City of Corpus Christi v. Marie Muller and Dean Muller ( 2019 )

NUMBER 13-18-00443-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
CITY OF CORPUS CHRISTI, Appellant,
v.
MARIE MULLER AND DEAN MULLER, Appellees.
On appeal from the County Court at Law No. 4
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Longoria
Memorandum Opinion by Chief Justice Contreras
Appellant, the City of Corpus Christi (the City), appeals the trial court’s denial of its
plea to the jurisdiction. Appellees Marie Muller and Dean Muller filed suit against the City
after Marie suffered injuries when she stepped into a pothole in the City Hall parking lot.
By one issue, the City argues that the trial court erred when it denied its plea. We affirm.
I. BACKGROUND
Marie was employed by the City through a temporary staffing agency, and she
worked at City Hall in Corpus Christi, Texas. Around 8:00 a.m. on or about October 13,
2015, Marie parked in the City Hall parking lot and began to walk towards City Hall to
report for work. During her walk through the parking lot, Marie stepped into a pot hole,
fell, and suffered injuries. She brought suit against the City under a premises liability
theory pursuant to the Texas Tort Claims Act (TTCA), and her husband, Dean, brought a
claim for loss of consortium.
The City filed a plea to the jurisdiction arguing that the City was Marie’s employer
and that, because Marie’s injury occurred in the course and scope of her employment,
Marie’s remedy was limited solely to the benefits under the workers’ compensation
insurance offered by the City. The City’s plea, however, did not address how Marie’s
injuries occurred within the course and scope of her employment. More specifically, the
City never alleged in its plea or introduced any evidence in support thereof that it implicitly
or directly intended, authorized, or instructed Marie to use the parking lot as her access
route to work. Appellees filed a response to the City’s plea and argued that Marie’s
injuries did not occur in the course and scope of her employment, and, therefore, Marie
was not subject to the exclusive remedy of workers’ compensation insurance. After a
hearing, the trial court denied the City’s plea. This interlocutory appeal followed. See
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (allowing immediate appeal of an
interlocutory order denying a plea to the jurisdiction by a governmental unit).
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II. DISCUSSION
A. Standard of Review
A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of
subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its
purpose is to defeat a cause of action without regard to whether the claims asserted have
merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the
disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623,
632 (Tex. 2015). The plaintiff has the burden to allege facts that affirmatively demonstrate
the trial court’s jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d
864, 867 (Tex. 2002). We construe the pleadings liberally in favor of the plaintiff and look
to the pleader’s intent. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922,
927 (Tex. 2015) (per curiam). If the pleadings generate a fact question regarding the
jurisdictional issue, a court cannot sustain the plea to the jurisdiction. Ryder, 453 S.W.3d
at 927. If jurisdictional facts are disputed, we consider any evidence submitted by the
parties to the trial court. Blue, 34 S.W.3d at 555.
B. Applicable Law
Governmental immunity defeats subject-matter jurisdiction in suits against
subdivisions of the State, such as the City, unless that immunity has been clearly and
unambiguously waived by the legislature. See Sykes, 136 S.W.3d at 638. Governmental
immunity encompasses both immunity from liability and immunity from suit. Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TTCA waives
governmental immunity for a governmental entity, like the City, for personal injuries
caused by a condition of real property. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2);
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see Miranda, 133 S.W.3d at 224; Jefferson Cty. v. Farris, 569 S.W.3d 814, 823 (Tex.
App.—Houston [1st Dist.] 2018, pet. filed) (per curiam) (citing TEX. CIV. PRAC. & REM.
CODE ANN. § 101.025(a)). However, “[a] governmental unit that has workers’
compensation insurance or that accepts the workers’ compensation laws of this state is
entitled to the privileges and immunities granted by the workers’ compensation laws of
this state to private individuals and corporations.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.028. The Texas Workers Compensation Act (TWCA) states that “[r]ecovery of
workers’ compensation benefits is the exclusive remedy of an employee covered by
workers’ compensation insurance coverage . . . for . . . a work-related injury sustained by
the employee.” TEX. LABOR CODE ANN. § 408.001(a); see City of Bellaire v. Johnson, 400
S.W.3d 922, 922 (Tex. 2013) (per curiam); see also City of Dallas v. Salyer, No. 05-12-
00701-CV, 2013 WL 3355027, at *2–3 (Tex. App.—Dallas July 1, 2013, no pet.) (mem.
op.). Therefore, if the exclusive remedy bar provided by the TWCA applies to an
employee’s claim against his city employer, then the city’s governmental immunity is not
waived. City of Bellaire, 400 S.W.3d at 924; see Durhart v. State, 610 S.W.2d 740, 743
(Tex. 1980) (noting that, in adopting the TTCA and providing workers’ compensation
coverage for state employees, the state retains its immunity and provides its employees
an alternate remedy through workers compensation insurance).
Under the TWCA, an injury is compensable and subject to the exclusive remedy
bar if it “arises out of and in the course and scope of employment . . . .” TEX. LAB. CODE
ANN. § 401.011(10); Berrelez v. Mesquite Logistics USA, Inc., 562 S.W.3d 69, 74 (Tex.
App.—San Antonio 2018, no pet.); Apollo Enters., Inc. v. ScripNet, Inc., 301 S.W.3d 848,
852 (Tex. App.—Austin 2009, no pet.). Section 401.011(12) of the TWCA defines the
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“[c]ourse 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.” TEX. LAB. CODE ANN. § 401.011(12). The long-standing rule
is that to be considered within the course and scope of employment, the employee’s injury
must “(1) relate to or originate in, and (2) occur in the furtherance of, the employer’s
business.” Leordeanu v. Am. Prot. Ins., 330 S.W.3d 239, 241 (Tex. 2010); see Am. Cas.
Co. of Reading Pa. v. Bushman, 480 S.W.3d 667, 673–74 (Tex. App.—San Antonio 2015,
no pet.); Tex. Workers’ Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 768 (Tex. App.—
Corpus Christi–Edinburg 1997, pet. denied) (“Course and scope of employment is not
limited to the exact moment when the employee reports for work, the moment when the
employee’s labors are completed, or to the place where work is done.”).
C. Analysis
Here, the parties dispute whether Marie was in the course and scope of her
employment when she suffered her injuries. If she was within the course and scope of
her employment, then the exclusive remedy bar of the TWCA applies, and the City’s
immunity has not been waived. See City of Bellaire, 400 S.W.3d at 924; see also TEX.
LAB. CODE ANN. § 408.001(a). If she was not within the course and scope of her
employment, the TTCA waives the City’s immunity because Marie suffered injuries as a
result of a condition of real property. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2);
City of Bellaire, 400 S.W.3d at 924
The general rule in Texas is that travel to and from work is not considered to be
within the course and scope of the employee’s employment. Lumberman’s Reciprocal
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Ass’n v. Behnken, 246 S.W. 72, 74 (Tex. 1922); Bissett v. Tex. Emp’rs Ins. Ass’n, 704
S.W.2d 335, 337 (Tex. App.—Corpus Christi–Edinburg 1986, writ ref’d n.r.e.); see Evans
v. Ill. Emp’rs Ins. of Wausau, 790 S.W.2d 302, 304 (Tex. 1990) (“The risks to which
employees are exposed while traveling to and from work are shared by society as a whole
and do not arise as a result of the work of employers.”); Tex. Comp. Ins. v. Matthews, 519
S.W.2d 630, 631 (Tex. 1974). An exception to this rule lies in the “access doctrine,” where
“the employer has evidenced an intention that the particular access route or area be used
by the employee in going to and from work, and where such access route or area is so
closely related to the employer’s premises as to be fairly treated as part of the premises.”
Matthews, 519 S.W.2d at 631 (citing Behnken, 246 S.W. at 74) (emphasis added);
Dickson v. Silva, 880 S.W.2d 785, 797 (Tex. App.—Houston [1st Dist.] 1993, writ denied);
Bordwine v. Tex. Employers’ Ins. Ass’n, 761 S.W.2d 117, 119 (Tex. App.—Houston [14th
Dist.] 1988, writ denied); Turner v. Tex. Employers’ Ins. Assoc., 715 S.W.2d 52, 53 (Tex.
App.—Dallas 1986, writ ref’d n.r.e.); Standard Fire Ins. v. Rodriguez, 645 S.W.2d 534,
538 (Tex. App.—San Antonio 1982, writ ref’d n.r.e.); Tex. Employers’ Ins. Ass’n v. Dean,
604 S.W.2d 346, 349 (Tex. App.—El Paso 1980, no writ); Kelty v. Travelers Ins., 391
S.W.2d 558, 562 (Tex. App.—Dallas 1965, writ ref’d n.r.e.). For the access doctrine to
apply, the injury need not “occur upon the only access to the place of employment . . . .”
Rodriguez, 645 S.W.2d at 539.
The cases considering the application of the [access] doctrine
support the general propositions that an employee is deemed to be in the
course of his employment within a reasonable margin of time necessary for
passing to and from the place of his [or her] work both before and after his
[or her] actual hours of service; that an injury received within that period is
ordinarily held to have been sustained in the course of employment if it
occurs at a place intended by the employer for use by the employee in
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passing to and from the actual place of service, on premises owned or
controlled by the employer, or so closely related to the employer’s premises
as to be fairly treated as part thereof . . . .
Tex. Employers’ Ins. Ass’n v. Lee, 596 S.W.2d 942, 945–46 (Tex. App.—Waco 1980, no
writ) (emphasis added). In summary, Texas courts have repeatedly noted that, in order
for the employee to be considered to be in the course of his or her employment, there
must be some intention by the employer, explicit or implicit, that the employee use that
particular access route. Bordwine, 761 S.W.2d at 119–20 (“If the employee [is] injured
while passing, with the express or implied consent of the employer, to or from his work by
way of the employer’s premises, . . . the injury is one arising out of and in the course of
the employment . . . .”); Turner, 715 S.W.2d at 54; Dean, 604 S.W.2d at 349; see
Matthews, 519 S.W.2d at 631 (noting that 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); Behnken, 246 S.W. at 74.
Here, appellees contend that the City failed to introduce any evidence that the City
intended or authorized Marie to park in the City Hall parking lot and that the parking lot is
open to the general public. We agree. The City presented no evidence along with its
plea indicating that the City implicitly or directly intended, authorized, or instructed Marie
to use the City Hall parking lot as her access route to work. See Matthews, 519 S.W.2d
at 631; Behnken, 246 S.W. at 74.
Furthermore, whether an injury was received by an employee under circumstances
constituting the scope and course of his or her employment “is usually a question of fact
governed and controlled by the particular facts of each case.” Berry Contracting, L.P. v.
Mann, 549 S.W.3d 314, 325 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied);
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Turner, 715 S.W.2d at 55; Kelty, 391 S.W.2d at 565 (citing Liberty Mut. Ins. v. Nelson,
178 S.W.2d 514, 516 (Tex. 1944); Fed. Underwriters’ Exch. v. Lehers, 120 S.W.2d 791,
792 (Tex. [Comm’n Op.] 1938); Tex. Employers’ Ins. Ass’n v. Davidson, 295 S.W.2d 482,
484 (Tex. App.—Fort Wort 1956, writ ref’d n.r.e.)) (“Our courts have repeatedly stated
that whether an employee was in the course of his employment when he received an
injury is ordinarily a question of fact.”); but see Dickson, 880 S.W.2d at 787 (concluding
that employee was in the scope of employment as a matter of law in workers’
compensation case when “driveway on which accident occurred was located entirely on
the employer’s premises and provided the only means of ingress and egress.”).
After reviewing the pleadings, the City’s plea to the jurisdiction, and the evidence
submitted therewith, we conclude that the City failed to show that the trial court lacked
subject-matter jurisdiction. See Rodriguez, 645 S.W.2d at 537; Kelty, 391 S.W.2d at 560,
564–65.
We overrule the City’s sole issue.
III. CONCLUSION
We affirm the trial court’s order.
DORI CONTRERAS
Chief Justice
Delivered and filed the
6th day of June, 2019.
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