author: ADOLPHO A. BIRCH, JR., J.,

text:
    STATE of Tennessee v. Kevin L. LAWRENCE.
    Supreme Court of Tennessee, at Jackson.
    Nov. 10, 2004 Session.
    Jan. 28, 2005.

      William D. Massey and C. Michael Robbins, Memphis, Tennessee (on appeal); William D. Massey and Loma McClusky, Memphis, Tennessee (at trial), for the appellant, Kevin L. Lawrence.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; J. Ross Dyer, Assistant Attorney General; Phyllis Gardner and Jennifer Nichols, Assistant District Attorneys General, for the appellee, State of Tennessee.
   Opinion

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON, JANICE M. HOLDER, and WILLIAM M. BARKER, JJ., joined.

We granted permission to appeal in this case pursuant to Tennessee Rule of Appellate Procedure 11 to determine whether the trial court properly denied the defendant’s motion to suppress evidence obtained during the investigation of a shooting death. To resolve this issue, we must determine whether the investigators had probable cause to arrest the defendant and whether the delay in taking him before a magistrate for a judicial determination of probable cause should independently require the exclusion of the evidence obtained during the first few hours of his detention. Because we are of the opinion that the officers had probable cause to arrest the defendant, we conclude that the evidence recovered at the scene was not subject to suppression. As to the defendant’s claim of “unreasonable delay,” it is obvious that the defendant was not taken before a magistrate for a judicial determination of probable cause within a constitutionally reasonable time. However, the evidence the defendant sought to suppress was obtained during the first few hours of his arrest. Thus, these evidentiary items were not tainted by exploitation of the constitutional violation and are not, therefore, subject to suppression. Accordingly, we affirm the judgment of the Court of Criminal Appeals.

I. Facts and Procedural History

The record indicates that at approximately eight o’clock in the evening of December 28, 1998, two men entered the home of the victim, Rodney Foster. One man directed the victim’s family into a back bedroom, where he held them at gunpoint. The other man led the victim into the kitchen and fatally shot him. Following the shooting, both men fled the apartment.

The defendant, Kevin Lawrence, and two co-defendants, Toby Bailey and Christopher Lawson, were indicted for first degree premeditated murder and felony murder for the death of the victim. Prior to trial, the defendant filed a motion to suppress evidence obtained during the investigation. He alleged that the evidence obtained following his arrest should be suppressed because the police did not have probable cause to arrest him and because he was held for a period of over eighty hours without a judicial determination of probable cause.

Officers investigating this case testified that on December 28, 1998, Officers Eric Jensen and Ladimer Howell of the Memphis Police Department responded to a call at the Wooddale Condominiums in Memphis to investigate a 911 hangup call. Jensen testified that he was the first officer on the scene and that as soon as he got out of his squad car, he heard two gunshots originating somewhere in the complex. Jensen then observed the defendant run past him. Within seconds, Howell arrived in a separate car. Jensen testified that Howell followed the defendant and that Jensen proceeded in the direction in which the gunshots had been fired.

Jensen then received a “shooting call” from the dispatcher. Jensen proceeded to the location indicated by the dispatcher and found the victim, who had been shot. Witnesses informed Jensen that “two male blacks in dark clothing” broke into the apartment, attempted to rob them, and shot the victim. Jensen testified that after securing the crime scene, he and Howell retraced the general path of the defendant. He stated that on that path, they located a revolver and a mask.

Howell gave similar testimony regarding the events on that evening. He stated that when he arrived on the scene, Jensen asked him if he had heard shots fired. Howell responded that he had not but that he had seen the man running. Howell followed the defendant and observed the defendant run in front of him, in between a couple of buildings, and through another building. He then saw the defendant emerge from the buildings and jump a fence. Howell was able to proceed through the gate to follow him.

At some point during the chase, Howell observed the defendant remove a dark-colored jacket and throw it onto a pile of garbage. Howell recalled that it was around thirty-five degrees that evening, so it seemed odd that the suspect would take off his jacket and throw it in the garbage. He stated that after the defendant discarded his jacket, he caught up with him. As Howell handcuffed the defendant, he noticed gray duct tape on the defendant’s fingers.

Howell testified that while he was escorting the defendant to the squad car, he heard a “wounding call” on the radio, so he grabbed the jacket that the defendant had discarded and went to the apartment identified in the call. After arriving at the scene, Howell found that the tape that had been on the defendant’s fingers had been stuffed between the door and the seat of the squad car. Howell testified that he and Jensen later took a walk to investigate the area. He recalled that Jensen found a handgun, and he found a “sleeve” with two holes cut in it that could have been used as a mask.

Following the hearing in which the above evidence was heard, the trial court denied the defendant’s motion to suppress. The trial court held that the police had probable cause to arrest the defendant and seize the items in question and that the detention of over forty-eight hours was not relevant because the evidence was obtained during the first forty-eight hours after his arrest. At the conclusion of the proof, a Shelby County jury convicted the defendant of first degree felony murder and second degree murder. The trial court merged the offenses and, for felony murder, sentenced the defendant to life imprisonment with the possibility of parole. The Court of Criminal Appeals affirmed the judgment of the trial court, holding that there was probable cause to support the defendant’s arrest and that although there had been an undue delay in taking the defendant before a magistrate for a judicial determination on probable cause, the evidence need not be suppressed because it was obtained during the first forty-eight hours after the arrest. The defendant now appeals pursuant to Tennessee Rule of Appellate Procedure 11, contending that the trial court erred in its refusal to grant his motion to suppress evidence.

II. Standard of Review

The trial court’s findings of fact at a suppression hearing are presumptively correct on appeal unless the evidence preponderates otherwise. State v. Davis, 141 S.W.3d 600, 625 (Tenn.2004); State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996). “Questions of credibility of the witnesses, the weight and value of the evidence, and resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of fact.” Odom, 928 S.W.2d at 23. The application of the law to the facts is reviewed de novo. Davis, 141 S.W.3d at 625.

III. Analysis

In this appeal, the defendant contends that the trial court erred in refusing to suppress certain evidence. This evidence consists of duct tape first observed by the arresting officers on the defendant’s fingers and the results of a gunshot residue test administered to the defendant during in-custody interrogation.

The defendant asserts two grounds in support of his contentions that: (1) he was arrested without probable cause; and (2) he was not taken before a magistrate in a timely manner.

A. Probable Cause

We begin our analysis by determining whether the police had probable cause to arrest the defendant. The defendant contends that there was no probable cause on the night of the arrest because none of the three witnesses who viewed him at the scene identified him as one of the offenders. We reach a different conclusion.

An officer may make a warrant-less arrest “[w]hen a felony has in fact been committed, and the officer has reasonable cause for believing the person arrested to have committed it.” TenmCode Ann. § 40-7-103(a)(3) (2003). Simply stated, the officer must have “probable cause to believe the person to be arrested has committed the crime.” State v. Lewis, 36 S.W.3d 88, 98 (Tenn.Crim.App.2000). Probable cause depends on whether the facts and circumstances and reliable information known to the officer at the time of arrest were “ ‘sufficient to warrant a prudent [person] in believing that the [individual] had committed or was committing an offense.’ ” State v. Bridges, 963 S.W.2d 487, 491 (Tenn.1997) (quoting Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964); State v. Melson, 638 S.W.2d 342, 350 (Tenn.1982)). Probable cause must be more than a mere suspicion. Melson, 638 S.W.2d at 350.

In finding that the police had probable cause to arrest the defendant, the trial court stated,

After receiving a dispatch regarding the 911 hangup call, the officers had a duty to investigate. Immediately after arriving on the scene, they heard shots fired, and saw the defendant running from the scene five seconds later. While following the defendant, [0]fficer Howell saw him jump a fence and remove his coat in 35 degree weather, throwing it on a garbage pile. He therefore had reasonable suspicion to detain him for further investigation. After [Officer Jensen] made the scene, and determined a robbery and possible felony murder had been committed, they found the mask and gun along the route the defendant used to flee, and observed that the defendant had attempted to remove and hide the tape on his fingers, they had probable cause to arrest him.

Here, it is difficult to identify the precise point at which “reasonable suspicion” for the initial chase and detention ripened into “probable cause” for arrest. Indeed, we need not identify that point because the several separate events unfolded in close temporal proximity.

The defendant contends that the failure of the witnesses to identify him as one of the perpetrators demonstrates a lack of probable cause. An officer has probable cause for a warrantless arrest when a felony has in fact been committed, and the officer has reasonable cause to believe that the person arrested committed the crime. Tenn.Code Ann. § 40-7-103(a)(3) (2003). There are several means by which the determination that the defendant is the perpetrator can be made, and among those is identification at the scene. On-scene identification, however, is but one fact that the trial court may consider along with other facts and circumstances. See Beck, 379 U.S. at 91, 85 S.Ct. 223; State v. Yeargan, 958 S.W.2d 626, 636-38 (Tenn.1997).

After reviewing the record of the suppression hearing and the trial judge’s findings of fact, we are unable to hold that the evidence preponderates against the trial judge’s findings. Thus, we conclude that the duct tape evidence and the results of the gunshot residue test were properly admitted into evidence as obtained incident to an arrest upon probable cause. Accordingly, this evidence should not be suppressed on the first ground advanced by the defendant-arrest without probable cause.

B. Exclusionary Rule

Next, we must determine whether the evidence which the defendant seeks to exclude was the product of an illegal detention. The defendant contends that his detention for a period exceeding forty-eight hours without a judicial determination of probable cause led to a constitutional violation. As a result, he contends that evidence obtained during his detention was “fruit of the poisonous tree” and should, therefore, be suppressed.

The Fourth Amendment to the United States Constitution grants the right to be secure from unreasonable searches and seizures and prohibits the issuance of warrants without probable cause. Article I, section 7 of the Tennessee Constitution is identical in purpose and intent with the Fourth Amendment. State v. Troxell, 78 S.W.3d 866, 870 (Tenn.2002). The United States Supreme Court has held that although an officer may make a warrantless arrest based on probable cause, “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” Gerstein v. Pugh, 420 U.S. 103, 114, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975); see also State v. Davis, 141 S.W.3d 600, 626 (Tenn.2004). In County of Riverside v. McLaughlin, 500 U.S. 44, 56, 111 S.Ct. 1661, 114 L.Ed.2d 49 (1991), the United States Supreme Court further clarified that “judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.” When a judicial determination of probable cause is not made within the first forty-eight hours of arrest, “the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance.” Id. at 57, 111 S.Ct. 1661.

In this case, the defendant was held from December 28, 1998, until January 1, 1999, without a judicial determination of probable cause. Because this period exceeded forty-eight hours, the burden shifted to the State “to demonstrate the existence of a bona fide emergency or other extraordinary circumstance” to justify the delay. The State failed to meet that burden, thus, the Fourth Amendment was violated.

The constitutional violation notwithstanding, we must determine whether the evidence obtained during the first hours of the defendant’s detention should be suppressed. In State v. Huddleston, 924 S.W.2d 666, 673 (Tenn.1996), this Court held that the exclusionary rule applies in cases where a defendant is arrested and held for an excessive period of time before being taken before a magistrate for a judicial determination of probable cause. The Court then adopted the “fruit of the poisonous tree” analysis to determine whether a statement obtained during an illegal detention must be suppressed. Id. at 674. The Court held that “the focus is on whether the evidence was obtained by exploitation of the Fourth Amendment illegality.” Id. (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)). Although Huddle-ston involved a statement by a defendant, the same “fruit of the poisonous tree” analysis applies to physical evidence obtained during an illegal detention. See Wong Sun, 371 U.S. at 486, 83 S.Ct. 407 (stating that the “policies underlying the exclusionary rule [do not] invite any logical distinction between physical and verbal evidence”).

“In the typical ‘fruit of the poisonous tree’ case ... the challenged evidence [is] acquired by police after some initial Fourth Amendment violation, and the question before the court is whether the chain of causation proceeding from the unlawful conduct has become so attenuated or has been interrupted by some intervening circumstance so as to remove the ‘taint’ imposed upon that evidence by the original illegality.” United States v. Crews, 445 U.S. 463, 471, 100 S.Ct. 1244, 63 L.Ed.2d 537 (1980) (emphasis in original). Such is the case in State v. Dean, 76 S.W.3d 352, 359 (Tenn.Crim.App.2001), in which a defendant was arrested and detained for a period of five days without a judicial determination of probable cause. On the fifth day, the lead investigator served a warrant on the defendant to take hair and blood samples. Id. The defendant then told the investigator he wanted to talk about the case, and he proceeded to make a confession. Id. Afterwards, hair and blood samples were taken pursuant to the warrant. Id. The Court of Criminal Appeals held that the statement should be suppressed as “fruit of the poisonous tree.” Id. at 364. Regarding the tangible evidence, the intermediate court held that the issuance of a valid search warrant for the hair and blood samples was wholly unrelated to, and did not depend on, the unlawful detention. Id.

In the case under submission, however, the evidence was obtained during the first few hours of the defendant’s detention and before he was jailed. The question, therefore, is whether the exclusionary rule applies to evidence obtained before the detention exceeded forty-eight hours in duration, thereby ripening into a presumptive constitutional violation. As this Court noted in Huddleston, the primary question is whether the evidence was obtained by exploitation of the constitutional violation. Huddleston, 924 S.W.2d at 674. In State v. Webster, 81 S.W.3d 244, 246-47 (Tenn.Crim.App.2002), a defendant was arrested and detained for seventy-two hours before a probable cause determination was made by a magistrate. The defendant confessed eleven hours after his arrest. Id. at 251. The Court of Criminal Appeals held that because the statement was given before the detention ripened into a constitutional violation, the confession was not subject to suppression. Id. Although Webster involved a confession, the rationale is applicable to tangible evidence.

Other jurisdictions have directly addressed the admissibility of tangible evidence in cases of unlawful detentions in violation of the Fourth Amendment. In United States v. Fullerton, 187 F.3d 587, 591 (6th Cir.1999), the Sixth Circuit Court of Appeals held that a four-day delay for a probable cause determination by a magistrate does not require suppression of physical evidence seized at the time of the defendant’s arrest. The Court reasoned that the evidence was “not obtained pursuant to the McLaughlin violation.” Id. Similarly, in Black v. State, 871 P.2d 35, 39 (Okla.Crim.App.1994), the Oklahoma Court of Criminal Appeals held the lack of a timely probable cause determination does not require suppression of evidence seized from the defendant immediately after his lawful arrest. Lastly, in State v. Koch, 175 Wis.2d 684, 499 N.W.2d 152, 160 (1993), the Wisconsin Supreme Court held that although a judicial probable cause determination was not made within forty-eight hours after the defendant’s warrantless arrest, the evidence obtained was not a consequence of the violation and need not be suppressed.

We conclude here that the evidence at issue was obtained neither by exploitation of nor as a consequence of the violation of the Fourth Amendment. Despite the defendant’s incarceration for an excessive period of time without a judicial determination of probable cause, all of the evidence sought to be suppressed was obtained before the delay ripened into a constitutional violation. Clearly, the evidence was obtained following an arrest based on probable cause. Based on the foregoing, we conclude that the duct tape and gunshot residue test were not “fruits of the poisonous tree,” were not subject to exclusion on the Fourth Amendment grounds, and were properly admitted as evidence at trial.

IV. Conclusion

We conclude that the initial detention and subsequent arrest of the defendant were proper. Further, we conclude that following the arrest, the defendant was improperly detained for over forty-eight hours without a judicial determination of probable cause. The evidence sought to be suppressed, however, was obtained before the detention ripened into a constitutional violation. Thus, the evidence was properly admitted at trial. It appearing that the defendant, Kevin Lawrence, is indigent, costs of this review are taxed to the Appellee, State of Tennessee, for which execution may issue, if necessary.

      . Toby Bailey was tried with the defendant and acquitted of all charges. Christopher Lawson was tried separately for the crimes in this case.

      . With regard to the defendant’s duct-taped fingers, Officer Howell testified that he had first observed them during the confrontation. Apparently, the defendant stripped the pieces of tape from his fingers and stuffed them between the seat and the door of the patrol car, and this is where Officer Howell recovered them. The seizure of this apparently abandoned property does not in any way implicate the Fourth Amendment. See State v. Ross, 49 S.W.3d 833, 842 (Tenn.2001) (holding that "a defendant's disclaimer of an interest in the object of a government investigation will result in a loss of the defendant’s subjective expectation of privacy in that object”).


source: Caselaw Access Project

author: JANICE M. HOLDER, J,

license: Public Domain

text:
    Amy BUTTERWORTH, et al. v. John BUTTERWORTH, et al.
    Supreme Court of Tennessee, at Jackson. Heard at Franklin.

    Oct. 8, 2004 Session.
    Jan. 20, 2005.

      Allan B. Thorp, Memphis, Tennessee, for the Appellants, John Butterworth and Chic Transportation, LLC.
    Marvin A. Bienvenu, Memphis, Tennessee, for the Appellee, Amy Butterworth.

      . Oral argument was heard in this case on October 8, 2004, in Franklin, Williamson County, Tennessee, as part of this Court’s S.C.A.L.E.S. (Supreme Court Advancing Legal Education for Students) project.

   OPINION

JANICE M. HOLDER, J,

delivered the opinion of the court,

in which FRANK F. DROWOTA, III, C.J., and E. RILEY ANDERSON and WILLIAM M. BARKER, JJ., and ALLEN W. WALLACE, Sp.J. joined.

We granted this appeal to determine whether the doctrine of parental immunity bars recovery when a son is injured at his father’s place of employment. We conclude that the Court of Appeals erred in creating a bright-line rule prohibiting the application of the doctrine of parental immunity when the injury resulted from employment-related activities. Viewing the evidence in the light most favorable to the non-moving party, we hold that the motion for summary judgment was improperly granted by the trial court. Thus, we affirm the judgment of the Court of Appeals in this respect and remand this case to the trial court for further proceedings consistent with this opinion.

On May 5, 2001, seventeen-year-old Stephen Butterworth (“Stephen”) accompanied his father, John Butterworth (“Butterworth”), to Butterworth’s place of employment, a repair shop owned by Chic Transportation, LLC (“Chic”). Butter-worth, a mechanic, instructed Stephen to grease the fittings underneath a semi-truck that was elevated by hydraulic jacks. While Stephen was greasing the fittings, the truck fell from the jacks onto his foot, resulting in injuries.

Stephen’s parents are divorced, and Stephen lives with his mother, Amy Butter-worth (“Mrs.Butterworth”). Following the incident, Mrs. Butterworth brought a lawsuit against Butterworth and Chic on behalf of Stephen. The complaint alleged that Butterworth and Chic were negligent in failing to maintain the safety of their equipment, in failing to properly place jack stands underneath the truck, and in failing to properly post signs and to keep non-employees out of the work area. The defendants filed a joint motion for summary judgment claiming that the doctrine of parental immunity barred recovery. The trial court granted the defendants’ motion.

The Court of Appeals reversed the trial court’s judgment, holding that the parental immunity doctrine is not applicable when injuries to a child result from the parent’s employment or business-related activities. We granted review.

ANALYSIS

A. The Doctrine of Parental Immunity

Prior to 1994, the doctrine of parental immunity barred all actions in this state for injuries to a minor child resulting from a parent’s negligence. See Barranco v. Jackson, 690 S.W.2d 221, 222 (Tenn.1985), overruled by Broadwell ex rel. Broadwell v. Holmes, 871 S.W.2d 471, 477 (Tenn.1994); McKelvey v. McKelvey, 111 Tenn. 388, 77 S.W. 664 (1903), overruled by Broadwell, 871 S.W.2d at 477. However, in 1994 this Court reconsidered the applicability of the doctrine of parental immunity and held that a child may recover for injuries caused by parental conduct that falls outside the scope of the parent-child relationship. Broadwell, 871 S.W.2d at 473. This Court limited the doctrine of parental immunity in Tennessee “to conduct that constitutes the exercise of parental authority, the performance of parental supervision, and the provision of parental care and custody.” Id. at 476-77. We further noted that the application of parental immunity depends upon both the nature of the acts and the context in which the parent performed the acts. Id. at 476 n. 2.

In the present case, the Court of Appeals held that “in Tennessee, a parent is not immune from liability where the alleged negligence is in the performance of employment-related activities.” Thus, the Court of Appeals created a bright-line exception to the doctrine of parental immunity for negligence involving employment-related activities without examining the circumstances under which those activities were conducted. Because Broadwell requires an examination of both the nature of the acts and the context in which the parent performed the acts, the Court of Appeals erred. See id. We hold that determining whether parental immunity applies to employment-related activities requires a case-by-case analysis of the nature of the acts performed and of the context in which they were performed. Consequently, we must examine the facts alleged to determine if summary judgment was appropriately granted.

B. Summary Judgment

The standard for reviewing a grant of summary judgment by a trial court is de novo without a presumption that the trial court’s conclusions are correct. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn.2000). Summary judgment is appropriate only when the moving party demonstrates that no genuine issues of material fact exist and that he or she is entitled to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn.1993). The primary issues underlying a motion for summary judgment are “(1) whether a factual dispute exists; (2) whether the disputed fact is material to the outcome of the case; and (3) whether the disputed fact creates a genuine issue for trial.” Byrd, 847 S.W.2d at 214.

Because the application of parental immunity depends upon the context in which the parent performs the acts in question, the scope and purpose of Butterworth’s activities are material facts. See Broadwell, 871 S.W.2d at 476 n. 2. It is undisputed that Stephen lived with his mother after his parents divorced and began helping his father at Chic’s repair shop during the summer of 2000. Stephen helped Butter-worth on weekdays during the summer and on Saturdays during the school year. Butterworth taught Stephen to change the oil and tires, to perform lubrications, and to service the trucks. Butterworth was the only person who gave Stephen instructions while at the repair shop.

As to the manner in which Stephen was paid, however, the evidence is less clear. According to Stephen’s deposition testimony, Butterworth paid Stephen “just a little money here and there” rather than providing Stephen with a regular salary. However, Butterworth’s statement of undisputed facts states that Butterworth “paid Stephen for his work.” While the former method of payment tends to support Butterworth’s position that Stephen’s presence at Chic was to allow him to spend time with Butterworth, Butter-worth’s statement places Stephen in a position similar to that of an employee.

The evidence as to the reason for Stephen’s work at Chic is similarly conflicting. Butterworth’s affidavit states that he requested Stephen to help him at Chic’s repair shop so that they could “do something together” and Stephen could learn “something about working and about truck maintenance.” Stephen stated that he believed the purpose of his presence at the repair shop was “[j]ust to help” Butter-worth. Stephen testified that he is not interested in becoming a truck mechanic. Butterworth’s statement is consistent with his position that he was exercising parental supervision in teaching his son a trade. While Stephen’s testimony is not completely inconsistent with Butterworth’s assertion, it is equally consistent with the theory that Stephen’s role was as an assistant, without regard to his status as child.

In assessing evidence for purposes of summary judgment, courts must examine the evidence in the light most favorable to the nonmoving party while drawing all reasonable inferences in the nonmoving party’s favor. Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn.1995). Furthermore, “[cjourts should grant a summary judgment only when both the facts and the inferences to be drawn from the facts permit a reasonable person to reach only one conclusion.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn.2000); see Shadrick v. Coker, 963 S.W.2d 726, 737 (Tenn.1998).

In viewing the evidence in the light most favorable to Mrs. Butterworth, the non-moving party, the facts establish that Stephen aided Butterworth on a consistent basis in fulfilling Butterworth’s own employment duties and that Stephen received monetary compensation for his efforts. Drawing all reasonable inferences in favor of Mrs. Butterworth’s position, Stephen’s role was no different than any other paid assistant to whom Butterworth owned a duty to maintain a safe working environment. Stated differently, the undisputed facts do not permit the granting of defendant’s motion for summary judgment.

CONCLUSION

We conclude that the Court of Appeals erred in creating a bright-line rule prohibiting the application of parental immunity where the alleged negligence occurred in the performance of employment-related activities. Rather, courts must determine whether parental immunity applies based upon the facts and circumstances of each particular case. Viewing the facts in a light most favorable to the nonmoving party, we conclude that summary judgment was improperly granted. Accordingly, we affirm the judgment of the Court of Appeals reversing the trial court’s grant of summary judgment but do so on other grounds. We remand this case to the trial court for further proceedings consistent with this opinion.

Costs of appeal are taxed equally to the appellants, John Butterworth and Chic Transportation, Inc., and their sureties, and to the appellee, Amy Butterworth, and her sureties, for which execution may issue if necessary.

      . Mrs. Butterworth further maintains that the doctrine of parental immunity should not be imputed to Chic as Butterworth’s employer. However, because we have concluded that the trial court erred in granting summary judgment, we need not reach this issue.


author: Justice SMITH

text:
    FFE TRANSPORTATION SERVICES, INC., Petitioner, v. Larry FULGHAM and Debra Fulgham, Respondents.
    No. 02-1097.
    Supreme Court of Texas.
    Argued Oct. 29, 2003.
    Decided Dec. 31, 2004.

      Thad D. Spalding, Monte Keith Hurst, David Lynn Sargent, Hermes Sargent Bates, L.L.P., Dallas, for Petitioner.
    Kenneth W. Fuqua, Fuqua, Hudnall & Gappelberg, L.L.P., Dallas, for Respondent.
   Justice SMITH

delivered the opinion of the Court.

Larry and Debra Fulgham brought products liability and negligence claims against FFE Transportation Services, Inc. arising out of a tractor-trailer accident. The trial court granted a directed verdict in favor of FFE at the close of the plaintiffs’ case-in-chief, finding that FFE could not be held strictly liable and that there was no evidence to support the negligence claim.

The court of appeals reversed and remanded for a new trial, holding that strict products liability was applicable because the agreement between FFE and Larry constituted a lease of the relevant trailer, that expert testimony was not necessary to establish FFE’s negligence, and that there was some evidence of each of the required elements of negligence. 152 S.W.3d 140. We disagree.

In resolving this case, we conclude:

1) strict products liability is inapplicable when, as here, a company gratuitously provides a product to an independent contractor working for the company for the sole purpose of accomplishing the company’s business purposes;
2) on appeal, a trial court’s determination regarding whether expert testimony is necessary to establish negligence should be reviewed de novo;
3) the trial court did not err in finding that the standard of care for the proper inspection and maintenance of a refrigerated trader is beyond the experience of the layman and therefore must be established by expert testimony; and
4) no probative expert testimony regarding the relevant standard of care was admitted.

Accordingly, we reverse the court of appeals’s judgment and remand to the court of appeals to consider the two points of error raised by the Fulghams that were not considered by it.

I

FFE was in the business of transporting freight by motor vehicle. Larry Fulgham was a long-haul trucker. On December 5, 1997, FFE and Larry signed a fourteen-page contract that was titled “Independent Contractor Agreement.” The contract specified that Larry use his own tractor to transport commodities in trailers owned by FFE in exchange for a percentage of the transport fee.

On March 7, 1998, Larry was transporting a load of prepackaged meats through Kentucky for Hillshire Farms, an FFE customer. Larry had inspected the preloaded refrigerated trailer, including the tractor-trailer connection, before leaving the Hillshire Farms warehouse. Three hours after Larry picked up the trailer, as he exited an interstate highway on a curved ramp, the trailer’s upper coupler assembly broke loose from the trailer, causing the trailer to separate from the tractor and overturn. Larry quickly lost control of the tractor, and it also overturned. As a result of the accident, Larry was injured.

Under the written contract between FFE and Larry, Larry operated his tractor and the FFE trailers assigned to him under the exclusive direction and control of FFE. As Larry testified: “You’ve got to be at a certain place at a certain time. They give you an appointment time, delivery time, and a time that you’re supposed to pick the load up.” FFE instructed Larry which trailer to pick up, and the trailer was usually different each time. The contract specified that Larry could not use the tractor he furnished to carry FFE loads to perform work for other carriers. Bill Robinson, FFE’s director of equipment and maintenance, testified that this was FFE’s standard policy. The contract also stated that FFE “shall have exclusive possession, control and use” of Larry’s tractor. At oral argument, the Fulghams’ counsel acknowledged that Larry was authorized only to use FFE’s trailers for the purpose of undertaking the deliveries that FFE had dispatched to him.

Under the terms of the contract, Larry was entitled to seventy percent of the freight bill for each delivery he completed. The court of appeals concluded that the contract constituted a lease of the relevant trailer, asserting that Larry paid thirty percent of the transport fee to FFE as rent. 152 S.W.3d at 144 . However, under the contract, Larry was not required to pay any fee or other charge to FFE for the use of its trailers. Instead, FFE paid Larry for both his personal services and the exclusive use of his tractor.

In early 1998, FFE arranged for loads to be carried on approximately 600 trucks driven by owner-operators like Larry and on about 1,300 company trucks driven by FFE employees. The owner-operators were independent contractors who provided their own tractors. Significantly, FFE did not lease or otherwise provide any of its 3,000 trailers for use in carrying loads other than those that FFE contracted to transport. Neither Larry nor the other drivers for FFE had any direct contractual relationships with FFE’s customers. Instead, all of their assignments for hauling commodities originated with FFE. Larry, like the other drivers for FFE, took temporary possession of various FFE trailers, including the one at issue here, incident to his exclusive work for FFE.

It is undisputed that the specific trailer in this case, designated by FFE as trailer number 16634, was never released by FFE to anyone except its employees and independent contractors for the sole purpose of transporting FFE loads. FFE was the owner and end user of trailer number 16634, and Larry used it only when acting as FFE’s paid agent.

In their Third Amended Original Petition, the Fulghams alleged that trailer number 16634 was defective because the bolts and plates anchoring the upper coupler assembly to the trailer were missing or weak or both due to rust and inadequate torque. The Fulghams also alleged that FFE failed to timely and properly inspect and maintain the trailer, and more specifically, its upper coupler assembly.

After the Fulghams rested, FFE orally moved for a directed verdict. FFE asserted that there was no evidence of duty, breach, or causation to support the negligence claim, and that the Fulghams had failed to present the necessary expert testimony. As to the strict liability claim, FFE asserted that there was no evidence that it had placed the trailer into the “stream of commerce.” With regard to the Fulghams’ negligence claim, the trial court concluded that expert testimony was required to establish the applicable standard of care, and that the Fulghams had not presented any probative expert testimony. The trial court also determined that the Fulghams’ products liability claim should not go to the jury. Accordingly, the trial court granted FFE’s motion for directed verdict.

The court of appeals reversed and remanded, concluding that expert testimony on the standard of care and breach of the standard of care was not necessary to establish negligence in this case because “the inspection and detection of loose and rusty bolts connecting parts of a trailer” was not a factual inquiry beyond the experience of the layman. 152 S.W.3d at 143. Additionally, the court concluded that products liability was applicable because the contract between FFE and Larry was a “lease” through which FFE had introduced the trailer into the “stream of commerce.” Id. at 144.

II

In McKisson v. Sales Affiliates, Inc., 416 S.W.2d 787, 788-89 (Tex.1967), we adopted section 402A of the Restatement (Second) of Torts on the scope of strict products liability. Section 402A(1) provides:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

Restatement (Second) of Torts § 402A(1) (1965). Even though section 402A literally applies only to the sale of a defective product, McKisson concluded that strict products liability would apply to a product that was given free of charge, if the product were given “with the expectation of profiting therefrom through future sales [of the product].” McKisson, 416 S.W.2d at 792.

To incur strict liability in Texas, “it is not necessary that the defendant actually sell the product, but only that he be engaged in the business of introducing the product into the channels of commerce.” Armstrong Rubber Co. v. Urquidez, 570 S.W.2d 374, 375 (Tex.1978). “Where one is engaged in the business of introducing products into the channels of commerce, he will be subject to strict liability for physical harm caused by such products if they are unreasonably dangerous to the user or consumer whether he sells or leases the products.” Rourke v. Garza, 530 S.W.2d 794, 800 (Tex.1975). However, we have declined to apply strict liability where “there has been no sale of the product by the manufacturer but a bailment for mutual benefit,” when the product bailment was to an employee of an independent contractor of the bailor for the sole purpose of accomplishing the bail- or’s business purposes. Urquidez, 570 S.W.2d at 375.

In Urquidez, the widow of a test driver employed by an' independent tire testing company unsuccessfully sought to hold Armstrong Rubber Company, a tire manufacturer, strictly hable for the death of her husband due to a tire blowout. The specific tire that blew out was “never sold and, more importantly, never entered the stream of commerce,” though it was identical to thousands of other tires that had been placed in the “channels of commerce” by Armstrong Rubber. Id. at 376. The tire that blew out had been supplied by Armstrong Rubber to its independent contractor solely to accomplish Armstrong Rubber’s tire testing purposes. Critical to our reasoning was the conclusion that “Armstrong never released the [allegedly defective tire] to an ordinary user or consumer within the meaning of the Restatement.” Id. at 377. Armstrong Rubber did not “sell” the allegedly defective tire and, therefore, was not subject to strict liability for that specific product.

Finally, two federal courts applying Texas law have held that a company that gratuitously furnishes a product solely to accomplish its own business purposes is hable for negligence but not strict liability. See Gardner v. Chevron U.S.A., Inc., 675 F.2d 658, 661 (5th Cir.1982) (holding that an employer is not strictly liable to an employee for a product used solely for the employer’s purposes); Dunn v. Penrod Drilling Co., 660 F.Supp. 757, 769 (S.D.Tex.1987) (holding that a company is not strictly liable to an employee of an independent contractor for a product used solely for the company’s purposes when the company maintained control of the premises on which the product was used).

Ill

We now consider how this case fits with previous Texas cases. The facts in this case are analogous to the facts in Urquidez, and distinct from the facts in McKisson and Rourke. Like in Urquidez, the use of FFE’s trailer was incidental to the contractual relationship whereby Larry transported cargo for FFE and its customer Hillshire Farms. The contract between FFE and Larry provided for a loan of trader number 16634 incident to Larry’s work for FFE. Unlike McKisson and Rourke, respectively, FFE did not anticipate a future sale of a trader to Larry, nor was FFE in the business of leasing traders. Larry was a business agent of FFE, not a consumer of trader number 16634.

FFE was not in the business of selling or leasing its trailers to “ordinary users or consumers” per Urquidez, 570 S.W.2d at 376, but instead used its trailers solely for its own business purposes. For purposes of section 402A, FFE was the end user and consumer of trailer number 16634. Like Armstrong Rubber in Urquidez, FFE “never released the [allegedly defective product] to an ordinary user or consumer within the meaning of the Restatement.” Id. at 377. The material facts in this case are that Larry did not pay FFE for the trader, but rather FFE paid Larry to work for it; that the transfer of the trader from FFE to Larry conferred only possession of the trailer, not a right of control; and that, whde in possession of the trailer, Larry acted solely as FFE’s agent to accomplish its business purposes.

In their briefing, the Fulghams cite four cases that we discussed and distinguished in Urquidez. See id. at 376-77. We distinguished those cases by noting that the plaintiffs in the cases were all customers of seller-defendants, whde neither Mr. Urqui-dez nor his employer was a customer of Armstrong Rubber, which neither sold nor leased the specific tire that was alleged to be defective. Id. In this case, we likewise find those cases inapposite because Larry was not FFE’s customer.

Based on the foregoing, we conclude that the trial court properly dismissed the Fulghams’ strict products liability claim.

IV

FFE asserts that the court of appeals erred in not granting deference to the trial court’s determination that an expert witness was necessary to establish the Fulghams’ negligence claim. In reversing the trial court on this issue, the court of appeals did not state whether it applied a de novo or abuse of discretion standard when reviewing the trial court’s determination regarding the necessity of expert testimony.

There is no Texas precedent addressing what standard of review should have been applied by the court of appeals in this instance. Citing K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000), FFE asserts that because the common knowledge of the layman is one criterion for determining whether expert testimony is admissible and trial court determinations regarding the admissibility of expert testimony are reviewed for abuse of discretion, a trial court’s determination regarding whether expert testimony is necessary to establish negligence should also be reviewed only for abuse of discretion.

In response, the Fulghams assert: “The determination whether expert testimony is necessary is not an admissibility of evidence question, which admittedly would be reviewed under an abuse of discretion standard, but a question of what legal weight should be given to the non-expert evidence in the record. This is a question of law....” We agree and therefore conclude that de novo is the appropriate standard of review in this context. See Choate v. San Antonio & A.P. Ry. Co., 91 Tex. 406, 44 S.W. 69, 69 (1898) (“[I]t is elementary that whether there be any evidence or not to support an issue is a question of law. Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex.1995) (“[W]e are obliged to decide de novo the issues of law.”).

Although we have never addressed this question, we have implicitly recognized that de novo is the proper standard of review in this context. See, e.g., Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex.2004) (holding, after reviewing the record in a legal malpractice case, that “[wjithout expert testimony, the jury had no direct evidence explaining the legal significance of the omitted evidence”); Texarkana Mem’l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 841 (Tex.1997) (remanding to the trial court because, without expert testimony on medical expenses, the plaintiffs had presented no evidence in support of the trial court’s judgment); Haddock v. Arnspiger, 793 S.W.2d 948, 954 (Tex.1990) (holding, after reviewing the evidence, that an expert was needed because the nature of the case was beyond the “common knowledge of laymen”); Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 355 (Tex.1987) (holding that the “jurors had sufficient knowledge” without expert testimony because the standard was within the common knowledge of laymen); Rabb v. Coleman, 469 S.W.2d 384, 388 & n. 2 (Tex.1971) (holding that expert testimony is not required when the standard can be determined by a ten-year-old child). In none of these cases did we defer to the trial court’s determination regarding whether expert testimony was required; accordingly, the de novo standard has always been the standard we have implicitly applied.

Finally, our conclusion is consistent with those of other state supreme courts. For example, the Wisconsin Supreme Court has held that whether expert testimony is necessary to establish negligence is a question of law. See Netzel v. State Sand & Gravel Co., 51 Wis.2d 1, 186 N.W.2d 258, 261-62 (1971); see also D.P. v. Wrangell Gen. Hosp., 5 P.3d 225, 228 (Alaska 2000) (“Whether expert testimony is required to show a breach of a duty of care represents a question of law to which we apply our independent judgment.”); Vandermay v. Clayton, 328 Or. 646, 984 P.2d 272, 277 (.1999) (“Defendant’s motion for a directed verdict raised a question of law for the trial court, namely, whether plaintiff was required to present expert testimony to establish that defendant had breached the standard of care.”); Bauer v. White, 95 Wash.App. 663, 976 P.2d 664, 666 (1999) (“The question here is one of law. Must a patient present an expert medical opinion that unintentionally leaving a foreign body in a surgical patient violates the standard of care for physicians in this state to withstand a motion for summary judgment? Because the question is one of law, review is de novo.”). We join these other jurisdictions in reviewing de novo a trial court’s determination regarding whether expert testimony is necessary to prove a negligence claim.

V

We now review de novo the trial court’s determination that expert testimony was necessary in this case to establish the applicable standard of care.

“Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layman.” Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982) (holding that diagnosis of skull fractures is not within the experience of the layman); see also Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex.App.-Amarillo 1999, pet. denied) (holding that inspection and repair of an aircraft engine are not within the experience of the layman); Hager v. Romines, 913 S.W.2d 733, 734-35 (Tex.App.-Fort Worth 1995, no writ) (holding that operation of an aircraft and aerial application of herbicide are not -within the experience of the layman).

In this case, the court of appeals reversed because it concluded that expert testimony was not necessary:

The Fulghams argue that this case is similar to the detection and repair of a deteriorating pipeline in Scurlock Oil Co. v. Harrell, 443 S.W.2d 334, 337 (Tex.Civ.App.-Austin 1969, writ ref'd n.r.e.). There, the court determined that because the owner of a pipeline had the duty of ordinary care to “protect people and property in the vicinity of the line from the types of harm ordinarily resulting from such line, ... it has a duty to properly install and maintain its lines and to avoid dangers from occurrences such as leaks and breaks in the line.” Id. “A pipe that has deteriorated to a point where it will no longer contain the liquid that it was meant to contain is not a fact so peculiar to a specialized industry that the defect can only be established through expert testimony.” Id. We conclude that the inspection and detection of loose and rusty bolts connecting parts of a trader is not a “fact so peculiar to a specialized industry” and is within the experience of a layperson, like a leaking pipe.

152 S.W.3d at 142.

In determining whether expert testimony is necessary to establish negligence, Texas courts have considered whether the conduct at issue involves the use of specialized equipment and techniques unfamiliar to the ordinary person. See, e.g., Hager, 913 S.W.2d at 735. The upper coupler assembly, kingpin, and base rail of a refrigerated trailer are specialized equipment, and the proper inspection and maintenance of those parts involve techniques unfamiliar to the ordinary person.

Few people not involved in the trucking industry are familiar with refrigerated trailers, the mechanisms for connecting them to tractors, and the frequency and type of inspection and maintenance they require. While the ordinary person may be able to detect whether a visible bolt is loose or rusty, determining when that looseness or rust is sufficient to create a danger requires specialized knowledge. Therefore, the layman does not know what the standard of care is for the inspection and maintenance of the upper coupler assembly, kingpin, and base rail of a refrigerated trailer.

While the inspection and repair of an aircraft engine and the aerial application of herbicide are somewhat more complicated than the inspection and maintenance of refrigerated trailers and the mechanisms that connect them with tractors, the standard of care for inspecting and maintaining refrigerated trailers is not significantly more familiar to the layman than the equipment and techniques at issue in Turbines and Hager.

Based on the foregoing, we conclude that the trial court correctly determined that expert testimony was necessary to establish FFE’s negligence.

VI

The Fulghams assert that, even if expert testimony was necessary to establish FFE’s negligence, probative expert testimony was presented to establish the applicable standard of care.

The Fulghams point to. the testimony of Bill Robinson, an expert witness for FFE at trial. Robinson testified that, in addition to inspecting each of its trailers annually, FFE conducted inspections of the trailers every sixty days and that, as part of the inspections, maintenance personnel were required to visually check for loose or missing bolts, loose rivets, and excessive rust in the base rail. Robinson also testified that the relevant bolts are tightened by the trailer manufacturer at the factory and do not normally come loose. Finally, he testified that FFE utilized a computer program to maintain schedules for each trailer’s annual and 60-day inspections and maintained a hard copy file documenting the work performed on each trailer.

The Fulghams elicited testimony from their safety expert Jim Mallory concerning the applicable standard of care. However, that part of Mallory’s expert testimony was excluded by the trial court. Outside the presence of the jury, Mallory testified that federal law required annual inspections, that he was not aware of any standard of care for inspecting and maintaining refrigerated trailers in the industry, and that inspecting a refrigerated trailer, including the upper coupler assembly, kingpin, and base rail, every sixty days would be reasonable because that is “what FFE has determined to be an adequate inspection interval.” Mallory further testified outside the presence of the jury that, in his view, every sixty days a “reasonable inspection” would, “at a minimum,” check for torque “those critical bolts, such as we are talking about in this case, the ones that attach the upper coupler to the trailer” to “see if there is some looseness evidence.” The trial court refused to admit Mallory’s testimony concerning the applicable standard of care because it determined that he did not identify a standard that was universally shared or even prevalent throughout the industry.

Without taking into account the excluded part of Mallory’s expert testimony, we agree with the trial court that the Fulg-hams offered no probative expert testimony on the applicable standard of care. The admitted expert testimony was probative only of the frequency and nature of the inspections that FFE actually conducted, not what a reasonably prudent operator would do.

FFE’s self-imposed policy with regard to inspection of its trailers, taken alone, does not establish the standard of care that a reasonably prudent operator would follow. As a Texas court of appeals explained, a company’s internal policies “alone do not determine the governing standard of care.” Fenley v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex.App.Beaumont 1999, pet. denied). A federal court of appeals has also held that a defendant’s internal policies do not, taken alone, establish the applicable standard of care. In Titchnell v. United States, 681 F.2d 165 (3d Cir.1982), the court stated:

[I]f a health care facility, in striving to provide optimum care, promulgates guidelines for its own operations which exceed the prevailing standard, it is possible that care rendered at that facility by an individual practitioner on a given occasion may deviate from and fall below the facility’s own standard yet exceed the recognized standard of care of the medical profession at the time. A facility’s efforts to provide the best care possible should not result in liability because the care provided a patient falls below the facility’s usual degree of care, if the care provided nonetheless exceeds the standard of care required of the medical profession at the time. Such a result would unfairly penalize health care providers who strive for excellence in the delivery of health care and benefit those who choose to set their own standard of care no higher than that found as a norm in the same or similar localities at the time.

Id. at 173.

Accordingly, we conclude that the Fulg-hams presented no probative expert testimony regarding the applicable standard of care.

VII

For the reasons stated above, we reverse the court of appeals’s judgment. In the court of appeals, the Fulghams brought four points of error. The first asserted: “The Trial Court erred in failing to consider spoliation of the sufficiency of evidence.” The fourth asserted: “The Trial Court erred in excluding part of the testimony of Jim Mallory.” The court of appeals did not reach these points of error. Accordingly, we remand to the court of appeals for consideration of these points of error.

      . Lariy testified that, pursuant to FFE policy, he was required to visually inspect a trailer before leaving a customer’s facility. On March 7th, before leaving Hillshire Farms, Lariy completed a "Driver’s Daily Vehicle Inspection Report,” which listed all of the trailer's major components next to boxes that he was to mark if he observed that a component was defective. During his inspection, he did not note any defective components.

      . The "fifth wheel” is a coupling device attached to the tractor that supports the front of the trailer and locks the tractor to the trailer. The "upper coupler assembly” is the surface on the underside of the front of the trailer that rests on the tractor's fifth wheel and has a downward protruding "kingpin,” an anchor pin at the center of the upper coupler assembly that is captured by the locking jaws of the fifth wheel.

      .The court of appeals stated: "The independent contractor agreement provided that Larry would use FFE’s trailer and pay FFE a percentage of the load. Thus, the agreement provided that FFE conveyed to Larry the right to use the trailer in exchange for a percentage of the load as rent. We conclude this agreement is a lease whereby FFE introduced the trailer into the stream of commerce.” Id.

      . The Fulghams also sued Wabash National Corporation, the manufacturer of trailer num-her 16634. The Fulghams settled with Wabash before trial.

      . Urquidez, Rourke, and the Fulghams use the phrase “channels of commerce.” Urquidez also refers to the "stream of commerce.” FFE uses the terms “channels of commerce” and “course of commerce.” We treat the three phrases as having identical meaning.

      . For example, the corrosion rate of metal varies according to many factors, including the type of metal, pollution, salinity, and moisture. See, e.g., Sereda, American Society for Testing and Materials, Weather Factors Affecting the Corrosion of Metals STP 558 (1975).

      . Applicable federal motor carrier safety regulations required only that trailer inspections be conducted on an annual basis. See 49 C.F.R. § 396.17 (1997).


author: PER CURIAM.

text:
    Harold CALDWELL, Petitioner, v. Robert F. BARNES, Respondent.
    No. 03-0672.
    Supreme Court of Texas.
    Dec. 31, 2004.

      . Gus E. Pappas, Todd S. Gaines, for Petitioner.

      Thomas 0. Matlock Jr., Kelly K. McKin-nis, McAllen, for Respondent.
   PER CURIAM.

This case arises from a bill of review proceeding that challenged a default judgment for lack of service. After holding a pretrial hearing and taking evidence on the question of whether a bill of review plaintiff had been served with process in the underlying lawsuit, the trial court issued a finding of fact that the plaintiff had been served and rendered judgment against him. The court of appeals affirmed. The issue before this Court is whether the plaintiff was entitled to submit the question of service to a jury at trial, or whether the trial court properly resolved the matter in a pretrial hearing. Because we conclude (1) that the plaintiff was entitled to submit the question of service to a jury at trial and the trial court erred by resolving the matter in a pretrial hearing, and (2) the plaintiff preserved his right to a jury trial, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

Robert F. Barnes sued Harold Caldwell, a Colorado resident, in Texas in 1989, alleging various causes of action stemming from a contract dispute. Barnes arranged for Caldwell to be personally served with process in Colorado through a private process server, DeWayne Perdew. The return of service filed with the trial court reflects that Perdew hand-delivered process to Caldwell in Jefferson County, Colorado on July 30, 1989. Caldwell contends that he was never served with process, and as a result, did not file an answer. When Caldwell did not answer, Barnes obtained a $15,500,000 default judgment against him.

In 1993, Caldwell filed a petition for a bill of review in the trial court, claiming he was never served with process. In support of his claim, Caldwell submitted (1) an affidavit stating that he had never been served; (2) a second affidavit from Perdew in which Perdew contradicted his earlier affidavit by stating that he had not, in fact, ever served Caldwell; (3) an affidavit from Perdew’s ex-girlfriend, Lucy Lackey, corroborating Perdew’s retraction by stating that Perdew could not have served Caldwell on July 30, 1989, because on that date he was attending a George Strait concert with her in Cheyenne, Wyoming; (4) the affidavits of four litigants in unrelated lawsuits, whom Perdew claimed to have served on July 30, 1989, but who similarly denied service; and (5) the affidavit of a landlord stating that no one resided at an apartment where Perdew claimed to have served a tenant with process on that same date.

Both parties moved for summary judgment. Caldwell asserted that the above-mentioned affidavits established that he was never served with process, and therefore the default judgment against him should be set aside. Barnes, however, asserted that Caldwell’s bill of review should be denied because Caldwell had failed to exhaust his legal remedies in Colorado and because a bill of review was barred by laches since Caldwell had failed to diligently exercise his right to challenge notice when he was informed of the default judgment against him. The trial court granted summary judgment in favor of Barnes, and the court of appeals affirmed. 941 S.W.2d 182, 190.

On review, this Court reversed the court of appeals’ judgment and remanded the case to the trial court. This Court held that Barnes was not entitled to summary judgment because Caldwell was not required to exhaust his legal remedies in Colorado as a prerequisite to relief in Texas, and because a bill of review was not barred by laches since it was brought within the statutory limitations period. 975 S.W.2d 535, 538-39. This Court further held that “because the original return of service conflict[ed] with Caldwell’s, Per-dew’s, and the others’ subsequent affidavits,” a genuine issue of fact existed as to whether Caldwell had been served in the underlying proceeding. Id. at 537.

In June 2000, on remand from this Court, the trial court conducted a pretrial hearing on the question of Caldwell’s service. At the hearing, Caldwell offered evidence suggesting that he was never served with process, including the above-mentioned affidavits, Caldwell’s own testimony that he was not served with process on July 30, 1989, or at any other time, and Lackey’s testimony that on July 30, 1989, Perdew was with her in Wyoming and therefore did not serve process on Caldwell. During cross-examination, however, Caldwell admitted that in the past he had purposely allowed approximately a dozen default judgments to be taken against him, even after being properly served with process, because defaulting was often less costly than defending the underlying suits. In addition, during Lackey’s cross-examination, she admitted that she could not remember who prepared her affidavit or where it was signed. She also testified that she could not produce receipts and concert ticket stubs supporting her trip with Perdew to Wyoming, because in 1991, she had relinquished them to Caldwell’s agents after they arranged to meet with her at the Taco Bell where she worked in Colorado. Caldwell, however, never introduced any receipts or ticket stubs into evidence to support Lackey’s claims.

After the pretrial hearing, the trial court made the following factual findings: (1) the credibility and interest of the witnesses present at the hearing was in issue; (2) Caldwell had a practice of being served with process and not answering, thus allowing default judgments to be entered against him; (3) Perdew gave at least two completely contradictory statements under oath regarding service; (4) Lackey’s credibility had been called into question; and (5) Caldwell had been served. Based on these findings, the trial court declined to proceed to trial and denied Caldwell’s bill of review. The court of appeals affirmed the trial court’s judgment. — S.W.3d -, 2003 WL 359453. Caldwell petitioned this Court for review. We must decide whether (1) Caldwell was entitled to submit the question of service of process to a jury at trial, and if the trial court therefore erred by resolving the matter in a pretrial hearing, and (2) whether the error was harmful because Caldwell preserved his right to a jury trial on the issue.

We begin by considering what a bill of review plaintiff must prove when claiming lack of service of process. A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). Bill of review plaintiffs must ordinarily plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part. Id. at 406-08; 975 S.W.2d at 537.

Bill of review plaintiffs claiming non-service, however, are relieved of two elements ordinarily required to be proved in a bill of review proceeding. 975 S.W.2d at 537; see Tex. Indus., Inc. v. Sanchez, 525 S.W.2d 870, 871 (Tex.1975). First, if a plaintiff was not served, constitutional due process relieves the plaintiff from the need to show a meritorious defense. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (holding that the meritorious defense requirement in a bill of review proceeding violates due process where the bill of review plaintiff has no notice of the proceeding in which the default judgment was rendered); 975 S.W.2d at 537. Second, the plaintiff is relieved from showing that fraud, accident, wrongful act or official mistake prevented the plaintiff from presenting such a defense. 975 S.W.2d at 537; Sanchez, 525 S.W.2d at 871.

Bill of review plaintiffs alleging they were not served, however, must still prove the third and final element required in a bill of review proceeding that the judgment was rendered unmixed with any fault or negligence of their own. In Caldwell, we said this third and final element is conclusively established if the plaintiff can prove that he or she was never served with process. 975 S.W.2d at 537. An individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered. Proof of non-service, then, will conclusively establish the third and only element that bill of review plaintiffs are required to prove when they are asserting lack of service of process as their only defense.

We next consider whether Caldwell was entitled to submit the question of service of process to a jury at trial or whether the trial court could properly resolve the question in a pretrial proceeding. In Goldsmith, we outlined the procedure to be utilized in a bill of review proceeding. 582 S.W.2d at 408-09; see also State v.1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464-65 (Tex.1989). We held in Goldsmith that a bill of review plaintiff is required, as a pretrial matter, to present prima facie proof of a meritorious defense to the underlying cause of action. 582 S.W.2d at 408-09; see also Beck v. Beck, 771 S.W.2d 141, 142 (Tex.1989). This requirement, as we have stated, is dispensed with when the plaintiff is claiming lack of service of process. We further held that once prima facie proof of a meritorious defense has been established, the court should conduct a trial in which the plaintiff must negate his or her fault or negligence. Goldsmith, 582 S.W.2d at 409. Because proof of non-service conclusively negates a plaintiffs fault or negligence, then, the question of service is properly resolved at trial and not by the trial court in a pretrial proceeding if the material facts are disputed.

In sum, when a plaintiff seeks a bill of review based solely on a claim of non-service, the bill of review procedure outlined in Goldsmith must be slightly modified. See id. at 408-09. When a plaintiff claims lack of service, the trial court should: (1) dispense with any pretrial inquiry into a meritorious defense, (2) hold a trial, at which the bill of review plaintiff assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing a default judgment to be rendered, and (3) conditioned upon an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.

Finally, we consider whether the denial of a jury trial on the issue of service of process was harmful error. Because the trial court considered conflicting evidence, made findings of fact based on the evidence, and ultimately determined that Caldwell was served with process, Barnes argues that it was harmless error for the trial court not to present the question of service to the jury. Specifically, Barnes relies on the court of appeals’ holding that “in a non-jury case, the trial court’s findings of fact have the same force and dignity as does a jury verdict on special issues.” — S.W.3d -, 2003 WL 359453. We do not agree with Barnes, however, that this was a “non-jury” case.

The record indicates that Caldwell never assented to a non-jury determination on the issue of service. Caldwell’s attorney specifically asserted to the trial court that service of process was a “question of fact” and that Caldwell was entitled to a trial on the issue. Similarly, Barnes’s attorney argued that service of process presented a fact question for the jury to decide. Further, the record reflects that the jury fee had been paid and the case had been placed on the jury trial docket. When a party timely demands a jury and pays the fee, the trial court may not remove the case from the jury docket over the objection of the opposing party. See Tex.R. Civ. P. 216, 220; Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 667 (Tex.1996). The wrongful denial of a jury trial is harmful when the case contains a question of material fact. Rhyne, 925 S.W.2d at 666. The question of whether Caldwell was served with process is a question of material fact, and therefore the denial of a jury trial was harmful error.

Caldwell must be given a jury trial because he preserved his right to have a jury decide whether he was served with process. At trial, he must establish by a preponderance of the evidence that he was never served. Pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we grant Caldwell’s petition for review, and without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. See Tex.R.App. P. 59.1.

      . A party who becomes aware of the proceedings without proper service of process has no duty to participate in them. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex.1990).

      . Cf. Campus Invs., Inc. v. Cullever, 144 S.W.3d 464, 466 (Tex.2004) (holding that when bill of review plaintiffs are properly served with process, they must show they were not at fault or negligent in allowing a default judgment to be rendered); Gold v. Gold, 145 S.W.3d 212, 214 (Tex.2004) (failure to seek reinstatement, new trial, or appeal, if available, normally would be negligence).

      .At trial, the testimony of a bill of review plaintiff alone, without corroborating evidence, is insufficient to overcome the presumption that the plaintiff was served. See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex.1994) ("The recitations in the return of service carry so much weight that they cannot be rebutted by the uncorroborated proof of the moving party.”).


text:
    HAGGAR APPAREL Co., Petitioner, v. Maria O. LEAL, Respondent.
    No. 02-1182.
    Supreme Court of Texas.
    Dec. 31, 2004.

      Magdeline R. Esquivel, Robert D. Allen, Baker & McKenzie, LLP, Dallas, Chris A. Brisack, Neil E. Norquest, Rodriguez, Col-vin, Chaney & Saenz, L.L.P., McAllen, Ofelia Garza De Los Santos, Steve Kardell Jr., Roland L. Leon, Barker, Leon, Fancher & Matthys, LLP, Jorge C. Rangel, The Rangel Law Firm, Corpus Christi, Jon D. Brooks, Law Office of Phil Sudan, Houston, for Petitioner.
    John Gregory Escamilla, Rodriguez, To-var, Calvillo & Garcia, McAllen, Aaron Pena Jr., Aaron Pena Associates, Edin-burg, Francisco J. Rodriguez, for Respondent.
   PER CURIAM.

Section 21.051 of the Texas Labor Code makes it unlawful for an employer to discharge an employee because of disability. As relevant to this case, disability is defined as having a “physical impairment that substantially limits at least one major life activity ... or being regarded as having such an impairment.” The issue here is whether there is any evidence that respondent’s physical impairments — carpal tunnel syndrome and lower back pain— substantially limited a major life activity, specifically, work. Assuming that work is a major life activity within the meaning of the statute, we conclude that there is no evidence of substantial limitation. Accordingly, we reverse the judgment of the court of appeals and render judgment for petitioner.

Haggar Apparel Co. employed Maria Leal as a seamstress and label presser from 1979 to 1994. She worked on an assembly line. In 1983, Leal was diagnosed with carpal tunnel syndrome in her left wrist and successfully treated, but in 1993, she suffered a recurrence of that condition and also developed a similar condition in her right wrist as well as lower back problems. She was treated for several months during which she continued to work, although at lighter duties. One of her physicians released her to return to her regular job in June 1994, but she worked only a few days before taking a week’s vacation. She returned to work more than two days late and was terminated. At the time, Leal was on probation for excessive, unexcused absences.

Leal sued Haggar for discharging her because of disability, age, and a worker’s compensation claim. She also sued for intentional infliction of emotional distress. The jury returned a verdict for Leal on her disability claim but against her on the other three claims. The trial court rendered judgment on the verdict. Only Hag-gar appealed. The court of appeals affirmed.

One purpose of chapter 21 of the Texas Labor Code is to further the policies of Title 1 of the Americans with Disabilities Act of 1990, as amended (“the ADA”). Accordingly, in construing and applying chapter 21, we are guided by federal law. The definition of “disability” in chapter 21, quoted above, is essentially the same as in the ADA. Although federal regulations treat work as a major life activity within the statutory definition, the United States Supreme Court stopped short of doing so in Toyota Motor Mfg., Kentucky, Inc. v. Williams. Assuming it is, the Supreme Court held, to show a substantial limitation, “a claimant would be required to show an inability to work ‘in a broad range of jobs,’ rather than a specific job.” The trial court’s instruction to the jury in this case was consistent with the Supreme Court’s holding.

The court of appeals acknowledged that Leal was required to prove, “at a minimum, that [she was] unable to work in a broad class of jobs,” but it cited no evidence to support such a finding. The only evidence cited by the court of appeals was that Leal suffered an impairment, which is not disputed, that supervisors commented on her age, and that Haggar’s plant manager testified that he would not rehire Leal unless she could work a ten-hour day. Leal cites no other evidence to us in her brief.

Leal conceded at trial that shortly before she was terminated, one of her physicians released her to regular duty and another to moderate duty. Leal argues that the evidence showed she was unable to work at assembly line jobs like the one at Haggar, but it shows exactly the opposite: Leal continued to work at Haggar up to the day she was terminated. Even if Leal were correct, she does not argue that she was unable to work in a broad class of jobs. To the contrary, she testified that after she left Haggar she worked for a child care facility and applied to work at the public school.

Toyota presented a similar situation. The employee there worked on an engine fabrication assembly line. After she contracted bilateral carpal tunnel syndrome and related impairments, her employer adjusted her work requirements but eventually terminated her, it said, for poor attendance. She sued, alleging that she had been terminated because of her disability. The Supreme Court rejected her argument that she was substantially limited in the major life activity of performing manual tasks. “When addressing the major life activity of performing manual tasks,” the Court stated, “the central inquiry must be whether the claimant is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.” Limitations on the employee’s ability to perform specific aspects of one job did not meet this test. Although the Court expressly did not consider the activity of working, an activity it distinguished from performing manual tasks, the logic of its analysis compels the result we reach here.

We hold that Leal did not adduce any evidence to support her claim that her impairment substantially limited her ability to work. Accordingly, we grant Hag-gar’s petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and render judgment that Leal take nothing.

      . Tex. Lab.Code § 21.051 ("An employer commits an unlawful employment practice if because of ... disability ... the employer: (1) ... discharges an individual_”).

      . Id. § 21.002(6) (" ‘Disability’ means, with respect to an individual, a mental or physical impairment that substantially limits at least one major life activity of that individual ... or being regarded as having such an impairment.”).

      . 100 S.W.3d 303 (Tex.App.Corpus-Christi 2002).

      . Id.

      . Tex. Lab.Code § 21.001(3) ("The general purposes of this chapter are to ... (3) provide for the execution of the policies embodied in Title I of the Americans with Disabilities Act of 1990 and its subsequent amendments (42 U.S.C. Section 12101 etseq.)”).

      . 42 U.S.C. §§ 12101-12117.

      . Little v. Texas Dept. of Criminal Justice, 148 S.W.3d 374, 382 (Tex.2004).

      . 42 U.S.C. § 12102(2) ("The term 'disability’ means, with respect to an individual — (A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; ... or (C) being regarded as having such an impairment.”).

      . 29 C.F.R. § 1630.2(i) ("Major Life Activities means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”).

        . 534 U.S. 184, 200, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002) ("Because of the conceptual difficulties inherent in the argument that working could be a major life activity, we have been hesitant to hold as much, and we need not decide this difficult question today.”).

      . Id. (citing Sutton v. United Air Lines, Inc., 527 U.S. 471, 492, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999)).

      . " ‘Substantially limits’ (as applied to the 'major life activity' of 'working') means that an individual is restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single particular job does not constitute a substantial limitation in the major life activity of working.”

      . 100 S.W.3d at 308.

      . Id. at 311.

      . 534 U.S. at 187, 122 S.Ct. 681.

      . Id. at 187-190, 122 S.Ct. 681.

      . Id. at 190, 122 S.Ct. 681.

        . Id. at 200-201, 122 S.Ct. 681.

      . Id. at 201, 122 S.Ct. 681.

      . Tex.R.App. P. 59.1.