TX Deputy’s Fatal Injuries While Traveling Home in Patrol Car Were Compensable
Reversing a lower appellate court, the Supreme Court of Texas held that because the summary judgment evidence established that a deputy sheriff — who died in a vehicular accident involving his assigned patrol car while he was on his way home after an extra-duty assignment with a private employer — was operating the patrol car with the county’s permission and under its authority at the time of his death, the deputy was engaged in a law-enforcement activity within the course and scope of his employment and his widow was entitled to workers’ compensation death benefits [Orozco v. City of El Paso, 2020 Tex. LEXIS 235 (Mar. 20, 2020)]. The Supreme Court stressed that the county was correct in its contention that the coming-and-going rule applied to the travel at issue, but the Court held that exceptions to the rule also applied so as not to exclude the deputy’s travel. Moreover, because the travel was governed by the coming-and-going rule, it was not also subject to analysis under the dual-purpose rule.
Background
Orozco, a sergeant with the El Paso County Sheriff’s Department, was assigned to the patrol division and was a leader on the department’s crisis negotiation team. He died in his patrol car on September 17, 2005, while driving on the I-10 expressway that runs through El Paso. He was killed instantly when a wheel from another vehicle came loose and crashed through his patrol car’s windshield. The sheriff’s department assigned Sergeant Orozco a marked patrol car as a take-home unit.
On the evening Orozco was killed, he was not scheduled to work for the sheriff’s department. Instead, he accepted an “extra-duty assignment” at a University of Texas El Paso (UTEP) football game. The undisputed evidence indicated that patrol vehicles could not be used for off-duty, outside employment. They could, however, be used for extra-duty employment, if the employee obtained approval from the division commander. Orozco obtained such approval, and on the evening of his fatal accident, Orozco wore his uniform, badge, and gun to the football game. He drove there in his assigned patrol car.
Procedural Status of the Case
A hearing officer concluded that Orozco’s death was a compensable injury that occurred in the course and scope of his employment. The county appealed. A three-member appeals panel concluded that Sergeant Orozco was not in the course and scope of his employment at the time of his death and that his widow was, therefore, not entitled to benefits.
Orozco’s widow sought judicial review. Both parties filed competing motions for summary judgment in the trial court. The trial court granted the widow’s motion, denied the county’s, and rendered judgment in the widow’s favor. The court of appeals reversed, agreeing with the county. It rendered judgment that the widow take nothing. She sought review with the Supreme Court.
Patrol Officer’s Course and Scope of Employment Are Quite Broad
Citing a recent decision in the state, the Court initially noted that whether an officer was on or off duty did not determine whether the officer’s conduct fell within the scope of his employment. The Court stressed that because a peace officer was always a peace officer, even during off-duty hours, the capacity in which an officer is acting could be nebulous when the officer had undertaken private employment during off-duty hours. Here, however, the Court was not strictly concerned with Sergeant Orozco’s activities or conduct at the UTEP football game. His employment there had ended before the accident. Rather, it was Sergeant Orozco’s use of his patrol car for travel from that approved employment to his home that was at issue. The dispute in the instant case was whether that activity or use was in the course and scope of his employment.
The Court acknowledged that travel to and from work does not originate in the employer’s business. The Court examined the permitted uses of the patrol car, noting that although authorized as a take-home unit, the car was not for Orozco’s personal use. Per department policy, it could only be used for official business. Travel to and from an extra-duty assignment, however, could qualify as an official use of the patrol car, if approved. Here, it was approved for that purpose. Orozco’s operation of his patrol car at the time of his death was thus an authorized and official use of the government vehicle.
The Court reasoned that Orozco may not have been on duty at the time of the accident, at least in the sense that the county was paying for his time, but the county was paying for Orozco’s patrol car and directing its use. The question was whether that activity — Orozco’s authorized operation of a marked patrol car on the roads of El Paso County — satisfied the statute’s basic test for course and scope. The Court concluded that it did.
The Court indicated that having uniformed deputies in marked patrol cars on El Paso streets furthered the work of the sheriff in preserving the peace and in responding to citizens in need of assistance. The Court added that the authorized operation of a marked patrol car on the public streets by a uniformed deputy sheriff engaged in what the sheriff’s department considered its official business was an activity within the course and scope of the deputy’s employment.
Dual Purpose Test Did Not Control
The Court added that the “dual purpose test” did not aid the county’s cause. The rationale of the coming-and-going rule was grounded in the fact that that traveling on public roads was a risk shared by members of the general public, and not one that is ordinarily incidental to employment. Exceptions existed, however. Transportation to and from employment was not necessarily excluded from course and scope when the employer either (a) paid for the transportation or (b) exercised control over it. The Court stressed that both of these exceptions to the coming-and-going exclusion applied here: the county provided Sergeant Orozco’s patrol car and controlled its use. In as much as the going and coming rule applied to the travel here, but was negated by the exceptions, the dual purpose rule could not be considered. The judgment of the court of appeals was accordingly reversed and judgment rendered to reinstate the trial court’s summary judgment in the widow’s favor.