Opinion
No. 04-09-00671-CV
Delivered and Filed: November 10, 2010.
Appealed from the 166th Judicial District Court, Bexar County, Texas, Trial Court No. 2008-CI-12818, Honorable Solomon Casseb, III, Judge Presiding.
Affirmed.
Sitting: KAREN A. ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
This case arises from the trial court's grant of Appellee Indemnity Insurance Company of North America's no-evidence motion for summary judgment. Appellant Lori L. Collins argues that the trial court erred in granting summary judgment because she presented some evidence that she was injured in the course and scope of employment and thus suffered a "compensable injury" under the Texas Workers' Compensation Act. Indemnity Insurance defends the trial court's summary judgment on the grounds that Collins presented no evidence that her injury occurred in the course and scope of her employment. We affirm the judgment of the trial court.
BACKGROUND
Collins, a Southwest Airlines flight attendant, lived in San Antonio, but her home base airport was in Houston. As such, Collins commuted to and from work on Southwest flights. On the day in question, Collins' final working flight departed from El Paso and arrived in Houston. After her shift ended, Collins boarded Southwest Flight 890, which was traveling from Houston to San Antonio. Collins boarded Flight 890 with a passenger's ticket and was not on duty as a flight attendant. While seated and chatting with other passengers, Collins suffered injuries when another passenger dropped his carry-on bag from an overhead bin onto her head.
Collins filed a claim with the Workers' Compensation Division of the Texas Department of Insurance (the Division). Indemnity Insurance, Southwest's insurer, opposed the claim. The Division ultimately denied the claim because Collins did not sustain a "compensable injury" under the Texas Workers' Compensation Act. Collins appealed the Division's denial to District Court. Indemnity Insurance moved for summary judgment arguing that because Collins was not injured while in the course and scope of her employment, she failed to provide any evidence of a "compensable injury." The trial court granted Indemnity Insurance's motion and rendered a take-nothing judgment. Collins now appeals that order.
STANDARD OF REVIEW
"A no-evidence summary judgment is essentially a pretrial directed verdict," to which an appellate court applies a legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); accord Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). An appellate court views the evidence in the light most favorable to the non-movant and disregards all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751; Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.-San Antonio 1998, pet. denied). When a party moves for summary judgment under Rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the non-movant would have the burden of proof at trial, the non-movant must present more than a scintilla of probative evidence to raise a genuine issue of material fact on each of the challenged elements. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Wal-Mart Stores, 92 S.W.3d 506. "Less than a scintilla of evidence exists when the evidence is `so weak as to do no more than create a mere surmise or suspicion' of a fact." King Ranch, 118 S.W.3d at 751 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if the evidence "would enable reasonable and fair-minded people to differ in their conclusions." Id. (quoting Merrell Dow Pharms. Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the non-movant brings forth more than a scintilla of probative evidence on each challenged element of his claim, a trial court should deny the no-evidence motion for summary judgment. TEX. R. CIV. P. 166a(i); see Wal-Mart Stores, 92 S.W.3d 506.
COURSE SCOPE OF EMPLOYMENT
A "compensable injury" is "an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle." TEX. LABOR CODE ANN. § 401.011(10); Apollo Enters., Inc. v. ScripNet, Inc., 301 S.W.3d 848, 852 (Tex. App.-Austin 2009, no pet.). Section 401.011(12) of the Texas Workers' Compensation Act defines "the course and scope of employment" as "an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." § 401.011(12). The injury need not occur on the employer's property. Id.
Collins argues that she was injured in the course and scope of employment because (1) Flight 890 furthered Southwest's affairs; and (2) her boarding Flight 890 fell within the access doctrine. Indemnity Insurance counters that Collins boarded Flight 890 for the sole purpose of commuting home and that the access doctrine is inapplicable to this case.
A. Furtherance of Southwest's Affairs
Collins concedes that she boarded Flight 890 to commute home to San Antonio. Her flight, therefore, furthered her private affairs of commuting. See Am. Prot. Ins. Co. v. Leordeanu, 278 S.W.3d 881, 884-85 (Tex. App.-Austin 2009, pet. granted). Even assuming that Collins furthered Southwest's affairs by boarding the flight, her travel would constitute dual-purpose travel. See id. The Texas Workers' Compensation Act generally excludes from the course and scope of employment dual-purpose travel, which is travel that furthers both an employer's affairs as well as the private affairs of an employee. TEX. LABOR CODE ANN. § 401.011(12)(B). However, dual-purpose travel is in the course and scope of employment only if:
(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
Id.; see Leordeanu, 278 S.W.3d at 885. Thus, Collins must point to more than a scintilla of evidence showing that (1) she would have boarded Flight 890 solely to further Southwest's affairs, and (2) commuting home was not a sufficient reason to board Flight 890.
Collins presented no evidence that she would have travelled on Flight 890 even if she was not commuting home. Collins' sole argument is that "[F]light [890] would have been made even if no personal travel of Collins had been undertaken." Collins continues that "the place of occurrence was on the ground and at the jetway which would have occurred even if she had not been travelling." Collins' construction that the exception refers to the "travel" of an employer's vehicle is untenable.
The dual-purpose travel provision excludes "travel by the employee" from the scope and course of employment, not the employer's "travel" affairs. See Leordeanu, 278 S.W.3d at 885. Thus, the necessary inquiry is whether Collins' travel "would have occurred even if the personal purpose were removed from the analysis and the travel would not have occurred if the business purpose of the travel were removed from the analysis." See id. (citing TEX. LABOR CODE ANN.
§ 401.011(12)(B)). Whether Flight 890 would have taken off had Collins not boarded it is irrelevant. See id. Because Collins points to no evidence in the record that she would have boarded Flight 890 for any reason other than to commute to San Antonio, there is no evidence that her presence on Flight 890 was within the course and scope of employment.
Because we hold that Collins presented no evidence that she would have boarded Flight 890 even if she was not furthering her personal affairs, we need not address whether Collins presented any evidence to show that she was actually furthering Southwest's affairs. See TEX. R. APP. P. 47.1.
B. The Access Doctrine
Because Collins presented no evidence that she would not have boarded Flight 890 but for commuting home, Collins may prevail only if she presented more than a scintilla of evidence that her injury is within the course and scope of her employment under the access doctrine. Collins argues that her travel fell under the access doctrine because (1) the injury occurred on her employer's premises, and (2) Southwest evidenced its intent that Collins boarded Flight 890 by issuing her a ticket for the flight. Indemnity Insurance insists that Collins presented no evidence that she was on a particular access route or area to be used by employees for ingress to and egress from work.
Under the access doctrine, an employee suffers an injury in the course and scope of employment when she is injured using a route or area that is so closely related to the employer's premises as to be fairly treated as a part of the premises. TEX. LABOR CODE ANN. § 401.011(10); Tex. Comp. Ins. Co. v. Matthews, 519 S.W.2d 630, 631 (Tex. 1974). Ingress to and egress from work falls within the access doctrine if the employer has evidenced its intent that the employee use a particular access route or area as a special mode of access. Matthews, 519 S.W.2d at 631. Moreover, the employee's right to use the access route or area must be derived from her employment, rather than a route or area for public travel. Id.; Lumberman's Reciprocal Ass'n. v. Behnken, 246 S.W. 72, 74 (Tex. 1922). The access doctrine covers only an employee who, by virtue of her employment, is injured by a risk that she encountered while entering or exiting her place of employment. See Matthews, 519 S.W.2d at 631; Behnken, 246 S.W. at 74. It is not intended to cover injuries arising out of risks that the travelling public generally encounters. Evans v. Ill. Employers Ins. of Wausau, 790 S.W.2d 302, 304 (Tex. 1990). The risks covered by the access doctrine are thus distinct from risks that are generally associated with commuting to and from work. See id.
We hold that the access doctrine does not apply in this case because Collins presented no evidence that the cause of her injury — another passenger dropping his luggage on her head while she was seated in a passenger seat — was a risk that she faced as an employee seeking ingress to or egress from her workplace instead of a risk that she faced as a member of the travelling public. When Collins' last working flight landed, she chose to commute home to San Antonio on Flight 890 as a passenger rather than as a working flight attendant. Thus, the cause of Collins' injury was a risk that any passenger on any flight on any commercial airline would encounter. Collins' injury therefore resulted from a risk that she encountered as a member of the travelling public, rather than a risk that derived from her employment or that she encountered by virtue of her employment with Southwest. See Evans, 790 S.W.2d at 304; Matthews, 519 S.W.2d at 631; Behnken, 246 S.W. at 74.
CONCLUSION
Because Collins presented less than a scintilla of evidence that she was in the course and scope of her employment through the exception to the dual-purpose travel exclusion or through the access doctrine, Collins raised no genuine issue of material fact on each of the challenged elements. We, therefore, affirm the judgment of the trial court.