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Click here for the full text of this decision FACTS:John Alfred Landry drove a semi owned by Builders Transport to Houston to deliver tires. Because the receiver was closed for the weekend, Landry drove to Galveston to wait to complete the delivery. There, he met up with a friend, Roy Cell Smith, and Smith’s friend, Anthony Henry. Despite the policy of Builders Transport prohibiting drivers from taking on passengers, Landry agreed to let Smith and Henry ride with him back to Dallas after he delivered the tires. Landry allegedly drank alcohol the night before the three left to make the delivery, as well as the next day after Landry had to reconnect the truck’s trailer, which had become unhitched. As he exited the interstate in Houston, Landry lost control of the truck and the truck crashed. Smith was ejected from the cab and was killed when the body of the truck ran over him. Smith’s family filed a wrongful death and survival action against Builders Transport and Landry. The family alleged that Builders Transport was vicariously liable for Landry’s negligence under the theory of respondeat superior. They also alleged that Builders Transport was directly liable for its own negligence under theories of negligent hiring, negligent training, negligent supervision and negligent entrustment. The trial court entered a directed verdict against Landry on his individual negligence. As to Builders Transport, the trial court submitted several jury questions, including: 1. whether Landry was acting in the scope of his employment on the occasion in question; 2. whether the negligence of Builders Transport, if any, was a proximate cause of the occurrence; 3. whether Smith’s negligence, if any, was a proximate cause; 4. the apportionment of responsibility among those found negligent; and 5. compensatory damages. The jury said Landry was acting in the scope of his employment; that Builders Transport proximately caused Smith’s death; and that Smith proximately caused his own death. The jury said Landry was 55 percent responsible, Builders Transport was 30 percent responsible and Smith was 15 percent responsible. The jury awarded $4.4 million in various damages to Smith’s wife, his children and his parents. Builders Transport raises several issues on appeal. HOLDING:Reversed and remanded. Builders Transport argues that there is no evidence or factually insufficient evidence to support the jury’s finding that it was negligent in training Landry. The court finds there is more than a scintilla of evidence that Landry received inadequate training, which was a proximate cause of Smith’s death. The court notes that Landry’s brother told him that he failed a portion of the driving test three times, and that Landry’s trainer let Landry determine when he was ready to drive, rather than certifying his readiness himself. The court then considers whether the trial court erred by failing to include an instruction in the charge that Builders Transport could be found liable under appellees’ negligence theories only if the jury found that Builders Transport knew or should have known that Landry was an incompetent driver. Though Landry claims that Builders Transport did not adequately preserve this issue on appeal � because the proposed charge was not a substantially correct statement of law � the court finds that the issue was properly preserved because it properly stated the law as to most of the family’s negligence theories, though it was not a substantially correct statement of law as to all of their theories. The proposed instruction dealt with Builders Transport’s knowledge that Landry was incompetent, but did not deal with one of the family’s theories: that Builders Transport failed to provide proper training to its drivers, including Landry. This theory is, in effect, a negligent undertaking claim, the court finds, even though that particular terminology is not used. Here, Builders Transport can be held liable under the negligent training allegation only if: 1. it knew or should have known that its driver training program was necessary to protect others; 2. it failed to exercise reasonable care in training its drivers; and 3. its failure to do so increased the risk of harm to Smith. “Because of the trial court’s failure to include additional instructions regarding these predicate facts with the negligence question, Builders Transport contends that the jury’s negligence finding is immaterial and requests rendition of judgment in its favor. . . . However, because it has been necessary for this Court to clarify the manner in which [the family's] negligence claim should be submitted, we will remand in the interest of justice.” The court also finds evidence that the trial court did not properly instruct the jury on whether Landry had actual or apparent authority to invite Smith to ride with him. Builders Transport additionally argues that the trial court erred by not instructing the jury on the “unauthorized passenger rule.” The court says resolution of the issue involves three settled principles: 1. an employer is liable for the torts of its employee committed while acting within the scope of employment; 2. a property owner owes a limited duty of care to a trespasser; and 3. an agent’s representations to a third party are binding on the agent’s principal when made with actual or apparent authority. The fact that Landry was performing his duties in a manner contrary to his employer’s instructions does not mean that he was acting outside the course and scope of his employment. There was more than a scintilla of evidence to support the finding that Landry was acting within the course and scope of his employment. However, the court agrees that the charge was defective in that it did not ask whether Landry had actual or apparent authority to invite Smith to ride with him. The court then considers whether the charge error harmed Builders Transport. The court concludes that based on the jury’s assessment of 55 percent responsibility to Builders Transport, it probably did cause the rendition of an improper judgment. The court finds this issue should be remanded, too. OPINION:Reyna, J.; Gray, C.J., Vance and Reyna, JJ. DISSENT:Gray, C.J. “This is a charge error case in which we fail to follow well-established precedent in two areas. First, what is the proper disposition if, after reviewing charge error alleged by the defendant, we determine there is no proper verdict upon which the plaintiff has shown itself entitled to relief. Second, what do we do with the judgment regarding a defendant that did not appeal. “In this case, the Court properly determines there was error in the charge to which Builders Transport objected. The Court properly determines the error was harmful. The Court then properly reverses the trial court’s judgment. But the Court errs in remanding the case for a new trial.”

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