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Elections of Remedies when Suing a Governmental Employee in Texas

If you are suing a governmental employee for personal injuries but are not sure if he or she was acting in an official capacity at the time of injury, you should be aware of election of remedies under the Texas Tort Claims Act (TTCA). In Molina v. Alvarado, a Texas plaintiff sued a city for negligence and negligence per se, on the grounds that its employee Alvarado was driving a city vehicle under the influence of alcohol when he hit the plaintiff. The plaintiff originally alleged that the employee was operating the city’s vehicle in the course and scope of employment with the city, and the city had negligently operated the vehicle through its employee. The original petition didn’t describe the employee’s job duties or state that he was performing a task assigned to him by the city.

The city claimed immunity from the suit, arguing that no statute waived its immunity. The trial court denied the plaintiff’s special exceptions that requested the city specify the facts and law underpinning its immunity defense. The plaintiff filed an amended petition naming the employee as another defendant.

The amended petition alleged the employee operated the city vehicle in the course and scope of employment with the city. It reasserted that the city operated the vehicle in a negligent manner. The plaintiff also claimed that, if the employee wasn’t furthering the city’s governmental affairs while in the vehicle, he was liable in his individual capacity for negligent operation of the vehicle.

The employee denied the allegations and asked for summary judgment. He sought dismissal under the TTCA’s provision for election of remedies, claiming that the plaintiff had made an irrevocable election to sue the city and therefore couldn’t sue him. The trial court denied the summary judgment motion.

The appellate court held that the law barred suit against an employee only when the employee was being sued in his official capacity or scope of employment. The appellate court concluded that there were questions as to whether the employee drove the vehicle within the scope of employment or under the influence, and these questions precluded summary judgment.

The Texas Supreme Court explained that a lawsuit against a governmental employee in his official capacity is a suit against the employer, except when the lawsuit alleges the employee acted ultra vires. Otherwise, the employee derives immunity from suit from his governmental employer. A public employee can claim official immunity from suit regarding the good-faith performance of discretionary duties, as long as they act within the scope of their authority. However, governmental employees can be individually liable for their own torts.

In some cases, sovereign immunity to suit is waived under TTCA for an employee sued in his official capacity. However, the TTCA has an election of remedies provision, which conditions an immunity waiver on the forfeiture of negligence claims against an employee as an individual. If a plaintiff chooses to sue the employee in his individual capacity or sues a governmental unit, he is permanently barred from later choosing to sue the other about the same subject matter.

Under Section 101.106(f), when a plaintiff sues the employee based on actions that fall within the scope of employment, which could have been brought against the governmental unit, the suit is against the employee only in his official capacity. The election of remedies provision requires the plaintiff to determine from the start of the suit whether an employee was acting independently or within the scope of employment.

The Texas Supreme Court explained that the decision about who to sue has irrevocable consequences in a Texas personal injury case involving a governmental employee, even though the plaintiff might not know when the suit is filed whether an employee acted within the scope of employment. In the current case, the plaintiff sued and initially named only the government, which barred him from ever suing an individual employee about the same personal injuries.

The Court explained that if the plaintiff didn’t have enough information before filing suit to know whether the employee acted within the scope of employment, the prudent decision would be to sue the employee and wait for a factual resolution of that issue. The Court granted the employee’s petition for review and reversed the appellate court’s judgment, rendering judgment for the governmental employee.

As you can see from the above case, it can be tricky to sue a governmental employee for his or her negligence. If you’re hurt in a car accident or another kind of accident for which you believe the government may be responsible, the experienced San Antonio attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.

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