Safety Over Convenience: When Should Employers Investigate their Employees’ Mental State?

Originally published by Alex Fuller.

Stephen F. Austin is the CEO of Alamo Lines, a bus line servicing Central Texas. One night, a young, promising driver, David Boone, confessed to Stephen that he was suffering from severe depression and suicidal thoughts. Boone did not mention that his depression was due to the breakup of his romantic relationship with co-worker, Samantha Houston. Austin, concerned only that he might have to cancel that night’s San Antonio-to-Schlitterbahn Run, asked Boone if he was “ok” to drive, but took no other action. Boone said he was fine.

Just before leaving on his route, Boone got into an argument with and assaulted Samantha in the Alamo offices. In a desperate attempt to commit suicide, he later drove his bus off of the road and into a ditch, injuring 30 passengers. A subsequent government investigation revealed that Boone had a previous conviction for assault. Is Alamo Lines liable for Samantha’s injuries? For the injuries to the passengers on Boone’s bus?

No and Yes. Alamo Lines is not liable to Samantha because her injuries were unforeseeable. However, Alamo Lines is probably liable to its passengers because the harm caused to them was foreseeable.

What Risks Must Alamo Guard Against? Generally, employers have no duty to guard against unforeseeable risks. However, employers do generally have a duty to hire employees who are competent at their jobs. While a company that employs drivers has a duty to ensure that its drivers are safe and competent drivers – which may include running a background check on their driving record – employers in Texas generally have no duty to conduct criminal background checks on their employees because those employee’s potential criminal acts are, as a matter of law, unforeseeable. Because Texas courts hold that an employee’s criminal acts are not foreseeable. Therefore, because Boone’s assault of Samantha was unforeseeable, Alamo Lines is not responsible.

On the other hand, Alamo Lines not only employed an unsafe, suicidal driver – it actually was aware of Boone’s mental problems and suicidal thoughts before allowing him to drive one of its buses. Even if Alamo Lines did not have a duty to give its drivers psychological tests, a court could conclude that, with actual knowledge of Boone’s severe mental problems, Alamo Lines was obligated to sideline Boone until a psychiatrist cleared him to drive.

Tilting the Scales in Your Favor. Employers are unquestionably required to hire and retain people who are competent at their jobs, and generally do not have a duty to prevent unforeseeable accidents. Employers who do get actual knowledge of an employee’s violence or severe mental illness are put on notice to proactively take steps to ensure the safety of fellow employees, your company and your customers.

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