We Didn’t Tell Him to Do That! The Law and Consequences of Vicarious Liability in Texas.

When can an employer be liable for the acts of its employees? The answer to this question can have serious implications for a wide variety of cases, including motor vehicle accidents, assault and battery cases and workplace injury claims. This issue can impact whether a claim is collectible (as a claim against the employee, standing alone, will make collection more difficult) and, relatedly, whether the claim is covered by the employer’s insurance policy. Under Texas law, a employer is vicariously liable for the torts of its employees committed in the course and scope of their employment. To find that the employee acted within the scope of employment, the action of the employee must be: (1) within the general authority given him; (2) in furtherance of the employer’s business; and (3) for the accomplishment of the object for which the employee was employed.

An employer may be liable for the tortious conduct of its employee only if that conduct falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired. Soto v. El Paso Natural Gas Co., 942 S.W.2d 671, 680 (Tex. App.–El Paso 1997, writ denied). An employer may be liable for the act of an employee, even if the act is contrary to an express policy or order, if it is done within the general authority of the employee. Id. Tortious conduct is within the scope of employment when it is of the same general nature as that authorized, or is incidental to that authorized. Id.

The Fort Worth Court of Appeals recently affirmed a trial court’s decision to grant summary judgment in favor of an employer on the vicarious liability issue. Rocamontes v. Evergreen Presbyterian Ministries, Inc., No. 02-11-00471-CV (Oct. 18, 2012). In Rocamontes, the plaintiffs were the parents of a fifteen year old pedestrian killed in an automobile accident. The plaintiffs filed a wrongful death suit against the driver and her employer, an assisted living facility operator. The driver of the vehicle was on her way to work at the time of the car accident.

The 17th District Court in Tarrant County granted summary judgment in favor of the employer and dismissed it from the suit. The plaintiffs appealed. In its decision, the Fort Worth Court of Appeals noted that “[a]n employee generally is not in the course and scope of employment while driving a vehicle to and from his place of work.” Rocamontes, mem. op. at 5. However, the Court noted that there is an exception “where an employee has undertaken a special mission at the direction of his employer.” Id. (citing Chevron U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.–El Paso 1993, no writ). The Court concluded that there was simply no evidence that the employee was on any special mission on behalf of her employer at the time of the car wreck. Accordingly, the Fort Worth Court of Appeals affirmed the trial court’s decision.

Author: Josh Borsellino