Opinion issued January 28 , 2014

In The 

## Court of Appeals For The 

## First District of Texas

NO. 01
- 13
- 00406
- CV

OMORINSOLA OGUNBANJO , Appellant

v . DON MCGILL OF WEST H OUSTON, LTD . , Appellee
On Appeal from the 269th District Court Harris County, Texas Tri al Court Cause No. 2012
- 00308

MEMORANDUM OPINION Omorinsola Ogunbanjo appeals the trial court’s rendition of summary judgment in favor of Don McGill of West Houston, Ltd. Ogunbanjo sued Don McGill, alleging causes of action for negligence and gross negli gence. Don2 McGil l moved for summary judgment on all of Ogunbanjo’s claims. The trial court granted Don Mc Gill’s motion, rendering a take

- nothing judgment against Ogunbanjo. In a single issue, Ogunbanjo contends that the trial court erred in granting sum mary judgment. We affirm. Background According to Ogunbanjo’s deposition testimony, she took her car to be serviced at a Don McGill dealership in October 2011 . After dropping off her car, she was told to wait in the waiting room for the driver of the shu ttle service to take her home. While she was waiting, a Don McGill salesman , John Thompson, offered to give her a ride home. They left the dealership in Thompson’s personal vehicle. While driving to Ogunbanjo’s house, Thompson tried several times to

rem ove Ogunbanjo’s hat and to lift up her skirt. She repeatedly hit h is hand and told him to stop. When they arrived at her house, Thompson tried to touch her butt ocks as she was getting out of the car. The next day, Ogunbanjo returned to the dealership wi th her uncle and brother to report the incident to the manager. The manager immediately fired Thompson

. Ogunbanjo sued Don McGill, contending that Don McGill was negligent in failing to provide a safe shuttle service, to follow proper management and
supe rvision policies, to provide adequate supervision of its employees, and to warn3 her of the dangers of its negligence. She also alleged that th ese failures were conscious or intentional and therefore constituted gross negligence. After the case had been pending for a year, Don McGill moved for summary judgment , arguing that there was no evidence to support Ogunbanjo’s claims for gross negligence and mental anguish, and that Ogunbanjo’s negligence claim failed on traditional and no

- evidence grounds . T he t rial court granted the motion. Discussion Ogunbanjo contends that the trial court erred in granting Don McGill’s summary judgment motion . She argues that, because there is a fact issue regarding whether Don McGill was negligent, summary judgment on her cl aims for negligence, gross negligence, and mental anguish damages was also improper. A. Standard of Review We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary ju dgment without specifying the grounds for granting the motion, we must uphold the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch Power, Inc. , 186 S.W.3d 145, 148 (Tex. App.

— Houston [1st Dist.] 2005, pet. denied). When a pa rty has filed both a traditional and no

- evidence summary judgment motion, we typically first review the propriety of the summary judgment4 under the no

- evidence standard. See T EX
. R. C IV
. P. 166a(i); Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 200 4). If the no

- evidence summary judgment was properly granted, we need not reach arguments under the traditional motion for summary judgment. Ford Motor Co. , 135 S.W.3d at 600. To prevail on a no

- evidence motion for summary judgment, the movant
must est ablish that there is no evidence to support an essential element of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial. See T EX
. R. C IV
. P. 166a(i); Hahn v. Love , 321 S.W.3d 517, 523

– 24 (Tex. App.

— Houston [1st Dist.] 2009 , pet. denied). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to each of the elements specified in the motion. Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006) ; Hahn , 321 S.W.3d at 524. In a traditional summary judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should
gra nt judgment as a matter of law. T EX
. R. C IV
. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous . Fin. Corp. , 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment must conclusively negate at least one essential element of each of the plaintiff’s causes of action or5 conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997).
B. Negligence In its motion for summary judgment, Don McGill asserted that Ogunbanjo ’s negligence claims could not survive summary judgment because she could adduce no evidence to rai se a fact issue regarding whether Don McGill could be held liable under the theory of negligent hiring , and because the evidence showed that Don McGill was not liable under the theory of respondeat superior

. With respect to Ogunbanjo’s negligent hiring cl aim, Don McGill argued that there was no evidence that Thompson’s conduct was a foreseeable consequence of his hiring. Don McGill argued that it was not liable under the theory of respondeat superior because Thompson’s actions were not within the course a nd scope of his employment. 1. Negligent hiring The elements of negligence are the existence of a duty, a breach of that duty, and damages proximately caused by the breach. Kroger Co. v. Elwood , 19 7 S.W.3d 793, 794 (Tex. 2006). A claim of negligent hiring is based on an employer’ s direct negli gence . CoTemp, Inc. v. Houston West Corp. , 222 S.W.3d 487, 492 n. 4 (Tex. App.

— Houston [14th Dist.] 2007, no pet.). To prevail on a6 claim of negligent hiring, the plaintiff must show that the employer (1) owed a lega l duty to protect the plaintiff from an employee’s actions and (2) the plaintiff sustained damages proximately caused by the employer’s breach of that legal duty. See Thomas v. CNC Invs., L.L.P. , 234 S.W.3d 111, 123 (Tex. App.

— Houston [1st Dist.] 2007, no pet.).
T he components of proximate cause are cause in fact and foreseeability , and these elements may not be established by mere conjecture, guess, or speculation

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

was a substantial f actor in bringing about injury, without which the harm would not have occurred. Id. Cause in fact is not shown if the defendant’ s negligence did no more than furnish a condition that made the injury possible. Id. A negligent hiring cla im “ requires that the plaintiff suffer some damages from the foreseeable misconduct of an employee hired pursuant to the defendant’s negligent practices.” Wansey v. Hole , 379 S.W.3d 246, 247 (Tex. 2012). Don McGill asserted in its motion for summary ju dgment that there was no evidence that its actions in hiring Thompson were the cause in fact of Ogunbanjo’s alleged injuries, and that Thompson’s alleged behavior was not a foreseeable consequence of Don McGill’s hiring of Thompson. Accordingly, the burde n shifted to Ogunbanjo to produce more than a scintilla of evidence that Don7 McGill’s hiring of Thompson was the cause in fact of her alleged injuries and that Thompson’s alleged assault was a foreseeable consequence of Don McGill’s hiring of Thompson. Se e Mack Trucks, Inc. , 206 S.W.3d at 582 ; Thomas , 234 S.W.3d at
124. With respect to her negligent hiring claim, we conclude that Ogunbanjo’s summary judgment evidence failed to raise a fact issue regarding foreseeability. In her response, Ogunbanjo prese nted evidence that Thompson had been previously terminated and then rehired by Don McGill. She asserted that this created a fact issue regarding whether Thompson’s a lleged assault was foreseeable. However, Obgunbanjo did not present any evidence showing the basis for Thompson’s first termination, let alone that the first termination was due to similar misconduct. She relied on the deposition testimony of Mike Hartman, the dealership sales manager, in which he stated that he was aware that Thompson had be en terminated previously by Don McGill . But Hartman testified that he did not know the reason for the previous termination because he had not been in h is position at the time. Ogunbanjo also offered as summary judgment evidence an employee timecard re port for Thompson for the period from October 1, 2011 to October 8, 2011, which showed that he had been tardy and clocked out too early or too late on several days . But t his evidence does not raise a fact issue regarding whether8 Thompson ever engaged in s exual misconduc t prior to the alleged assault or whether Don McGill shoul d have foreseen such misconduct

. See Thomas , 234 S.W.3d at 124. Accordingly, we conclude that Ogunbanjo did not present more than a scintilla of evidence that Thompson’s alleged ass ault was a foreseeable consequence of his hiring, and that summary judgment for Don McGill on the theory of negligent hiring was proper. See Houser v. Smith , 968 S.W.2d 542 , 545 (Tex. App.

— Austin 1998, no pet.) (affirming judgment on negligent hiring clai m based upon employee’s sexual assault of customer, where evidence showed employee had previously committed misconduct, but not sexual misconduct, and therefore the complained

- of assault was not foreseeable to employer); Guidry v. Nat’l Freight, Inc. , 944 S.W.2d 807, 811

– 12 (Tex. App.

— Austin 1997, no writ.) (affirming summary judgment on negligent hiring claim where truck driver committed sexual assault while on trip for employer because employer could not be expected to foresee assault, even though driver had prior criminal record of sexual misconduct). 2. Respondeat superior Under the doctrine of res pondeat superior, an employer may be vicariously liable for the tortious act of an employee who was acting within the scope of his employment, even though the em ployer has not personally committed a wrong. St.9 Joseph Hosp. v. Wolff , 94 S.W.3d 513, 541

– 42 (Tex. 2002). To hold an employer liable for the t ortious actions of its employee , a claiman t must prove the following: (1) an agency relationship existed betwee n the employee (the tortfeasor) and the employer; (2) the employee committed a tort; and (3) the tort was in the c ourse and scope of the employee’ s authority. See Zarzana v. Ashley , 218 S.W.3d 152, 159 (Tex. App.

— Houston [14th Dist.] 2007, pet. struck). To show an employee acted within the course and scope of his employment, the plaintiff must demonstrate the conduct occurred (1) within the general authority given the employee, (2) in furtherance of the employer’ s business, and (3) for the accomplishment of the object for which the employee was employed. See id. ; Mata v. Andrews Transp.,
Inc. , 900 S.W.2d 363, 366 (Tex. App.

— Hous ton [14th Dist.] 1995, no writ). G enerally, committing an assault is not within the course and scope of an employee’ s authority , unless the employer places the employee in a position that involves the use of force

. See Knight v. City Streets, L.L.C. , 167 S.W.3d 580, 583 (Tex. App.

— Houston [14th Dist.] 2005, no pet.) (citing Tex. & Pac. Ry. Co. v. Hagenloh , 151 Tex. 191, 247 S.W.2d 236, 239 (1952) ). However, a n employee’ s intentional, tortious conduct falls within the scope of employment when the conduct, even if contrary to express orders, is of the same general nature as that authorized or incidental to the conduct authorized. S ee Zarzana , 218 S.W.3d at10 159 ; Durand v. Moore , 879 S.W.2d 196, 199 (Tex. App.

— Houston [14th Dist.] 1994, no writ)

. Don McGill argued that the evidence conclusively showed that Thompson’s actions were outside the course and scope of his employment. The summary judgment evidence demonstrates that Thompson was employed by Don McGill as a car salesman

. Ogunbanjo contends that Thompson’s offer to give her a ride to her home was within the course and scope of his employment. Even if that were true, committi ng an assault on a service center customer was not. Because Thompson’s alleged assault was not in furtherance of Don McGill’s business or for the accomplishment of the object for which he was employed , it was not within the course and scope of Thompson’s employment as a matter of law

. See Zarzana , 218 S.W.3d at 159

. Accordingly, summary judgment for Don McGill on the theory of respondeat superior was proper. See Buck v. Blum , 130 S.W.3d 285, 289 (Tex. App.

— Houston [14th Dist.] 2004, no pet.) (affirming summary judgment for hospital on sexual assault claim where doctor allegedly made inappropriate sexual contact with patient during neurological examination, because sexual contact was not closely connected to employment tasks and did not further object of employment as required for respondeat superior liability ) ; Mackey v. U.P. Enters.,
Inc. , 935 S.W.2d 446, 454 (Tex. App.

— Tyler 1996, no writ ) (alleged sexual11 assaults were not within scope of employment because they were not within general authority of empl oyees and therefore could not support respondeat superior liability)

. We conclude that the trial court properly granted summary judgment on Ogunbanjo’s negligence claim. C. Gross Negligence Other than in worker’s compensation cases, a finding of ordinary negl igence is a prerequisite to a finding of gross negligence. See Sonic Sys. Int’ l, Inc. v. Croix , 278 S.W.3d 377, 394

– 95 (Tex. App.

— Houston [14th Dist.] 2008, pet. denied)

. Here, we conclude that the trial court properly granted summary judgment on Ogunban jo’s gross negligence claim because summary judgment was proper on her predicate negligence claim

. See Sonic Sys. Int’l , 278 S.W.3d at 394

– 95 (where party was entitled to summary judgment on negligence claim, party was also entitled to summary judgment on gross negligence claim) ; Seaway Prods. Pipeline Co. v. Hanley , 153 S.W.3d 643 , 659 (Tex. App.

— Fort Worth 2004, no pet.) (because appellant failed to show some evidence of negligence, appellant was not entitled to recover for gross negligence).12 D. Mental Angu ish
M en tal anguish is a type of damage and is not an independent cause of action. Hall v. Stephenson , 919 S.W.2d 454, 460 n.2 (Tex. App.

— Fort Worth 1996, writ denied). “A claimant may recover mental anguish damages on ly in connection with defendant’ s b re ach of some other legal duty.” Boyles v. Kerr , 855 S.W.2d 593, 594 (Tex.1993) ; see also Verinakis v. Medical Profiles, Inc. , 987 S.W.2d 90, 95 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied ) ( Texas does not recognize a general legal duty to avoid negli gently infl icting mental anguish )

. Here , Ogunbanjo’s claim for mental anguish damages depends upon her predicate claims of negligence and gross negligence

. Because we have held that summary judgment was proper on Ogunbanjo’s negligence and gross neglige nce claims, summary judgment on her claim for mental anguish damages was also appropriate. See Boyles , 855 S.W.2d at 594 (“A claimant may recover mental anguish damages on ly in connection with defendant’ s breach of some other legal duty

. ”) ; Hall , 919 S.W. 2d at 460 n.2 (m ental anguish is a type of damages and is not an independent cause of action )

. We overrule Ogunbanjo’s sole issue.13 Conclusion
We affirm the judgment of the trial court

.

Rebeca Huddle Justice Panel consists of Chief Justice Ra dack and Justices Bland and Huddle.