Introduction. In Texas, an employer is vicariously liable for the negligence of its employee, acting within the course and scope of employment, resulting in injuries to a third party. In the automobile accident case of EAN Holdings, LLC v Arce, 636 S.W.3d 290 (Tex. App.- Fort Worth 2021, pet. denied), the Fort Worth Court of Appeals considered whether EAN Holdings, LLC was vicariously liable for the negligence of EAN’s employee, Nelson, resulting in injuries to third party Guillermo Arce. Since Nelson was operating the EAN owned vehicle while he was on his way home from work, the court held that EAN was not vicariously liable for Nelson’s negligent operation of the EAN owned vehicle.

Background. On the date of the accident, Nelson was driving home from EAN’s branch office, in a car owned by EAN, and was involved in a motor vehicle accident resulting in injuries to Arce. As a result, Arce sued EAN for being vicariously liability for the negligence of Nelson. The jury found that Nelson was negligently operating the vehicle, within the course and scope of employment for EAN, and awarded Arce substantial damages. EAN challenged the verdict on appeal.

In analyzing whether EAN was vicariously liable, the Court of Appeals discussed  the common law doctrine of vicarious liability. “To establish that an employer is vicariously liable for an employee’s negligence, a plaintiff must prove that, at the time of the negligent conduct, the employee was acting in the course and scope of his employment.” Id at 295.

“On the evening in question, Nelson was driving home in an EAN personal-use vehicle after leaving work when he collided with Arce’s vehicle.³ Nelson’s plan had been to stop at a Whataburger to get dinner and then to go home. He was not conducting any EAN business at the time of the collision. Although he had his personal cell phone with him, he was not using it at the time of the collision. He had no plans to conduct any EAN business when he arrived home for the evening, and EAN, according to his area supervisor, did not expect him to work from home.⁴” Id. at 294.

The Court discussed the application of the coming-and-going rule as noted by the Supreme Court of Texas (SCOTX) in Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 128 (Tex. 2018). In Painter, SCOTX stated that under this rule an employer is not vicariously liable for the negligent operation of a motor vehicle by its employee, if the automobile accident occurs while the employee is traveling to or from the place of employment.

Holding. Based upon the coming-and-going rule, the Fort Worth Court of Appeals held that, as a matter of law, EAN was not vicariously liable for the negligence of Nelson since he was on his way home at the time of the automobile accident.