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 HOUSTON, LTD., Appellee

On Appeal from the 269th District Court

Harris County, Texas

Trial 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 negligence. Don 
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McGill moved for summary judgment on all of Ogunbanjo’s claims. The trial 

court granted Don McGill’s motion, rendering a take-nothing judgment against 

Ogunbanjo. In a single issue, Ogunbanjo contends that the trial court erred in 

granting summary 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 shuttle 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 

remove Ogunbanjo’s hat and to lift up her skirt. She repeatedly hit his hand and 

told him to stop. When they arrived at her house, Thompson tried to touch her 

buttocks as she was getting out of the car. The next day, Ogunbanjo returned to 

the dealership with 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 

supervision policies, to provide adequate supervision of its employees, and to warn 
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her of the dangers of its negligence. She also alleged that these 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. The trial 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 claims 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 

judgment 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 party has filed both a traditional and no-evidence summary 

judgment motion, we typically first review the propriety of the summary judgment 
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under the no-evidence standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. 

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). 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 establish 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 TEX. R. CIV. 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 

grant judgment as a matter of law. TEX. R. CIV. 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 or 
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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 raise 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 claim, 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 and 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, 197 

S.W.3d 793, 794 (Tex. 2006). A claim of negligent hiring is based on an 

employer’s direct negligence. 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 a 
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claim of negligent hiring, the plaintiff must show that the employer (1) owed a 

legal 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.). 

The 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 factor 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 claim “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 judgment 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 burden 

shifted to Ogunbanjo to produce more than a scintilla of evidence that Don 
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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. See 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 presented 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 alleged 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 been 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 his position at the time. 

Ogunbanjo also offered as summary judgment evidence an employee 

timecard report 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 this evidence does not raise a fact issue regarding whether
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Thompson ever engaged in sexual misconduct prior to the alleged assault or 

whether Don McGill should 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 assault 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 claim 

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 respondeat 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 employer has not personally committed a wrong. St. 
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Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541–42 (Tex. 2002). To hold an employer 

liable for the tortious actions of its employee, a claimant must prove the following: 

(1) an agency relationship existed between the employee (the tortfeasor) and the 

employer; (2) the employee committed a tort; and (3) the tort was in the course 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.—Houston [14th Dist.] 1995, no writ). 

Generally, 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, an 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. See Zarzana, 218 S.W.3d at 
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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 summaryjudgment 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, committing 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 sexual 
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assaults were not within scope of employment because they were not within 

general authority of employees 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 negligence 

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 

Ogunbanjo’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).
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D. Mental Anguish

Mental 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 only in 

connection with defendant’s breach 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 negligently inflicting 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 negligence 

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 only in connection with defendant’s breach of some other legal 

duty.”); Hall, 919 S.W.2d at 460 n.2 (mental anguish is a type of damages and is 

not an independent cause of action). 

We overrule Ogunbanjo’s sole issue. 
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Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle.