Clark v. Otis Engineering Corp.
| Decision Date | 16 February 1982 |
| Docket Number | No. 8933,8933 |
| Citation | 633 S.W.2d 538 |
| Parties | Larry CLARK, Et Al., Appellants, v. OTIS ENGINEERING CORPORATION, Appellee. |
| Court | Texas Court of Appeals |
Judson Francis, Jr., Francis, Francis & Lavender, Dallas, W. James Kronzer, Kronzer, Abraham & Watkins, Houston, for appellants.
John H. McElhaney, C. Michael Moore, Locke, Purnell, Boren, Laney & Neely, Dallas, for appellee.
Larry Clark and Clifford Clark filed suit against Otis Engineering Corporation to recover damages for the deaths of their wives, Janis Clark and Geraldine Clark, in an automobile collision. They appeal from the trial court's rendition of summary judgment against them.
The summary judgment evidence consisted of several witnesses' depositions. Viewing the deposition testimony in the light most favorable to the Clarks, as is required in this posture of the case, the evidence reveals the following: Robert Matheson was employed by Otis Engineering Corporation as a machinist at its plant on Belt Line Road in Carrollton, Texas, near Dallas. He had a history of drinking alcoholic beverages while on duty and he had acquired a reputation as a quarrelsome and undependable employee. Matheson's shift was from 3:00 p. m. until 11:00 p. m. He was allowed a dinner break, which on the day of the accident he took and returned to his post of duty some time prior to 9:15 p. m. At the dinner break and on other occasions during his work shift that day, he went to the parking lot, apparently to his automobile where he consumed alcoholic beverages. Matheson's supervisor was Donald Roy. Rennie Pyle was a co-worker who assisted Matheson and also supervised him on occasions. Mr. Pyle testified that he knew of Matheson's drinking on previous occasions as well as the day in question, and that he told Mr. Roy on that day that Matheson was not acting right, was not coordinated, was slurring his words, and that "we need to get him off the machine." Another fellow worker, David Sartain, testified that Matheson was either sick or drinking, was steadily getting worse, "his complexion was blue and like he was sick", and that he was weaving and bobbing on his stool about to fall into his machine. Mr. Roy testified that he observed Matheson's condition throughout the afternoon and the evening, and that Rennie Pyle reported to him that Matheson was not acting right and that they needed to get him off the machine. When Matheson returned to his work station around 9:15, Roy was waiting for him. Matheson's condition had not improved. Roy then suggested that Matheson go home. Roy walked him to the parking lot and told him "I want you to go home and get a good night's rest and come in tomorrow if you feel better." Roy asked Matheson if he was all right and could he make it home, and he answered that he could. Roy testified that the company maintained a nurse's station at the plant where ill or disabled employees could be taken and cared for, but Matheson was not taken there.
Some five to eight minutes after Matheson drove away from the plant onto Belt Line Road his automobile and another automobile were involved in a collision in which he, the two Mrs. Clarks, and another person were instantly killed. Dallas County's Medical Examiner, Dr. Charles Petty, testified that Matheson had a blood alcohol content of 0.268 which indicated that prior to his death he had ingested a large quantity of alcohol, an amount representing some sixteen to eighteen cocktails if consumed over a period of one hour, or twenty to twenty-five cocktails if consumed over a period of two hours. He stated that persons working around Matheson would undoubtedly have known of his condition, and that 100% of persons with that much alcohol concentration in their blood would exhibit signs of intoxication observable to the average person.
Otis' motion for summary judgment was based upon its contention that, as a matter of law it had no duty to restrain Matheson on the occasion in question or to control his actions while he was off-duty and not on its premises. The Clarks' contend that the summary judgment evidence at least raised genuine issues of fact on the question of whether Otis had a duty to restrain Matheson, or on the question of its liability for the consequences of Matheson's actions under the doctrine of negligent retention of an employee.
A defendant moving for summary judgment on the whole case has the heavy burden to show by uncontradicted summary judgment evidence that at least one of the essential elements of the plaintiffs' cause of action has been conclusively established against plaintiffs, and that as a matter of law they cannot recover. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App-Tyler 1974), writ ref'd n.r.e. per curiam, 518 S.W.2d 528 (Tex.1975).
We conclude that the Clarks failed to raise a material issue on their theory of recovery based on negligent retention, because the summary judgment evidence establishes an absence of the required causal relation between the hiring and retention of Matheson and the occurrence of the collision, but we believe an issue was made concerning Otis' failure to restrain or control Matheson.
In ordinary circumstances, a person has no duty to use care to control the conduct of a third person in order to prevent that person from causing harm to others unless there exists between the actor and the third person some special relation which imposes such a duty. Restatement (Second) of Torts § 315 (1965). The bare relation of employer-employee is not one which in itself imposes such a duty unless the employee is upon the employer's premises or using his chattel, and the employer has the required knowledge of ability and necessity for controlling the employee. Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982 (5th Cir. 1981); Trammell v. Ramey, 231 Ark. 260, 329 S.W.2d 153 (1959); Restateme...
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