Opinion
14-21-00680-CV
06-27-2023
CITY OF HOUSTON, Appellant v. EVERARDO FLORES-GARCIA, Appellee
On Appeal from the 152nd District Court Harris County, Texas Trial Court Cause No. 2019-73544
Panel consists of Justices Spain, Poissant, and Wilson.
MEMORANDUM OPINION
Margaret "Meg" Poissant Justice
Appellee Everardo Flores-Garcia ("Flores-Garcia") filed a negligence suit against appellant the City of Houston ("City") after a collision between a City-owned vehicle driven by a City employee and Flores-Garcia's vehicle. The trial court denied the City's motion for summary judgment based on governmental immunity. In one issue, the City complains that it is protected by governmental immunity because its employee was not acting in the scope of his employment at the time of the collision. We affirm.
I. Background
Kevin Lancaster ("Lancaster"), a City employee driving a City-owned vehicle, ran a stop sign at an intersection, striking Flores-Garcia's vehicle. Flores-Garcia sued the City for negligence, claiming that Lancaster failed to: maintain a proper lookout; control his distance between other vehicles; maintain attention; brake timely; yield the right of way; drive in a single lane; control the speed of the City's vehicle; and maneuver to prevent the collision. He pleaded that Lancaster was in the scope and course of his City employment at the time of the collision, and thus, the City's immunity was waived under the Texas Torts Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
Lancaster worked as a Senior Plant Operator with the Water Division of the Houston Public Works Department. His job included investigating water complaints and maintaining the water distribution system. He was tasked with driving to the location of 3-1-1 concerns or complaints to ascertain the nature of the problem and with flushing fire hydrants and dead-end water mains. Lancaster worked a 7:30 a.m. to 4:30 p.m. shift, during which he had one hour for lunch plus two fifteen-minute breaks. In an affidavit, Lancaster averred that just before the accident, he had stopped at a convenience store located next to the intersection where the collision occurred. Although he did not specifically recall why he had stopped at the convenience store, he was not there to complete any assigned job duty. He also did not remember where he was going at the time of the accident, which occurred just after he left the store.
The City filed a motion for summary judgment, asserting that the limited waiver of governmental immunity provided by the Texas Tort Claims Act ("TTCA") did not apply because Lancaster was not acting in the scope of his employment at the time of the accident. The trial court denied the City's motion for summary judgment, and this interlocutory appeal followed. See id. § 51.014(a)(8); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019).
II. Standard of Review & Applicable Law
We review a trial court's ruling on summary judgment de novo. See Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). We also review a motion or plea asserting governmental immunity de novo because it involves a question of law. See Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp., 283 S.W.3d 838, 842 (Tex. 2009).
When a governmental unit raises the affirmative defense of governmental immunity in a traditional summary judgment motion, it must establish the affirmative defense as a matter of law. See Tex. R. Civ. P. 166a(c); Town of Shady Shores, 590 S.W.3d at 551; City of Houston v. Mejia, 606 S.W.3d 901, 904 (Tex. App.-Houston [14th Dist.] 2020, pet. denied). If the movant conclusively establishes its entitlement to the affirmative defense of immunity, then the burden shifts to the nonmovant to present evidence sufficient to create a fact issue on at least one element of either the movant's affirmative defense or an exception to that affirmative defense. See Mejia, 606 S.W.3d at 904-05. We take as true all evidence favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). Summary judgment is proper when a suit is barred as a matter of law because of a governmental unit's immunity. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-28 (Tex. 2004) (stating that the standard of review for a jurisdictional plea based on evidence generally mirrors the traditional-summary-judgment standard).
Governmental units are not liable for the torts of their agents unless there is a constitutional or statutory waiver of immunity. City of Houston v. Daniels, 66 S.W.3d 420, 424 (Tex. App.-Houston [14th Dist.] 2001, no pet.) (citing Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 S.W.2d 208, 211 (Tex. 1989)). The TTCA waives a governmental unit's immunity from suit for personal injuries arising from the negligent use of a motor vehicle by an employee acting within the scope of his employment when the employee would be personally liable to the claimant under Texas law. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021(1), 101.025. Under the Act, "scope of employment" means the performance of "the duties of an employee's office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority." Id. § 101.001(5). Generally, whether a person is acting within the scope of his employment depends on whether the act from which an injury arose was in furtherance of the employer's business and for the accomplishment of the objective for which the employee was employed. See Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972). The scope-of-employment analysis is an objective inquiry considering whether there is a connection between the employee's job duties and the alleged tortious conduct. See Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017).
When a vehicle involved in a collision is owned by the driver's employer, a presumption arises that the driver was acting in the course and scope of employment when the collision occurred. See Robertson Tank Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); City of Houston v. Arellano, 654 S.W.3d 483, 486 (Tex. App.-Houston [14th Dist.] 2022, pet. denied). Evidence that the driver was on a personal errand at the time of the accident rebuts the presumption. See City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL 3556216, at *4 (Tex. App.- Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem. op.). It is then the plaintiff's burden to produce other evidence that the driver was in the course and scope of his employment. See Arellano, 654 S.W.3d at 486-87.
Conduct falls outside the scope of employment when it occurs "within an independent course of conduct not intended by the employee to serve any purposes of the employer." Garza v. Harrison, 574 S.W.3d 389, 400 (Tex. 2019). Mixed motives do not preclude an action from being within the scope of employment if the employee's action served a purpose for his employer in addition to any other purpose the act served. See Mejia, 606 S.W.3d at 905 (stating an employee's act falls outside the scope of employment if, and only if, the act did not serve any purpose of the employer); Gilgon, Inc. v. Hart, 893 S.W.2d 562, 568 (Tex. App.-Corpus Christi- Edinburgh 1994, writ denied) (holding no evidence of deviation from scope of employment where employee stopped at a store then resumed driving while on an errand for his employer). When responding to a service call, a person is in or about the performance of a job task lawfully assigned. See Arellano, 654 S.W.3d at 486.
III. Did The City of Houston Conclusively Establish Its Affirmative Defense?
It is undisputed that Lancaster, a City employee, was driving a City-owned vehicle when the collision occurred. This evidence raises the presumption that he was acting in the course and scope of his employment. See Robertson Tank Lines, 468 S.W.2d at 357. To rebut this presumption, the City offered Lancaster's affidavit, in which he states that he had just left a convenience store located next to the intersection where the collision occurred. Lancaster averred in his affidavit that he did not specifically remember why he stopped at the convenience store, but it was not to complete any of his job duties. He further stated, "I do not remember where I was going to at the time of the accident." Lancaster's primary workplace, a small office, was very close to the intersection. The City argues the evidence demonstrates that Lancaster had deviated from the City's business and removed him from the scope of his employment at the time of the collision.
The City asserts that Texas courts have repeatedly held that government employees are not acting in the scope of their employment when using employer-owned vehicles to travel to or from work, lunch, or on a personal errand. In support of its argument, the City cites three cases: Carrizales, 2021 WL 3556216, at *5; Molina v. City of Pasadena, No. 14-17-00524-CV, 2018 WL 3977945, at *4 (Tex. App.-Houston [14th Dist.] Aug. 21, 2018, no pet.) (mem. op.); and Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794, at *4-5 (Tex. App.-Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.). Each of those cases involve the "coming-and-going rule, under which an employee is generally not acting within the scope of his employment when traveling to and from work." See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 139 (Tex. 2018). However, the City's cited cases are distinguishable from the case before us.
In Carrizales, the accident occurred after a city employee had driven to lunch in a City-owned jet sewer truck for which a two-person crew was necessary to perform work tasks. 2021 WL 3556216, at *2. Although she was driving her employer's truck at the time of the accident, there was evidence rebutting the presumption that she was in the scope of her employment. Id. Namely, the evidence showed (1) the City employee was driving the jet sewer truck back to work after going to her home for lunch; and, notably, (2) her work with the truck requires two people, while she was alone in the truck at the time of the collision. Id. at *2, 4-5.
In Molina, the city provided evidence that showed a city engineering inspector "was in the process of returning to work" and "had not resumed those duties" when he struck the plaintiff while driving a City-owned truck. 2018 WL 3977945, at *5. In determining that the city inspector had deviated from his duties at the time of the accident, the court in Molina relied on the evidence, as well as authority involving facts demonstrating that employees had traveled home for lunch and were commuting back to work when the accident occurred. See Sw. Dairy Prods, Inc. v. DeFrates, 125 S.W.2d 282, 283 (Tex. 1939); Gant v. Dumas Glass & Mirror, Inc., 935 S.W.2d 202, 212 (Tex. App.-Amarillo 1996, no writ); see also J&C Drilling Co. v. Salaiz, 866 S.W.2d 632, 637 (Tex. App.-San Antonio 1993, no writ) (traveling to another town to eat after the work site shut down). Contrary to these cases, the City did not provide evidence that Lancaster was on a deviation from the performance of his duties when the collision occurred. And unlike Molina, there is a lack of evidence supporting that Lancaster was merely "in the process of returning to work." See Molina, 2018 WL 3977945, at *5.
In Lara, while driving his assigned police vehicle, an assistant police chief collided with the plaintiff's vehicle during his morning commute from a neighboring county. 2016 WL 3964794, at *1. The city presented evidence that the assistant chief (1) was "expressly authorized" to "use a police vehicle to commute to and from his work"; and (2) was "primarily assigned to 'office' duties, ha[d] no regular duties involving operation of a police vehicle, was off-duty at the time of the collision, was not being paid for his service at that time, had no official duties or assignments at that time, was driving to work, and would be considered on-duty only upon his arrival at work." Id. at *1. Additionally, the city produced evidence that the assistant chief had not performed any official duties before the collision and "had not performed any services for the city or been asked to do so since leaving work on Friday of the previous week." Id. at *4. The court of appeals concluded this evidence was sufficient to rebut the presumption that the assistant chief was acting in the scope of his employment at the time of the accident. Id.
Unlike the coming-and-going rule applicable in Carrizales, Molina, and Lara, the evidence shows that Lancaster's regular work duties include driving to investigate water complaints in a City-owned vehicle and flushing fire hydrants and water mains. The City would have us infer that Lancaster's deviation from his duties was on-going after he left the convenience store. In reviewing a motion for summary judgment, we are required to indulge every reasonable inference and resolve any doubts in the nonmovant's favor. See Sampson, 500 S.W.3d at 384. Here, Lancaster stated in his affidavit that he did not remember where he was going at the time of the accident. He did not specifically remember why he stopped at the convenience store, but it was not to complete any of his job duties. As movant on its affirmative defense, it is the City's burden to establish that Lancaster was pursuing "an independent course of conduct not intended by the employee to serve any purposes of the employer." See Garza, 574 S.W.3d at 400; Mejia, 606 S.W.3d at 905-06. The summary judgment evidence here does not conclusively establish that, at the time of the accident, Lancaster was on a personal errand and had not resumed his job duties. Cf. Gilgon, Inc., 893 S.W.2d at 568 (concluding no evidence of deviation where employee stopped at a store then resumed driving while on an errand for his employer). We overrule the City's sole issue on appeal.
IV. Conclusion
We affirm the trial court's order denying the City's motion for summary judgment.