JACQUELYN ELMORE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF RON ELMORE,
DECEASED, AND INTERVENOR, RONNIE ELMORE v. E. SULLIVAN ADVERTISING & DESIGN, INC., HEATH
CHANNING HEBERT AND ASPEN HEBERT; from Jefferson County; 11th district (11-07-00118-CV, ___
SW3d ___, 09-25-08)
Jacquelyn and Ronnie Elmore, the parents of Ron Elmore, filed a wrongful death action against Heath
Channing Hebert and his employer, E. Sullivan Advertising & Design, Inc. Hebert and his family were on
their way to a Labor Day Music Festival in Beaumont when Hebert missed a turn. Hebert was in the process
of making a U-turn when Ron Elmore’s motorcycle struck Hebert’s Toyota Sequoia. Ron subsequently died
from his injuries. The trial court granted E. Sullivan Advertising’s motion for summary judgment on the
ground that Hebert was not acting within the course and scope of his employment when the collision
occurred. We affirm.
Doctrine of Respondeat Superior
The essential elements of a negligence cause of action are (1) a legal duty owed by one person to another,
(2) a breach of that duty, and (3) damages proximately caused by the breach. Greater Houston Transp.
Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Ginther v. Domino’s Pizza, Inc., 93 S.W.3d 300, 303 (Tex.
App.-Houston [14th Dist] 2002, pet. denied). The existence of a legal duty is the threshold requirement.
Generally, a person has no duty to control the conduct of another. Otis Eng’g Corp. v. Clark, 668 S.W.2d
307, 309 (Tex. 1983). Under the theory of respondeat superior, however, an employer may be vicariously
liable for the negligent acts of its employee if the employee’s actions are within the course and scope of his
employment. Mayes, 236 S.W.3d at 756. An employer is liable for the tort of its employee only when the
tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s
business and for the accomplishment of the object for which the employee was hired. Id.; Minyard Food
Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002). Thus, the employee’s act (1) must be committed
within the scope of the general authority of the employee (2) in furtherance of the employer’s business and
(3) for the accomplishment of the object or purpose for which the employee was hired. Leadon v.
Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972); Robertson Tank Lines, Inc. v. Van Cleave,
468 S.W.2d 354, 357 (Tex. 1971); Bell v. VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.-Fort Worth 2006, no
E. Sullivan Advertising moved for summary judgment on the grounds that its evidence negated the duty and
breach of duty elements essential to the Elmores’ claims. In their depositions, Hebert and Eric Sullivan
testified to facts that demonstrated that Hebert was not acting within the course and scope of his
employment at the time of the collision. The trial court granted E. Sullivan Advertising’s motion.