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At a Glance:
Zissa v. Eutons Harley Davidson
December 13, 2012
Unpublished Opinion

Zissa v. Eutons Harley Davidson

Court of Appeals of Texas,

Corpus Christi–Edinburg.

Robert ZISSA Jr., Appellant,



No. 13–11–00585–CV.


Dec. 13, 2012.

On appeal from the 135th District Court of Victoria County, Texas.

Attorneys & Firms

Pete T. Patterson, for Robert Zissa Jr.

A. Jay Condie, for Euton’s Harley Davidson.

Before Justices PERKES.


Memorandum Opinion by Justice BENAVIDES.

*1 By two issues, appellant, Robert Zissa Jr., appeals two adverse summary judgment rulings—one from a motion for traditional summary judgment and the other on no-evidence grounds—in favor of appellee Euton’s Harley Davidson, Inc. (“EHD”). We affirm.


On July 5, 2006, Zissa test-drove an EHD customer’s motorcycle through the streets of Victoria, Texas when he ran a stop sign and collided with a 2002 GMC Yukon sports utility vehicle. At the time of the accident, Zissa was employed by EHD as a motorcycle technician and was acting in the course and scope of his employment. Zissa sustained serious bodily injuries including the loss of his right leg. Zissa estimated his medical bills related to the accident to be approximately $600,000.

Zissa sued EHD, which was a non-subscriber under the Texas Workers’ Compensation Act and thus potentially responsible for work-related injuries under the common-law principles of negligence. TEX. LABOR CODE ANN. § 406.033 (West Supp.2011). In his petition, Zissa alleged that EHD was negligent in: (1) failing to instruct employees on how to safely operate motorcycles; (2) failing to implement procedures to ensure employees would operate motorcycles safely; (3) ordering Zissa to test-drive a motorcycle without basic safety training; (4) ordering Zissa to test-drive a motorcycle when he was trained as a motorcycle technician and not a test-driver; (5) placing the task of test-driving motorcycles into Zissa’s job requirements without any training; and (6) failing to provide a safe place to test-drive motorcycles. Additionally, Zissa sued Harley Davidson Motor Company, Inc. and Harley Davidson, Inc. for negligence, as well as Tim and Dawn Euton, as owners of EHD, for conversion of proceeds collected for Zissa.1

EHD and the Eutons moved for traditional and no-evidence summary judgment on all of Zissa’s claims. The trial court granted both motions and rendered a judgment that disposed of Zissa’s claims. This appeal ensued solely as to Zissa’s claims against EHD.


A. Traditional Motion for Summary Judgment

By his first issue, Zissa asserts that the trial court’s ruling on EHD’s traditional motion for summary judgment was improper.

1. Standard of Review

A party against whom a claim is asserted may, at any time, move for a summary judgment in its favor as to all or any part of the asserted claim. Knott, 128 S.W.3d at 216.

1. Discussion

*2 In order to establish a negligence cause of action, a plaintiff must establish: (1) a legal duty; (2) breach of that duty; and (3) damages proximately resulting from the breach. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998). EHD argues that it (1) had no legal duty to Zissa at the time of the accident, (2) but even if EHD owed a legal duty to Zissa, the breach of said duty was not the proximate cause of Zissa’s injuries. The gravamen of Zissa’s complaints is that EHD had a duty to provide a safe workplace by: (1) instructing Zissa on safely riding a motorcycle while simultaneously diagnosing mechanical problems; (2) implementing safety procedures to ensure that employees safely test-drove motorcycles; and (3) providing a safe area to test-drive motorcycles. Specifically, EHD argues that the issue of duty in this case is controlled by well-established principles in Texas law.

Generally, an employer has a duty to use ordinary care in providing a safe workplace. Van Horn, 970 S.W.2d at 544.

The evidence in the record shows that Zissa was an experienced motorcycle rider. Based on his own testimony, Zissa had been riding motorcycles for sixteen years prior to this accident. Tim Euton testified by affidavit that he had ridden “thousands of miles” alongside Zissa and never knew him to drive recklessly, disregard a stop sign, or fail to yield the right of way. Euton also testified that Zissa was previously prohibited from test-driving motorcycles until he exhibited the skills and qualifications necessary for the work, but Zissa had been test-driving motorcycles for approximately two years prior to the accident. EHD allowed Zissa to test-drive motorcycles because he had exhibited the skills and qualifications necessary to do so. According to the record, Zissa testified to test-driving motorcycles approximately seven to ten times a week over three years. Zissa admitted that the underlying accident was the only accident he experienced over the three years. In addition to Zissa, Euton and one other employee test-drove motorcycles.

*3 Zissa argues that EHD owed a duty to instruct him on how to safely test-drive motorcycles while diagnosing them for mechanical problems. We disagree. EHD’s duty to instruct applies only to inexperienced riders, which Zissa was not. See W.E. Grace Mfg. Co. v. Arp, 311 S.W.2d 278, 281 (Tex.Civ.App.Dallas 1958, writ ref’d n.r.e.)). Undisputed testimony shows that Zissa was not allowed to test-drive motorcycles until he exhibited the skills and qualifications necessary for the job. By Zissa’s own admission, he test-drove motorcycles seven to ten times a week for three years without incident. Therefore, we conclude that EHD’s duty to instruct did not apply to Zissa.

Next, Zissa argues that EHD owed a duty to implement safety rules for test-driving motorcycles while diagnosing mechanical issues. However, an employer does not have a duty to implement safety rules where its business is neither complex nor hazardous or where the dangers incident to the work are obvious or of common knowledge and fully understood by the employee. Matherne, 987 S .W.2d at 149. Therefore, we conclude EHD did not have a duty to implement safety rules in this case. For the same reasons, Zissa’s final argument—that EHD had a duty to provide an alternate place to test-drive the motorcycles—fails because the dangers of failing to follow traffic laws are obvious or of common knowledge.

Under the facts of this case, we conclude that (1) EHD did not owe a duty to Zissa as a matter of law; (2) without establishing a duty, Zissa’s cause of action for negligence against EHD fails, see TEX.R.APP. P. 47.1.


We affirm the trial court’s judgment.



Harley Davidson Motor Company, Inc., Harley Davidson, Inc., and Tim and Dawn Euton are not parties to this appeal.


We recognize that today’s opinion renders an arguably harsh result. In light of this, we note recent Texas Supreme Court decisions, which have stressed and reiterated the mutual benefit for employers and employees under the Texas Workers’ Compensation Act:

The Texas Workers’ Compensation Act was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment.... The act relieves employees of the burden of proving their employer’s negligence, and instead provides timely compensation for injuries sustained on-the-job.... In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer’s agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.

See Tex. Mut. Ins. Co. v. Ruttiger, –––S.W.3d––––, 2012 WL 2361697, at *8 (Tex. June 22, 2012) (recognizing that the Texas Workers’ Compensation Act’s mutually beneficial purpose is shared by injured employees and their employers).

End of Document