                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo
                               ________________________

                                   No. 07-18-00167-CV
                               ________________________


                             EUGENE HARBIN, APPELLANT

                                              V.

                           CHRISTOPHER FISHER, APPELLEE



                          On Appeal from the County Court at Law
                                   Walker County, Texas
                Trial Court No. 12520V; Honorable Tracy Sorensen, Presiding


                                        June 12, 2019

                             MEMORANDUM OPINION
                     Before CAMPBELL, and PIRTLE and PARKER, JJ.


       Appellant, Eugene Harbin, appeals from a judgment following a bench trial

awarding Appellee, Christopher Fisher, $3,906.44 in damages based upon the theory of

negligent entrustment. Fisher suffered those damages as a result of a vehicular collision

involving his vehicle and Harbin’s vehicle, while it was being operated by Harbin’s fiancée,

Julia Collins. In a single issue, Harbin asserts the evidence at trial was legally insufficient
to support the trial court’s finding that he negligently entrusted his vehicle to Collins.1 We

agree. Accordingly, we reverse the trial court’s judgment and render judgment in Harbin’s

favor.


         BACKGROUND

         In February 2016, Collins was driving a Dodge owned by Harbin, and Fisher was

driving a Chevrolet owned by Robert Harper north on IH 45, a four-lane highway. When

Collins attempted to make a lane change from left to right, Fisher sounded his horn to

gain her attention and warn her of an impending collision. Collins continued to make that

change, and as a result, she struck the vehicle being driven by Fisher. The collision

pushed him off the road where his vehicle struck a tree. Thereafter, Fisher filed an action

in Justice of the Peace Court Number 1 in Walker County against Harbin for negligently

entrusting his Dodge to Collins. A finding was issued in Fisher’s favor and Harbin

appealed to the Walker County Court at Law for a trial de novo. See TEX. R. CIV. P. 506.3

(“A trial de novo is a new trial in which the entire case is presented as if there had been

no previous trial.”).


         In October 2017, a bench trial was held. Prior to trial, the following stipulations

were entered into by the parties: (1) on the date of the collision, Harbin owned the Dodge

Charger involved in the collision; (2) Harbin entrusted his vehicle to Collins; (3) Collins’s




        1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between the precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.


                                                     2
negligence proximately caused the collision with Fisher; and (4) the Chevrolet driven by

Fisher sustained damages of $3,906.44, in addition to $41.00 in court costs.


       Harbin and Collins were the only witnesses at trial. Harbin testified that in February

2016, Collins was his fiancée and they had been living together for three years.2 Prior to

giving her permission to drive his Dodge, she was driving a Chevrolet Malibu under an

insurance policy that insured her and her mother. When her mother needed the use of

the Malibu, Harbin allowed Collins to drive his Dodge on a daily basis. Harbin had

purchased his insurance policy on the Dodge prior to the collision and excluded Collins

from his policy because he believed she was covered on the policy with her mother and

saw no reason to pay extra for additional insurance.


       Harbin also testified that on numerous occasions, he had ridden as a passenger

while Collins was driving. Based on his experience, he considered her a good driver who

paid attention to the road and obeyed traffic laws. He had never known her to receive a

traffic ticket in the three years they were together although he had heard generally that

she had received a couple of traffic tickets years ago. At the time of the collision, she

was a licensed driver.


       Collins testified that in 2014, she was driving the Malibu when she was hit while

picking up her child at school. She also received three convictions for speeding in 2008,

2009, and 2010. She testified that at the time of the collision, she was insured under the




       2 Harbin and Collins have since married. However, for consistency, we will use her maiden name
since they were unmarried at the time of the collision.

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policy issued on the Malibu and had been driving the Dodge about a month. She

considered herself a good driver and had not had a speeding ticket in more than six years.


         In its final judgment issued November 29, 2017, the trial court found in favor of

Fisher and awarded him $3,906.44 in damages and $41.00 in court costs. Thereafter,

the trial court issued its Findings of Fact and Conclusions of Law wherein it found that

Harbin negligently entrusted his Dodge to Collins because she had several moving

violations in the past, was involved in at least one collision prior to her collision with Fisher,

and Harbin had excluded her from his insurance policy on the Dodge prior to the collision.


         STANDARD OF REVIEW

         In conducting a legal sufficiency review, we must consider the evidence in the light

most favorable to the challenged finding and indulge every reasonable inference in

support of it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We also credit

favorable evidence if reasonable jurors could, while disregarding contrary evidence

unless reasonable jurors could not. Id. at 827. A challenge to the legal sufficiency will be

sustained when, among other things, the evidence offered to establish a vital fact does

not exceed a scintilla.3 Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.

2006).     In addition, so long as the evidence falls within the zone of reasonable

disagreement, we may not invade the fact-finding role of the jurors, who alone determine

the credibility of the witnesses, the weight to be given their testimony, and whether to

accept or reject all or part of their testimony. Wilson, 168 S.W.3d at 822. The final test



        3 Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create

a mere surmise or suspicion of fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert.
denied, 541 U.S. 1030, 124 S. Ct. 2097, 158 L. Ed. 2d 711 (2004).


                                                     4
for legal sufficiency must always be whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review; id., and generally, if an appellate

court sustains a “no evidence” or “legal sufficiency” issue, the appellate court must

reverse and render judgment. See In re State ex rel. K.D.C., 78 S.W.3d 543, 551 (Tex.

App.—Amarillo 2002, no pet.) (citing Chevrolet, Inc. v. Lewis, 709 S.W.2d 176, 176 (Tex.

1986)).


       NEGLIGENT ENTRUSTMENT

       To establish liability under the theory of negligent entrustment, Fisher was required

to establish that: (1) Harbin entrusted his Dodge to Collins; (2) Collins was an unlicensed,

incompetent, or reckless driver; (3) Harbin knew or should have known at the time of

entrustment that Collins was an unlicensed, incompetent, or reckless driver; (4) Collins

was negligent on the occasion in question; and (5) Collins’s negligence proximately

caused the accident. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex.

2007). See Pesina v. Hudson, 132 S.W.3d 133, 137 (Tex. App.—Amarillo 2004, no pet.).

Evidence that the owner knew or should have known of negligent behavior is insufficient

to establish incompetence or recklessness. 4Front Engineered Sols., Inc. v. Rosales,

505 S.W.3d 905, 910-11 (Tex. 2016).


       Although an individual’s driving record and accident history are relevant to show

recklessness, evidence of isolated or remote events is insufficient. Aboushadid v. Ward,

No. 07-05-00140-CV, 2007 Tex. App. LEXIS 885, at *12 (Tex. App.—Amarillo Feb. 5,

2007, no pet.) (mem. op.) (stating that “Courts have uniformly held individual or isolated

driving violations are not evidence of recklessness or incompetence” in suit to establish

negligent entrustment). See Avalos v. Brown Auto. Ctr., Inc., 63 S.W.3d 42, 49 (Tex.

                                             5
App.—San Antonio 2001, no pet.). Within the context of negligent entrustment, a driver

is reckless when his or her driving presents a danger to others. McGuire v. Wright, No.

96-50931, 1998 U.S. App. LEXIS 5711, at *8-9 (5th Cir. 1998) (per curiam) (interpreting

Texas law). See, e.g., Green v. Texas Elec. Whol., Inc., 651 S.W.2d 4, 6 (Tex. App.—

Houston [1st Dist.] 1982, writ dism’d by agrt.) (basis of responsibility under doctrine of

negligent entrustment is the owner’s own negligence in permitting his motor vehicle to

become a dangerous instrumentality by putting it into a driver’s control with knowledge of

the potential danger existing by reason of the incompetence or reckless nature of the

driver).


         ANALYSIS

         The first, fourth, and fifth elements of negligent entrustment were the subject of

stipulations prior to trial and are not at issue here. Neither is there any dispute whether

Collins held a valid driver’s license permitting the operation of the type of vehicle she was

driving at the time of the collision. On appeal, Harbin asserts Fisher offered no evidence

at trial that Collins was an incompetent or reckless driver or that he knew or should have

known that she was incompetent or reckless when he entrusted her with his Dodge. We

agree.


         For its Findings of Fact and Conclusions of Law, the trial court relied on three

pieces of evidence to find that Collins was an incompetent or reckless driver and that

Harbin should have known that she was incompetent or reckless when he entrusted her

with driving his Dodge: (1) speeding tickets she received more than six years prior to the

collision; (2) her involvement in at least one collision prior to February 15, 2016; and (3)

the fact that she had been excluded from Harbin’s insurance policy. We find that these

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three pieces of evidence fail to raise a fact issue at trial whether Collins was an

incompetent or reckless driver. That same evidence also fails to establish that Harbin

knew or should have known that Collins was incompetent or reckless when he entrusted

her with his Dodge.


       First, although evidence of a person’s driving record and accident history may be

relevant to show recklessness, evidence of isolated or remote instances are insufficient

to raise a fact issue when they are too remote to create a fact issue regarding the driver’s

recklessness.    See Wright v. Weaver, 516 Fed. Appx. 306, 309 (5th Cir. 2013)

(automobile collision that resulted in driver’s arrest for public intoxication that occurred

seven years before the incident too remote). Here, evidence of three speeding tickets

that were eight, seven, and six years prior to an accident involving an unsafe lane change

were too remote to create a fact issue regarding the driver’s recklessness or

incompetence when Harbin entrusted his vehicle to her. See Avalos, 63 S.W.2d at 49

(holding seven-year-old driving-while-intoxicated conviction was too remote to create a

fact issue regarding the driver’s recklessness). Second, her prior collision also fails to

raise a fact issue because no citation was issued by law enforcement and no fault was

determined. Weaver, 516 Fed. Appx. at 310. See Hines v. Nelson, 547 S.W.2d 378, 386

(Tex. App.—Tyler 1977, no pet.) (“[A] driving record containing listed violations or

accidents in which no indication of guilt or fault is indicated is insufficient to show that the

individual concerned was a habitually reckless and incompetent driver.”); Monroe v.

Grider, 884 S.W.2d 811, 815 (Tex. App.—Dallas 1994, writ denied) (“Involvement in a

previous collision alone does not create an inference or conclusion that a driver is

incompetent or reckless.”). In addition, the only evidence of record regarding the prior


                                               7
accident was Collins’s testimony that the accident was minor and the other driver was at

fault.


         Finally, the trial court determined that Harbin knew Collins was an incompetent or

reckless driver when he entrusted his Dodge to her because he excluded Collins from his

insurance policy prior to the collision. The only record evidence at trial, however, was

that he excluded her from his policy because he believed she was covered by another

policy insuring her and her mother, making an additional policy redundant and more

expensive. There is no record evidence to indicate otherwise. Further, Harbin testified

that based on his observations, he believed Collins was a good driver. See Batte v.

Hendricks, 137 S.W.3d 790, 791 (Tex. App.—Dallas 2004, pet. denied) (“The possession

of a valid, unrestricted driver’s license is evidence of a driver’s competency absent any

evidence to the contrary.”). See also Wright, 1998 U.S. App. LEXIS 5711, at *7 (in the

absence of any knowledge that entrustor knew, or should have known that driver was

reckless, there was no duty to investigate her driving record).


         Here, Fisher asserts that when Harbin chose to exclude Collins from his insurance

policy, he impliedly made a representation that she was unsafe, unfit, and a high-risk

driver.4 Fisher has not cited any authority, nor have we found any, holding that the

absence of automobile liability insurance, even if known to the entrustor, is a special

         4 We note that the record does not contain Harbin’s insurance policy in effect at the time of the
collision. Instead, Fisher relies on Harbin’s testimony that Collins was excluded and Zamora v. Dairyland
County Mut. Ins. Co., 930 S.W.2d 739, 740-41 (Tex. App.—Corpus Christi 1996, writ denied), wherein the
court held that public policy supported the validity of a named driver exclusion in an automobile insurance
policy and the insurer was not obligated under the policy to provide the insured a defense against a claim
of negligent entrustment. The driver in Zamora suffered from epileptic seizures, had been advised not to
drive, and did not possess a driver’s license. Id. at 742 (Yanez, J., concurring). Hence, Zamora is
inapplicable here.



                                                    8
condition by itself that is a sufficient basis, as a matter of law, upon which a negligent

entrustment claim might be based. Wright, 1998 U.S. App. LEXIS 5711, at *12-13 (while

a failure to maintain insurance is “most imprudent,” for negligent entrustment purposes, it

does not define per se a driver’s ability to operate a vehicle or translate into a finding that

the entrustor should have known the driver was reckless). Moreover, Harbin testified that

he believed Collins had insurance, at all times, under the policy her mother provided.


       Having reviewed the entire record, we find that the evidence offered to establish

that Collins was an incompetent or reckless driver, or that Harbin knew or should have

known that she was when he entrusted the vehicle to her, was legally insufficient to

establish negligent entrustment. Chapman, 118 S.W.3d at 751. That is, the evidence is

so weak as to do nothing more than create a mere surmise or suspicion of fact. Id.

Accordingly, we sustain Harbin’s single issue and render judgment in his favor.


       CONCLUSION

       The trial court’s judgment in favor of Fisher is reversed in all respects and judgment

is rendered that Fisher take nothing.




                                                   Patrick A. Pirtle
                                                       Justice




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