Jane Doe v. Yum! Brands, Inc. Pizza Hut, Inc. Muy Pizza Houston, LLC ( 2021 )

Opinion issued November 4, 2021.
In The
Court of Appeals
For The
First District of Texas
————————————
NOS. 01-19-00844-CV, 01-19-00845-CV & 01-19-00846-CV
———————————
JANE DOE, Appellant
V.
YUM! BRANDS, INC., PIZZA HUT, INC., AND MUY PIZZA HOUSTON,
LLC, Appellees
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2017-42257
OPINION
Appellant Jane Doe (“Doe”) alleges a pizza delivery driver employed by
appellee MUY Pizza Houston, LLC sexually assaulted her while delivering pizza to
her apartment. She appeals from the trial court’s order granting summary judgment
in favor of appellees YUM! Brands, Inc., Pizza Hut, Inc., and MUY Pizza Houston,
LLC on her claims of negligence and gross negligence based on her allegations of
sexual assault. Doe raises four issues on appeal. In her first two issues, Doe
contends the trial court erred in granting summary judgment on her claims of
negligence and gross negligence against appellees because she presented more than
a scintilla of evidence raising a genuine issue of material fact as to at least one
element of each of her claims. In her third issue, she asserts the trial court erred in
dismissing her vicarious liability claim against MUY Pizza Houston, LLC based on
its employee’s alleged sexual assault. In her fourth issue, Doe argues the trial court
abused its discretion in denying her request for a continuance of the summary
judgment proceedings to consider additional pending discovery. We affirm.
Background
Pizza Hut, Inc. (“Pizza Hut”) is the franchisor of “Pizza Hut” branded
restaurants. YUM! Brands, Inc. (“YUM”) is the indirect parent company of Pizza
Hut. MUY Pizza Houston, LLC (“MUY”) is a franchisee of Pizza Hut.1 In March
2017, MUY hired Jimmy Rachal (“Rachal”) as a pizza delivery driver at its
restaurant located at 20051 Interstate Highway 45, in Spring, Texas (“Spring
Restaurant”).
1
MUY operates more than 500 Pizza Hut, Taco Bell, and KFC restaurants across
seven states and has more than 10,000 employees.
2
On June 23, 2017, Doe sued YUM, Pizza Hut, and MUY alleging Rachal had
sexually assaulted her when he delivered pizza to her apartment on April 28, 2017.
She alleged Rachal “stepped inside [her] home with the pizza, closed the door,
directed that [Doe] lay on the floor, and thereafter sexually assaulted her.” In her
second amended petition—the live pleading in this case—Doe asserted negligence,
negligence per se, and gross negligence claims against all three appellee corporate
entities, alleging specifically:
• Negligent hiring of Rachal;
• Failure to properly screen and/or perform background checks on their
employees;
• Failure to hire qualified and adequately trained employees and/or
agents;
• Failure to properly train their employees and/or agents;
• Failure to supervise their employees and/or agents;
• Failure to create and/or enforce adequate safety policies and
procedures;
• Failure to take action to prevent the incident in question;
• Vicarious liability for their employees and/or agents;
• Violation of applicable government regulations, law, and rules; and
• Other acts deemed negligent and grossly negligent.
3
In addition to her claims against the corporate entities, Doe sued Rachal for assault
and battery and intentional infliction of emotional distress.2 Pizza Hut, YUM, MUY,
and Rachal filed their respective answers.
YUM and Pizza Hut filed a traditional motion for summary judgment arguing
Doe’s negligence, gross negligence, and negligence per se claims failed as a matter
of law. As to Doe’s negligence claim, Pizza Hut and YUM argued they did not owe
a duty to Doe because they neither had the right to, nor exercised, any control over
MUY’s day-to-day business affairs, including employment practices and relations,
of the Spring Restaurant. In response to Doe’s claim for gross negligence, Pizza Hut
and YUM argued they did not commit any acts or omissions involving an extreme
degree of risk, and they did not possess the right or ability to oversee or control
activities at the Spring Restaurant or the behavior of MUY’s employees. Finally, as
to Doe’s negligence per se claim, Pizza Hut and YUM argued they did not have the
authority to regulate MUY’s employees, and Doe did not identify relevant statutes
that would impose on them a standard of conduct for purposes of civil liability, even
if violated. Alternatively, they argued Doe had no evidence to support the elements
of her negligence, gross negligence, or negligence per se claims. As summary
judgment evidence, Pizza Hut and YUM attached to their motion the Location
Franchise Agreement (“LFA”) between Pizza Hut and MUY dated November 15,
2
The claims against Rachal are not involved in this appeal.
4
2010, the affidavit of Dawson Bremer, MUY’s Chief Legal Officer, and MUY’s
Hourly Personnel Worksheet for Rachal.
Doe responded to the motion for summary judgment and filed a motion for
continuance of the summary judgment hearing. She argued that while she had not
yet received meaningful discovery from Pizza Hut and YUM, the evidence currently
available raised genuine issues of material fact as to each of her claims precluding
summary judgment. She argued the evidence showed Pizza Hut controls its
franchisees through its corporate policies, MUY (its franchisee) is Pizza Hut’s actual
or ostensible agent, and YUM exerted control over Pizza Hut franchisee employees.
Doe asked the trial court to deny the motion for summary judgment or continue its
consideration of the motion to allow Doe to conduct necessary discovery. As part
of her response, Doe attached several email chains between the parties’ counsel
related to discovery, Doe’s discovery requests, the LFA, Doe’s affidavit, and
screenshots from (1) Pizza Hut’s mandatory training for franchisees, (2) its quality
assurance program, and (3) YUM’s training portal.3
Doe then filed a verified motion for continuance and supplemental response
to Pizza Hut’s and YUM’s summary judgment motion. As summary judgment
evidence, she attached Pizza Hut’s Brand Standards Manual (“Manual”) and the
3
The parties initially agreed to postpone the hearing on the motion pending additional
discovery.
5
expert report and deposition transcript of John Gordon, her designated expert. YUM
and Pizza Hut responded to Doe’s motion for continuance and filed a reply in support
of their motion for summary judgment.
MUY separately filed a combined traditional and no-evidence motion for
summary judgment, arguing it could not be held liable vicariously for Rachal’s
alleged intentional torts or criminal acts against Doe because they were not within
the course and scope of Rachal’s employment. As for Doe’s claims of negligent
hiring, supervision, and training, MUY argued there was no evidence that Rachal’s
alleged sexual assault of Doe was foreseeable and, without foreseeability, Doe could
not establish the requisite negligence elements of duty and proximate cause. MUY
further argued it did not know, nor by the exercise of reasonable care should have
known, that Rachal was either unfit or incompetent for his job-related duties thereby
creating an unreasonable risk of harm to others, and there is no legal duty for an
employer to train its employees to refrain from sexually assaulting customers. In
response to Doe’s claim for negligent screening or failure to conduct a background
check of Rachal, MUY asserted there was no evidence (1) Rachal had any propensity
to commit sexual assault, (2) MUY had an actual subjective awareness that hiring
Rachal would create any risk of harm to others, or (3) a background check would
have revealed any aberrant behavior. As summary judgment evidence, MUY
attached to its motion the deposition transcript of MUY’s Corporate Representative
6
Steve Guerra (“Guerra”), Texas Department of Public Safety background check
records reflecting Rachal had no prior criminal history, and the deposition transcript
of Deputy Daniel Wareham.
In response to MUY’s motion, Doe argued the evidence showed MUY was
negligent in its duties as Rachal’s employer, and MUY knew or should have known
through the exercise of reasonable care that Rachal was unfit or incompetent for his
position as a pizza delivery driver and posed an unreasonable risk of harm to Doe.
In support of her gross negligence claim, Doe argued the evidence showed MUY
failed to follow the screening and hiring requirements in the LFA to safeguard the
public and consciously disregarded Doe’s safety by allowing Rachal to deliver pizza
to her apartment. Doe also asserted that Rachal’s refusal to answer certain questions
during his deposition based on his Fifth Amendment right against self-incrimination
was relevant evidence from which the factfinder could draw adverse inferences. Doe
requested a continuance of the trial court’s consideration of MUY’s summary
judgment motion until she received responses to her outstanding discovery requests.
As summary judgment evidence, Doe attached to her response the Manual, portions
of Rachal’s employment application, screenshots of Rachal’s Twitter profile and a
Facebook post, a map view of Doe’s house in relation to the Spring Restaurant, a
pizza ticket, photos of a pizza bag, Rachal’s handwritten statement, Harris County
Sheriff’s Office records, call records, discovery requests, and the deposition
7
transcripts of Rachal, Guerra, Pizza Hut’s and YUM’s Corporate Representative Ty
Alford (“Alford”), MUY Assistant Manager Collins Thomas, MUY Human
Resources Director Gina Bucci, MUY District Manager Carlos Argueta, and Doe’s
attorney, Noah Wexler.
On June 28, 2019, the trial court granted summary judgment in favor of YUM
but denied summary judgment as to Pizza Hut. On August 29, 2019, following a
hearing, the trial court granted MUY’s combined motion for summary judgment and
Pizza Hut’s summary judgment motion. The trial court ordered that Doe take
nothing by way of any claims or causes of actions asserted against MUY, Pizza Hut,
and YUM, and granted appellees’ motions to sever.
Standard of Review
We review a trial court’s summary judgment ruling de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a party moves
for both traditional and no-evidence summary judgment, we first review the trial
court’s ruling under the no-evidence standard of review. Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court properly granted the
no-evidence motion, we need not analyze the arguments raised in the traditional
summary judgment motion. Id.After an adequate time for discovery, a party may move for a no-evidence
motion for summary judgment on the ground that no evidence exists of one or more
8
essential elements of the claim or defense on which the adverse party bears the
burden of proof at trial. TEX. R. CIV. P. 166a(i); see LMB, Ltd. v. Moreno, 201
S.W.3d 686, 688 (Tex. 2006). The burden then shifts to the nonmovant to produce
evidence raising a genuine issue of material fact on the challenged elements of its
claim or defense. TEX. R. CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006). A no-evidence summary judgment is improper if the
nonmovant brings forth more than a scintilla of probative evidence raising a genuine
issue of material fact. Forbes, Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172
(Tex. 2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak
as to do no more than create a mere surmise or suspicion’ of a fact.” Id. at 172
(quoting King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal
quotation omitted)). More than a scintilla exists if it would allow reasonable and
fair-minded people to differ in their conclusions. Id. Unless the nonmovant raises
a genuine issue of material fact, the trial court must grant summary judgment. TEX.
R. CIV. P. 166a(i).
A party who files a no-evidence motion for summary judgment under Rule
166a(i) essentially requests a pretrial directed verdict. Mack Trucks, 206 S.W.3d at
581. We review the evidence presented by the summary judgment record in the light
most favorable to the party against whom summary judgment was rendered,
crediting evidence favorable to that party if reasonable jurors could and disregarding
9
contrary evidence unless reasonable jurors could not. Id. at 582 (citing City of Keller
v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).
When reviewing a traditional summary judgment motion, we take as true all
evidence favorable to the nonmovant, and we indulge in every reasonable inference
and resolve any doubts in the nonmovant’s favor. Valence Operating, 164 S.W.3d
at 661 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215
(Tex. 2003)). To prevail on a traditional summary judgment motion, the movant
must establish that no genuine issues of material fact exist and that it is entitled to
judgment as a matter of law. TEX. R. CIV. P. 166a(c). When, as here, the trial court’s
order does not state the grounds for the court’s decision, we must uphold the
judgment if any of the theories advanced in the motion are meritorious. Provident
Life, 128 S.W.3d at 216.
Negligence Claims Against MUY
In her first issue, Doe contends the trial court erred in granting summary
judgment on her claims of negligence and gross negligence against MUY because
she raised more than a scintilla of evidence raising genuine issues of material fact.
She argues she adduced evidence that (1) MUY hired Rachal and sent him to Doe’s
apartment without performing a background check, (2) a background check would
have revealed “red flags” in the form of Rachal’s provocative social media posts, (3)
Rachal informed MUY’s managers of his intention or propensity to harm Doe before
10
the alleged sexual assault but MUY failed to prevent the harm, and (4) MUY failed
to check on Rachal’s whereabouts when he was away from the Spring Restaurant
for an unreasonable amount of time on the day of the alleged sexual assault.
A. Applicable Law
“Negligent hiring, training, supervision, and retention claims are ‘simple
negligence causes of action based on an employer’s direct negligence rather than on
vicarious liability.’”4 Black v. Smith Protective Services, Inc., No. 01-14-00969-CV,
2016 WL 5400565, at *3 (Tex. App.—Houston [1st Dist.] Sept. 23, 2016, no pet.)
(mem. op.) (quoting Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.–Fort
Worth 2008, no pet.)); see also Mindi M. v. Flagship Hotel, Ltd, 439 S.W.3d 551,
557 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (explaining that this is not “the
type of tort that depends on proof of an employee performing a negligent or
intentional act within the course and scope of his employment”). To assert direct
liability based on a negligence claim, the plaintiff must prove the existence of a legal
duty, breach of that duty, and damages proximately resulting from the breach.
Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
4
The Texas Supreme Court has not ruled definitively on the existence or elements of
claims for negligent hiring, retention, supervision or training. See Waffle House,
Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010) (“We have not ruled
definitively on the existence, elements, and scope” of negligent retention and
supervision of employees or related torts “such as negligent training and hiring.”).
11
Duty is the threshold inquiry. It is a question of law for the court to decide
based on the facts surrounding the occurrence in question. Id. In determining
whether to impose a duty on a particular defendant, courts weigh (1) the risk
involved, (2) foreseeability of the risk, (3) likelihood of injury, and (4) the social
utility of the actor’s conduct and the magnitude of the burden on the
defendant. See id. Foreseeability of the risk is the foremost and dominant
consideration. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
Foreseeability means that a person of ordinary intelligence should have anticipated
the dangers his negligent act created for others. Nixon v. Mr. Property Mgmt. Co.,
690 S.W.2d 546, 549–50 (Tex. 1985).
As a general rule, a person has no legal duty to protect another from the
criminal acts of a third person or to control the conduct of another. Centeq Realty,
Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). However, when an employer hires
an employee, the employer must exercise reasonable care to see that the employee
is competent and fit for the job. Mindi, 439 S.W.3d at 557. “An employer is
negligent if the employer hires, retains, or supervises an employee whom the
employer knows, or by the exercise of reasonable care should have known, is unfit
or incompetent, and whose unfitness or incompetence creates an unreasonable risk
of harm to others because of the employee’s job-related duties.” Id. Negligence in
hiring requires that the employer’s failure to investigate, screen, or supervise its
12
hired employee be a proximate cause of the plaintiff’s alleged injuries. Fifth Club,
Inc. v. Ramirez, 196 S.W.3d 788, 796 (Tex. 2006) (quoting Doe v. Boys Clubs of
Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex. 1995)).
B. Negligence Claims
In its traditional motion for summary judgment, MUY challenged the
elements of duty and proximate cause of Doe’s negligent claims. MUY argued it
did not have a duty to perform a background check of Rachal because it neither
knew, nor by the exercise of reasonable care should have known, that Rachal was
unfit or incompetent, or that his unfitness or incompetence created an unreasonable
risk of harm to others because of his job-related duties. It also argued that, based on
information gleaned from a background check, MUY could not have foreseen that
hiring Rachal could result in criminal activity or harm to others, because Rachal had
no prior criminal record.
Doe argues MUY has a legal duty to protect its customers, including Doe, and
to take reasonable steps to hire, retain, and supervise its employees. In her summary
judgment response, she argued MUY had a duty to perform a background check on
Rachal and it breached its duty by failing to perform a background check before
hiring him as a delivery driver. Doe argues that a background check would have
revealed “red flags” in the form of Rachal’s provocative social media posts that
13
would have put MUY on notice that hiring Rachal posed an unreasonable risk of
harm to her and others.
An employer owes a duty to its other employees and to the public to determine
the qualifications and competence of the employees 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.” Najera v. Recana Solutions, LLC, No.
14-14-00332-CV, 2015 WL 4985085, at *3 (Tex. App.—Houston [14th Dist.] Aug.
20, 2015, no pet.) (mem. op.). An employer may be liable to a third party if it hires,
retains, or supervises an employee whom it either knows or should have known is
not competent or fit for the job and whose incompetence or unfitness creates an
unreasonable risk of harm to others because of the employee’s job-related
duties. See Mindi M., 439 S.W.3d at 557; Soon Phat, L.P. v. Alvarado, 396 S.W.3d
78, 100–01 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Thus, the issue
here is whether MUY placed Rachal in a situation that created a foreseeable risk of
harm to others because of his employment duties.
Texas courts have held that a duty to investigate a prospective employee exists
in situations where the employee will have special access to a particularly vulnerable
group. See Scott Fetzer Co. v. Read, 945 S.W.2d 854, 866 (Tex. App.—Austin
1997), aff’d, 990 S.W.2d 732 (Tex. 1998) (concluding vacuum cleaner manufacturer
which sold its products only through distributors who acted as independent
14
contractors and hired individuals to make door–to–door sales owed duty to take
reasonable precautions to prevent or deter its distributors from hiring persons with
histories of crime, violence, or sexually deviant behavior as dealers); Porter v.
Nemir, 900 S.W.2d 376, 386–87 (Tex. App.—Austin 1995, no writ) (recognizing
higher duty in context of drug and alcohol abuse treatment counselors); Deerings W.
Nursing Ctr. v. Scott, 787 S.W.2d 494, 496 (Tex. App.—El Paso 1990, writ denied)
(recognizing higher duty for persons involved in care of elderly). Doe contends the
position of delivery driver is one of trust between a restaurant and its customers. She
argues delivery drivers have direct access to the homes of vulnerable individuals
such as women alone in their homes at night. In support of her contention, Doe
points to Guerra’s testimony that MUY is aware its customers open their doors to its
delivery drivers at home and that such interactions require the customers’ trust that
such interactions will be safe. MUY responds there is no evidence Rachal had access
to particularly vulnerable individuals and therefore no special relationship exists that
justifies imposing a duty on MUY to investigate Rachal’s criminal background.5 We
need not decide this issue today.
5
At oral argument, MUY’s counsel asserted that a bright-line rule exists between
those cases in which the employee’s job requires him to enter the “inner sanctum”
of a customer’s residence and cases such as this one where, according to MUY, a
pizza delivery driver’s job duties do not require him to enter the customer’s home.
15
As we have noted, foreseeability of risk is the foremost and dominant
consideration in a duty analysis. El Chico Corp., 732 S.W.2d at 311. Absent
foreseeability, “there is no duty.” NationsBank, N.A., 922 S.W.2d at 954. It is
undisputed MUY did not perform a background check on Rachal before hiring him
as a delivery driver. However, when a negligence claim is based on a failure to
screen or perform a background check, the plaintiff must also show (1) a reasonable
employer would not have hired the employee had a background check been
performed or (2) a background check would have put the employer on notice that
hiring the employee would create an unreasonable risk of harm to others. See TXI
Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010); Fifth Club, 196 S.W.3d
at 796–97. Stated differently, the question is whether, based on information gleaned
from a background check, MUY should have foreseen that hiring Rachal could result
in criminal activity or risk to others. See Wrenn, 73 S.W.3d at 496; Mindi M., 439
S.W.3d at 557 (regarding screening and background checks “the relevant inquiry is
whether ‘anything found in a background check’ would have placed the employer
on notice that hiring the employee would create an unreasonable risk of harm to
others”).
MUY presented summary judgment evidence that it conducted a criminal
history search of Rachal after the alleged sexual assault. The search records included
a “Criminal History File, Sex Offender Registration and Name Based Files.”
16
Certified DPS records reflect no matching records and no criminal records for
Rachal. Thus, MUY could not have foreseen Rachal’s alleged “dangerous
propensity” from a criminal background check. Doe nonetheless sought to raise a
fact issue on foreseeability by attaching two social media posts from Rachal’s
Facebook and Twitter accounts, which she argues should have put MUY on notice
it was hiring a “sexual predator.” In a 2012 Facebook post, Rachal is pictured (waist
up) clothed wearing a cap and a white t-shirt, holding one hand up while making a
sign, and holding a cell phone device in his other hand next to the caption, “Suk my
dick.” And a screenshot of Rachal’s Twitter account shows an undated “follow” of
a pornographic account. Doe also points to the deposition testimony of Alford, Pizza
Hut’s and YUM’s corporate representative, that the postings should have caused
concern and Rachal should not have been hired based on such postings.
Doe cites no authority, nor are we aware of any, suggesting an employer has
a duty to go beyond performing a background check to examine a prospective
employee’s social media accounts to determine whether hiring the individual would
create an unreasonable risk of harm to others.6 Even if such a duty existed, Rachal’s
2012 Facebook post and Twitter follow of a pornographic website do not constitute
evidence that would have placed MUY on notice that hiring Rachal could result in
6
Nor does Doe explain the parameters of such an alleged duty, such as for example,
how far back an employer would have to search, what social media sites, and
whether consents must first be obtained.
17
criminal activity or risk to others. See Seideneck v. Cal Bayreuther Assocs., 451
S.W.2d 752, 755 (Tex. 1970) (“[W]hen the evidence offered to prove a vital fact is
so weak as to do no more than create a mere surmise or suspicion of its existence,
such evidence is in legal effect no evidence, and it will not support a verdict or
judgment.”). Rachal’s 2012 Facebook post—posted when Rachal was thirteen years
old and five years before his hire date—and an undated Twitter “follow” of a
pornographic website, although unquestionably tasteless and inappropriate, do not
raise a genuine issue of fact concerning foreseeability of Rachal’s alleged propensity
to commit a sexual assault years later. See Fifth Club, 196 S.W.3d at 796–97
(holding employee’s failure to comply with requirement in peace officer manual and
his reprimand for using profanity to member of public did not make his assault of
customer foreseeable); Barton v. Whataburger, 276 S.W.3d 456, 463 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied) (“While Love’s convictions, if discovered,
should have raised Whataburger’s suspicions about his fitness to manage a
restaurant, under Texas law, they did not make his eventual participation in an
aggravated robbery leading to murder reasonably foreseeable.”); Houser v.
Smith, 968 S.W.2d 542, 545 (Tex. App.—Austin 1998, no pet.) (“Whether
[defendant] would have fired [the criminal actor] had he discovered [his] forgery
convictions is irrelevant. . . . the question presented is whether [the actor’s] criminal
conduct and the type of harm that befell [plaintiff] were foreseeable and presented a
18
risk that [defendant] was required to guard against by investigating [the actor’s]
criminal background. Under these facts, we hold the conduct and harm were not
foreseeable . . . .”).
Similarly, Alford’s testimony that Rachal should not have been hired based
on his social media posts does not constitute evidence MUY should have foreseen
that hiring Rachal could result in criminal activity or risk to others. See Capece v.
Navisite, Inc., No. 03-02-00113-CV, 2002 WL 31769032, at *8 (Tex. App.—Austin
Dec. 12, 2002, no pet.) (concluding plaintiff presented no evidence from which it
could be inferred defendants’ employees would commit crime of sexual assault
where plaintiff was not foreseeable victim of any sexual conduct or crime by
employees and no one reported any acts of sexual misconduct by employees prior to
alleged incident).
Doe also argues MUY was negligent in supervising Rachal because before the
alleged sexual assault, Rachal informed MUY’s managers of his intention or
propensity to harm Doe. MUY argues that despite this knowledge, MUY failed to
prevent the harm or check on Rachal’s whereabouts on April 28, 2017, after he was
absent from the Spring Restaurant for an unreasonable amount of time while out
delivering Doe’s pizza.
There is no evidence in the record Rachal directly informed his managers of
his alleged intentions. Rather, Doe argues we should draw an adverse inference
19
against MUY on this issue because Doe invoked his Fifth Amendment right against
self-incrimination during his deposition in response to questions over information
he allegedly provided to his manager before leaving the Spring Restaurant on April
28, 2017. For example, based on his Fifth Amendment rights, Rachal refused to
answer the following questions:
Q: Mr. Rachal, when you left the store to deliver the pizza to [Doe’s]
apartment complex, you informed your manager that you intended on
raping the customer as you left the store?
Q: When you informed MUY Pizza-Houston, LLC, Pizza Hut, and
YUM! Brands of your intent to utilize your appearance and image as a
Pizza Hut delivery driver to gain access to [Doe’s] apartment and
sexually assault her, your supervisors and employers did nothing in
response, correct?
Q: The defendant, MUY Pizza-Houston, LLC, put you in a position of
trust, knowing you intended on raping customers, including [Doe],
prior to you leaving the store with a pizza to deliver to her on April 28,
2017?
According to MUY, because Rachal refused to answer these (and other) questions
during his deposition, we should draw an adverse inference that Rachal told his
supervisors about his alleged intentions to harm Doe and MUY failed to prevent the
harm, which inference, Doe argues, raises an issue of material fact precluding
summary judgment on her negligence claims. Doe’s argument is unavailing.
Even if Doe’s invocation of his Fifth Amendment right could give rise to an
adverse inference against MUY, an issue we need not decide, an adverse inference is
not sufficient by itself to meet a party’s burden of proof. Without “some probative
20
evidence of the elements of a party’s claim, any negative inference that might be
drawn from the invocation of the ‘privilege against self-incrimination cannot rise
beyond mere suspicion.’” Brauss v. Triple M. Holding GmbH, 411 S.W.3d 614, 623
(Tex. App.—Dallas 2013, pet. denied). Moreover, while a factfinder in a civil action
may draw certain inferences from a party’s refusal to answer questions based on the
Fifth Amendment, such inferences must be “reasonable under the circumstances.”
Texas Capital Secs., Inc. v. Sandefer, 58 S.W.3d 760, 779 (Tex. App.—Houston [1st
Dist.] 2001, pet. denied).
The record does not reflect Rachal directly informed his managers of his
alleged intentions. An inference Rachal told his supervisor he was going to sexually
assault someone and that MUY failed to take steps to prevent the harm based solely
on Rachal’s refusal to answer questions from Doe’s counsel is not reasonable. See
In re Moore, 153 S.W.3d 527, 534 (Tex. App.—Tyler 2004, mand. denied)
(concluding drawing inference from attorney’s invocation of Fifth Amendment
privilege during testimony at hearing that he participated in alleged conspiracy
would be no more than pure speculation and was not reasonable based solely upon
attorney’s refusal to identify third party). Rachal’s invocation of his Fifth
Amendment rights is no evidence he informed MUY’s managers of his intention to
sexually assault Doe or that despite knowledge of Rachal’s intentions, MUY did
nothing to prevent the harm.
21
We hold Doe failed to come forth with more than a scintilla of evidence to
satisfy the foreseeability element of her negligence claims against MUY. See Mindi
M., 439 S.W.3d at 557. The trial court did not err in rendering summary judgment
on Doe’s negligence claims against MUY.
C. Gross Negligence Claim
In her second amended petition, Doe also asserted a claim for gross negligence
against MUY. To recover on a claim of gross negligence, the plaintiff must prove
two elements: (1) viewed objectively from the standpoint of the defendant at the time
of the occurrence, the defendant’s act or omission involved an extreme degree of
risk, considering the probability and magnitude of the potential harm to others; and
(2) the defendant had actual, subjective awareness of the risk involved, but
nevertheless proceeded with conscious indifference to the rights, safety, or welfare
of others. See TEX. CIV. PRAC. & REM. CODE § 41.001(11); Lee Lewis Constr., Inc.
v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Extreme risk does not mean a remote
possibility of injury or even a high probability of minor harm, but rather the
likelihood of serious injury to the plaintiff. See U–Haul Int’l, Inc. v. Waldrip, 380
S.W.3d 118, 137 (Tex. 2012). Actual awareness focuses on the defendant’s state of
mind; the plaintiff must prove that the defendant knew about the peril but did not
care. See La.–Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex. 1999).
22
Doe’s gross negligence claim is based on the same acts or omissions
underlying her negligence claims. She asserts MUY should have conducted a
background check before hiring Rachal as a delivery driver. She also argues there
is evidence MUY knew or should have known of Rachal’s intention to harm Doe
based on Rachal’s refusal to deny or otherwise respond to certain deposition
questions over information Rachal allegedly provided to his manager about his
intention to harm Doe and MUY’s alleged failure to prevent the harm. She asserts
this evidence shows MUY had an actual subjective awareness of the risk Rachal
posed to Doe, but nevertheless proceeded in conscious indifference to her rights,
safety, and welfare.
Doe did not produce any evidence MUY had an actual, subjective awareness
that hiring Rachal as a delivery driver would create any risk of harm to others, much
less an extreme risk. And for the reasons already discussed, Rachal’s invocation of
his Fifth Amendment right does not support an adverse inference that MUY knew
about Rachal’s alleged intent to sexually assault Doe or failed to prevent the harm
despite such knowledge. See Sandefer, 58 S.W.3d at 779. Accordingly, MUY was
entitled to summary judgment on Doe’s gross negligence claim.7
We overrule Doe’s first issue.
7
Doe does not challenge on appeal the granting of summary judgment on her
negligence per se claim and therefore we do not consider it.
23
D. Vicarious Liability
In her third issue, Doe argues the trial court erred in dismissing her claim for
vicarious liability against MUY based on Rachal’s conduct.
Generally, a person has no duty to control the conduct of another. Otis Eng’g
Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). Under the theory of respondeat
superior, however, an employer may be liable vicariously for the negligent acts of
its employee if the employee’s actions are within the course and scope of his
employment. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex.
2018). Within 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. Painter, 561 S.W.3d at 132
(quoting Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)).
If “an employee deviates from the performance of his duties for his own purposes,
the employer is not responsible for what occurs during that deviation.” Id. at 131.
Intentional torts “committed in the accomplishment of a duty entrusted to the
employee, rather than because of personal animosity,” may render the employer
liable. See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 617 (Tex.1999) (holding
employer vicariously liable for regular and daily pattern of verbal abuse,
humiliation, and terror by supervisor). In cases involving assault, to “impute
responsibility for such intentional acts to an employer, it is incumbent upon the
24
plaintiff to prove the assault was closely connected with the servant’s authorized
duties, and not the result of personal animus.” Garrett v. Great Western Distrib.
Co., 129 S.W.3d 797, 800 (Tex. App.—Amarillo 2004, pet. denied). “[A]ssault is
usually the expression of personal animosity and is not for purposes of carrying out
the employer’s business.” Wrenn, 73 S.W.3d at 494.
In support of her vicarious liability claim, Doe argues Rachal exploited his
position of trust as a pizza delivery driver to gain access to Doe’s apartment where
he allegedly sexually assaulted her. She points to evidence showing Rachal was
delivering a Pizza Hut pizza, dressed in a Pizza Hut uniform, and delivering pizza in
response to Doe’s internet order. Even if true, this evidence does not establish
Rachal’s alleged sexual assault of Doe was in furtherance of MUY’s business or for
the accomplishment of an object for which he was employed. Rather, Rachal’s
sexual assault of Doe, if it occurred, was for his own prurient interest and during its
commission, he was no longer acting for MUY. See Painter, 561 S.W.3d at 137
(explaining “an employer is not responsible for what occurs when an employee
deviates from the performance of his duties for his own purpose”). The delivery of
pizza at that point was only a pretense or a means for Rachal’s alleged conduct. See
Shutters v. Domino’s Pizza, Inc., 795 S.W.2d 800, 803 (Tex. App.—Tyler 1990, no
pet.) (“Although one’s employment may be the occasion for the wrongful act or may
give a convenient opportunity for execution, an injury does not arise out of one’s
25
employment if the assault is not connected with the employment or is for reasons
personal to the victim as well as the assailant.”). There is no correlation between
Rachal’s duties as a pizza delivery driver and the alleged sexual assault of Doe, nor
was the assault “so connected with and immediately arising out of Rachal’s
employment tasks [as a delivery driver] as to merge the activities into one indivisible
tort.” See Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.]
2004, no pet.) (holding neurological examination during which doctor allegedly
placed his penis in patient’s hand was merely pretense or means for doctor’s
inappropriate personal gratification); Mackey v. U.P. Enters., Inc., 935 S.W.2d 446,
454 (Tex. App.—Tyler 1996, no pet.) (concluding restaurant managers’ alleged
sexual assaults of employee were not connected to employment duties, were solely
acts of managers, and were not within scope of generally authority conferred by
employer); Kelly v. Stone, 898 S.W.2d 924, 928 (Tex. App.—Eastland 1995, writ
denied) (concluding supervisor’s assault against employee and supervisor’s
comments to employee about his desires that they belonged together were not in
furtherance of employer’s business or within scope of supervisor’s general
authority).
Rachal’s alleged sexual assault of Doe was not within the course and scope of
his employment, and thus MUY cannot be held liable under a theory of respondeat
26
superior. The trial court did not err in granting summary judgment on Doe’s
vicarious liability claim against MUY.
We overrule Doe’s third issue.
Negligence Claims Against Pizza Hut and YUM
In her second issue, Doe argues the trial court erred in granting summary
judgment on her negligence and gross negligence claims against Pizza Hut and
YUM. She claims she adduced evidence Pizza Hut and YUM (1) controlled all
aspects of MUY’s operations, including hiring and pizza delivery standards, through
corporate policies, (2) failed to enforce their policies through site visits or
inspections, and (3) exercised control over MUY’s use of the Pizza Hut marks, and
Doe relied on the Pizza Hut brand and appearance in allowing delivery to her home.
A. Applicable Law
“An independent contractor is one who, in pursuit of an independent business,
undertakes specific work for another using his or her own means and methods
without submitting to the control of the other person as to the details of the
work.” Farlow v. Harris Methodist Fort Worth Hosp., 284 S.W.3d 903, 911 (Tex.
App.—Fort Worth 2009, pet. denied). “As a general rule, one who employs an
independent contractor has no duty to ensure that the contractor safely performs its
work.” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864–65 (Tex. 2021).
“Because an independent contractor has sole control over the means and methods of
27
the work to be accomplished,” the entity that hires or enters an agreement with the
independent contractor is generally not liable vicariously for the tort or negligence
of the contractor. Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex.
1998) (citations omitted). An exception to this rule arises when the contracting
entity “retains some control over the manner in which the contractor performs the
work that causes the damage.” Hernandez, 622 S.W.3d at 865.
To determine whether a franchisor is liable vicariously for a franchisee’s
conduct, “we consider whether the franchisor has the right to control the franchisee
with respect to the details of that conduct.” See Domino's Pizza, L.L.C. v. Reddy,
No. 09-14-00058-CV, 2015 WL 1247349, at *1 (Tex. App.—Beaumont Mar. 19,
2015, pet. denied), cert. denied, 137 S. Ct. 395 (2016) (citing State Farm Mut. Auto.
Ins. Co. v. Traver, 980 S.W.2d 625, 627 (Tex. 1998)); see also Limestone Prod.
Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (citations omitted).
The right of control test remains the “the keystone” for imposing liability on a
franchisor based on the actions of a franchisee or the franchisee’s employees. See
Farlow, 284 S.W.3d at 911; Smith v. Foodmaker, Inc., 928 S.W.2d 683, 687 (Tex.
App.—Fort Worth 1996, no writ). Under this test, we must examine whether the
franchisor has the right to control the franchisee in the details and methods of its
work. Smith, 928 S.W.2d at 687. “A plaintiff can prove the requisite control by
establishing that the general contractor either actually controlled the manner in
28
which the subcontractor performed its work or had a contractual right to do so.”
Hernandez, 622 S.W.3d at 865.
To trigger vicarious liability, the right to control must extend to the specific
activity from which the injury arose. Id. (holding that control must relate to
condition or activity that caused injury); see also Farlow, 284 S.W.3d at 911–12.
Further, the control must extend to the “means, methods, or details” of the
independent’s contractor’s work. Hernandez, 622 S.W.3d at 865. Several factors
aid the right-of-control determination, including (1) the independent nature of the
business; (2) the obligation to furnish tools, supplies, and materials; (3) the right to
control work progress, except as to final results; (4) the time of employment; and (5)
the method of payment. Id. at 911. “A possibility of control is not evidence of a
‘right to control’ actually retained or exercised.” See Reddy, 2015 WL 1247349, at
*4 (citing Coastal Marine Serv., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex.
1999)). Absent clear facts to the contrary, under typical circumstances, a franchisee
is an independent contractor. Dulce Rests., L.L.C. v. Tex. Workforce Comm’n, No.
07-19-00213-CV, 2020 WL 5755016, at *5 (Tex. App.—Amarillo Sept. 25, 2020,
no pet.) (mem. op.).
“A contract expressly providing that a person is an independent contractor is
determinative of the relationship absent evidence that the contract is a mere sham or
subterfuge designed to conceal the true legal status of the parties or that the contract
29
has been modified by a subsequent agreement between the parties.” Farlow, 284
S.W.3d at 911. “Evidence that the parties did not intend for an independent
contractor relationship can come from the contract itself, i.e., whether, despite
language describing the relationship as an independent contractor relationship, other
contract language evidences such a right of control that the relationship is actually
that of employer/employee.” Reddy, 2015 WL 1247349, at *1 (citing Farlow, 284
S.W.3d at 911). “It can also come from extrinsic evidence, such as instances of
actual control by the principal sufficient to show that the true agreement of the
parties vested a right of control establishing an employment relationship.” Id. (citing
Farlow, 284 S.W.3d at 911).
B. Vicarious Liability
Doe contends she presented evidence Pizza Hut and YUM retained a right to
control MUY’s hiring practices and policies thus raising a genuine issue of material
fact precluding summary judgment on her vicarious liability claim. Alternatively,
she argues YUM and Pizza Hut are liable under a theory of ostensible agency for
MUY’s negligence.
1. Right of Control
Pizza Hut and YUM moved for summary judgment on the duty element of
Doe’s negligence claims. Pizza Hut and YUM argued that under the LFA, MUY is
an independent contractor, not an agent of Pizza Hut or YUM, and neither Pizza Hut
30
nor YUM has the right to control MUY’s screening, hiring, training, or supervision
of Rachal, and neither exercised such control. Thus, they argue, they cannot be held
liable to Doe for MUY’s alleged negligent conduct.
The LFA establishes MUY is an independent contractor. The LFA states:
[Pizza Hut] and Franchisee are not and will not be considered as joint
venturers, partners, or agents of each other. Neither Franchisee nor
[Pizza Hut] will have the power to bind or obligate the other except as
set forth in this Agreement. Franchisee specifically acknowledges that
the relationship created by this Agreement is not a fiduciary, special, or
any other similar relationship, but rather is an arm’s-length business
relationship. [Pizza Hut] owes Franchisee no duties except as expressly
provided in this Agreement.
Doe argues Pizza Hut and YUM nonetheless exerted significant control over MUY
and Rachal as evidenced by various provisions of the LFA and Pizza Hut’s Manual.
She asserts that under the LFA, MUY must adhere to the Manual, which explains
and defines the proper operation of System Restaurants8 and sets forth the standards
of operation for MUY. According to Doe, the LFA makes clear Pizza Hut “has sole
discretion to interpret the standards that it sets forth in the Manual and elsewhere”
and MUY must “comply with any change in the standards within the time-frame set
by [Pizza Hut].” Doe relies on the following language in the Manual:
• “All Franchisees and Licensees must become familiar with these Brand
Standards in order to ensure compliance. . . . Failure to comply with
the Brand Standards may constitute a breach of one or more provisions
8
The LFA defines “System Restaurants” as only three types of “Pizza Hut” restaurant
concepts: (a) “Red Roof: restaurants, (b) delivery restaurants, and (c)
delivery/carryout restaurants.”
31
of a Franchise Agreement . . . which could result in a notice of default
requiring prompt remediation. Failure to timely remediate such a
breach may result in termination of franchise or license rights.”
• “Franchisees and Licensees must comply with any such new or
changed standard[s] by the date specified in any such update.”
• “System Restaurants can only be operated with the necessary
consistency that our customers deserve if each and every one of them
complies closely with [Pizza Hut]’s exacting operational standards.”
• Where Pizza Hut “manuals, policies, or procedures establish a higher
standard than local laws or governmental regulations or requirements,
then Franchisees and Licensees shall comply with such [Pizza Hut]
standards unless prohibited by law from so doing.”
Doe argues these requirements “show a level of control that Pizza Hut maintained
and/or exercised over MUY that gives rise to a legal duty.” Doe’s argument is
unconvincing.
The decision in Domino’s Pizza Hut, L.L.C. v. Reddy, No. 09-14-00058-CV,
2015 WL 1247349, at *1 (Tex. App.—Beaumont Mar. 19, 2015, pet. denied), cert.
denied, 137 S. Ct. 395 (2016) is instructive. There, a pizza delivery driver employed
by MAC Pizza Management, Inc. (“MAC”), a Domino’s Pizza (“Domino’s”)
franchisee, struck another vehicle, killing one of the occupants and injuring the
other. See id. at *1. Reddy, as guardian, sued MAC and Domino’s for negligence.
See id. The trial court rendered judgment on the jury’s verdict in favor of Reddy,
and Domino’s appealed. See id.
32
Domino’s contended, among other things, the evidence was legally
insufficient to establish that it owed a duty to the vehicle’s occupants because it had
no right to control MAC’s day-to-day operations, did not exercise control over the
injury-producing acts, and could not be held vicariously liable. See id. Reddy
argued Domino’s had both a contractual right of control and actual control, pointing
to evidence showing (1) MAC had to comply with Domino’s specifications,
standards, and operating procedures, including the methods and procedures relating
to receiving, preparing, and delivering customer orders, (2) Domino’s unilaterally
could modify its standards and procedures and conduct inspections, (3) Domino’s
could terminate the franchise agreement if MAC violated corporate standards and
procedures, (4) Domino’s standards regulated driver age and history, safety, vehicle
inspections, and driver conduct during deliveries, (5) the corporate guidelines
promoted speeding among delivery drivers by use of the thirty-minute rule, PULSE
time tracking, evaluations that factored delivered times into their scores and affected
bonuses, and encouragement of incentives to improve job performance, and (6)
Domino’s decided the store’s delivery area and provided directions and maps
through PULSE. See id. at *4.
The court of appeals concluded the evidence was legally insufficient to
support the jury’s finding that Domino’s controlled or had the right to control the
details of the injury-producing acts or omissions of MAC and its employees. See id.
33
The court stated the fact that Domino’s retained the right to terminate the franchise
agreement, retained a right to receive evaluations and other reports, had a right to
conduct inspections, or required MAC to comply with Domino’s procedures and
rules was not evidence that Domino’s had a right of control. See id. The court held
that although Domino’s had authority to modify its own rules and regulations, the
right to prescribe alterations and deviations was not the type of supervisory control
sufficient for imposing a duty on Domino’s. See id. It also held the fact that
Domino’s had set general minimum operational standards did not negate the
franchise agreement’s independent contractor provision. See id. at *5. The court
reversed the trial court’s judgment and rendered judgment dismissing Reddy’s
claims against Domino’s. See id.
As in Reddy, the fact that Pizza Hut retained the right to terminate the
franchise agreement or require MUY to comply with Pizza Hut’s procedures is not
evidence of control. See id. at *4 (stating fact that franchisor retained right to
terminate franchise agreement was not evidence that Domino’s had right of control);
Bell v. VPSI, Inc., 205 S.W.3d 706, 714, 720 (Tex. App.—Fort Worth 2006, no
pet.) (noting right to terminate agreement and requirements for compliance with
applicable practices, laws, and regulations that relate to performance of the
agreement are not evidence of right to control details of work); Dow Chem. Co. v.
Bright, 89 S.W.3d 602, 606–07 (Tex. 2002) (rejecting argument that Dow had right
34
to control by virtue of requiring Bright to comply with Dow’s rules and regulations.).
Similarly, Pizza Hut’s right to modify its own standards or impose new ones is not
the type of supervisory control sufficient to impose a duty on Pizza Hut.
See Johnston v. Oiltanking Hous., L.P., 367 S.W.3d 412, 419 (Tex. App.—Houston
[1st Dist.] 2012, no pet.). “A possibility of control is not evidence of a ‘right to
control’ actually retained or exercised.” Lawrence, 988 S.W.2d at 226. These
provisions simply do not show Pizza Hut and YUM had a right to control MUY with
respect to the details and methods of its operations. See Limestone Prod. Distrib.,
71 S.W.3d at 312 (citations omitted); Reddy, 2015 WL 1247349, at *4.
Doe argues Pizza Hut’s control extends to MUY’s pizza delivery standards,
training, and hiring. In support of this argument, Doe points to the testimony of
Pizza Hut’s and YUM’s corporate representative, Alford, that “adequate delivery
service” as defined in the LFA requires Pizza Hut’s franchisees’ drivers be properly
screened and trained before they perform deliveries. Doe also relies on the testimony
of MUY’s corporate representative, Guerra, that the Manual requires franchisees to
develop a written policy and consistent process for conducting criminal background
checks on delivery drivers. Doe also points to Guerra’s testimony that Pizza Hut
provides the employee training modules MUY uses and conducts audits of MUY to
ensure and score MUY’s compliance.
35
That Pizza Hut sets general minimum operational standards for its franchisees
does not establish Pizza Hut has the right to control MUY in the details of its
operations. See Fitz v. Days Inns Worldwide, Inc., 147 S.W.3d 467, 473 (Tex.
App.—San Antonio 2004, pet. denied). To the contrary, the LFA and Manual make
clear MUY retains the right to control the means, methods, and details of
implementing operational standards, including specifically those related to its
employment practices. For example, under the heading “Employment Relations,”
Section 13.1 of the LFA states that MUY “will be solely responsible for all of [its]
employment practices, including hirings, terminations, and other personnel actions.”
Similarly, under the heading “Training and Team Member Brand Standards,”
Section 1.9 of the Manual provides that “[a]ll team members and managers working
in System Restaurants and Express Outlets must meet specified training and
appearance standards. Franchisees and Licensees are solely responsible for the
implementation of these standards and for all of their employment practices,
including hiring, performance management, termination and other personnel
actions.” And Section 1.9.3 of the Manual, which addresses background checks,
provides:
Franchisees and Licensees must develop a written policy and consistent
process for conducting criminal background checks on: (1) all
restaurant management positions; and (2) delivery drivers. Franchisees
and Licensees shall set their own standards consistent with the law, but
at a minimum must use a process that identifies Registered Sex
Offenders for review.
36
The same is true of Pizza Hut’s right to conduct audits to ensure and score
MUY’s compliance with employee training. Such a right does not demonstrate
Pizza Hut has a right to control MUY in the details of its operations. Reddy, 2015
WL 1247349, at *3–5 (concluding franchise agreement under which franchisor
retained right to require audit and conduct certain inspections of franchisee was not
evidence that franchisor had right of control); Ellwood Tex. Forge Corp. v. Jones,
214 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (stating
right to inspect progress is insufficient to establish right of control); see also Shell
Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004) (“It has long been the rule that a
right to receive reports is not a right to control.”).
Alford also confirmed MUY retained control over the details and methods of
implementing its own employment practices. He testified franchisees are solely
responsible for implementation of standards and employment practices, including
hiring and training, that the Manual sets forth the minimum standards for hiring
delivery drivers, and that franchisees are in charge of their own employees, who are
not employees of Pizza Hut.
We thus hold Doe did not provide more than a scintilla of evidence that Pizza
Hut and YUM had the right to control MUY with respect to the details and methods
of its operations, or as more germane here, that Pizza Hut or YUM had the right to
control “the specific activity from which the [alleged] injury arose.” Farlow, 284
37
S.W.3d at 911–12. The trial court thus did not err in granting summary judgment
on Doe’s negligence claim against YUM and Pizza Hut.
2. Ostensible Agency
Doe contends, alternatively, Pizza Hut and YUM are liable for MUY’s actions
under the doctrine of “ostensible agency.” Generally, a person who retains or
contracts with an independent contractor is not liable vicariously for the tort or
negligence of that person. Baptist Mem’l Hosp. Sys., 969 S.W.2d at 947.
“Nevertheless, an . . . entity may act in a manner that makes it liable for the conduct
of one who is not its agent at all or who, although an agent, has acted outside the
scope of his or her authority.” Id. Liability may be imposed in this way under the
doctrine of ostensible agency “when the principal’s conduct should equitably
prevent it from denying the existence of an agency.” Id. (citing Marble Falls Hous.
Auth. v. McKinley, 474 S.W.2d 292, 294 (Tex. Civ. App.—Austin 1971, writ ref’d
n.r.e.)).
Ostensible agency in Texas is based on the notion of estoppel, that is, a
representation by the principal that causes justifiable reliance resulting in
harm. See Ames v. Great S. Bank, 672 S.W.2d 447, 450 (Tex. 1984). To establish
a claim of ostensible agency, a plaintiff must show (1) she had a reasonable belief in
the agent’s authority, (2) her belief was generated by some holding out, by act or
neglect, of the principal, and (3) she was justified in relying on the representation of
38
authority. Valdez v. Pasadena Healthcare Mgmt., Inc., 975 S.W.2d 43, 46 (Tex.
App.—Houston [14th Dist.] 1998, pet. denied). The inquiry focuses on the acts and
conduct of the principal, not the agent.
Doe argues Pizza Hut held out MUY as its agent based on its national
advertising, the requirement that MUY’s local advertising be in an approved content
and form, and Pizza Hut’s exercise of control over MUY’s use of Pizza Hut
trademarks. Doe argues that although MUY may engage in its own local advertising,
all advertising materials used by MUY must “be in strict conformity with the
standards, formats, and specimens contained in the Manual or otherwise established
by Pizza Hut,” and MUY may not “use any design, advertisement, sign, or form of
publicity, unless first submitted to Pizza Hut and approved by Pizza Hut in
writing[.]” Doe also points to evidence that MUY cannot use “any trademark,
service mark, trade name, or trade dress (including product package design) other
than Pizza Hut Marks, without Pizza Hut’s prior written consent” and “all
exterior/interior signage, and all promotional and advertising materials [are] to bear
the Pizza Hut Marks as instructed by [Pizza Hut].”
Doe’s arguments concerning the use of advertising do not show an ostensible
agency. Doe appears to focus on MUY’s, rather than Pizza Hut’s, advertising
activities and conduct. As noted, ostensible agency focuses on the actions of the
principal, not the agent. Sampson, 969 S.W.2d at 949 (holding that a “prerequisite
39
to a proper finding of apparent authority is evidence of conduct by the principal”)
(emphasis added). Moreover, use of a national brand in general advertising is
indicative of a franchise relationship rather than an agency relationship. See, e.g.,
Braucher ex rel. Braucher v. Swagat Grp., L.L.C., 702 F. Supp.2d 1032, 1045 (C.D.
Ill. 2010) (“The use of the brand name shows a franchise relationship, but the
existence of a franchise does not create an agency.”); McKinnon v. YUM! Brands,
Inc., Case No. 1:15-CV-00286-BLW, 2017 WL 3659166, at *9 (D. Idaho Aug. 24,
2017) (“[T]he majority of jurisdictions to have addressed the issue have concluded
that uniform product branding and marketing across a franchise does not, by itself,
create an objectively reasonable expectation that the franchisee functions as an agent
of the franchisor.”); see also Carris v. Marriott Int’l, Inc., 466 F.3d 558, 562 (7th
Cir. 2006) (“Almost everyone knows that chain outlets, whether restaurants, motels,
hotels, resorts, or gas stations, are very often franchised rather than owned by the
owner of the trademark that gives the chain its common identity in the
marketplace.”). It is also unclear how Pizza Hut’s control of its own trademarks or
the requirement that MUY’s local advertising conform to Pizza Hut standards
establishes Pizza Hut held MUY out as its agent. National advertising and use of
brand names do not, without more, represent to third parties that a franchisee acts as
the franchisor’s apparent agent. See, e.g., Triplett v. Soleil Grp. Inc., 664 F. Supp
2d 645, 657 (D.S.C. 2009). And, under Texas law, evidence of a relationship does
40
not by itself evidence an agency relationship. Kimbrell v. Memorial Hermann Hosp.
System, 407 S.W.3d 871 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding
evidence of infomercial stating doctor was surgeon at Memorial Hermann, by itself,
was not evidence that doctor was agent of hospital).
Doe points to her affidavit in which she attested that “[p]rior to placing my
order … I was familiar with Pizza Hut television advertising. I placed my order
because I was familiar with the Pizza Hut brand from advertising. At the time I
placed my order, I did not know that the [Spring Restaurant] was owned by a
franchisee in general, or by [MUY] in particular.” Doe’s affidavit does not identify
any specific advertisement or explain how the television advertising she references
establishes Pizza Hut held MUY out as its agent. We further note there is no
evidence that the advertisement was placed by Pizza Hut rather than MUY. As we
discussed, under the LFA, MUY is required to conduct local broadcast advertising,
and, at its discretion, MUY may conduct local digital and social media advertising
and local email marketing. Doe’s statement that she was familiar with the Pizza Hut
brand also does not establish reliance. She does not aver she would not have ordered
from the Spring Restaurant without the advertising.
We thus hold Doe failed to produce more than a scintilla of evidence
establishing (1) Pizza Hut or YUM had the right to control MUY with respect to
MUY’s screening, hiring, training, or supervision of Rachal or that Pizza Hut or
41
YUM exercised such control, (2) Pizza Hut or YUM engaged in affirmative conduct
holding MUY out as its agent, or (3) Doe justifiably relied on any representation of
authority. We conclude the trial court properly granted summary judgment on Doe’s
negligence claims against Pizza Hut and YUM.
C. Gross Negligence
Doe contends she produced sufficient evidence to raise a genuine issue of
material fact showing Pizza Hut and YUM were grossly negligent. As discussed, to
prevail on a gross negligence claim, a plaintiff must prove (1) that, viewed from the
standpoint of the defendant at the time of the occurrence, the defendant’s act or
omission involved an extreme degree of risk, considering the probability and
magnitude of the potential harm to others, and (2) the defendant had actual,
subjective awareness of the risk involved, but still proceeded with conscious
indifference to the rights, safety, or welfare of others. See TEX. CIV. PRAC. & REM.
CODE § 41.001(11); Lee Lewis Constr., 70 S.W.3d at 785.
Doe argues the evidence shows “Defendants were grossly negligent in the
hiring and retention of Rachal.” She argues that when MUY hired Rachal, Pizza
Hut and YUM were aware Rachal was applying to be a delivery driver. Doe argues
that had Pizza Hut and YUM followed their own requirements and standards enacted
to safeguard the public, the hiring of Rachal should have never happened. She
claims Pizza Hut and YUM acted with careless disregard for the safety of Pizza Hut
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customers when they hired Rachal to be a delivery driver without adhering to the
requirements of performing the necessary safety, background, and sex offender
checks. This argument is unavailing.
There is no evidence either Pizza Hut or YUM hired Rachal or were aware
Rachal applied to be a delivery driver for MUY. Further, even if Doe argues Pizza
Hut and YUM were grossly negligent based on an agency theory, we have already
concluded Doe has not produced sufficient evidence to raise a fact issue on the
elements of her ostensible agency theory. Thus, Doe failed to come forth with more
than a scintilla of evidence Pizza Hut or YUM had an actual subjective awareness
that hiring Rachal as a delivery driver would involve an extreme degree of risk but
still proceeded with conscious indifference to Doe’s safety. The trial court did not
err in rendering summary judgment on Doe’s gross negligence claims against Pizza
Hut and YUM.
We overrule Doe’s second issue.
Motion for Continuance
In her fourth issue, Doe contends the trial court abused its discretion in failing to
grant her motion for continuance to conduct additional outstanding relevant
discovery.
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A. Standard of Review
A trial court has broad discretion to deny or grant a motion for continuance.
See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); McAleer v. McAleer, 394
S.W.3d 613, 617 (Tex. App.—Houston [1st Dist.] 2012, no pet.). A trial court
abuses its discretion when it acts in a manner so arbitrary and unreasonable that it
amounts to a clear and prejudicial error of law. McAleer, 394 S.W.3d at 617. We
cannot substitute our judgment for that of the trial court in matters committed to the
trial court’s discretion. Id. In determining whether a trial court abused its discretion
in denying a motion for continuance seeking more time for discovery, we consider
the following non-exclusive list of factors: “the length of time the case has been on
file, the materiality and purpose of the discovery sought, and whether the party
seeking the continuance has exercised due diligence to obtain the discovery
sought.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).
B. Analysis
Doe contends that following Rachal’s deposition, she served Rachal with
specific discovery requests tailored to obtain information to defeat MUY’s summary
judgment motion and show MUY knew or should have known of Rachal’s alleged
dangerous propensity. The discovery included requests for production of Rachal’s
cell phone, laptop computer, certain medical records, and complete downloads of
his Facebook, Twitter, Instagram, and Snapchat social media profiles. Doe also
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served requests for admissions on Rachal that he (1) used his cell phone to speak to
Doe and to his manager on the day of the alleged sexual assault, (2) used his laptop
to view pornographic media, (3) had a membership and a subscription with
pornographic websites, and (4) had accounts with Facebook, Twitter, Instagram, and
Snapchat. Doe argues that because these requests were designed to procure
information showing MUY knew or should have known of Rachal’s alleged
dangerous tendencies, the trial court abused its discretion by issuing its summary
judgment ruling before allowing adequate time for the requested discovery to be
completed.
The record reflects Doe served her additional discovery requests on Rachal on
August 5, 2019—more than two months after the discovery period expired on May
31, 2019, and more than two years after she first filed suit on June 23, 2017. See id.(noting length of time case has been on file should be considered in determining
whether trial court abused its discretion in denying continuance). Doe argues the
requested discovery was material to show the extent of Rachal’s contact with MUY
on April 28, 2017, to establish MUY knew or should have known of Rachal’s alleged
intentions or dangerous propensity.
The record shows Doe’s counsel did not obtain testimony from MUY’s
district manager, Carlos Argueta, or any other MUY employee on this matter to
support this theory. Argueta could not recall the nature of his conversation with
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Rachal on April 28, 2017. Thus, the fact Rachal may have called Argueta that night,
without more, does not show the discovery requests were material. Finally, it does
not appear Doe requested the trial court to modify the discovery deadlines to permit
the additional discovery pursuant to Texas Rule of Civil Procedure 190.5. See TEX.
R. CIV. P. 190.5 (allowing modification of discovery control plan). Under these
circumstances, we cannot say the trial court abused its discretion in ruling on the
motion for summary judgment without allowing the additional discovery.
We overrule Doe’s fourth issue.
Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra.
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