Exhausted Commuters: No Employer Duty to Public. Nabors Drilling USA Inc. v. Escoto (Tex. 2009)

Hornbook law so basic that it has its own name, the coming-and-going rule:  employee negligence in coming and going to work are outside the scope of employment, to the employer is not vicariously liable for an employee's negligence while commuting.  To be sure, there are scattered cases imposing liability on an employer for its own negligence.  In Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983), an employer that had sent an intoxicated worker home early, and had poured the employee into his car, was found negligent, and liable for the inevitable accident on the way home.

Nabors Drilling USA, Inc. v. Escoto,No. 06-0890 (Tex. June 19, 2009), involved yet another accident while commuting from a drilling company job-site.  The employee (Ambriz) worked one-week on and one-week off, with 12-hour shifts (alternating a week of days, a week off, and a week of nights.  One morning, the employee fell asleep at the wheel.  The plaintiff argued that the drilling company was negligent, but the Court declined to extend Otis.   First, there was no showing the drilling company knew the employee "was impaired when leaving work on the day of the accident." Slip Op., at 6.  Second, the drilling company did not

… affirmatively exercise control over the incapacitated employee.  Unlike the employer in Otis, however, Nabors did not exercise any post-incapacity control over its employee. Ambriz completed his shift without incident and was not sent home early because of any impairment. Nabors did not instruct Ambriz to drive home or escort him to his car. * * * We have never extended Otis to create a duty where an employer’s only affirmative act of control preceded the employee’s shift and incapacity and amounted only to establishing work conditions that may have caused or contributed to the accident.

Slip Op. at 7-8 (citations omitted) (emphasis in original).

posted by Gary Rosin

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