14th Court of Appeals holds police sergeant who picked up her husbands police vehicle to deliver it home, was acting within the course and scope of her employment

City of Houston v. Isabel Mejia, 14-19-00559-CV (Tex. App. – Houston [14th Dist.], July 21, 2020)

This is a Texas Tort Claims Act (“TTCA”) case involving a motor vehicle accident in which the 14th Court of Appeals affirmed an order denying the City’s jurisdictional challenge on interlocutory appeal.

Isabel Mejia was driving her vehicle when Sergeant Michelle Gallagher (Gallagher) of the Houston Police Department failed to yield the right of way at an intersection and hit Mejia’s vehicle. The Mejias sued Gallagher and the City for personal injuries. The Mejias’ claims against Gallagher were dismissed pursuant to the City’s motion under Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The City originally admitted Gallagher was in the course and scope of her employment at the time, then later amended responses to Mejia’s request for admissions and denied she was within the course and scope. The City then filed a motion for summary judgment asserting Gallagher was not within her course and scope of employment at the time of the accident. Essentially, the City found out that Gallagher’s husband (a police lieutenant)  asked her to drive his “take home” police vehicle from the mechanic’s garage and was delivering it to their home when she was involved in the accident. Gallagher testified that at the time of the accident she was driving home, had no official duties, was not being paid, was not responding to a call for service, criminal activity, or an emergency situation. The motion was denied and the City appealed.

Under the TTCA  “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.” Whether she was on duty, off duty, or using a police vehicle or not, is not dispositive. The focus is on  the capacity in which the officer was acting at the time of the accident (i.e. what the officer was doing and why she was doing it.) Gallagher’s affidavit reflects that her husband (a superior officer employed by Gallagher’s employer) asked her to pick up his City-issued vehicle from the City garage so her superior officer would have the vehicle available at the beginning of his shift (a benefit to Gallagher’s employer). Gallagher was not merely commuting to work, but running an errand for the City.  As a result, the City did not conclusively negate Gallagher’s course and scope.

Chief Justice Frost’s dissent asserts the majority used the wrong legal standard. Nothing in the record shows that in picking up her husband’s work vehicle and driving it to their home, Sergeant Gallagher was acting on the instructions of a supervisor or other superior in her chain of command. The mere conferring of an employer benefit is not the proper legal test.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justice Zimmerer and Justice Poissant. Opinion by Justice Zimmerer.  Dissent by Chief Justice Frost found here.