In a recent decision, the Texas Supreme Court held that employers generally owe no duty to third parties for off-duty accidents caused by employees who leave work in an extremely fatigued state. Nabors Drilling, U.S.A., Inc. v. Francisca Escoto, No. 06-0890 (Tex. 2009). Texas employers also have no duty to train employees about the dangers of fatigue.

However, good deeds may not go unpunished. An employer may have responsibility if the employer had actual knowledge that its employee was impaired when leaving work and affirmatively exercised control over the employee incapacitated by fatigue (e.g., sending the employee home early for fatigue). Merely requiring an employee to work to the point of fatigue will not impose liability on an employer.

The court concluded that "considering the large number of Texans who do shift work and work long hours (including doctors, nurses, lawyers, police officers and others), there is little social or economic utility in requiring every employer to somehow prevent employee fatigue or take responsibility for the actions of off-duty, fatigued employees." However, the court left open the possibility for liability if fatigue incapacity is the inevitable result of employer-established work conditions.