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Joint Enterprise or Joint Venture

© 2013 Mark Courtois

Joint Enterprise is a theory of liability which is used to impute liability on one party because of some relationship that party has with another party, such as an endeavor that the parties are seeking to conduct together.  Texas courts sometimes refer to this as a joint venture.  In 1974, Texas adopted the definition of joint enterprise as stated in section 491, comment c of the Restatement of TortsShoemaker v. Estate of Whistler, 513 S.W.2d 10, 14 (Tex. 1974); Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000).  The necessary elements to establish joint enterprise are:

        i.    an agreement, express or implied, among the members of the group;
        ii.   a common purpose to be carried out by the group;
        iii.  a common pecuniary interest in that purpose, among the members;  and
        iv.  an equal right to a voice in the direction of the enterprise, which gives an equal right of control.

Texas Dept. of Transp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000); Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995); Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995).   The Texas Supreme Court has defined "equal right of control" to mean that each member of the joint venture must have an authoritative voice or "must have some voice and right to be heard."  Triplex Communications, Inc. v. Riley, 900 S.W.2d at 718-19; Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 15 (Tex. 1974).   The critical time frame for evaluating the issue of control, is at the time of the incident giving rise to the injury, or causing the condition giving rise to the injury.  Triplex Communications, Inc. v. Riley, 900 S.W.2 at 719 (Court held that radio station promoting drink specials had little right of control of the actual provision of drinks to customer who became drunk and later caused an automobile accident.); see also Ely v. General Motors Corp., 927 S.W.2d at 780 (Court held critical inquiry was whether automobile manufacturer had a right to control franchisee’s employee at time of accident.).