NUMBER 13-11-00585-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

 

ROBERT ZISSA JR., Appellant,

v.

EUTON’S HARLEY DAVIDSON, Appellee.

 

On appeal from the 135th District Court

of Victoria County, Texas.

 

MEMORANDUM OPINION

Before Justices Rodriguez, Benavides, and Perkes

Memorandum Opinion by Justice Benavides

By two issues, appellant, Robert Zissa Jr., appeals two adverse summary 

judgment rulings—one from a motion for traditional summary judgment and the other on 

no-evidence grounds—in favor of appellee Euton’s Harley Davidson, Inc. (“EHD”). We 

affirm.
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I. BACKGROUND

On July 5, 2006, Zissa test-drove an EHD customer’s motorcycle through the 

streets of Victoria, Texas when he ran a stop sign and collided with a 2002 GMC Yukon 

sports utility vehicle. At the time of the accident, Zissa was employed by EHD as a 

motorcycle technician and was acting in the course and scope of his employment. 

Zissa sustained serious bodily injuries including the loss of his right leg. Zissa 

estimated his medical bills related to the accident to be approximately $600,000.

Zissa sued EHD, which was a non-subscriber under the Texas Workers’ 

Compensation Act and thus potentially responsible for work-related injuries under the 

common-law principles of negligence. TEX. LABOR CODE ANN. § 406.033 (West Supp. 

2011). In his petition, Zissa alleged that EHD was negligent in: (1) failing to instruct 

employees on how to safely operate motorcycles; (2) failing to implement procedures to 

ensure employees would operate motorcycles safely; (3) ordering Zissa to test-drive a 

motorcycle without basic safety training; (4) ordering Zissa to test-drive a motorcycle 

when he was trained as a motorcycle technician and not a test-driver; (5) placing the task 

of test-driving motorcycles into Zissa’s job requirements without any training; and (6) 

failing to provide a safe place to test-drive motorcycles. Additionally, Zissa sued Harley 

Davidson Motor Company, Inc. and Harley Davidson, Inc. for negligence, as well as Tim 

and Dawn Euton, as owners of EHD, for conversion of proceeds collected for Zissa.1

EHD and the Eutons moved for traditional and no-evidence summary judgment on

all of Zissa’s claims. The trial court granted both motions and rendered a judgment that 

disposed of Zissa’s claims. This appeal ensued solely as to Zissa’s claims against 

 

1 Harley Davidson Motor Company, Inc., Harley Davidson, Inc., and Tim and Dawn Euton are not 

parties to this appeal. 
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EHD.

II. DISCUSSION

A. Traditional Motion for Summary Judgment

By his first issue, Zissa asserts that the trial court’s ruling on EHD’s traditional 

motion for summary judgment was improper.

1. Standard of Review

A party against whom a claim is asserted may, at any time, move for a summary 

judgment in its favor as to all or any part of the asserted claim. TEX. R. CIV. P. 166a(b). 

We review the trial court’s grant or denial of a summary judgment de novo. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Armstrong v. Hixon, 206 S.W.3d 175, 

180 (Tex. App.—Corpus Christi 2006, pet. denied). In our review, we take as true all 

evidence favorable to the nonmovant, and we indulge every reasonable inference and 

resolve any doubts in the nonmovant’s favor. Knott, 128 S.W.3d at 215; Armstrong, 

164 S.W.3d at 661. The movant bears the burden of showing that there is not genuine

issue of material fact and that it is entitled to judgment as a matter of law on the issues 

expressly set out in the motion. TEX. R. CIV. P. 166a(c); Knott, 128 S.W.3d at 216; 

Armstrong, 206 S.W.3d at 180. If a trial court’s order does not specify in its summary 

judgment order which ground it found meritorious, we must affirm the summary judgment 

if any of the theories presented to the trial court and preserved on appeal are 

meritorious. Knott, 128 S.W.3d at 216. 

2. Discussion
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In order to establish a negligence cause of action, a plaintiff must establish: (1) a 

legal duty; (2) breach of that duty; and (3) damages proximately resulting from the 

breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex. 1998). EHD argues that it 

(1) had no legal duty to Zissa at the time of the accident, (2) but even if EHD owed a 

legal duty to Zissa, the breach of said duty was not the proximate cause of Zissa’s 

injuries. The gravamen of Zissa’s complaints is that EHD had a duty to provide a safe 

workplace by: (1) instructing Zissa on safely riding a motorcycle while simultaneously 

diagnosing mechanical problems; (2) implementing safety procedures to ensure that 

employees safely test-drove motorcycles; and (3) providing a safe area to test-drive 

motorcycles. Specifically, EHD argues that the issue of duty in this case is controlled by 

well-established principles in Texas law. 

Generally, an employer has a duty to use ordinary care in providing a safe 

workplace. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam). For 

example, an employer must warn an employee of the hazards of employment and 

provide needed safety equipment or assistance. Id. However, an employer is not an 

insurer of its employee’s safety. Id.; Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 

1996). The employer owes no duty to warn of hazards that are commonly known or 

already appreciated by the employee. Elwood, 197 S.W.3d at 794 (citing Nat’l 

Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th 

Dist.] 1999, no pet.)). Additionally, when an employee’s injury results from performing 

the same character of work that employees in that position have always done, an 

employer is not liable if there is no evidence that the work is unusually precarious. 

Elwood, 197 S.W.3d at 765; Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995). 
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Finally, the age and experience of the employee should be considered in measuring the 

duty of the employer. See Allen v. A&T Transp. Co., Inc., 79 S.W.3d 65, 70 (Tex. 

App.—Texarkana 2002, pet. denied). The existence of a duty is a threshold question of 

law, and without a legal duty, our inquiry into whether negligence liability may be 

imposed ends. See Van Horn, 970 S.W.2d at 544. 

The evidence in the record shows that Zissa was an experienced motorcycle 

rider. Based on his own testimony, Zissa had been riding motorcycles for sixteen years 

prior to this accident. Tim Euton testified by affidavit that he had ridden “thousands of 

miles” alongside Zissa and never knew him to drive recklessly, disregard a stop sign, or 

fail to yield the right of way. Euton also testified that Zissa was previously prohibited 

from test-driving motorcycles until he exhibited the skills and qualifications necessary for 

the work, but Zissa had been test-driving motorcycles for approximately two years prior 

to the accident. EHD allowed Zissa to test-drive motorcycles because he had exhibited 

the skills and qualifications necessary to do so. According to the record, Zissa testified 

to test-driving motorcycles approximately seven to ten times a week over three years. 

Zissa admitted that the underlying accident was the only accident he experienced over 

the three years. In addition to Zissa, Euton and one other employee test-drove 

motorcycles. 

Zissa argues that EHD owed a duty to instruct him on how to safely test-drive 

motorcycles while diagnosing them for mechanical problems. We disagree. EHD’s 

duty to instruct applies only to inexperienced riders, which Zissa was not. See Nat’l 

Convenience Stores Inc., 987 S.W.2d at 149 (citing W.E. Grace Mfg. Co. v. Arp, 311 

S.W.2d 278, 281 (Tex. Civ. App.—Dallas 1958, writ ref’d n.r.e.)). Undisputed testimony 
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shows that Zissa was not allowed to test-drive motorcycles until he exhibited the skills 

and qualifications necessary for the job. By Zissa’s own admission, he test-drove 

motorcycles seven to ten times a week for three years without incident. Therefore, we 

conclude that EHD’s duty to instruct did not apply to Zissa. 

Next, Zissa argues that EHD owed a duty to implement safety rules for test-driving 

motorcycles while diagnosing mechanical issues. However, an employer does not 

have a duty to implement safety rules where its business is neither complex nor 

hazardous or where the dangers incident to the work are obvious or of common 

knowledge and fully understood by the employee. Allen, 79 S.W.3d at 70. Zissa’s 

responsibilities as an EHD employee of test-driving a motorcycle while diagnosing 

mechanical issues was neither complex nor hazardous in light of Zissa’s own testimony 

that he had test-driven motorcycles weekly for three years prior to this accident. Even 

assuming arguendo that test-driving a motorcycle to diagnose mechanical issues was 

complex or hazardous, ignoring traffic signals implicate the type of hazard that is

commonly known and appreciated by a motorcycle technician who test-drives 

motorcycles. See Elwood, 197 S.W.3d at 794; Matherne, 987 S.W.2d at 149. 

Therefore, we conclude EHD did not have a duty to implement safety rules in this case. 

For the same reasons, Zissa’s final argument—that EHD had a duty to provide an 

alternate place to test-drive the motorcycles—fails because the dangers of failing to 

follow traffic laws are obvious or of common knowledge. 

Under the facts of this case, we conclude that (1) EHD did not owe a duty to Zissa 

as a matter of law; (2) without establishing a duty, Zissa’s cause of action for negligence 

against EHD fails, see Chambers, 970 S.W.2d at 544; and (3) the trial court did not err in 
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its ruling on EHD’s motion for traditional summary judgment.2Zissa’s first issue is 

overruled. Furthermore, because we hold that Zissa’s negligence action cannot stand, 

we need not address his remaining issue on appeal regarding EHD’s no-evidence 

motion for summary judgment. See TEX. R. APP. P. 47.1. 

III. CONCLUSION

We affirm the trial court’s judgment. 

__________________________

GINA M. BENAVIDES,

Justice

Delivered and filed the

13th day of December, 2012. 

 

2 We recognize that today’s opinion renders an arguably harsh result. In light of this, we note 

recent Texas Supreme Court decisions, which have stressed and reiterated the mutual benefit for 

employers and employees under the Texas Workers’ Compensation Act:

The Texas Workers’ Compensation Act was adopted to provide prompt 

remuneration to employees who sustain injuries in the course and scope of their 

employment.... The act relieves employees of the burden of proving their employer's 

negligence, and instead provides timely compensation for injuries sustained on-the-job.... 

In exchange for this prompt recovery, the act prohibits an employee from seeking 

common-law remedies from his employer, as well as his employer's agents, servants, and 

employees, for personal injuries sustained in the course and scope of his employment.

See HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 358 (Tex. 2009); see also Tex. Mut. Ins. Co. v. Ruttiger, 

__S.W.3d__, 2012 WL 2361697, at *8 (Tex. June 22, 2012) (recognizing that the Texas Workers’ 

Compensation Act’s mutually beneficial purpose is shared by injured employees and their employers).