PJC General Negligence 2022

PJC 10.7

A GENCY AND S PECIAL R ELATIONSHIPS

PJC 10.7 Deviation An employee is not acting within the scope of his employment if he departs from the furtherance of the employer’s business for a purpose of his own not connected with his employment and has not returned to the place of departure or to a place he is required to be in the performance of his duties. COMMENT When to use—given after definition of “scope.” PJC 10.7 should be used if there is evidence that a person alleged to be an employee has deviated from the fur therance of the employer’s business and is not acting within the scope of his employ ment. See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 757 (Tex. 2007). Deviation is an inferential rebuttal to the claim that the employee was acting in the scope of employment, as submitted in PJC 10.6. City of Houston v. Wormley , 623 S.W.2d 692 (Tex. App.—Houston [lst Dist.] 1981, writ ref’d n.r.e.). For the elements of “deviation,” see Texas & Pacific Railway v. Hagenloh , 247 S.W.2d 236 (Tex. 1952); Robert R. Walker, Inc. v. Burgdorf , 244 S.W.2d 506 (Tex. 1951). PJC 10.7 should be given immediately after the PJC 10.6 definition of “scope of employment.” When to instruct on resuming performance of duties. If the employee has returned to the place of departure or to a place he is required to be in the performance of his duties, he still may not have returned to the scope of his employment. In such a case, the phrase “and resumes the performance of his duties” should be added at the end of the instruction.

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