Lead Opinion
This is a wrongful death action instituted by Larry and Clifford Clark against Otis Engineering Corporation after the Clarks’ wives were killed in an automobile accident involving an Otis employee, Robert Mathe-son. At the time of the accident Matheson was not in the course of his employment. The trial court granted Otis’ motion for summary judgment. The court of appeals reversed and remanded the cause for trial, holding there were genuine issues of fact.
Two questions are presented. First, does the law impose any duty upon Otis under the evidence as developed? Secondly, does such evidence give rise to any genuine issues of material fact?
Matheson worked the evening shift at Otis’ Carrollton plant. He had a history of drinking on the job, and was intoxicated on the night of the accident. At his dinner break that night and on other occasions that day he. went to the parking lot, where he allegedly consumed alcoholic beverages in his automobile. Donald Roy was Mathe-son’s supervisor and Rennie Pyle was a co-worker who assisted Matheson on occasion. Pyle testified
Dr. Charles S. Petty, the medical examiner, testified that Matheson had a blood alcohol content of 0.268% which indicated he had ingested a substantial quantity of alcohol, an amount representing some sixteen to eighteen cocktails if consumed over a period of one hour, or twenty to twenty-five cocktails if consumed over a period of two hours. The doctor stated that persons working around Matheson would undoubtedly have known of his condition, expressing his opinion that one hundred percent of persons with that much alcohol exhibit signs of intoxication observable to the average person.
Matheson’s extreme state of intoxication was well known to his supervisor and fellow workers. The testimony indicated the supervisor knew Matheson was in no condition to drive home safely that night. When some night shift employees came to work around 10:30 p.m. and remarked there had been an accident on Belt Line Road, Roy immediately suspected Matheson was involved. Roy testified he feared Matheson might have an accident, knowing that Matheson had to drive on heavily traveled Belt Line Road to reach home. Upon hearing of the accident, Roy, acting on a hunch, voluntarily went to the police station to see if Matheson was involved.
The Clarks contend that under the facts in this case Otis sent home, in the middle of his shift, an employee whom it knew to be intoxicated. They aver this was an affirmative act which imposed a duty on Otis to act in a non-negligent manner. Cf. Osuna v. Southern Pacific Railroad,
The Clarks further contend that Otis maintained a nurses’ station on the premis
Otis’ motion for summary judgment was granted on the basis that as a matter of law Otis owed no duty to the Clarks. In order to establish tort liability, a plaintiff must initially prove the existence and breach of a duty owed to him by the defendant. Abalos v. Oil Development Co. of Texas,
Though the decisional law of this State has yet to address the precise issues presented by this case, factors which should be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the employer. See Robertson v. LeMaster,
While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation. See W. Prosser, The Law of Torts § 56 at 343 (4th ed. 1971). One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care. Colonial Savings Ass’n v. Taylor,
Otis contends that, at worst, its conduct amounted to nonfeasance and under established law it owed no duty to the Clarks’ respective wives. Otis further says that by imposing liability for the acts of its intoxicated employee, this Court would be judicially creating “dram shop” liability. We disagree. This is not a “dram shop” case. If a duty is to be imposed on Otis it would not be based on the mere knowledge of Matheson’s intoxication, but would be based on additional factors.
Traditional tort analysis has long drawn a distinction between action and inaction in defining the scope of duty. Dean Prosser attributes this distinction to the early common law courts’ preoccupation with “more flagrant forms of misbehavior [rather than] with one who merely did nothing, even though another might suffer harm because of his omission to act.” W. Pros-ser, supra, at 338. However, although courts have been slow to recognize liability for nonfeasance, “[djuring the last century, liability for ‘nonfeasance’ has been extended still further to a limited group of relations, in which custom, public sentiment and views of social policy have led the courts to find a duty of affirmative action.” Id. at 339. Be that as it may, we do not
What we must decide is if changing social standards and increasing complexities of human relationships in today’s society justify imposing a duty upon an employer to act reasonably when he exercises control over his servants. Even though courts have been reluctant to hold an employer liable for the off-duty torts of an employee, “[a]s between an entirely innocent plaintiff and a defendant who admittedly has departed from the social standard of conduct, if only toward one individual, who should bear the loss?” W. Prosser, supra, at 257. Dean Prosser additionally observed that “[tjhere is nothing sacred about ‘duty,’ which is nothing more than a word, and a very indefinite one, with which we state our conclusion.” Id.
During this year, we have taken a step toward changing our concept of duty in premises cases. In Corbin v. Safeway Stores, Inc.,
Several recent cases in other jurisdictions have extended concepts of duty in the area of employer liability. In Leppke v. Segura,
An employer was held liable for injuries sustained by third parties in an accident caused by its intoxicated employee in Brockett v. Kitchen Boyd Motor Co.,
Recently, the Supreme Court of Appeals of West Virginia rendered its opinion in Robertson v. LeMaster,
Therefore, the standard of duty that we now adopt for this and all other cases currently in the judicial process, is: when, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others. Such a duty may be analogized to cases in which a defendant can exercise some measure of reasonable control over a dangerous person when there is a recognizable great danger of harm to third persons. See, e.g., Restatement (Second) of Torts, § 319
Therefore, the trier of fact in this case should be left free to decide whether Otis acted as a reasonable and prudent employer considering the following factors: the availability of the nurses’ aid station, a possible phone call to Mrs. Matheson, having another employee drive Matheson home, dismissing Matheson early rather than terminating his employment, and the foreseeable consequences of Matheson’s driving upon a public street in his stuporous condition. As summary judgment proof clearly raises all of these factors questioning the reasonableness of Otis’ conduct, a fact issue is present and summary judgment was improper.
For these reasons, we affirm the judgment of the court of appeals and remand to the trial court for determination of the issues.
Notes
. All testimony referred to is by way of depositions on file at the time of the hearing of the Motion for Summary Judgment.
. Section 319 provides:
One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Dissenting Opinion
dissenting.
I dissent. The summary judgment evidence before us is not disputed. The sole question is whether an employer is under a duty to control the conduct of an intoxicated, off-duty employee. Otis Engineering Corporation’s agent, Mr. Donald Roy, was responsible for the supervision of twenty-three employees, including Matheson. On a prior occasion, Roy was informed by other workers that Matheson drank on the job, allegedly in his car during breaks. Subsequently, Roy confronted Matheson, explained the company’s policy against drinking, and warned him that he would be terminated if he drank on company premises. Roy testified that he never observed Matheson drinking nor did he ever smell alcohol on his breath, but that Matheson appeared incapable of continuing his job on the night in question. That same night Matheson complained to Roy that he was not feeling right, and Roy suggested that Matheson go home. Roy escorted Mathe-son to the door of the plant, but did not go outside or watch him walk to his ear. Approximately a half hour later, Matheson was involved in the fatal accident, which also claimed his own life.
At the time of the accident, Matheson was not acting within the course and scope of his employment; Otis assumed no re
In my opinion, Otis was under no legal duty to restrain Matheson or to refrain from sending him home before the end of his shift, as the majority holds. The inability of a majority of the court to state why Otis owed a duty to the Clarks’ decedents convinces me that the imposition of liability on third parties for the torts of an intoxicated person is not the proper remedy.
To compound the problem, the majority reaches an incorrect result. No court in any jurisdiction has ever suggested that an employer may be held liable for the off-duty, off-premises torts of an intoxicated employee when the employer has not contributed to the employee’s state of intoxication. Moreover, and because of the pervasiveness of alcohol-related accidents of all types, today’s decision radically increases the potential liability of all Texans without even acknowledging those policies that militate against the recognition of a duty in cases such as this. In my opinion, the bench, the bar, and the public are entitled to know the reasons for and the consequences of expanded liability, matters the majority opinion chooses not to address.
The majority holds that Otis owed the Clarks’ decedents the duty to exercise reasonable care because Otis knew Matheson was intoxicated and because its “affirmative act” of sending him home early presented a foreseeable risk of harm to other motorists. The majority holds that summary judgment was improper because fact issues exist as to “whether Otis acted as a reasonable and prudent employer....” The majority thus confuses the breach of a duty—failure to exercise reasonable care— with the existence of a duty vel non.
In order to recover under a negligence cause of action, an aggrieved plaintiff must prove: a legal duty owed by one person to another, a breach of that duty, and damages proximately resulting from the breach. W. Prosser, The Law of Torts § 30, at 143 (4th ed. 1971). These inquiries should be kept separate.
In every case, the duty issue is the threshold inquiry; it must be determined before the issue of the defendant’s negligent conduct can be reached or can be resolved. Abalos v. Oil Development Co. of Texas,
The concept of an affirmative duty to act has been addressed by this and other Texas courts on numerous occasions. Although the factual bases of these decisions have differed, the law has remained constant. Chief Justice Alexander, speaking for a unanimous Court in Buchanan v. Rose,
There are many instances in which it may be said, as a matter of law, that there is a duty to do something, and in others it may be said, as a matter of law, that there is no such duty. Using familiar illustrations, it may be said generally, on the one hand, that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.On the other hand, it may be said generally, as a matter of law, that a mere bystander who did not create the dangerous situation is not required to become the good Samaritan and prevent injury to others.
Id.
Texas courts have recognized limited instances in which an employer may be held liable for a failure to control his servants when acting outside the course and scope of their employment. One exception concerns off-duty employees who are either on the master’s premises or using a chattel owned by the master. See Kelsey-Seybold Clinic v. Maclay,
A second exception giving rise to a duty to control the conduct of an off-duty employee regards instances in which the employer voluntarily and knowingly assumes a duty of control. The American Law Institute has promulgated the following provision covering this concept:
One who takes charge of a third person likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.
Restatement (Second) of Torts § 319 (1965); accord Missouri, K. & T. Ry. Co. of Texas v. Wood,
Section 319 requires more than mere knowledge of a person’s dangerous propensities. For one person to “take charge” of another within the meaning of section 319, there must be a custodial relationship, one in which the person charged with controlling the conduct of another voluntarily assumes responsibility for that person. The summary judgment record shows, as a matter of law, that Otis did not voluntarily take Matheson into its custody or assume responsibility for his conduct. Cf. Missouri, K. & T. Ry. of Texas v. Wood,
The majority’s proposed analogy to cases decided pursuant to Restatement (Second) of Torts § 319 is without basis. The illustrations provided by the drafters and the cases decided under this section reveal the fallacy of this reliance. Each instance in which liability was imposed dealt with persons of known dangerous propensities and obvious breaches of duty by those obliged to control the conduct of the individual causing harm. See, e.g., Semler v. Psychi
Apart from these two situations, however, an employer has no duty to exercise control over an off-duty employee.
The cases relied upon by the majority have no bearing on the issue of duty in this case. This Court’s decision in Osuna v. Southern Pacific R.R.,
The majority also writes that the duty they impose “would not be based on the mere knowledge of Matheson’s intoxication, but would be based on additional factors.” Later, they write “we do not view this as a case of employer nonfeasance.” I have closely scrutinized the opinion and have failed to find anything to tie these statements to the result reached. The only conceivable affirmative act committed by Otis was Roy’s suggestion to Matheson that he go home. Is this sufficient upon which to predicate liability? I fail to see how the rule stated in the majority opinion results in liability under the facts of this case.
The majority opinion appears to be supported by law of other jurisdictions. On close examination, however, the inadequacy of that support is revealed. The case of Leppke v. Segura,
The case of Brockett v. Kitchen Boyd Motor Co.,
The third, and key, decision relied upon is Robertson v. LeMaster,
The West Virginia court in Robertson, in an unsatisfactory manner, attempts to distinguish Pilgrim v. Fortune Drilling Co.,
As has been shown, only one published decision has been found that may be analogized to the benefit of the majority opinion. On the contrary, at least four other jurisdictions have wrestled with a problem that is similar to the one faced by this Court and have reached a conclusion directly opposed to that reached by the majority in this case.
The case most nearly on point is Wienke v. Champaign County Grain Ass’n,
In Congini v. Portersville Valve Co.,
In Edgar v. Kajet,
These four cases are indicative of what must be considered as the general rule that an employer is not liable under the facts presently before the Court. See also Deloach v. Mayer Elec. Supply Co.,
A short discussion of the probable effects of and the inadequacies in the majority opinion is now in order. The rule imposed is: “when, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others.”
The first problem posed by this rule, which is distinctly present in the case at bar, is what action may be taken by an employer that will be considered as his having “taken control” over the employee. Taking control, presumably, is the “affirmative act” upon which the duty is predicated. The only allegation by Clark upon this subject is in his Response to Defendant’s Motion for Summary Judgment, in which Clark alleged: “Defendant’s failure to control Matheson so as to prevent him from harming others breached said duty as a matter of law and was the proximate cause of the damages prayed for by Plaintiffs.” The entire basis of Clark’s cause of action is Otis’ failure to control Matheson. If this is an “affirmative act” upon which liability may be found, “omissions,” “non-feasances,” and “inaction” no longer exist in Texas.
Arguably, a social host or a commercial vendor of intoxicants possesses a higher degree of culpability than that possessed
The majority provides no guidance as to what “condition” will lead to liability. Two examples will suffice to expose the fallacy of this terminology. First, assume an employee has a history of heart trouble and has had open heart surgery. He comes to work, experiences chest pains, complains to his employer, and is asked to leave or is sent home to rest. If, on the way home, he suffers a heart attack and is involved in a wreck, the rule pronounced by the majority would make the employer liable for failing to act. Second, assume the same facts except the employee left his glasses at home, is sent home to get them, and is involved in a wreck. Again, the employer would be liable for the injuries to the third person.
Next, what is the action that a “reasonably prudent employer” must take to avoid liability under this rule? Concededly, the facts of this one case make this appear a simple question since Otis maintained a nurse’s station for ill employees. The rule of this case, however, will apply to small and large employers alike, and most small employers have no such facility, nor do they have the practical ability to take the other steps suggested by the majority. Must the employer physically restrain the “incapacitated” employee? If this type of duty is to be imposed upon employers, they must be given a corresponding legal right to take this action—a right that they do not currently possess. Many employees work in places and conditions such that the alternatives suggested by the majority are totally unworkable. The usual practice among employers who find that an employee is incapacitated is to allow the employee to leave work and seek medical or other aid on his own. It would appear that this will no longer be sufficient. In an attempt to do justice in this one case, the majority has placed an impractical and unreasonable duty upon all employers.
The unstated premise of the majority opinion is that holding parties such as Otis liable will somehow reduce the number of accidents caused by drunk drivers and will assure adequate compensation for victims such as the Clarks. As a practical matter, however, reducing the number of such accidents and compensating accident victims can and should be accomplished in a more direct and efficient manner by comprehensive legislation.
Those courts and legislatures that have adopted dramshop liability have, in part, based on their conclusions on the theory that liability imposed pursuant to such a law was an incident of being engaged in
It is no answer to state that liability is imposed on Otis because of the “particular” facts of this case. We are an appellate court of last resort; the impact of our decision in one case necessarily reaches beyond the facts of that case. The result the majority reaches in this case will no doubt reinforce cynical public attitudes that tort liability is not based upon fault, but upon ability to satisfy a judgment. E.g., Delving Into Deep Pockets, Time, June 13, 1983, at 54. Further, by allowing the Clarks to shift the burden of liability from Matheson’s estate to Otis, the majority erodes the concept that an individual is responsible for his or her own actions. I would adhere to the rule that an employee is not acting in the course and scope of his employment while traveling to and from work and that the employer will not be held liable to one injured by the employee’s negligent operation of an automobile during these trips to and from work. It is well settled in Texas that a person is under no duty “to anticipate negligent or unlawful conduct on the part of another.” DeWinne v. Allen,
The duty the majority has imposed on Otis Engineering Company is not supported by either statute or precedent. The issue of whether a duty exists in a given ease is a question for the court. No court in any jurisdiction has ever held that an employer who has not contributed to an employee’s state of intoxication will be liable for that employee’s off-duty, off-premises torts. Proper judicial restraint compels the conclusion that, as a matter of law, Otis Engineering Company owed no duty to control the conduct of Matheson. I would reverse the judgment of the court of appeals and affirm the judgment of the trial court.
. The absence of an employer’s duty to exercise control over its off-duty employees is illustrated by comment b to § 317 of the Restatement, which provides:
He [an employer] is not required, however, to exercise any control over the actions of his employees while on the public streets or in a neighboring restaurant during the lunch interval, even though the fact that they are his servants may give him the power to control their actions by threatening to dismiss them from his employment if they persist.
. The scope of the problem is enormous. During the past session of the legislature, for example, no less than 22 bills relating to drunk driving were introduced in the Texas House of Representatives alone. One such measure would have established a compensation fund for the victims of drunk drivers. Tex.H.B.1809, 68th Leg. (1983). House Bill 1809, however, died in committee. House Bill 708, the "Proprietors Responsibility Act," would have imposed liability upon persons who knowingly sell liquor to an intoxicated person but did not pass.
. Dram shop liability refers to the statutory liability of commercial vendors of alcoholic beverages for the torts of their customers. At common law it was not a tort to sell or give intoxicating liquor to an "able-bodied man,” and there was no cause of action against the person furnishing the liquor. This was because the law deemed the consumption rather than the serving of liquor as the proximate cause of an accident. In order to abrogate the common law rule, a minority of states have enacted civil liability statutes or, as they are more commonly called, dram shop acts.