Otis Engineering Corp. v. Clark

Supreme Court of Texas, 1983


Matheson worked the evening shift at defendant's plant and had a history of drinking on the job. On his dinner break, he went out to his car and drank alcohol, as he had other times that day.

His coworkers saw that he was obviously drunk and told his supervisor that he should be sent home. His supervisor could also see this, so after the dinner break he escorted Matheson to the door to the parking lot and asked if he was all right and could make it home. Matheson said he could, so he left to drive home.

After driving three miles, he caused an automobile accident killing the plaintiffs' wives and himself. At the time of the accident, Matheson had a BAC of 0.268%, which required consuming between 16–25 drinks over the last couple hours and would have made his intoxication visible to everyone.

Procedural History:

  • Trial court granted defendant's motion for summary judgment on the basis that defendant owed no duty to plaintiffs as a matter of law.

  • Court of appeals reversed.


Is defendant liable for its employee's tort because it sent him home while he was visibly intoxicated?


  • Employers can be liable for torts committed off-duty by their employees, but usually this is only if they are committed on the employer's premises or with its chattels.

  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 309

    Though the decisional law of this State has yet to address the precise issues presented by this case, factors which should be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the employer.

    While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation. One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care.


The issue here is not just that defendant knew that Matheson was drunk and did nothing. Other factors would apply.

Dean William Prosser of UC Berkeley recommends that we should impose a duty wherever "reasonable men would recognize it and agree that it exists." This would be a good opportunity to do so. Three other states have already done similar things, so we will too.


LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 311

[W]hen, because of an employee's incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others.


Affirmed and remanded for factual determinations.

Dissenting Opinion:

The only issue here is whether defendant owed a duty to plaintiffs. The majority says it did, but cannot say why. This indicates that imposes liability is not the proper remedy. No other court has imposed liability for the off-duty, off-premises torts of an intoxicated employee when the employer has not contributed to the employee's state of intoxication. This just radically increases employers liability without explaining the holding.

One has an affirmative duty to prevent injury when he is the one that created the dangerous situation. Here, defendant had no part in creating the dangerous situation.

One exception is when the off-duty employee is on his employers premises or using its chattel, but neither were involved here.

Another exception is when the employer assumes a duty of control. This is what the plaintiffs allege happened, but that requires more than mere knowledge of the danger. There must be a custodial relationship where one is controlling the conduct of another and voluntarily assumes responsibility for that person. This clearly did not happen here. The basis of plaintiffs' complaint is that defendant failed to take charge of Matheson by not preventing him from leaving.

Otherwise, employers have no duty to control off-duty employees. To do detain their off-duty employees against their will would open up employers to liability for false imprisonment.

Although the majority says that it is not just knowledge that imposes liability and they claim other factors would apply, they do not actually reference this again or tie it into their point at all. The only possible other thing that could apply is that Matheson's supervised suggested that he go home.

The majority's three cases do not apply to these facts. The actual four closest cases have all found that no duty applies.

This rule would create many problems. Saying that defendant's failure to control Matheson was an affirmative act taking control of him, would eliminate the concept of omissions, nonfeasances, and inaction in Texas.

Social hosts and bars have a higher degree of culpability than employers. They intentionally provide alcohol. If negligence to stop someone's drinking imposes liability, lower courts will feel compelled to impose liability on anyone who furnishes alcohol to another.

The majority does not say what conditions an employee having will lead to the employer being liable. Under this logic, knowing that an employee has heart trouble or a vision problem would make an employer liable if he was sent home and such a condition caused an accident.

What else must an employer do? Most small businesses have no nurse's station for ill employees. Do employers have to physically restrain their incapacitated employees? That is not even legal for them to do.

This should be handled by the legislature. Although the majority says it has not adopted "dram shop" liability, such liability is more justifiable than imposing liability in this case is.

Liability cannot just be imposed because of the "particular" facts of this case. The majority's holding will make the public believe tort liability is just based upon who has the most money to pay the injured and not fault. It erodes the concept of individual responsibility for his actions.

This should be reversed and no liability should be imposed.