Houston Not Liable for Take-Home Car Accident

The Fourteenth District Court of Appeals of Texas has concluded that the City of Houston is not liable for damages arising out of an accident involving a fire investigator’s take-home vehicle. Lorraine Sanchez filed suit against the city following an accident where a fire department SUV driven by Lisa Thom rear-ended her vehicle while entering the ramp to I-45.

According to the decision, Sanchez sued the city alleging the Thom ’s negligence was imputed to the city because Thom was driving “in the scope and course of her City employment at the time of the collision.” Apparently Sanchez did not allege the city was directly liable (1) as the owner of the vehicle, (2) for negligent entrustment, training and/or supervision, nor (3) did she sue Thom. As it turned out that was a fateful decision.

The trial court dismissed Sanchez’s claim based on evidence that showed that Thom was off-duty commuting home at the time at the time of the accident. As a result, she was not driving the vehicle within the “scope and course” of her duties. Sanchez appealed to the Court of Appeals.

Quoting from the Court of Appeals decision:

• Governmental units are not liable for the torts of their agents unless there is a constitutional or statutory waiver of immunity.
• The [Texas Tort Claims Act] TTCA 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.
• 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.”
• Generally, whether a person is acting within the scope of her employment depends on whether the act from which an injury arose was in furtherance of the employer’s business and for the accomplishment of the objective for which the employee was employed.
• When a vehicle involved in a collision is owned by the driver’s employer, a presumption arises that the driver was acting in the course and scope of employment when the collision occurred.
• But if there is evidence that the driver was not in furtherance of her employer’s business, the presumption is rebutted.
• Under the coming-and-going rule, an “employee is generally not acting within the scope of [her] employment when traveling to and from work.”
• The coming-and-going rule reflects that an accident while traveling to and from work does not generally arise from a person’s employment but instead from the risks and hazards inherent to the driving public.
• “Such travel hazards do not arise out of the business of an employer; thus, the law does not hold the employer liable for injuries resulting from engaging in these risks.”
• It is undisputed that Thom, a City employee, was driving a City-owned SUV when the collision occurred.
• This evidence raises the presumption that she was acting in the course and scope of her employment.
• To rebut this presumption, the City offered Thom’s affidavit, in which she states that she “had already completed my work duties” for the day and “was merely commuting home” when the collision occurred.
• The City’s evidence thus establishes that under the coming-and-going rule, Thom was not conducting the City’s business and was not acting in the scope of her employment at the time of the collision.
• Further, occasionally being on call and working in the field does not raise a fact issue that Thom was acting in the course and scope of employment when the collision occurred. 
• Because the uncontroverted evidence conclusively proves that Thom was not acting in the course and scope of her employment with the City when the collision with Sanchez occurred, we conclude that the City’s governmental immunity has not been waived and the City established its entitlement to summary judgment.

Lesson learned for the Plaintiffs’ Bar in Texas. Here is a copy of the decision.