Employer Liability for Acts of Employee | Texas Supreme Court Revisits Vicarious Liability, the “Come-And-Go” Rule, and the “Special-Mission” Exception

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Cory D. Halliburton

Cory D. Halliburton



Cory Halliburton serves as general counsel and business adviser to a nationwide nonprofit / tax-exempt client base, as well as for multi-state professional service companies. He is a results-oriented attorney, with executive-level strategy and an understanding of the intersection of law and business judgment. With a practical upbringing, he pushes for process-driven results in internal governance, strategy and compliance with employment law, and complex or unique contracts and business relationships.

He dedicated the first ten years of his practice to mainly commercial litigation matters in West Texas and the Dallas-Fort Worth Metroplex. During that experience, Mr. Halliburton transitioned his practice to a more general counsel role, with an emphasis on nonprofit and tax-exempt organizations, advising those organizations through formation, dissolution, litigation, governance, leadership succession, employment law, contracts, intellectual property, tax exemption issues, policy creation, mergers and other. He has served as borrower’s counsel for tax-exempt bond and loan transactions near $100 million aggregate; some with complex pre-issue construction, debt payoff and other debt financing challenges.

Mr. Halliburton also serves as outside legal and business advisor for executive professionals in multi-state engineering firms, with a focus on drafting and counsel on significant service agreements, employment law matters, and protection of trade secrets.

On December 30, 2022, the Texas Supreme Court issued its opinion in Cameron International Corporation v. Martinez, __ S.W.3d __, 2022 WL __ (Tex. Dec. 30, 2022) (per curiam) (“Cameron”). The opinion addresses vicarious liability, the “coming-and-going rule”, and the special-mission exception to that rule, all being important legal concepts for any employer to appreciate.

The issue in the case was whether an oilfield worker acted within the course and scope of his employment when he was involved in a deadly car accident on the way back to a worksite after having dinner with his supervisor and stopping to purchase personal necessities for the worksite.

The employee in question, John Mueller (Mueller), was assigned to work at the oilfield drilling site from June 5 to June 8, 2015. On June 8th, he completed his shift. His employer, Cameron, released him from the particular job, but Mueller’s supervisor asked him to remain on voluntary standby for potential work at a different site the next day. The supervisor also invited Mueller to dinner in a nearby city. Mueller accepted the invitation. After dinner, Mueller drove to a store to purchase food, drink and fuel. Mueller planned to spend the night at the Cameron worksite trailer.

On the drive back to the site, Mueller was involved in a car accident that injured two and killed two in the other vehicle. The accident survivors and the decedents’ estates sued Mueller and Cameron, among others, alleging that Mueller was negligent and claiming that Cameron was vicariously liable for Mueller’s negligence. On summary judgment, the trial court found that Cameron was not vicariously liable for Mueller’s conduct because he was not an employee nor acting within the scope of employment at the time of the accident. The court of appeals reversed, holding that material issues of fact issues existed on those employment matters. Cameron sought review from the Texas Supreme Court.

Texas Supreme Court Holding. A personal trip for groceries does not fall within the special‑mission exception to the general rule that an employer is not vicariously liable for an employee’s negligent acts while the employee travels to and from work. Neither Cameron nor its supervisory personnel directed Mueller to travel for dinner or to purchase personal necessities. Mueller was not acting within the scope of Cameron’s authority at the time of the accident. Thus, Cameron was not, as a matter of law, vicariously liable for the alleged negligence of Mueller.

Respondeat Superior, or Vicarious Liability. As a general rule, a person has no duty to control another’s conduct. However, under the common-law doctrine of respondeat superior, or vicarious liability, liability for one person’s fault may be imputed to another solely because of the relationship between them. Respondeat superior constitutes an exception to the general rule. The employer-employee relationship is one that implicates the vicarious liability doctrine’s risk-shifting policies. In this regard, an employer is vicariously liable for its employee’s negligent acts if those acts are within the course and scope of his or her employment. To prove an employer’s vicarious liability for a worker’s negligence, the party-plaintiff must show that, at the time of the negligent conduct, the worker (1) was an employee and (2) was acting in the course and scope of his employment. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130-31 (Tex. 2018).

“Coming-And-Going” Rule and The Special Mission Exception. Under the “coming‑and‑going rule,” an employee does not act within the course and scope of his or her employment when traveling to and from work. The rationale behind that rule is that travelers on public roads are equally susceptible to the hazards of doing so, whether employed or not. See Cameron at pg. 5; Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241‑42 & nn.6‑7 (Tex. 2010). But, Texas law provides for a special‑mission exception to the “coming-and-going rule.” The special-mission exception may apply when “travel involves the performance of regular or specifically assigned duties for the benefit of the employer.” Cameron at pg. 5; Painter, 561 S.W.3d at 139. For example, an employee may be on a special mission when traveling to an employer‑mandated seminar. Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 356 (Tex. App.—El Paso 1993, no writ). The Cameron court stated as follows on this subject:

“Not every journey . . . falls within the course and scope of an employment relationship. To except from the general rule Mueller’s travel to obtain personal groceries and fuel at his choice—and not at Cameron’s direction—would turn nearly any personal grocery errand into a special mission on an employer’s behalf, a concept that we rejected in Painter. Workers often travel for personal necessities during the workday or leave for a meal before returning to work, but these activities do not arise from the business of the employer. Rather, they are daily tasks in which workers and nonworkers alike engage, carrying the same attendant risks.  . . . A worker’s choice to share personal supplies [with co-workers] . . . does not transform their acquisition into a special mission for an employer.”

Cameron at pg. 6 (internal citations omitted).

Imposing vicarious liability in a particular special-mission exception or coming-and-going instance “‘hinges on an objective assessment of whether the employee was doing his job’” at the time. Cameron at pg. 8; Painter, 561 S.W.3d at 132. The courts evaluate this issue on a facts-and-circumstances basis. Travel allowance alone may not trigger the exception. That the employee recovered workers’ compensation benefits from an injury sustained in the incident may also not be sufficient to trigger the exception because the distinction between statutory workers’ compensation claims and the imposition of vicarious liability under the common law are not the same. “Though the Texas Workers’ Compensation Act may define injuries arising from trips for necessities as compensable, such trips are not generally special missions within the course and scope of employment under the doctrine of respondeat superior.” Cameron at pg. 9.

Insights. Cameron illustrates the responsibility that employers have (or may be alleged to have) for the conduct of their employees. Because of a supervisor’s polite invitation that an employee join the supervisor for dinner following a work shift, the employer found itself defending a wrongful death lawsuit arising from a car accident allegedly caused by the employee. Whether Cameron had and used (or ignored) any employment policies relevant to the supervisor or Mueller’s conduct is not discussed in the opinion. But, employers are wise to develop and use employment policies applicable to employee travel, driving, and participation in social events. Employment policies may incorporate the “coming-and-going rule” as well as a special-mission exception so that an employer can better manage or defend itself from the potential for liability that may arise from an employee’s off-site actions. Having represented employers for near 20 years, I fully appreciate that policies as such can serve as both sword and shield in employee management matters as well as third-party liability scenarios such as the tragic incident forming the basis of Cameron.

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