NUMBER 13-19-00107-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG 

RUSSELL GARNETT CLANTON

AND GABRIEL FRED GARCIA, Appellants,

v.

INTERSTATE TELECOMMUNICATIONS, INC., Appellee.

 

On appeal from the County Court at Law No. 2

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Hinojosa 

Memorandum Opinion by Chief Justice Contreras

Appellants Russell Garnett Clanton and Gabriel Fred Garcia appeal a summary 

judgment granted in favor of appellee Interstate Telecommunications, Inc. (ITI). By five 

issues, which we treat as three, appellants argue that the trial court erred when it: (1) 

granted summary judgment on appellants’ negligent-hiring claim; (2) overruled 
2

appellants’ objections to ITI’s summary judgment evidence; and (3) granted summary 

judgment on appellants’ vicarious-liability claim. We reverse and remand for further 

proceedings consistent with this memorandum opinion. 

I. BACKGROUND

On or around September 10, 2016, appellants were involved in a car accident with 

a vehicle driven by Justin Kell, an employee of ITI. In their live petition, appellants alleged 

that Kell was attempting to pass their vehicle “at an excessive rate of speed” when “Kell 

lost control and struck [appellants’] truck, causing both vehicles to run off the road and 

roll over several times.” Kell was driving back to Corpus Christi, Texas after an overnight 

trip to McAllen, Texas to service payphones at the request of ITI. 

Appellants brought suit against Kell, ITI, and Michelle Roddel.

1 They alleged Kell 

was acting in the course and scope of employment and asserted causes of action against 

ITI for negligent hiring and for vicarious liability. ITI filed a traditional motion for summary 

judgment arguing that it did not owe a duty to appellants because Kell “was not in the 

course and scope of his employment when [appellants’] alleged damages were 

sustained . . . .”2In support of its motion, ITI attached an affidavit by its president, Frank 

Zimmerer, and answers by Kell and Roddel to ITI’s requests for admissions. 

Appellants filed a response to ITI’s motion for summary judgment; attached 

excerpts from depositions of Zimmerer, Kell, and Roddel; and objected to the evidence 

submitted by ITI in support of its motion. After a hearing, the trial court overruled 

1 The vehicle Kell was driving belonged to Roddel. Kell and Roddel are not parties to this appeal.

2

ITI’s motion was titled “Traditional and No Evidence Motion for Summary Judgment,” but the 

motion only advanced the traditional summary judgment argument discussed in this memorandum opinion. 

See TEX. R. CIV. P. 166a(c). 
3

appellants’ objections, granted summary judgment to ITI, and dismissed “the claims 

asserted by” appellants. Appellants filed a motion to sever their claims against ITI, and 

the trial court granted it. This appeal followed. 

II. DISCUSSION

A. Standard of Review

We review a trial court’s decision on a motion for summary judgment de novo. Katy 

Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). In 

a traditional motion for summary judgment, the movant has the burden of showing no 

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. 

TEX. R. CIV. P. 166a(c); Katy Venture, 469 S.W.3d at 163. Evidence raises a genuine 

issue of material fact if reasonable and fair-minded jurors could differ in their conclusions 

in light of all the evidence presented. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 

754, 755 (Tex. 2007) (per curiam). A defendant who conclusively negates at least one of 

the elements of a cause of action or conclusively establishes an affirmative defense is 

entitled to summary judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 

2010). 

Once the moving party produces evidence establishing its right to summary 

judgment as a matter of law, the burden shifts to the nonmovant to produce evidence that 

raises a genuine issue of material fact. Walker v. Harris, 924 S.W.2d 375, 376 (Tex. 

1996). To determine if the nonmovant raised a fact issue, we review the evidence in the 

light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors 

could do so, and disregarding contrary evidence unless reasonable jurors could not. 

Hawthorne v. Guenther, 461 S.W.3d 218, 221 (Tex. App.—San Antonio 2015, pet. 
4

denied). If the trial court grants summary judgment without specifying the grounds for 

granting the motion, then we must uphold the trial court’s judgment if any of the asserted 

grounds are meritorious. Davis v. West, 433 S.W.3d 101, 109 (Tex. App.—Houston [1st 

Dist.] 2004, pet. denied). 

We review a trial court’s ruling on the admissibility of evidence for an abuse of 

discretion. Rogers v. RREF II CB Acquisitions, LLC, 533 S.W.3d 419, 426 (Tex. App.—

Corpus Christi–Edinburg 2016, no pet.). A trial court abuses its discretion when it rules 

without regard for any guiding rules or principles. Id.

B. Negligent Hiring

By their first issue, appellants argue that the trial court erred when it granted 

appellee’s motion for summary judgment in regard to their negligent hiring claim. 

To prevail on a cause of action for negligent hiring, a plaintiff must prove: (1) the 

employer owed the plaintiff a duty to hire, supervise, train, or retain competent employees; 

(2) the employer breached that duty; (3) the employee committed a tort; and (4) the 

employer’s breach and the employee’s tort proximately caused the plaintiff’s injury.3 See 

THI of Tex. at Lubbock I, LLC v. Perea ̧ 329 S.W.3d 548, 573 (Tex. App.—Amarillo 2010, 

pet. denied); EMI Music Mex., S.A. de C.V. v. Rodriguez, 97 S.W.3d 847, 858 (Tex. 

App.—Corpus Christi–Edinburg 2003, no pet.); see also Endeavor Energy Res., L.P. v. 

3 We note that the Texas Supreme Court has “not ruled definitively on the existence, elements, and 

scope” of a negligent-hiring claim and has “recognized that it is ‘factually similar’ to a claim for negligent 

entrustment.” Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, __, 2019 WL 1966625, at *2–3 

(Tex. May 3, 2019) (quoting Wansey v. Hole, 379 S.W.3d 246, 248 (Tex. 2012) (per curiam); Waffle House, 

Inc. v. Williams, 313 S.W.3d 796, 804 n. 27 (Tex. 2010)). The elements of a cause of action for negligent 

entrustment of a motor vehicle are: (1) the owner of a vehicle entrusted it to another person; (2) that person 

was an unlicensed, incompetent, or reckless driver; (3) at the time of the entrustment, the owner knew or 

should have known that the driver was unlicensed, incompetent, or reckless; (4) the driver was negligent 

on the occasion in question; and (5) the owner’s entrustment and the driver’s negligence proximately 

caused the plaintiff’s injuries. See 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 & n.6 

(Tex. 2016).
5

Cuevas, 593 S.W.3d 307, __, 2019 WL 1966625, at *2–3 (Tex. 2019). A claim for 

negligent hiring is based on direct liability, not on vicarious liability. Soon Phat, L.P. v. 

Alvarado, 396 S.W.3d 78, 100–01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); 

Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). An 

employer owes a duty to the general public to ascertain the qualifications and competence 

of the employee it hires, especially when the employees are engaged in occupations that 

require skill or experience and that could be hazardous to the safety of others. 

Dangerfield, 264 S.W.3d at 912. The main advantage of a negligent-hiring claim is that it 

does not require a finding that the employee was acting in the scope of employment when 

the tortious act occurred. See Moore Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 98 

(Tex. App.—El Paso 2017, pet. denied); Soon Phat, L.P., 396 S.W.3d at 100; Dietes v. 

Baker Serv. Tools, 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi–Edinburg 1987, writ 

denied) (“[A]n action for negligent hiring provides a remedy to injured third parties who 

would be foreclosed from recovery under the master-servant doctrine since the wrongful 

acts of employees in these cases are likely to be outside the scope of employment or not 

in furtherance of the master’s business.”). 

In its motion for summary judgment, ITI’s only argument was that it owed no duty 

to appellants because Kell was not in the course and scope of employment at the time of 

the accident; however, that the defendant acted within the course and scope of 

employment is not an element of a negligent hiring claim. See Munoz, 545 S.W.3d at 98;

Dietes, 739 S.W.2d at 408 (“If course and scope was a required element of a negligent 

hiring and supervision claim, negligent hiring and supervision as a unique cause of action 

would be rendered superfluous by the respondeat superior doctrine.”). Accordingly, ITI 
6

was not entitled to summary judgment on appellants’ claim for negligent hiring. See TEX.

R. CIV. P. 166a(c); Nall, 404 S.W.3d at 555; McConnell v. Southside Indep. Sch. Dist., 

858 S.W.2d 337, 341 (Tex. 1993).

ITI argues on appeal that, because Kell was not acting in the course and scope of 

employment, his actions were not “job related,” and that this disproves that the accident 

was foreseeable. See Rodriguez-Escobar v. Goss, 392 S.W.3d 109, 113 (Tex. 2013) (per 

curiam) (noting that foreseeability of the risk is an element of proximate causation); see 

also Moore v. Strike, LLC, No. 04-16-00324-CV, 2017 WL 96130, at *7 (Tex. App.—San 

Antonio Jan. 11, 2017, no pet.) (mem. op.) (concluding that summary judgment on 

negligent hiring claim was proper because defendant argued conduct was not 

foreseeable because it was not job-related and out of the course and scope of 

employment). We are not persuaded. ITI did not argue in its motion that Kell not acting in 

the course and scope of employment defeated any of the elements of a negligent hiring 

cause of action or that it impacted foreseeability in any way. See TEX. R. CIV. P. 166a(c) 

(“The motion for summary judgment shall state the specific grounds therefor.”); Nall v. 

Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam) (“[T]he court of appeals cannot 

‘read between the lines’ or infer from the pleadings any grounds for granting summary 

judgment other than those grounds expressly set forth before the trial court.”); Seaway 

Prods. Pipeline Co. v. Hanley, 153 S.W.3d 643, 649 (Tex. App.—Fort Worth 2004, no 

pet.) (providing that the grounds in the motion are sufficiently specific if they give “fair 

notice” to the nonmovant).

We sustain appellants’ first issue.
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C. ITI’s Summary Judgment Evidence

By their second issue, appellants argue that the trial court erred when it overruled 

appellants’ objections to ITI’s summary judgment evidence.

1. Admissions of Kell & Roddel

In support of its motion for summary judgment, ITI attached responses to requests 

for admissions it propounded to Roddel and Kell. 

Kell’s responses provided: 

REQUEST FOR ADMISSION 1: Admit that you were not in the course and 

scope of your employment with [ITI] when the incident occurred.

RESPONSE: Admit

REQUEST FOR ADMISSION 2: Admit that you were not driving a vehicle 

during the incident that was owned by [ITI].

RESPONSE: Admit

REQUEST FOR ADMISSION 3: Admit that you were not driving a vehicle 

during the incident that was leased by [ITI].

RESPONSE: Admit

REQUEST FOR ADMISSION 4: Admit that the vehicle that you were driving 

during the incident was not being used for any business or work associated 

with [ITI].

RESPONSE: Admit

Roddel’s responses provided: 

REQUEST FOR ADMISSION 1: Admit that you owned the vehicle Justin 

Kell was using at the time of the accident.

RESPONSE: Admit

REQUEST FOR ADMISSION 2: Admit that your vehicle is not used for 

business or work associated with [ITI].

RESPONSE: Admit
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REQUEST FOR ADMISSION 3: Admit that you have no employment 

association with [ITI].

RESPONSE: Admit

REQUEST FOR ADMISSION 4: Admit your connection with Justin Kell is 

not related to his employment with [ITI]. 

RESPONSE: Admit

Appellants objected to responses 1, 2, 3, and 4 by both Kell and Roddel because

“[m]atters admitted by one defendant are not conclusively established as to another 

defendant.” Thus, appellants argued, these responses constituted incompetent summary 

judgment evidence and were inadmissible. We agree. The rule explicitly says that a 

matter admitted is conclusively established only “as to the party making the admission.” 

See TEX. R. CIV. P. 198.3 (“A matter admitted under this rule is conclusively established 

as to the party making the admission”); U.S. Fid. & Guar. Co. v. Goudeau, 272 S.W.3d 

603, 608 (Tex. 2008) (“Rule 198 expressly provides that a response to a request for 

admission can only be used against ‘the party making the admission’”); Allen v. Allen, 280 

S.W.3d 366, 376 (Tex. App.—Amarillo 2008, pet. denied) (“In a suit against multiple 

defendants, evidence in the form of responses to requests for admissions made by one 

defendant is not admissible against other defendants.”). Appellees cite no authority 

providing that an admission by a third-party defendant may be used against a plaintiff, 

and we find none. Therefore, we conclude the trial court abused its discretion when it 

overruled appellants’ objection to the admission of the responses by Kell and Roddel. 

2. Frank Zimmerer’s Affidavit

Appellants also objected to paragraphs 5, 6, and 9 of Zimmerer’s affidavit, which 

ITI attached to its motion for summary judgment. Zimmerer’s affidavit provided: 
9

1. My name is Frank Zimmerer. I am over 18 years of age, of sound mind, 

and capable of making this affidavit. The facts stated in this affidavit are 

within my personal knowledge and are true and correct. 

2. I am the President of [ITI] which has been sued in this action in 

connection with an accident involving a driver named Justin Christopher 

Kell.

3. I have knowledge regarding all persons employed by [ITI]. 

4. I have knowledge of when employees are actual [sic] working for [ITI]. 

5. On September 10, 2016, Justin Christopher Kell was not acting in the 

course and scope of the employment with [ITI] at the time of the 

accident. He was not on duty at that time. 

6. On September 10, 2016, at the time of the accident Justin Christopher 

Kell was not under the direction or control of [ITI]. 

7. On September 10, 2016, Justin Christopher Kell was not operating a 

vehicle that was controlled by [ITI] at the time of the accident. 

8. [ITI] exercises no control over the actions of employees when they are 

off duty and are not acting in the course and scope of their employment. 

9. At the time of the occurrence of the accident that this [sic] subject of this 

litigation, [ITI] exercised no control over the actions of Justin Christopher 

Kell. 

Appellants objected to paragraphs 5, 6, and 9 as irrelevant to a claim for negligent 

hiring. For evidence to be admissible, it must be relevant. TEX. R. EVID. 402. Relevant 

evidence is evidence having the tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it 

would be without the evidence. TEX. R. EVID. 401. These paragraphs are relevant 

because, whether or not they addressed an element of a negligent hiring claim, they 

addressed an element of a vicarious liability claim. See id.; Painter v. Ameritex Drilling I, 

Ltd., 561 S.W.3d 125, 131 (Tex. 2018). The trial court did not err in overruling appellants’ 

objection as to relevance. 
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Appellants also objected to paragraphs 5, 6, and 9 because they were conclusory. 

A conclusory statement is defined as “[e]xpressing a factual inference without stating the 

underlying facts on which the inference is based.” La China v. Woodlands Operating Co., 

L.P., 417 S.W.3d 516, 520 (Tex. App.—Houston [14th Dist.] 2013, no pet.); see Arkoma 

Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008); 

LeBlanc v. Lamar State Coll., 232 S.W.3d 294, 301 (Tex. App.—Beaumont 2007, no pet.) 

(“Statements are conclusory if they fail to provide underlying facts to support their 

conclusions.”). Zimmerer’s affidavit sets out that he has personal knowledge of facts 

regarding Kell’s employment with ITI because he is the president of ITI and has 

knowledge “regarding all persons employed by” ITI. See Garner v. Long, 106 S.W.3d 260, 

267 (Tex. App.—Fort Worth 2003, no pet.) (“To constitute competent summary judgment 

evidence, affidavits must be made on personal knowledge, setting forth such facts as 

would be admissible in evidence, and must affirmatively show that the affiant is competent 

to testify to matters stated therein.”); Krishnan v. Law Offices of Preston Henrichson, P.C., 

83 S.W.3d 295, 300 (Tex. App.—Corpus Christi–Edinburg 2002, pet. denied). Further, 

Zimmerer states that Kell was not on duty or driving a vehicle owned by ITI at the time of 

the accident and that ITI exercises no control over the employees when they are off duty. 

Thus, the paragraphs objected to were not conclusory because Zimmerer’s affidavit 

furnishes some factual information as to these paragraphs that could have been rebutted. 

See La China, 417 S.W.3d at 520; Rivera v. White, 234 S.W.3d 802, 808 (Tex. App.—

Texarkana 2007, no pet.). 

Appellants additionally objected to paragraphs 5, 6, and 9 because they were from 

an interested witness and not clear, free from contradiction, and uncontroverted. We note 
11

that “[o]ur summary judgment rule permits the granting of a summary judgment on the 

basis of uncontroverted testimonial evidence of an interested witness if that evidence ‘is 

clear, positive and direct, and otherwise credible and free from contradictions and 

inconsistencies, and could have been readily controverted.” Casso v. Brand, 776 S.W.2d 

551, 558 (Tex. 1989) (citing TEX. R. CIV. P. 166a(c)). “Could have been readily 

controverted” means that the “testimony at issue is of a nature which can be effectively 

countered by opposing evidence.” Id. Paragraphs 5, 6, and 9 could have been readily 

controverted because appellants could have produced opposing evidence showing that 

Kell was in the course and scope of his employment and under the control or direction of 

ITI. See Painter, 561 S.W.3d at 131–37; Casso, 776 S.W.2d at 558; La China, 417 S.W.3d 

at 520–21. 

Finally, appellants objected to paragraphs 5 and 6 because they constituted a legal 

opinion. “An affidavit supporting or opposing a motion for summary judgment must set 

forth facts, not legal conclusions.” Krishnan, 83 S.W.3d at 299. However, legal 

conclusions based on underlying facts that have been stated are not necessarily 

improper. See Montemayor v. Chapa, 61 S.W.3d 758, 764 (Tex. App.—Corpus Christi–

Edinburg 2001, no pet.), disapproved on other grounds by Coco v. Port of Corpus Christi 

Auth., 132 S.W.3d 689, 691–92 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.); 

Aldridge v. De Los Santos, 878 S.W.2d 288, 296–97 (Tex. App.—Corpus Christi–

Edinburg 1994, writ dism’d w.o.j.). Zimmerer’s affidavit explains who he is and how he is 

competent to testify about whether Kell was on duty at the time of the accident and 

whether he was under the supervision or control of ITI. See TEX. R. CIV. P. 166a(f); 

Brownlee v. Brownlee 665 S.W.2d 111, 112 (Tex. 1984); Choctaw Props., L.L.C. v. Aledo 
12

I.S.D., 127 S.W.3d 235, 244 (Tex. App.—Waco 2003, no pet.); Krishnan, 83 S.W.3d at 

299–300. His conclusions that Kell was not in the course and scope of his employment 

or under the direction or control of ITI were based on underlying facts that Zimmerer 

stated in his affidavit. See Montemayor, 61 S.W.3d at 764.

3. Conclusion 

We sustain appellants’ second issue in part, concluding that the trial court erred 

when it overruled their objections to the admissions made by Kell and Roddel. We 

overrule the remainder of appellants’ second issue. 

D. Vicarious Liability

By their third issue, appellants argue that the trial court erred when it granted 

summary judgment in favor of ITI on their vicarious liability claim.4

Vicarious liability is a theory of liability that allows for an employer to be held liable 

for its employee’s tort if the tort was committed while the employee was acting in the 

course and scope of his or her employment. See Painter, 561 S.W.3d at 131; Baptist 

Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). The tort can be the 

result of the employee’s negligent or intentional conduct. See GTE Sw., Inc. v. Bruce, 998 

S.W.2d 605, 617–18 (Tex. 1999); Magnolia Petroleum Co. v. Guffey, 102 S.W.2d 408, 

409 (Tex. 1937). “[T]o prove an employer’s vicarious liability for a worker’s negligence, 

4 Appellants argue ITI’s summary motion advanced a “no duty” argument only as to only their 

negligent hiring claim, but not their vicarious liability claim. We disagree. A motion for summary judgment 

must state the grounds on which it is made. TEX. R. CIV. P. 166a(c); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 

70, 79 (Tex. 2015); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). A trial court cannot grant a summary 

judgment on grounds not presented in the motion. G&H Towing Co. v. Magee, 505 S.W.3d 555, 297 (Tex. 

2011); see Ineos USA, LLC v. Elmgren, 505 S.W.3d 555, 566 (Tex. 2016). Here, while ITI’s motion does 

not specifically state it applies to appellants’ vicarious liability cause of action, it argues that ITI is entitled 

to summary judgment “on any cause of action rooted in the theory of negligence.” Accordingly, we conclude 

that ITI’s “no duty” argument included appellants’ claim for vicarious liability. See TEX. R. CIV. P. 166a(c);

Bradshaw, 457 S.W.3d at 79; GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 617–18 (Tex. 1999).
13

the plaintiff must show that, at the time of the negligent conduct, the worker was (1) an 

employee and (2) was acting in the course and scope of his employment.” Painter, 561 

S.W.3d at 131.

Within the scope of employment means that the action was “within the scope of 

the employee’s general authority in furtherance of the employer’s business and for the 

accomplishment of the object for which the employee was hired.” Painter, 561 S.W.3d at 

131; Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). And “the 

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

conduct authorized.” Painter, 561 S.W.3d at 131. Conduct may be within the course and 

scope of employment even if done in part to serve the purposes of the employee or a 

third person. Best Steel Bldgs., Inc. v. Hardin, 553 S.W.2d 122, 128 (Tex. App.—Tyler 

1977, writ ref’d n.r.e.); see Gilgon, Inc. v. Hart, 893 S.W.2d 562, 568 (Tex. App.—Corpus 

Christi–Edinburg 1994, writ denied) (noting that employee’s actions may still be within the 

course and scope of employment even if private matters are mixed with business errand).

Furthermore, when an employee is involved in an accident while driving a motor 

vehicle, there are special rules to determine whether the employee was within the scope 

of employment at the time of the accident. See Painter, 561 S.W.3d at 135–37. Generally, 

an employer is not liable for the acts of an employee while traveling to and from work. Id.

at 136. However, there is an exception to this rule when the employee is on a “special 

mission” for the employer. See id. at 136–37. 

A special mission is a specific errand that an employee performs for the employer 

either as part of his or her duties or at the employer’s request. Am. Gen. Ins. v. Coleman, 

303 S.W.2d 370, 374–75 (Tex. 1957); Wilie v. Signature Geophysical Servs., Inc., 65 
14

S.W.3d 355, 359 (Tex. App.—Houston [14th Dist.] 2001, pet. denied); Upton v. Gensco, 

Inc., 962 S.W.2d 620, 621–22 (Tex. App.—Fort Worth 1997, pet. denied). It can involve 

work or work-related activity outside of the employee’s regular job duties. Soto v. Seven 

Seventeen HBE Corp., 52 S.W.3d 201, 206 (Tex. App.—Houston [14th Dist.] 2000, no 

pet.). For example, an employee was on a special mission when his employer sent him 

to Houston for supplies, he was entitled to mileage for the trip, and he was told to use his 

own car, not the company truck. See Best Steel Bldgs., Inc., 553 S.W.2d at 127–28. If an 

employee is sent on a special mission, then he is considered as still on such mission 

while returning from the place to which he was required to go by his employer, unless he 

deviates from the purpose of his mission and engages in an enterprise of his own. Id. at 

129; see Shelton v. Standard Ins., 389 S.W.2d 290, 293 (Tex. 1965); see also Painter, 

561 S.W.3d at 136 n.14 (rejecting notion that an employee is not engaged in the 

furtherance of employer’s business when the employer does not require any particular 

route). Whether the “special mission” exception applies “depends heavily on the facts and 

circumstances of the case.” Painter, 561 S.W.3d at 136.

Here, the element of appellants’ vicarious liability claim that was disputed in ITI’s 

summary judgment motion is whether Kell was in the course and scope of his employment 

when the accident occurred. See Painter, 561 S.W.3d at 131. Per our previous 

discussion, the only admissible evidence submitted by ITI in support of its motion was 

Zimmerer’s affidavit. Zimmerer’s affidavit supported the contention that Kell was not in 

the course and scope of his employment at the time the accident occurred by providing 

that Kell was not on duty at the time and not under the control and direction of ITI. See 
15

id. at 136. This shifted the burden to appellants to raise an issue of fact. See Walker, 924 

S.W.2d at 376.

In their response to ITI’s motion for summary judgment, appellants argued that Kell 

was in the course and scope of employment “and/or in a special mission” for ITI. They 

attached in support, among other things, portions of depositions of Kell, Rondell, and 

Zimmerer. 

In Zimmerer’s deposition, he explains that Kell was hired by ITI to service pay 

phones. According to Zimmerer, going to the location and coming back was part of Kell’s 

job and, if an employee of ITI leaves the house to work on telephones, then the employee 

is going to do work for the benefit of ITI. See Painter, 561 S.W.3d at 136–38 (noting that 

if the drive to and from work is part of the employee’s assigned job duties, then the 

employee may be within the scope of employment); Arbelaez, 149 S.W.3d at 719 

(concluding that a fact issue was raised as to whether employee was on a special mission 

because there was evidence that employer benefitted from employee’s act). Further, 

Zimmerer explained that “the basis of [Kell’s] activity was in Corpus, but he would go to 

the valley as needed” and that Kell gets reimbursed for mileage when he goes to the 

valley because he is doing it on behalf of ITI for the benefit of ITI. See Arbelaez, 149 

S.W.3d at 723 (noting that employee’s manager asked employee to perform a specific 

errand on a routine basis and that the errand benefitted the employer). In his deposition, 

Kell states that he “mostly” works out of Corpus Christi but that “there’s no telling” where 

ITI might send him. 

Viewing this evidence in the light most favorable to appellants and indulging every 

reasonable inference therefrom, we conclude that appellants raised a fact issue as to 
16

whether Kell was in the course and scope of his employment or on a special mission at 

the time of the accident. See Painter, 561 S.W.3d at 136–37 (noting that in “the course 

and scope of employment” means within the scope of the employee’s general authority, 

in furtherance of the employer’s business, and for the accomplishment of the object for 

which he was hired); Arbelaez, 149 S.W.3d at 720 (noting that course and scope of 

employment is generally a fact issue); Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 

355–56 (Tex. App.—El Paso 1993, no pet.) (concluding employee was on a special 

mission while en route to a mandatory seminar); Best Steel Bldgs., Inc., 553 S.W.2d at 

127–28; see also OCI Beaumont LLC v. Barajas, 520 S.W.3d 83, 91 (Tex. App.—

Beaumont 2017, no pet.) (“Applying Texas law, Texas courts have consistently held that 

the employer is not vicariously liable for the torts committed by employees when their 

connection to their job shows they were merely commuting to work.”).

We sustain appellants’ third issue. 

III. CONCLUSION

We reverse the trial court’s judgment and remand for further proceedings 

consistent with this memorandum opinion. 

DORI CONTRERAS

Chief Justice

Delivered and filed the 

16th day of April, 2020.