concurring and dissenting in part.
I agree with most of the majority opinion, but dissent from the holding that the individual defendants, Leitch and Crews, are personally liable for the corporation’s failure to furnish Hornsby a lifting belt. Corporate employees can now be held individually liable, apparently without common-law defenses, for the tort of failing to furnish equipment, even though the duty to furnish equipment belongs to the employer, not the individual. With this holding, failure to prove alter ego means nothing, because corporate employees are individually subject to liability for the decisions they make, even though the individuals are the plaintiffs co-employees, not his employer. The majority has actually held that the individuals who work for a company owe as individuals the same duties the company owes, even if their actions would not be tortious if done individually. This holding is unsupported by precedent, analysis of the worker’s compensation statute, or by policy reasoning of any kind.
The jury failed to find that the corporation, Pro Com, was the alter ego of Leitch and Crews. They therefore are not liable for the corporation’s torts on an alter ego theory. But the majority concludes that they are still individually liable, on grounds that I believe do not apply to this case. The point of difference between us is that I do not think Leitch and Crews owed Hornsby a duty as individuals to furnish equipment. They did not contract with Hornsby; he worked for the company, not for them. They cannot be negligent individually for failure to furnish equipment because they owed no individual duty to furnish equipment.
It is true that an employee can be liable for his own torts, and for his own active or passive negligence, even though he was on the job for an employer at the time. But this mle applies only when the employee committed an independent tort — that is, owed an individual duty to the injured person apart from the employer’s duty and breached that duty.
For individual liability to exist, the agent’s actions must themselves be tortious. The Restatement of Agency states the general rule for the tort liability of agents in section 843:
An agent who does an act otheinoise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal, except where he is exercising a privilege of the principal, or a privilege held by him for the protection of the principal’s interests, or where the principal owes no duty or less than the normal duty of care to the person harmed.
Restatement (Second) of Agency § 343 (1958) (emphasis added). Thus an agent is liable for the torts of fraud and duress (§ 348), trespass to land (§ 348A), and conversion (§ 349), even though he committed those torts while working for the principal.
Concerning negligence, the agent is liable only if he created an unreasonable risk of harm to a protected interest. Section 350 provides:
An agent is subject to liability if, by his acts, he creates an unreasonable risk of harm to the interests of others protected against negligent invasion.
Restatement (Second) of Agency § 350 (1958).
The principles stated in the Restatement of Agency are embodied in Texas law. For example, an agent who negligently causes an automobile accident is individually liable even though his employer is also liable under re-spondeat superior. As a driver, the agent owed a duty of care to the public, and it makes no difference that he was on the job for his employer when the accident happened. Similarly, an agent who defames someone in the course of his employment is individually hable. See Leyendecker & Assocs. v. Wechter, 683 S.W.2d 369, 375 (Tex.1984). An agent may also be held personally liable for fraud and misrepresentations. See Barclay v. Johnson, 686 S.W.2d 334, 336-38 (Tex.App.-Houston [1st Dist.] 1985, no writ); Duval County Ranch Co. v. Wooldridge, 674 S.W.2d 332, 337 (Tex.App.-Austin 1984, no writ).
But under Texas law, the acts of the agent are not tortious unless he owes a duty to the injured person. And if the agent committed *252no independent tort, he is not liable. In a comparable case, the supreme court held a grocery store supervisor not personally liable for his failure to give an employee instructions about lifting. See J. Weingarten, Inc. v. Moore, 449 S.W.2d 452, 453 (Tex.1970). Similarly, though a bank was subject to liability, its officers and employees were not liable for actions in the course of them employment which violated no individual duty to the injured party. See Maxey v. Citizens Nat’l Bank, 507 S.W.2d 722, 725-26 (Tex.1974). On this issue, the Maxey court cited with approval Russell v. Edgewood Indep. School Dist., 406 S.W.2d 249, 252 (Tex.Civ.App.-San Antonio 1966, writ ref'd n.r.e.). In Russell the court said, “As long as Steinhau-ser [the agent] was acting within the scope of his employment as a school superintendent he cannot be held personally hable in a tort action, except in such cases which involve individual and separate torts, such as assault, trespass, fraud or conversion.”
The law was well summarized in Southwestern Bell Telephone Co. v. Vollmer, 805 S.W.2d 825, 830 (Tex.App.-Corpus Christi 1991, writ denied):
When a duty is created by contract between an employer and a third party, the employee is not hable for the breach of that duty because the employee is not a party to the contract. See Karl & Kelly Co. v. McLerran, 646 S.W.2d 174,175 (Tex.1983). For an employee to be held liable, a breach of the duty to the employer is not enough; there must also be a separate breach of a duty owing to the plaintiff. Maxey v. Citizens Nat’l Bank, 507 S.W.2d 722, 725-26 (Tex.1974).
Leitch and Crews were not Hornsby’s employers, and they owed no individual duty to furnish necessary equipment to him. Pro Com corporation owed him that duty because it was Pro Com that hired him. The employer owes a duty to furnish equipment to its-employees. But the individuals involved in the corporation did not owe Hornsby the same duty as individuals.
The supreme court’s opinions in Light v. Wilson, 663 S.W.2d 813 (Tex.1983), and Karl & Kelly Co. v. McLerran, 646 S.W.2d 174, 175 (Tex.1983), are consistent with the rules stated above. A fair reading of Light and McLerran, including Justice Spears’ concurrence in Light, shows that in a Deceptive Trade Practices Act case, even if alter ego is not established, an agent acting for a principal may be individually liable provided he violated the DTPA himself.
Thus, I agree with the majority completely that when an actor commits a tortious act, he is not shielded from liability by the fact that he was acting for the corporation. But unless alter ego is established, corporate agents and officers are personally liable for their actions taken in the course of their employment only when they breached a duty that they owed as an individual to the injured person. As section 343 of the Restatement says, if the agent’s conduct is “otherwise a tort,” he is not “relieved from liability” by the mere fact that he was working for the principal.
On the subject of passive and active negligence, the eases cited by the majority seem to me inapplicable because they involved an agent’s duty to protect the public from known dangerous conditions. In Cornett v. Hardy, 241 S.W.2d 186 (Tex.Civ.App.-Beaumont 1951, no writ), a truck owner and his driver were held liable for not warning a mechanic about the dangerous condition of a tire rim they asked the mechanic to service. The court said the driver could be held liable for failure to warn of a known dangerous condition, even though this might be “nonfea-sance.” Id. at 191-92. In Kenney v. Lane, 9 Tex.Civ.App. 150, 36 S.W. 1063 (1894, no writ), an agent repairing a bridge for its owner had failed to install protective boarding to shield persons below from falling metal rollers. The agent argued he was not liable for “nonfeasance.” The court held that an agent can be held liable for nonfeasance, or failure to act, if he owes a duty of care to the public. The court spoke of the duty of care imposed upon the agent “as a responsible individual, in common with all other members of society.” Id. at 1063.
Hornsby’s alter ego theory was resolved adversely to him by the jury. His other theory of personal liability is invalid because Leitch and Crews did not individually owe him a duty to furnish a lifting belt or a dolly. *253The employer, ProCom, owed Hornsby that duty.
When the next such case is tried, with this case as a precedent, will the individual defendants be stripped of defenses under the Act simply because the corporate employer chose not to be a subscriber? The majority makes them potentially liable individually for failure to take action that was the corporation’s responsibility.
I would hold that Hornsby cannot recover from the individual defendants, and as to them I would reverse and render a take-nothing judgment.