HOUSTON – A Texas appeals court has upheld the denial of a motion of summary judgment from the City of Houston, who had tried to dismiss a woman’s personal injury action resulting from a motor vehicle collision with a member of the City’s fire department.
On July 16, Court of Appeals for the First District of Texas justices Peter Kelly, Richard Hightower and Amparo Monique Guerra unanimously upheld the 190th District Court of Harris County, Texas’s ruling, in Amber Stoffer’s action versus the City of Houston
Guerra wrote the Court’s opinion in this case.
“On March 1, 2021, at 5:36 p.m., Houston Fire Department (HFD) Captain Nancy Tollett and Stoffer were involved in a motor vehicle accident at the intersection of TC Jester Boulevard and Larkin Street in Houston, Texas. Stoffer sued the City under the Texas Tort Claims Act (TTCA), asserting a claim of negligence. The City answered asserting a general denial, special exceptions and affirmative defenses, including governmental immunity,” Guerra said.
“The City filed a traditional motion for summary judgment, seeking dismissal of Stoffer’s claims on the ground that the trial court lacked subject matter jurisdiction. It argued that Captain Tollett was not acting within the course and scope of her employment at the time of the collision, and therefore the City retained its governmental immunity under the TTCA. The City argued that, at the time of the collision, Captain Tollett had ended her workday and was returning home, and that she was not performing any duty to further the City’s business nor was she on a special mission for her employer.”
Meanwhile, Stoffer argued that Captain Tollett “was carrying out a duty for her job at the time of the collision; specifically, she was going to fill her employer-issued vehicle with fuel using a City-issued fuel card so that she could continue using the vehicle to travel to different fire districts the next day.”
“Stoffer argued that…Captain Tollett was driving a City-issued vehicle and stopped at the convenience store solely to buy gas for her City-issued vehicle, and not for personal purchases,” Guerra said.
“The City replied to Stoffer’s summary judgment response, arguing that Stoffer had failed to come forward with evidence creating a genuine issue of material fact to rebut the presumption under the ‘coming-and-going’ rule that an employee does not act within the scope of her employment when traveling to and from work.”
On April 17, 2023, the trial court entered an order denying the City’s summary judgment motion, leading the City to appeal to the First District court.
The City contended the trial court erred when it denied the summary judgment motion, since “no genuine issue of material fact exists as to whether Captain Tollett was acting within the course and scope of her employment at the time of the collision.”
However, Guerra and her colleagues found “conflicting inferences” between Tollett’s affidavit and her later deposition testimony.
In the affidavit, Tollett stated, “I needed fuel and was going to stop at the convenience store,” and “I was merely stopping at the convenience store for my own personal needs on my commute home.”
In her deposition, Tollett testified that she had not planned to make a stop on her way home but decided to stop to refuel her City-issued vehicle, because the gas pumps at the fire station where she had conducted training were not working that day.
According to Guerra, that difference in scenarios raised a genuine issue of fact.
“Here, the evidence shows that (1) Captain Tollett stopped at the convenience store on her way home to refuel her City-issued vehicle with a City-issued fuel card which would enable her to travel to various fire stations to perform the duties of the training project, (2) the City had issued the vehicle to her because she was ‘having to travel so much on the training project [she] was doing,’ and (3) she stopped at the convenience store because the pumps at the fire station where she would ordinarily refuel her City-issued vehicle were not working that day. Captain Tollett’s act of stopping at the convenience store to refuel her City-issued vehicle, which she had been unable to do earlier that day at the fire station because the pumps were not working, benefitted her employer because it enabled her to travel and perform the duties of the training project,” Guerra stated.
“Taking as true all evidence favorable to Stoffer and indulging every reasonable inference and resolving any doubts in her favor, as we must, we hold that the evidence raises a genuine issue of material fact as to whether Captain Tollett was acting within the course and scope of her employment at the time of the accident. The trial court did not err in denying the City’s motion for summary judgment. Accordingly, we overrule the City’s issue. We affirm the trial court’s judgment.”
Court of Appeals for the First District of Texas case 01-23-00335-CV
190th District Court, Harris County, Texas case 2022-31179
From the Southeast Texas Record: Reach Courts Reporter Nicholas Malfitano at:nick.malfitano@therecordinc.com