DUANE MUHS, INDIVIDUALLY AND AS NEXT FRIEND OF ASHTON MUHS, A MINOR v. WHATABURGER, INC., ROBERT GONZALEZ GARZA, AND MICHAEL LEE METTLEN--Appeal from 357th District Court of Cameron County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 13th District Court of Appeals » 2010 » DUANE MUHS, INDIVIDUALLY AND AS NEXT FRIEND OF ASHTON MUHS, A MINOR v. WHATABURGER, INC., ROBERT GONZALEZ GARZA, AND MICHAEL LEE METTLEN--Appeal from 357th District Court of Cameron County

State: Texas

Court: Criminal Court of Appeals

Docket No: 13-09-00434-CV

Case Date: 11/18/2010

Plaintiff: PATRICK VONTELL MORGAN

Defendant: LAMB COUNTY DISTRICT CLERK (Other)

Preview:The City of Laredo v. Alma Edith Saenz, Irma Saenz and Guillermo Saenz--Appeal from 49th Judicial District Court of Webb County
MEMORANDUM OPINION

No. 04-05-00188-CV

CITY OF LAREDO, TEXAS, Appellant

v.

Alma Edith SAENZ, Guillermo Resendez and Irma Saenz Appellees

From the 49th Judicial District Court, Webb County, Texas Trial Court No. 2002CVE001749-D1 Honorable Joaquin Villarreal, Judge Presiding Opinion by: Rebecca Simmons, Justice Sitting: Karen Angelini, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: February 8, 2006

REVERSED AND RENDERED

Alma Edith Saenz, Guillermo Resendez and Irma Saenz (collectively Saenz) sued the City of Laredo, Officer Ricardo Reyes and Laura Ann Resendez as the result of an automobile accident involving a city issued vehicle. Although at the

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time of the accident the vehicle was issued to Reyes for employment purposes, Reyes was out drinking with friends. After determining that he was too intoxicated to drive, Reyes allowed Resendez to drive the vehicle. Resendez was driving the city owned vehicle at the time of the accident. The City of Laredo filed a plea to the jurisdiction and a motion for summary judgment. The trial court denied both motions. Because Reyes could not be considered on-duty at the time of the accident, we reverse the trial court and grant the City of Laredo s plea to the jurisdiction and motion for summary judgment. Background In July of 2002, Ricardo Reyes was a certified police officer with the City of Laredo, assigned to an FBI Task Force as an undercover officer. As such, Reyes was assigned a vehicle, specifically a 2002 Dodge Ram 1500 pick-up truck, for use while engaged in police duties, in undercover duties, and between his home and various work assignments. Reyes was not authorized to use the vehicle for personal use. On July 13, 2002, Reyes spent most of the day in S.W.A.T training at the Laredo Police Department and returned to his residence in the late afternoon. After several hours, Reyes left his home, driving the Dodge Ram pick-up, to conduct drive-by surveillance on several houses under investigation with the FBI Task Force. Around 7:00 p.m., Reyes completed his surveillance and drove to a local bar to celebrate his recent promotion. After arriving at the bar, Reyes did not perform any surveillance or any other law enforcement duties for the remainder of the evening. By 1:00 a.m., the morning of July 14, 2002, Reyes was at a small local bar, the Round-Up, where he met Laura Lee Resendez and two of her friends. By all accounts, this was the first time Reyes had met any of the three women. The four individuals subsequently left the Round-Up, with the stated purpose of purchasing additional beer. At this point, Reyes determined he was too intoxicated to drive. Resendez, however, assured him that she had only a sip of a Margarita and that she was capable of driving. The four individuals left the Round-Up, with Resendez driving and Reyes in the front passenger seat. // At some point, Reyes fell asleep. When Reyes awoke at approximately 2:30 a.m., he realized they were leaving Laredo and told Resendez that she needed to turn around. Resendez pulled the truck over to the shoulder and started to turn around when they were hit by Saenz vehicle. The collision resulted in extensive damage and injuries to parties in both vehicles. Alma Edith Saenz, Irma Saenz and Guillermo Resendez filed a personal injury suit against Resendez, Reyes and the City of Laredo. The suit against the City of Laredo was filed under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code 101.021 (Vernon 1997), on the theories of negligent entrustment, negligent operation and negligent training and supervision. The City of Laredo filed a plea to the jurisdiction and a motion for summary judgment asserting sovereign immunity arguing that Reyes was not acting within his scope of employment at the time of the accident. The trial court denied both motions and the City of Laredo brings this appeal. Standard of Review The City of Laredo challenged subject matter jurisdiction by a plea to the jurisdiction and by motion for summary judgment. Governmental immunity from suit defeats a trial court s subject matter jurisdiction over a cause of action. See Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999). A plea to the jurisdiction is a dilatory plea designed to defeat a cause of action without regard to whether the underlying claim has merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plaintiff need not preview its case on the merits, but instead the defendant must establish a reason why the merits of its case should never be reached. Id. at 554. As such, the pleadings are taken as true and construed in the plaintiff s favor to determine the pleader s intent. Id.; see also Amador v. San Antonio State Hosp., 993 S.W.2d 253, 254 (Tex. App. San Antonio 1999, pet. denied). The trial court may dismiss the cause of action with prejudice only if it is impossible for the plaintiff s petition to confer jurisdiction on the trial court. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App. Austin 1994, writ denied). The live pleading before the trial court was Plaintiffs Third Amended Original Petition. Sovereign Immunity In its sole point of error, the City of Laredo argues that Saenz cause of action is defeated by the City of Laredo s governmental immunity. The doctrine of sovereign immunity provides that a governmental unit is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Dallas County Mental Health & Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Moreover, the Texas Tort Claims
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Act (TTCA) provides for a limited waiver of sovereign immunity if the damages suffered were proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment . . . [and arose] from the operation or use of a motor-driven vehicle. Mount Pleasant Indep. Sch. Dist. v. Estate of Lingburg, 766 S.W.2d 208, 211 (Tex. 1989) (emphasis added) (quoting Tex. Civ. Prac. & Rem. Code 101.021 (Vernon 1997)) // . However, waiver of sovereign immunity only occurs when the employee, not a third party, is the operator of the motor vehicle causing the injury. Ramos v. City of San Antonio, 974 S.W.2d 112, 116 (Tex. App. San Antonio 1998, no pet.); City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App. Houston [1st Dist.] 1995, no writ). The City of Laredo also argues that not only was Reyes not driving, but he was not in the scope of his employment when the accident occurred. The TTCA also requires that the negligent use of the tangible personal property be within the scope of employment of the employee. Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32-33 (Tex. 1983). To constitute use of property, an employee of the governmental unit must use the property, not merely provide the property to another. San Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 245-46 (Tex. 2004). Therefore, we examine whether there is any evidence Reyes used the City s Dodge pick-up truck, within the scope of his employment, in a manner which caused Saenz injuries. Scope of Employment An official acts within the scope of his authority if he is discharging the duties generally assigned to him. City of Lancaster v. Chambers, 883 S.W.2d 650, 658 (Tex. 1994). The Texas Torts Claim Act defines scope of employment as 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. Tex. Civ. Prac. & Rem. Code Ann. 101.001(5) (Vernon 1997). In general, whether a person is acting within the scope of his employment depends on whether the general 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. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972). Essentially, the City of Laredo argues that Officer Reyes could not be acting within the scope of his employment because he was off-duty. When determining the status of an officer, the pertinent inquiry becomes in what capacity was the officer acting at the time he committed the acts for which the complaint [was] made? Blackwell v. Harris County, 909 S.W.2d 135, 139 (Tex. App. Houston [14th Dist.] 1995, writ denied). In Texas & Pacific Railway Co. v. Hagenloh, 151 Tex. 191, 247 S.W.2d 236, 241 (1952) (quoting Galveston, H. & S.A. Ry. Co. v. Currie, 100 Tex. 136, 96 S.W. 1073 (1906)), the Texas Supreme Court explained: [W]hen the servant turns aside, for however short a time, from the prosecution of the master s work to engage in an affair wholly his own, he ceases to act for the master, and the responsibility for that which he does in pursuing his own business or pleasure is upon him alone.

In short, an employee is not acting within the scope of his duties unless the activity has some connection with the employer s work and is being undertaken in furtherance of the employer s business. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 627 (Tex. 1981). Within the context of the TTCA, a government employee acts within the scope of his employment while 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) (Vernon 1997). The theory of respondeat superior or vicarious liability is based upon acts of an employee which fall within the scope of the general authority of the employee so long as the acts are in furtherance of the employer s business and for the accomplishment of the object for which the employee was hired. Leadon, 484 S.W.2d at 569. Whether a police officer is acting within his scope of employment is generally tied to the officer s duty under the law. Harris County v. Gibbons, 150 S.W.3d 877, 882 (Tex. App. Houston [14th] 2004, no pet.). Saenz argues that Reyes status as a police officer equates to his being on-duty twenty-four hours a day, and hence he was acting within the scope of his employment at the time of the accident. However, it is a well-established principle that merely because an
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employee is on-duty, or on-call twenty-four hours a day, does not mean that the person is always acting within the scope of his employment. Banfield v. City of San Antonio, 801 S.W.2d 134, 137 (Tex. App. San Antonio 1990, no writ) (holding, in a worker s compensation case, plaintiff was not in the course of her employment at the time of her injury). In Banfield, a police officer was accidentally shot by her five year old son, who was playing with her service revolver. Banfield, 801 S.W.2d at 135. The officer asserted that because she was required to be on-call twenty-four hours a day and because she was required to take her revolver home, she was acting within the scope of her employment when she was injured. Id. at 136-37. This court held that her twenty-four-hour on-call status did not satisfy the scope of duty test from Biggs. Id. at 137; see also Garcia v. City of Houston, 799 S.W.2d 496, 499 (Tex. App. El Paso 1990, writ denied) (holding that even where an employee is on call twenty-four hours a day, he must be engaged in or about the furtherance of the affairs or business of his employer to be in the scope of his employment). Analysis Just because an officer is in a patrol car does not necessary mean he is on-duty. Gibbons, 150 S.W.3d at 884. Chief of Police Agustin Dovalina s testimony established that the vehicles are issued to the officers who are subject to recall from off duty at all hours. The conduct of an officer, with regard to governmental immunity, must be measured against a standard of objective reasonableness, without regard to the officer s subjective state of mind. Chambers, 883 S.W.2d at 656. The crux of this case is whether Reyes was acting within the scope of his employment, six hours after conducting the surveillance in question, as he handed the keys to Resendez and then even later when he requested she turn the vehicle around to return to Laredo. Contrary to Saenz allegations, Reyes actions toward Resendez do not, as a matter of law, constitute sufficient exercise of control over her to impose liability on Reyes simply by telling her they needed to turn around. Cf. City of El Campo v. Rubio, 980 S.W.2d 943, 946 (Tex. App.-Corpus Christi 1998, pet. dismissed w.o.j.) (finding that police officer, while on duty, exercised sufficient control over the injured party s vehicle by directing her to follow him down the road). Reyes was only authorized to use the vehicle while working on official duties relating to his undercover work with the City of Laredo and the FBI. Saenz argues Reyes was authorized to conduct surveillance and was authorized to use the vehicle until he returned to his residence. Reyes, however, did not drive home after conducting his surveillance. To the contrary, at the time of the accident, more than six hours had passed since he had completed his assignment or conducted any surveillance. He was not responding to any calls and had not observed any criminal activity. He was merely out having a good time. Chief Dovalina testified that Reyes did not have permission to use the vehicle for any personal travel and was not authorized to allow any other individuals to drive the vehicle. And, as previously set out, the record conclusively shows Resendez was the driver of the vehicle. Therefore, Saenz cannot recover under the theory that Reyes s negligent driving was the cause of the accident. Saenz claim that Reyes negligently entrusted the vehicle to Resendez by virtue of his control as a government employee is not substantiated by any evidence. Finally, Saenz failed to allege any acts under the claim of negligent supervision and training that waive sovereign immunity. See State Dep t of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001) (stating the TTCA waives sovereign immunity for negligent conduct). Conclusion The City of Laredo established that Reyes was not within the scope of his employment. Therefore the claims raised by Appellees Alma Edith Saenz, Guillermo Resendez and Irma Saenz are barred by the doctrine of sovereign immunity and have no arguable basis in law. As such, the trial court s denial of the plea to the jurisdiction was improper and we do not address the motion for summary judgment. We sustain the sole point of error, reverse and render judgment in favor of the City of Laredo. Rebecca Simmons, Justice

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