No. 05-07-00638-CV

(05-07-00638-CV, ___ SW3d ___, 06‑18‑08, pet. denied Oct 2008)(auto accidenct, negligence,
summary judgment)

On Appeal from the 298th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 06-10949
Before Justices FitzGerald, Lang-Miers, and Mazzant
Opinion By Justice FitzGerald
 Terry James and Charlotte Manor sued Jackie Johnson alleging personal injuries and property
damages resulting from an automobile accident. The trial court entered a take-nothing summary
judgment in favor of Johnson. Appellants challenge that judgment, arguing the trial court did not
consider their negligent entrustment theory of liability. We affirm.
 Appellants initiated suit below charging Johnson with “negligent operation of a motor vehicle.”
Specifically, their petition alleged:


October 6, 2006 while plaintiffs James and Manor were legally entering CHASE Bank located at 2833
Martin Luther King Jr. Blvd. defendant Johnson sped out the entrance and damaged plaintiff James['s]


Direction arrows identify one entrance and one exit at this CHASE Bank described above.


Defendant Johnson['s] gross negligence resulted in approximately $500.00 property damage.


Defendant Johnson was the proximate cause of plaintiffs James and Manor's pain and suffering.


Defendant Johnson['s] actions resulted in injuries to the neck and back of plaintiff Manor.


Defendant Johnson['s] actions resulted in injuries to lower back, accompanied with muscle spasms, to
plaintiff James.

The petition went on to seek damages from Johnson based on that negligence.   See Footnote 1
 Johnson answered, denying the claims. Following discovery, appellants moved to amend their
pleading to add Norilyn Brown as a defendant; she purportedly admitted to being the driver of the
vehicle that struck James's car. Their motion stated, “This is the only amendment plaintiffs desire.”
 Johnson filed a traditional motion for summary judgment, alleging appellants could not succeed on
their claims against him. He attached his own affidavit, testifying that he was not involved in the
accident at issue in any way and that Brown was driving the vehicle that struck appellants. Appellants
filed their response to Johnson's motion in a document titled “Plaintiffs' Objections to Defendant Jackie
Johnson's First Motion for Summary Judgment.” Appellants did not file any summary judgment
evidence. The response alleged for the first time that Johnson was liable under a theory of negligent
entrustment, stating:


Jackie Johnson is the owner of the vehicle that is the basis for this original suit.


Jackie Johnson entrusted the vehicle to a reckless and/or incompetent driver.


It was Norilyn Brown's gross negligence that resulted in the property damage and personal injuries
making the basis of this suit.


Norilyn Brown's gross negligence was the proximate cause of the accident/injuries in question.

The trial court granted Johnson's motion.
 We review a summary judgment under well-established standards. The party moving for summary
judgment has the burden of showing no genuine issue of material fact exists and it is entitled to
judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,
548 (Tex. 1985). A defendant moving for summary judgment must either (1) disprove at least one
element of the plaintiff's theory of recovery, or (2) plead and conclusively establish each essential
element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-
79 (Tex. 1979).
 In a single issue, appellants contend the trial court erroneously granted summary judgment because
Johnson could be liable under the theory of negligent entrustment. However, appellants never pleaded
negligent entrustment as a theory for recovery and never pleaded facts related to such a theory. Our
rules of civil procedure require a plaintiff's pleading to include “a short statement of the cause of action
sufficient to give fair notice of the claim involved.” Tex. R. Civ. P. 47(a). Nothing in appellants' pleading
would have given “fair notice” to Johnson that appellants were alleging he had negligently entrusted a
vehicle to Brown. Appellants made no allegations concerning ownership of the vehicle, no allegations
concerning Brown's being a reckless or incompetent driver and that Johnson was aware of that
recklessness or incompetence, and no allegations concerning Brown's negligent driving having caused
the accident. See Schneider v. Esperanza Transmission Co., 744 S.W.2d 595, 596 (Tex. 1987) (to
establish owner's liability, plaintiff must prove (1) entrustment of vehicle by owner, (2) to unlicensed,
incompetent, or reckless driver, (3) that owner knew or should have known to be unlicensed, (4) that
driver was negligent on occasion in question, and (5) that driver's negligence proximately caused
accident). Indeed, the pleaded allegations-that Johnson's driving had caused the accident-were in
direct conflict with a negligent entrustment theory.
 Johnson offered summary judgment evidence negating the negligence theory pleaded by appellants
against him. His affidavit stated that Brown, not Johnson, drove the vehicle and caused the accident at
issue. Appellants offered no summary judgment evidence to the contrary. Thus, Johnson proved he
was entitled to judgment as a matter of law on the negligence claim pleaded by appellants.
 We decide appellants' sole issue against them, and we affirm the trial court's summary judgment

                                                   KERRY P. FITZGERALD

Footnote 1          As Johnson points out in his brief, appellants identified “intentional infliction of
emotional distress” as an element of damages caused by Johnson's negligent driving. Johnson
addressed this theory in his summary judgment motion, out of an abundance of caution, as if it were
an independent claim for relief. Appellants pleaded no elements of such a claim and no facts tending
to support such a claim. Thus, we conclude appellants urged emotional distress only as an element of
File Date[06/18/2008]
File Name[070638F]
File Locator[06/18/2008-070638F]