City employee returning to work from lunch deemed not to be in course and scope of employment says 14th Court of Appeals
Martin Molina v. City of Pasadena, 14-17-00524-CV (Tex. App. – Houston [14th Dist.], August 21, 2018).
This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case where the 14th District Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.
The City’s inspector for the engineering department, Rendon, was driving a City vehicle on way back from his lunch break. He stopped at the intersection, looked both ways, and saw Molina on the sidewalk twenty feet away. Rendon believed he had time to turn, confirmed there was no on-coming traffic from his left, and took his foot off the brake. The vehicle traveled approximately one foot before impacting Molina. When Rendon inquired, Molina stated he was fine, left the scene, and proceeded home. Molina later sued the City. The City filed a plea to the jurisdiction, which the trial court granted. Molina appealed.
It is the general rule that use of public streets or highways in going to or returning from one’s place of employment is not within the scope of one’s employment. The City admitted that while traveling to a job site, which Rendon was doing, was considered “on duty.” When the vehicle involved in an accident was owned by the defendant and the driver was an employee of the defendant, however, a presumption arises that the driver was acting within the scope of his employment when the accident occurred. The court went through a burden shifting analysis noting evidence that the employee was on a personal errand to eat at the time of the accident, such as Rendon, refutes an allegation that he was acting in the course and scope of his employment. The burden then shifts to the City to present other evidence that Rendon was in the course and scope of his employment. An employee who has turned aside, even briefly, for a personal errand is no longer in the scope of employment until he returns to “the path of duty.” However, evidence that Rendon was returning to work from a personal errand at the time of the accident rebutted the presumption that he was acting in the course and scope. He had not returned to duty and the City’s conclusory statements of “on duty” is not a legal determination. Because there is no probative evidence that raises a genuine issue of material fact as to whether Rendon was engaged in the City’s business at the time of the accident, there was no dual purpose to Rendon’s personal errand. As a result, the plea was properly granted.
If you would like to read this opinion clicker here. Panel consists of Justice Boyce, Justice Donovan and Justice Wise. Memorandum Opinion by Justice Donovan. The attorneys listed for the City are Brian J. Begle, John J. Hightower, Patricia L. Hayden and Eric C. Farrar. The attorney for Molina is listed as Kiernan McAlpine
