Alief Indep. Sch. Dist. v. Velazquez

• Decision Date: 18 May 2023
• Docket Number: 01-22-00444-CV
• Parties: ALIEF INDEPENDENT SCHOOL DISTRICT, Appellant v. ANTHONY VELAZQUEZ, Appellee
• Court: Texas Court of Appeals

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ALIEF INDEPENDENT SCHOOL DISTRICT, Appellant v. ANTHONY VELAZQUEZ, Appellee

No. 01-22-00444-CV

Court of Appeals of Texas, First District

May 18, 2023

On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2021-42160

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

MEMORANDUM OPINION

Veronica Rivas-Molloy Justice.

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 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 manager^[1]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 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.

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 following:^[3]

(Image Omitted)

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 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:

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

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