When
it comes to tort duties in Texas, the Supreme Court cautions attorneys to watch
their buts. In Pagayon, et al. v. Exxon Mobile
Corporation, No. 15-0642 (Tex. 2017), the Court addressed the issue whether
an employer owed a duty to control its employee under the particular
circumstances in the case, but declined to circumscribe a general duty, one way
or another, to control others. Justice Boyd, in an impassioned and concise
concurrence, charged the majority with substituting “Moses-like methods” for
“Solomon-like” solutions and for succumbing to Potter Stewart-esque approaches
to tort duties, a charge address by the majority in footnote 33.
Underlying
both the majority and concurrence is an age-old problem with tort law,
specifically negligence: how to create fact-insensitive principles of law that
articulate general duties so as to narrow judicial discretion on what is
generally a question of law—does the defendant owe a legal duty? This blog provides (1) an overview of the
facts and holding in Pagayon, and (2)
an analysis of footnote 33, hopefully to help the reader understand what Moses,
Solomon, and Pornography have in common here.
*One
more thing to note, the Court, again, made clear that certain tried-and-true
torts—specifically negligent supervision, hiring, retention, and training—may
not exist under Texas law, notwithstanding the fact that lower courts generally
recognize these torts or take these torts for granted.*
1.
Pagayon, et al. v. Exxon Mobile Corporation in a (medium sized) nutshell.
Pagayon involved the tragic and wholly unnecessary death of Alfredo
Pagayon, Sr. Alfredo Sr. secured a job for his son, Alfredo, Jr., at a
convenience store owned by Exxon Mobil Corporation and managed by Alfredo Sr.’s
friend, Roce Asfaw. A fellow convenience store employee, Carlos Cabulang, at
some point offended Jr. when Carlos asked if Jr. was having an affair with a
co-employee, Vong Vu. Jr. complained to Roce, but was told to ignore Carlos. On
a sequent evening, two customers complained to Jr. that the men’s restroom had
an “out of order” sign on it. Jr. discovered that the restroom was not out of
order and felt that Carlos had placed the sign on the door to harass him, as
Carlos had worked the prior shift. Jr., again, informed Roce, who, again, told
Jr. to ignore him.
Alfredo Sr. knew Carlos
and called him after Jr. complained about the apparent harassment at work.
Alfredo Sr. told Carlos to stop harassing Jr. The two got into an argument. On
Jr.’s next shift, Carlos confronted Jr., cursing and threatening him and his father.
Jr. became afraid and told another employee, Jovita Leslie, who, in turn, told
Carlos to stop. When Carlos refused to stop, Jovita called Roce at Jr.’s
request. Roce told Jovita to instruct Jr. to stay away from Carlos. Roce did
not speak with either Carlos or Jr. The situation deescalated and Jr. and
Carlos worked side by side until Jr.’s shift ended.
This was the first time
that Roce had any indication of Carlos’ hostility toward Jr. or anyone else.
Jr. had never informed Roce that he was afraid of physical violence. And, nobody
had informed Roce about the heated conversation between Alfredo Sr. and Carlos.
Alfredo Sr. arrived at the
convenience store to pick Jr. up and Carlos immediately confronted him. A fight
between Alfredo Sr. and Carlos ensued. Carlos knocked Alfredo Sr. to the
ground. Jr. intervened, placing Carlos
in a headlock. The fight then ended. Alfredo Sr. complained that he could not
breathe, so Jr. called 9-1-1. Twenty-three days later, Alfredo Sr. died from
cardiac arrhythmia, respiratory failure, and renal failure. The Pagayon family
subsequently filed a wrongful death suit against Exxon.
At the trial proceeding,
the jury found Exxon negligent in its supervision of employees and also
apportioned fault to Alfredo Sr. and Jr. The jury attributed 75% liability to
Exxon and awarded the Pagayon family damages near $2 million. The Houston
Fourteenth District Court of Appeals remanded the case for a new trial on the
ground that the trial court erred in not allowing Exxon to designate as a responsible
third-party the emergency room physician, Dr. Hung Hoang Dang, who treated
Alfredo Sr., and who allegedly made several failed attempts to drain a lung
that did not exist—Dr. Dang read a dark space on Alfredo Sr.’s chest x-ray as a
fluid filled left lung; Alfredo, Sr. was born without a left lung. The court of
appeals, rejected, however, Exxon’s argument that it owed no duty to control
Carlos.
The Texas Supreme Court
granted the parties’ respective petitions for review and took up the single
issue whether Exxon owed a duty to control Carlos under the circumstances. Even
though lower Texas courts have held employers to general duties with respect to
negligent hiring, negligent, or negligent supervision, the majority opinion
made clear that the Texas Supreme Court has never ruled on the existence, scope
or contours of such torts and the lower courts have never engaged in the
requisite duty analysis to determine the existence of these torts either. See *13-14.
The rule in Texas is that
no general duty exists to control others, unless a special relationship gives
rise to a duty to aid or protect others. This is a “no, but” approach. Employment
is one such special relationship, but the question is whether there is a
general duty for persons in a special relationship with another to control the
other. The Court looked to the Restatements Second and Third to aid its
analysis of this issue. The Restatement
Second rule is “no, but”—no general duty to control others when a special relationship
exists, but there are exceptions. The Restatement Third rule is “yes, but”—yes persons
in a special relationship with another owe a duty to reduce or prevent risks to
third parties, but there are exceptions. One such exception to the Restatement
Third rule is that “a court may decide, based on special problems of principle
or policy, that no duty or a duty other than reasonable care exists.” See *17-18.
The Court appeared to adopted the “yes,
but” rule respecting special relationships. The court rejected the Restatement
Second “no, but” approach, primarily due to a broad exception to the rule in
Section 317, which states:
A master is under a duty
to exercise reasonable care so to control his servant while acting outside the
scope of his employment as to prevent him from intentionally harming others or
from so conducting himself as to create an unreasonable risk of bodily harm to
them, if
(a)
the
servant . . . is
upon the premises in possession of the master or upon which the servant is
privileged to enter only as his servant, . . . and
(b)
the
master . . . knows
or has reason to know that he has the ability to control his servant, and . . . knows
or should know of the necessity and opportunity for exercising such control.
The
Court rejected Section 317, as it stated a broad rule without regard to policy
considerations and other factors that Texas courts are charged to weigh when determining
whether a duty exists.
Whether
a duty exists is a question of law for the court and is determined by weighing
various factors:
The considerations include
social, economic, and political questions and their application to 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.
*9-10
(quoting Humble Sand & Gravel, Inc.
v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004). The Court judged Section 317
according to this Humble Sand
baseline and explained that Section 317 falls woefully short. See *14-17. Section 317 states a general
rule without regard to policy considerations, such as “the burden on the
employer, the consequences of liability, and the social utility of shifting responsibility
to employers.” See Pagayon, at *15.
Texas,
then, appears to be a “no, but” and “yes, but” state: There is no general duty to control
others, unless a special relationship exists; There is a general duty for a
person in a special relationship with another to control the other with regard
to risks that arise within the scope of the relationship, unless a court
determines, based on problems of principle or policy, that no duty exists. See *17-18. This second "yes, but" rule makes most sense when considering that the general "no, but" rule makes an exception for special relationships, which would include employer/employee relationships. It would seem to follow that this exception means that one in a special relationship generally owes a duty to control the other. Of course, it need not follow this way. But, adopting "yes, but" also has the benefit of preserving lower court holdings that have found a general duty with respect to special relationships, such as employer/employee, as the Court noted that lower courts have upheld negligent supervision, hiring, training, and retention liability without engaging in the requisite duty analysis. Since courts will not raise lack of duty sua sponte, this would leave it to defense attorneys to raise the exception to the general rule based on public policy grounds or else risk waiving the argument.
Having
articulated the standard, the Court easily determined that Exxon owed no duty
to control its employee under the circumstances of this case. First, the risk
of this occurrence was minor as the situation was not one in which ‘repeated,
serious, threats or action” posed a threat to patrons. Second, the risk at
issue was not foreseeable, as the disagreements between the parties were “matters
of words until the fistfight suddenly broke out.” Third, placing a duty on the
employer here would impose a significant burden, as employers would be required
to investigate and monitor every situation, no matter how trivial or small.
Fourth, “the result was bizarre, given the brevity of the altercation, the
absence of any weapons, and the slightness of the provocation,” and extending
liability to the employer here would effectively “render the employer liable
for the most extreme consequences of simple employee friction.” Fifth, the
public was never in danger, so there would be very little social utility to
imposing a duty on the employer here. See
*18-20.
2.Footnote 33—Moses,
Solomon, and Pornography
Justice
Boyd criticized the majority opinion on three separate, but related grounds,
though he lists them as “two interrelated reasons.” See *20 (Boyd, J. concurring). First, the majority opinion did not
need to reject Section 317 outright. Justice Boyd agreed that Exxon owed no
duty under the circumstances here, whether solely applying the duty balancing
test or Section 317. Section 317 imposes liability on an employer when “the
employer knows or should know that a ‘necessity and opportunity for exercising
such control’ exists.” *21. The facts here clearly showed that Roce, and
thereby Exxon, had no reason to think that its employees posed a risk to any
patrons, or any risk of physical harm to any third-party or fellow employee. It
was not necessary to decide one way or another whether Section 317 correctly
stated an employer’s duties.
The
second criticism relates to the first. Section 317 provides something like a
bright-line rule. It objectively defines a duty and, as a result, can provide
authoritative guidance to others. Justice Boyd posited that the judicial system
should provide “Moses-like methods,” by which the law provides such authoritative
guidance so that people can govern their conduct accordingly. He charged that
the majority, instead, provides a Solomon-like solution[].” See *24. That is, the judicial system
disserves the public when, rather than providing authoritative dictates that
facility predictability and prospectivity, it attempts to do equity only under
the specific facts of the case. Courts, in other words, should not be viewed as
the place to go to find out what your legal duties are. If you are to be held
accountable for your actions, the law should, ex ante, already inform you or provide specific guidance for you to
determine the duties to which the law will hold you accountable; otherwise, how
can law be expected to govern anyone?
Third,
and related to the first two, Justice Boyd bemoans unfettered judicial
discretion. Though the majority cautions against overly broad rules, it ignores
the danger of overly narrow rules. See *24-25.
Both overly broad and overly narrow rules work the same evil—unfettered judicial
discretion. With an overly broad rule, like the duty analysis, which requires
weighing various factors, a judge can repair to his or her own personal
intuitions about what the law should require under the circumstances, which “erodes
objectivity.” See *24. With an overly
narrow rule, even if the court employed an objective method to arrive at the
narrow rule, if the facts to which the narrow rule apply are irreplicable,” the
rule proves useless to lower courts and future litigants, which effectively
leaves the judiciary with the same unfettered discretion. So, Justice Boyd
accuseed the majority of providing “little more than a Potter Stewart-esque we-know-duty-when-we-see-it
approach” to tort duties in the employer-employee relationship context. See *23 (citing Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J.,
concurring) (declining to attempt to define pornography, but stating that he “know[s]
it” when he “see[s] it”).
The
majority retorts in footnote 33. In footnote 33, the Court conceded to Justice Boyd’s
charge that the majority provides only a Solomon-like solution, as opposed to a
Moses-like method. This confession is significant when considering Justice Boyd’s
overall point is that the judicial system disserves itself and the public when
its rules do not, ex ante, provide clear authoritative guidance. The majority
rejected, however, Justice Boyd’s “Potter Stewart-esque” charge.
Chief
Justice Hecht, in footnote 33, provides a justification for narrow duty rules
that he considers to serve the overall goal of a attaining an appropriate
and general rule. This is the common law
vision: “The recognition of an appropriate rule must await ‘the incremental and
reasoned development of precedent that is the foundation of the common law
system.’” See footnote 33 (quoting Rogers v. Tennessee, 532 U.S. 451, 461
(2001). Justice Hecht’s retort in footnote 33, while conceding to Solomon-like
solutions here, focuses on the proper role of the judiciary when developing the
common law. “[T]he concurring opinion prefers a prescriptive approach in recognizing
legal duties to that of the common law.” See
footnote 33. State another way, the concurring opinion would have the Court
usurp the function of the Legislative Branch.
Conclusion
Pagayon v. Exxon Mobil Corp. provides a roadmap for
practitioners when preparing their next direct negligence claim against an
employer as well as those practitioners defending against these claims.
Remember to watch your buts. In the employer/employee tort context, Texas is a “No,
But” and “Yes, But” state. Defense counsel should frame this "Yes, But" as "yes employers generally owe an affirmative duty to control their employees to prevent them from harming other persons, but only if the court finds that the balance of factors weigh in favor of imposing such a duty on the defendant under the circumstances in this case." Finally, create, at minimum, three sets of generalized
statements of the duty owed—a broad, medium, and narrow statement. And, polish
up on public policy arguments.
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