Harris County v. Dillard

883 S.W.2d 166, 37 Tex. Sup. Ct. J. 324, 1994 Tex. LEXIS 16, 1994 WL 1928

• Court: Texas Supreme Court
• Decided: January 5, 1994
• Docket: D-3293
• Status: Published

Opinions

HECHT, Justice.

The Texas Tort Claims Act waives sovereign immunity for certain actions of governmental employees. Tex.Civ.Prac. & Rem. Code § 101.021(1). The Act defines an employee as “a person, including an officer or agent, who is in the paid service of a governmental unit”. Id. § 101.001(1). The sole issue in this ease is whether a governmental unit is liable for the actions of a person who acts in its behalf but is not a paid employee. We hold that it is not and reverse the judgment of the court of appeals. 841 S.W.2d 552.

James Earl Skeen, a Harris County reserve deputy sheriff, and a female companion spent several hours drinking beer at a bar one Saturday night. While they were driving home very early Sunday morning, a car passed Skeen at what he considered to be an unsafe speed. He pursued the car to get its license plate number, and at the same time, reached down to turn on his radio to alert other law enforcement officials. When he looked back up, he saw another car stopped in front of him and swerved to avoid a collision. As a result, Skeen’s vehicle spun out of control, crossed four lanes of traffic, and hit an oncoming car head-on. The driver of that car, Stephanie Hunold, was severely injured, and a passenger, Lila Jean Dillard, was killed. Skeen was found to have been legally intoxicated and was later convicted of voluntary manslaughter.

Dillard’s statutory beneficiaries, and Hu-nold, sued Harris County, alleging that it was hable for Skeen’s conduct. Over the County’s objection, the trial court instructed the jury that the term “employee” included a volunteer. Based upon a verdict that Skeen was negligent, the trial court rendered judgment against the County. The court of appeals affirmed.

There is no dispute that Skeen was not in the paid service of Harris County at the time of the accident. He was a volunteer reserve deputy subject to being called into service. Skeen was therefore not an “employee”, within the meaning of the Tort Claims Act, for whose conduct Harris County was hable. Tex.Civ.Prac. & Rem.Code § 101.001. To reach the contrary conclusion, the court of appeals relied upon two cases. In one, El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793 (Tex.Civ.App.—El Paso 1931, writ dism’d), a volunteer worker in a private business was found not to be an employee. El Paso Laundry does not involve the statutory definition which governs here.¹ In the second case cited by the court of appeals, Smith v. University of Texas, 664 S.W.2d 180 (Tex.App.—Austin 1984, writ ref'd n.r.e.), liability was predicated on the actions of a paid university employee who supervised volunteers, and not on the actions of the volunteers themselves. Neither Smith nor any other authority permits the plain language of the Tort Claims Act to be disregarded.²

Plaintiffs argue that governmental units should be liable for the actions of people like Skeen, even if they do not come within the statutory definition of “employee”. They also cite the definition of “employee” set out in § 102.001 of the Texas Civil PRACTICE & Remedies Code. That provision, however, is not part of the Texas Tort Claims Act, Chapter 101, but of Chapter 102. Chapter 102 grants local governments limited permission to pay actual damages awarded, not against itself, but against one of its employees. The definition of employees for purposes of the waiver of immunity in the Tort Claims Act, however, is set out in section 101.001(1).

We have repeatedly held that the extent of waiver of governmental immunity is a matter for the Legislature to determine. Guillory v. Port of Houston Auth., 845 S.W.2d 812, 813-14 (Tex.), cert. denied, — U.S. -, 114 S.Ct. 75, 126 L.Ed.2d 43 (1993); State Dept. of Highways & Public Transp. v. Dopyera, 834 S.W.2d 50, 54 (Tex.), cert. denied, — U.S. -, 113 S.Ct. 636, 121 L.Ed.2d 567 (1992); LeLeaux v. Hamshire—Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.1992); Mount Pleasant Indep. Sch. Dist. v. Lindburg, 766 S.W.2d 208, 211 (Tex.1989); Duhart v. State, 610 S.W.2d 740, 742 (Tex.1980); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). To accept plaintiff’s argument would extend the waiver further than the Act provides, something which we will not do.³

We hold that plaintiffs’ action against Harris County is barred by governmental immunity.⁴ Accordingly, the judgments of the trial court and court of appeals are reversed, and judgment is rendered that plaintiffs take nothing against Harris County.

PHILLIPS, C.J., and GONZALEZ, HIGHTOWER, CORNYN and ENOCH, JJ., join. GAMMAGE, J., issued a dissenting opinion, in which DOGGETT, J., joins. SPECTOR, J., issued a dissenting opinion.

1 . El Paso Laundry was an action by an employee against his employer for injuries suffered by the employee's son while the son was on the employer's premises for the purpose of taking his father's lunch to him. The employer claimed in defense that the son was also an employee and therefore limited in his recovery to worker's compensation. The jury found that the son was not an employee. The court of appeals upheld this jury finding. The court discussed the factors for determining whether an employment relationship exists. It did not, as we have said, address in any way the statutory definition which controls the present case. The court held that because the employer had accepted the benefits of the son's presence, the son was an invitee, not that he was an employee. 36 S.W.2d at 795.

2 . Justice Spector's dissent is ambivalent about the importance of Smith to the present case. At first, the dissent claims that Smith provides plaintiffs’ arguments, "a reasonably strong footing”, post at 169; in the end, the dissent acquiesces in the view that Smith is “erroneous”, post at 171.

The truth is, Smith is almost entirely irrelevant. In that case, Smith, a volunteer official for a University of Texas shot-put competition, was injured by a shot-put thrown when he was not watching. Smith sued the University. He blamed Drolla, the head official for the competition, also a volunteer, for allowing the shot to be thrown when it was. The University obtained a summary judgment on the ground that Drolla was not its "employee” as defined by the Tort Claims Act. But the court of appeals observed that Smith also blamed Price, the University’s head track coach, for failing to supervise the shot-put event. Since there was no question that Price was an employee of the University, the court of appeals reversed the summary judgment.

Unlike Smith, plaintiffs in the present case do not complain of the actions of any employee of Harris County. The dissent acknowledges this fact, arguing only that they could have. Hence, the sole relevance of Smith: to illustrate what plaintiffs might have claimed but didn’t. Assuming Smith was rightly decided — an issue on which we venture no opinion — it provides no support for plaintiffs' claims in the present case.

3 . The dissenting opinions do not dispute that the statutory definition of "employee” is plain and that its application in this case is clear. The dissents’ protest that the definition leads to wrong results reflects a view of governmental immunity not shared by the Legislature.

4 . Justice Spector’s dissent would remand the case to allow plaintiffs to plead a different claim. The possibility that a party could have pleaded a viable cause of action is not ordinarily reason to reverse a judgment correctly disposing of the claims the party did plead. The dissent calls the Court's decision "unfair". Post at 169. It is not; but it would be unfair and unjust to Harris County, having rightly prevailed on the claims asserted, to be required to defend against new claims on which the dissent thinks plaintiffs might have a better chance.