Litisha Peshoff v. Klein Investments, Inc ( 2023 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-20-00115-CV
________________
LITISHA PESHOFF, Appellant
V.
KLEIN INVESTMENTS, INC., Appellee
________________________________________________________________________
On Appeal from the 172nd District Court
Jefferson County, Texas
Trial Cause No. E-201,156
________________________________________________________________________
MEMORANDUM OPINION
Litisha Peshoff appeals the trial court’s final summary judgment dismissing
all of her claims against Klein Investments, Inc. In three issues on appeal, Peshoff
argues that the trial court erred 1) when it refused to consider her late filed response
to the motion for summary judgment; 2) when it granted summary judgment on
issues not pleaded for; and 3) when it subsequently denied her motion for new trial.
For the reasons set forth, we affirm.
1
Background
In October 2016, Peshoff was driving a vehicle with her passenger Noel
Jackowski, in Jefferson County. Stephen Hartman began following her in a black
pickup truck. Hartman was a “bounty hunter” employed and licensed “with Klein”
who provided investigation services. Klein had a contract with Al Reed Bail Bonds
to apprehend its clients who, after being bonded out of jail, had failed to appear for
court or otherwise violated the terms of their bond. Al Reed held a bail bond on
Jackowski, the passenger.
According to Peshoff’s pleadings, Hartman began to drive in an unsafe and
threatening manner–speeding, pulling alongside Peshoff several times, and
following at an unsafe distance. Peshoff and Jackowski could see Hartman leering
at them as he attempted to close the distance between their cars. After several
minutes of this terrifying behavior, Hartman pulled alongside Peshoff, rolled down
his window, and ordered Peshoff to pull to the side of the road. Not knowing
Hartman, Peshoff did not comply. Peshoff was fearful of Hartman’s threatening and
unsafe behavior. It is undisputed that Peshoff saw Hartman pull alongside her
vehicle and point a gun at her vehicle. Peshoff then contacted “authorities.” At an
intersection, Hartman exited his vehicle and, once again, pointed the gun at Peshoff’s
vehicle and told Peshoff that he had a warrant for Jackowski’s arrest and Peshoff
pulled into a church parking lot. Hartman placed Jackowski in handcuffs and the
2
police arrived. At the scene, Hartman was arrested for deadly conduct and
unlawfully carrying a weapon. Hartman was subsequently convicted of deadly
conduct.
Procedural History
In January 2018, Peshoff filed suit against Klein, Stephen L. Hartman, and
Crime Pays, LLC dba Al Reed Bail Bonds. 1 Peshoff alleged Klein was liable for
negligent hiring and supervision. Peshoff further alleged that Klein was vicariously
liable for the intentional torts of “threat of bodily injury,” “intentional infliction of
emotional distress,” “intrusion upon seclusion,” “false imprisonment,” and for
negligence and negligence per se, all alleged to have been committed by Stephen L.
Hartman while in the course and scope of his employment with Klein or with
authority delegated to him by Klein. In addition to seeking “economic” damages for
physical pain, mental anguish and medical care expenses, she sought exemplary
damages. After the suit had been pending for a year and a half, on June 26, 2019, the
court entered a Docket Control Order setting trial for January 13, 2020. The relevant
deadlines were for: discovery (8/23/2019), to file dispositive motions (9/29/2019),
and it required dispositive motions to be set and heard no later than thirty days prior
trial (which was 12/13/2019). After the lawsuit had been pending for 21 months, on
1
The trial court signed an order of nonsuit of Peshoff’s claims against Stephen
L. Hartman and Crimes Pays, LLC dba Al Reed Bail Bonds. They are not parties to
this appeal.
3
September 27, 2019, Klein filed a Traditional and No Evidence Motion for Summary
Judgment. Attached to Klein’s motion as summary judgment evidence was
• Peshoff’s sworn deposition transcript,
• Peshoff’s trial testimony from Hartman’s criminal trial,
• Records of Peshoff’s husband’s criminal convictions for assault committed
against her,
• Peshoff’s answers to Klein’s interrogatories, and
• Peshoff’s medical records.
On December 5, 2019, Peshoff filed a Verified Motion for Continuance of Hearing
on Klein’s Motion for Summary Judgment set for hearing on December 12, 2019.
The trial court held a hearing regarding Klein’s Motion for Summary Judgment and
Peshoff’s Motion for Continuance. Klein’s attorney objected to the continuance with
regard to any evidence of Ms. Peshoff’s mental anguish claims because her
deposition had been taken three months prior to the hearing date:
[DEFENSE COUNSEL FOR KLEIN]: The first part of our motion
includes Ms. Peshoff’s claim for mental anguish. The transcripts he is
waiting on are of the defendants, not Ms. Peshoff. She’s been done. He
has had three months’ notice for whatever evidence he wants to present
on that. I don’t think there is any basis to get leave to supplement the
lack of a record on Ms. Peshoff.
4
Over Klein’s objection, the trial court orally granted Peshoff’s motion and
granted her leave to file a late response. The following exchange occurred at the
conclusion of the hearing:
THE COURT: Okay. So, I am obviously going to take this under
advisement at this time. [Plaintiff’s Attorney], I am looking at my
calendar here. I’m going to give you leave to file a written response;
and I’m going to rule on this matter via submission on December the
30th, which is the Monday after Christmas. Okay? Can you hear me,
sir?
[NO RESPONSE]
…
THE COURT: Can you hear me, [Plaintiff’s Attorney]?
[PLAINTIFF’S ATTORNEY]: I can.
THE COURT: I’m taking the motion under advisement. I’m going to
rule – I’m going to rule on the motion via submission on the 30th, which
is the Monday following Christmas. I’m giving you leave to file a
written response before that date. Okay?
[PLAINTIFF’S ATTORNEY]: Anytime before the 30th?
THE COURT: I am ruling on the 30th. I’m letting you know. I know
you have health problems. I read your pleadings. Hopefully that will
give you time to get your written submission.
[PLAINTIFF’S ATTORNEY]: I appreciate the consideration, your
Honor.
Peshoff filed her Response to Klein’s Motion for Partial Traditional and No-
Evidence Summary Judgment by e-file on December 30, 2019, at 9:22 p.m. On
December 30, 2019, the trial court granted Klein’s Traditional and No Evidence
5
Motion for Summary Judgment, and in the written order, included a memorialization
of his oral order on plaintiff’s Motion for Continuance filed in connection with the
earlier hearing on Klein’s summary judgment motion. In its order, the trial court
stated the following,
The Court finds that Plaintiff’s Motion for Continuance as to the
hearing on Klein Investment, Inc.’s Traditional and No Evidence
Motion for Summary Judgment should be granted to allow Plaintiff to
file a response to the motion on or before Sunday, December 29, 2019.
The Court finds that Klein Investments, Inc.’s Traditional and No
Evidence Motion for Summary Judgment will be reset and decided by
submission on Monday, December 30, 2019, and the Court will
consider any response filed by Plaintiff, prior to this date. Defendant’s
objections to restricting the evidence to the depositions taken in this
matter and which were the basis of Plaintiff’[s] Verified Motion for
Continuance and restricting Plaintiff’s ability to submit evidence
submitted by Litisha Peshoff is noted and OVERRULED.
The Court further finds that the reset of Klein Investments, Inc.’s
Traditional and No Evidence Motion for Summary Judgment does not
require re-notice of the hearing date set forth in Rule 166a of the Texas
Rules of Civil Procedure, and the Court finds proper notice of this
hearing was provided by the movant to Plaintiff.
Following review of the pleadings and evidence on file, filed prior to
Monday, December 30, 2019, the Court, by submission, finds that
Klein Investments, Inc.’s Traditional and No Evidence Motion for
Summary Judgment filed in this matter on September 27, 2019 should
be GRANTED;
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that
Defendant Klein Investments, Inc.’s Traditional and No Evidence
Motion for Summary Judgment is hereby GRANTED, and all of Litisha
Peshoff’s claims asserted in this matter against Klein Investments, Inc.
are DISMISSED WITH PREJUDICE to the right of Litisha Peshoff to
refile same in the future.
6
Peshoff filed a Verified Motion for New Trial arguing that, although her trial
counsel stated on the record that her reply to Klein’s motion for summary judgment
was due “before [December 30th[,]”, Peshoff’s counsel in good faith believed that
he had asked the Court for leave to file Peshoff’s response to Klein’s motion for
summary judgment any time on December 30, 2019 not before December 30th.
Peshoff’s counsel believed this relief had been granted. The trial court denied
Peshoff’s Motion for New Trial. Peshoff timely filed her appeal.
Issue Two: The Final Summary Judgment is overly broad
We first consider the second issue raised by Peshoff that the order granting
summary judgment was overbroad. Even if we consider the late-filed response to the
motion for summary judgment, filed at 9:22 p.m. on December 30, 2019, the
evidence would not be materially different from that produced by Klein in its motion
for summary judgment. In her second issue, Peshoff argues that the trial court abused
its discretion by granting Klein summary judgment on an issue that he did not present
in his motion. Peshoff argues that the trial court erred by granting summary judgment
on all of “Litisha Peshoff’s claims[,]” because Klein did not challenge her claims for
threat of bodily injury, intrusion upon seclusion, false imprisonment, and negligence
per se. It should be noted that Klein’s no evidence motion for summary judgment
specifically alleged that there was no evidence of: compensable mental anguish
damages as to the intentional torts pleaded; negligent hiring or supervision as to the
7
negligence and negligence per se claims; the intentional acts of Hartman being
within the course and scope of his employment as a matter of law; and showing
Peshoff was entitled to exemplary damages under these circumstances. Thus, Klein
attacked at least one element of each of Peshoff’s claims that were necessary for
Peshoff to prevail at trial. We believe that the issues were adequately raised in the
motion for summary judgment.
We review a trial court’s decision to grant summary judgment de novo. See
Shell Oil Co. v. Writt, 464 S.W.3d 650, 654 (Tex. 2015). We view the evidence in
the light most favorable to the nonmovant. Id. In doing so, we indulge every
reasonable inference and resolve any doubts against the motion. See City of Keller
v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). “Undisputed evidence may be
conclusive of the absence of a material fact issue, but only if reasonable people could
not differ in their conclusions as to that evidence.” Buck v. Palmer, 381 S.W.3d 525,
527 (Tex. 2012) (citation omitted).
After adequate time for discovery, a party may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a claim
on which the adverse party has the burden of proof. Tex. R. Civ. P. 166a(i). The
motion must specify which elements have no evidence. See id. “The court must grant
the motion unless the respondent produces summary judgment evidence raising a
genuine issue of material fact.” Id.8
When a no-evidence motion has been filed, it “is essentially a pretrial directed
verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence
summary judgment as we apply in reviewing a directed verdict.” King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003) (citations omitted). A no evidence
point will be sustained when (a) there is a complete absence of evidence of a vital
fact, (b) the court is barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital
fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact. See Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997).
A party moving for traditional summary judgment has the burden of
establishing there is no genuine issue of material fact as to at least one requisite
element of the asserted cause of action and that it is entitled to judgment as a matter
of law. See Tex. R. Civ. P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore,
LLC, 520 S.W.3d 39, 45 (Tex. 2017). When the trial court fails to specify the grounds
on which it granted summary judgment, we must affirm if any of the summary
judgment grounds are meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872-73 (Tex. 2000). If a defendant files a combined traditional and no-
evidence summary judgment motion, we first review the judgment under the no-
evidence standards of Rule 166a(i). See Ford Motor Co. v. Ridgway, 135 S.W.3d
9598, 600-01 (Tex. 2004); Werth v. Johnson, 294 S.W.3d 908, 909 (Tex. App.—
Beaumont 2009, no pet.). Accordingly, we limit our discussion of the summary
judgment grounds to those necessary for the resolution of this appeal. See FM
Props., 22 S.W.3d at 872-73; Tex. R. App. P. 47.1.
In her petition, Peshoff alleged the following causes of action against Klein:
[] Threat of Bodily Injury [within the course and scope of
employment]
27. Hartman threatened Peshoff with imminent bodily injury by
pointing a gun at her and threatening to shoot if she did not follow his
orders. Hartman caused Peshoff to fear imminent, severe bodily injury
or death. Peshoff’s terror was a foreseeable result of Hartman’s
unlawful actions.
28. Hartman’s threat injured Peshoff by causing her physical pain,
mental anguish, and medical care expenses. Because of the malicious
manner that Hartman committed his unlawful act, Peshoff will suffer
from future mental anguish, pain and suffering, and medical expenses.
29. Hartman’s acts were performed as an employee of Klein and were
within the scope of that employment or within the authority delegated
to the employee. Hartman was able to act on behalf of Al Reed only
because of the professional investigator license obtained through his
employment with Klein.
[] Intentional Infliction of Emotional Distress
30. Hartman’s extreme and outrageous conduct intentionally inflicted
emotional distress on Peshoff. Hartman pointed a gun at her from a
moving car, while stopped at an intersection, and while stopped in a
public parking lot. Hartman threatened to shoot Peshoff if she did not
comply with his orders.
31. Hartman’s conduct proximately caused Peshoff’s severe emotional
distress because her damages are foreseeable results of Hartman’s
10
malicious actions. Hartman has admitted he intended to inflict distress
upon Peshoff so she would comply with his orders. Peshoff’s emotional
distress cannot be remedied by any other cause of action because the
unique nature of Hartman’s criminal acts.
32. Hartman’s actions have caused Peshoff to suffer from extreme
worry, depression, stress, and anxiety.
33. Hartman’s acts were performed while in Klein’s employment and
were within the scope of that employment, or within the authority
delegated to him. Hartman was able to act on behalf of Al Reed only
because of the license obtained through his employment with Klein.
[] Intrusion Upon Seclusion [within the course and scope of
employment]
34. Hartman intruded on Peshoff’s seclusion when he intentionally,
intruded on the private space of her private vehicle, and forced her off
the road and out of her vehicle. Brandishing a gun in a threating manner
from a moving vehicle with the intent of removing her from that
seclusion was highly offensive.
35. Hartman’s acts were performed while in the employment of Klein
and were within the scope of that employment or within the authority
delegated to the employee. Hartman was able to act on behalf of
defendant Al Reed only because of the professional investigator license
obtained through his employment with Klein.
[] False Imprisonment [within the course and scope of employment]
36. Hartman willfully detained Peshoff by threat when he intentionally
pointed a gun at her from a moving car for the purpose of detaining her,
which was sufficient to overcome Peshoff’s free will.
37. Peshoff did not consent to the detention.
38. Hartman did not have legal authority or justification to detain
Peshoff.
11
39. Hartman’s unlawful detention of Peshoff caused injury to her,
which includes actual damages for physical pain, mental anguish, and
medical care expenses. Because of the malicious manner that Hartman
committed his unlawful act, Peshoff will suffer from future mental
anguish, pain and suffering, and medical expenses.
40. Hartman’s acts were performed while in the employment of Klein
and were within the scope of that employment or within the authority
delegated to the employee. Hartman was able to act on behalf of Al
Reed only because of the professional investigator license obtained
through his employment with Klein.
[] Negligent Hiring and Supervision (Klein) [and Negligence Per
Se]
51. Klein had a legal duty to hire and supervise competent employees.
52. Klein breached this duty when it negligently hired, supervised,
trained, and retained Hartman. Specifically, Klein breached its duty
when it supported and allowed defendant Hartman to perform and
continue to perform his duties, which required a professional license
through Klein, in an unlawful and criminal manner.
53. Klein’s breach of its duty to hire and supervise competent
employees proximately caused injury to Peshoff, which resulted in the
damages for physical pain, mental anguish, and medical care expenses.
Vicarious liability for negligence and negligence per se
The motion for summary judgment argued Klein owed no duty to Peshoff,
that he did not breach a duty by negligently hiring/supervising Hartman, and that
any negligence was not the proximate cause of the injuries to Peshoff. A negligence
claim requires proof of a legal duty from defendant to plaintiff, a breach of that duty,
and damages proximately caused by that breach. See Clark v. PFPP Ltd. P’ship, 455
S.W.3d 283, 287 (Tex. App.—Dallas 2015, no pet.). In determining whether a duty
12
exists in the circumstances before us, we must determine, as a matter of law, whether
Klein owed a duty to Peshoff in this instance. The Texas Supreme Court has not
“ruled definitively on the existence, elements, and scope” of negligent hiring and
supervision claims. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 804 n.27 (Tex.
2010). But, in 2019, the Texas Supreme Court stated the following regarding
negligent hiring cases:
Although we have not ruled definitively on the existence, elements, and
scope of a negligent-hiring claim, Waffle House, Inc. v. Williams, 313
S.W.3d 793, 804 n.27 (Tex. 2010), we have recognized that it is
‘factually similar’ to a claim for negligent entrustment, Wansey v. Hole,
379 S.W.3d 246, 248 (Tex. 2012) (per curiam). And we have explained
that a negligent-entrustment claim requires separate negligent acts by
two parties: the owner’s negligence in entrusting property to another,
and the entrustee’s negligence in using that property. 4Front
Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 909 (Tex. 2016).
The plaintiff must prove not only that the entrustee’s negligence
proximately caused the harm, but also that the ‘risk that caused the
entrustment or hiring to be negligent also proximately caused the
plaintiff’s injuries,’ TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240
(Tex. 2010). In the same way, a negligent-hiring claim requires
negligence by two separate parties: the employer’s negligence in hiring
the employee and the employee’s subsequent negligent act or omission.
Both negligent acts must proximately cause the injury. Wansey, 379
S.W.3d at 247; Hughes, 306 S.W.3d at 240-41; Fifth Club, Inc. v.
Ramirez, 196 S.W.3d 788, 796 (Tex. 2006).
Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019).
The availability of a negligent-hiring claim, the risk that caused the hiring or
supervision to be negligent, must also have proximately caused injury to the plaintiff.
See Hughes, 306 S.W.3d at 240 (concluding that the negligent hiring should have a
13
similar requirement to negligent entrustment cases which requires that the
employee’s negligent conduct harm the plaintiff). Even though the Texas Supreme
Court has “never expressly set out what duty an employer has in hiring employees,
or said that a negligent hiring claim requires more than just negligent hiring
practices, there is a broad consensus among Texas courts that such a claim requires
that the plaintiff suffer some damages from the foreseeable misconduct of an
employee hired pursuant to the defendant’s negligent practices.” Wansey, 379
S.W.3d at 247 (citations omitted).
In this case, Peshoff produced no evidence establishing damages due to harm
caused by Hartman as an employee of Klein. Id. Documents produced by Klein in
his motion for summary judgment demonstrate that Peshoff suffered no physical
damages from her encounter with Hartman. In her deposition, Peshoff testified that
Hartman never physically injured her or damaged her vehicle on the day in question.
She swore she suffers from emotional damages including “anxiety…depression…
insomnia[,]” as a result of the encounter with Hartman. And at Hartman’s criminal
trial, Peshoff testified that she suffered from “nightmares of the whole thing. I’ve
been put on medicine because I couldn’t sleep, keeping my family up. I’ve literally
almost attacked my son because he would try to wake me up to get him up for school.
I go to counseling.” Documents attached to Klein’s summary judgment
demonstrated Peshoff reported to a physician that in October 2016, the same month
14
as the incident, she had suffered from “hormones…symptoms began 9 months
ago[,]” describing the symptoms as “being moderate to severe…occur daily[,]
[h]orrible mood swings, lack of energy, stress.” Peshoff also reported the symptoms
started after the birth of her last child, a child born before the incident with Hartman.
She told her physician that she had a history of anxiety, depressed mood, difficulty
falling asleep, excessive worry, restlessness, anger, and “[t]he symptoms” are from
the last “2 years.” Peshoff also admitted that she has never taken time off work after
the October incident, other than court dates. Peshoff confirmed that before the
October incident, she was in a physically and emotionally abusive relationship in
which her ex-husband was later convicted of assault. But she maintained that this
relationship did not cause her emotional distress or anxiety. She testified that, other
than the death of her mother, nothing in her life has caused mental anguish except
the incident with Hartman. Evidence provided in the late filing by Peshoff was no
different. Even so, Peshoff provided the court with no expert testimony to establish
a causal link between the incident with Hartman and any symptoms Peshoff reported
to her health care providers. See Guevara v. Ferrer, 247 S.W.3d 662, 663 (Tex.
2007).
To defeat Klein’s motion for summary judgment on each of her claims,
Peshoff was required to submit summary-judgment proof that she suffered damages
caused by Klein’s employee’s conduct. See Wansey, 379 S.W.3d at 247; Moore
15
Freight Servs., Inc. v. Munoz, 545 S.W.3d 85, 98 (Tex. App.—El Paso 2017, pet.
denied) (“The duty of the employer extends only to prevent the employee or
independent contractor from causing physical harm to a third party. The Plaintiffs
had to show that [the defendant’s] actions in hiring, supervising, or retaining [their
employee] were the cause-in-fact of [the plaintiff’s] injuries and that their injuries
were a foreseeable consequence of [the defendant’s] hiring, supervision, or retention
of [their employee].”).
The summary-judgment evidence established that Mr. Hartman committed
illegal acts against Peshoff. But even though Hartman was convicted of those acts in
his criminal trial, none of the summary-judgment evidence in this record established
that Peshoff’s mental and emotional distress was, in fact, caused by Hartman’s
actions. And even if Hartman’s actions were a cause in fact of Peshoff’s mental and
emotional distress, Peshoff failed to meet her burden to present summary-judgment
evidence as to Klein’s alleged negligence in hiring or in supervising Hartman. For
example, Peshoff provided the court with no summary-judgment evidence from an
expert, or otherwise, of any training standards that apply to employees of
investigation firms that do “bounty hunting” for bail bond companies. She did not
show how any such standards would have kept Hartman from threatening Peshoff
with a gun. Peshoff also presented no summary-judgment evidence to show Hartman
16
was not properly trained or supervised. The fact that Klein employed Hartman does
not automatically make Klein legally liable for Hartman’s criminal acts.
Because there is no evidence that Klein’s negligence in hiring and supervising
Hartman caused Peshoff’s damages, we will affirm the trial court’s summary
judgment on the claim of negligent hiring and supervision and negligence per se. See
Tex. R. Civ. P. 166a(c), (i).
Course and scope of employment liability
In Wheeler v. Free, 638 S.W.3d 731 (Tex. App.—Eastland 2021, pet. denied),
our sister Eastland court distinguished the analysis necessary to determine “course
and scope” liability, discussed below, from “negligent hiring and supervision
liability” discussed above. In Wheeler, the Eastland Court explained:
Negligent hiring, retention, and supervision claims are all simple
negligence causes of action based on an employer’s direct negligence
rather than on vicarious liability. Thus a claim for negligent hiring,
supervision, or retention is not dependent upon a finding that the
employee was acting in the course and scope of his employment when
the tortious act occurred. However, the plaintiff’s injury must be the
result of job-related conduct Were such a connection not required, an
employer would essentially be an insurer of the safety of every person
who happens to come into contact with his employee simply because
of his status as an employee. This nexus requirement is an element of
foreseeability, and foreseeability is an essential component of both
proximate cause and duty. Fernea v. Merrill Lynch Pierce Fenner &
Smith, Inc., 559 S.W.3d 537, 548 (Tex. App.—Austin 2011), judgm’t
withdrawn, appeal dism’d, 2014 Tex. App. LEXIS 12063, [] (Tex.
App.—Austin Nov. 5, 2014, no pet.) (mem. op.); see Mellon Mortg.
Co. v. Holder, 5 S.W.3d 654, 659 (Tex. 1999).”
Id. at 738-39 (cleaned up).
17
Peshoff also claimed that Klein was liable for Hartman’s intentional torts
because Hartman was acting in the course and scope of his employment in
committing the intentional torts. Although the Texas Supreme Court has not ruled
on the duties an employer of “bounty hunters” for bail bond companies owes to
innocent bystanders, or the general public, it has set forth factors to consider when
evaluating the existence of the duties of an employer to customers, or innocent
bystanders, when an employee, or someone at the direction of an employer, commits
an intentional tort against the customer or bystander. In Pagayon v. Exxon Mobil
Corp., 536 S.W.3d 499, 507-08 (Tex. 2017) an Exxon Mobil employee started a
fight with a customer, Pagayon. The employee and Pagayon had words on the phone
three days earlier about the employee harassing Pagayon’s son who worked at the
store with the employee. The day of the altercation, while the employee was on duty,
Pagayon entered the store, was accosted by the employee, and a fight ensued.
Pagayon was injured by the employee, hospitalized, and after faulty medical
procedures, died). The factors the court considered in evaluating whether a duty
exists are (1) the risk of an occurrence such as this one; (2) whether the foreseeability
of injury is small and the likelihood of injury is remote; (3) the significance of the
burden on the employer; (4) the consequences of extending the burden in a case such
as this; and (5) the social utility in placing such a burden on an employer in this
circumstance. Id. at 507-08.
18
Applying the factors from Pagayon to our case, the risk of the occurrence (an
investigator for a bail bond company, Hartman, points a gun at the vehicle of an
innocent bystander, Peshoff, who is carrying an alleged absconder, Jackowski, in her
vehicle) was small. There is no evidence showing Klein was on notice that Hartman
had a prior history of engaging in a similar act. Rather, the issue is whether an
employer should be required to respond, in advance, to any possible action of an
agent/employee who is seeking to enforce the contractual provisions of a bail bond
when dealing with innocent bystanders or the general public. We conclude the
answer is no. Customers who hire bail bond companies have already been arrested,
accused of a crime, and placed under court-ordered conditions to comply with the
bond. When the customer violates the court’s order and an arrest warrant issues, the
bail bond company seeks to find them and bring them to law enforcement to execute
the arrest warrant. These companies frequently hire investigators (“bounty hunters”)
to locate the customer. While it is common knowledge that these investigators, or
their employees or agents, may follow a customer (who has violated the bond and
now has an outstanding arrest warrant), may run after the customer, may grab or
tackle the customer to hold them until contact with law enforcement, such a
foreseeable situation is far removed from foreseeing that an employee or agent for
the investigation service will pursue and point a gun at an innocent bystander who
may have no knowledge of the circumstances. Whatever duty an investigation
19
service may have to the general public in this circumstance, it cannot extend to its
employees pointing guns at innocent bystanders in the absence of a showing that the
employer knew the employee had previously engaged in similar acts.
We next consider whether the foreseeability of injury is small, and the
likelihood of injury is remote. Any duty an employer has to control its employees
should not make it an absolute insurer of their safety and the safety of patrons. Id.
The second factor weighs against a finding of foreseeability because the burden of
ensuring that an employee/agent of the investigation company will never engage in
an intentional tort is significant. Given the independent nature of the “bounty hunter”
contract employee, who is independently licensed, trained and certified by the state,
it would place a significant burden on the employer if the employer were not able to
rely on the training, licensing and certification by the state. The foreseeability that
an independently licensed, trained, state-certified employee or contractor would pull
a gun on an innocent bystander, in violation of a penal statute, is remote and such an
expectation should not be placed on the potential employer to create liability for such
an unforeseeable act. While we assume the actions of Hartman were extreme, and
out of the ordinary, to extend liability to an employer in such a situation would render
the employer liable for the most extreme consequences of its employee/agent’s
actions no matter how unforeseeable.
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Finally, we are to consider whether the social utility in placing a foreseeability
burden such as this on investigation firms who employ “bounty hunters” as
employees or contractors, is great or small. While Klein might have been able,
somehow, to prevent Hartman from committing this crime, the burden and expense
of requiring immediate supervision of each contractor or employee seeking to
enforce bail bond contracts would be physically and financially untenable given that
the likelihood of an employee/agent committing a crime with a gun is so remote.
Any social utility derived from requiring an employer to be as vigilant as Klein
would have to have been to prevent his employee or agent from committing a crime
with a gun is minimal and would be shifting the personal responsibility of the
employee to obey the law from the individual to the employer.
Applying the factors that determine the existence of a duty in this case, we
conclude that an investigation company who services bail bond companies with
“bounty hunters”, in the situation presented like the one presented here, owes no
duty to supervise its employees to protect the general public from its employees
unforeseen intentional acts. Appellant has not cited any controlling authority stating
otherwise. Because Peshoff produced no evidence to establish Hartman’s criminal
conduct was foreseeable, Klein was not liable to Peshoff for Hartman’s intentional
acts as a matter of law. See Pagayon, 536 S.W.3d at 507-08. Absent a duty to
prevent these unforeseeable intentional torts, Klein cannot be held liable for them.
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The trial court did not abuse its discretion in granting the motion for summary
judgment.
Exemplary damages
Finally, in her petition, Peshoff also alleges exemplary damages against Klein.
“Generally, exemplary damages may be awarded only if the claimant proves by clear
and convincing evidence that the harm at issue results from (1) fraud; (2) malice; or
(3) gross negligence.” Seber v. Union Pacific R.R. Co., 350 S.W.3d 640, 654 (Tex.
App.—Houston [14th Dist.] 2011, pet. dism’d) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 41.003(a)). As we have held that Peshoff failed to provide sufficient evidence
of negligent hiring and supervision, she is not entitled to exemplary damages. See
Nowzaradan v. Ryans, 347 S.W.3d 734, 739 (Tex. App.—Houston [14th Dist.] 2011,
no pet.) (“negligence and gross negligence are not separate causes of action[]”); see
also Said v. Sugar Creek Country Club, Inc., No. 14-17-00079-CV, 2018 WL
4177859, at *6 (Tex. App—Houston [14th Dist.] Aug. 31, 2018, pet. denied) (mem.
op.) (“[A] summary-judgment ground that would support dismissal of [the
plaintiff’s] negligence claim is sufficiently broad to support the dismissal of the part
of her negligence claim in which she seeks to recover exemplary damages based on
an allegation of gross negligence.”). We overrule Peshoff’s second issue.
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Conclusion
Because we find no abuse of discretion in the granting of the summary
judgment, even considering the untimely response, it is unnecessary for us to address
the first and third issues raised by Peshoff concerning the timeliness and
consideration of her late response to the motion for summary judgment. Having
overruled Peshoff’s second issue on appeal, we affirm the trial court’s judgment.
AFFIRMED.
________________________________
JAY WRIGHT
Justice
Submitted on December 21, 2021
Opinion Delivered February 23, 2023
Before Golemon, C.J., Horton and Wright, JJ.
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