Harris County, Texas v. Claudia Ramirez ( 2019 )

Reversed and Rendered and Majority and Concurring Opinions filed July 16,
2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00718-CV
HARRIS COUNTY, TEXAS, Appellant
V.
CLAUDIA RAMIREZ, Appellee
On Appeal from the County Civil Court at Law No. 1
Harris County, Texas
Trial Court Cause No. 1081071
CONCURRING OPINION
Acknowledging the unambiguous statutory text at issue in Texas
Transportation Code Section 284.0701, I am reluctantly compelled to concur in the
court’s judgment while doubting its premise. I write separately to express said
doubts because the statute at issue seemingly creates a heretofore unknown
category of vicarious strict liability to sellers in specific arms-length business
transactions despite the absence of wrongdoing. Rather than silently participate in
the apparent creation of a new theory of vicarious liability on a non-briefed issue
of first impression concerning an unambiguous Texas statute, I believe a balancing
test should be performed (after notice and an opportunity to be heard) to determine
(1) whether there is any rational basis for the enactment of said statute and (2)
whether it should hold people like Ms. Ramirez strictly and vicariously liable for
the conduct of an unrelated third-party despite the absence of personal wrongdoing
and control.
Even when constitutional considerations are suspended, the legitimacy of
statutory vicarious strict liability upon sellers of automobiles in Texas appears to
be at least questionable under (inter alia) Texas law. Even assuming arguendo the
statute at bar is not imposing statutory strict criminal (i.e., punitive) vicarious
liability, Texas law imposes strict civil vicarious liability via (inter alia) (1)
conspiracy (concerted action by agreement),1 (2) aiding-abetting (concerted action
by substantial assistance),2 (3) respondeat superior,3 (4) joint-enterprise,4 (5)
1
See Agar Corp. v. Electro Circuits Int’l, LLC, No. 17-0630, 2019 WL 1495211, at *3
(Tex. Apr. 5, 2019) (civil conspiracy is “a theory of vicarious liability” that “requires some
underlying wrong”).
2
See Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996). Accord Halberstam v. Welch,
705 F.2d 472, 477 (D.C. Cir. 1983) (“Aiding-abetting includes the following elements: (1) the
party whom the defendant aids must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an overall illegal or tortious activity at
the time that he provides the assistance; (3) the defendant must knowingly and substantially
assist the principal violation.”) (citing Inv’rs Research Corp. v. Sec. & Exch. Comm’n, 628 F.2d
168, 178 (D.C. Cir. 1980); Woodward v. Metro Bank of Dallas, 522 F.2d 84, 94-95 (5th Cir.
1975); and Landy v. Fed. Deposit Ins. Corp., 486 F.2d 139, 162-63 (3d Cir. 1973)).
3
Shoemaker v. Whistler’s Estate, 513 S.W.2d 10, 13-15 (Tex. 1974); see also Porter v.
Grennan Bakeries, 16 N.W.2d 906, 909-10 (Minn. 1944) (collecting authorities).
4
See Shoemaker, 513 S.W.2d at 16 (“By way of history, we know that the law of
partnership and the principles of agency serve as a foundation for the doctrine of joint enterprise.
A step away from partnership is joint venture, a concept that is generally more limited in time
and in purpose than a partnership. While a joint venture encompasses fewer objectives than a
partnership, both exist in a business or commercial setting. Joint enterprise, which may be
considered a third stage of development, is an unique creation of American jurisprudence.
American courts have applied this doctrine almost solely in the field of automobile law[.]”).
2
partnership,5 (6) business partner agreements,6 (7) special relationships,7 and (8)
negligent entrustment.8
Whether the instant statute is analogous to these precedents has not been
briefed; therefore, neither the Plaintiff/Appellant nor the State had either notice or
an opportunity to respond to same and the majority is understandably reticent to
sua sponte analyze these issues. Even without briefing, however, the instant case
appears both distinguished from each of the foregoing and well-established
precedents and contrary to the principles of vicarious liability under controlling
Texas law. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 146 (Tex. 2003)
(“The common-law principles that define when there will be vicarious liability are
designed to assign liability for injury to third parties to the party who was directing
the details of the negligent actor’s conduct when that negligence occurred.”); see
also Newspapers, Inc. v. Love, 380 S.W.2d 582, 588-89 (Tex. 1964) (citing Philip
Mechem, Outlines of the Law of Agency, 349-363; John H. Wigmore,
Responsibility for Tortious Acts: Its History, 7 Harv. L. Rev. 315, 383, 441 (1894);
William O. Douglas, Vicarious Liability and Administration of Risk, 38 Yale L. J.
584, 720 (1929); and Clarence Morris, The Torts of an Independent Contractor, 29
Ill. L. Rev. 339 (1934)).
While the Legislature is presumably authorized to create laws imposing
strict liability, those laws should comport with fundamental rationality and
controlling Texas jurisprudence. Here, Texas Transportation Code Section
284.0701 imposes vicarious liability upon someone who does nothing more than
sell their vehicle to a third party that proceeds to break a specific law therewith.
5
Howsley & Jacobs v. Kendall, 376 S.W.2d 562, 567 (Tex. 1964).
6
See Pinkerton v. United States, 328 U.S. 640, 651-52 (1946) (Rutledge, J., dissenting in
part).
7
In re Xerox Corp., 555 S.W.3d 518, 523 n.22 (Tex. 2018).
8
See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 758 (Tex. 2007).
3
This particular imposition of vicarious liability does not require a showing of (1)
fault, (2) lack of reasonableness, (3) a violation of any law or duty, (4) control over
the third party, or (5) causation. As a result, it is at least arguably both contrary to
Texas law and beyond the power of the Legislature. See Wingfoot Enters., 111
S.W.3d at 146; see also Hurtado v. People of the State of Cal., 110 U.S. 516, 536
(1884) (“Arbitrary power, enforcing its edicts to the injury of the persons and
property of its subjects, is not law, whether manifested as the decree of a personal
monarch or of an impersonal multitude. And the limitations imposed by our
constitutional law upon the action of the governments, both state and national, are
essential to the preservation of public and private rights, notwithstanding the
representative character of our political institutions.”)
Due to the absence of briefing and the justifiable propriety of the majority’s
restraint from adjudicating the merits of the statute’s rationality, I concur in the
judgment while doubting its premise.
/s/ Meagan Hassan
Justice
Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan
(Zimmerer, J., majority).
4