Alief Independent School District v. Anthony Velazquez ( 2023 )

Opinion issued May 18, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00444-CV
———————————
ALIEF INDEPENDENT SCHOOL DISTRICT, Appellant
V.
ANTHONY VELAZQUEZ, Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Case No. 2021-42160
MEMORANDUM OPINION
Appellee Anthony Velazquez was severely injured when Chinyere
Iheagwam (“Iheagwam”), a former employee of Appellant Alief Independent
School District (“AISD”), struck him with her car. Appellee sued AISD for
negligence and gross negligence, asserting the district was liable under the Texas
Tort Claims Act because Iheagwam was employed by AISD and “operating and
using a motor-driven vehicle in the course and scope of her employment” when the
accident occurred. AISD filed a Plea to the Jurisdiction arguing it was entitled to
governmental immunity because at the time of the accident, Iheagwam was acting
outside the scope of her employment. The trial court denied AISD’s plea. This
appeal ensued.
In one issue, AISD argues the trial court erred in denying its Plea to the
Jurisdiction because it established Iheagwam was acting outside the scope of her
employment when the accident occurred. Thus, AISD argues, the Texas Tort
Claims Act’s waiver of immunity is inapplicable and AISD is entitled to
governmental immunity.
We reverse and render.
Background
This lawsuit arises from a tragic motor vehicle accident involving Appellee
Anthony Velazquez (“Velazquez”), a high school student at Alief Hastings High
School, and Iheagwam, a former AISD cafeteria worker. On October 23, 2019,
Iheagwam was working in the cafeteria at Alief Hastings High School. After
concluding her cafeteria shift, Iheagwam got into her personal car to drive from
Alief Hastings High School’s ninth grade building to AISD’s administrative block,
where, according to Iheagwam, she intended to ask some questions about her
2
AISD-issued health insurance. At approximately 2:42 p.m., as she was driving to
AISD’s administrative building, Iheagwam struck Velazquez with her car.
Velazquez was walking across the street with friends when Iheagwam struck him.
According to Velazquez’s pleadings, the impact flipped Velazquez into the air,
dropped him to the pavement, and left him unconscious with a skull fracture and
traumatic brain injury. Velazquez, who has since had multiple brain surgeries, has
“significant physical and cognitive impairment,” and had to relearn to “walk, eat,
and function.”
Police were dispatched to the scene of the accident. Iheagwam’s manager1
also called Iheagwam and discussed the accident with her while she was still at the
scene of the accident. According to the police report, Iheagwam was charged with
aggravated assault with a deadly weapon. During Iheagwam’s deposition in this
case, she testified she pleaded guilty to assault with serious bodily injury. She also
testified that AISD terminated her employment on October 28, 2019 as a result of
the accident.
Velazquez sued AISD for negligence and gross negligence. He alleged the
trial court had jurisdiction over his claims under Sections 101.021(1) and 101.025
of the Texas Tort Claims Act (“TTCA”) because Iheagwam was an AISD
employee who “was operating and using a motor-driven vehicle in the course and
1
Iheagwam first testified in her deposition that her manager was named Chris but
subsequently said her manager, Trace Caesar, called her about the accident.
3
scope of her employment” when the accident occurred. According to Velazquez,
Iheagwam “was driving between campus buildings to complete tasks and activities
for which she was hired and paid, and she was acting in furtherance of Alief ISD’s
objectives and the objectives for which she was hired” at the time of the accident.
Velazquez alleged that AISD was subject to a waiver of immunity from suit under
Sections 101.021(1) and 101.025 of the TTCA.
AISD filed a general denial asserting governmental immunity and lack of
subject-matter jurisdiction, among other defenses. AISD then filed a Plea to the
Jurisdiction (“Plea”) asserting that the TTCA’s “limited waiver of immunity does
not waive AISD’s immunity here because, at the time of the accident, AISD’s
employee was outside the scope of her employment.” In support of its Plea, AISD
submitted Iheagwam’s job description and a letter from AISD’s insurer denying
Velazquez’s claim because Iheagwam was not driving an AISD vehicle when the
accident occurred.
AISD also attached to its Plea the affidavit of Heather Hayes-Ramirez
(“Hayes-Ramirez”), AISD’s Director of Nutrition. Hayes-Ramirez testified that
she oversees AISD department employees, including cafeteria workers, and further
averred that:
Ms. Iheagwam was not acting in the course and scope of her duties at
AISD when the collision occurred.
4
Ms. Iheagwam was never directed or requested by anyone at the
District to report to any AISD office, facility, or destination after her
shift ended at 2:30 p.m. on October 23, 2019. Ms. Iheagwam clocked
out at 2:30 p.m. on October 23, 2019, and that was the end of any duty
for her day for AISD. . . .
Ms. Iheagwam was not acting in her capacity as a cafeteria worker
and she was not performing duties pursuant to her job at the District at
the time of the collision which is the subject of the instant lawsuit.
She was doing nothing to benefit or for the benefit of AISD at the
time of the collision.
Attached to Hayes-Ramirez’s affidavit was Iheagwam’s payroll sheet and time
clock record for the period of October 19 to October 25, 2019 (“Payroll Record”).
The Payroll Record contains separate columns for “Date In,” “Time In,” “Actual
In,” “Time Out,” and “Actual Out” entries. The Payroll Record also has a separate
column for “Day Total,” reflecting the total hours worked each day. For October
23, 2019, the date of the accident, the Payroll Record reflects that Iheagwam’s
“Time In” was 8 a.m., and her “Actual In” was at 7:55 a.m. Her next “Time Out”
was 9:30 a.m., and her “Actual Out” was 9:35 a.m.. Her next “Time In” was 10
a.m., and her “Actual In” was at 10:05 a.m. And her last “Time Out” was 2:30
p.m., but there is no entry for her last “Actual Out.”2 Under the “Day Total”
column, the Payroll Record indicates that Iheagwam worked 6 hours on October
23, 2019, and every other day that work week. The Payroll Record reflects the
2
Hayes-Ramirez’s affidavit statement that Ms. Iheagwam “clocked out” at 2:30
p.m. on October 23, 2019 is not reflected in the Payroll Record. As noted, the
Payroll Record does not reflect Iheagwam’s last “Actual Out” time.
5
following:3
Velazquez filed a response to the Plea, asserting the TTCA’s waiver of
immunity applies because at the time of the accident, Iheagwam was “traveling
between two AISD locations so she could complete paperwork connected with her
employment.” Velazquez argued that Iheagwam was “driving her car at nearly
twice the speed limit” when she struck Velazquez and that one of the news reports
of the accident stated “she was rushing to get to another building on campus in
order to do something with paperwork.”4 Velazquez argued that the Payroll
Record attached to Hayes-Ramirez’s affidavit suggests that Iheagwam was “on the
clock” and in the course and scope of her employment when the accident occurred
3
For October 24 and 25, 2019, the Payroll Record reflects that 6 hours were
allocated to Iheagwam each day for “3810-Illness-S,” for a total work week of 30
hours.
4
Velazquez concedes the news reports are hearsay.
6
because she “never clocked out, because she had the crash while she was still on
duty on her way to complete her paperwork.”
Velazquez objected to Hayes-Ramirez’s affidavit, asserting it did not explain
how she had personal knowledge of the facts to which she testified. Velazquez
also questioned the veracity of the Payroll Record attached to the affidavit,
claiming the record demonstrates “that Iheagwam was scheduled to work until
2:30, but had not yet clocked out at the time of the crash.” At most, Velazquez
contended, AISD’s evidence raised a fact issue as to whether Iheagwam was “on
the clock” at the time of the crash.
The trial court conducted an oral hearing on the Plea and granted Velazquez
a continuance of thirty days to conduct limited and targeted jurisdictional
discovery.5 Subsequently, AISD filed a First Amended Plea to the Jurisdiction
(“Amended Plea”) asserting the same arguments but attaching additional exhibits.
The exhibits to the Amended Plea included the AISD Nutrition Employee
Handbook, the Payroll Record, Iheagwam’s job description, and a brief excerpt of
Iheagwam’s video deposition. Also attached to the Amended Plea was a new
affidavit from Hayes-Ramirez, who averred that Iheagwam’s work shift ended at
2:30 p.m. on October 23, 2019, and not, as her first affidavit stated, that she
clocked out at that time. The amended Hayes-Ramirez affidavit states in part:
5
The transcript of the hearing is not in the record.
7
Ms. Iheagwam was not acting in the course and scope of her duties at
AISD when the collision occurred as her duty day ended before the
accident occurred.
As a cafeteria worker, Ms. Iheagwam’s duties are specifically outlined
in the Nutrition Employee Handbook. . . . Employees are not to
remain in a school after clocking out or when not scheduled to work
unless approved by a supervisor[.] A cafeteria worker can be
reimbursed for mileage from school to school if they clock in and later
the employee is needed to go to another school because of staff
shortages[.] This was not the case for Ms. Iheagwam on October 23,
2019.
Ms. Iheagwam was never directed or requested by anyone at the
District to report to any AISD office, facility, or destination after her
shift ended at 2:30 p.m. on October 23, 2019.
Any activities that Ms. Iheagwam performed after the end of her duty
at 2:30 p.m. were not within the course and scope of her employment
at AISD and were of a personal nature.
Ms. Iheagwam’s duties ended at 2:30 p.m. on October 23, 2019, and
that was the end of any duty for her day for AISD. . . .
Ms. Iheagwam was not acting in her capacity as a cafeteria worker
and she was not performing duties pursuant to her job at the District at
the time of the collision which is the subject of the instant lawsuit.
She was doing nothing to benefit or for the benefit of AISD at the
time of the collision.
The Amended Plea was set for submission. Velazquez filed a response to the
Amended Plea, providing references to Iheagwam’s deposition in support of his
argument that Iheagwam was acting within the course and scope of her
employment when the accident occurred at 2:42 p.m. on October 23, 2019.
8
The trial court denied the Amended Plea. This interlocutory appeal
followed.6
Discussion
In a single issue, AISD challenges the trial court’s denial of its Amended
Plea. AISD argues that, as a governmental entity, it is immune from suit “on any
claim that does not trigger a clear and unambiguous statutory waiver of immunity.”
AISD asserts that the only potentially “applicable waiver of immunity from suit in
this case is governed by the [TTCA]—which only applies when a government
employee is operating a motor vehicle and acting within the scope of their
employment. AISD argues that such waiver of immunity does not apply here
because while Iheagwam was a government employee, she was not acting within
the scope of that employment when the accident occurred. AISD further asserts
that Velazquez did not establish the trial court’s jurisdiction or satisfy his “heavy”
burden to negate the jurisdictional facts pleaded by AISD.7
6
See TEX. CIV PRAC. & REM. CODE § 51.014(a)(8) (stating that an interlocutory
appeal may be made from an order granting or denying a plea to the jurisdiction
by a governmental unit).
7
Texas governmental units are entitled to a “heavy presumption” in favor of
immunity. Lara v. City of Hempstead, No. 01-15-00987-CV, 2016 WL 3964794,
at *3 (Tex. App.—Houston [1st Dist.] July 21, 2016, pet. denied) (mem. op.)
(citing City of Galveston v. State, 217 S.W.3d 466, 469 (Tex. 2007)).
9
A. Standard of Review
Subject matter jurisdiction is implicit in a court’s power to decide a case.
City of Houston v. Rhule, 417 S.W.3d 440, 442 (Tex. 2013). To establish subject
matter jurisdiction, the plaintiff must allege facts that demonstrate affirmatively the
court’s jurisdiction to hear his claims. Town of Shady Shores v. Swanson, 590
S.W.3d 544, 550 (Tex. 2019). The determination of whether a court has subject
matter jurisdiction is a question of law. Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004).
A plea to the jurisdiction “is a dilatory plea that seeks dismissal of a case for
lack of subject matter jurisdiction.” Harris Cty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004); TitleMax of Tex., Inc. v. City of Austin, 639 S.W.3d 240, 245 (Tex.
App.—Houston [1st Dist.] 2021, no pet.). Our review of a plea to the jurisdiction
is de novo and mirrors the standard of review of a traditional motion for summary
judgment. Miranda, 133 S.W.3d at 226; Mission Consol. Indep. Sch. Dist. v.
Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In our review, we “take as true all
evidence favorable to the nonmovant” and “indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.” Miranda, 133 S.W.3d at 228.
“[A] court deciding a plea to the jurisdiction . . . may consider evidence and
must do so when necessary to resolve the jurisdictional issues raised.” Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). We may consider
10
evidence necessary to resolve a dispute over jurisdictional facts even if the
undisputed evidence “implicates both the subject matter jurisdiction of the court
and the merits of the case.” Miranda, 133 S.W.3d at 226. If the defendant meets
its burden to establish the trial court lacks jurisdiction, the burden shifts to the
plaintiff, who then must show there is a question of material fact as to the
jurisdictional issue. Garcia, 372 S.W.3d at 635. If the evidence raises a fact issue
concerning jurisdiction, the plea cannot be granted, and the fact finder must resolve
the issue. Id. If, on the other hand, the evidence is undisputed or does not raise a
fact issue, the plea must be determined as a matter of law. Id.
B. The Texas Tort Claims Act
Governmental immunity protects the state’s political subdivisions, such as
counties, cities, and school districts. Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 694 n.3 (Tex. 2003); Democratic Sch. Research, Inc. v. Rock, 608
S.W.3d 290, 306 (Tex. App.—Houston [1st Dist.] 2020, no pet.). A plaintiff who
sues a political subdivision of the state must establish that the state consented to
suit. KIPP Tex., Inc. v. Doe #1, 649 S.W.3d 850, 853 (Tex. App.—Houston [1st
Dist.] 2022, no pet.). In the absence of such a showing, governmental immunity
deprives the trial court of subject-matter jurisdiction. Id.A party who sues a governmental entity must establish jurisdiction by
pleading and proving a valid immunity waiver and a claim that falls within the
11
waiver. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 135 (Tex. 2015);
Tex. Dep’t of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Courts of
appeals “interpret statutory waivers of immunity narrowly, as the Legislature’s
intent to waive immunity must be clear and unambiguous.” Garcia, 253 S.W.3d at
655 (citing TEX. GOV’T CODE § 311.034). It is well-settled that “any purported
statutory waiver of sovereign immunity should be strictly construed in favor of
retention of immunity.” PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296, 303
(Tex. 2019) (quoting Prairie View A & M Univ. v. Chatha, 381 S.W.3d 500, 513
(Tex. 2012)).
The TTCA provides a limited waiver of immunity for certain suits against
governmental entities. See TEX. CIV. PRAC. & REM. CODE § 101.021; see also
Miranda, 133 S.W.3d at 224. In this case, Velazquez alleged that AISD is subject
to a waiver of immunity from suit under Sections 101.021(1) and 101.025 of the
TTCA. Section 101.021(1) of the TTCA states that a governmental unit of the
state is liable for property damage and personal injury “proximately caused by the
wrongful act or omission or the negligence of an employee acting within his scope
of employment” if the damage or injury “arises from the operation or use of a
motor-driven vehicle” and “the employee would be personally liable to the
12
claimant according to Texas law[.]”8 TEX. CIV. PRAC. & REM. CODE § 101.021(1).
And Section 101.025 provides that “[s]overeign immunity to suit is waived and
abolished to the extent of liability created by this chapter,” and that one who has a
claim under this chapter “may sue a governmental unit for damages allowed by this
chapter.” Id. § 101.025.
C. Analysis
In its sole issue, AISD contends the trial court erred in denying its Amended
Plea because Iheagwam was not acting within the scope of her employment when
she struck Velazquez with her car. AISD states that Iheagwam’s shift had ended
when the accident occurred at 2:42 p.m., and that she had not been told or
otherwise directed by AISD to drive to the administrative block to discuss her
benefits or complete paperwork after her shift ended.
Velazquez responds that the trial court properly denied the Amended Plea
because he presented evidence that at the time of the accident, “Iheagwam was on
the clock and traveling from one Alief ISD on-campus building to another” to
perform “administrative work relating to the health insurance benefits” AISD
provided her “as compensation for providing her job duties.” Velasquez contends
that “Iheagwam’s trip from the high school cafeteria to the administrative block
8
The TTCA’s waiver is narrow for school districts, encompassing only tort claims
involving motor vehicles. TEX. CIV. PRAC. & REM. CODE §101.051.
13
was connected with the performance of her job duties and was in furtherance” of
AISD’s business.
1. Iheagwam’s deposition
In its response to AISD’s Amended Plea, Velazquez attached excerpts from
Iheagwam’s deposition.9 In response to questioning by Velazquez’s counsel,
Iheagwam testified that on the day of the accident, she was an AISD employee:
Q: And were you driving a car that hit a student that day?
A: Yes, sir.
Q: And on the day that this happened, who was your employer?
A: My employer was Alief ISD.
Q: To confirm, ma’am, on the day of this incident your employer
was Alief Independent School District; is that correct?
A: Yes, sir.
Q: At the time that you hit the student were you wearing your
Alief Independent School District green uniform?
A: Yes, sir.
As the deposition continued, Iheagwam testified that at the time of the accident,
she was driving from the Alief Hastings High School ninth-grade building to
AISD’s administrative block on the same campus:
Q: Ms. Iheagwam, where were you going when the incident
9
We do not have a full record of Iheagwam’s deposition testimony. Only excerpts
of her deposition are in the record.
14
happened?
A: I was going to the administrative block.
...
Q: Okay. And where were you coming from immediately before
the wreck, ma’am?
A: I’m coming from High Star.
Q: What building on High Star were you coming from?
A: I was coming from ninth grade – ninth grade.
Q: Okay. So Ms. Iheagwam, just before the incident you were
coming from the ninth grade building at Alief School District;
is that correct?
A: Yes, sir.
Q: And that was located on High Star; is that correct?
A: Yes, sir.
Q: And you were driving to the Alief Independent School District
Administrative Block; is that correct?
(Objection by AISD’s counsel)
A: Yes, sir.
Iheagwam testified that she was driving to the AISD administrative block to
inquire about health “insurance [she] was enrolled for:”
Q: Ms. Iheagwam, to confirm, at the time of the incident you were
going to another part of the school to do administrative work; is
that correct?
15
A: Yes, sir.
Q: And you were going to the Alief School District Administrative
Block; is that correct?
A: Yes, sir.
Q: Who were you going to meet with at the administrative block?
A: I want to meet the person that give me the insurance to explain
things for them and show them my card.
Q: You were going to meet with the people that do the health
insurance for your job; is that correct?
A: Yes, sir.
Iheagwam testified that she was driving to the administrative block “in furtherance
of” her job with AISD:
Q: And so you were going there in furtherance of your job with
Alief, correct?
A: Yes, sir.
Q: And . . . [y]ou were a cafeteria worker at that time, correct?
A: Yes, sir.
Q: And as an Alief cafeteria worker you would get paid for your
time, correct?
A: Yes, sir.
Q: In addition, you would also get benefits such as health
insurance, correct?
A: Yes, sir.
16
Q: And so the purpose of your trip to the other part of the school
was in relation to you getting health insurance with your job; is
that correct?
A: Yes, sir.
Q: And that is part that was part of your compensation package,
correct?
A: Yes, sir.
Q: And that health insurance was for your benefit but also for the
school’s benefit, correct?
A: Yes, sir.
Q: How long had your worked as a cafeteria worker?
A: For about one year.
...
Q: Okay and you were being provided health insurance from the
school as part of your working as a cafeteria worker, correct?
A: Yes, sir.
Q: And so as part of your job you were going to the administrative
block that day in relation to getting paid as a cafeteria worker,
correct?
A: Yes, sir.
Iheagwam testified that when the police arrived at the accident scene, she told
them that she was “going to the administrative block for [her] insurance” to ask
questions about her insurance card. She testified that on October 23, 2019—the
day of the accident—she clocked out at 2 p.m. Finally, Iheagwam testified that her
17
manager, Trace Caesar, called her the day of the accident to discuss what
happened, and that five days later, AISD terminated her employment because of
the accident:
Q: Did you fill out anything in writing for the school as to what
happened?
A: No. When they called me – the school called me on the 28th
[of October] . . . my husband [drove] me down to the school.
They [brought] a form for me to sign. I said, “Why am I
signing this?” . . . [S]he’s saying that my job has been
terminated. I say, “Why? Because of the accident I have?”
They said, “Yes.”
...
Q: Okay. . . . When you were with the police, Trace Caesar from
Alief School District called you, correct?
A: Yes, sir.
Q: Okay. And then a few days later, is it correct that you got
another phone call from the school?
A: Yes, sir.
Q: Who called you that time?
A: They called me from the teaching department.
...
Q: Okay. So someone from the administrative block department
called you on October 28th?
A:. Yes, sir. Someone from the administrative block –
Q: Okay. But you don’t – you don’t remember her name?
18
A: I don’t remember her name.
Q: Okay. And that person asked you to come to the school?
A: Yes, sir.
Q: And did you go to the school?
A: Yes, I went.
Q: The same day?
A: They gave me a day to come on 28th. . . . They give me
something to sign. I say, “Why am I signing this?” They said
that I should sign it, my job is terminated. So I say, “What?
Because of the accident?”
Q: Was the document that they gave you already filled out when
they handed it . . . to you?
A: Yes, they filled it out and handed it over to me to sign.
Q: And you refused to sign that?
A: I said, Why am I signing this?” They said, that I should sign it.
I say, “is it because of the accident I have in the school zone?”
They said, “Yes.” 10
2. Scope of Employment
The TTCA broadly defines “scope of employment” as (1) “the performance
for a governmental unit of the duties of an employee’s office or employment,”
which (2) “includes being in or about the performance of a task lawfully assigned
to an employee by competent authority.” Garza v. Harrison, 574 S.W.3d 389, 400
10
AISD does not dispute that it terminated Iheagwam because of the accident.
19
(Tex. 2019) (citing TEX. CIV. PRAC. & REM. CODE § 101.001(5)). The Texas
Supreme Court has looked to the Restatement (Third) of Agency to further explain
the term: “An employee’s act is not within the scope of employment when it
occurs within an independent course of conduct not intended by the employee to
serve any purpose of the employer.” Elias v. Griffith, No. 01-17-00333-CV, 2018
WL 3233587, at *6 (Tex. App.—Houston [1st Dist.] July 3, 2018, no pet.) (mem.
op.) (citing Alexander v. Walker, 435 S.W.3d 789, 792 (Tex. 2014) (citing
RESTATEMENT (THIRD) OF AGENCY § 7.07(2) (2006)). On the other hand, a
governmental employee “acts within the scope of his employment when his act
furthers his employer’s business and is undertaken to accomplish an objective for
which he is employed.” City of Houston v. Lal, 605 S.W.3d 645, 649 (Tex. App.—
Houston [1st Dist.] 2020, no pet.).
The key inquiry is whether, when viewed objectively, a connection exists
“between the employee’s job duties and the alleged tortious conduct.” Garza, 574
S.W.3d at 401. “Simply stated, a governmental employee is discharging generally
assigned job duties if the employee was doing his job at the time of the alleged
tort.” Id. The employee’s state of mind, motives, and competency are irrelevant.
Id. And conjecture as to whether the government employee was acting within the
course and scope of her employment when committing the tort also carries no
weight. “[S]peculation . . . is not enough to raise a fact issue as to whether [an
20
employee] was acting in the course and scope of her employment at the time of the
collision.” City of Houston v. Carrizales, No. 01-20-00699-CV, 2021 WL
3556216, at *6 (Tex. App.—Houston [1st Dist.] Aug. 12, 2021, pet. denied) (mem.
op). “The scope-of-employment analysis . . . remains fundamentally objective: Is
there a connection between the employee’s job duties and the alleged tortious
conduct?” Laverie v. Wetherbe, 517 S.W.3d 748, 753 (Tex. 2017).11
Generally, evidence that an employee was on a “personal errand” when an
accident occurred “refutes an allegation that [she] was acting in the course and
scope of [her] employment.” Molina v. City of Pasadena, No. 14-17-00524-CV,
2018 WL 3977945, at *4 (Tex. App.—Houston [14th Dist.] Aug. 21, 2018, no pet.)
(mem. op.) (citing J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 637 (Tex. App.—
San Antonio 1993, no writ)). “An employee who has turned aside, even briefly,
for a personal errand is no longer in the scope of employment until [she] returns to
‘the path of duty.’” Id. (quoting Sw. Dairy Products Co. v. De Frates, 132 Tex.
556, 560, 125 S.W.2d 282, 284 (1939)); see also City of Beaumont v. Stewart, No.
09-12-00316-CV, 2012 WL 5364678, at *4 (Tex. App.—Beaumont Nov. 1, 2012,
11
The Supreme Court has explained that subjective intent is not “a necessary
component of the scope-of-employment analysis. Rather, the TTCA focuses on
‘performance . . . of the duties of an employee’s office or employment,’ which
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.”
Laverie v. Wetherbe, 517 S.W.3d 748, 752–53 (Tex. 2017) (citing TEX. CIV. PRAC.
& REM. CODE § 101.001(5)).
21
no pet.) (mem. op.) (observing in TTCA case that it is “well settled” in this state
that “[w]hen an employee deviates from the performance of his duties as an
employee for his own, personal purposes, his employer is neither responsible nor
liable on a respondeat superior theory for what occurs during that deviation”)
(quoting Drooker v. Saeilo Motors, 756 S.W.2d 394, 397 (Tex. App.—Houston
[1st Dist.] 1988, writ denied) (emphasis in original)).
3. Analysis
Velazquez argues that because the Payroll Record reflects that Iheagwam
“never clocked out” on October 23, 2019, that raises an inference that the “crash
[occurred] while she was on duty.” While the last “Actual Out” entry in the
Payroll Record is blank for October 23, 2019, that does not create an issue of
material fact as to whether Iheagwam was on duty when the accident occurred.
Whether or not Iheagwam physically clocked out on October 23, 2019, the
undisputed testimony from Hayes-Ramirez is that Iheagwam’s cafeteria shift ended
at 2:30 p.m. that day. Thus, the evidence before the trial court established that
Iheagwam was not on duty or being paid when the accident occurred at
approximately 2:42 p.m.12
12
The fact that Iheagwam apparently did not clock out on October 23, 2019 does not
establish a fact issue as to whether she was on duty when the accident occurred.
Iheagwam testified that she clocked out at 2 p.m., and AISD’s Hayes-Ramirez
testified that Iheagwam’s duties for the district ended at 2:30 p.m. Thus, there is
22
There is also no evidence that Iheagwam was expected to return to work on
October 23, 2019, or that AISD instructed her to drive anywhere or to complete
any tasks after her cafeteria shift ended. On the contrary, the amended affidavit of
Hayes-Ramirez established that Iheagwam’s duties for AISD ended at 2:30 p.m. on
October 23, 2019, and that she “was never directed or requested by anyone at the
District to report to any AISD office, facility, or destination after her shift ended.”
Iheagwam’s deposition excerpts did not dispute this testimony.
Iheagwam was driving her own car when the accident occurred. She
testified that she was driving to AISD’s administrative block building to ask
questions about her insurance benefits when she struck Velazquez. The evidence
established that AISD did not direct Iheagwam to go to the administrative building
or any other AISD office or facility after her shift ended to meet with anyone about
her insurance benefits. Iheagwam was not a new employee, and she was not on her
way to complete her initial insurance paperwork. Instead, she testified she
“want[ed] to meet the person that give me the insurance to explain things for them
and show them my card.”
AISD’s involvement in the investigation of the accident and subsequent
termination of Iheagwam are not relevant to our inquiry. The salient question is
whether at the time of the accident, Iheagwam was acting within the scope of her
no evidence that Iheagwam was still on duty at 2:42 p.m. when the accident
occurred. There is only evidence that she did not physically clock out on that day.
23
employment for AISD. See Garza, 574 S.W.3d at 400 (“[T]he critical inquiry is
whether, when viewed objectively, “a connection [exists] between the employee’s
job duties and the alleged tortious conduct.”) (citing Laverie, 517 S.W.3d at 753).
Nor do we believe the proximity between Alief Hastings High School’s ninth-
grade building from which Iheagwam was leaving and the administrative block to
which she was driving factors into the analysis.13
Velazquez argues that because Iheagwam was traveling to the administrative
block to inquire about her health insurance benefits, Iheagwam was in the scope of
her employment when the accident occurred. He argues that the health insurance
AISD offers to its employees as part of its compensation package “helps employers
attract and retain employees” and “helps keep the employer’s workforce healthy,
thereby reducing absenteeism.” He contends that “the administrative aspects of
employee compensation benefit Alief ISD and fall with the scope of its employee’s
employment.” Thus, according to Velazquez, Iheagwam’s trip “to the
administrative block to perform administrative work relating to her health-
insurance benefits was in the scope of her employment because Alief ISD would
realize a benefit from that conduct.” We are not persuaded by Velazquez’s
arguments. While the provision of health insurance benefits may attract employees
and reduce absenteeism, that is not relevant to our scope-of-work analysis. “The
13
That is, the fact that the administrative block and the ninth grade building were on
the same campus is irrelevant for purposes of our analysis.
24
key question in a case like this one [] is whether, when viewed objectively, there
[is] a connection between the [tortfeasor’s] job duties and his allegedly tortious
act.” Lal, 605 S.W.3d at 649.
Velazquez relies on three cases for the proposition that because AISD would
realize “a benefit” from Iheagwam’s visit to the administrative block to discuss her
health-insurance benefits, she was acting within the scope of her employment
when the accident occurred. He relies first on City of Eagle Pass v. Luna, No. 04-
05-00744-CV, 2006 WL 622592 (Tex. App.—San Antonio Mar. 15, 2006, no pet.)
(mem. op.). In Luna, a city employee (“Perales”) was an “umpire and referee for
various sports.” 2006 WL 622592 at *1. Perales used a city vehicle during work
hours to purchase breakfast for other employees. Id.14 Either on the way to or
back from picking up the food, Perales collided with Luna’s vehicle. Id. at *1.
Luna sued Perales and the City of Eagle Pass. The City filed a plea to the
jurisdiction and motion to dismiss, which the trial court denied. Id. The City
argued that Perales’ trip during a break to purchase food and drink “did not further,
directly or indirectly, the City’s business.” Id. at *2. Luna’s evidence established
that (1) Perales was “on the clock” and earning wages at the time the accident
14
There is a rebuttable presumption “that an employee [is] in the scope of
employment if the employer owns the vehicle and regularly employs the driver.”
Cnty. of Hidalgo v. Taylor, No. 13-21-00090-CV, 2022 WL 2838423, at *2 (Tex.
App.—Corpus Christi–Edinburg July 21, 2022, no pet.) (mem. op.). Given that
Iheagwam was driving her own car when the accident occurred, there is no such
rebuttable presumption regarding course and scope in this case.
25
occurred; (2) an employee’s purchase of food and drink for other employees “can
benefit the employer in several ways;” (3) it was a “routine practice” for an
employee to leave to purchase food and drink for the other employees; and (4) the
supervisors gave express or implied permission to Perales to use a City vehicle for
that purpose. Id. The court of appeals affirmed the trial court’s denial of the
City’s plea to the jurisdiction, holding the evidence created a fact issue as to
whether Perales was acting within the course and scope of his employment when
the accident occurred. Id.Luna is inapposite. First, Perales was on the clock and driving a city-owned
vehicle when the collision at issue occurred. Second, that it was a “routine
practice” for an employee to leave to purchase food and drink for the other
employees and that supervisors gave express or implied permission to Perales to
use a City vehicle for that purpose sets Luna apart from the present case. There
was no showing here that Iheagwam had permission to stay on the AISD campus
after her cafeteria duty ended. Rather, the evidence established that she was
driving her own car when the accident occurred, that no one directed her to drive to
the administrative building, and that she was no longer on duty or being paid for
her travel time to the administrative block.
Velazquez also relies on City of Houston v. Lal, 605 S.W.3d 645 (Tex.
App.—Houston [1st Dist.] 2020, no pet), which stemmed from a Houston police
26
officer’s collision while driving a city-owned police car. Id. at 647. The officer
(“Ryans”) was off duty the day of the accident but remained on call to respond to
human-trafficking cases. Id. Immediately before the accident, Ryans, who was
driving, looked at his city-owned cell phone to see who was calling him. Id. The
distraction caused the accident. Id. The accident victim sued the City of Houston
for negligence, alleging Ryans was acting within the scope of his employment
when the accident occurred. Id. The City filed a plea to the jurisdiction, arguing
Ryans was not acting within the scope of his employment when the collision
occurred. Id. at 647–48. The trial court denied the plea to the jurisdiction. Id. at
648.
The City argued that Ryans was not on duty and “his on-call status, standing
alone, did not render his conduct within the scope of his employment.” Id. at 649.
The City argued that “looking at a ringing phone” did not render Ryans’ conduct
within the scope of employment, but this Court disagreed, noting that “Ryans’s
phone was issued by the city, and Ryans was on call. From these undisputed facts,
a factfinder could reasonably infer that Ryans was obligated in his capacity as a
peace officer employed by the city to answer incoming calls on this phone so that
he could be returned to duty if requested by the vice division.” Id. We observed
that even if Ryans was not on duty when the accident occurred, as the City
asserted, that fact was not dispositive. “The question is whether there is a
27
connection between Ryans’s job duties and his allegedly tortious conduct.” Id. at
650. We held the City failed to prove conclusively that Ryans was not acting
within the scope of his employment at the time of the accident, and therefore, the
trial court did not err in denying the city’s jurisdictional plea. Id. at 649.
Lal is distinguishable, primarily because Ryans was “on call” at the time of
the accident and he was driving a city-owned car and looking at a city-owned
phone in connection with his work.15 None of those factors is at play in the present
case. Iheagwam was not on duty when she struck Velazquez with her personal car.
Unlike Ryans, she was not on call and there was no possibility she would be
returned to work that day. In addition, there is no allegation Iheagwam was
distracted immediately before the accident by any aspect of her job.
Finally, Velazquez relies on City of Houston v. Mejia, 606 S.W.3d 901 (Tex.
App.—Houston [14th Dist.] 2020, pet. denied), another case involving a police
officer (“Gallagher”) involved in a traffic accident while driving a city-owned
vehicle. In Mejia, the facts establish that Gallagher finished her shift at 4 p.m. on
15
“[T]he mere fact that an off-duty officer was on call does not render his act within
his employment’s scope.” City of Houston v. Lal, 605 S.W.3d 645, 649 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (citing 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 his employment’s
scope if his act served a purpose of his employer in addition to any other purpose
the act served.” Id. (citing Kraidieh v. Nudelman, No. 01-15-01001-CV, 2016 WL
6277409, at *6 (Tex. App.—Houston [1st Dist.] Oct. 27, 2016, no pet.) (mem.
op.)).
28
the day of the accident. Id. at 906. Gallagher’s husband, a Houston police
lieutenant, asked her to pick up his city-issued vehicle from the city garage and to
drive it to their home so he would have his car available at the start of his next
shift. Id. After picking up the police car and on her regular commute home,
Gallagher was involved in an accident with the plaintiffs. Id. at 904. Gallagher
testified that at the time of the accident, she had no official duties and, other than
still being on call, was not being paid for her time. Id. The City of Houston filed a
motion for summary judgment asserting it was entitled to immunity because
Gallagher was not in the course and scope of her employment when the accident
occurred. Id. The trial court denied the City’s summary judgment motion. Id.
The City argued that Gallagher was not acting in the scope of her job as a
police officer but was, rather, “just another commuter on a Friday evening heading
home to enjoy time off on the weekend.” Id. at 906. The plaintiffs responded that
Gallagher was driving a city-owned vehicle, carrying out instructions issued by an
HPD officer who outranked her, and that HPD “would derive benefit from her
actions.” Our sister court of appeals agreed with the plaintiffs observing that
Gallagher’s affidavit reflected 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
29
his shift (a benefit to Gallagher’s employer, HPD).” Id. Therefore, Gallagher was
not a mere commuter on the way home from work. Id.
Velazquez’s reliance on Mejia is misplaced. First, Gallagher was directed
by a superior to drive the police car home. By contrast, the evidence indicates
Iheagwam was not directed by anyone to stop or drive to the administrative
building on the way home to discuss her health insurance benefits. Second, the
vehicle involved in the collision in Mejia was a city-owned vehicle, whereas
Iheagwam was driving her personal vehicle. And third, Gallagher’s conduct in
driving the car home directly benefitted her employer because it enabled her
husband, a police lieutenant, to have his vehicle at home when his next shift began.
And while Velazquez argues as much, there is no authority that suggests that
Iheagwam’s asking about her health insurance card benefitted AISD.
Luna, Lal, and Mejia do not stand for the proposition that the unilateral
decision of Iheagwam to drive her personal car to the administrative building after
her cafeteria shift ended to ask a question about her health-insurance benefits
conferred a benefit on AISD and, thus, fell within the scope of her employment.
Velazquez does not cite any authority, other than Iheagwam’s subjective
deposition testimony, to support his argument that Iheagwam’s actions were
related to her job duties and benefited AISD. See Molina, 2018 WL 3977945, at
*5 (“An employee’s conclusory testimony that he was acting in the course and
30
scope of his employment amounts to no evidence if the contrary is established as a
matter of law.”). The key question is whether, when viewed objectively, there is a
connection between Iheagwam’s cafeteria job duties and her alleged tortious act.
Lal, 605 S.W.3d at 649. The evidence presented fails to establish this necessary
and key connection to establish that Iheagwam was acting within the course and
scope of her employment.
Taking as true all evidence favorable to Velazquez and indulging every
reasonable inference and resolving any doubts in his favor, as we must, we hold
that Iheagwam was not acting within the scope of her employment with AISD
when she struck Velazquez with her car. Thus, the trial court improperly denied
AISD’s Amended Plea. We sustain AISD’s sole issue.
Conclusion
We reverse the district court’s order denying AISD’s plea to the jurisdiction
and render judgment dismissing Velazquez’s claims against AISD for lack of
jurisdiction.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
31