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 Texas 

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 person 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. 2017) (citing Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 

(Tex. 1983)). The common-law doctrine of vicarious liability, however, makes “a principal 

liable for the conduct of his employee or agent.” F.F.P. Operating Partners, L.P. v. Duenez, 

237 S.W.3d 680, 686 (Tex. 2007). This liability is based on “the principal’s control or right to 

control the agent’s actions undertaken to further the principal’s objectives.” Id. Vicarious 

1 I agree with the majority that Cook failed to raise a fact issue on her claims against 

THW for negligence and gross negligence.
2

liability requires the plaintiff to prove that, at the time of the negligent conduct, the worker was 

(1) an employee 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, Ltd., 561 S.W.3d 125, 131 (Tex. 2018);

Duenez, 237 S.W.3d at 686.

I agree with the majority that 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 “objective analysis” of “whether the employee was performing the tasks

generally assigned to him in furtherance of the employer’s business. That is, the employee must 

be acting with the employer’s authority and for the employer’s benefit.” Painter, 561 S.W.3d at

138–39.

2

The majority concludes that the facts, viewed in the light most favorable to Cook,

“create a lattice of circumstances that would enable reasonable and fair-minded people to 

develop more than a mere suspicion or surmise that Cervenka was acting within his role as an 

agent of THW at the time of the accident.” Ante at 7. I respectfully disagree because there is no 

evidence that 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, 220

(Tex. 2017) (“The evidence does not create 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 circumstantial evidence may be relied upon 

to establish a material fact, under the equal-inference rule, when “circumstances 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 “must be of the same general nature

as the conduct authorized or incidental to the conduct authorized to be within the scope of 

employment.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007).
3

fact can be inferred.” Lozano 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. Prods., Inc. v. Gammage, 668 S.W.2d 319, 324 (Tex. 1984)). “Evidence that is so slight

as to 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 Lozano, 52 S.W.3d at 148; Browning-Ferris, Inc. 

v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993)). Such is the evidence in this case, which reviewed 

in the light most favorable to Cook, is equally consistent with Cervenka traveling on a work task 

or completing a personal errand.

According to Cervenka’s undisputed testimony, his afternoons were a mix of 

personal errands and professional tasks, including occasional travel “to a job site or a meeting.” 

Cervenka evidently enjoyed the discretion to work when and where he chose. Even if he had a

job meeting or trip to a work site scheduled later that day, the evidence that he received a workrelated phone call before the accident, made work-related phone calls afterwards, and returned to 

the office later that day does not permit a reasonable person to infer that he was on 

THW’s business at the time of the accident. See, e.g., Mejia-Rosa v. John Moore Servs., Inc., 

No. 01-17-00955-CV, 2019 WL 3330972, at *7–9 (Tex. App.—Houston [1st Dist.] 

July 25, 2019, no pet.) (mem. op.) (holding that record of calls placed and received on company 

cell phone, one ending a half-hour before driving accident and two brief calls beginning about a 

half-hour after the accident, did not establish fact issue regarding course and scope of 

employment at time accident occurred).

Without—at minimum—some fact that would permit a reasonable person to infer

Cervenka’s destination, the record does no more than raise a surmise or suspicion that Cervenka 

was acting in the course and scope of his employment. See Painter, 561 S.W.3d at 137
4

(explaining that “employee was not within the scope of employment while using his employer’s 

vehicle to run a personal errand, even though he was not restricted from using the truck for 

personal business” (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757–58 

(Tex. 2007))); Breedlove v. Moffitt, No. 12-21-00037-CV, 2022 WL 1286564, at *3 (Tex. 

App.—Tyler Apr. 29, 2022, pet. denied) (mem. op.) (concluding that while “there is no doubt 

that [the employee] was working on the day in question,” the “evidence does not permit a 

factfinder reasonably to determine the location of [the employee’s] primary destination at the

time of the accident so as to support a finding that he was within the course and scope of his 

employment at that time”).

Because Cook failed to raise a fact issue on whether Cervenka was acting in the 

course and scope of his employment/agency at the time of the accident, I would affirm the 

district court’s grant of no-evidence summary judgment on that claim.

For these reasons, I concur in part and respectfully dissent in part.

__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Triana and Theofanis

Filed: February 16, 2024