### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 22
- 00736
- CV

Sarah Cook , Appellant

v. Texas Highway Walls, LLC , Appellee

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -22-006133, THE HONORABLE MARIA CANTÚ HEXSEL, JUDGE PRESIDING

C O N C U R R I N G AND D I S S E N T I N G O P I N I O N

Because I conclude that Sarah Cook failed to raise a fact issue that Te xas Highway Walls (THW) is vicariously liable for the alleged negligence of Blake Cervenka , I respectfully dissent from the majority ’s disposition of that claim

. 1 “As a general rule, one perso n is under no duty to control the conduct of another, even if he has the practical ability to exercise such control.” Pagayon v. Exxon Mobil Corp. , 536 S.W.3d 499, 504 n.17 (Tex. 201 7) (citing Otis Eng ’ g Corp. v. Clark , 668 S.W.2d 307, 309 (Tex. 1983) ). T he common

- law doctrine of vicar ious liability, however, makes “ a principal liable for the conduct of his employee or agent. ” F.F.P. Operating Partners, L.P. v. Duen ez , 237 S.W.3d 68 0, 686 (Tex. 2007)

. This liability is based on “ the prin cipal ’ s control or right to control the agent ’ s actions undertaken to furt her the principal ’ s objectives. ” Id. Vicarious

1 I agree with the maj orit y th at C ook failed to raise a fact issue on her claims against THW for negligence and gros s negligence.2 liability requires the pla intiff to prove that, at the time o f the negligent co nduct, the worker was (1) an e mployee or agent of the defendant , and (2) the worker was acting in the course and scope of his employment. See Painter v . Amerimex Drilling I, L td. , 561 S.W.3d 125, 13 1 (Tex. 2018) ; Duenez , 237 S.W.3d at 686

. I ag ree wi t h the majority t hat Cook raised a fact issue on the first element

. However, I cannot agree with the majority ’ s analysis or conclusion as to the second issue. This element hinges on an “ objec tive analy sis ” of “ whether the employee was performing the ta sk s
g enerally assigned to him in furtherance of the employer ’ s business. T hat is, the employee must be acting with the employer ’ s authori ty and fo r the employer ’ s benefit. ” Painter , 561 S.W.3d at 13 8

– 39

. 2 The majority concludes that the facts , view ed in t he light most favo rable to C o o k,

“ create a lattice o f circumstances that would e nable re asonable and fair

- minded people to develop more than a mere susp icion or surmise that Cervenka wa s acting within his role as an agent of THW at the time of the ac ciden t

. ” Ante at 7

. I respectfully disagree because there is no evidence t hat would permit a reasonable person to infer that he was acting in that role at the time of the collision

. See First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 22 0 ( Tex. 2017) (“The evidence does not crea te an issue of material fact if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” (quoting Kia Motors Corp. v.
Ruiz , 432 S.W.3d 865, 875 (Tex. 2014)) )

. Although cir c um s ta ntial evidence may be relied upon
to es tablish a material fact, under the equal

- inference rule, when “circu mstances are consistent with either of the two facts and nothing shows that one is more probable than the other, neither

2 Put differently , the employee ’s negligent conduct “ m us t be of the same g eneral na ture as the conduct authorized o r incidental to the conduct autho riz ed t o be within the sco pe of employment. ” Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3 d 754, 757 (Tex . 2007)

.3 fact can b e inferred.” L o za no v. Lozano , 52 S.W.3d 141, 148 (Tex. 2001) (Phillips, C. J., concurring and dissenting, joined by Enoch, Baker, Abbott, and Hankinson, JJ. ) (quoting Litton Indus. Prod s
. , Inc. v. Gammage , 668 S.W.2d 3 19, 324 (Tex. 1984)). “Evidence that is so slig ht
as t o make any inference a guess is in legal effect no evidence.” Ford Motor Co . v. Ridgway , 135 S.W.3d 598, 601 (Tex. 2004) (citing Loz ano , 52 S.W.3d at 148 ; Browning

- Ferris, Inc.

v. Reyna , 865 S.W.2d 92 5, 928 (Tex. 1993)). Such is the evidence in th is case , which reviewed in the light most favorable to Cook, is equally consistent with Cervenk a traveli ng on a work task

or complet ing a p ersonal errand.
Acco rdin g to Cervenka ’ s undisputed testimony , his af ternoons were a mix of personal errands and profe ss i onal tasks, including occasional travel “ to a jo b site or a meeting

. ” Cervenka evidently e njoyed the discretion t o work when and where he cho se
. Even if he had a job meeting or trip to a w ork site schedule d later that da y, the evidence that he receive d a wor k

rel ated phone call before the accident, made work

- related phone calls afterwards , and returned to the office later that day do es n ot permit a reasonable pers on to infer that he was on THW ’ s business at the time of the accident. See , e.g. , Mejia

- R os a v. John Moore Serv s
. , Inc. , No. 01

- 17

- 00955

- CV, 2019 WL 3330972, at * 7

– 9 (Tex. App.

— Housto n [1st Dist.] July 25, 2019, no pet.) (mem. o p.) (holding that record of calls placed and receive d on company cell phone, one ending a half

- hour before driving ac ci d ent and two brief calls beginning about a half

- hour after the accident, did not establish f act issue regarding course and scope of
emp lo yment at time accident occurred). Without

— a t minimum

— some fact that would permit a reasonable perso n to infer
Cerve nk a ’s des tination , the record does no more than raise a surmise o r suspicion that Cer ven ka

was acti ng in the course and scope of his empl oy men t. S ee Painter , 561 S.W.3d at 1374 ( expla ining that “ emp loyee was not within the scope of employment while using h is em ploy er ’ s vehicle to run a personal errand, even though he was not restricted from using t he truck for personal business ” (citing Goo dy ear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 757

– 58 (Tex . 2007) ) ); Breedlove v. Moffitt , No. 12

- 21

- 00037

- CV, 2022 WL 12 8656 4, at *3 (Tex. App.

— Tyler Apr. 29, 2022, pet. denied) (mem. op.) (concluding that whi le “ there is no doubt that [the employee ] w as work ing on the day in question, ” the “ evidence does not pe rmit a factfinder reasonably to determine the location of [t he emp l oyee ’ s ] primary destination at the time of the accident so as to supp ort a finding th at he was within the course and scope of hi s

e mplo yme nt at that time ”).
Be cause Cook failed to raise a fact issue on whether Cervenka was acting in the

course a nd scop e of his employment /agency at the time of the accid ent, I would affirm the district court ’ s gr a nt of no - evidence summary judgment on that claim

. For th ese rea sons, I con cur in part and respectfully dissent in p art

.

_________________________________ __ _____ __ Rosa Lopez Theofanis , Justice Befor e Chief J ustice Byrn e, Justic es T riana and Theofanis Filed: February 16, 2024