Texas Employee’s Suit Against Co-Worker for Dog Bite is Barred by Exclusivity

A defendant/co-worker’s act of bringing her dog to the employer’s residential facility for pregnant women to serve as a comfort animal was an activity that had to do with and originated in the employer’s business, held a Texas appellate court [Robinson v. Cox, 2020 Tex. App. LEXIS 9441 (Dec. 3, 2020)]. Accordingly, where the plaintiff/employee sustained injuries when she was bitten by the dog at the employer’s facility, she could not maintain a tort action against her co-worker; her civil action was barred by the exclusive remedy provisions of the Texas Workers’ Compensation Act, held the appellate court.

Background

Robinson and Cox worked at the Gladney Center for Adoption (Gladney) in Fort Worth. Gladney’s purpose is to provide a home and counseling to pregnant women who plan on giving up their babies for adoption. Robinson worked as a house parent; Cox was employed as Gladney’s general counsel and executive vice-president. Robinson sustained some degree of injury when Cox’s border collie bit her at their workplace. Robinson acknowledged that Gladney’s workers’ compensation insurer paid for her injury treatment, but she sued Cox nevertheless to recover damages for her bodily injuries, contending in relevant part, that Cox was strictly liable and grossly negligent. The trial court granted Cox’s motion for summary judgment on exclusive remedy grounds and Robinson appealed.

Course and Scope of the Employment

According to Cox, she had brought the dog to work with her that day, and on preceding days, because birth mothers and Gladney employees had requested that she do so. Cox stated that the dog had assisted with counseling sessions by serving as a comfort dog to Gladney’s clients. Robinson countered that Cox brought the dog with her to work because the border collie had been chewing on Cox’s residential furniture. Robinson contended the exclusive remedy provision of the Texas Act did not extend to her lawsuit against Cox because Gladney was not legally responsible for Cox’s act of bringing the dog to its premises. Specifically, Robinson asserted that Cox had not been acting in the course and scope of her employment when she brought the dog to Gladney.

Appellate Court Decision

The appellate court noted that although Tex. Lab. Code Ann. § 408.001(a) extended the exclusive remedy defense to an agent or employee of the employer, the Texas Supreme Court, in addressing the predecessor to Section 408.001, had held that an agent or employee within the meaning of the statute is ordinarily one for whose conduct the employer would, aside from the Act, be legally responsible under the doctrine of respondent superior [see McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964). The court added that in order to impose liability upon an employer for the negligence of an employee under the doctrine of respondeat superior, the negligent act must fall within the course and scope of the employee’s employment.

Act Performed in Furtherance of Employer’s Business

The court indicated that in order to establish the exclusive remedy defense, Cox was required to prove that her bringing the dog to work on the day it bit Robinson, was “an activity of any kind or character that had to do with and originated in” Gladney’s work, business, trade, or profession and was performed by Cox in furtherance of Gladney’s business [Opinion, p. 8].

The court examined the employer purpose, observing that it was to provide a home and counseling to pregnant women who planned on giving up their babies for adoption. The court stressed that because Cox brought the dog to Gladney at the request of the birth mothers who resided there, Cox’s act was an activity that had to do with and originated in Gladney’s business. Additionally, Cox believed that having the dog present would assist with the residents’ counseling sessions in furtherance of Gladney’s purpose to provide counseling to the pregnant women.

Accordingly, said the court, the summary judgment evidence established that Cox’s action in bringing Jackson to Gladney was an activity that “had to do with” and “originated” in Gladney’s business and was also an activity “performed” by Cox in “furtherance” of Gladney’s business. Because Cox presented summary judgment evidence that conclusively established her affirmative defense, the court said the burden shifted to Robinson to raise a genuine issue of material fact precluding summary judgment.

No Triable Issue of Fact

The court indicated Robinson’s statements that that the dog didn’t do any therapy work or meet children in any kind of official role, did not suffice to raise a fact issue about whether Cox was acting in the course and scope of her employment when she brought the dog to work that day. The court added that assuming Cox brought the dog to work because he was chewing her couch at home, that fact did not negate Cox’s statement that the birth mothers and other Gladney employees had asked her to bring the animal to assist as a comfort dog. And finally, said the court, the fact that the dog did not have an “official role” at Gladney did not contradict Cox’s statement that she believed the dog would assist the residents as a comfort dog.

Because Robinson’s summary judgment evidence did not raise a fact issue, the court held that Cox established as a matter of law that she was a Gladney employee for purposes of the exclusive remedy defense. The trial court’s judgment was affirmed.