AUSTIN � Tugboat owners whose workers borrowed each other's cars share no liability for a fatal crash one of them caused, the Supreme Court of Texas decided on Aug. 26.

The justices ruled that the family of victims Douglas and Lois Magee can't pursue a claim of vicarious liability against G & H Towing.

They reversed First District appellate judges in Houston, who ruled that G & H Towing failed to deny vicarious liability in a motion for summary judgment. The justices recognized the error but called it harmless.

They held that when First District judges cleared car owner William Colson of liability, they should have automatically cleared G & H Towing.

"The undisputed facts and Colson's final judgment establish that Colson did not negligently entrust his vehicle," they wrote.

"G & H therefore cannot have vicarious liability for negligent entrustment because its agent did not commit the tort.

"Although a trial court errs in granting a summary judgment on a cause of action not expressly presented by written motion, we agree that the error is harmless when the omitted cause of action is precluded as a matter of law by other grounds raised in the case."

Colson and Joseph Violante worked as quartermasters on the same tugboat, on shifts lasting several days.

Their boat didn't run regular routes and their shifts didn't end where they began, so they loaned their personal vehicles to drive home.

Once, Violante drove Colson's car to his home and then to a bar. He got drunk, drove off, and caused the collision that killed the Magees. Violante was convicted of intoxication manslaughter.

Adult children of the Magees sued Violante, Colson, G & H Towing and the bar in Harris County district court. They claimed Colson had a duty to inquire about Violante's competence as a driver.

Colson and G & H Towing moved for summary judgment, and Harris County District Judge Russell Austin granted it.

On appeal, two of three judges on a First District panel affirmed summary judgment for Colson but reversed it for G & H Towing.

G & H Towing sought Supreme Court relief and achieved it.

The justices wrote that as a general rule, granting summary judgment on a claim not addressed in the motion is reversible error.

They wrote that Texas courts allow a limited exception, and they quoted it from a textbook on summary judgment by Timothy Patton.

Patton wrote, "If the defendant has conclusively disproved an ultimate fact or element which is common to all causes of action alleged, or the unaddressed causes of action are derivative of the addressed causes of action, the summary judgment may be affirmed."

Mike Johanson and Chris Volf represented G & H Towing.

Kathryn Smyser, Benjamin Hall, Elizabeth Hawkins and Kimberly Bennett represented the Magee family.

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