The Texas Supreme Court recently issued an opinion that introduced a two-step process for proving an employer's vicarious liability for a worker's negligence. In Painter, et al v. Amerimex Drilling I, Ltd. ___ S.W.3d ____ (Tex-2018), Sandridge Energy Inc. (Sandridge) hired Amerimex Drilling I, Ltd. (Amerimex) to drill oil and gas wells on the Longfellow Ranch in Pecos County, Texas. Amerimex provided mobile bunkhouses for its crews. Longfellow Ranch did not allow the mobile bunkhouses to be located at the drilling site so the houses were set up approximately 30 miles away to Fort Stockton. The contract between Sandridge and Amerimex provided that Amerimex would invoice Sandridge for and pay each driller to receive $50/day to drive a crew out to the well location. Amerimex did not require its crew to stay in the bunkhouse or ride with the driller. Amerimex placed no restrictions on what route they took between the bunkhouse and the drilling site or where they stopped along the way.

J.C. Burchett was a driller and was paid the daily bonus to drive a crew between the bunkhouse and the ranch in his own truck. Burchett was driving his crew from the ranch to the bunkhouse at the end of a work day when the crew was involved in an accident resulting in the death of two co-workers and injuring Burchett and Steven Painter. Painter filed suit against Burchett, Amerimex, and Sandridge alleging negligence and that Sandridge and Amerimex were vicariously liable for Burchett's negligence.

The Texas Supreme Court focused on the fact that Burchett was paid to drive the crew to the worksite. The Court dispelled the notion that the contract only provided that Burchett was to drive the crew to the worksite, and that because the accident occurred driving the crew away from the worksite, there should be no liability. The Court held that common sense says that the crew shouldn't be stranded at the end of the work day. The Court also found little credence in the fact that Amerimex did not control the route in which to take the crew, holding that Amerimex had control, it just simply chose not to exert it.

In their opinion, the Court held that proving an employer's vicarious liability for a worker's negligence involves a two-step process: the 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.

The employment-status inquiry involved in step one depends on whether the employer has the overall right to control the progress, details, and methods of operations of the work, whether or not it chooses to exercise that right as to any particular task.

The "course and scope" inquiry under step two involves an objective analysis, hinging on whether the employee was performing the tasks generally assigned to him in furtherance of the employer's business. The employee must be acting with the employer's authority and for the employer's benefit.

The Texas Supreme Court also confirmed that the "coming-and-going" rule, under which an employee is generally not acting within the scope of his employment when travelling to and from work, applies to the vicarious liability context. The Court did however recognize an exception for when such travel involves the performance of regular or specifically assigned duties for the benefit of the employer.

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