Court of Appeals of Texas, Fourth District, San Antonio
Monica GUERRA, Individually and on behalf of the Estate of Gilberto Guerra and as Next Friend of Naomi Guerra; Zaira Rodriguez, Individually and on Behalf of the Estate of Hilario Rodriguez, and as Next Friend of Hilario Rodriguez, Jr.; Marivel Romero, Individually and on Behalf of the Estate of Rolando Romero, and as Next Friend of Ricardo Romero; Rosa Reyes, as Next Friend of Jose Gilberto Guerra, IV; Rolando Romero, Jr.; Patricia De La Cruz; Rafael Romero; Hilario Rodriguez Salinas; and Elva Anita Delgado Morales, Appellants
FOWLER TRANSPORTATION, LTD., Appellee
the 293rd Judicial District Court, Dimmit County, Texas Trial
Court No. 15-08-12674-DCV Honorable Larry Noll, Judge
Sitting: Rebeca C. Martinez, Justice Patricia O. Alvarez,
Justice Luz Elena D. Chapa, Justice
Elena D. Chapa, Justice
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).
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.
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
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.
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.
Employer's Duty to Warn an Employee of the Dangers of
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.
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
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 ...