Regina Kay Smith and Jeffrey Scott Grove, as Surviving Parents of Brittany Dawn Grove v. USI Industrial Services, Inc.

Summary

The Thirteenth Court of Appeals of Texas affirmed summary judgment for USI Industrial Services, Inc. in a wrongful-death action arising from an automobile accident involving former USI employees. The court held that the employees were no longer employed by USI at the time of the accident and that USI did not control their return travel, defeating claims based on respondeat superior and non-employee mission liability.

Holdings

1. The Groves failed to raise a genuine issue of material fact that Rodriguez was a USI employee when the accident occurred because the undisputed evidence showed that USI terminated him before the trip home. Without employee status, the respondeat superior claim could not proceed.
2. USI was not liable under non-employee mission liability because the return trip was not conducted subject to USI's direction or control. Because the control element failed, the court did not reach whether the trip benefited USI.
3. Any error in considering allegedly conclusory portions of Smith's affidavit was harmless because the court's disposition rested on two undisputed facts: Rodriguez and Ayala were released from employment before the trip, and USI did not control the manner or route of travel.

Questions Presented

1. Whether a genuine issue of material fact existed that Rodriguez was an employee of USI at the time of the accident for purposes of respondeat superior.
2. Whether USI could be vicariously liable under the doctrine of non-employee mission liability when Rodriguez's return trip was not subject to USI's direction or control.
3. Whether the trial court erred by relying on allegedly conclusory statements in USI supervisor Sherman Smith's affidavit in granting summary judgment.

Disposition

affirmed