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.
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.