Heritage Hous. Dev., Inc. v. Carr, 199 S.W.3d 560 (Tex. App. 2006)

A survival action was brought against the nursing home and its corporate parent. A jury found that the nursing home, the parent, and three employees were negligent, awarding $2,204,000. The trial court denied motions for judgment notwithstanding the verdict and Defendants appealed. On appeal the court found there was insufficient evidence to support a verdict against the corporate parent and that because including the parent in the negligence charge could have affected the jury’s apportionment of liability, the case was remanded for a new trial. Plaintiff’s evidence was summarized as follows: “Carr contends the employment paperwork the nursing home staff completed that has HHD’s name on it, or refers to HHD as the employer, demonstrates HHD’s employment of the nursing home staff and establishes HHD’s vicarious liability. Carr points to employment-at-will statements, job description acceptance forms, substance abuse policy notices, Equal Opportunity Employment statements, acknowledgment of time clock procedures, no solicitation policy notices, ethics and conducts policies, disciplinary and termination forms, and receipt of employee handbook acknowledgments as evidence supporting a finding that HHD employed the nursing home staff. Carr also observes that the nursing home used administrative manuals containing HHD’s policies and procedures, thus further indicating that HHD controlled the details of the work performed.” The court found, though, that the trial testimony showed the facility controlled patient care; Plaintiff failure to controvert evidence that local administration controlled operations. The documentary evidence Plaintiff presented was insufficient to hold the corporate parent liable where the evidence at trial showed that patient care was controlled by the facility. The corporate parent also argued that Plaintiff failed to file an expert report reciting its malpractice; Plaintiff countered that an expert report was not required because the parent was not a health care provider. The court of appeals found that Plaintiff’s position could not be squared with its argument that the jury found the parent liable for negligent care. The court rejected the facility’s argument that it could not be vicariously liable for the conduct of its employees; sufficient evidence existed to hold it liable for the conduct of its staff and for hiring. Decided: August 3, 2006. Prior decision at Heritage Hous. Dev., Inc. v. Carr, 2006 Tex. App. LEXIS 4535 (Tex. App. 2006), decided May 25, 2006.