OTIS ENGINEERING CORPORATION, Petitioner, v. Larry CLARK et al., Respondent, 668 S.W.2d 307

KILGARLIN, Justice. This is a wrongful death action instituted by Larry and Clifford Clark against Otis Engineering Corporation after the Clarks’ wives were killed in an automobile accident involving an Otis employee, Robert Mathe-son. At the time of the accident Matheson was not in the course of his employment. The trial court granted Otis’ motion for

summary judgment. The court of appeals reversed and remanded the cause for trial, holding there were genuine issues of fact. 633 S.W.2d 538. We affirm the judgment of the court of appeals. Two questions are presented. First, does the law impose any duty upon Otis under the evidence as developed? Secondly, does such evidence give rise to any genuine issues of material fact? Matheson worked the evening shift at Otis’ Carrollton plant. He had a history of drinking on the job, and was intoxicated on the night of the accident.

At his dinner break that night and on other occasions that day he. went to the parking lot, where he allegedly consumed alcoholic beverages in his automobile. Donald Roy was Mathe-son’s supervisor and Rennie Pyle was a co-worker who assisted Matheson on occasion.

Pyle testified that he knew of Matheson’s drinking problems and that he told Roy on the day of the accident that Matheson was not acting right, was not coordinated, was slurring his words, and that “we need to get him off the machines.” David Sártain, a fellow worker, testified that Matheson was either sick or drinking, was getting worse, “his complexion was blue and like he was sick,” and that he was weaving and bobbing on his stool and about to fall into his machine. The supervisor testified that he observed Matheson’s condition and was aware that other employees believed he should be removed from the machine.

When Matheson returned from his dinner break, Roy suggested that he should go home. Roy, as he escorted Matheson to the company’s parking lot, asked if he was all right and if he could make it home, and Matheson answered that he could. Thirty minutes later, some three miles away from the plant, the fatal accident occurred. Dr. Charles S.

Petty, the medical examiner, testified that Matheson had a blood alcohol content of 0.268% which indicated he had ingested a substantial quantity of alcohol, an amount representing some sixteen to eighteen cocktails if consumed over a period of one hour, or twenty to twenty-five cocktails if consumed over a period of two hours. The doctor stated that persons working around Matheson would undoubtedly have known of his condition, expressing his opinion that one hundred percent of persons with that much alcohol exhibit signs of intoxication observable to the average person.

Matheson’s extreme state of intoxication was well known to his supervisor and fellow workers. The testimony indicated the supervisor knew Matheson was in no condition to drive home safely that night. When some night shift employees came to work around 10:30 p.m. and remarked there had been an accident on Belt Line Road, Roy immediately suspected Matheson was involved. Roy testified he feared Matheson might have an accident, knowing that Matheson had to drive on heavily traveled Belt Line Road to reach home.

Upon hearing of the accident, Roy, acting on a hunch, voluntarily went to the police station to see if Matheson was involved. The Clarks contend that under the facts in this case Otis sent home, in the middle of his shift, an employee whom it knew to be intoxicated. They aver this was an affirmative act which imposed a duty on Otis to act in a non-negligent manner. Cf. Osuna v. Southern Pacific Railroad, 641 S.W.2d 229 (Tex.1982). This action by Otis subjected Matheson and other motorists to the dangers of an accident on the highway.

The Clarks further contend that Otis maintained a nurses’ station on the premises for the benefit of ill or disabled employees. Although Otis provided this facility to aid employees in situations such as this, the supervisor chose instead to accompany Matheson to the parking lot and send him out on the highway, even though he had foreseen the possibility of an accident. The Clarks likewise maintain that Roy had other alternatives which the jury could find to be more reasonable, such as taking Matheson to the nurses’ station, giving him a ride home, or calling a taxi, the police, or Matheson’s wife.

The Clarks state that fact questions exist as to whether Otis was negligent in sending Matheson home in an obviously intoxicated condition and whether such negligence was a proximate cause of the Clarks’ deaths. Otis’ motion for

summary judgment was granted on the basis that as a matter of law Otis owed no duty to the Clarks. In order to establish tort liability, a plaintiff must initially prove the existence and breach of a duty owed to him by the defendant. Abalos v. Oil Development Co. of Texas, 544 S.W.2d 627, 631 (Tex.1976). As a general rule, one person is under no duty to control the conduct of another, Restatement (Second) of Torts § 315 (1965), even if he has the practical ability to exercise such control. Trammell v. Ramey, 231 Ark. 260, 329 S.W.2d 153 (1959).

Yet, certain relationships do impose, as a matter of law, certain duties upon parties. See e.g., Restatement (Second) §§ 316-20. For instance, the master-servant relationship may give rise to a duty on the part of the master to control the conduct of his servants outside the scope of employment. This duty, however, is a narrow one. Ordinarily, the employer is liable only for the off-duty torts of his employees which are committed on the employer’s premises or with the employer’s chattels. Restatement (Second) § 317.

Though the decisional law of this State has yet to address the precise issues presented by this case, factors which should be considered in determining whether the law should impose a duty are the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury and consequences of placing that burden on the employer. See Robertson v. LeMaster, 301 S.E.2d 563 (W.Va.1983); Turner v. Grier, 43 Colo.App. 395, 608 P.2d 356 (1979).

While a person is generally under no legal duty to come to the aid of another in distress, he is under a duty to avoid any affirmative act which might worsen the situation. See W. Prosser, The Law of Torts § 56 at 343 (4th ed. 1971). One who voluntarily enters an affirmative course of action affecting the interests of another is regarded as assuming a duty to act and must do so with reasonable care. Colonial Savings Ass’n v. Taylor, 544 S.W.2d 116 (Tex.1976); Fox v. Dallas Hotel Co., 111 Tex. 461, 240 S.W. 517 (1922); see W. Prosser, supra, § 56.

Otis contends that, at worst, its conduct amounted to nonfeasance and under established law it owed no duty to the Clarks’ respective wives. Otis further says that by imposing liability for the acts of its intoxicated employee, this Court would be judicially creating “dram shop” liability. We disagree. This is not a “dram shop” case. If a duty is to be imposed on Otis it would not be based on the mere knowledge of Matheson’s intoxication, but would be based on additional factors. Traditional tort analysis has long drawn a distinction between action and inaction in defining the scope of duty.

Dean Prosser attributes this distinction to the early common law courts’ preoccupation with “more flagrant forms of misbehavior [rather than] with one who merely did nothing, even though another might suffer harm because of his omission to act.” W. Pros-ser, supra, at 338. However, although courts have been slow to recognize liability for nonfeasance, “[djuring the last century, liability for ‘nonfeasance’ has been extended still further to a limited group of relations, in which custom, public sentiment and views of social policy have led the courts to find a duty of affirmative action.” Id. at 339.

Be that as it may, we do not view this as a ease of employer nonfea-sance. What we must decide is if changing social standards and increasing complexities of human relationships in today’s society justify imposing a duty upon an employer to act reasonably when he exercises control over his servants. Even though courts have been reluctant to hold an employer liable for the off-duty torts of an employee, “[a]s between an entirely innocent plaintiff and a defendant who admittedly has departed from the social standard of conduct, if only toward one individual, who should bear the loss?” W. Prosser, supra, at 257.

Dean Prosser additionally observed that “[tjhere is nothing sacred about ‘duty,’ which is nothing more than a word, and a very indefinite one, with which we state our conclusion.” Id. During this year, we have taken a step toward changing our concept of duty in premises cases. In Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex.1983), we held that a store owner has a duty to guard against slips and falls if he has actual or constructive knowledge of a dangerous condition and it is foreseeable a fall would occur.

We now leave to the jury exclusive determination of the matter if evidence exists that the store owner had the requisite knowledge of the dangerous premises condition. No longer do we require knowledge of the specific object. Following Corbin, why should we be reluctant to impose a duty on Otis? As Dean Prosser has observed, “[cjhanging social conditions lead constantly to the recognition of new duties. No better general statement can be made, than the courts will find a duty where, in general, reasonable men would recognize it and agree that it exists.” W. Prosser, supra, at 327.

If, as Prosser asserts should be done, we change concepts of duty as changing social conditions occur, then this case presents the Court with the opportunity to conform our conception of duty to what society demands. Several recent cases in other jurisdictions have extended concepts of duty in the area of employer liability. In Leppke v. Segura, 632 P.2d 1057 (Colo.App.1981), a tavern owner refused to serve an intoxicated man; however, a tavern employee later jump-started the man’s car. Subsequently, the intoxicated man caused a fatal automobile accident. The Colorado court, in reversing a

summary judgment, held that the employee’s affirmative action was enough to raise an issue of breach of duty even though there was no relationship between the defendant and the intoxicated driver. Id. at 1059. An employer was held liable for injuries sustained by third parties in an accident caused by its intoxicated employee in Brockett v. Kitchen Boyd Motor Co., 264 Cal.App.2d 69, 70 Cal.Rptr. 136 (1968). The employee, Huff, became intoxicated at a Christmas party given by the motor company.

Although Huff was “grossly intoxicated,” a representative of the company placed him in his automobile and directed him to drive home. The court recognized that the supplying of alcohol does not ordinarily make the supplier liable to an injured third party, but the affirmative acts of placing him in his car and directing him to drive home imposed a duty on the company to exercise reasonable care. 70 Cal.Rptr. at 139. Recently, the Supreme Court of Appeals of West Virginia rendered its opinion in Robertson v. LeMaster, 301 S.E.2d 563 (W.Va.1983).

In that ease, LeMaster’s employer, The Norfolk and Western Railway Company, had required LeMaster to work twenty-seven consecutive hours to remove debris and repair a track damaged by a train derailment. After many complaints by LeMaster that he was tired and wanted to go home, LeMaster’s foreman permitted him to do so. LeMaster lived some fifty miles from his place of work, and while driving his own car home, fell asleep and was involved in a collision with Robertson, causing injuries to Robertson.

The West Virginia court recognized that the railroad company owed no duty to control an employee acting outside of the scope of employment, but stated that such was not the issue in the case, saying “rather it is whether the appellee’s conduct prior to the accident created a foreseeable risk of harm.” Id. at 567. The court concluded that requiring LeMaster to work such long hours and then setting him loose upon the highway in an obviously exhausted condition was sufficient to sustain a cause of action against the railroad. We are persuaded by the logic of the holdings in these three cases.

Therefore, the standard of duty that we now adopt for this and all other cases currently in the judicial process, is: when, because of an employee’s incapacity, an employer exercises control over the employee, the employer has a duty to take such action as a reasonably prudent employer under the same or similar circumstances would take to prevent the employee from causing an unreasonable risk of harm to others. Such a duty may be analogized to cases in which a defendant can exercise some measure of reasonable control over a dangerous person when there is a recognizable great danger of harm to third persons.

See, e.g., Restatement (Second) of Torts, § 319; W. Prosser, supra, at 350. Additionally, we adopt the rule from cases in this Restatement area that the duty of the employer or one who can exercise charge over a dangerous person is not an absolute duty to insure safety, but requires only reasonable care. See Missouri, K. & T. Ry. Co. of Texas v. Wood, 95 Tex. 223, 66 S.W. 449 (1902); Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 53 N.W.2d 17 (1952).

Therefore, the trier of fact in this case should be left free to decide whether Otis acted as a reasonable and prudent employer considering the following factors: the availability of the nurses’ aid station, a possible phone call to Mrs. Matheson, having another employee drive Matheson home, dismissing Matheson early rather than terminating his employment, and the foreseeable consequences of Matheson’s driving upon a public street in his stuporous condition. As

summary judgment proof clearly raises all of these factors questioning the reasonableness of Otis’ conduct, a fact issue is present and

summary judgment was improper. For these reasons, we affirm the judgment of the court of appeals and remand to the trial court for determination of the issues. McGEE, J., dissents in opinion in which POPE, C.J., and BARROW and CAMPBELL, JJ., join. . All testimony referred to is by way of depositions on file at the time of the hearing of the Motion for

Summary Judgment. .

Section 319 provides: One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.