Opinion
NO. 14-19-00559-CV
07-21-2020
CITY OF HOUSTON, Appellant v. Isabel MEJIA and Rosa Mejia, Appellees
The City of Houston appeals from an order denying summary judgment based on governmental immunity from suit. The order stems from a personal injury action brought by Isabel and Rosa Mejia to recover damages based on injuries sustained in an automobile accident. In a single issue the City argues the trial court erred in denying its motion for summary judgment, asserting there was no genuine issue of material fact as to whether Sergeant Gallagher, the police officer who hit the Mejias, was in the scope of her employment at the time of the accident. We overrule the City's sole issue because the City did not meet its burden to conclusively prove that Sergeant Gallagher was not in the scope of her employment when the accident occurred. We therefore affirm the trial court's order denying the City's motion for summary judgment.
BACKGROUND
This lawsuit is governed by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001, et. seq. Isabel Mejia was driving, and Rosa was a passenger when Sergeant Michelle Gallagher (Gallagher) of the Houston Police Department failed to yield the right of way at an intersection and hit the Mejias' car. The Mejias sued Gallagher and the City for personal injuries. The Mejias' claims against Gallagher were dismissed pursuant to the City's exercise of the Tort Claims Act election of remedies provision. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The City responded to Mejia's request for admissions, initially admitting that Gallagher was in the course and scope of her employment at the time of the accident. The City subsequently amended its responses to deny Gallagher was in the course and scope of her employment.
The City filed a motion for summary judgment on immunity grounds, alleging Gallagher was not in the course and scope of her employment at the time of the accident. The City attached Gallagher's affidavit to its motion. In the affidavit Gallagher testified that her husband worked as a lieutenant for the Houston Police Department and drove a "take-home" City vehicle that had been in the police garage for repairs. Gallagher's husband asked Gallagher to pick up his City vehicle from the police garage and drive it home. Gallagher testified in her affidavit that she did not request permission from her supervisor to pick up the City car because there was no requirement to check out a car when picking it up from the garage. "Per Lieutenant Gallagher's instructions," Gallagher drove the City vehicle to him. The accident happened when Sergeant Gallagher was on her way home in Lieutenant Gallagher's City-issued vehicle.
Gallagher testified that at the time of the accident she was driving home from work as part of her regular commute, had no official duties, and other than still being on call, was not being paid for her time. She further averred that she was not responding to a call for service, criminal activity, or an emergency situation.
The Mejias responded to the City's motion for summary judgment, arguing that there were genuine issues of material fact, primarily in regard to whether Gallagher was acting within the course and scope of her employment at the time of the accident. Attached to the response were copies of the accident report, the City's first responses to requests for admissions in which it admitted Gallagher was within the course and scope of her employment, the City's amended responses in which it denied Gallagher was within the course and scope of her employment, Gallagher's affidavit, and Gallagher's deposition.
The City objected to evidence of the police report on the grounds that it was not authenticated. The City further objected to evidence of its first response to requests for admissions because the City obtained leave from the trial court to amend its responses. The trial court sustained the City's objections to the police report and the first response to the requests for admissions, and denied the City's motion for summary judgment.
ANALYSIS
In a single issue the City argues the trial court erroneously denied its motion for summary judgment on the issue of immunity because there was no genuine issue of material fact that, at the time of the accident, Gallagher was not in the scope of her employment.
I. Standard of Review and Applicable Law
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) ; Oakbend Med. Ctr. v. Martinez , 515 S.W.3d 536, 542 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
If the movant conclusively establishes its entitlement to an affirmative defense of immunity, the burden of production 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 Oakbend Med. Ctr. , 515 S.W.3d at 542 (citing "Moore" Burger, Inc. v. Phillips Petroleum Co. , 492 S.W.2d 934, 936 (Tex. 1972) ). 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) (standard of review for a jurisdictional plea based on evidence generally mirrors the traditional summary judgment standard).
Governmental units are not subject to suit for the torts of their agents or officers unless a constitutional or statutory waiver of immunity applies. 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 parties' dispute here centers on the applicability of the Texas Tort Claims Act's statutory waiver of immunity from suit in certain circumstances.
The Tort Claims Act 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 her employment when the employee would be personally liable to the claimant under Texas law. Tex. Civ. Prac. & Rem. Code § 101.021(1). The City of Houston is a governmental unit for purposes of the Act. Id. § 101.001(3)(B) ; City of Houston v. Nicolai , 539 S.W.3d 378, 385 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). 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." Tex. Civ. Prac. & Rem. Code § 101.001(5).
Whether a peace officer was on duty or off is not dispositive as to whether she was acting within her employment's scope. Garza v. Harrison , 574 S.W.3d 389, 405 (Tex. 2019). Nor is the officer's use of a police vehicle dispositive. Id. Instead, we must examine the capacity in which the officer was acting at the time she committed the allegedly tortious act. Harris Cty. v. Gibbons , 150 S.W.3d 877, 882 (Tex. App.—Houston [14th Dist.] 2004, no pet.). In other words, we consider what the officer was doing and why she was doing it. See Lara v. City of Hempstead , No. 01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.).
In general, a police officer acts within the scope of her employment when her act furthers her employer's business and is undertaken to accomplish an objective for which she is employed. Id. at *3. Thus, the mere fact that an off-duty officer was on call does not render her act within the scope of employment. City of Balch Springs v. Austin , 315 S.W.3d 219, 225 (Tex. App.—Dallas 2010, no pet.). On the other hand, mixed motives do not prevent an officer's act from being within her employment's scope if her act served a purpose of her employer in addition to any other purpose the act served. City of Houston v. Lal , No. 01-19-00625-CV, ––– S.W.3d ––––, ––––, 2020 WL 937026, at *2 (Tex. App.—Houston [1st Dist.] Feb. 27, 2020, no pet.). Accordingly, an officer's act falls outside the scope of her employment if, and only if, her act did not serve any purpose of her employer. Garza , 574 S.W.3d at 400–01. The key question in a case such as this is whether, when viewed objectively, there was a connection between the officer's job duties and her allegedly tortious act. Id. at 401.
II. The City did not conclusively establish its entitlement to the affirmative defense of immunity.
The basic facts are undisputed. Sergeant Gallagher finished her shift at 4:00 p.m. on the day of the accident. Gallagher's husband, a lieutenant with the Houston Police Department, asked Gallagher to pick up his City-issued vehicle from the City garage and drive it to their home so Lieutenant Gallagher would have his City-issued vehicle available for the start of his shift.
The dispute arises as a result of the different lenses the parties use to view the undisputed facts. The City argues that Gallagher was "not acting in her capacity as a peace officer; rather she was just another commuter on a Friday evening heading home to enjoy time off on the weekend." The Mejias argue that Gallagher "was driving a vehicle owned by the City, was carrying out instructions issued by a superior HPD officer, and HPD would derive benefit from her actions." We agree with the Mejias.
The summary judgment proof does not support the City's argument that Gallagher was merely a commuter on her way home from work. 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, HPD).
The City therefore failed to meet its burden to conclusively prove that Gallagher was not acting within the scope of her employment at the time of the accident. Because the City failed to carry its burden of proof, the trial court did not err in denying the City's motion for summary judgment. See Nicolai , 539 S.W.3d at 386.
The City argues that like the peace officers in City of Fort Worth v. Hart, as next friend of K.H. , No. 10-17-00258-CV, 2019 WL 91676 (Tex. App.—Waco Jan. 2, 2019, pet. filed) (mem. op.) and Lara , 2016 WL 3964794, at *4–5 Gallagher was merely commuting to work at the time of the accident and was not within the scope of her employment. Both of those cases are distinguishable from the present case. In Hart , the police officer was driving a city-owned vehicle but was only commuting to work at the time he had an automobile accident. 2019 WL 91676 at *4. The Waco Court of Appeals held that the officer's use of a city-owned vehicle and the fact that the accident happened during his on-duty hours was not sufficient to rebut the evidence that he was not acting in the scope of his employment. Id. at *4–5.
Similarly, in Lara , a police officer driving a city-issued vehicle was commuting to work when he collided with another driver. 2016 WL 3964794 at *1. The police officer, like the officer in Hart , was not engaged in any business that would benefit his employer other than commuting to work. Id. The First Court of Appeals held that at the time of the accident the officer was not acting within the scope of his duties because the activity of commuting to work did not have a connection with, or was being undertaken in furtherance of, the employer's business. Id. at *3-5.
Here, Gallagher was not merely commuting to work. Gallagher picked up her husband's City-issued vehicle after being asked to do so by Lieutenant Gallagher, a superior officer, and was in the process of delivering it to him so he could have the vehicle at the beginning of his shift. By doing so Gallagher was "in or about the performance of a task lawfully assigned" by a competent authority. See Tex. Civ. Prac. & Rem. Code § 101.001(5). Gallagher furthered her employer's business because Lieutenant Gallagher was saved a trip to the City garage before the beginning of his shift. At the very least a fact issue was raised as to whether Gallagher was acting within the scope of her employment at the time of the accident.
Finally, the City argues that the trial court erred in denying its motion for summary judgment based on the mere fact that Gallagher was driving a City-owned vehicle. At the hearing on the City's motion for summary judgment the trial court stated:
City of Houston vehicle, I think that's probably — we're probably in an area now that, you know, we need to let a jury determine, you know, that sort of thing. I'm not going to take it out of their hands.
I'm going to deny the motion for summary judgment at this time.
The City argues that in making this statement the trial court improperly denied the motion for summary judgment. While the City is correct that the use of a City-owned vehicle is not dispositive, we do not read the trial court's comment on the record to be the sole reason for its ruling. Even if that were the reason for the ruling, the record reflects that the City did not carry its burden to conclusively prove that Gallagher was not acting within the scope of her employment. The trial court therefore did not err in denying the City's motion for summary judgment.
CONCLUSION
We overrule the City's issue on appeal and affirm the trial court's order denying the City's motion for summary judgment.
( Frost, C.J., dissenting).
DISSENTING OPINION
Kem Thompson Frost, Chief Justice, dissenting.
Appellant/defendant The City of Houston conclusively proved its entitlement to governmental immunity. The summary-judgment evidence shows as a matter of law that Sergeant Michelle Gallagher of the Houston Police Department was not acting within the scope of her employment at the time of the automobile accident made the basis of this suit. So, this court should reverse the trial court's order denying summary judgment and render judgment for the City, dismissing the claims of appellees/plaintiffs Isabel Mejia and Rosa Mejia based on the City's governmental immunity from suit.
A. Applicable Legal Standard
The City has asserted its immunity from suit under the doctrine of governmental immunity. In the context of today's case, the City cannot be sued or held liable based on the actions of its employees unless the Texas Legislature has waived the City's governmental immunity under the Texas Tort Claims Act (the "Act"). In the Act, the Texas Legislature has done so in limited circumstances. Under section 101.021 of the Act, the City is liable for
See City of Lancaster v. Chambers , 883 S.W.2d 650, 658 (Tex. 1994).
See Dallas Cty. MHMR v. Bossley , 968 S.W.2d 339, 342–43 (Tex. 1998).
property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2019 R.S.).
For purposes of the Act, an "employee" is "a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control." The employee's " ‘scope of employment’ means the performance for a governmental unit 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(2) (West, Westlaw through 2019 R.S.).
Id. § 101.001(5) (West, Westlaw through 2019 R.S.).
For the Legislature to have waived the City's governmental immunity, Sergeant Michelle Gallagher must have been acting within the scope of her employment with the City at the time of the accident made the basis of this suit (the "Accident"). The determination as to whether Sergeant Gallaher was acting within the scope of her employment with the City "calls for an objective assessment of whether the employee was doing her job when she committed an alleged tort, not her state of mind when she was doing it." An employee acts within the scope of her employment if she is discharging the duties generally assigned to her or acting pursuant to her job responsibilities. The Supreme Court of Texas has stated that the scope-of-employment analysis "focuses on an objective assessment of whether the employee's acts are of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of employment."
See id. § 101.021(1).
Laverie v. Wetherbe , 517 S.W.3d 748, 753 (Tex. 2017).
See Garza v. Harrison , 574 S.W.3d 389, 400–01 (Tex. 2019) ; Laverie , 517 S.W.3d at 753.
Garza , 574 S.W.3d at 404–05.
Whether a peace officer was on-duty or off-duty is not dispositive as to whether she was acting within the scope of her employment. Likewise, a peace officer's use of a police vehicle is not dispositive of the issue. Courts must examine what the officer was doing at the time of the accident and why the officer was doing it. It is true that "[i]n automobile collision cases [under the Tort Claims Act] a presumption arises that the driver was acting within the scope of his employment by the defendant when it is proved that the employer owned the vehicle and employed the driver." But the presumption is only a procedural tool, and it disappears from the case once it has been rebutted by positive evidence to the contrary.
Id. at 403.
Id. at 405.
See Lara v. City of Hempstead , No. 01-15-00987-CV, 2016 WL 3964794, at *4 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.).
Lara , 2016 WL 3964794, at *4 (internal quotations omitted).
Id.
B. Undisputed Evidence
The following undisputed evidence was the only proof before the trial court when it denied the City's motion:
• Michelle Gallagher is a Sergeant with the Houston Police Department.
• At the time of the Accident, Sergeant Gallagher was working as a supervisor in the Child Physical Abuse Unit of the Special Victims Division.
• Sergeant Gallagher was not a patrol officer, and she did not drive a marked police car.
• Sergeant Gallagher did not respond to calls for service from dispatch, and she did not work in traffic enforcement, such as writing tickets for moving violations.
• Sergeant Gallagher's normal shift ran from 6:00 a.m. to 4:00 p.m., Tuesday through Friday. It was not mandatory for her to drive a City vehicle to and from work every day. She was not assigned a regular vehicle for the Special Victims Division.
• During the month in which the Accident occurred, Sergeant Gallagher was on-call, and was assigned one of the Child Physical Abuse Unit's on-call vehicles for the month.
• The day of the accident was Sergeant Gallagher's last day to be on-call, so at the end of her shift at 4:00 p.m., she turned in her on-call vehicle.
• If Sergeant Gallagher needed a City vehicle during her regular shift when she was not assigned to be on-call, she would fill out a form to check-out one of the Special Victims Division vehicles.
• At the time of the Accident, Sergeant Gallagher's husband also worked for the Houston Police Department as a lieutenant and was assigned a take-home vehicle.
• Sergeant Gallagher's husband's assigned vehicle had been in the garage for repairs. The repairs were completed as of the day of the Accident.
• At her husband's request, Sergeant Gallagher picked up her husband's assigned vehicle from the garage and drove it to their house so that her husband could then drive the vehicle to work when he started his shift, which began that evening.
• Sergeant Gallagher did not ask her supervisor if she was authorized to take this action because her husband was a lieutenant, and there is no requirement to check-out a vehicle when picking it up from the garage.
• At the time of the Accident, Sergeant Gallagher was driving home in her husband's assigned vehicle, returning from work as part of her regular commute. At the time of the
Accident, Sergeant Gallagher had no official duties, other than still being on call, and she was not being paid for her time.
• At the time of the Accident, Sergeant Gallagher was not responding to a call for service. She was not responding to criminal activity that she had witnessed, nor was she responding to an emergency situation, such as a citizen in need of assistance. At the time of the Accident, Sergeant Gallagher was not in the process of enforcing any rules of the road, for example, clocking any other motorists for exceeding the speed limit.
C. The Scope-of-Employment Analysis
Under the undisputed evidence before the trial court, at the time of the Accident, Sergeant Gallagher was off-duty, not being paid for her time, carrying out no official duties, and merely commuting home in her husband's work vehicle. She had not performed any services for the City or been asked to do so since leaving work. The Mejias did not submit any evidence addressing the scope-of-employment issue. The undisputed evidence shows that at the time of the Accident, (1) objectively, Sergeant Gallagher was not doing her job; (2) she was not discharging the duties generally assigned to her by the Houston Police Department or acting pursuant to her job responsibilities; and (3) her acts were not of the same general nature as the conduct authorized or incidental to the conduct authorized to be within the scope of her employment. Thus, the evidence before the trial court conclusively proved the City's contention that Sergeant Gallagher was not acting within the scope of her employment with the City at the time of the Accident.
See Garza , 574 S.W.3d at 400–01, 404–05 ; Laverie , 517 S.W.3d at 753.
See City of Fort Worth v. Hart, as next friend of K.H. , No. 10-17-00258-CV, 2019 WL 91676, at *4–5 (Tex. App.—Waco Jan. 2, 2019, pet. denied) (mem. op.); Lara , 2016 WL 3964794, at *4–5.
D. The Majority's Analysis
Citing the supreme court's opinion in Garza , the majority asserts that an officer's act falls outside the scope of her employment if, and only if, her act did not serve any purpose of her employer. The Garza court never said that performing an act that did not serve any purpose of the employer is the only way an employee can act outside the scope of her employment. Instead, the high court stated that one way an employee's act can fall outside the scope of her employment is if the act "occurs within an independent course of conduct not intended by the employee to serve any purposes of the employer." Thus, the majority relies on the wrong legal standard.
See Garza , 574 S.W.3d at 400–01.
Id. at 400. In the same opinion, the high court stated that "the employee's state of mind [is] irrelevant." Id. at 401.
See id.
The majority also claims that at the time of the Accident, Sergeant Gallagher was carrying out instructions issued by a superior officer at the Houston Police Department. Though the record reflects that Sergeant Gallagher's husband was a lieutenant in the Houston Police Department, no evidence shows that her husband was a "superior officer" as the majority contends. No evidence shows that Sergeant Gallagher's husband worked in the same unit as Sergeant Gallagher or had any authority over her at the Houston Police Department. No evidence shows that Sergeant Gallagher's husband asked her in his official capacity to pick up his car. The evidence conclusively proves that Sergeant Gallagher was driving her husband's work vehicle home at his request and as a convenience to him. A wife's performing a task at her husband's request does not constitute following the instructions of a superior officer, though the majority appears to conclude otherwise.
Nothing in our 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. Nothing in the record shows that she was performing that task because it had been assigned to her as part of her work responsibilities by one in authority over her in the workplace. Nothing shows the task of picking up the vehicle and driving it to the Gallagher home fell under Michelle Gallagher's work responsibilities or any other City employee's work responsibilities. Nothing in the record shows that saving a City employee "a trip to the City garage before the beginning of his shift" is part of any employee's job.
The majority also claims that by driving her husband's work vehicle home so it would be ready for the beginning of his shift, Sergeant Gallagher conferred a benefit on the Houston Police Department. The mere conferring of a benefit is not the legal test, as discussed above. In addition, saving Sergeant Gallagher's husband a trip to the garage conferred a benefit on him in his personal capacity, rather than a benefit on the Houston Police Department. Sergeant Gallagher's picking up her husband's work vehicle was personally convenient for him because it saved him a trip to the garage before his shift started. It was not any more beneficial to the Houston Police Department for Sergeant Gallagher's husband to drive the vehicle in to work from his house than it was for Sergeant Gallagher's husband to appear at the garage before the start of his shift to pick up his vehicle and drive to work.
See Garza , 574 S.W.3d at 400–01, 404–05 ; Laverie , 517 S.W.3d at 753.
The happenstance that Sergeant Gallagher's husband also worked for the Houston Police Department does not change the analysis. If Sergeant Gallagher's husband worked for the United States Marshals Service and Sergeant Gallagher had picked up his work vehicle at his request before commuting home, Sergeant Gallagher would not be acting within the course and scope of her employment.
If Sergeant Gallagher's husband had picked up his work vehicle at the garage after the end of a shift and had an accident while commuting home when he was not being paid or performing official duties, her husband would not have been acting within the scope of his employment. No reason exists why Sergeant Gallagher should be deemed in the course and scope of her employment under the same facts.
Under Lara and Hart , Michelle Gallagher was an off-duty commuter at the time of the Accident. As a matter of law, she was not acting within the scope of her employment. The majority's effort to distinguish these cases is not convincing, and today's opinion creates a split of authority among the courts of appeals and a conflict between the two Houston-based courts of appeals, which have the same ten-county jurisdiction.
See Hart, as next friend of K.H. , 2019 WL 91676, at *4–5 ; Lara , 2016 WL 3964794, at *4–5.
See Hart, as next friend of K.H. , 2019 WL 91676, at *4–5 ; Lara , 2016 WL 3964794, at *4–5.
The First Court of Appeals District and the Fourteenth Court of Appeals District both are composed of the counties of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington. See Tex. Gov't Code Ann. 22.201 (West 2013).
E. Conclusion
The record shows Sergeant Gallagher was driving her spouse's assigned vehicle to their home because he had asked her to pick up the car for him, not because any one in authority over her at work had asked her to do so, and not because the task was part of her job. The summary-judgment evidence conclusively proves that, at the time of the Accident, Sergeant Gallagher was not acting within the scope of her employment. The City conclusively proved its entitlement to governmental immunity. For the reasons stated above, the trial court erred in denying the City's summary-judgment motion. This court should sustain the City's sole issue, reverse the trial court's judgment, and render judgment granting the motion and dismissing with prejudice the Mejias' claims. Because the court does not do so, I respectfully dissent.
( Zimmerer, J., majority).