Originally published by Daniel Correa.
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 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 Sandbaseline 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, is 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.
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. 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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Although our judicial system historically prefers live witness testimony over testimony of witnesses through a deposition, today’s technology allows even seasoned trial lawyers the ability to present witnesses through videotaped deposition testimony that can be even more effective than having the witness appear live. I know because I just finished a 3-week trial where 75% of the witnesses we called in our case appeared by videotaped deposition. The defense also called approximately 75% of their witnesses by deposition, 
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