It is becoming a disturbing trend -- plaintiffs are trying to use internal policies and procedures against a company defendant. This is disturbing for several reasons. First, the policies and procedures benefit both plaintiffs and the company itself. If companies become reluctant to implement policies and procedures, plaintiffs, whether it be employees and/or customers, may get worse customer service and/or company performance if companies do not try to have policies and procedures to encourage their employees to do better.
Second, policies and procedures should not be the gauge by which companies are judged as to whether or not they have violated the law. Indeed, one of the reasons companies have policies and procedures is to use them as a tool to stay in compliance with various laws. If a law calls for a certain compliance level and a policy and procedure requires a much higher compliance level, companies would want to implement policies and procedures to try to keep an employee from violating a specific law. However, more and more, plaintiffs are trying to raise the standard of care by arguing that policies and procedures mandate the appropriate standard of care.
Thankfully, even if an employee violates an internal policy and procedure, courts are understanding that this does not necessarily mean that the employee and/or employer violated the law. Indeed, companies would want to set a higher standard for policies and procedures in the event that even if a policy and procedure is breached, the breach may not violate the law. If courts begin deciding that the appropriate standard of care is an internal policy and procedure, companies may become more and more reluctant to implement such policies and procedures.
Courts have begun understanding such issues in many cases regarding policies and procedures. For example, here is what the Texas Supreme Court said in 2006 about internal policies and procedures:
[Defendant's] self-imposed policy with regard to inspection of its trailers, taken alone, does not establish the standard of care that a reasonably prudent operator would follow. As a Texas court of appeals explained, a company's internal policies "alone do not determine the governing standard of care." Fenley v. Hospice in the Pines, 4 S.W.3d 476, 481 (Tex.App.-Beaumont 1999, pet. denied). A federal court of appeals has also held that a defendant's internal policies do not, taken alone, establish the applicable standard of care. In Titchnell v. United States, 681 F.2d 165, 173 (3d Cir.1982), the court stated:
[I]f a health care facility, in striving to provide optimum care, promulgates guidelines for its own operations which exceed the prevailing standard, it is possible that care rendered at that facility by an individual practitioner on a given occasion may deviate from and fall below the facility's own standard yet exceed the recognized standard of care of the medical profession at the time. A facility's efforts to provide the best care possible should not result in liability because the care provided a patient falls below the facility's usual degree of care, if the care provided nonetheless exceeds the standard of care required of the medical profession at the time. Such a result would unfairly penalize health care providers who strive for excellence in the delivery of health care and benefit those who choose to set their own standard of care no higher than that found as a norm in the same or similar localities at the time.
FFE Transportation Services, Inc. v. Fulgham; 154 S.W.3d 84 (Tex. 2006).
Other courts have used similar analyses. For example, Texas courts have recognized that a bank's internal teller procedures or other internal procedures cannot superimpose a legal requirement over and above the UCC. See Texas Southwestern Med. Supply, Inc. v. Texas Commerce Bank - Dallas, N.A., No. 05-93-00001-CV, 1994 WL 246169, at *4-7 (Tex. App. - Dallas June 2, 1994, n.w.h.) (not designated for publication); see also Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 (Tex. App. - Houston [14th Dist.] 2002, pet. denied) citing Jacobs-Cathey Co. v. Cockrum, 947 S.W.2d 288, 291-92 (Tex. App. - Waco 1997, writ denied) (holding that company's internal policies related to removing debris left at its work sites by other parties did not impose upon the company a negligence duty to parties injured by unremoved debris); Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App. - Houston [14th Dist.] 1996, no writ) (holding that company's safety policies restricting consumption of alcohol on its premises did not create negligence duty that would subject the company to liability for failing to comply with those policies); Williford Energy Co. v. Submergible Cable Servs., Inc., 895 S.W.2d 379, 386-87 (Tex. App. - Amarillo 1994, no writ); see also Salazar v. S. Cal. Gas Co., 54 Cal. App. 4th 1370, 63 Cal. Rptr. 2d 522, 525-32 (1997, review denied) (holding internal company policy of warning customers that elevating water heaters to at least eighteen inches would reduce the risk of flammable vapors being ignited did not create any duty).
Other cases have held that plaintiffs are not entitled to assert violations of the defendant's internal policies or contracts with third parties. See Loptis v. Town of Highland Park, 893 S.W.2d 154, 155 (Tex. App. - Eastland 1995, no writ). See also Day & Zimmerman, Inc. v. Hartridge, 831 S.W.2d 65, 69-70 (Tex. App. - Texarkana 1972, writ denied); Salazar v. Amigos de Balle, Inc., 754 S.W.2d 410, 413 (Tex. App. - Corpus Christi 1988, no writ).
This result is logical because the internal policies should not be part of a company's contract with its customer. Any such contracts or policies are designed to prevent the company from breaching its obligations, not to create new obligations. In summary, even though creative Plaintiffs are trying to use internal policies and procedures against companies, there are courts that have refused to allow such Plaintiffs to do so.
William "Pat" Huttenbach is a shareholder in Hirsch & Westheimer, P.C. litigation section. He can be contacted at phuttenbach@hirschwest.com
