GUERRA IV v. FOWLER TRANSPORTATION LTD (2017)

MEMORANDUM OPINION

Appellants are the family members of three men who died in a car accident involving Eduardo Salazar, a Fowler Transportation employee who was off-duty and driving to work at the time of the accident. Appellants argue the trial court erred by rendering a take-nothing summary judgment on their negligence claim against Fowler for failing to warn Salazar of the dangers of fatigue. Because the Supreme Court of Texas has held that an employer has “no duty to prevent injury due to the fatigue of its off-duty employee or to train employees about the dangers of fatigue,” we affirm the trial court's judgment. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).

BACKGROUND

At approximately 5:18 a.m. on an early Saturday morning, Salazar was driving to work on a two-way two-lane highway. Salazar veered into the other lane and into oncoming traffic, ultimately striking the car in which three men were travelling. All three men and Salazar died in the accident.

Appellants sued Fowler, alleging Salazar fell asleep at the wheel due to fatigue because Fowler required Salazar “to work long, exhausting hours with very little rest.” They alleged Fowler had actual knowledge of Salazar's fatigue, and Fowler breached its duty to appellants by failing to properly train, supervise, and educate Salazar regarding the dangers of fatigue.

Fowler filed a traditional and no-evidence motion for summary judgment, in which Fowler argued it did not owe appellants a duty to train, supervise, or educate Salazar regarding the dangers of fatigue. Fowler produced uncontroverted evidence that Salazar was off-duty and driving in a personal car to work at the time of the accident. The trial court granted Fowler's motion and rendered a take-nothing judgment. Appellants timely appealed.

STANDARD OF REVIEW

“We review a summary judgment de novo.” City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 (Tex. App.—San Antonio 2000, pet. denied). To prevail on a traditional motion for summary judgment, the movant must show “there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law.” TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). “When a party moves for a no-evidence summary judgment, the nonmovant must produce some evidence raising a genuine issue of material fact.” Romo v. Tex. Dep't of Transp., 48 S.W.3d 265, 269 (Tex. App.—San Antonio 2001, no pet.) (citing TEX. R. CIV. P. 166a(i)). The nonmovant does not have the burden to marshal its evidence, but it must produce some evidence that raises a fact issue on the challenged element. Id. We take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the non-movants' favor, and “indulge every reasonable inference and resolve any doubts in the nonmovant's favor.” Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); City of San Antonio, 47 S.W.3d at 561.

AN EMPLOYER'S DUTY TO WARN AN EMPLOYEE OF THE DANGERS OF FATIGUE

Appellants argue Fowler had a duty to warn Salazar of the dangers of fatigue. In Nabors Drilling, U.S.A., Inc. v. Escoto, the Supreme Court of Texas explained, “Employers in Texas generally do not owe a duty to third parties for the tortious activities of off-duty employees occurring off the work site.” 288 S.W.3d at 403. Although the supreme court has recognized a limited exception, it held in Nabors Drilling that this limited duty does not “extend to an employer whose work conditions could induce extreme fatigue in its employees.” Id. at 403-04. The supreme court held an employer owes no duty to prevent injuries resulting from fatigue or to train or educate its employees about the dangers of fatigue. See id. at 404, 413.

Appellants argue the supreme court in Nabors Drilling “recognize[d] an employer owes a duty to properly warn employees of fatigue unless the risk is ‘appreciated’ by the employee.” In support of this proposition, appellants quote the following from Nabors Drilling:

In the employment context, an employer has a duty to warn an employee of the hazards of employment and provide needed safety equipment or assistance. The employee's age and experience in the work he is assigned should also be considered. However, the employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee. Likewise, we do not impose a duty to train employees regarding the commonly-known dangers of driving while fatigued.

Id. at 412-13 (citations and quotation marks omitted). “[A]n employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee.” Id. at 412 (emphasis added) (citing Jack in the Box, Inc. v. Skiles, 221 S.W.3d 566, 568 (Tex. 2007) (per curiam), for the proposition that an employer does not owe a duty to warn of hazards that are common and obvious to anyone). Thus, even if the employee does not already appreciate an employment-related hazard, an employer has no duty to warn if the hazard is commonly known. See id. The supreme court held in Nabors Drilling that “the risk associated with driving while fatigued is common knowledge.” Id. at 413. Because the hazard of driving while fatigued is commonly known, Fowler owed no duty to appellants to warn Salazar of the risks associated with driving while fatigued, even if Salazar failed to appreciate that hazard. See id.

CONCLUSION

Appellants acknowledge Nabors Drilling and the opinions on which it is based “essentially eliminate the duty of employers to third parties for the tortious activities of off-duty employees occurring off the work site.” Appellants describe this rule as “harsh.” However, “[i]t is not the function of a court of appeals to abrogate or modify established precedent.” Lubbock Cty., Tex. v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002). We affirm the trial court's judgment.

Luz Elena D. Chapa, Justice