FRANCISCA ESCOTO, ET AL. v. THE ESTATE OF ROBERT AMBRIZ, ET AL.--Appeal from 197th District Court of Willacy County

NUMBER 13-02-171-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

FRANCISCA ESCOTO, ET AL., Appellant,

v.

THE ESTATE OF ROBERT AMBRIZ, ET AL., Appellee.

On appeal from the 197th District Court

of Willacy County, Texas.

DISSENTING OPINION

Before Justices Ya ez, Castillo and Garza

Dissenting Opinion by Justice Castillo

Escoto appeals from the trial court's order granting a motion for judgment notwithstanding the verdict ("JNOV"). The majority sustains the appeal and remands for entry of judgment based on the jury's verdict. I respectfully dissent.

As the majority notes, "the existence of a legal duty is a question of law for the court to decide, and that determination is made from the facts surrounding the occurrence in question." Chon Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005) (citing Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309, (Tex. 1983)).

In deciding whether to impose a common law duty, this Court has applied the familiar factors, . . . [including] social, economic, and political questions and their application to the facts at hand. We have weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.

Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004).

Although the formulation and emphasis varies with the facts of each case, three categories of factors have emerged: (1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy considerations. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 34 (Tex. 2002) (citing Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990)). Generally, there is no duty to control the conduct of others. Id. (citing Greater Houston Transp. Co., 801 S.W.2d at 525). This general rule does not apply when a special relationship exists between an actor and another that imposes upon the actor a duty to control the other's conduct. Id.

In D. Houston, Inc. v. Love, 92 S.W.3d 450, 457 (Tex. 2002), the Texas Supreme Court held that "when an employer exercises some control over its independent contractor's decision to consume alcoholic beverages to the point of intoxication, such that alcohol consumption is required, the employer must take reasonable steps to prevent foreseeable injury to the independent contractor caused by drunk driving." Id. That decision was based, in large part, on the conclusion that impairment from alcohol consumption presents a foreseeable risk of harm to others. Id. (citing Otis Eng'g Corp., 668 S.W.2d at 311). Here, however, we are presented with a question of alleged fatigue caused by long hours on the job, and not intoxication impairment.

This question was previously presented to this Court. See Duge v. Union Pacific Railroad Co., 71 S.W.3d 358 (Tex. App.BCorpus Christi 2001, pet. denied). In Duge, an employee worked a regular work day, and then also worked all night at a train derailment. After being on the job for twenty-seven hours, he left to drive to his home fifty miles away. Id. at 360. During this trip, the employee ran into the back of the Duges' vehicle, killing Mr. Duge. Id. Appellants urged that the railroad had the duty to know of the employee's incapacity due to fatigue but nevertheless placed him on the highway, to the foreseeable peril of other travelers. Id. This Court noted that Otis Eng'g Corp. 668 S.W.2d at 311, requires an employer to (1) have knowledge of the employee's capacity, and then (2) to exercise control over the incapacitated employee. Id. at 362 (citing Otis Eng'g Corp., 668 S.W.2d at 309-11; Jenkins v. Kemlon Prod. & Dev. Corp., 923 S.W.2d 224, 226 (Tex. App.BHouston [14th Dist.] 1996, no writ)).

Even if we assume that fatigue was a factor in the accident, Garcia did not know the extent of his own fatigue. His employer cannot be charged with such knowledge. Appellants cite no Texas case law, and we have found none, imposing liability on an employer for damages caused by a fatigued employee driving home after work. However, there is case law declining to impose such liability in similar circumstances.

Id. The record in this case does not reflect that Nabors had affirmative knowledge of excessive fatigue in the employee. Instead, evidence points to length of shifts, break policies, training policies and other issues that may impact but do not directly establish knowledge by Nabors that this employee was so tired that his driving would cause a foreseeable risk of harm to others. Awareness of the potential dangers of fatigue does not constitute the requisite knowledge that an employee has become incapacitated; nor does it raise a duty to exercise control over that employee after he has left the workplace. I similarly find no case law extending the principles of Otis Eng'g Corp., 668 S.W.2d at 311, to the circumstances of this case. I would conclude this case is not distinguishable from Duge, and that no duty was owed by Nabors to appellants. See id. I therefore respectfully dissent, and would affirm the trial court's order granting the motion for judgment notwithstanding the verdict.

ERRLINDA CASTILLO

Justice

Dissenting Opinion delivered and filed

this the 8th day of June, 2006.