Officer not on duty at time of vehicle accident, so City’s dismissal should have been granted

 

City of Fort Worth v Jeff Hart, et al. 10-17-00258-CV (Tex. App. – Waco, October 10, 2018).

This is a vehicle accident/Texas Tort Claims Act case where the Waco Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims.

While driving a City owned vehicle, Fort Worth police officer Aldo Castaneda collided with a vehicle driven by Howard. Castaneda was on his way to work in Fort Worth. He exited the parking lot of the Burleson Police Department, where he was permitted to park the City-owned vehicle overnight and collided with Howard’s vehicle as she was backing out of a driveway. Hart filed suit the City on behalf of her minor child, K.H, who was a passenger in Howard’s car. Howard’s insurance company intervened. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The court first determined that the exclusion of evidence submitted (mainly Castaneda’s testimony) in the plea was harmful error as it was central to the issue of whether Castaneda was within his course and scope of employment at the time of the accident. The court considered the plea in light of such evidence.   The accident occurred between 8:00 a.m. and 8:30 a.m., and Castaneda’s usual work hours were from 8:00 a.m. to 6:00 p.m. After the wreck, Castaneda identified himself as a police officer to the 911 operator, the Burleson police officer who investigated the accident, and Howard. Castaneda called his supervisor and advised him of the accident. The supervisor told Castaneda to take photographs of both vehicles and to submit them along with the accident report.  An employee is not acting within the scope of his employment unless his actions have some connection with, and is being undertaken in furtherance of, the employer’s business.  In automobile collision cases under the TTCA, an employee driving an employer owned vehicle is presumed to be acting within the scope of his employment. However, the evidence submitted shows Castaneda was off-duty, thereby rebutting the presumption. The fact that the accident may have occurred during Castaneda’s scheduled work hours does not indicate that he was on duty at the time. The fact that Castaneda identified himself as a police officer after the wreck also does not alter his off-duty status. He did not investigate the wreck or do anything other than what an ordinary citizen would do in a similar situation. Finally, the fact that Castaneda was incorrectly told by his supervisor to name the City as the financially responsible party for the Burleson Police report does not transform his off-duty status.

Castaneda was not sued, only the City. Since Castaneda was not within his course and scope of employment at the time, the City’s plea to the jurisdiction should have been granted.

If you would like to read this opinion click here.  Panel consists of Justice Gray, Justice Davis and Justice Scroggins. Opinion by Justice Davis. The docket page with attorney information can be found here.