TEXAS COURT OF APPEALS REVERSES TRIAL COURT’S DENIAL OF CITY OF FORT WORTH’S PLEA TO THE JURISDICTION AND DISMISSES PERSONAL INJURY CLAIMS AGAINST THE CITY FOR LACK OF SUBJECT MATTER JURISDICTION

October 16, 2018

Last week, the Waco Court of Appeals found that a police officer for the City of Fort Worth (the “City”) was not acting in the course and scope of his duties with the City at the time he was involved in a motor vehicle accident.  As such, the court granted the City’s plea to the jurisdiction and dismissed the claims against the City for lack of subject matter jurisdiction.  In City of Fort Worth v. Hart, No. 10:17—00258-CV, 2018 WL 4925810 (Tex. App.—Waco, Oct. 10, 2018, mem. op.), Aldo Castaneda, a City police officer, was driving a City-owned vehicle when he collided with another vehicle, causing injury to K.H, a minor child. The collision occurred during Officer Castaneda’s usual work hours while he was on his way to work in the City.  He did not live in the City and was given permission to use a City-owned vehicle to drive to and from work.  The City paid for all vehicle-maintenance expenses and provided Officer Castaneda a credit card to purchase gas.  However, the City did not pay or reimburse for mileage, and Officer Castaneda’s salary did not include time commuting to and from work. Officer Castaneda was also issued a mobile phone and radio by the City and was subject to being called to work if needed.

After the collision, Officer Castaneda identified himself as a police officer to the 9-1-1 operator, the investigating police officer, and the driver of the vehicle occupied by K.H.  Upon calling his supervisor and reporting the accident, Officer Castaneda’s supervisor told him to take photographs of both vehicles and to submit them and the accident report prepared by the investigating officer. His supervisor also told him to give the investigating officer the telephone number for Fort Worth Risk Management and to advise the officer that he was driving a city vehicle that was self-insured. Consequently, the accident report identified the City as the financially responsible party.  Lastly, Officer Castaneda was required to report off-duty usage of the vehicle, but he did not report off-duty usage for the day of the collision.  

K.H. was injured as a result of the collision and, through a next friend, brought suit against the City.  K.H. alleged that Officer Castaneda was acting in the course and scope of his duties with the City at the time of the collision.  In response, the City asserted a plea to the jurisdiction arguing that K.H. failed to demonstrate that Officer Castaneda was acting in the course and scope of his duties at the time of the collision.    

The court concluded that “none of [the aforementioned facts] were sufficient either alone or together to raise a fact issue as to whether Castaneda was acting in the scope of his employment at the time of the wreck.”  As such, the court reversed the trial court’s denial of the City’s plea to the jurisdiction and dismissed the claims against the City for lack of subject matter jurisdiction. In doing so, the court reasoned that “(1) the fact that the accident may have occurred during Castaneda’s scheduled work hours did not indicate that he was on duty at the time, (2) the fact that Castaneda failed to file a report regarding the off-duty usage of the city-owned vehicle on the day of the accident may have been a violation of City or department policy, but did not alter the nature of the actions he was performing and did not translate into him being on duty, (3) the fact that Castaneda was issued a mobile phone and radio by the City in order to enable him to respond to after-hours calls did not mean that he was on-duty at all times, (4) the fact that Castaneda identified himself as a police officer after the wreck also did not alter his off-duty status and he did not investigate the wreck or do anything other than what an ordinary citizen would do in a similar situation, and (5) the fact that Castaneda was incorrectly told by his supervisor to name the City as the financially responsible party did not transform his off-duty status.”