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Click here for the full text of this decision FACTS:Corte Adams, who lived in Houston, worked for a Goodyear Tire & Rubber shop in Bryan. Because Adams did not have reliable transportation, Goodyear allowed Adams to use a pickup truck to get back and forth to work. Occasionally, Good year would have Adams pick up or drop off tires at its Houston stores as part of his commute. Adams was “on the clock” during these runs, and he also had a pager that he was required to keep on him at all times. Adams normally worked five or six days a week, for roughly 10 hours. His commute was four hours each day, round-trip, on top of that. The week preceding Feb. 26, 1999, Adams had worked approximately 66 hours, which included one delivery, and had spent another 20 hours commuting. On Feb. 26, Adams attempted to deliver some tires to the Houston shop, but it was closed. So, Adams got dinner, had a few beers and then went to sleep. At 3 a.m., he woke up and intended to go get cigarettes for his father before coming back home to change, drop the tires off at the Houston shop and then make it to work in Bryan by 6 a.m. Shortly after leaving the house in the Goodyear truck on his way to get cigarettes, Adams fell asleep at the wheel and crashed into a car driven by Patrick Mayes. Mayes and Adams were both injured. Adams did not work for months, collecting workers’ compensation benefits during that time, then he was fired for using the truck in an unauthorized manner. Mayes sued Goodyear under the theory of respondeat superior. Mayes said Goodyear was negligent in allowing Adams to drive, and grossly negligent for permitting Adams to drive after he had worked so many hours, had been awake for 23 hours and had been drinking alcohol. The trial court granted Goodyear’s hybrid traditional and no-evidence summary judgment motion, finding that Adams was not acting within the course and scope of his employment at the time of the accident. Mayes appeals. HOLDING:Reversed and remanded. The court first reviews the evidence on the respondeat superior claim. The court finds the evidence sufficient to raise a genuine issue of material fact regarding whether Adams was acting within the course and scope of his employment, despite being on a personal errand. “Adams (1) was driving a Goodyear truck filled with Goodyear tires he had undertaken to deliver after leaving Bryan the previous evening and before returning the next morning, and was”on the clock’ when he was making deliveries; (2) had a delivery to make that morning because he had been unable to deliver the tires the night before; (3) was available via pager 24 hours a day; and (4) was not restricted in any way from using the truck for personal business.” The court acknowledges that some cases have held that employees have been held to be acting outside the scope of their employment when they have caused injuries while on personal errands. But, the court says, what is more important than the holdings of these cases is that the question of whether an employee is acting within the course and scope of his employment is not usually a question of law. Rather, it is usually a question of fact for the jury, particularly when more than one inference may be drawn from the evidence. The court finds as a second basis for its conclusion that Adams was acting in the course and scope of his job the fact that Goodyear authorized workers’ compensation payments for him after the accident. The court next considers Mayes’ negligent entrustment argument, even though his pleadings do not specifically raise the cause of action, because Mayes did not complain when Goodyear characterized his claims that way. Despite Adams’ generally good driving record, the court finds determining whether or not a person is a reckless driver is not limited to the person’s driving record. The condition, state or situation of the person at the time of the entrustment may be given equal or greater credence. Mayes’ contention is that Adams may have been incompetent to drive because of insufficient sleep and that Goodyear was aware of this possibility, thus raising a potential negligent entrustment claim. The court agrees. OPINION:Keyes, J.; Nuchia, Jennings and Keyes, JJ. DISSENT:Jennings, J. “[T]he controlling fact of this case is that, at the time of the collision, sometime after 3:00 a.m., Adams, after having had dinner,”a few beers,’ and several hours of sleep at his father’s house, was driving the truck from his father’s house to a convenience store to buy a package of cigarettes for his father. . . . Adams’ actions, at the time of the collision, were not in furtherance of Goodyear’s business, and the object for which Adams was hired was to change, fix, and sometimes deliver tires � not to drive to a convenience store to buy cigarettes for his father.”

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