Texas: Vicarious Liability / Gross Negligence Exception

SUMMARY OF AMICUS BRIEF FILED 5/29/2019

This suit arises from a low-impact motor vehicle accident that occurred on September 15, 2013, in Upshur County, Texas. (12CR25;13RR99[PX40]) Respondent Joshua Patterson was traveling southbound on Highway 259 at roughly the same speed as Bill Acker, an employee of Petitioner FTS International Services, LLC, when Acker’s truck drifted out of its lane and impacted Patterson’s truck. (10RR12-14,60) At the scene, Patterson stated he was uninjured before driving away. (8RR152;10RR17-18,64,86) Patterson later sued FTS, asserting respondent superior liability and various “direct” negligence claims. (1CR16-22)

In a negligence action against a driver who was acting in the course and scope of his employment at the time of the accident, the driver’s employer is vicariously liable as a matter of law. That was the case here. The plaintiff sued FTS under the doctrine of respondeat superior. But he also made further claims for “direct” negligence against FTS on theories of negligent hiring, training, supervision, and entrustment. The majority view, long accepted in this state, is that once FTS admitted respondeat superior liability for its driver’s negligence, it was improper to allow the plaintiff to proceed against FTS on his “direct” liability theories. The Court should formally adopt this rule—which is eponymously named the Patterson rule after the 1961 decision from which it derives. See Patterson v. E. Tex. Motor Freight Lines, 349 S.W.2d 634 (Tex. App.—Beaumont 1961, writ ref’d n.r.e). This rule is more than one of judicial economy; it is essential for preventing plaintiffs from unjustifiably doubling their recovery, from manipulating the comparative fault structure, and from introducing unnecessary and irrelevant, but highly prejudicial, evidence.

Although Texas appellate courts have generally recognized the Patterson rule, several—including the court of appeals that decided this case—have created an exception in cases where a gross negligence claim is asserted. There are at least two problems with this approach that should be addressed by this Court. First, the purported gross negligence “exception” is inconsistent with the rule, unsupported by logic, and has been rejected by numerous courts. This Court should reject it too. Second, there is no evidence of gross negligence in this case, precluding application of this putative exception here.

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