Martinez v. Melendez (Tex.App.- Houston [1st Dist.] Jun. 25, 2009)(Opinion by Bland)
(wrongful death, dump truck wreck, negligent hiring, training, supervision, training, and negligence
per se claims)(no imposition of vicarious liability through proof of an employer-employee relationship,
right to control test for employee or independent contractor status)
Because the undisputed evidence shows, as a matter of law, that no employer-
employee relationship existed at the time of this accident and that Melendez
had no right to control Delfino’s work, we hold that the trial court properly
granted summary judgment dismissing all of the Martinezes’ claims against
Melendez.
AFFIRM TRIAL COURT JUDGMENT: Opinion by Justice Jane Nenninger Bland     
Panel members: Justices Taft, Bland and Sharp   
01-08-00850-CV Luci Martinez, Individually and the Personal Representative of the Estate of Luis
Martinez; and Jose Martinez and Maria Martinez v. Moises Melendez   
Appeal from 190th District Court of Harris County
Trial Court Judge: Hon. Patricia J. Kerrigan  
Trial Court Case #: 0637379B  

MEMORANDUM OPINION

Luci Martinez, José Martinez, and Maria Martinez appeal the trial court’s summary judgment
dismissing their wrongful death negligence claims against Moíses Melendez, arising out of a traffic
accident in which a dump truck—driven by Delfino Bello and owned by his brother Salvador—struck
Luis Martinez’s car, causing his death.  Finding no error, we affirm.

Background

At the time of the accident, Delfino Bello was using his brother’s truck to haul dirt from a Hays
Construction excavation site to a dumping facility.  Appellee Melendez also worked at the Hays site,
hauling dirt in his own truck.  According to the summary judgment record, when Hays needed a dump
truck driver to haul dirt from a site, a representative contacted an independent truck driver, usually
one who has worked on previous projects for Hays, discusses the project and asks him to haul and
to refer other drivers.  That driver, in turn, contacts other drivers, each of whom uses his own truck
to haul loads of dirt.  Hays checks the drivers’ proof of insurance when they arrive at the work site.  
Hays also provides hauling permits for the drivers.

The referring driver does not supervise the other drivers he brings to the project, but collects tickets
from each driver at the end of the week documenting the number of hauls made by that driver.  
Then, he adds them, includes his haul numbers, and provides the total to Hays.  Hays issues one
check to the referring driver, who then divides the money among the drivers according to the
number of hauls made by each.  

In this instance, when Hays asked Melendez if he could refer other drivers to work on the excavation
project, Melendez contacted a driver he knew named Marcos Benitez.  Benitez, in turn, contacted
Salvador to inform him of the available job and of Melendez’s telephone number.  Salvador called
Melendez, who described the Hays project.  Salvador reported to the Hays site with Melendez and
began hauling the dirt.  Melendez and Salvador each prepared trip tickets, which Melendez
submitted to Hays for payment.  After receiving the payment, Melendez gave Salvador his share.  

At the Hays’s excavation site, the truck drivers waited in a line for loading.  A Hays worker would fill
the truck, and the driver would take the load to the designated dumping location and, once they
emptied the load, returned to the Hays site for reloading.  Neither Hays nor Melendez controlled
Salvador’s route.  

One week, after learning of the job from Salvador, Delfino reported to work at the Hays site.[1]  On
the third day of that work week, the truck Delfino was driving collided with Luís Martinez’s car in the
intersection of a tollway feeder road.  Luís Martinez died from his injuries, and his surviving family
members brought suit, asserting claims against Hays Construction, Melendez, and both of the Bello
brothers.  The Martinezes allege that Melendez employed or supervised Salvador Bello and thus that
Melendez is vicariously liable for Delfino’s negligence.  In particular, they allege that Melendez is
liable for the negligent hiring, training, and supervision of Delfino.  

Melendez moved for summary judgment on the claims against him, contending that he is not
vicariously liable for Delfino’s conduct as a matter of law because he did not have an employer-
relationship with Delfino, did not control the details of Delfino’s work, and did not meet the statutory
definition of “employer” set forth in the Federal Motor Carrier Safety Act and adopted in the Texas
Administrative Code.  The trial court granted Melendez’s motion, severed the remaining claims from
the lawsuit, and signed a final take-nothing judgment as to Melendez.   

Discussion

Summary judgment standard of review

We review a trial court’s summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005); Provident Life Accid. & Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  
Under the traditional standard for summary judgment, the movant has the burden to show that no
genuine issue of material fact exists and that the trial court should grant a judgment as a matter of
law.  Tex. R. Civ. P 166a(c);  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999).  When reviewing a summary judgment, we take as true all evidence favorable
to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant’
s favor.  Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997).  

Traditional summary judgment is proper only if the movant establishes that here is no genuine issue
of material fact and that the movant is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a
(c). The motion must state the specific grounds relied upon for summary judgment.  Id.  A defendant
moving for traditional summary judgment must conclusively negate at least one essential element of
each of the plaintiff’s causes of action or conclusively establish each element of an affirmative
defense.  Sci. Spectrum, Inc., 941 S.W.2d at 911.

Employer status

The Martinezes contend that the trial court erred in granting summary judgment on their claims
against Melendez because fact issues exist as to whether Melendez acted as Bello’s employer.  We
consider the merits of their contention under both the general right-to-control test and the
statutory definition of employer under the federal regulations promulgated under the Federal
Motor Carrier Safety Act.  49 C.F.R § 390.5 (2008).

Right to control

Under Texas law, business owners have no duty to see that independent contractors use
reasonable care in performing their work unless they exercise control over the independent
contractor’s activity.  Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002); Redinger v. Living,
Inc., 689 S.W.2d 415, 418 (Tex. 1985).   A plaintiff seeking to prove that the owner is liable for a
negligent act therefore must prove that (1) the owner had a contractual right of control or exercised
actual control, in a way that extends to the operative detail of the contractor’s work, and (2) a nexus
exists between the owner’s retained control and the activity that caused the plaintiff’s injury.  Gen.
Elec. Co. v. Moritz, 257 S.W.3d 211, 214 (Tex. 2008); Ellwood Tex. Forge Corp. v. Jones, 214 S.W.
3d 693, 700 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 95.001-.004).  

Here, the undisputed evidence demonstrates that Melendez had no control over the operative detail
of Delfino’s work.  Delfino determined his own route and the number of loads he transported.  
Melendez did not have any authority to hire or fire Delfino.  Delfino’s brother, not Melendez, informed
Delfino about the job and provided him with the truck he used to perform the work.  

The Martinezes point to equivocal statements and disagreements between Melendez and Hays as to
whether Hays “hires” drivers or truck brokers, or whether Melendez “paid” the Bellos, contending that
they raise a fact issue concerning Bello’s employment status.  The issue, however, is not how the
parties label their relationship, but whether the facts show that one controls the operative details of
the other’s work.  See Dow Chem. Co., 89 S.W.3d at 606.  Here, none of the evidence raises a fact
issue showing that Melendez had any control over the details of Delfino’s work.  Consequently, to the
extent the Martinezes rely on a general employer-employee relationship to impose vicarious liability
or liability for negligent training or hiring on Melendez, the trial court correctly granted Melendez’s
motion for summary judgment.

Statutory employer status

The Federal Motor Carrier Safety regulations define “employer” as “[a]ny person engaged in a
business affecting interstate commerce who owns or leases a commercial motor vehicle in
connection with that business, or assigns employees to operate it. . . .”  49 C.F.R. § 390.5.[2]  The
Martinezes contend that fact issues exist concerning whether Melendez is an employer under this
definition because he was responsible for hauling dirt and hired the Bellos to haul dirt.  We disagree
with this contention.  The evidence conclusively shows that the truck used by Bello was not owned or
leased by Melendez.  Whether Melendez assigned Bello to assist in hauling dirt does not
demonstrate that Melendez is an employer under the regulation because Melendez did not own or
lease the vehicle Bello operated, a requirement of the regulation.  For this reason, we hold that the
trial court properly rejected the Martinezes’ claims under this theory.

Claims addressed in summary judgment motion

The Martinezes claim that the trial court erred in granting summary judgment on all of their claims
against Melendez because his motion for summary judgment did not address their claims for
negligent hiring, supervision, training, and negligence per se asserted in their fifth amended
petition.  This contention lacks merit because each of the Martinezes’ causes of action against
Melendez rely on the imposition of vicarious liability through proof of an employer-employee
relationship with Bello.  Because the undisputed evidence shows, as a matter of law, that no
employer-employee relationship existed at the time of this accident and that Melendez had no right
to control Delfino’s work, we hold that the trial court properly granted summary judgment dismissing
all of the Martinezes’ claims against Melendez.

Conclusion

We hold that the trial court properly granted summary judgment dismissing the Martinezes’ claims
against Melendez.  We therefore affirm the judgment of the trial court.

                                                  Jane Bland

                                                  Justice

Panel consists of Judges Bland, Sharp, and Taft.[3]
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[1] Some evidence suggests that the Bello brothers were partners in a business called Bello
Transportation, and that the business owned the truck, although the title lists Salvador individually
as the owner.

[2]  The regulation expressly limits its application to persons “engaged in interstate commerce,” and,
as Melendez points out, no Texas case has adopted it in imposing vicarious liability.  Our analysis in
no way indicates either approval or disapproval of the Martinezes’ vicarious liability theory under this
regulatory definition of “employer.”

[3] Justice Tim Taft, who retired from the First Court of Appeals on June 1, 2009, continues to sit by
assignment for the disposition of this case, which was submitted on March 30, 2009.