|Jottings By An Employer's Lawyer|
Friday, June 30, 2006
Texas Supreme Court - Employer Not Liable For Employee's Off Work Conduct
Roger Tingle worked for Loram and traveled with his wife. Tingle was also an enthusiastic participant in an illegal drug culture that was allowed to flourish among the employees at Loram. He had been using methamphetamine on and off the job for ten months before the incident that led to this lawsuit. He testified that he only took the drug for recreational purposes, or to stay awake during work after partying,but there was also evidence that Tingle’s supervisor and co?workers used the drug, and that Tingle’s supervisor had given Tingle time off to purchase more.
Because of his heavy methamphetamine use, Tingle became moody and mentally unstable. In the weeks and days leading up to the incident, Tingle was seen using the drug at work, and he threatened one of his wife’s friends with a knife. Those incidents were reported to Loram management.
On the day of the incident, while at work, Tingle reportedly spoke of attacking his wife. After their shift ended, he and his co-workers were driven back to the motel where they were housed with their families. Later that day, Tingle got into an argument with his wife, forced her into their car, and began to drive out of the motel parking lot. When he threatened his wife with a gun, she jumped out of the car screaming for help. David Ianni, an El Paso police officer, was leaving a nearby restaurant when he witnessed the altercation and went to her aid. When Tingle got out of his car to pursue his wife, Ianni tried to intervene. Tingle then shot Ianni, seriously injuring him.
The case turned on the employer's duty to the injured police officer. The Supreme Court began by re-affirming the basic rule of long-standing in Texas -- "in the absence of a relationship between the parties giving rise to the right of control, one person is under no legal duty to control the conduct of another, even if there exists the practical ability to do so." While noting that the employer/employee relationship can give rise to this duty, the Court noted generally it was limited to responsibility only for off-duty torts committed either on the employer's premises or with its property.Since neither of those were applicable, the last hope for the plaintiff was the Court's 1983 holding of an employer liable for a wreck involving an intoxicated employee sent home from work. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 309, 311 (Tex. 1983). The difference here -- there was no evidence that the employer tried to exercise control over the employee in any way. As the Court had said in Otis, "simply knowing that an employee is intoxicated or incapacitated is not enough for a duty to arise."
This is one of those awkward cases where the Court encourages conduct -- doing nothing in the face of a potentially dangerous employee as he is leaving your premises -- that on first blush seems to be counterproductive. But rather than opening the Pandora's box of liability for employers, a better way to get the desired result would be to reconsider Otis, either by the Court or by the legislature, to give some sort of Good Samaritan protection to an employer who tries to exert control in those circumstances.
Today's holding seems to preclude a replay in Texas of the recent decision of a New Jersey court holding an employer liable for the sexual molestation of an employee's step-daughter because it failed to monitor his work computer and discover that he was visiting pornographic sites. See, Mr. Employer - You Should Have Protected Me.
This is one of those cases where bad facts, and justifiable sympathy for the officer, could have made for bad law -- fortunately, this time it didn't.