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At a Glance:
Title:
Bomar v. Walls Regional Hosp.
Date:
December 9, 1998
Citation:
983 S.W.2d 834
Status:
Published Opinion

Bomar v. Walls Regional Hosp.

Court of Appeals of Texas,

Waco.

Kym BOMAR, et al., Appellants,

v.

WALLS REGIONAL HOSPITAL, A Texas Corporation, et al., Appellees.

No. 10–97–335–CV.

|

Dec. 9, 1998.

Attorneys & Firms

*836 Jim Claunch, The Jim Claunch Law Firm, Fort Worth, for appellant.

Kent R. Smith, Jackson & Walker, L.L.P., Fort Worth, for appellee.

Before Chief Justice VANCE.

OPINION

DAVIS, Chief J.

This is an appeal from the trial court’s order granting summary judgment in favor of the Appellee, Walls Regional Hospital. Appellants present two issues in which they claim that the trial court erred when it granted summary judgment because: (1) the exclusivity provision of the Texas Workers’ Compensation Act does not pre-empt their claims against the hospital and (2) the hospital is liable to the plaintiffs under the doctrine of negligent hiring. We will reverse the order of the trial court and remand this cause for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs were nurses employed by the defendant, Walls Regional Hospital. They claim that Dr. George Boyett, a doctor to whom the hospital granted staffing privileges, sexually harassed them on numerous occasions.1 They claim that they told their supervisors many times about Dr. Boyett’s actions, yet Dr. Boyett’s harassment continued. The plaintiffs sued the hospital alleging that it: (1) failed to keep the workplace safe; (2) negligently hired Dr. Boyett; and (3) negligently credentialed Dr. Boyett.

The hospital moved for summary judgment on the grounds that: (1) there is no evidence of malice by the hospital when it credentialed Dr. Boyett as required by the Medical Practice Act2 so the plaintiffs cannot recover under a negligent credentialing cause of action; and (2) it did not owe a duty to the plaintiffs, but assuming it did owe a duty to the plaintiffs, their injuries arose out of the course of their employment and are barred by the Texas Workers’ Compensation Act. The court granted the hospital’s summary judgment motion without specifying the grounds for its ruling.

The plaintiffs appealed the court’s order. We originally dismissed their appeal for want of jurisdiction. The court’s order granted summary judgment in favor of the hospital, but did not address the plaintiffs’ claims against the remaining defendants. Thus, the hospital’s summary judgment was interlocutory and not appealable. Subsequently, the plaintiffs severed their cause of action against the hospital from their claims against the remaining defendants. The plaintiffs then filed a motion to reinstate their appeal, which we granted. See Bomar v. Walls Regional Hosp., 971 S.W.2d 670 (Tex.App.—Waco 1998, no pet. h.).

*837 SUMMARY JUDGMENT STANDARD OF REVIEW

The summary judgment movant bears the burden to prove that no genuine issue of material fact exists and that she is entitled to summary judgment as a matter of law. Drennan v. Community Health Inv. Corp., 905 S.W.2d 811, 817 (Tex.App.—Amarillo 1995, writ denied).

When determining whether a material fact issue exists, we must accept as true all evidence favorable to the non-movant. Kim v. State Farm Mut. Auto. Ins. Co., 966 S.W.2d 776, 778 (Tex.App.—Dallas 1998, no pet. h.).

If the trial court’s order affirming the movant’s summary judgment does not specify the grounds relied upon for its ruling, we will affirm the judgment if any of the grounds within the motion for summary judgment are meritorious. Gardner v. Best Western Int’l, 929 S.W.2d 474, 479 (Tex.App.—Texarkana 1996, writ denied).

TEXAS WORKERS’ COMPENSATION ACT

The plaintiffs’ first issue claims that the trial court erred when it granted summary judgment in favor of the hospital because there is a question of material fact regarding whether their injuries occurred within the course of their employment. Therefore, the plaintiffs contend that the hospital is not entitled to summary judgment because it did not conclusively establish as a matter of law that their negligence claims are pre-empted by the Texas Workers’ Compensation Act (“the Act”).3 They contend that Dr. Boyett’s harassment was directed at them because of personal reasons and not because of their employment at the hospital. Therefore, Dr. Boyett’s harassment fit within the “personal animosity” exception to the Act and they are free to bring their negligence claims against the hospital as independent rather than derivative actions.4 See Security Ins. Co. v. Nasser, 755 S.W.2d 186, 190 (Tex.App.—Houston [14th Dist.] 1988, no writ).

*838 The hospital states that it conclusively established that the plaintiffs were injured within the course of their employment. Thus, the Act is the plaintiffs’ exclusive remedy and precludes the plaintiffs’ negligence claims brought outside the Act.5

The Act provides that the recovery of workers’ compensation benefits is the exclusive remedy of an employee, covered by workers’ compensation insurance, for injuries resulting from the employer’s negligence or gross negligence, that are sustained in the employee’s course of employment. TEX. TEX. LABOR CODE ANN. § 406.032(1)(C) (Vernon 1996).

We must first address whether the hospital conclusively established that the plaintiffs were injured within the course of their employment. If the plaintiffs’ injuries did occur within the course of employment, the Act is the plaintiffs’ exclusive remedy and they are precluded from bringing their negligence claims against the hospital outside the Act. If their injuries did not occur within the course of their employment, then the Act does not preclude their negligence claims.6

Whether an injury occurred within the course of employment is ordinarily a question of fact. Villanueva v. Astroworld, Inc., 866 S.W.2d 690, 695 (Tex.App.—Houston [1st Dist.] 1993, writ denied).

The hospital claims that no question of fact exists regarding whether the assaults occurred within the course of the plaintiffs’ employment. The hospital contends that the plaintiffs admit in their petition7 that their assaults occurred within the course of their employment. Specifically, the hospital refers to the statement made by the plaintiffs in their petition that alleges “... such acts of harassment were committed upon Plaintiffs while they were engaged in their work at the Defendant hospital.

A judicial admission is a formal waiver of proof and is conclusive against the party who made the statement. Westchester Fire Ins. Co. v. Lowe, 888 S.W.2d 243, 251–52 (Tex.App.—Beaumont 1994, no writ).

This statement by the plaintiffs does not rise to the level of a judicial admission. The statement informs the court and the opposing party where and when the assault occurred, not in what capacity the assault occurred. The statement does not set out to admit that Dr. Boyett sexually harassed the plaintiffs in the course of their employment.

Next, we look at the summary judgment proof the hospital provides in support of its motion. Summary judgment proof can include deposition transcripts, interrogatory answers, other discovery referenced in the motion or response, or sworn affidavits. Dubois v. Harris County, 866 S.W.2d 787, 790 (Tex.App.—Houston [14th Dist.] 1993, no writ).

The hospital’s proof included excerpts of interrogatory answers from the plaintiffs, a sworn affidavit from the Director of Human Resources, and excerpts of interrogatory answers from Dr. Boyett. Nothing in these items of evidence constitute sufficient proof that the plaintiffs were injured in the course of their employment. A question of material fact still exists as to whether the plaintiffs were injured in the course of their employment.

We sustain the plaintiffs’ first issue and hold that there is a question of material fact as to whether the plaintiffs’ injuries were sustained in the course of their employment.

NEGLIGENT CAUSES OF ACTION

A. Negligent Credentialing

The plaintiffs’ second issue claims that the trial court erred when it granted the hospital’s motion for summary judgment because the hospital is liable under the doctrine of negligent hiring. However, the hospital asserts that the plaintiffs’ negligent hiring cause of action is more properly labeled a negligent credentialing cause of action because it did not hire Dr. Boyett, it merely placed Dr. Boyett on its staff. Further, the hospital states that negligent credentialing must be done with malice, as recently *840 decided by the Texas Supreme Court.8 See St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 509 (Tex.1997). The trial court’s order granting summary judgment held that the plaintiffs did not have any evidence that the hospital acted with malice when it credentialed Dr. Boyett, thus the hospital is immune from a negligent credentialing cause of action.

Pena v. Van, 960 S.W.2d 101, 105 (Tex.App.—Houston [1st Dist.] 1997, no writ).

The plaintiffs’ summary judgment response includes an affidavit from one of the plaintiffs claiming that the hospital either knew or should have known of Dr. Boyett’s behavior towards the plaintiffs before it reappointed Dr. Boyett to its staff. It did present more than a scintilla of evidence that a question of fact existed and summary judgment was not proper. In our review of a no-evidence motion for summary judgment, we do not require the non-movant to conclusively establish that the action in question occurred. Instead, we look at the non-movant’s response, keeping in mind the traditional presumptions in favor of the non-movant, and determine if the non-movant has presented more than a scintilla of evidence to refute the movant’s no-evidence motion for summary judgment.

B. Negligent Hiring

The hospital asserts two alternative theories in regards to the plaintiffs’ negligent hiring claims. The hospital’s first theory contends that Dr. Boyett was not an independent contractor and thus the hospital did not owe a duty to the plaintiffs to adequately hire, train, and supervise Dr. Boyett.9 Alternatively, the hospital contends that if it did owe a duty to the plaintiffs and it breached that duty, its breach occurred within the course of the plaintiffs’ employment. Thus, the plaintiffs’ injuries occurred within the course of their employment and the Act precludes their common law negligent hiring claims. We disagree.

First, the hospital claims Dr. Boyett was not an independent contractor. Generally, whether one is an independent contractor is a question of fact. Harris v. Galveston County, 799 S.W.2d 766, 768 (Tex.App.—Houston [14th Dist.] 1990, writ denied).

Second, an owner may be liable for the negligent hiring of its independent contractor. LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex.App.—Amarillo 1997, writ denied).

The hospital argues that it did not issue Dr. Boyett a paycheck and that it merely rented space to Dr. Boyett. These are factors that a trier of fact takes into consideration when determining whether one is an independent contractor. The hospital’s evidence does not conclusively establish as a matter of law that Dr. Boyett was not an independent contractor of the hospital. Further, it is clear that if Dr. Boyett is an independent contractor, the hospital does owe a duty to the plaintiffs. We hold that a question of fact still exists whether Dr. Boyett was an independent contractor.

The hospital’s alternative theory assumes that it owed a duty to the plaintiffs but its breach occurred within the course of the plaintiffs’ employment and thus would be precluded by the Act. Whether an injury occurs within the course of employment is generally a question of fact. Masuccio, 770 S.W.2d at 857. As mentioned before, the hospital has not conclusively proven that the plaintiffs’ injuries occurred within the course of their employment. Therefore, there still exists a question of material fact whether the plaintiffs were injured within the course of their employment.

Even assuming the hospital owed a duty to the plaintiffs and it breached that duty, the hospital’s breach must be the proximate cause of the plaintiffs’ injuries. Id.

The hospital’s brief alludes to the fact that the intentional, criminal act of Dr. Boyett supersedes its negligence and therefore, its alleged negligent act was not the proximate cause of the plaintiffs’ injuries. Whether or not proximate cause exists between the plaintiff’s injuries and the defendant’s negligence is generally a question of fact. Campbell, 946 S.W.2d at 626.

*842 As a general rule, the criminal conduct of a third party is a superseding cause that relieves the negligent actor from liability.10 Guerrero, 938 S.W.2d at 791.

The hospital’s summary judgment evidence consisted of: (1) excerpts from the plaintiffs’ interrogatories detailing Dr. Boyett’s sexual harassment; (2) an affidavit from the hospital’s Director of Human Resources affirming that the hospital subscribed to worker’s compensation insurance; and (3) an excerpt from Dr. Boyett’s interrogatories stating that he never received a paycheck from the hospital. The hospital’s summary judgment evidence did not establish as a matter of law that Dr. Boyett’s harassment was not foreseeable. Therefore, we hold that a question of fact exists whether Dr. Boyett’s intentional acts were foreseeable and whether proximate cause exists between the hospital’s negligence and the plaintiffs’ injuries.

We sustain the plaintiffs’ second issue and hold that there is a question of material fact as to whether the hospital negligently credentialed and negligently hired Dr. Boyett.

For these reasons, we reverse and remand for further proceedings the trial court’s order that their injuries are not precluded by the Workers’ Compensation Act and that they may pursue a cause of action for negligent credentialing and negligent hiring.

Footnotes

1

The plaintiffs did not bring a sexual harassment suit against the hospital under Title VII of the Federal Civil Rights Act of 1964 or the Texas Commission on Human Rights Act. See LAB.CODE ANN. § 21.051 (Vernon 1996).

2

TEX.REV.CIV.STAT.ANN. ART. 4495b § 5.06(l ), (m) (Vernon Supp.1999).

3

TEX.LAB.CODE ANN. § 406.031(a) (Vernon 1996).

4

This provision states: “An insurance carrier is not liable for compensation if the injury arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment .” TEX.LAB.CODE ANN. § 406.032(1)(C) (Vernon 1996).

5

The hospital claims that the Act’s exclusivity provision precludes an employee from maintaining a tort cause of action against his employer, even if the tort the employee complains about is not one that is compensable under the Act. So it follows that the plaintiffs cannot bring their tort claims or any tort claims for that matter, against the hospital because of the Act’s exclusivity provision. The hospital cites McAlister is distinguishable from our present case. Here, the plaintiffs are contesting whether their injuries were even sustained in the course of their employment, and thus within the Act’s scope.

6

The hospital claims that even if the plaintiffs’ injuries did not occur within the course of their employment, it is still entitled to summary judgment. The hospital claims that 935 S.W.2d 446 (Tex.App.—Tyler 1996, no writ). We disagree.

In Mackey, the plaintiff sued her employer via respondeat superior for injuries received when her fellow employees assaulted her. Mackey claimed that the Act was not applicable because she did not receive her injuries within the course of her employment. Although the court held that there was a question of fact whether Mackey’s injuries occurred within the course of her employment, it also held that the hospital was entitled to summary judgment because the employees were not acting within the scope of their authority, thus the employees’ intentional acts were not imputable to the hospital.

This case is distinguishable from the present case. Mackey claimed her assault by fellow employees was imputable to her employer under the doctrine of respondeat superior. The court held that the employees did not act within the scope of their general authority when they assaulted Mackey. Therefore, Mackey could not impute liability to her employer. Here, the plaintiffs claim that the hospital was negligent in its own right when it hired and credentialed Dr. Boyett. Mackey is not applicable to this present case.

7

There is some confusion as to which petition was on file when the hospital’s summary judgment was granted—either the plaintiffs’ fourth or fifth amended original petition. But it does not matter for our purposes because both petitions contained the same statement, “... while they were engaged in their work at the Defendant hospital.”

8

Malice is defined as: (1) a specific intent by the defendant to cause substantial injury to the plaintiff or (2) an act or omission that when viewed objectively from the standpoint of the defendant at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others and the defendant has actual or subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. St. Luke’s Episcopal Hosp., 952 S.W.2d at 506.

9

Although the hospital claims that Dr. Boyett was not an independent contractor, it does not state what status Dr. Boyett occupied in relation to the hospital. Instead, it appears the hospital seeks to claim that Dr. Boyett did not fit into either the independent contractor or the employee category and thus occupied a status that would not impose any duty upon the hospital to adequately hire, train, and supervise Dr. Boyett.

10

The hospital argues that the plaintiffs’ injuries resulted from Dr. Boyett’s intentional acts of sexual harassment and not its negligence. However, in Young for proposition that negligent hiring claims may arise out of defendant’s negligence and not of employee’s intentional tort).

End of Document
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