Esperanza Transmission Co. v. Schneider

OPINION

KENNEDY, Justice.

Esperanza Transmission Company appeals a judgment against it awarding Barry Schneider $286,302.90 in actual damages and $1,500,000.00 in exemplary damages. We reverse and render.

In November 1983, a Ford pickup truck owned by Esperanza collided with a Datsun pickup driven by Kathryn Linney. Appel-lee Schneider was a passenger in the Lin-ney vehicle. Alfred Havelka, Esperanza’s employee, had driven the pickup to a dance in Bonnie View. Havelka later turned the vehicle over to Stephen Schroeder because Havelka was feeling sick. The accident occurred while Schroeder was driving. Schroeder was intoxicated at the time. Linney and Schneider sued Havelka, Schroeder and Esperanza. Linney settled her claims during trial. The jury found that Esperanza’s entrustment of its vehicle to Havelka was in heedless and reckless disregard of the rights of others affected by it and was a proximate cause of the occurrence in question. Judgment was rendered against all three defendants on the actual damages and the jury assessed exemplary damages against all defendants. Havelka and Schroeder do not appeal.

Appellee’s recovery in this case against Esperanza is based solely upon a negligent entrustment theory. Appellant urges that as a matter of law any entrustment to Havelka by Esperanza was not a proximate cause of the accident.

The elements of negligent en-trustment are: 1) entrustment of a vehicle by the owner, 2) to an unlicensed, incompetent, or reckless driver, 3) that the owner knew or should have known to be unlicensed, incompetent or reckless, 4) that the driver was negligent on the occasion in question, and 5) that the driver’s negligence proximately caused the accident. Williams v. Steves Industries, Inc., 699 S.W.2d 570, 571 (Tex.1985); Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587, 591 (1947). In Mundy, the Supreme Court explained:

If such incompetent or reckless driver, through his negligent operation of the automobile, causes damage to a third person, the owner of the automobile is liable; the negligence of the driver does not break the chain of causation. Id. 206 S.W.2d at 588. (Emphasis ours.)

The Court went further to explain that plaintiff, in a negligent entrustment case, must prove that defendant’s negligence was the proximate cause of the injury which is established by showing that the entrustee operated the automobile negligently. Id. at 591. To establish liability under this doctrine a plaintiff must show that the person entrusted was an incompetent driver and that such incompetency was the proximate cause of the injuries. McCarty v. Purser, 379 S.W.2d 291, 294 (Tex.1964).

Had Havelka been driving on this occasion, plaintiff would have been able to make out a good case of negligent entrustment agamst Esperanza in view of Havel-ka’s deplorable driving record. However, in view of what happened, Havelka’s driving record is irrelevant to any issue before this Court. Although he had a past history of recklessness, Havelka was not operating the vehicle negligently on the evening in question. He was not operating the vehicle at all. We believe that negligent operation of the vehicle by the entrustee is an essential element which is lacking here. We hold that as a matter of law Esperanza is not liable for appellee’s injuries on a negligent entrustment theory. We agree with appellant that any negligence on Esperanza’s part in entrusting its vehicle to Havel-ka was not a proximate cause of this accident.

Appellant’s first point of error is sustained.

In view of our disposition of all controlling issues, we decline to address appellant’s other points of error. TEX.R.CIV.P. 451.

The judgment of the trial court is REVERSED and RENDERED that appellee take nothing against Esperanza Transmission Company.

DORSEY, J., dissents.