Not “referable to” employment, not a vice-principal

The issue in Lurks v. Designer Draperies was whether the employer of a driver who caused an accident – a Mr. Heitzmann – could be liable for exemplary damages because Heitzmann was a vice-principal.

Noting Heitzmann’s statements to a police officer, his deposition testimony about his work, and his assertion of the Fifth Amendment in response to several questions about his drinking on the job, the Fifth Court “assume[d], without deciding, [that] the summary-judgment evidence raises a genuine issue of fact as to whether Heitzmann was consuming alcoholic beverages at DDF’s workplace, that he was drinking with employees of DDF, and, perhaps, that someone encouraged him to drive.” 

The Court then held: “What is missing from the foregoing evidence and potentially available inferences, however, is more than a mere scintilla of evidence that Heitzmann’s drinking or decision to drive while intoxicated was referable to DDF’s business. Without this evidence, we cannot conclude Heitzmann’s alleged tortious actions may be attributed to DDF.” No. 05-21-00908-CV (Aug. 3, 2022) (mem. op.).