San Antonio Court of Appeals holds City made a judicial admission employee was acting within course and scope of employment at time of accident by filing §101.106(e) motion to dismiss. Therefore, not entitled to jury question on course and scope

Victor Ramos v. City of Laredo, 04-17-00099-CV (Tex. App. – San Antonio, March 28, 2018).

This is a Texas Tort Claims Act (“TTCA”) case where the San Antonio Court of Appeals reversed a jury verdict and rendered judgment against the City.

While Ramos, a motorcyclist, was making a left-hand turn into the park he was struck by another motorcycle with flashing lights attempting to exit the park in the wrong lane driven by an individual Ramos asserted was named Guerra. Guerra is a police officer with the City of Laredo. Ramos sued the City and Guerra.  The City claimed that Guerra was on leave on the date of the accident, was not involved in the accident, and was not acting in the course and scope of his employment at the time of the accident. But the City also asserted Guerra must be dismissed under §101.106(e) of the TTCA.   In response to the City’s plea to the jurisdiction and motion to dismiss, Ramos non-suited Guerra with prejudice. Guerra testified he was at home, asleep, at the time of the accident. At trial, over Ramos’ objections, the court submitted a question to the jury on whether Guerra was acting within the course and scope of employment.  The jury returned a verdict Guerra was negligent and liable but was not acting within the course and scope of his employment. Ramos appealed the verdict.

Section 101.106(e) of the TTCA is titled “Election of Remedies” and provides that when a claimant files suit “under this chapter” against both a governmental unit and its employee, the employee shall immediately be dismissed from the suit upon the filing of a motion to dismiss by the governmental unit. By filing a §101.106(e) motion to dismiss, a governmental unit “effectively confirms the employee was acting within the scope of employment and that the government, not the employee, is the proper party.” Thus, when the City requested that Guerra be dismissed pursuant to §101.106(e), the City confirmed Ramos’s allegation that Guerra was acting in the scope of employment at the time of the accident and agreed to vicariously defend its employee. Because of the election by the City to be held responsible for its employee in its plea, the court held the City was bound to its judicial admission that Guerra was acting in the scope of employment at the time of the accident.

Justice Barnard wrote separately only to emphasize that the 4th Court prognosticated this type of argument in 2011 and cautioned entities not to shift arguments mid-stream trying to avoid liability. Either the employee is not in the course and scope and no dismissal under §101.106(e) applies, or they are in the course and scope and §101.106(e) requires a dismissal.

If you would like to read this opinion click here. Opinion by Justice Martinez, Judge Barnard’s concurring opinion is here. Panel consists of Justice Angelini, Justice Barnard and Justice Martinez.  The attorney listed for the City is Albert Lopez. The attorney listed for Ramos is Marcel C. Notzon, III.

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