Dodge v. Hunt Petroleum Corp.8/30/2001
Patricia L. Dodge brings this appeal from the trial court's order granting summary judgment in favor of Hunt Petroleum Corporation (Hunt). Dodge brings five points of error contending the trial court erred in granting the summary judgment because Hunt failed to establish it is not liable for assault and battery; Dodge's claims are timely; and because fact issues exist as to whether Hunt's conduct was "extreme and outrageous," whether Hunt is liable for sexual harassment, and whether Hunt retaliated against Dodge for filing a complaint of sexual harassment. For the reasons set forth below, we affirm the judgment of the trial court.
Standard of Review
The standards for reviewing summary judgment are well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App._Dallas 1998, no pet.). The summary judgment motion must expressly present specific grounds for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 480 (Tex. App._Dallas 1995, writ denied). To prevail on summary judgment, a defendant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff's cause of action. Int'l Union United Auto. Aerospace & Agric. Implement Workers of Am. Local 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App._Dallas 1991, writ denied). A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982). Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Muckelroy v. Richardson Indep. Sch. Dist., 884 S.W.2d 825, 828 (Tex. App._Dallas 1994, writ denied).
Where, as here, the summary judgment does not state the grounds upon which it was granted, the non-movant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. See Thomson v. Norton, 604 S.W.2d 473, 476 (Tex. Civ. App._Dallas 1980, no writ); Orozco, 975 S.W.2d at 394. If a movant does not show its entitlement to judgment as a matter of law, we must remand the case to the trial court for further proceedings. See Gibbs v. Gen. Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Texas Stadium Corp. v. Sav. of Am., 933 S.W.2d 616, 618 (Tex. App._Dallas 1996, writ denied).
Assault and Battery
In her first point of error, Dodge contends Hunt failed to establish it was not liable for the assault and battery committed by Hunt manager Richard Crippin as a matter of law. In December 1993, during a workday, Dodge and Langsdale attended a Christmas luncheon with Crippen during which they were served alcoholic beverages. According to Dodge, Crippen behaved rudely, and at one point grabbed Dodge's arm. As she was attempting to pull away from him, she fell. Dodge contends that Hunt is liable for assault and battery due to the actions of Crippen.
To impose liability on an employer for the tortious conduct of the employee, the act of the employee must fall within the course and scope of the employment. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 680 (Tex. App._El Paso 1997, pet. denied). The tortious conduct must be of the same genera
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