Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593 (Tex.

, 2006)

Page 593 I. Factual Background

210 S.W.3d 593 Loram Maintenance of Way, Inc.

LORAM MAINTENANCE OF WAY, refurbishes railroad tracks by utilizing a very
INC., Petitioner, large, complex machine that rides along the
v. rails while grinding the rails back into their
David IANNI, Respondent. proper profile. Because of the nature of the
No. 04-0666. work, Loram's employees are constantly on
Supreme Court of Texas. the road, working twelve-hour shifts. They
Argued November 29, 2005. travel with their families, staying in motels
Decided June 30, 2006. paid for by Loram.
Rehearing Denied February 2, 2007.
Roger Tingle worked for Loram and
Page 594 traveled with his wife. Tingle was also an
enthusiastic participant in an illegal drug
Mike A. Hatchell, Molly H. Hatchell, culture that was allowed to flourish among
Christopher Benjamin Dove, Locke Liddell & the employees at Loram. He had been using
Sapp, LLP, Austin, Cynthia S. Anderson, methamphetamine on and off the job for ten
Milton Carey Colia, Ken Slavin, Kemp Smith months before the incident that led to this
LLP, El Paso, for petitioner. lawsuit. He testified that he only took the
drug for recreational purposes, or to stay
Gordon Stewart, Gary A. Reaves, awake during work after partying,1 but there
Calhoun, Vinson & Reaves, L.L.P., El Paso, for was also evidence that Tingle's supervisor and
respondent. co-workers used the drug, and that Tingle's
supervisor had given Tingle time off to
Kathleen Cassidy Goodman, Boerne, for purchase more.
amicus curiae.
Because of his heavy methamphetamine
Justice GREEN delivered the opinion of use, Tingle became moody and mentally
the Court. unstable. In the weeks and days leading up to
the incident, Tingle was seen using the drug
In general, an employer owes no duty to
at work, and he threatened one of his wife's
protect the public from the wrongful acts of
friends with a knife. Those incidents were
its off-duty employees that are committed off
reported to Loram management.
the work site unless the employer exercises
control over the employees' off-duty activities On the day of the incident, while at work,
that cause harm. See Otis Eng'g Corp. v. Tingle reportedly spoke of attacking his wife.
Clark, 668 S.W.2d 307, 309, 311 (Tex.1983). After their shift ended, he and his co-workers
Here, we are asked to decide whether an were driven back to the motel where they
employer owes a duty to protect the public were housed with their families. Later that
from an employee's wrongful off-duty day, Tingle got into an argument with his
conduct, even though the employer exercised wife, forced her into their car, and began to
no control over the employee's off-duty drive out of the motel parking lot. When he
activities, because the employer knew its threatened his wife with a gun, she jumped
employee was drug-impaired and had out of the car screaming for help. David Ianni,
threatened violence to others. We conclude an El Paso police officer, was leaving a nearby
that the employer owes no such duty. restaurant when he witnessed the altercation
and went to her aid. When Tingle got out of
Page 595
his car to pursue his wife, Ianni tried to
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 Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593 (Tex., 2006)

intervene. Tingle then shot Ianni, seriously which we denied. 43 TEX. SUP. CT. J. 1213
injuring him. (Sept. 14, 2000). Our denial of the petition for
review in Ianni I does not preclude us from
Ianni sued Loram, claiming it was reviewing the duty issue now.
negligent in retaining an incompetent, unfit,
or dangerous employee; in failing to properly "The `law of the case' doctrine is defined
control and supervise Tingle; and in as that principle under which questions of law
encouraging drug use. He also claimed Loram decided on appeal to a court of last resort will
aided and abetted Tingle's drug use. The jury govern the case throughout its subsequent
found Loram's negligence proximately caused stages." Hudson, 711 S.W.2d at 630. We have
Ianni's injuries and that Loram's supervisors held that declining to review a case is not
were vice principals. Ianni was awarded evidence that the Court agrees with the law as
$800,000 in actual damages and $500,000 decided by the court of appeals. See Trevino
in punitive damages. The Eighth Court of v. Turcotte, 564 S.W.2d 682, 685 (Tex.1978)
Appeals affirmed the trial court's judgment, (holding that a court of appeals' conclusion
holding that Loram owed Ianni a duty was not binding under the "law of the case"
because of its negligent exercise of control doctrine when the petitioner's first writ of
over Tingle while he was incapacitated. 141 error was denied by this Court as "writ
S.W.3d 722, 729 (Tex.App.-El Paso 2004, pet. refused, no reversible error"); City of
granted) (citing Otis Eng'g, 668 S.W.2d at Houston v. Jackson, 192 S.W.3d 764, 769
311). Loram contends it owed no duty to Ianni (Tex.2006) (holding that even though a
because, even if it was negligent in previous petition for review on the matter was
supervising Tingle while he was on duty, it dismissed by this Court, the Court could
did not exercise any control over Tingle's review the issue in a later petition to this
wrongful activities while he was off duty. We Court after remand). The denial or dismissal
granted Loram's petition for review to decide of a petition does not give any indication of
the duty issue. 48 TEX. SUP. CT. J. 1042 this Court's decision on the merits of the
(Sept. 16, 2005). issue. See TEX. R. APP. P. 56.1(b)(1);
Matthews Constr. Co., Inc. v. Rosen, 796
II. Law of the Case S.W.2d 692, 694 n. 2 (Tex.1990). Since the
"law of the case" doctrine is inapplicable, we
We first address Ianni's argument that will address Loram's complaint that it owed
Loram's duty issue should not be reviewed in no duty.
this appeal because it was decided in a
previous appeal and is now the "law of the III. Employer Liability for Employee's
case." See Hudson v. Wakefield, 711 S.W.2d Off-Duty Conduct
628, 630 (Tex.1986). Loram initially obtained
a summary judgment that it owed no duty to "Under Texas law, in the absence of a
Ianni. Ianni relationship between the parties giving rise to
the right of control, one person is under no
Page 596 legal duty to control the conduct of another,
even if there exists the practical ability to do
appealed, and the court of appeals held that so." Graff v. Beard, 858 S.W.2d 918, 920
the summary judgment in Loram's favor was (Tex.1993). The employer-employee
improper on the duty issue and remanded the relationship can give rise to this kind of duty.
case to the trial court. Ianni v. Loram Maint. Greater Houston Transp. Co. v. Phillips, 801
of Way, Inc., 16 S.W.3d 508, 527 (Tex.App.-El S.W.2d 523, 525 (Tex.1990). But it is a
Paso 2000, pet. denied) ("Ianni I"). Loram narrow duty; typically an "employer is liable
then petitioned for review in this Court, only for the off-duty torts of his employees
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 Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593 (Tex., 2006)

which are committed on the employer's avoid any affirmative act which might worsen
premises or with the employer's chattels." the situation." Otis Eng'g, 668 S.W.2d at 309.
Otis Eng'g, 668 S.W.2d at 309.2 In addition,
"when, because of an employee's incapacity, In Otis Engineering, the employer knew
an employer exercises control over the that the employee was intoxicated and sent
employee, the employer has a duty to take him home because of his intoxication. Id. at
such action as a reasonably prudent employer 308. While driving home, the employee
under the same or similar circumstances caused a fatal accident. Id. This Court held
would take to prevent the employee from that the employer owed a duty to third
causing an unreasonable risk of harm to persons, not because it knew its employee was
others." Id. at 311 (citing without adopting intoxicated, but because the employer
RESTATEMENT (SECOND) OF TORTS 319 decided to deal with its employee's
(1965) ("One who takes charge of a third intoxication by exercising affirmative control,
person whom he knows or should know to be including suggesting that he drive home. Id.
likely to cause bodily harm to others if not at 311. In other words, when the employer
controlled is under a duty to exercise acted, it made the situation worse.
reasonable care to control the third person to
prevent him from doing such harm.")); see In this case, the shooting incident did not
Greater Houston Transp. Co., 801 S.W.2d at occur until at least an hour after Tingle was
526 ("We imposed the duty upon the already off duty and at the motel. There is no
employer [in Otis Engineering], not because evidence that Loram was exercising any
of the mere knowledge of the intoxication, but control over Tingle at that time because of his
because of the employer's negligent exercise agitated mental state or for any other reason.
of control over the employee.").3 Instead, the evidence shows only that Loram
employees knew Tingle was agitated when he
Page 597 was driven to the motel when his shiftended.4
And as we have stated, mere knowledge of an
Therefore, simply knowing that an impaired condition is not sufficient to impose
employee is intoxicated or incapacitated is a duty. Otis Eng'g, 668 S.W.2d at 309;
not enough for a duty to arise. Otis Eng'g, Greater Houston Transp. Co., 801 S.W.2d at
668 S.W.2d at 309; Greater Houston Transp. 526.
Co., 801 S.W.2d at 526. Rather, the employer
must affirmatively exercise control over the Ianni additionally argues that, even if
incapacitated employee. See Otis Eng'g, 668 Loram did not exercise affirmative control
S.W.2d at 309, 311. Once affirmative action over Tingle in response to his agitated mental
has been taken for the benefit of another, the state, it owed a duty to Ianni under our
employer has a duty to act with reasonable holding in Texas Home Management v.
care, even if the employer initially had no Peavy, 89 S.W.3d 30 (Tex.2002). In Peavy,
duty to act. Id.; see also Colonial Sav. Ass'n v. we held that a facility for mentally-impaired
Taylor, 544 S.W.2d 116, 119-20 (Tex.1976) residents, which was required to supervise
("[O]ne who voluntarily undertakes an and control the comings and goings of those
affirmative course of action for the benefit of state-ordered residents, could have a duty to
another has a duty to exercise reasonable care exercise proper control over its residents. See
that the other's person or property will not be id. at 32, 39. However, duties involving
injured thereby."). Thus, while an employer responsibility for another's actions are based
owes no duty to act to control the conduct of on a number of factors, including the kind of
an impaired off-duty employee, if the relationship between the parties. Id. at 33-34.
employer does decide to act, its duty is "to The relationship in Peavy was one where the
facility had continuous, supervisory control
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 Loram Maintenance of Way, Inc. v. Ianni, 210 S.W.3d 593 (Tex., 2006)

over a mentally-impaired resident because reasonable care to keep an employee from

the state had ordered him to live there. Id. at causing an injury to others if the employee is
32, 34. That is significantly different from off duty but using company equipment or on
company property at the time of the incident).
Page 598
4. It is not clear whether Tingle's supervisor
the relationship between employers and was aware of his condition at this time or
employees, where supervision and control are whether the supervisor's knowledge would be
usually based on a limited work task or sufficient to bind the company. But for
period. The duty standard in Peavy does not purposes of this analysis, we assume without
apply to this case. deciding both that the supervisor knew and
that his knowledge was binding on the
****** company.

Based on the facts surrounding the 5. "[T]he existence of duty is a question of law
occurrence in question, we conclude that for the court to decide from the facts
Loram owed no duty to Ianni with respect to surrounding the occurrence in question."
Tingle's off-duty conduct.5 Because Loram Greater Houston Transp. Co., 801 S.W.2d at
owed no duty, we need not reach the 525.
remaining issues. We reverse the court of
appeals' judgment against Loram and render ---------------
a take-nothing judgment in Loram's favor.
Justice O'NEILL, joined by Chief Justice
Justice O'NEILL filed a concurring JEFFERSON, concurring.
opinion, in which Chief Justice JEFFERSON
joined. I write separately to emphasize that the
Court's decision in no way condones the
--------------- alleged action of Loram supervisors in
tolerating, and sometimes even encouraging,
Notes: methamphetamine use among employees. If
those allegations are true, as the jury by its
1. Tingle and other members of the crew used verdict impliedly found, then criminal
methamphetamine to "party" and would not prosecution would be warranted and
sleep for days. Consequently, they would have hopefully pursued. But the issue that
to take even more methamphetamine to be confronts the Court today is different:
awake enough to work. whether Loram may be held civilly liable for
the actions of its off-duty employee over
2. Ianni does not contend that the shooting
whom it had no control when Ianni was
incident occurred at a site controlled by
injured. As to this question, I agree with, and
Loram or that Tingle was using company
fully join, the Court's opinion.
equipment at the time.

3. We also note that section 317 of the

Restatement says that an off-duty employee
must be using company equipment or
property at the time of the incident for the
employer to have a duty to third parties for
the employee's conduct. See RESTATEMENT
(SECOND) OF TORTS 317 (1965) (stating
that an employer has a duty to exercise
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