County of Galveston v. Morgan
In County of Galveston v. Morgan, 882 S.W.2d 485 (Tex.App.-Houston 14th Dist. 1994, writ denied), Morgan, the employee of an independent contractor, was injured when he fell from the bed of a truck while delivering road resurfacing material to repair a county road.
Galveston County supplied spotters who signaled the truck drivers when to move forward and when to stop. One of the spotters moved the truck too close to a power line and Morgan climbed into the bed of the truck to determine how close it was to the power line.
He received an electric shock which knocked him to the ground. The jury found Morgan and the county equally negligent.
On appeal, the county challenged the legal and factual sufficiency of the evidence to support a finding that the accident arose from a county employee's use or operation of a motor driven vehicle.
The county argued that the vehicle was not a county truck and the driver was not a county employee. The court of appeals rejected these arguments and found a waiver of immunity because the county spotters "used" or "operated" the trucks by controlling their movements. Id. at 490.
The court distinguished LeLeaux v. Hamshire-Fannett Independent School District, 835 S.W.2d 49 (Tex. 1992) on the ground that while the bus was not in use and merely provided the setting for the student's injury, the truck in the instant case was in use at the time of the accident. Id. at 490-91.
In sum, the plaintiff fell from a truck after being shocked. 882 S.W.2d at 490-91.
Although a county employee did not drive the truck, a county employee was responsible for signaling the truck driver when to move the truck forward, how far to move it, when to raise the truck's bed, when to lower it, and when to stop the truck. Morgan, 882 S.W.2d at 490.
In accordance with the employee's signal, the driver moved the truck too close to a power line. Id. at 490-91.
When the plaintiff climbed into the bed of the truck to determine how close it was to the power line, he received an electric shock. Id.
The court, emphasizing that the county employee had sole discretion over the truck's operations and that the driver could be fired for disobeying the employee's directions, concluded the employee "used" or "operated" the truck by controlling the truck's movement. Id. at 490.