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Many employers depend on employees being able to get to work from remote locations.  To improve the process, some employers encourage employees to set up car pools or van pools, sometimes paying the driver for his services.  Complex issues arise if there is a traffic accident and injury going to and from work, raising the question of employer liability. 

A recent state court case in Texas addresses these issues in Painter v. Amerimex Drilling, 40 IER Cases 1516 (Texas Court of Appeals, Nov. 3, 2015).  The employer paid each driver a bonus of $50 a day to drive their crew to and from the work site.  There was no requirement that the employees ride with the driver, and on one occasion there was a wreck and the driver and the passengers were killed or seriously injured.  The driver sought workers' compensation benefits, necessarily contending that he was injured in the course and scope of employment at the time of the accident.  For reasons addressed later, the employer also urged that the driver was in the course and scope of his employment.  The workers' compensation division in Texas found that the driver's injury was compensable under workers' compensation because he was paid to transport the employees to and from the work site and was directly furthering the business interests of the employer.

None of the passengers, however, filed claims for workers' compensation benefits.  The employer actually attempted to initiate benefit proceedings on their behalf, contending that when an employee driver of the vehicle is in the course and scope of employment, so too would any employee passenger.  The Texas Workers' Compensation Division found the employer lacked standing to initiate benefit proceedings on the passengers' behalf, and even if it did, the employee passengers did not sustain compensable injuries. 

Two of the passengers were killed in the crash, and a third seriously injured.  The three passengers sued the driver, the employer and various other entities, for negligently causing the accident of running into the back of another vehicle.  The employer contended that all of the employees were in the course and scope of employment and their exclusive remedy was under the Texas worker's compensation laws, otherwise barring claims against the employer.  Alternatively, they claimed in defense that none of the employees, including the driver, were in the course and scope of employment and thus it owed no duty to them and there was no liability.

The court noted there were limitations to employer liability, as the employer may only be held liable for the tortious acts of an employee committed within the course and scope of employment.  An employee traveling to and from work is generally not in the course and scope of his employment, but instead has risks attendant to transportation which are not unique to the workplace, but are shared by the motoring public as a whole.

The court noted that the workers' compensation laws represent a statutorily imposed compromise between the worker and employer whereby workers forfeit their right to sue the employer in exchange for certain, but more limited benefits.  It is liberally construed in favor of the employee.  Therefore, the statutory definition of course and scope of employment found in the workers' compensation laws may lead to different outcomes than those based upon vicarious liability tort laws on one party for the conduct of another, a concept which is generally a pure policy question of allocation of risk.  Regarding the latter issue, the court found that a plaintiff seeking to impose vicarious liability on an employer for the acts of a traveling employee needs to show not only that the transportation originated and furthered the employer's business, but also that the employer controlled in some way the transportation as to the details of the work (the drive) through such means as directing the route.  The court found that if the employer was liable for the driver's conduct while car pooling simply because it passed along payments for that car pooling, or even having encouraged it, the employer would have every incentive to end that practice.  Generally, the employer owes no duty for the actions of its off-duty employees.  The only exception is where the employer exercises control over the off-duty employee.  Therefore, the court found that the employer would need to retain the right to exercise some control over how the driver transported his crew, as a predicate to shifting the risk of any accident to it.

The court ruled for the employer on the basis that there was no evidence that the employer had or exercised any control over the manner of transportation - the type of vehicle used, the qualifications of the driver, the number of passengers, or any other issues which might implicate the right of control that justifies shifting the risk of loss from one party to another. 

Editor's Note:  This was a close case, and it should also be noted that the laws of each state may vary somewhat in the application of these principles.  The main point of discussing the case is to sensitize the employers to the issue, as many employers encourage car pooling, van pooling, and the like. 

Wimberly, Lawson, Steckel, Schneider & Stine

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