                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 ATLANTIC INDUSTRIAL INC.,
 A/K/A ATLANTIC SCAFFOLDING                     §                 No. 08-12-00093-CV
 COMPANY AND FAUSTINO
 MURILLO,                                       §                    Appeal from

                        Appellants,             §                 327th District Court

 v.                                             §             of El Paso County, Texas

 EUGENE BLAIR, III,                             §                  (TC # 2006-5947)

                        Appellee.               §

                                          OPINION

       Atlantic Industrial, Inc. a/k/a Atlantic Scaffolding Company (“Atlantic”) and Faustino

Murillo appeal a judgment entered against them arising from an automobile accident.

                        FACTUAL AND PROCEDURAL SUMMARY

       A serious automobile accident occurred in El Paso on Sunday, November 20, 2005.

Faustino Murillo, driving a pickup truck southbound at an estimated 100 m.p.h. on a roadway

with a speed limit of 55 m.p.h., crossed into the northbound lanes of travel and sideswiped a

minivan driven by Eugene Blair. Murillo then struck another vehicle, lost the front wheels of his

truck, and traveled another 200 feet before coming to rest. Murillo was subsequently arrested for

driving while intoxicated. Blair suffered severe back injuries as a result of the accident. Murillo

conceded at trial that he was solely responsible for the wreck.
        Atlantic Industrial, Inc. is a scaffolding company, and has a contract for the provision of

scaffolding at a refinery in El Paso. At the time of the accident, Murillo was employed as

Atlantic’s on-site manager. Blair alleges that Murillo was on call at the time of the accident, and

that he was driving to work. Blair relies on these and other facts to establish that Murillo was in

the course and scope of his employment. Alternatively, Blair alleged negligent entrustment

based on Atlantic’s provision of a driving allowance to Murillo.

        The case was tried to a jury in November 2011. The trial court submitted three liability

questions: (1) a respondeat superior question inquiring whether Murillo was in the scope of his

employment with Atlantic at the time of the accident, (2) a negligent entrustment question as to

Atlantic, and (3) a proportionate responsibility question seeking to apportion fault between

Atlantic and Murillo. As Murillo stipulated to having solely caused the accident, no negligence

or proximate causation question was submitted with regard to him. The jury answered both the

respondeat superior and negligent entrustment questions affirmatively, apportioned fault

between Atlantic and Murillo at 60% and 40% respectively, and found total damages in the

amount of $604,532.80. No gross negligence or exemplary damages questions were submitted to

the jury.

        The trial court conducted a hearing to enter judgment on February 2, 2012. Blair’s

counsel asked the court to disregard the jury’s answer to the apportionment of fault and impose

joint and several liability against Atlantic and Murillo. The trial court agreed, and entered

judgment against Atlantic and Murillo jointly and severally on February 8, 2012. Atlantic

complains on appeal that there was no evidence Murillo was within the course and scope of his

employment at the time of the accident, or that it negligently entrusted Murillo with a vehicle.

Accordingly, it argues that the trial court erred in denying its motions for directed verdict and



                                                 2
judgment notwithstanding the verdict on these issues, and that it erred in submitting course and

scope and negligent entrustment questions to the jury.

                                    STANDARD OF REVIEW

        Judgment notwithstanding a jury verdict is proper only when the law does not permit

reasonable jurors to reach a different result. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.

2005). A trial court may render judgment N.O.V. only if a directed verdict would have been

proper, or if no evidence supports the jury’s findings. TEX.R.CIV.P. 301. The test for legal

sufficiency is the same for judgments notwithstanding the verdict, directed verdicts, and

appellate no-evidence review. City of Keller, 168 S.W.3d at 823. We will thus review these

points together.

        When reviewing for legal sufficiency, we consider the evidence in the light most

favorable to the verdict and indulge every reasonable inference that would support it. Id. We

credit favorable evidence if a reasonable juror could, and disregard contrary evidence unless a

reasonable juror could not. Id. If the evidence at trial would enable reasonable and fair-minded

people to find the facts at issue, then the evidence is legally sufficient. Id. Because jurors are the

sole judges of witness credibility and the weight to give to testimony, an appellate court cannot

substitute its opinion for that of the jury. Id. at 819.

                                    RESPONDEAT SUPERIOR

        Generally, a person has no duty to control the conduct of another. Otis Engineering Corp.

v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Under the theory of respondeat superior, however,

an employer may be vicariously liable for the negligent acts of its employee if the employee’s

actions are within the course and scope of his employment. Baptist Memorial Hospital System v.

Sampson, 969 S.W.2d 945, 947 (Tex. 1998). This requires proof that the employee is acting: (1)



                                                    3
within the general authority granted by the employer, (2) in furtherance of the employer’s

business, and (3) for the accomplishment of an object for which he is employed. NCED Mental

Health, Inc. v. Kidd, 214 S.W.3d 28, 34 (Tex.App.--El Paso 2006, no pet.), citing Buck v. Blum,

130 S.W.3d 285, 288 (Tex.App.--Houston [14th Dist.] 2004, no pet.). The employee’s acts must

be of the same general nature as the conduct authorized or incidental to the conduct authorized to

be within the scope of employment. Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573,

577 (Tex. 2002), citing Smith v. M Sys. Food Stores, Inc., 156 Tex. 484, 297 S.W.2d 112, 114

(1957). Accordingly, “if an employee deviates from the performance of his duties for his own

purposes, the employer is not responsible for what occurs during that deviation.” Id. citing ITT

Consumer Fin. Corp. v. Tovar, 932 S.W.2d 147 (Tex.App.--El Paso 1996, writ denied).

       The accident occurred on a Sunday afternoon at approximately 2:45 p.m. Murillo had

been driving around El Paso for several hours beforehand.           He had no “pre-designated

destination,” but was instead just driving aimlessly, thinking about his marital problems and

pending divorce. He left his residence early that morning around 6:30 a.m. Although he recalled

stopping at a grocery store and a gas station, he could recall virtually no other details about

where he had been. He had a bottle of whiskey in his truck and began drinking around 10 a.m.

Sundays were not regular work days for Murillo, but he was on call anytime the refinery shut

down its operations for maintenance, an event referred to as a “turnaround,” requiring the

erection of scaffolding. Murillo testified that the refinery was not in a turnaround on the day of

the accident, but that it might have been experiencing an “outage,” which is a smaller version of

a turnaround. Nonetheless, Murillo conceded that he was also on call during outages “most of




                                                4
the time,” and may have been that day.1 While Murillo denied that he had been anywhere near

the refinery on the day of the accident, the evidence revealed that he was north of it at the time of

the accident, heading in a southerly direction. Murillo was provided with an identification hang-

tag for his truck that was necessary to gain access to the refinery. He hung the tag from his

rearview mirror when he was at work, but always placed it in his glove box when he was not.

The tag was hanging from the vehicle’s mirror at the time of the accident. Murillo’s cell phone

records indicate that he made several telephone calls while he was cruising around town. Five of

these calls were made between 9 a.m. and 10 a.m. to a local El Paso telephone number that

Murillo could not identify. Blair’s attorney inquired whether this was the telephone number of

an Atlantic employee, but Murillo could not recall. Around 11 a.m., Murillo telephoned his

direct supervisor at Atlantic, Richard Williams. Murillo could not recall the specifics of this

conversation, except that it partially concerned Murillo’s marital difficulties. He first denied that

he and Williams discussed work, but then conceded that it was possible. Although the El Paso

police officers took an inventory of the items in Murillo’s truck prior to arresting him, they did

not attempt to inventory the contents of the bed of his pickup, as it was covered with a locked,

fiberglass bed cover. Murillo claimed that he was not carrying any tools or other work related

materials and that he had not made any purchases on Atlantic’s behalf that day. At best, these

facts enabled the jury to reasonably conclude that Murillo was on call at the time of the accident.

Based on the general contradictory nature of Murillo’s testimony as a whole, the jury also could

have reasonably concluded that Murillo was on his way to the refinery.                           Standing alone,

however, these facts do not establish respondeat superior liability. Being subject to call, without


1
  Although he was not specific as to exact dates, Murillo also testified that the refinery had gone through a regular
turnaround during the month of November of 2005 (the month of the accident), and agreed that as the site manager,
he was “on duty at all times” during a turnaround.


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more, is insufficient to place an employee within the course and scope of his employment. See J

& C Drilling Co. v. Salaiz, 866 S.W.2d 632, 637 (Tex.App.--San Antonio 1993, no writ); Smith

v. Garza, 432 S.W.2d 142, 144-145 (Tex.Civ.App.--Houston [1st Dist.] 1968, no writ.); and

Thomas v. Travelers Insurance Company, 423 S.W.2d 359 (Tex.Civ.App.--El Paso1967, writ

ref’d). And even assuming that the evidence was sufficient to support a determination that

Murillo was on his way to the refinery at the time of the accident, an employee generally is not in

the course and scope of employment while driving a vehicle to and from his place of work.

London v. Texas Power & Light Co., 620 S.W.2d 718, 720 (Tex.Civ.App.--Dallas 1981, no writ).

An exception to this general rule exists when an employee “has undertaken a special mission at

the direction of his employer or is otherwise performing a service in furtherance of the

employer’s business with the express or implied approval of the employee.” Chevron, U.S.A.,

Inc. v. Lee, 847 S.W.2d 354, 356 (Tex.App.--El Paso 1993, no writ), citing Gebert v. Clifton, 553

S.W.2d 230, 232 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ dismissed).

       The strongest inference that can be drawn from the evidence is that Murillo was driving

towards the refinery to perform work related to erecting scaffolding for a turnaround. But this

sort of work was a normal function of his employment, as was being on call during a turnaround.

While Murillo had spoken to his direct supervisor some three and-a-half hours prior to the

accident, there is no evidence that he was given special instructions or tasks. Normal travel to

his place of employment does not qualify as a special mission. See Lee, 847 S.W.2d at 356.

       Blair next relies on the fact that Atlantic provided Murillo with a decal for the side of his

truck bearing Atlantic’s logo and telephone numbers. The decal was on the truck at the time of

the accident. Under the “branded vehicle doctrine,” a vehicle displaying a company’s logo

supports an inference or presumption that the company owns the vehicle and that its driver is an



                                                6
agent of the company. Rodriguez v. United Van Lines, Inc., 21 S.W.3d 382, 383-84 (Tex.App.--

San Antonio 2000, pet denied); Kimbell Milling Co., v. Marcet, 449 S.W.2d 100, 103 (Tex.App.-

-San Antonio 1969, no writ).        As noted in Rodriguez, “the very nature of the doctrine

contemplates that the opposing party may bring forth evidence to refute ownership.” Id., citing

Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 358 (Tex. 1971). Thus, conducting a

review of both the evidence in support of the branded vehicle doctrine as well as the facts

rebutting it is not inconsistent with the standards of a no-evidence review. Id. The presumption

of agency under the doctrine--i.e., that the driver was the company’s employee and was within

the   course   and   scope    of   his   employment--stems   directly   from   the   company’s

presumed ownership of the vehicle. Hunsucker v. Omega Industries, 659 S.W.2d 692, 695-697

(Tex.App.--Dallas 1983, no writ); Walker v. Johnston; 236 S.W.2d 534, 541 (Tex.Civ.App.--San

Antonio 1951, writ dism’d).

       Murillo’s testimony effectively rebutted any inference that could have otherwise been

drawn under the branded vehicle doctrine. Murillo testified that he, not Atlantic, owned the

truck he was driving at the time of the accident. The logo was on the truck for identification

purposes while at the refinery. But the logo was also on the truck whenever Murillo used the it

for his own purposes, as it was his personal vehicle that he used for transportation every day.

We sustain Atlantic’s points of error regarding respondeat superior. The evidence adduced at

trial is legally insufficient to support a determination that Murillo was within the course and

scope of his employment with Atlantic at the time of the accident. There was no evidence that

Murillo was acting in the furtherance of Atlantic’s business or for the accomplishment of an

object for which he was employed.




                                               7
                                NEGLIGENT ENTRUSTMENT

       Blair’s second vicarious liability theory against Atlantic is negligent entrustment. Where,

as here, no gross negligence claim is submitted, negligent entrustment serves not as an

independent cause of action, but as manner of establishing vicarious liability. Rosell v. Central

West Motor Stages, Inc., 89 S.W.3d 643, 654 (Tex.App.--Dallas 2002, pet. denied), citing Estate

of Arrington v. Fields, 578 S.W.2d 173, 178 (Tex.Civ.App.--Tyler 1979, writ ref’d n.r.e.). As

such, negligent entrustment and respondeat superior are mutually exclusive modes of recovery.

Id.

       To prevail on a negligent entrustment theory, a plaintiff must prove that: (1) the owner

entrusted the automobile, (2) to an unlicensed, incompetent, or reckless driver, (3) whom the

owner knew or should have known was unlicensed, incompetent, or reckless, (4) the driver was

negligent, and (5) the driver’s negligence proximately caused the accident and the plaintiff’s

injuries. Goodyear Tire and Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).

       Several Texas courts have concluded that ownership of the vehicle is not absolutely

required. See Fox-Taylor v. Auto Market, Inc., No. 03-08-00158-CV, at *1 n.1 (Tex.App.--

Austin Aug. 15, 2008, no pet.)(mem. op.); Morris v. JTM Materials, Inc., 78 S.W.3d 28, 52

(Tex.App.--Fort Worth 2002, no pet.); De Blanc v. Jensen, 59 S.W.3d 373, 376 (Tex.App.--

Houston [1st Dist.] 2001, no pet.); Rodriguez v. Sciano, 18 S.W.3d 725, 728 (Tex.App.--San

Antonio 2000, no pet.); Loom Craft Carpet Mills, Inc. v. Gorrell, 823 S.W.2d 431, 432

(Tex.App.--Texarkana 1992, no writ). These cases hold that a non-owner may be liable for

negligent entrustment when it has the right to control the vehicle. “[I]t is also essential that the

party sought to be held legally responsible have the right of control over the vehicle.” McCarty




                                                 8
v. Purser, 379 S.W.2d 291, 294 (Tex. 1964). See also Fiallos v. Pagan-Lewis Motors, Inc., 147

S.W.3d 578, 584 (Tex.App.--Corpus Christi 2004, pet. denied).

        Turning to the facts relevant to the jury’s affirmative negligent entrustment finding, there

is no question that Murillo was a reckless driver. Murillo had a long history of arrests for driving

while intoxicated. He had two out-of-state DWI arrests prior to the accident--one in Colorado,

and one in Oregon. He also had three DWI arrests in Texas before this accident, at least two of

which resulted in convictions. There was also evidence that Atlantic knew of at least some of

Murillo’s DWI arrests. In fact, one of Murillo’s supervisors at Atlantic provided the funds for

Murillo to bond out of jail following one of his these arrests. The only remaining issues are the

ownership and right of control of the truck Murillo was driving.

        There is no dispute that Murillo was the owner of the pickup. The parties do dispute

whether Atlantic nonetheless had a right of control. In support of this element of negligent

entrustment, Blair relies on a monthly vehicle allowance that Atlantic paid to Murillo. It was

Atlantic’s practice to either provide a company vehicle to managers like Murillo or to

compensate them for the expense of using their own vehicle. Atlantic was paying Murillo a

vehicle allowance at the time of the accident. Specifically, Murillo received an allowance of

$500 a month which was later increased to $750 per month. Atlantic, in turn, received $850 a

month from the refinery for Murillo’s use of his truck. In other words, under the contract

between Atlantic and the refinery, Atlantic received more for the use of Murillo’s truck than it

paid to Murillo as a vehicle allowance. We are aware of no Texas case holding that the

provision of a vehicle allowance, without more, subjects an employer to liability via negligent

entrustment.2 This court has previously considered an analogous case. See Williams v. Chaney,


2
   Likewise, Atlantic’s provision of a vehicle allowance to Murillo does not itself establish respondeat superior
liability. Several Texas courts, including this court, have so held. See, e.g., Arbelaez v. Just Brakes Corp., 149

                                                        9
620 S.W.2d 809, 810 (Tex.Civ.App.--El Paso 1981, writ ref’d n.r.e.). There, an employer loaned

his unlicensed employee funds to buy a pickup truck and took repayment out of the employee’s

salary. Id. The employer also paid for the employee’s purchases of oil and gas for the truck,

which he likewise took out of the employee’s pay. Id. Before the employee had fully repaid the

loan, he was involved in a serious accident while operating the truck. Id. This court held that the

employer could not be liable for negligent entrustment under these facts because he lacked any

right of control. Id. “There is nothing in that evidence that would give the [employer] such legal

control over the pickup as would give him the right to turn it over to [the employee] or to deprive

him of its use. It was simply not his to entrust.” Id.; see also Rush v. Smitherman, 294 S.W.2d

873, 875 (Tex.Civ.App.--San Antonio 1956, writ ref’d). A more recent case has also considered

the liability of a non-owner under a negligent entrustment theory. See De Blanc, 59 S.W.3d at

376. There, the survivors of a woman killed by an intoxicated driver sued the driver’s parents.

Id. at 374. The parents did not own the truck; their adult son was the legal owner. Id. However,

the parents had previously exercised some control by moving the truck to their home while their

son was incarcerated in a rehabilitation facility. Id. at 375. When their son was released, the

parents attempted to keep him from driving, but he regained possession and began driving it,

ultimately resulting in the accident that was the basis of the suit. Id. The plaintiffs argued that

the parents’ earlier display of control sufficiently supported their negligent entrustment claim.

Id. at 376. The court disagreed, holding that “[r]egardless of whether [the] parents exercised

control over the truck when [their son] was incarcerated, they did not have the right to control

it.” [Emphasis in original]. Id. Cases like Williams v. Chaney, Rush, and De Blanc establish



S.W.3d 717, 727 (Tex.App.--Austin 2004, no pet.); Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907
(Tex.App.--Corpus Christi 1988, no writ); London, 620 S.W.2d at 719; and ACME Energy Services, Inc. v. Aranda,
08-02-00205-CV, 2004 WL 868486, at *3 (Tex.App.--El Paso April 22, 2004, pet. denied)(mem. op.).


                                                     10
that while a non-owner can be liable for negligent entrustment, liability can only flow from the

right to control the vehicle. Williams, 620 S.W.2d at 810; Rush, 294 S.W.2d at 875; and De

Blanc, 59 S.W.3d at 376. Without control there can be no liability. McCarty, 379 S.W.2d at

294. The fact that Atlantic paid a vehicle allowance to Murillo did nothing to vest it with control

over Murillo’s truck. Atlantic paid the monthly vehicle allowance to Murillo no matter how

many miles he drove. Murillo was not required to account for how he used the truck or how he

spent the vehicle allowance. Murillo explained that while there were rules he had to follow

when he used his truck at the refinery, when he was not working he could use the truck in any

manner he saw fit.

       We sustain Atlantic’s points of error regarding negligent entrustment. The evidence

presented at trial conclusively established that Atlantic did not own Murillo’s truck, and was

otherwise legally insufficient to support a determination that Atlantic had any right of control.

                                   ENTRY OF JUDGMENT

       Finally, both Atlantic and Murillo complain that the trial court erred in disregarding the

jury’s answer to the apportionment of fault and imposing joint and several liability. Having

sustained Atlantic’s points of error attacking the findings of respondeat superior and negligent

entrustment, the apportionment of fault is immaterial and we need not address it.

                                  BLAIR’S CROSS APPEAL

       In a cross point, Blair challenges the trial court refusal to charge the jury on direct

liability, a general negligence question pertaining to Atlantic. This argument is premised on the

argument that Atlantic, in light of its knowledge of Murillo’s reckless driving history, should

have foreseen that transferring Murillo to El Paso to work with no immediate supervision at a job

that required him to drive would endanger the general public.



                                                 11
         As a general rule, “an employer owes no duty to protect the public from the wrongful acts

of its off-duty employees that are committed off the work site.” Nabors Drilling, U.S.A., Inc. v.

Escoto, 288 S.W.3d 401, 405 (Tex. 2009). An exception exists “when, because of an employee’s

incapacity, an employer exercises control over the employee.” Otis Engineering Corp. v. Clark,

668 S.W.2d 307, 311 (Tex. 1983). In that limited circumstance, the employer owes a duty to

third persons to act with reasonable care, even if the employer initially had no duty to act. Id.

This stems from the rule that “[o]ne who voluntarily undertakes an affirmative course of action

for the benefit of another has a duty to exercise reasonable care that the other’s person or

property will not be injured thereby.” Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d

593, 597 (Tex. 2006), quoting Colonial Sav. Ass’n v. Taylor, 544 S.W.2d 116, 119-20 (Tex.

1976).

         For this special duty to third persons to arise, however, the employer must not only have

some knowledge of the employee’s intoxication or incapacity, but must also perform some

affirmative act of control over the employee. DeLuna v. Guynes Printing Co. of Texas, Inc., 884

S.W.2d 206, 210 (Tex.App.--El Paso 1994, writ denied). Simply knowing that an employee is

intoxicated or incapacitated is not enough for the duty to arise. Otis Engineering, 668 S.W.2d at

309; Greater Houston Transportation Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). The

duty is instead triggered by the employer’s affirmative exercise of control over the incapacitated

employee. Otis Engineering, 668 S.W.2d at 309, 311.

         For instance, in Otis Engineering, a duty to third persons arose when an employer

instructed an extremely intoxicated employee to leave work because of his intoxication and

escorted him to his vehicle in the parking lot. Id. at 308. The employee caused a fatal accident

while driving home, killing two women. Id. The Supreme Court held that the employer owed a



                                                12
duty to third persons not because it knew the employee was intoxicated, but because it exercised

affirmative control by sending the employee home. Id. at 311; Phillips, 801 S.W.2d at 526.

Once the employer took that affirmative step, it had a duty to act reasonably by calling the

employee’s wife or having another employee drive him home. Id.

         The facts here do not implicate the Otis exception. There is no evidence that Atlantic

was aware of Murillo’s intoxication on the day of the accident, or that it exercised control over

him as a result of any such knowledge. Further, any control that Atlantic exercised over Murillo

prior to his intoxication on the day of the accident will not trigger the exception. “Otis requires

an affirmative act of control following, and prompted by, the employee’s incapacity.” Nabors

Drilling, 288 S.W.3d at 407, citing Otis Engineering, 668 S.W.2d at 311. “We have never

extended Otis to create a duty where an employer’s only affirmative act of control preceded the

employee’s shift and incapacity and amounted only to establishing work conditions that may

have caused or contributed to the accident.” Id. Accordingly, we overrule Blair’s sole cross

point.

         We reverse and render judgment that Blair take nothing against Atlantic. The judgment

in all other respects is affirmed.


August 28, 2014
                                      ANN CRAWFORD McCLURE, Chief Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.




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