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Pagayon v. Exxon Mobil Corp.

Supreme Court of Texas

June 23, 2017

Delia Pagayon, Michelle Fulton, Alfredo G. Pagayon, Michael G. Pagayon, and the Estate of Alfredo M. Pagayon, Petitioners,
Exxon Mobil Corporation, Respondent

          Argued December 6, 2016

         On Petition for Review from the Court of Appeals for the Fourteenth District of Texas

          Chief Justice Hecht delivered the opinion of the Court, in which Justice Green, Justice Johnson, Justice Willett, Justice Guzman, Justice Devine, and Justice Brown joined.

          JUSTICE LEHRMANN did not participate in the decision.

          Nathan L. Hecht Chief Justice

         Following personal disagreements and harsh words, one convenience store employee picked a fistfight with another employee and that employee's father on store premises. Tragically, the father later died, and his family sued the employer, alleging that its negligent supervision of its employees caused the decedent's death. Though one does not ordinarily have a duty to control others, we have held that employers sometimes have a duty to control their employees. We have never defined the contours of any general duty, and we do not do so today. We conclude only that an employer in the circumstances presented here has no such duty. We reverse the judgment of the court of appeals[1] and render judgment for the employer.


         Alfredo Pagayon, Jr. ("J.R."), 22, and Carlos Cabulang, 54, worked as cashiers at a Houston convenience store owned by Exxon Mobil Corporation ("Exxon"). Vong Vu and Jovita Leslie also worked there, and Roce Asfaw managed the store. J.R.'s father ("Alfredo"), 58, worked as a toll booth attendant for the Harris County Toll Road Authority but had once worked for Exxon. He and Roce were friends, and it was at his request that Roce had hired J.R. Carlos had also worked for the Authority, and he and Alfredo knew each other. J.R. did not have a car, so Alfredo drove him back and forth to work. When he did, Alfredo would usually go into the store, and he and Carlos would chat. It cannot be said that they were friends, but there certainly was no hostility between them.[2]

         Generally, J.R. thought the store had a family atmosphere and everyone got along very well. But Carlos had once asked him if he was having a sexual affair with Vong, who had given him a ride home, and though the exchange was "lighthearted"-J.R.'s word-J.R. felt like Carlos was harassing him. J.R. complained to Roce, who told him to just ignore Carlos. Roce never discussed the matter with Carlos.

          One Thursday night while J.R. was working by himself, two customers complained that the men's restroom door had an "out of order" sign on it. Carlos had worked the prior shift, and he and a co-worker, Mark, had left as J.R. arrived. Neither had said anything to J.R. about the restroom being out of order, and when J.R. checked, he found it was not. Concerned that the customers would complain to his manager, J.R. felt Carlos was harassing him again, and though he did not know who put the sign on the door, whether Carlos or Mark, or whether it was simply a mistake, he later complained to Roce. Roce again told J.R. to just stay away from Carlos and ignore him. She did not discuss the matter with Carlos. Carlos did not know J.R. was angry and thus never harassed or threatened to retaliate against J.R. for complaining to Roce.

         Early Friday morning, on the way home, J.R. was still upset and complained to his father about Carlos. When they arrived, Alfredo called Carlos on his cell phone and told him to stop harassing J.R. The two had a heated conversation, but after it was over, J.R. thought that everything was worked out and Carlos would leave him alone.

         The following Monday morning, Alfredo took J.R. to work and went into the store to talk with Roce. Neither Alfredo nor J.R. told Roce about Alfredo and Carlos's phone call three days earlier or suggested to her that there was any reason to fear violence from Carlos. Roce left the store mid-afternoon, 12 minutes before Carlos arrived for his shift.

         J.R.'s and Carlos's shifts were scheduled to overlap by 30 minutes. When Carlos entered the store at 3:34 p.m., [3] he immediately began screaming, cursing, and threatening J.R. and Alfredo (who was not yet there) repeatedly. J.R. was scared and told Jovita, who had not heard any of it. Jovita told Carlos to stop, but he refused, and J.R. asked Jovita to call Roce, which she did. Jovita told Roce that Carlos was threatening to beat J.R. up and asking him to go outside and fight. After she and Roce talked, Jovita told J.R. to stay away from Carlos. Roce did not speak with J.R. or Carlos herself or tell Jovita to have either or both of them leave the store since she knew J.R.'s shift was over at 4:00 p.m. J.R. did not call other higher-up managers or ask Jovita to do so.

         Things calmed down, and J.R. continued working past the end of his shift, side by side with Carlos, until 4:36 p.m., then waited around a few more minutes for his father to pick him up. When Alfredo entered the store at 4:48 p.m., Carlos immediately left his cash register, where two customers were waiting, and walked over to Alfredo, cursing him. Face to face, Carlos shoved Alfredo, and Alfredo shoved back. Carlos then punched Alfredo, and the two began to fight. Carlos also punched J.R., who entered the fray, punching Carlos several times. After Carlos knocked Alfredo down, J.R. put Carlos in a headlock and pushed him to the floor. When Carlos begged J.R. not to hit him again, J.R. desisted. The fight was over in a few seconds, less than a minute after Alfredo entered the store.

         Alfredo was complaining that he could not breathe, so J.R. called 9-1-1. Paramedics carried Alfredo from the store on a stretcher and took him immediately to a hospital, where his chest was x-rayed. The emergency room physician, Dr. Hung Hoang Dang, misread a dark space on the x-ray as an indication that Alfredo's left lung had filled with fluid and tried several times to insert a chest tube to drain it. In fact, Alfredo had been born without a left lung, which accounted for the dark space on the x-ray. From then on, Alfredo's condition deteriorated, and he died 23 days later from cardiac arrhythmia, respiratory failure, and renal failure. Sepsis, possibly resulting from the failed attempts to drain Alfredo's lung, most likely caused the organ failure.

         J.R. and his mother, brother, and sister ("the Pagayons") sued Exxon for wrongful death and, on behalf of Alfredo's estate, for survival damages. Exxon moved to designate Dang as a responsible third party, arguing that his negligent care was the true cause of Alfredo's death.[4] The trial court refused to allow the designation, concluding that as an emergency physician, Dang could not be liable for simple negligence but only for wilful and wanton negligence, [5] of which Exxon had produced no evidence. The trial court also refused to allow Exxon to put on evidence at trial about Alfredo's hospital care.

         The Pagayons asserted both that Exxon was responsible for Carlos's actions and that it was itself negligent in supervising Carlos and failing to take steps to prevent the fight from occurring. Roce testified that harassment and threats of violence should never be tolerated in the workplace; that a manager, alerted to a threat of violence, should do something about it; and that she believed she could have prevented the fight just by speaking to Carlos. She could also have sent J.R. home when Jovita called, as his shift had ended, or she could have sent Carlos home. But she explained that the harassment J.R. had complained of twice before had not been physical, and she thought nothing more was required. Carlos had no history of violent conduct, and Exxon's background check before hiring him revealed no criminal record.

         The jury failed to find that Carlos was acting in the scope of his employment during the fight, thus precluding Exxon from being vicariously liable. But the jury found that Exxon's negligent supervision of its employees, together with J.R.'s and Alfredo's negligence, caused Alfredo's death. The jury apportioned responsibility 75% to Exxon, 15% to J.R., and 10% to Alfredo. The Pagayons did not sue Carlos, Exxon did not move to name him as a responsible third party, and the jury was not asked to apportion responsibility to him. The jury awarded the Pagayons nearly $2 million in damages. The trial court rendered judgment on the verdict.

         Exxon appealed. It argued that it could not be liable because it had no duty to control Carlos, or if it did, there was no evidence it breached the duty-that is, no evidence that it negligently supervised Carlos-or that any negligent supervision caused Alfredo's death.[6] Exxon also argued that the trial court erred in refusing to allow Dang to be designated as a responsible third party.[7] The court of appeals rejected Exxon's no-liability arguments.[8] But on the designation issue, the court stated that a hospital emergency room physician is held to the same standard of care as any other physician, and responsibility for injury should be apportioned to him as to any other wrongdoer, although a claimant must prove wilful or wanton negligence to recover damages.[9] The panel split on whether Exxon had produced evidence that Dang was negligent, a majority holding that it had.[10]The court thus concluded that Exxon was entitled to designate Dang a responsible third party and include him in the jury's apportionment of responsibility for Alfredo's death. Accordingly, the court remanded the case for a new trial.[11]

         We granted the Pagayons' and Exxon's petitions for review.[12] The Pagayons argue that the trial court's judgment should have been affirmed. Exxon argues that it is entitled to rendition of judgment in its favor. We agree with Exxon and thus do not reach the Pagayons' arguments regarding the designation of Dang as a responsible third party.


         We have been quite clear: "The threshold inquiry in a negligence case is duty. . . . [T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question."[13] When a duty has not been recognized in particular circumstances, the question is whether one should be. In Humble Sand & Gravel, Inc. v. Gomez, [14] we explained how the existence of a duty is to be determined:

The considerations include social, economic, and political questions and their application to the facts at hand. We have weighed the risk, foreseeability, and likelihood of injury against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Also among the considerations are whether one party would generally have superior knowledge of the risk or a right to control the actor who caused the harm.[15]

         We recognized that some of these factors-risk and foreseeability are obvious examples-"may turn on facts that cannot be determined as a matter of law and must instead be resolved by the factfinder", but we noted that such cases are unusual.[16] One reason is that the factual situation presented must be evaluated in the broader context of similarly situated actors. The question is whether a duty should be imposed in a defined class of cases, not whether the facts of the case at hand show a breach. Another reason is that the material facts are either undisputed or can be viewed in the light required by the procedural posture of the case. In the present case, the facts material to the duty inquiry-the events leading up to Alfredo's injury-are essentially undisputed, and we view them in light of the verdict. The policy components of the factors-including the nature of the covered risks and general foreseeability-are policy issues for the court to consider as a matter of law. The factors determine how the class of cases in which the duty applies is to be defined and how that definition shapes the contours of the duty.

          No general duty to control others exists, but a special relationship may sometimes give rise to a duty to aid or protect others.[17] Employment is such a relationship.[18] We have acknowledged limited instances where an employer has a duty to control its employee and is directly liable when it fails to do so. For example, a night club that requires exotic dancers to consume alcohol with customers to the point of intoxication has a duty to take reasonable care to prevent them from driving home after work.[19] More broadly, an employer that exercises control over an employee because he has become intoxicated at work, even on the sly, without his employer's permission, has a duty to exercise reasonable care to ensure that he is not a risk to himself or others driving home.[20]

         In contrast to these narrow exceptions to the general rule, Section 317 of the Restatement (Second) of Torts describes a broad duty:

A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to ...

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