Rosanne M. Barker v. Sam Houston State University

Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00076-CV

ROSANNE M. BARKER, Appellant

V.

SAM HOUSTON STATE UNIVERSITY, Appellee

On Appeal from the 278th District Court Walker County, Texas Trial Court No. 1929437

Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Chief Justice Stevens MEMORANDUM OPINION

Roseanne M. Barker filed a suit against her employer, Sam Houston State University

(SHSU), seeking damages for personal injuries that she allegedly suffered when she was struck

by a SHSU vehicle driven by a SHSU employee.1 SHSU asserted a plea to the jurisdiction,

arguing on various grounds that the trial court lacked subject-matter jurisdiction over the case

because its sovereign immunity could not be waived. After a hearing, the trial court granted

SHSU’s plea and dismissed Barker’s claims with prejudice.

On appeal, Barker contends that the trial court erred in finding, as a matter of law, that

Barker was in the course and scope of her employment at the time she was injured. Because we

find that Barker was in the course and scope of her employment at the time of her injury, we

affirm the trial court’s judgment.

I. Factual and Procedural Background

On October 11, 2017, Roseanne Barker, a history professor at SHSU, was scheduled to

teach a 9:00 a.m. class in Building AB4 on the SHSU campus. Before class started, Barker

parked her car in the SHSU parking lot across the street from Building AB4, even though she

was not permitted to park there. She finished teaching her class and left the classroom sometime

after 10:00 a.m. Because she was not scheduled to teach another class for “about two hours,” she

headed to the parking lot.

1 Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3. 2 Barker alleged that she was walking to the parking lot to move her car to another campus

parking area where she was permitted to park. As she crossed Avenue I outside of Building AB4

on the way to her car, she was struck by a white Chevrolet Colorado truck. The truck was owned

by SHSU and was being operated by Johnny Boston, a SHSU employee. It is undisputed that

Boston was driving the truck within the course and scope of his employment for SHSU at the

time of the accident. The SHSU Police Department responded to and investigated the accident.

As a result of the accident, Barker was injured and required medical care. She also

missed time from work.

About four months after the accident, Barker filed a workers’ compensation claim, and he

received workers’ compensation benefits for the injuries she sustained. Sometime after, Barker’s

personal health insurance administrator, Blue Cross Blue Shield (BCBS), sent an information

request to Barker requesting verification about her injuries. Barker informed BCBS that she had

filed a workers’ compensation claim with her employer and that the claim had been accepted.

Barker received a total of $38,058.26 in workers’ compensation benefits.

On September 24, 2019, Barker filed suit against SHSU asserting a claim of negligence

and seeking to recover personal injury damages for the injuries she suffered in the accident.

SHSU answered and asserted a plea to the jurisdiction on the grounds of sovereign immunity.

SHSU argued that the trial court lacked subject-matter jurisdiction over Barker’s claims because

SHSU’s sovereign immunity from suit and liability could not be waived based on (1) the

exclusive remedy provision (commonly known as the workers’ compensation bar) in Section

408.001(a) of the Texas Labor Code, (2) Barker’s failure, upon being hired, to waive her

3 workers’ compensation coverage under Section 406.034 of the Texas Labor Code, (3) the

equitable election of remedies doctrine, and/or (4) Barker’s failure to exhaust her administrative

remedies before the Texas Department of Insurance, Division of Workers’ Compensation. After

a hearing, the trial court granted SHSU’s plea to the jurisdiction and dismissed Barker’s lawsuit

without specifying the grounds upon which it was granted. Barker appealed.

II. Plea to the Jurisdiction

“A plea to the jurisdiction is a dilatory plea” by which a party challenges a court’s

authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000). “We review a trial court’s ruling on a plea to the jurisdiction

de novo.” Tex. A&M Univ., Mark Hussey, Ph.D. v. Starks, 500 S.W.3d 560, 567 (Tex. App.—

Waco 2016, no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004) (plurality op.)).

“The plaintiff bears the initial burden to allege facts affirmatively demonstrating the trial

court’s jurisdiction to hear a case.” Tex. Dep’t of Transp. v. Ingram, 412 S.W.3d 129, 134 (Tex.

App.—Texarkana 2013, no pet.). After the party challenging subject-matter jurisdiction “asserts

and supports with evidence that the trial court lacks subject[-]matter jurisdiction,” the plaintiff is

required “to show that there is a disputed material fact regarding the jurisdictional issue.” Id. at

228 (citing Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000)).

When a plea to the jurisdiction challenges the existence of jurisdictional facts, a trial

court’s review “mirrors that of a traditional summary judgment motion.” Mission Consol. Indep.

Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “If the evidence creates a fact question

4 regarding the jurisdictional issue, then the plea to the jurisdiction must be denied.” Starks, 500

S.W.3d at 567 (quoting Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3–4

(Tex. App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010)). “However, if the

relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then

the court rules on the plea to the jurisdiction as a matter of law.” Id. “In ruling on a plea to the

jurisdiction, a court does not consider the merits of the parties’ claims.” Id.; see Cnty. of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

III. Sovereign Immunity

“In Texas, sovereign immunity deprives a trial court of subject[-]matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state consents

to suit.” Miranda, 133 S.W.3d at 224. The State’s sovereign immunity extends to “various

divisions of state government, including agencies, boards, hospitals, and universities.” Tooke v.

City of Mexia, 197 S.W.3d 325, 330 n.11 (Tex. 2006). “[S]overeign immunity, unless waived,

includes immunity from suit and immunity from liability.” Richards v. Tex. A&M Univ. Sys.,

131 S.W.3d 550, 556 (Tex. App.—Waco 2004, pet. denied) (citing Wichita Falls State Hosp. v.

Taylor, 106 S.W.3d 692, 696 (Tex. 2003)). “In the absence of waiver of immunity from suit, a

trial court lacks subject-matter jurisdiction in a suit against the State.” Id. (citing Tex. Dep’t of

Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)).

IV. Texas Tort Claims Act

“The [Texas] Tort Claims Act [(TTCA)] provides a limited waiver of sovereign

immunity” and “allow[s] suits to be brought against governmental [entities] only in certain,

5 narrow[] . . . circumstances.” Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex.

2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. We “look to the terms of the [TTCA]

to determine the scope of its waiver” and then “consider the particular facts of the case . . . to

determine whether [the case] comes within that scope.” Miller, 51 S.W.3d at 587. “[F]or

immunity to be waived under the [TTCA,] the claim must arise under one of the three specific

areas of liability for which immunity is waived and the claim must not fall under one of the

exceptions from waiver.” Durbin v. City of Winnsboro, 135 S.W.3d 317, 320 (Tex. App.—

Texarkana 2004, pet. denied). Under one of the areas of waiver applicable here,

[a] governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.

Here, it is undisputed that SHSU is a governmental unit. See City of Mexia, 197 S.W.3d

at 331. Additionally, the pleadings and evidence showed that Barker was injured by a SHSU

employee operating a SHSU motor vehicle. As a result, Barker’s claim meets the first two

requirements of Section 101.021. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. Even so,

6 SHSU contends that its immunity is not waived under the TTCA because it cannot be personally

liable to Barker since workers’ compensation is her exclusive remedy, she failed to waive

workers’ compensation coverage under the election of remedies doctrine, or she failed to exhaust

her administrative remedies. We, therefore, first examine whether Barker’s claims are barred by

the exclusive remedy provision of the Texas Workers’ Compensation Act (TWCA). See City of

Bellaire v. Johnson, 400 S.W.3d 922, 924 (Tex. 2013) (per curiam) (“suit for injury from the

operation of a motor-driven vehicle” would have waived sovereign immunity “but for the

exclusive-remedy bar provided by the [TWCA]”).

V. Exclusive Remedy

Neither party disputes that SHSU is “[a] governmental unit that has workers’

compensation insurance.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.028. SHSU is, therefore,

“entitled to the privileges and immunities granted by the workers’ compensation laws of this

state to private individuals and corporations.” Id. “The Act is the exclusive remedy for non-

intentional, ‘work-related injuries’ of an employee, and exempts the employer, its agents, and its

employees from common-law liability claims based on negligence or gross negligence.” Warnke

v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no

pet.) (citing TEX. LAB. CODE ANN. § 408.001(a)). “To demonstrate that a common law claim is

barred by the [exclusive remedy provision,] the defendant must show that the injured worker was

(1) its employee at the time of the work-related injury and (2) covered by worker’s compensation

insurance.” Id.

7 It is further undisputed that Barker was a SHSU employee at the time she was injured and

that she was covered by workers’ compensation insurance. Even so, Barker contends that the

TWCA exclusive remedy provision does not apply because she did not suffer a work-related

injury under the TWCA. A “work-related injury” has been interpreted to mean an injury

suffered while in the course and scope of employment. Payne v. Galen Hosp. Corp., 28 S.W.3d

15, 17–18 (Tex. 2000).

Section 401.011(12) of the TWCA defines the “[c]ourse and scope of employment” as “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.”

City of Corpus Christi v. Muller, No. 13-18-00443-CV, 2019 WL 2384162, at *2 (Tex. App.—

Corpus Christi–Edinburg Jun. 6, 2019, no pet.) (alteration in original) (mem. op.) (quoting TEX.

LAB. CODE ANN. § 401.011(12)). “The term includes an activity conducted on the premises of

the employer or at other locations.” TEX. LAB. CODE ANN. § 401.011(12).

The parties dispute whether Barker was in the course and scope of her employment when

she suffered her injuries. If she was within the course and scope of her employment, then the

exclusive remedy provision of the TWCA barred Barker’s common-law claims, and the City’s

immunity was not waived. See City of Bellaire, 400 S.W.3d at 924; see also TEX. LAB. CODE

ANN. § 408.001(a). If she was not within the course and scope of her employment, the TTCA

waived the City’s immunity because Barker suffered injuries as a result of an accident involving

a motor vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021; City of Bellaire, 400 S.W.3d

at 924.

8 Employees injured while going to or from work are generally considered not to be in the

course of employment for the purposes of workers’ compensation. Tex. Comp. Ins. Co. v.

Matthews, 519 S.W.2d 630, 631 (Tex. 1974). That said, the course and scope of an employee’s

employment is not limited to the employee’s working hours or the place where the work is

performed. See Tex. Workers’ Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 768 (Tex.

App.—Corpus Christi–Edinburg 1997, pet. denied) (citing Deatherage v. Int’l Ins. Co., 615

S.W.2d 181, 183 (Tex. 1981)). For example, in Rodriguez, an employee was found to be “in the

course and scope of his employment” when, during a scheduled, ten-minute break, he was

injured while playing football with his coworkers. Rodriguez, 953 S.W.2d at 768.

Similarly, under the rule known as the “access doctrine,” the course and scope of

employment includes:

not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance.

Tex. Emp. Ins. Ass’n v. Lee, 596 S.W.2d 942, 943 (Tex. App.—Waco 1980, no writ).

Courts have applied the access doctrine to find that an employee was injured in the

course of employment when her accident occurred on or about the employer’s premises while

she was either going to or coming from work. In Dickson v. Silva, the plaintiff clocked out for

lunch and drove his motorcycle through his employer’s entrance and exit driveway where he

collided with an employer-owned truck, which was being driven in the course and scope of 9 employment by another company employee. Dickson v. Silva, 880 S.W.2d 785, 786 (Tex.

App.—Houston [1st Dist.] 1993, writ denied). The plaintiff received workers’ compensation

benefits but subsequently filed a negligence claim against the employee driver and his employer.

Id. The court of appeals upheld the trial court’s grant of summary judgment in favor of the

employer, holding that the access doctrine placed the plaintiff in the course and scope of his

employment and barred his claim under the TWCA’s exclusive remedy provision.2 See also

Bordwine v. Tex. Emp.s’ Ins. Ass’n, 761 S.W.2d 117, 120 (Tex. App.—Houston [14th Dist.]

1988, writ denied) (holding that an employee was injured in the course of employment when she

stepped out of her car parked in an employee parking lot); Tex. Emp.s’ Ins. Ass’n v. Lee, 596

S.W.2d 942, 947 (Tex. App.—Waco 1980, no writ) (holding that an employee was injured in the

course of employment when his accident occurred shortly after work while he was preparing to

leave in his vehicle from his employer’s work site); Tex. Emp.s’ Ins. Ass’n v. Dean, 604 S.W.2d

346, 349–50 (Tex. App.—El Paso 1980, no writ) (holding that an employee, who was assaulted

in her employer’s parking lot, was in the course of employment); Aetna Life Ins. Co. v. Woods,

449 S.W.2d 86, 88 (Tex. App.—Fort Worth 1969, writ ref’d n.r.e.) (holding that an employee,

who collided with another car on her employer’s premises when she was leaving work to go

home, was in the course of her employment).

Here, the relevant facts are undisputed. After teaching a 9:00 a.m. class in SHSU

Building AB4, Barker left the building a few minutes later and walked toward the parking lot

2 At the time Dickson was decided, the exclusive remedy provision was codified under former Article 8306 of the Texas Revised Civil Statutes. See Act of May 5, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, 613 (repealed 1989). 10 where she had parked her car that morning. Barker testified that she was going to move her car

to a different parking lot and that she was going to run an errand and eat lunch before her next

class, which was about two hours later. As she was crossing the street directly outside the

building, she was struck by the truck and injured. Testimony indicated that the portion of

Avenue I directly outside of Building AB4 where Barker was injured was owned and maintained

by SHSU but that the street was open to public use. Barker later applied for and received

workers’ compensation benefits.

Viewing the facts in the light most favorable to Barker, as we must, we find that she was

within the course and scope of her employment at the time of her injury. Although Barker, a

salaried employee, was going to lunch or running an errand and was not “on the Company’s

clock” at the time she was walking to her car in the SHSU parking lot, her actions and the

collision were so closely connected with her employment as to render it an incident thereto. See

Dickson, 880 S.W.2d at 786. Moreover, the portion of Avenue I where she was injured was on

SHSU’s premises. Even if SHSU did not own the roadway, being within the campus, directly

outside of Building AB4, it was in such proximity and relation as to be in practical effect a part

of SHSU’s premises. See Lee, 596 S.W.2d at 943 (Tex. App.—Waco 1980, no writ).

Based on the foregoing, we find that SHSU, were it a private person, would not be liable

to Barker because she suffered work-related injuries in the course and scope of her employment.

As a result, workers’ compensation is her exclusive remedy and her common-law action for

damages is barred by the TWCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); TEX.

LAB. CODE ANN. § 401.011(12), 408.001(a). Accordingly, the TTCA does not apply to waive

11 SHSU’s sovereign immunity, the trial court properly granted SHSU’s plea to the jurisdiction,

and we overrule this point of error. See City of Bellaire, 400 S.W.3d at 924.

Having found one valid ground for granting the plea to the jurisdiction, we need not

address Barker’s challenge to the remaining grounds. See Kownslar v. City of Houston, 654

S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2022, pet. filed) (we must affirm if any of

the independent grounds in the jurisdictional plea has merit).

V. Conclusion

We affirm the trial court’s judgment.

Scott E. Stevens Chief Justice

Date Submitted: March 21, 2023 Date Decided: June 22, 2023