two importan|

incidents shortly before the Bryan Black incident. The first was the Forward Air

(Torres) incident (CR-371) and the second, the Collins incident (CR-370)

mentioned in both the Amaya and Bell depositions. The first incident occurred on

February 11,2012 and is found in the Dispatcher's log (CR-371) and is mentioned

in both the Amaya and Bell depositions. Records refleot that Forward Air called to

                                         l8
 talk to someone at Smith Protective Services, Inc. about Moharnm ad Zaffar's

encounter with their employee named Torres. When Zaffar was questioned about

it he advised that Torres threatened to shoot him, and that he "might have to call

police." Amaya did not have any recollection of handling this matter, but it    was

found in Smith Protective Services, Inc.'s records. (CR- 371)'Ihat should have

been the first notice that Zaffar was having issues in getting along with persons he

encountered on his job.


      The second incident was on February 25, 2012, fburteen days later when

Mrs. Collins, a resident at The Oaks of Woodlake, wrote a complaint letter (CR-

370) about Mohammad Zaffar, who had called the police while at work and

reported that Mrs. Collins son had threatened to shoot him" Apparently Zaffar had

detained her grown son at the entry gate and questioned his coming on the

premises when he had done so every week to visit his elderly mother, and Zaffar

was described as becoming angry over the confrontation and reported the incident

to the police as an assault. Both the Oaks of Woodlake and Smith Protective

Services, Inc. had knowledge of this as the letter was sent to the Oaks of Woodlake

and forwarded on to Smith Protective Services,   Inc. Apparently Zaffar denied the
incident, although there is a Houston Police Department record where he called the

police out (CR-290 ) and the letter from Collins' mother, and an admission from

Zaffar's supervisor that Zaffar was verbally counseled. This should have been the

                                        19
second notice that he was having difficulty getting along with tenants and their

guests and perhaps that he had exhibited episodes of paranoia over the incidents.

Two persons coming to his guard gate had threatened to kill him in a two-week

period. This second incident was only 14 days after the       first. At that point the
supervisor at Smith Protective Services, Inc. should have seen a pattern here that

Zaffar could not get along with many he encountered, and perhaps was unduly

paranoid about persons threatening him and resorted to calling the police when he

was confronted or became angry. On February 21, in between these incidents,

Zaffar had received a written warning notice about not wearing a tie and needing a

haircut. This was his third notice    of   some type   of warning notice Zaffar had
received, but interestingly enough, Zaffar did not receive a written warning notice

about either incident where he alleged he had been threatened; thereby reflecting

the indifference of the employer, Smith.


      Each time Zaffar got a little more confidence to go a step fuither. The first

incident was just a complaint by a worker who was doing work at the townhome

complex. The third instance was when Zaffar threatened Shelley White's boyfriend

and gave him trouble in coming on the properly (CR 92-94). The next was a call

to the police and the making of a report of alleged threats to   kill that he decided not

to follow up oû, and the third      resulted    in the actual pursuing of a criminal


                                           20
complaint after Smith Protective failed to put a halt to Zaffar's career of making

false criminal complaints.


         Smith Protective Services, Inc. claimed that they did not authorize, benefrt

from or ratify the conduct of Mohammad Zaffar, but the facts show otherwise, and

Appellant's expert witness said otherwise (CR 78-83). After explaining the time

line, Patrick Murphy stated in his report: "at     That   point the supervisor at Smith

Protective Services, Inc. should have seen a pattern here that Zaflar could not get

along with many he encountered, and perhaps was unduly paranoid about persons

threatening him and resorted      to calling the police when he was confronted or
became angry (CR       79).   These two prior incidents should have placed ...Smith

Protective Services, lnc. on notice that there was something very unusual and

serious going on    in Zaffar's life. For two different persons to have threatened to

kill   a security guard in less than two weeks should have placed everyone on notice

that Zaffar had serious issues going on, and that he was either the most disliked

security guard in town, or he was not telling the truth. It should have been enough

to raise a serious red flag with Zaffar's supervisor, Amaya. (CR-80). "The failing

to counsel or reprimand Zaffar on the two prior occasions or counsel with him or to

send him to counseling or remove him from this post could constitute negligence

and ratification of Zaffar' s act" (CR-80).




                                              21
        These two prior incidents should have placed Smith Protective Services, Inc.

on notice that there was solnething very unusual and serious going on in Zaffar's

life.   For two different persons to have threatened to                 kill a security guard in less
than two weeks should have placed everyone on notice that Zaffar had serious

issues going on, and that he was either the most disliked security guard in town, or

he was not telling the truth.         It should have been enough to raise a serious red flag

with Zaffar's supervisor, Amaya, when Zaffar allegedly told him on March 6,2012

that a resident at the Oaks of \Moodlake had gone after him with a baseball bat.

Plaintiff believes that by Smith's inaction in not counseling Zaffar at that moment

that filing false charges against a resident where one works is a serious matter and

a crime, and speaking to the other guard on duty who would have verified that she

was present, but did not witness anything of the soft would have been a must

before telling Zaffar to handle the situation as he saw               frt.   These facts present     a   jury
           +L^+ Ct.^^i+L .-^^-.                                                                          rral-
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                                                                         IaLiltgu suç¡l      uulluuuL. llte-

failing to counsel or reprimand Zaffar on the two prior occasions or counsel with

him or to send him to counseling or remove him from this post could constitute

negligence and ratification          of Zaffar's act as is now alleged in Plaintiffs Sixth
Amended Original Petition. Smith may have believed they would benefit fiom

such inaction by not having to find another guard to work the post at the Oaks                              of

Woodlake, and their cavalier attitude of saying they do not want to interfere with


                                                    22
one of their guards filing a criminal complaint is apparently a company cop-out

policy that should be questioned and could constitute a negligence finding by        a


finder of fact.


       With regard to the question of whether the actions of Smith Protective

Service, Inc. were enough to cause the prosecution, Smith Protective Service

should have known that the likelihood of the information provided by Mohammad

Zaffar was false based upon the two previous incidents, and if they had questioned

their other guard on duty, they would have known for sure it was, and the failure to

investigate the incident is a further indication of Smith's indifference.


       Further evidence indicates that Estella Bell, the assistant manager, spoke to

Muhamm ad Zaffar imrnediately after the alleged Rryan Black incident        (CR   148)

and there was another guard in the guard house at the time of the alleged incident

that did not see any incident with a baseball bat (CR 149) even though she was

present in the same guard booth and would have seen it had such an incident taken

place. Estella Bell further testified that most workers were afraid to work with him

(Zaffar) because they always got into it with him (CR 149). Estella Bell stated in

her deposition: "With the other two incidents on record, each one of those persons

said that he (Zaffar) threatened to shoot them, "That he's not going to let nobody

hurt him, and he will shoot them if he had to". And he was going to call the FBI.

That was always his words. "(CR 166)
       As far as evidence that there was an absence of probable cause,          see the

affidavit of Bryan Black, Plaintiff, as (CR 403-407) when Zaffar told 'Black         if
Black didn't stop the discussion with Zaffar in the parking lot that Zaffar would

call the police and report something that did not actually happen (which            he

eventually did follow through on).


      Finally, the deposition of Shelley White, Exhibit 4, stated that she was       a

witness to the entire conversation in the parking lot in front of the guard booth and

the alleged confrontation between MohammadZaffar and Bryan Black because her

boyfriend had had some confrontation with the same guard a few weeks earlier,

and she was interested in what Zaffar was up to, so she stopped and listened, and

she confirms that there was no confrontation    with a baseball bat, and that Bryan

Black did not have a baseball bat and never threatened Zaffar. There is ample

evidence to show that no actual assault or attempted assault ever took place.


            Employers usually are not always liable         for the intentional     or

negligent misconduct of their employees. But when an employer's employees,

agents, and supervisors go astray, the employer can be held liable for their actions

under several theories, including respondent superior, negligent hiring, training,

supervision, and retention. In addition, the employer may be held strictly liable in

cases where supervisors engage    in employment discrimination that results in       a

"tangible job detriment" to an employee.
                                           24
                 Recently, in Loram Maintenance                 of   lV'ay,   Inc. v. Ianni, the El     Paso

Cour-t of Appeals upheid a jury verdict that imposed                  liability on the ernployer when

its employee shot and severely injured a police officer while the employee was ofÊ

duty and away from his job site. The jury awarded the plaintiff police officer $1.3

million in actual and punitive damages.for his injuries. Although Loram represents

an extreme case of imposing liability on an employer for the intentional acts of its

employees,      it   serves as an example of the          liability employers may suffer. Liability

may be imposed on companies to re-examine how employers hire, supervise,

retain, and train their employees.

                 The expert report of Patrick Murphy (CR-379-384) was used                                  as


evidence     to contest the summary judgment. It outlines in detail the specific
elements present that provide evidence                of inadequate hiring, inadequate training,

inadequate supervision, negligent retention ("As early as February                       II,2012, Smith

rÞrntanfi¡¡a
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                   rr\-rLlvv \Jt            vl\_rrtvllL +L*^^+^
                                 LaLtcLL J ',:^l^-+
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and threatened to shoot a fellow guard fsee dispatcher's daily 1og, Feb.                          I1,2012,

used as Exhibit 2, Deposition George Black] threatening to shoot another is a

criminal act) (CR 380), and negligent security against Smith Protective Services,

the most important of which seems to be the failure to remove Zaffar after they had

notice that he had committed a criminal act and threats against other residents prior

to Bryan Black. Expert Murphy summarizes the events and concludes that Smith


                                                     25
Protective Services failed to act in a reasonable and ordinary manner and that such

negligence was a proximate cause                                to Bryan Black's arrest and ultimate harm
caused by       them. Smith Protective Services had no expert witness evidence.

                                     Vicarious Liability/Respondeat Superior

Under the doctrine of respondeat superior) an employer may be held vicariously

liable for the intentional or negligent acts of an employee if the act is                                            (l) within    the

scope        of the actual or apparent general authority of 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 Baptist Mem'l Hosp. dys.                                                                v.


Sampson, 969 S.W.2d 945, 947 (Tex. 1995) (an employer, as principal, may be

held liable for tortious acts committed by its employees as agents in the course and

scope of their employment under the doctrine of respondeat superior); Soto v. El

Paso l{atural Gas Co.,942 S.W.2d 671,680 (Tex.                                               App.-El         Paso 1997, writ
l^-^:^-J\-     fr/-.1   Lr-.,-z   Clt-   .   -' '   r,--   ,-   /1 '.l-' --         Cl Irr   ô )   tr11   /'-f'^-,                C1   ^,-
                                                                              ^ô^                                      ^-^-^



Antonio 1996, writ denied) (corporate liability for an employee's negligent torts is

governed by the same rules as those that determine the liability of a corporation for

intentional       torts). In other words, an employer is liable for its employee's acts
where they fall within "the course and scope of his employment." Leødon                                                                v.


Kimbrouh Bros. Lumber Co.,484 S.'W.2d 567 (Tex. 1972). The court in Soto                                                               v.


El Paso Natural Gas Co.,942 S.V/.2d 671,680 (Tex. App.-El Paso 1997, writ

                                                                    26
denied) discussed what actions are within the course and scope of employment.

The case aiso serves a prime example to employers of what not to do when faced

with a rogue employee. In Soto, the plaintiff sued her employer, El Paso Natural

Gas, for sex discrimination based on sexual harassment, assault and intentional

infliction of emotional distress ("IIED"). Plaintiff worked as a secretary and was

subjected       to    repeated harassment from             a fellow     employee, who called her

"lopsided" after she underwent a mastectoffiy, made repeated comments to her that

were sexual in nature, and at one point touched her breast while he yelled at her.

Id. at 675. The plaintiff reported most of the incidents to her supervisors,                            and

supervisors witnessed several              of the events. However, the supervisors would
ignore her comments, tell her that "that's Tom," or tell her to ignore Tom and walk

away from him because he would not listen                   to anyone. Id. After        she reported the

inappropriate touching to the Human Resources department, they conducted an

l^.,^^+i^^+:^..
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                           ^^-^1,.1^l   +L^+'T.^*t^    ^^-l--^+   --,^^ ^L.-^:-.^   ¿^--.^^-1 --.^-^^^-^ ^-^)
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created a hostile work environment.                   Id. at 675-76. Despite warnings to                 the

contrary Tom nevertheless continued to harass the plaintiff and stated that he had

set "Human Resources straight."                Id. at 676. It was not until after Plaintiff filed

suit that El Paso finally disciplined Tom by demoting him and advising him to                           "fix

his language." Id.




                                                      27
                   The trial coutt granted summary judgment to the company. Plaintiff

appealed. The court noted that the incident centered around Tom becorning angry

with Plaintiff and berated her for not typing some labels for him in a timely

manner. Id. at 681. The court held that summary judgment was precluded because

the inappropriate touching occurred at work and during regular hours. The court

reasoned that typing was a regular part of                    plaintiff s duties, and the incident   arose

out of Tom's displeasure with her work and not out of personal animosity towards

her. Id. The court also rejected the company's argument that it had taken prompt

remedial action once             it was informed of Tom's               actions based on evidence that

management actively discouraged employees from complaining directly to human

resources (i.e., without frrst going through management) and the company did not

punish or correct Tom's actions until after plaintiff filed her EEOC charge. Id. at

680. In effect, the employer expanded Tom's job duties to include harassing the

^l^i-+ifÊL., rrJ f^:li-^
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                  ln furtherance of the employerts business

                  The employee must have committed the act or omission in furtherance

of the employer's business and "for the accomplishment of the object for which the

employee is employed." Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573,

577 (Tex. 2002); Cosgrove v. Grimes,774 S.W.2d 662, 666 (Tex. 1989); see PJC

7.6. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567,569 (Tex. 1972);

                                                         28
Robertson Tank Lines, Inc.            v. Van Cleave, 468 S.W.2d 354, 357 (Tex. l97I);
(observing that "vicarious liability is imposed only for authorized action in the

furtherance     of an employer's business"). In large part, liability will turn on the

ability of the employer to control the employee. See, e.g., Baptist Memorial,969

S.W.2d at 947. However, courts must consider whether the specific misconduct

was in furtherance of company business and part of the employee's                       job. Minyard,

80 S.\M.3 d at 578-79 (holding it was reversible effor where "court of appeals only

considered wrongdoer's general authority as a store manager and fdidl not include

an analysis of whether [his] defamatory remarks were in furtherance of Minyard's

business and for the accomplishment of the object for which [he] was employed ").

                What is considered scope           of, ernployment?

            To be within the scope of employment, "the conduct must be of the same

general nature as that authorized or incidental to the conduct authorized." Kelly                          v.

Qtn-n AOa
        u/u e
            L). \I/  t'{ 01l   Õa'7 l'I:^-,             E^^+l^--l    I rìô<   .,,-i+ l^-l^l\     /i^+^...^^1
PcvtLvt                                         ^ ^^
                 YY '4\J )L-1) 2./- / \ I tv^. ¡1PP.-L;clòL¡Ctlltl   l77J)    Wl tL llçlllçU,,   \ftlLçIIliXl

quotations and citations omitted); Durand v. Moore, 879 S.W.2d 196, I99 (Tex.

App.-Houston [14th Dist.] 1994, no writ) (same); Soto. 942 S.V/.2d at 680. The

employer need not have approved or authorized the employee's specific action,                             as


long as the employee acted within his or her general authority and for the benefit of

the employer. See, e.g., Soto,942 S.W.2d at 680; Hooper v. Pitney Bowes, Inc.,

895 S.W.2d773,777 (Tex. App.--Texarkana 1995, writ denied); Love,3S0 S.W.2d


                                                   29
at 589. This is true even if an employee's act was contrary to the                 express

directions of the employer. See Oberpriller, 170 S.W.2d at 610; Country Roads,

Inc. v. Witt, 737 S.w.2d 362,364 (Tex. App.-Houston [14th Dist.] 1987, no

writ).

         Liability for Negligent Hiring, Training, Supervision, and Retention

               In   contrast   to   vice-principal and vicarious liability, liability for

negligent hiring, training, supelision,          or   retention arises directly from the

empioyer's conduct. For example an employer can be found liable for negligence

in hiring an employee that the employer knew or should have reasonably known

was incompetent or unfit and thereby created an unreasonable risk of harm to

others. See Wrenn,73 S.W.3d at 496.

                                                   Duty

               In   general, there    is no duty to control a third person's      conduct.

Phillips, 801 S.W.2d       at 525. A duty will          arise however where     a special
relationship exists between the parties, such as that between an employer and its

employees. Id.; Otis Eng'g Corp. v. Clark,668 S.W.zd307,309 (Tex. l9S3). The

employer-employee relationship may create a duty to a third party only         if the third

party's harm is the result of the wrongdoer's employment. Houser v. Smith, 968

S.w.2d 542, 544 (Tex. App.-Austin 1998, no pet.); see LaBella v. Charlie

Thomas, Lnc.,942 S.w.2d 127, 137 (Tex.          App.-Amarillo    1997,   writ denied) ("To
impose liability for negligent hiring, there must be evidence that the plaintiff                                         s


injuries were brought about by reason of the employment of the incompetent

selant."); Robertson v. Church of God, Int'1,978 S.W.2d 120, 125 (Tex.                                        App.-
Tyler 1997, pet. denied) ("[T]here is no question that there must be some

connection between the plaintiff's injury and the fact of employment.").

                 No duty is created if an individual bears no relation to the employer's

business     or if the injury cannot be directly traced back to the fact of                                          the

wrongdoer's employment. Guidry v.                   l{at'l Freight, Lnc.,944 S.W.2d 807, 811
(Tex. App.-Austin 1997, no writ); LaBella,942 S.W.2d at 137. In determining

whether the defendant owed the plaintiff a duty                        in a negligent hiring, training,
supervision, or retention case, courts             will consider          several factors, including the

risk, foreseeability, and likelihood of injury weighed against the social utility of the

actor's conduct, the magnitude of the burden of guarding against the injury, and the

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S.W.2d at309; Houser,968 S.W.2d at 544. Of all these factors, foreseeability                                          of

the risk is the foremost and dominant consideration and required to establish duty

and proximate cause.        Phillips,80l S.W.2d at 525; ïírrenn,73 S.W.3d at 496. But

the employer must not only have some knowledge of the employee's condition, but

the employer must also affirmatively exercise some control over the employee.




                                                     31
See Greater Houston Transp. Co., 801 S.W.2d 523, 526-27; DeLuna                              v. Guynes
Printìng Co. Inc.,884 S.W.2d 206,210 (Tex. App.-El Paso 1994, writ denied).

                                          Foreseeability

               To prove foreseeability in negligent training, retention, or supervision

cases, there must be evidence that the          plaintiffs injuries were brought about                   by

reason of the employment of the incompetent employee. Houser, 968 S.W.2d at

544 (emphasis added); Dieter v. Baker Service Tools (Dieter                   I),739 S.W.2d 405,
408 (Tex" App"-Corpus Christi 1987, writ denied); Porter,900 S.W.2d at 386

(negligent retention) Peek v. Equipment Services, Únc.,906 S.W.2d 529,534 (Tex.

App.-San Antonio 1995, no writ) (holding that there was no basis for negligent

retention, and supervision claims). Without such a required eonnection, "an

employer would essentially be an insurer                of the safety of every person who
happens to come into contact with his employee simply because of his status as an

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at I27.

              In Robertson, for example, the court refused to impose a duty on                            a

church that hired and retained a minister that allegedly sexually assaulted his

massage therapist during message sessions because there was                           no connection
between the hiring      of the minister and the act he committed. Robertson,                          978

S.W.2d at 722. The court stated that "there is no question that there must be some


                                               32
connection between the plaintiff s injury and the fact of employrnent." Id. aI 125.

Plaintiff argued that the church should be held liable for negligent hiring and

retention because she and the minister had discussed religion and he had invited

her to his church. The court rejected this argument and explained "it is not

plausible to conclude that merely discussing one's occupation and employer while

on personal business furnishes a connection between the negligent hiring and the

wrongful conduct of the employee." See id.

             In the Wrenn   ease discr-rssed above foreseeability was a key issue in

the court's decision to reverse the summary judgment granted in favor of the

employer regarding the plaintiffs claim       of   negligent hiring, supervision and

retention. 73 S.W.3d at 499. Plaintiffs evidence for the claim showed that the

rogue supervisor had a history of carrying a buck knife, threatening employees

with a hammer, having weekly confrontations with other employees, and using

profanity.   Id. in adciition, another supervisor knew of the rogue supervisor's
behavior and yet another supervisor was aware of an incident where the rogue

supervisor had knocked an employee down with a forklift and dropped a steel

beam on   him. Id. The court held that this evidence was sufficient to create a fact

issue as to whether the rogue supervisor's assault and resulting injuries "were a

foreseeable consequence   of the femployer's] superyision." Id. at 500. Thus, the

court reversed the summary judgment granted as to the negligent hiring,

                                         JJ
 supervision and retention claim and remanded                   it back to the trial court for furlher
proceedings.        Id.    In this Bryan Black case, the supervisor, Amaya, had direct

knowledge of at least two incidents where Zaffar had had such confrontations with

persons entering the townhome gate that he alleged to have threatened                                to   shoot

him. 'Ihe supervisor took no action on one, and only gave a verbal warning                             on the

other. Zaffar's failure to wear a tie and wearing a wrinkled uniform garnered much

harsher action than the two previous instances of threats and false reports to the

police against persons entering the complex.

                 If there is no evidence          that the rogue employee has not exhibited                    a

prior propensity for violence or assault behavior, a claim for negligent, hiring,

retention, supervision or training            will not survive the summary judgment                       stage.

For example, in Garrett v. Great Western Distributing Co.129 S.W.3d 797 (Tex.

App.-Amarillo         2004, no     pet.). the court upheld a grant of summary judgment on
a nloi-
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know about its employees' propensity for violence.                          ln Garrett, several beer
distributor employees had engaged in a bar fight with the plaintiff while they were

off-duty. Id. at 799. The employees were in their uniforms and had driven their

company trucks to the         bar. One of the employees directed some comments at the

plaintiffs wife, and the fîght ensued.                   id.    The husband and wife sued the

distributor for vicarious liability, vice-principal liability, and negligent supervision
 of its employees. With regard to the negligent supervision claim, the court upheld

the summary judgment in favor of the distributor because there was no evidence

that any of the employees had ever exhibited violent tendencies, engaged in fights,

or otherwise had violent propensities before the fight. As the court stated:

[T]he basis for responsibility lies in the master's own negligence in omitting to

supervise an incompetent for historically violent] employee whom the master

knows or should have known through the exercise                                    of reasonable care was
incompetent [or violent] and thereby created an unreasonable risk                                     of harm        to

others. Id. at 803-04. Because the plaintifß failed to show that the employer knew

or should have known about these propensities prior to the fìght, the court held that

the trial court properly granted summary judgment. That is not the situation in the

Bryan Black case. Patrick Murphy's expert report clearly sets out the fact that

Smith Protective should be liable for inadequate hiring, inadequate training,

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Murphy's affidavit states: "I have also attached my corrected expert repoft which

contain my expert opinions about this case.                         lt   is my opinion that the Smith
Protective Services should have removed Muhammad Zafar from the Oaks of

Woodlake immediately upon leaming                       of Zaffar's claim that a visitor to                        the

property, Nick Collins, had threatened to shoot him and had called the police.

Smith Protective Services' Ruben Amaya verbally counseled Zaf'fiar and gave him


                                                       35
instructions how to diffuse future situations. Smith Protective did not address

Zaffar's attempt to have Mr. Collins arrested for aggravaled assault or                   any

company protocol regarding direct threats against a security officer and how that is

to be handled in the future." Had Zaffar been removed from his position, he would

have never had the opportunity to file the false charges against Bryan Black.


                 Lorum Maintenance of lYuv, Inc. v, Ianni

                 Where there is clear evidence that a supervisor or employer knows         of

an employee's incompetence or violent propensities, courts           will uphold a claim for

negligent, hiring, training, supervision, and retention.        It certainly raises a fact
question that is a jury issue. This also raises the potential for actual and punitive

damages. Recently, in a case from the El Paso Court of Appeals, the court held

that an employer was liable when one       if its employees shot a police officer that had

seen    him in a violent argument with his wife. The incident occurred away from the

job site and while the employee was off-duty.          See_Loram Maintenance        of   Way,

Inc.,   I4l   S.W.3d 722 (Tex.   App.-El   Paso 2004, pet. filed).

                 In Loram, the rogue employee was paft of a crew that               repaired

railroad tracks Id. at726. The crew would work three months at atime, between

thirteen to fourteen hours a day, and up to seven days a week.               Id.   The crew

members would stay         at a hotel paid for by their employer, Loram, and the
employees' wives and girlfriends were permitted to stay with them. Several of the

                                              36
crew members and supervisors would take crystal methamphetamine to stay awake

and alert. The supervisors would give crew members time off to obtain more drugs

for the crew.   Id.   On the day of the incident, Robert Tingle, a crew member, was

"strung out" on crystal meth and retumed to the motel after working a twelve hour

shift. At the motel, Tingle began arguing with his wife, and took her to his car and

threatened her with a    gun. As the car was moving,     she jumped   fiom the car and

screamed for    help. The plaintiff police officer was leaving a restaurant when   he

saw the incident. As he approached Tingle's car, Tingle shot him and left him

severely injured. The police officer sued Loram for, among other things, negligent

retention and negligent supervision. Loram sought summary judgment on the basis

that it owed no duty to the officer and its conduct was not the proximate cause of

his injuries. Id. at 726. The jury returned a verdict in favor of the officer for

$800,000 in actual damages and $500,000 in punitive damages. Id. at727.

            The court upheld ihe jury verdict based on negligent supelision and

retention because the supervisors knew of Tingle's (and the rest of the crews)

pelasive drug use and a prior incident where Tingle had attacked another crew

member's wife with a      knife. Id. at 728. The court held that not only did      the

supervisors have knowledge of Tingle's prior behavior, but concluded that the fìeld

clerk had "some assefted control" over Tingle.     Id.   Thus, the court held that "a

duty was imposed on Loram not because it had mere knowledge of Mr. Tingle's

                                          a-
                                          )t
 encourage drug usage and altered state of mind, that is, his incapacity, but because

 of its negligent exercise of some asserted control over Mr. Tingle once Loram's

 supervisors acted affirmatively        to   prevent   Mr. Tingle from causing         an

 unreasonable risk of harm to others." Id. at729.

              Loram also challenged the legal and factual sufficiency of the jury's

 finding that the employer was the proximate cause of the police officer's injuries

 and that the shooting was foreseeable. Again, the court stated that the evidence

 was sufficient   to support the ju.y finding        because 1) the supervisors had

 knowledge of and encouraged and facilitated of the rampant drug use among the

 crew, 2) despite warnings and complaints, a Lorarn supelvisor ignored Tingle's

 escalating drug abuse and violent behavior, and 3) the same supervisor failed to

 follow the company's drug testing and treatment procedure. Id. at735. Thus, the

 court concluded that" Loram's negligence was a substantial factor in causing the

 offioer's injuries anci the court not say that "that Loram could not have anticipated

 the general danger it created in their negligent conduct." Id. at 736. Accordingly,

 the court affirmed the   jury's verdict and award of actual and punitive   damages.



                               CONCLUSION AND PRAYER


      The areas of negligence were all outlined in the Appellant, Black's responses

to both the No Evidence and Traditional Summary Judgments including the specific


                                             38
elements    of negligence of    inadequate hiring, inadequate training, inadequate

supervision, and negligent retention. Evidence was established of Smith Protective

Service's employee, Zaffar, being in the furtherance of his employer's business and

the duty that arose to control third persons' conduct based upon foreseeability and

upon actual knowledge of Zaffar's actions. The failure of Smith Protective Service

to   act by either counseling, disciplining, inadequately training, inadequately

supervising   or   dismissing Zaffar was clearly set out     in both of Defendant's
Responses   to Sumnìary Judgment. Zaffar's general guard post orders of "deter
criminal activity" were far too vague to deny liability upon course and scope. The

trial coutl erroneously granted the summary judgment when the Appellant had     set

forth substantial evidence of all elements of negligence, duty, foreseeability and

damages, and the summary judgment           in favor of   Appellee Smith Protective

Services, Inc. should be set aside, and a new trial should be granted.


                                       PRAYER

        Appellant Bryan Black, prays that the trial courl's Final Judgment be

 reversed and remanded for trial.

                      STATEMENT OF ORAL ARGUMENT

        Appellant requests Oral Argument.




                                           39
                                             Respectfully submitted,

                                     LAW OFFICES OF PATRICK             h. HUBB
                                   P.C.
                                             BY:Js/PatrickG.Hub
                                                                        lm
                                                   PATRICK G. HUBBARD

                                         ATTOR¡IEY FOR APPELLANT, Bryan
                                         Black




                              CERTIFICATE OF SERVICE

                                     ,.^{-
                                       |
      This is to certifi that on the \    day of March,2015, atrue and correct copy

of the above and foregoing has been served upon counsel of record via e-file and

email as follows:


 Via Email
 Todd H. Tinker, Esq
 Tinkerlaw@Tinkerlaw. com


                                                   Patrick G. Hubbard




                                              40
                CERTIFICATE OF COMPLIANCE

I hereby certify that this Brief contains 9087 words.

                                         /s/ Patrick G. Hubbard
                                       Patrick G. Hubbard




                                  41
