Is an employee’s drive home within the scope of employment?

Employer sued by off-duty employee whose car was damaged driving home

Is an employee’s drive home within the scope of employment?

An employee was not within the scope of his employment because he was off-duty and commuting home at the time, the Texas Court of Appeals said in a recent motor vehicle accident case.

In February 2022, an employee of the El Paso Water Utilities System-Public Service Board (EPWU) was driving home in his assigned EPWU utility vehicle after his shift. He collided with another person’s vehicle. The car accident damaged the employee’s parked vehicle.

The employee filed a negligence suit against EPWU and the City of El Paso in Texas. He alleged that the trial court had jurisdiction under the Texas Tort Claims Act, given that the defendants waived governmental immunity because the employee was acting within the scope of his employment during the collision.

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The employer filed a motion to dismiss. They argued that the trial court lacked jurisdiction because they had immunity as a municipality, given that the employee was not within the scope of his employment since he was commuting home when the collision occurred.

The trial court disagreed with the employer’s argument and denied their motion to dismiss. This prompted the company to appeal.

Suit against employer dismissed

In the case of El Paso Water Utilities System-Public Service Board and The City of El Paso, Texas v. Aryan Marivani, the Court of Appeals for the Eighth District of Texas reversed the order of the trial court and ruled in the defendants’ favor. The trial court should have dismissed the lawsuit based on lack of jurisdiction, the appellate court said.

The employer did not waive their governmental immunity as a municipality because there was no factual issue about whether the employee was within the scope of his employment at the time of the collision, the appellate court ruled.

The appellate court accepted that there was a rebuttable presumption that the employee was acting within the scope of his employment because he was driving an EPWU utility vehicle when the collision happened.

However, the appellate court found that the employer overturned this presumption by showing that the coming-and-going rule applied because the employee statement report showed that he was done with his shift and was driving home using his assigned take-home vehicle at the time.

The appellate court then addressed the employee’s arguments. First, he alleged that there was a factual issue on whether the employee was off-duty, given the inconsistencies about what time he clocked out.

The appellate court rejected this argument. Regardless of whether the employee clocked out, the evidence showed that he left the workplace and headed home after the end of his shift before the collision occurred, the appellate court said.

Next, the employee tried to cite an EPWU policy to counter the argument that the employee was merely coming and going. The EPWU policy stated that employees should only use a utility vehicle for official business or when advantageous to the business and should secure the vehicle by removing the keys, locking the doors, and parking off the street.

The appellate court also disagreed with this argument. The policy raised no factual issue about whether the employee was in the scope of his employment since there was evidence that he was off-duty when the collision happened, the appellate court said. Taking home the vehicle was permissive, was not mandatory, and was not necessary for EPWU to function, the appellate court added.

At the time of the collision, the employee was merely commuting home and was not following a specific order or request by a supervisor or performing a task lawfully assigned to him, the appellate court concluded.

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