IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 04-0666

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Loram Maintenance = of Way,=20 Inc.,

Petitioner,

David = Ianni,

Respondent

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On Petition for Review from = the

Court of Appeals for the Eighth = District of=20 Texas

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Argued November=20 29, 2005

Justice Green delivered the = opinion of=20 the Court.

Justice O=92Neill filed a = concurring=20 opinion, in which Chief = Justice=20 Jefferson joined.

In = general,=20 an employer owes no duty to protect the public from the wrongful acts of = its=20 off-duty employees that are committed off the work site unless the = employer=20 exercises control over the employees=92 off-duty activities that cause = harm.=20 See Otis Eng=92g Corp. v. Clark, 668 S.W.2d 307, 309, 311 (Tex. = 1983).=20 Here, we are asked to decide whether an employer owes a duty to protect = the=20 public from an employee=92s wrongful off-duty conduct, even though the = employer=20 exercised no control over the employee=92s off-duty activities, because = the=20 employer knew its employee was drug-impaired and had threatened violence = to=20 others. We conclude that the employer owes no such duty.

I. Factual Background

Loram=20 Maintenance of Way, Inc. refurbishes railroad tracks by utilizing a very = large,=20 complex machine that rides along the rails while grinding the rails back = into=20 their proper profile. Because of the nature of the work, Loram=92s = employees are=20 constantly on the road, working twelve-hour shifts. They travel with = their=20 families, staying in motels paid for by Loram.

Roger Tingle=20 worked for Loram and traveled with his wife. Tingle was also an = enthusiastic=20 participant in an illegal drug culture that was allowed to flourish = among the=20 employees at Loram. He had been using methamphetamine on and off the job = for ten=20 months before the incident that led to this lawsuit. He testified that = he only=20 took the drug for recreational purposes, or to stay awake during work = after=20 partying,[1] but there was also evidence = that=20 Tingle=92s supervisor and co‑workers used the drug, and that = Tingle=92s supervisor=20 had given Tingle time off to purchase more.

Because of=20 his heavy methamphetamine use, Tingle became moody and mentally = unstable. In the=20 weeks and days leading up to the incident, Tingle was seen using the = drug at=20 work, and he threatened one of his wife=92s friends with a knife. Those = incidents=20 were reported to Loram management.

On = the day of=20 the incident, while at work, Tingle reportedly spoke of attacking his = wife.=20 After their shift ended, he and his co-workers were driven back to the = motel=20 where they were housed with their families. Later that day, Tingle got = into an=20 argument with his wife, forced her into their car, and began to drive = out of the=20 motel parking lot. When he threatened his wife with a gun, she jumped = out of the=20 car screaming for help. David Ianni, an El Paso police officer, was = leaving a=20 nearby restaurant when he witnessed the altercation and went to her aid. = When=20 Tingle got out of his car to pursue his wife, Ianni tried to intervene. = Tingle=20 then shot Ianni, seriously injuring him.

Ianni sued=20 Loram, claiming it was negligent in retaining an incompetent, unfit, or=20 dangerous employee; in failing to properly control and supervise Tingle; = and in=20 encouraging drug use. He also claimed Loram aided and abetted Tingle=92s = drug use.=20 The jury found Loram=92s negligence proximately caused Ianni=92s = injuries and that=20 Loram=92s supervisors were vice principals. Ianni was awarded $800,000 = in actual=20 damages and $500,000 in punitive damages. The Eighth Court of Appeals = affirmed=20 the trial court=92s judgment, holding that Loram owed Ianni a duty = because of its=20 negligent exercise of control over Tingle while he was incapacitated. = 141 S.W.3d=20 722, 729 (Tex. App.=96El Paso 2004, pet. granted) (citing Otis = Eng=92g, 668=20 S.W.2d at 311). Loram contends it owed no duty to Ianni because, even if = it was=20 negligent in supervising Tingle while he was on duty, it did not = exercise any=20 control over Tingle=92s wrongful activities while he was off duty. We = granted=20 Loram=92s petition for review to decide the duty issue. 48 Tex. Sup. Ct. J. 1042 (Sept. = 16, 2005).=20

II. Law of the Case

We = first=20 address Ianni=92s argument that Loram=92s duty issue should not be = reviewed in this=20 appeal because it was decided in a previous appeal and is now the =93law = of the=20 case.=94 See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. = 1986). Loram=20 initially obtained a summary judgment that it owed no duty to Ianni. = Ianni=20 appealed, and the court of appeals held that the summary judgment in = Loram=92s=20 favor was improper on the duty issue and remanded the case to the trial = court.=20 Ianni v. Loram Maint. of Way, Inc., 16 S.W.3d 508, 527 (Tex. = App.=96El Paso=20 2000, pet. denied) (=93Ianni I=94). Loram then petitioned for = review in this=20 Court, which we denied. 43 Tex. Sup. Ct.=20 J. 1213 (Sept. 14, 2000). Our denial of the petition for review = in=20 Ianni I does not preclude us from reviewing the duty issue = now.

=93The =91law of=20 the case=92 doctrine is defined as that principle under which questions = of law=20 decided on appeal to a court of last resort will govern the case = throughout its=20 subsequent stages.=94 Hudson, 711 S.W.2d at 630. We have held = that=20 declining to review a case is not evidence that the Court agrees with = the law as=20 decided by the court of appeals. See Trevino v. Turcotte, 564 = S.W.2d 682,=20 685 (Tex. 1978) (holding that a court of appeals=92 conclusion was not = binding=20 under the =93law of the case=94 doctrine when the petitioner=92s first = writ of error=20 was denied by this Court as =93writ refused, no reversible error=94); = City of=20 Houston v. Jackson, __ S.W.3d ___, ___ (Tex. 2006) (holding that = even though=20 a previous petition for review on the matter was dismissed by this = Court, the=20 Court could review the issue in a later petition to this Court after = remand).=20 The denial or dismissal of a petition does not give any indication of = this=20 Court=92s decision on the merits of the issue. See Tex. R. App. P. 56.1(b)(1); = Matthews=20 Constr. Co., Inc. v. Rosen, 796 S.W.2d 692, 694 n.2 (Tex. 1990). = Since the=20 =93law of the case=94 doctrine is inapplicable, we will address = Loram=92s complaint=20 that it owed no duty.

III. Employer Liability for Employee=92s Off-Duty = Conduct

=93Under Texas=20 law, in the absence of a relationship between the parties giving rise to = the=20 right of control, one person is under no legal duty to control the = conduct of=20 another, even if there exists the practical ability to do so.=94 = Graff v.=20 Beard, 858 S.W.2d 918, 920 (Tex. 1993). The employer-employee = relationship=20 can give rise to this kind of duty. Greater Houston Transp. Co. v.=20 Phillips, 801 S.W.2d 523, 525 (Tex. 1990). But it is a narrow duty;=20 typically an =93employer is liable only for the off-duty torts of his = employees=20 which are committed on the employer=92s premises or with the = employer=92s chattels.=94=20 Otis Eng=92g, 668 S.W.2d at 309.[2] In addition, =93when, = because of an=20 employee=92s incapacity, an employer exercises control over the = employee, the=20 employer has a duty to take such action as a reasonably prudent employer = under=20 the same or similar circumstances would take to prevent the employee = from=20 causing an unreasonable risk of harm to others.=94 Id. at 311 = (citing=20 without adopting Restatement = (Second) of=20 Torts =A7 319 (1965) (=93One who takes charge of a third = person whom he=20 knows or should know to be likely to cause bodily harm to others if not=20 controlled is under a duty to exercise reasonable care to control the = third=20 person to prevent him from doing such harm.=94)); see Greater Houston = Transp.=20 Co., 801 S.W.2d at 526 (=93We imposed the duty upon the employer [in = Otis=20 Engineering], not because of the mere knowledge of the intoxication, = but=20 because of the employer=92s negligent exercise of control over = the=20 employee.=94).[3]

Therefore,=20 simply knowing that an employee is intoxicated or incapacitated is not = enough=20 for a duty to arise. Otis Eng=92g, 668 S.W.2d at 309; Greater = Houston=20 Transp. Co., 801 S.W.2d at 526. Rather, the employer must = affirmatively=20 exercise control over the incapacitated employee. See Otis = Eng=92g, 668=20 S.W.2d at 309, 311. Once affirmative action has been taken for the = benefit of=20 another, the employer has a duty to act with reasonable care, even if = the=20 employer initially had no duty to act. Id.; see also Colonial = Sav.=20 Ass=92n v. Taylor, 544 S.W.2d 116, 119-20 (Tex. 1976) (=93[O]ne who = voluntarily=20 undertakes an affirmative course of action for the benefit of another = has a duty=20 to exercise reasonable care that the other=92s person or property will = not be=20 injured thereby.=94). Thus, while an employer owes no duty to act to = control the=20 conduct of an impaired off-duty employee, if the employer does decide to = act,=20 its duty is =93to avoid any affirmative act which might worsen the = situation.=94=20 Otis Eng=92g, 668 S.W.2d at 309.

In = Otis=20 Engineering, the employer knew that the employee was intoxicated and = sent=20 him home because of his intoxication. Id. at 308. While driving = home, the=20 employee caused a fatal accident. Id. This Court held that the = employer=20 owed a duty to third persons, not because it knew its employee was = intoxicated,=20 but because the employer decided to deal with its employee=92s = intoxication by=20 exercising affirmative control, including suggesting that he drive home. = Id. at 311. In other words, when the employer acted, it made the=20 situation worse.

In = this case,=20 the shooting incident did not occur until at least an hour after Tingle = was=20 already off duty and at the motel. There is no evidence that Loram was=20 exercising any control over Tingle at that time because of his agitated = mental=20 state or for any other reason. Instead, the evidence shows only that = Loram=20 employees knew Tingle was agitated when he was driven to the motel when = his=20 shift ended.[4] And as we have stated, mere = knowledge=20 of an impaired condition is not sufficient to impose a duty. Otis = Eng=92g,=20 668 S.W.2d at 309; Greater Houston Transp. Co., 801 S.W.2d at = 526.

Ianni=20 additionally argues that, even if Loram did not exercise affirmative = control=20 over Tingle in response to his agitated mental state, it owed a duty to = Ianni=20 under our holding in Texas Home Management v. Peavy, 89 S.W.3d 30 = (Tex.=20 2002). In Peavy, we held that a facility for mentally-impaired = residents,=20 which was required to supervise and control the comings and goings of = those=20 state-ordered residents, could have a duty to exercise proper control = over its=20 residents. See id. at 32, 39. However, duties involving = responsibility=20 for another=92s actions are based on a number of factors, including the = kind of=20 relationship between the parties. Id. at 33-34. The relationship = in=20 Peavy was one where the facility had continuous, supervisory = control over=20 a mentally-impaired resident because the state had ordered him to live = there.=20 Id. at 32, 34. That is significantly different from the = relationship=20 between employers and employees, where supervision and control are = usually based=20 on a limited work task or period. The duty standard in Peavy does = not=20 apply to this case.

*=20 * *

Based on the=20 facts surrounding the occurrence in question, we conclude that Loram = owed no=20 duty to Ianni with respect to Tingle=92s off-duty conduct.[5] Because Loram owed no duty, = we need=20 not reach the remaining issues. We Reverse the court of = appeals=92 judgment=20 against Loram and Render a=20 take-nothing judgment in Loram=92s favor.

_____________________________

PAUL W.=20 GREEN

JUSTICE

OPINION DELIVERED: = June 30, 2006=20

^[1] Tingle and other members of the crew used=20 methamphetamine to =93party=94 and would not sleep for days. = Consequently, they=20 would have to take even more methamphetamine to be awake enough to work. =

^[2] Ianni does not contend that the shooting = incident=20 occurred at a site controlled by Loram or that Tingle was using company=20 equipment at the time.

^[3] We also note that section 317 of the = Restatement says=20 that an off-duty employee must be using company equipment or property at = the=20 time of the incident for the employer to have a duty to third parties = for the=20 employee=92s conduct. See Restatement (Second) of Torts=20 =A7 317 (1965) (stating that an employer has a duty to = exercise=20 reasonable care to keep an employee from causing an injury to others if = the=20 employee is off duty but using company equipment or on company property = at the=20 time of the incident).

^[4] It is not clear whether Tingle=92s supervisor = was aware=20 of his condition at this time or whether the supervisor=92s knowledge = would be=20 sufficient to bind the company. But for purposes of this analysis, we = assume=20 without deciding both that the supervisor knew and that his knowledge = was=20 binding on the company.

^[5] =93[T]he existence of duty is a question of = law for the=20 court to decide from the facts surrounding the occurrence in = question.=94=20 Greater Houston Transp. Co., 801 S.W.2d at=20 525.