November 2001

Extending the Robertson Presumption to Leased Vehicles

By Scott Dodson

Under certain circumstances, Texas tort law imposes vicarious liability on employers for the negligent actions of their employees, and a plaintiff injured as a result of the negligent actions can recover damages from the employer.(1) Not all employee negligence renders an employer liable to the injured plaintiff. Under the doctrine of respondeat superior, vicarious liability accrues only when the employee's negligence can be imputed to the employer.(2) Employee negligence can be imputed to the employer if the employee was engaged in the employer's business at the time of the negligence.(3) An employee generally engages in an employer's business when the employee acts within the scope and course of employment.(4) Consequently, an employer may be liable under the doctrine of respondeat superior if the plaintiff demonstrates that the employee was acting within the scope of employment at the time of his or her negligent acts.

The burden of demonstrating these facts rests on the plaintiff.(5) The plaintiff, however, frequently has difficulty proving "course and scope" because of limited access to information about the details of the negligent actor's employment with the defendant employer.(6) The defendant, on the other hand, presumably has the necessary records and information readily available. For this reason, in automobile accident personal injury cases, Texas courts have devised an equitable evidentiary burden-shifting paradigm to alleviate some of the plaintiff's burden in the interest of placing it on the party more easily able to shoulder it.(7)

The paradigm rests on the so-called Robertson presumption, after the Texas Supreme Court opinion formally establishing the language of the rule in Texas law.(8) The court stated: "[W]hen it is proved that the [vehicle] was owned by the defendant and that the driver was in the employment of defendant, a presumption arises that the driver was acting within the scope of his employment when the accident occurred."(9) Thus, to make out a prima facie case, a plaintiff need only show that the defendant owned the vehicle and that the driver was the defendant's employee.(10) The defendant can then rebut the presumption by introducing "positive evidence to the contrary."(11) The presumption of "course and scope" then vanishes.(12)

The presumption has maintained its force in Texas personal injury law since its conception.(13) However, the doctrine took an intriguing evolutionary step in Mata v. Andrews Transport, Inc.,(14) when the 14th Court of Appeals addressed the applicability of the Robertson presumption to vehicles leased by, but not owned by, the defendant employer. In that case, the Mata panel summarily held that the Robertson presumption did not apply, "because appellee did not own the truck involved in the collision."(15)

Mata circumscribed the applicability of the Robertson presumption by isolating the concept of ownership from other forms of control. This article argues that the distinction is, at least in part, misguided, and that the Robertson presumption should apply with the same force to lessors who exercise sufficient control over the leased vehicle to be considered de facto owners for the purposes of vicarious liability.

The History Of the PresumptionThe first Texas court to recognize the presumption, Studebaker Brothers Co. v. Kitts,(16) antedated Robertson by several decades. In that case, the plaintiff was riding in a car struck by a truck which was owned by the defendant and driven negligently by one of the defendant's employees.(17) The defendant contended that the plaintiff had to demonstrate course and scope, but the court opined: "When [the plaintiff] proved the ownership of the car and that it was being negligently operated by a servant of [the defendant] at the time of the accident, a prima facie case was established, and the burden was upon [the defendant] to rebut it by proof that the servant was not acting within the scope of his employment."(18)

The Texas Supreme Court explicitly approved the presumption in Broaddus v. Long.(19) In that case, the plaintiff's motorcycle crashed into a taxicab owned by the defendant and driven by taxi driver Charles Shelly, the defendant's employee at the time of the collision.(20) The court held that proof of the defendant's ownership of the cab and of its employment of Shelly at the time of the accident "was sufficient, in law, to support a fact finding that, at the time of this collision, Shelly was acting within the scope or course of his employment."(21) The court went on to express its approval of the presumption: "We approve the rule as stated … : 'Again, if it is proved that the automobile in question was owned by defendant, and further proved that the driver was in the employment of defendant, a presumption then arises that such driver was within the scope of his employment when the accident occurred.'"(22)

Finally, in Robertson Tank Lines, Inc. v. Van Cleave,(23) the Texas Supreme Court formally adopted the rule. In that case, Van Cleave sued Robertson Tank Lines for damages caused by a collision with a truck which was owned by Robertson and operated by Robertson's employee, Alfred Donaghey.(24) The court stated the presumption in language and terms similar to those used in Broaddus: "[W]hen it is proved that the truck was owned by the defendant and that the driver was in the employment of defendant, a presumption arises that the driver was acting within the scope of his employment when the accident occurred."(25)

The presumption was revisited in 1995 in Mata v. Andrews Transport, Inc. Mata had two significant effects on Robertson and its progeny. First, Mata affirmed that the Robertson presumption applies in modern times just as it did 30 years ago. Second, Mata strictly construed the Texas Supreme Court's language articulating the rule to exclude from the presumption all defendant employers who are not the actual owners of the vehicle in question.

The car accident giving rise to the Mata suit involved a truck bearing the insignia of the defendant, Andrews Transport.(26) Andrews Transport had leased the truck from the actual owner, Stephen Joe Henry.(27) Henry also happened to be the driver of the truck and in Andrews Transport's employ at the time of the accident.(28) Andrews Transport moved for summary judgment, arguing that the plaintiff could not prove that Henry was driving within the course and scope of his employment at the time of the accident.(29) The trial court granted the motion.(30)

Citing Robertson, the Mata court noted that "[t]here is a presumption that an employee is within the course and scope of employment while traveling to and from work if the employer owns the vehicle and regularly employs the driver."(31) However, the court discounted the presumption in this case: "This presumption is inapplicable in this case because [Andrews Transport] did not own the truck involved in the collision."(32) For this and other reasons, the court of appeals affirmed the summary judgment in favor of Andrews Transport.(33)

Mata's Analytical Fallacy

The Mata court's reliance on the concept of "ownership," if taken as a general principle, would exclude all non-owners from the Robertson presumption, even if a particular non-owner exercised total and exclusive control over the employee and the vehicle. This refinement of the Robertson presumption, with its applicability based on "ownership" rather than on "control," sells short the rationales underlying both the presumption itself and the doctrine of respondeat superior.

The presumption's policy rationale has been stated by Texas courts. "The presumption grows out of the fact that not infrequently the evidence necessary to establish the character of the mission in which the servant was engaged is exclusively within the possession of the defendant. The effect of the rule is to 'smoke out' the defendant and compel him to disclose the true facts within his knowledge."(34)

The presumption establishes the "course and scope" prong of respondeat superior liability. Clearly, however, respondeat superior liability is inseparable from the element of control.(35) Without circumstances which indicate that the employer exercised a sufficient level of control over the employee at the time, there can be no respondeat superior liability for the employee's negligence.(36)

The first prong of respondeat superior, the existence of an employment relationship, establishes agency - who controls whom in a broad, everyday sense.(37) The second prong, course and scope of employment, establishes liability for the actions leading to the accident - who may be held responsible for controlling or failing to control the negligent acts in a particular accident.(38)

Because the determination of course and scope focuses on the level of the employer's control over the employee's mission at the time, the facts giving rise to a presumption of course and scope must also focus on control. It is not the mere fact of ownership which gives rise to the Robertson presumption. It is the level of control that an owner normally exercises over his car which gives rise to the presumption.(39) It can be assumed that an employee-driver is acting within the course and scope of his employment if the employer has the right to exercise sufficient control over the vehicle.(40) In many cases, ownership implies that level of control.(41) In others, ownership has nothing to do with it.(42) Overreliance on the word "ownership," therefore, can detract from the driving force of the presumption: who controls the automobile at the time?

Accordingly, the Mata court's focus on ownership as the pivot of applicability, at least to the extent that it contravenes the determination of the employer's level of control over the vehicle, frustrates the very purpose and policy behind Robertson's adoption of the presumption.

Extending the Presumption

Under the policy rationale behind the Robertson presumption, the presumption should be extended to certain lessees as well, even though they may not actually own the vehicle in question. Such an extension of the rule, based on control rather than ownership, is faithful to and consistent with the underlying precepts of the presumption and the doctrine of respondeat superior. In addition, the extension would not contravene any precedent, other than Mata. Finally, the extension, based on fairness and for the benefit of the plaintiff, ameliorates the inequity of the Mata restriction, which allows certain defendants whose control over the vehicle would suffice for liability but who lease the vehicle instead of owning it to escape the presumption. There are no downsides. Consequently, the Robertson presumption should apply to lessees whose lease agreements bestow control over the car at a level sufficient to impute to the lessee its agent's negligence.

If the true distinction is control, as argued above, there is little reason for a hard line distinguishing between owner and lessee. If the lease agreement gives the lessee the right to operate a truck whenever, wherever, and however he wishes, without having to report to the owner, there is little doubt who controls the truck's day-to-day operation. In this case, the lessee is a de facto owner, with all the rights of control that the word "owner" entails. Because liability is based on control, it is the lessee in this case, not the owner, who is subject to the doctrine of respondeat superior. The Robertson presumption should rightfully apply to the lessee, since the information the plaintiff needs to hold the lessee liable is exclusively within the lessee's knowledge, not the owner's.

Furthermore, nothing concerning extending the presumption to include lessees contradicts the presumption's language as articulated by the Texas Supreme Court. It is true that the long line of cases, including such Texas Supreme Court cases as Broaddus and Robertson, use the term "own" in their iteration of the rule.(43) Ownership is generally a sufficient basis for presupposing significant control over a vehicle.(44) The Supreme Court has never suggested that it is the exclusive basis, however. Adding another, equally applicable, basis does not modify the force behind the word "own" in Robertson or Broaddus, but merely extends the general principle beyond the words used to express it in the instances confronted thus far. The Supreme Court used the word "own" because it implies significant control,(45) and because the court confronted only situations in which the defendant employer also owned the vehicle. Mata is the first Texas court to address other forms of possession which confer nearly the same level of control as ownership.(46)

By illogically adhering to the literal proprietary meaning of the word "own," Mata failed to appreciate the gross disparities which could result from its position. Under the Mata interpretation, lessors could circumvent the equitable rule and slam the door on certain plaintiffs. Take, for example, the following situation:

Charley is driving home from work one day, is hit by a truck and, as a result, suffers injuries. After getting information from the driver and police, Charley files a complaint and alleges that the driver is an employee of Leasing Corp., that Leasing Corp. leases the truck from the owner, Trucking Co., that the lease gives Leasing Corp. full control over the use and maintenance of the truck, and that the driver's negligent driving caused the accident. Charley sues the driver, Leasing Corp., and Trucking Co. for negligence and vicarious liability under the theory of respondeat superior. Leasing Corp. and Trucking Co. both immediately move to dismiss the action against them. They challenge Charley's ability to assert a sufficient basis for respondeat superior. Charley is now in a bind. Charley has no access to information about the circumstances of the driver's mission that day but cannot assert the Robertson presumption against either corporate defendant. Leasing Corp. does not "own" the truck, and the driver is not an employee of Trucking Co. Each defendant lacks one basis for the presumption. Without the presumption, Charley cannot force the defendants to produce facts about the driver's mission, facts which are exclusively within the defendants' knowledge. And without these facts demonstrating that the driver was within the course and scope of his employment, Charley's case fails to state a claim, and the corporate defendants' motions are granted.

Conclusion

The Robertson presumption with respect to owners is well-settled by a long line of Texas caselaw. Until 1995, its application to lessees had never been tested. Mata changed that. In restricting the presumption to true owners by excluding lessees, Mata based the presumption on ownership, rather than on control.

Mata failed to appreciate the significance of the underlying policy establishing control as the true basis for the rule. Control is the basis for respondeat superior liability. Control is also the basis for imputing knowledge of a car's use to the owner of the car. Ownership is only one index of control. Lessees may also exert nearly absolute control over vehicles. To exclude such lessees on the basis of the restrictive term "own" is to strip the presumption of its force against lessee employers and render starkly inequitable results for the plaintiff. Mata's constrained reliance on the term "own" as a defining factor is therefore misguided.

Expanding the presumption to lessees makes sense. In the case of the lessee employer, the plaintiff is still in a state of ignorance as to the scope of the employee's mission. The plaintiff cannot prevail without facts about the mission. Those facts are exclusively within the hands of the lessee employer because the lessee employer controls the details of the vehicle's operation. The plaintiff needs the presumption to apply to the lessee employer, to "smoke out" those details. The presumption is an equitable rule. It should be extended to cover lessee employers.

Notes

1. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) ("Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong.").
2. See DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995) ("Respondeat superior imposes liability on the employer that is responsible for the acts of his employee, acting in the scope of his employment ….").
3. Baptist Mem'l, 969 S.W.2d at 947.
4. See Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex. App. - Houston [14th Dist.] 1995, no writ) ("Under Texas law, employers may be held liable for negligent acts by their employees under a theory of respondeat superior only if the employee's actions are in the course and scope of their employment."); see also Restatement (Second) of Agency § 219(1) (1957) ("A master is subject to liability for the torts of his servants committed while acting in the scope of their employment.").
5. E.g., Robertson Tank Lines, Inc. v. Van Cleve, 468 S.W.2d 354, 358 (Tex. 1971).
6. See Houston News Co. v. Shavers, 64 S.W.2d 384, 386 (Tex. Civ. App. - Waco 1933, writ ref'd) ("[N]ot infrequently the evidence necessary to establish the character of the mission in which the [employee] was engaged is exclusively within the possession of the defendant."); Studebaker Bros. Co. v. Kitts, 152 S.W. 464, 467 (Tex. Civ. App. - San Antonio 1912, writ ref'd) (noting that evidence of course and scope generally is peculiarly within the knowledge of the employer).
7. Although this article will focus on Texas courts and law, it is noteworthy that other states have devised the same basic paradigm. See, e.g., Pryor v. Brown & Root U.S.A., Inc., 674 So. 2d 45, 48 (Ala. 1995) ("Use of a vehicle owned by an employer creates an 'administrative presumption' of agency and a presumption that the employee was acting within the scope of his employment, as that concept is used in the law of respondeat superior liability … ."); Nipper v. Brandon Co., 553 S.W.2d 27, 29 (Ark. 1977) ("When a regular employee is driving a vehicle owned by the employer, and an accident occurs, there is a presumption of fact that the employee is acting within the scope of his employment.").
8. See Robertson, 468 S.W.2d 354. It should be noted, however, that Robertson is not the first Texas court to recognize the presumption. The presumption was noted by appellate courts as early as 1933, see Shavers, 64 S.W.2d at 386, and by the Texas Supreme Court in 1940, see Broaddus v. Long, 135 Tex. 353, 356, 138 S.W.2d 1057, 1058 (1940). Broaddus, however, merely cited the rule with approval. See id. at 356, 138 S.W.2d at 1058.
9. Robertson, 468 S.W.2d at 357.
10. Broaddus v. Long, 135 Tex. 353, 356, 138 S.W.2d 1057, 1058 ("'Again, if it is proved that the automobile in question was owned by the defendant, and further proved that the driver was in the employment of defendant, a presumption then arises that such driver was within the scope of his employment when the accident occurred.'") (quoting 5 Am. Jur. Automobiles § 612 (1936)). There is a split in the Texas courts of appeals as to whether ownership itself will give rise to presumptions of both employment and course and scope, or whether proof of both ownership and employment is necessary to give rise to a presumption of course and scope. See 8A Tex. Jur. 3d Automobiles § 738 (1994); see also Dowell v. Tex. Commerce Bank, No. 01-87-01120-CV, 1998 Tex. App. LEXIS 2514, at *1 (Tex. App.-Houston [1st Dist.] Oct. 13, 1998, no writ) (not designated for publication) (noting, but not resolving, the split of authority in the Texas courts of appeals on the issue). Regardless of how the Texas Supreme Court would rule on the split, the rationale for the Robertson presumption applies equally well to either side. See Hunsucker v. Omega Indus., 659 S.W.2d 692, 695 (Tex. App. - Dallas 1983, no writ).
11. Robertson, 468 S.W.2d at 358.
12. See id.
13. See, e.g., Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 366 (Tex. App. - Houston [14th Dist.] 1995, no writ) (acknowledging the existence of the Robertson presumption).
14. 900 S.W.2d 363 (Tex. App. - Houston [14th Dist.] 1995, no writ).
15. Id. at 366.
16. 152 S.W. 464 (Tex. Civ. App. - San Antonio 1912, writ ref'd).
17. Studebaker Bros., 152 S.W. at 465.
18. Id. at 467.
19. 135 Tex. 353, 138 S.W.2d 1057 (1940).
20. Broaddus, 135 Tex. at 354, 138 S.W.2d at 1057.
21. Id. at 356, 138 S.W.2d at 1058.
22. Id. at 356, 138 S.W.2d at 1058 (quoting 5 Am. Jur. Automobiles § 612 (1936)).
23. 468 S.W.2d 354 (Tex. 1971).
24. Robertson, 468 S.W.2d at 356.
25. Id. at 357.
26. Mata v. Andrews Transp., Inc., 900 S.W.2d 363, 364 (Tex. App. - Houston [14th Dist.] 1995, no writ).
27. Id.
28. Id.
29. Id.
30. Id.
31. Id. at 366.
32. Id. (emphasis added).
33. See id. at 366-67.
34. Houston News Co. v. Shavers, 64 S.W.2d 384, 384 (Tex. Civ. App. - Waco 1933, writ ref'd); see also Studebaker Bros. Co. v. Kitts, 152 S.W. 464, 467 (Tex. Civ. App. - San Antonio 1912, writ ref'd) "It would be an intolerable burden to require an injured person not only to prove his case, but to go further and meet any possible defense that owner of the vehicle might make, before he could recover. 'Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of.'" (quoting Long v. Nute, 100 S.W. 511 (Mo. Ct. App. 1907)).
35. See Baptist Mem'l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) ("The most frequently proffered justification for imposing [vicarious] liability is that the principal or employer has the right to control the means and methods of the agent or employee's work."); Restatement (Second) of Agency § 219(1), cmt. a (1957) ("The conception of the master's liability to third persons appears to be an outgrowth of the idea that within the time of service, the master can exercise control over the physical activities of the servant.").
36. See Newspapers, Inc. v. Love, 380 S.W.2d 582, 589 (Tex. 1964) ("The doctrine which holds the master liable for the torts of his servant committed in the course of his employment is essentially a policy doctrine and except for acts personally directed by the principal, the liability of the master is founded upon the contractual arrangement with the servant, either expressed or implied which vests in him the right to control the details of the work."); Kennedy v. American Nat'l Ins. Co., 130 Tex. 155, 159, 107 S.W.2d 364, 366 (Tex. 1937) ("'Negligence in the conduct of another will not be imputed to a party if he neither authorized such conduct, nor participated therein, nor had the right or power to control it.'") (quoting Wesolowski v. John Hancock Mut. Life Ins. Co., 162 A. 166, 167 (Pa. 1932)).
37. See, e.g., Newspapers, 380 S.W.2d at 591 ("[T]he terms of the agreement between the parties is of importance in determining the existence of a master-servant relationship and that the essential inquiry is whether or not the employer has the contract right to control the opposite contracting party in the details of the work to be performed.").
38. See American Nat'l Ins. Co. v. Denke, 128 Tex. 229, 237, 95 S.W.2d 370, 374 (Tex. 1936) ("[T]he agent or solicitor must be under the control of the principal as regards his physical movements in the performance of the contract in order to create liability upon the part of the principal for the agent's tortious acts.").
39. See Kennedy, 130 Tex. at 159, 107 S.W.2d at 366 ("'The employer is not liable where the use of the automobile or other vehicle operated by the employee is not expressly or impliedly authorized by the employer, and he exercises no control over its operation.'") (quoting 5 Am. Jur. § 393, 728-29).
40. See id. at 159, 107 S.W.2d at 366 ("'To hold a master legally responsible for the act of a servant who is engaged in furthering his master's business and who while doing so negligently uses some instrumentality that carries him from place to place, it must either be proved that the master exercises actual or potential control over that instrumentality … .'") (quoting Wesolowski, 162 A. at 167).
41. See, e.g., Restatement (Second) of Agency § 220(1), cmt. d (1957) ("Where the owner of a vehicle driven by a guest is in the vehicle, there is ordinarily an inference that he is in control, rebuttable only if he agrees with the guest to surrender complete control to him.").
42. This is especially true in certain lease arrangements. See, e.g., infra notes 44-46 and accompanying text.
43. See supra Part I.
44. See Act of April 23, 1963, 58th Leg., p. 108, ch. 60 Tex. Rev. Civ. Stat. Ann. art. 6701c-1 § 2 (West 1994) ("No commercial motor vehicle nor any truck-tractor shall be operated over any public highway of this state by any person other than the registered owner thereof, or his agent, servant or employee under the supervision, direction, and control of such registered owner … ."), repealed by Acts of May 23, 1995, 74th Legislature, p. 1870, ch. 165, § 24(a) (1995).
45. Robertson, 468 S.W.2d 354, 357; Broaddus, 135 Tex. 353, 356, 138 S.W.2d 1057, 1058 (1940); see also Tex. Rev. Civ. Stat. Ann. art. 6701c-1 § 2.
46. See Mata, 900 S.W.2d 363, 355-56; see also Tex. Rev. Civ. Stat. Ann. art. 6701c-1 § 4 (requiring leases of commercial vehicles to state "that the operation of such vehicle shall be under the full and complete control and supervision of the person other than the registered owner"); Op. Tex. Att'y Gen. No. C-152 (1963) (holding that a lease in compliance with Article 6701c-1 § 4 makes the lessee the "owner").

Scott Dodson has a B.A. in Biology from Rice University and a J.D. from Duke University. During 2000 - 2001, he clerked in New York for Judge Nicholas G. Garaufis and is now an associate attorney in Houston for the law firm of Gardere Wynne Sewell LLP.