Failure to use an x-ray machine in the right body area to locate a missing sponge constitutes the misuse of tangible personal property under TTCA

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of Tex. Sw. Med. Ctr. V. Rhoades, No. 05-19-00445-CV (Tex. App.—Dallas June 30, 2020).

This is a medical negligence case brought under the Texas Tort Claims Act (TTCA) filed after a sponge was left inside Plaintiff Rhoades during surgery.  The Dallas Court of Appeals held the plea to the jurisdiction was properly denied because Rhoades had made a proper allegation of misuse of tangible personal property.

Rhoades had surgery at the Medical Center for breast reconstruction surgery.  During the surgery, surgery included removal of tissue from her abdomen for use in her chest.  After the surgery in the abdomen was completed, but the surgery in her chest area was still in progress, the surgical staff realized they were missing a sponge.  The staff x-rayed Rhoades body in its search for the sponge but did not x-ray low enough in Rhoades’ abdomen.  While Rhoades was still in recovery in the ICU, the sponge was found with an x-ray of her pelvic area and it was removed. Complications after the sponge-removal surgery resulted in multiple further surgeries.  Rhoades sued the Medical Center for medical negligence asserting a waiver of immunity for misuse of tangible personal property (i.e. the sponge and the first x-ray machine.)  The Medical Center filed a plea to the jurisdiction which was denied. The Medical Center appealed.

The Texas Tort Claims Act, states that a governmental entity’s immunity is waived for “ personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. “  Tex. Civ. Prac. & Rem. Code § 101.021(2).   Immunity is not waived for incorrect medical judgment.  Non-use of medical equipment is insufficient to waive immunity as is negligent medical judgment. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2001).  The Court of Appeals held that Rhoades had sufficiently alleged misuse of the x-ray machine in failing to take the x-rays in the right location to discover the sponge during the initial surgery and that the misuse of the sponge by leaving it in the body are sufficient to waive governmental immunity to overcome a plea to the jurisdiction.  Not monitoring or responding to medical equipment in a timely fashion can constitute a waiver of governmental immunity for negligent use of the equipment.  It was not a misuse of the information that the x-ray provided that caused the medical injuries, but it was not using it in the correct area that caused the additional surgery that led to further medical issues.

The dissent stated that immunity was not waived by the use of the x-ray machine, because the use of the x-ray machine did not cause the injuries or additional surgeries, but instead the non-use of the x-ray machine in her pelvic area did not find the sponge.   The x-ray machine was operated and functioned properly and produced the images correctly, and there is no allegation that it should not have been used.

If you would like to read this opinion click here. Panel consists of Justices Bridges, Molberg, and Partida-Kipness.  Opinion by Justice Partida-Kipness.

Texas Supreme Court holds TTCA waives immunity for slight negligence claims, which applies to common carriers (buses) and imposes a higher degree of care for passengers

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VIA Metropolitan Transit v Curtis Meck, 18-0458 (Tex. June 26, 2020)

This is a Texas Tort Claims Act (TTCA) case involving a VIA bus accident where the Texas Supreme Court affirmed a jury award against VIA.

VIA Metropolitan Transit is a governmental entity that operates public transportation services in San Antonio and Bexar County. Curtis Meck boarded a VIA bus operated by Frank Robertson, who was new to the job and still in training. Robertson began to pull away from the stop when another passenger shouted “Back door!,” apparently to notify Robertson that a passenger was still trying to exit. Traveling just under five miles per hour, Robertson made an “abrupt stop,” causing Meck to fall forward into the partition behind Robertson’s seat. Meck asserts this caused a herniated disc in his neck. Mech sued VIA asserting negligence and asserted VIA was a “common carrier” with a high degree of care imposed for the benefit of the passengers. After a trial on the merits the jury found for Meck and VIA appealed. VIA did not object to the designation as a common carrier and did not object during jury selection when Meck’s attorneys told the jury of the higher duty imposed on VIA. VIA moved for a directed verdict asserting it was not a common carrier and the jury instruction was incorrect. The motion was denied.

Under the Texas Transportation Code, the duties and liabilities of a common carrier are the same as provided for under common law. Tex. Transp. Code §5.001(a)(1). A common carrier owes a duty to its passengers to act as “a very cautious and prudent person” would act under the same or similar circumstances.  To qualify as a common carrier (in contrast to a private carrier), the entity must provide transportation services to the general public, as opposed to providing such services only for particular individuals or groups and as its primary function. VIA argued it is not a common carrier because (1) it is not “in the business” of providing such services, (2) providing such services is not its “primary function,” and, (3) in any event, it cannot be a common carrier because it is a governmental body that performs only governmental functions.  While the Court agreed that VIA is statutorily prohibited from generating revenue greater than an amount “sufficient to meet [its] obligations,” it disagreed that profit is necessary to qualify for the “in business” designation. The  Court held VIA was indisputably in “the business of transporting people” and therefore met the first prong. And while VIA argued it performs numerous governmental functions that include constructing roads, issuing bonds, collecting taxes, and promoting economic development, for the purpose of “implementing the State’s transportation policy”, the Court held it must only do so to fulfill its obligation to operate as a “rapid transit authority.”  As a result, transporting people is its primary function. The Court agreed that VIA is a governmental entity and that it was performing governmental functions that provided, by default, governmental immunity. However, that status does not prevent it from being a common carrier with a higher degree of care to its passengers. The Court further declined to change the law by requiring a lower, ordinary standard of care. The Court then held the TTCA does not define what type of negligence is subject to the waiver of immunity. However, the common law has long used the term “negligence” to refer to “three degrees or grades of negligence,” including gross negligence, ordinary negligence, and slight negligence (which applies to common carriers).  As a result, all three types are subject to the waiver in the TTCA. Finally, the Court held the evidence was legally sufficient to uphold the jury award.

Chief Justice Hecht wrote a concurring opinion noting the “slight negligence” or “high decree of care” standards are misleading, unnecessary and should be abandoned. They suggest that common carriers are to “exercise all the care, skill, and diligence of which the human mind can conceive” and invites the jury “to scrutinize the carrier’s conduct in an endeavor to find it defective.”  However, he notes that given the evidence, an instruction on a “reasonable care” standard would not have changed the outcome.

If you would like to read this opinion click here. Justice Boyd delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Blacklock, and Justice Busby joined. Chief Justice Hecht delivered a concurring opinion, in which Justice Guzman, Justice Devine, and Justice Bland joined.

Paying for train ticket is not the same as paying for use of train station under TTCA premise defect claim says 5th Court of Appeals

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Special guest author Laura Mueller, City Attorney for Dripping Springs

City of Dallas v. Kennedy, No. 05-19-01299-CV (Tex. App.—Dallas June 13, 2020) (mem. op.)

This is a slip and fall/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed and rendered on the trial court’s denial of the City’s plea to the jurisdiction.

Vernell Kennedy injured herself when she fell at the City of Dallas’ Eddie Bernice Johnson’s Union Station by tripping on a broken area of tile.  She had traveled by Amtrak train from Kilgore to Dallas before using the Station and had purchased her train ticket in Longview.  She sued the City for failing to repair the floor or warning of the dangerous condition.  The City filed a plea to the jurisdiction claiming that it was protected by governmental immunity on the basis that Ms. Kennedy was a licensee, not an invitee because she did not pay to use the train station.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

Under the Tort Claims Act, a city owes “owes to the claimant only the duty that a private person owes to a licensee on private property,”  Tex. Civ. Prac. & Rem. Code § 101.022.  The duty to a licensee regarding premises defects is to warn of premises defects that the entity has actual knowledge of.  If someone pays for the use of property, the claimant becomes an invitee and the city’s duty to protect the individual from harm is elevated to warning the individual of dangers the person knew or should have known of.  The plaintiff in this case argued that she was an invitee because she had paid to ride the train to the station. The court of appeals disagreed.

“A fee must be paid specifically for entry onto and use of the premises” to change a plaintiff to an invitee.  City of Dallas v. Davenport, 418 S.W.3d 844, 848 (Tex. App.—Dallas 2013, no pet.)(holding that paying for a plane ticket did not make a person an invitee when injured on airport property); but see City of Fort Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.).  Because Kennedy had purchased only a train ticket, and no payment was made to use the station itself, she was a licensee and the city only owed her a duty to warn her of dangers of which the city had actual knowledge.  Actual knowledge of the danger in this case was not established by Kennedy, because there were no reports on file at the city that the danger existed.

If you would like to read this opinion click here.

San Antonio Court of Appeals holds because officer’s affidavit was too sparse to establish a proper lookout trial court properly denied the plea to the jurisdiction

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City of San Antonio v Huron, 04-19-00570-CV (Tex. App. – San Antonio, June 11, 2020)

This is a vehicle accident/Texas Tort Claims Act (“TTCA”) case where the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

David L. Arredondo was struck and killed by a San Antonio Police Department (SAPD) vehicle when Arredondo was riding his bicycle.  Arredondo failed to stop at a stop sign, and he rode across the unlit intersection. The City sent investigators and a supervisor to the scene, and the driver/officer gave a statement regarding the accident. The investigators took photographs and videos, collected evidence, and filed their reports.  No formal written notice of claim was filed, but just over thirteen months after the accident, the family filed suit.  The City asserted its immunity from suit for lack of formal or actual notice.  The family asserted the City had actual notice due to the investigation and reports.    The plea was denied and the City appealed.

“[A]ctual notice exists only when the governmental unit has ‘knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.’”  “[S]ubjective awareness of alleged fault requires neither adjudication of liability nor confession of fault.”  But a governmental unit’s subjective awareness of its potential fault is not enough to establish actual notice. The investigation reports, prepared by an SAPD investigator, identifies the officer driving the SAPD vehicle, the decedent, the location, and other facts pertaining to the accident.  The only finding of fault in the Texas Peace Officer’s Crash Report points to Arredondo.  Neither of the two CSI reports gave any indication of fault by any party, and the court expressly did not infer that the City gained any subjective awareness of its alleged fault merely because it conducted an extensive investigation. It is the facts disclosed in the investigation, not the breadth of the investigation alone, that inform the actual notice question. The driving officer’s report, however, was very sparse and noted “I was traveling [southwest] in the #1 lane of Somerset [Road], when I felt something strike my vehicle. I immediately noticed my windshield was damaged and [I] came to an immediate stop.”  All persons have the duty to maintain a proper lookout and to observe in a careful manner the traffic and the general environment at and in the vicinity of an intersection. The officer’s affidavit was so sparse, it did not establish he was maintaining a proper lookout. He does not list his speed at the time of the accident or much of anything else. From this evidence, the trial court could have found that the officer did not see Arredondo and it could have concluded that the officer was failing to keep a proper lookout in violation of his duty.  As a result, the plea was properly denied. [Comment: This opinion appears to be inconsistent with the burdens attributed to the parties during a plea as the opinion does not go into what evidence was present in response to the plea to establish a failure to keep a proper lookout. The court seems to treat the absence of evidence as a proper submission of contradicting evidence to make an implied finding by the trial court.]

If you would like to read this opinion click here. The panel consists of Justices Alvarez, Chapa and Rios.  Opinion by Justice Alvarez.

Slowing and visually observing stopped traffic was not reckless action for purposes of emergency responder doctrine of TTCA

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City of Kingsville v Dominguez, 13-19-00236-CV (May 28, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.

Dominguez alleged that Oscar Mendiola, while operating a City fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated.  Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded.  According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The City filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the City appealed.

Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.”  However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e., he understood the risks but did not care about the result).  The City argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions. Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore did not act recklessly. As a result, the plea should have been granted.

If you would like to read this opinion, click here.

Texas Supreme Court holds plaintiff lacked standing to challenge PIP payments since he suffered no out-of-pocket expenses

 

Farmers Texas County Mutual Insurance Co. v Beasley, 18-0469 (Tex. March 27, 2020)

While not a governmental entity case, this case involves standing to sue under a personal injury protection policy (PIP) and the distinction made with incurred rates vs. list rates of the medical providers. This can affect not only litigation but also those entities which are self-insured.

Beasley was injured in a car accident and his treatment displayed in the medical provider’s invoices totaled $2,662.54. Beasly had health coverage with BlueCross Blue Shield (BCBS) which negotiated a provider rate of $1,068.90.  The medical providers did not attempt to recover or hold him liable for the difference. Beasley also had a PIP policy through Farmers Texas County Mutual Insurance Company (Farmers).  The policy stated it would pay benefits because of bodily injury, including reasonable medical expenses. Beasley made a claim but sought the list/invoiced rates. Farmers paid Beasley $1,068.90.  He sued for the difference alleging breach of contract and asserting the policy covers reasonable medical costs, regardless of any reductions the providers agreed to accept later. Farmers asserted the policy was for medical expenses incurred. The trial court granted Farmers’ plea to the jurisdiction but the court of appeals reversed holding the breach of contract claim was sufficient to confer jurisdiction. Farmers appealed.

Standing is a requirement of jurisdiction and Beasley must establish an injury. Beasley was not harmed as the medical providers did not attempt to charge him for the difference.  He was not able to claim any unreimbursed, out-of-pocket medical expenses. Nor does Beasley assert that any of his medical providers withheld treatment as a result of the adjusted bills. The fact Beasley felt personally aggrieved by the lack of payment does not mean he suffered an injury. [Comment: yes, he actually made that argument.] Beasley also asserts Farmers impermissibly considered a collateral source in determining how much to reimburse: BCBS’s payments to Beasley’s medical providers. But a health insurer’s negotiated discounts do not constitute a collateral source of benefits to the insured in this context.  Adjustments in the amount of charges to arrive at the amount owed is a benefit to the insurer, one it obtains from the provider for itself, not for the insured. As a result, the collateral source rule is inapplicable in Beasley’s case. Beasley, therefore, was not able to establish standing to bring suit.

If you would like to read this opinion click here. Opinion by Justice Green. The court docket page with attorney information is found here.

 

Property owner negated premise duty as a matter of law involving brown-recluse spider attack on invitee

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Homer Hillis v Henry McCall, 18-1065 (Tex. March 13, 2020)

This is a premises-liability case where the Texas Supreme Court ruled the property owner negated as a matter of law the duty to warn of the brown-recluse spider danger. While not a governmental liability case, the analysis of knowledge would be similar.

Hillis owns a bed and breakfast (the B&B) and a neighboring cabin which he rents out. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems, on an “as needed” basis. Hillis leased the neighboring cabin on the property to Henry McCall, and utilized him as a handyman. Hillis typically called McCall several days before guests arrived and asked him to perform various tasks associated with B&B services. While checking under the sink for a leak in response to a Hillis call, McCall was bitten by a brown recluse spider. Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders. Hillis asserted he would pass along the information to the housekeeper to take care of. McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the MSJ and McCall appealed.

The Texas Supreme Court held the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.”  When the injured person qualifies as an invitee, as McCall did by admission of the parties,  then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is or reasonably should be, aware but the invitee is not.” The duty does not extend to warning the invitee of hazards that are open and obvious. The Court also recognized that with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Wild animals “exist throughout nature” and are “generally not predictable or controllable.” The exception to this doctrine is when wild animals are found in artificial structures or places where they are not normally found, the landowner knows or should know of the unreasonable risk of injury and patrons would not be expected to recognize the danger. Under this exception, the landowner owes the general duty owed to an invitee to warn or make safe unreasonably dangerous conditions they know or should know about. However, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm. The Court analyzed the record and listed pertinent facts. The Court found knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property. According to McCall, Hillis should have warned him that the spiders McCall himself had seen and reported to Hillis were dangerous. The Court expressly stated “[w]e will not impose a duty on a landowner to warn an invitee about something he already knows.”  As a result, Hillis negated a duty to McCall as a matter of law.

If you would like to read this opinion click here. The docket page can be found here.

Texas Supreme Court holds supervisor’s order to use tear-gas gun was “use” under TTCA, but riot exception preserved immunity

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Texas Dept. Crim. Justice v Cesar Rangel, 18-0721, (Tex. Feb. 7, 2020)

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Department of Criminal Justice (“Department”) retained immunity for hitting an inmate with a tear-gas shell.

Two groups of inmates were threatening each other in  The Pam Lychner State Jail.  The groups totaled approximately thirty (30) inmates. After giving orders to cease hostilities for almost an hour, which were ignored, Department officials ordered a guard to fire tear-gas (including a skat shell) at the groups.  A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The shell hit Rangel, injuring him. Rangel sued.  The Department conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The official who authorized the use indoors was disciplined. The Department filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the Court spent multiple pages in the opinion on this distinction.] This also had an interplay with the court of appeals opinion on the intentional tort exceptions. However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. Using the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger.  As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Opinion by Justice Lehrmann.  Docket page found here.

Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

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The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.

Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

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The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.

El Paso Court of Appeals holds concrete barrier and canal at end of roadway is a special defect

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City of El Paso, Texas v. Albert Lopez and Lexby Lopez, 08-19-00056-CV, (Tex. App – El Paso, Dec. 12, 2019)

This is a Texas Tort Claims Act (“TTCA”) case where the El Paso Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Plaintiff Lopez was traveling on his motorcycle at night when the roadway ended with a concrete barrier and canal. There were neither road signs nor any other type of warnings or lighting. Lopez struck the barrier and was killed. The police investigation report noted “the driver . . . failed to stop for the end of the street or roadway and crashed his bike into the canal.” A nearby resident also gave a statement that “there are a lot of cars that crash into the canal” because “[t]here are no warning signs to let you know that the street ends so when people come out the bars they wind up crashing at the canal.”  The investigation listed “lack of signs and illumination” as factors in causing the accident.  Lopez’s family brought a wrongful death claim against the City. The City filed a plea to the jurisdiction, which was denied.

The Plaintiffs failed to provide statutory notice of the accident but asserted the City had actual notice of its fault. Citing to the recent Texas Supreme Court case in Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex. 2019), the court held the “critical inquiry is the governmental unit’s actual anticipation of an alleged claim rather than subjective confirmation of its actual liability.” After reviewing the record the court held the  City had actual notice of the claim under the TTCA. Next, the court analyzed whether the concrete barrier was a special defect. Both the canal and the concrete barrier were located on the roadway’s path, neither of which were visible in the dark to ordinary motorists. As a result, the court determined it was a special defect and the plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley, Justices Rodriguez and Palafox. Opinion by Justice Birdwell. The attorneys listed for the Plaintiffs are Ramon King Jr. and Lloyd Robles.  The attorney listed for the City is Anelisa Benavides.

4th Court of Appeals holds city vendor’s fair maybe proprietary function so trial court properly denied plea to the jurisdiction

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City of Helotes v. Jean Marie Page, 04-19-00437-CV, (Tex. App – San Antonio, Dec. 18, 2019)

This is an interlocutory appeal from the denial of the City’s plea to the jurisdiction in which San Antonio Court of Appeals held the Plaintiff’s injuries were caused during the performance of a potential proprietary function.

A City employee dropped a table while removing it from a parked golf cart. The table allegedly struck the accelerator on the cart, propelling it forward and striking Plaintiff Page. The accident occurred when the City employee was setting up for an event called the “MarketPlace at Old Town Helotes” and is a vendor’s fair where the City rents booths to vendors who sell merchandise and food. The MarketPlace is held on public streets in “Old Town Helotes,” and the streets are closed to traffic. The MarketPlace is sponsored, supervised, regulated, operated, and managed by the City. Page sued the City.  The City filed a plea to the jurisdiction, which was denied.

The Texas Tort Claims Act  defines proprietary functions as “those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality.” Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(b). Proprietary functions are “usually activities ‘that can be, and often are, provided by private persons.’”  Citing to  Wasson Interests, Ltd. v. City of Jacksonville, 559 S.W.3d 142 (Tex. 2018) the court of appeals noted it was a factually specific analysis as to whether an activity is proprietary or governmental. A city’s proprietary functions “will often benefit some nonresidents,” but in determining whether the MarketPlace was intended to benefit the general public or the City’s residents, courts focus on whether the activity “primarily benefits one or the other.” The facts demonstrated the primary objective was to assist local businesses by generating community involvement in the Old Town Helotes area which undisputedly “raised funds for the City’s budget.” The revenues were recorded in the MarketPlace budget, and any profits could remain in the MarketPlace line item or be used for other City departments. The City did not provide any evidence the event was necessary for City operations. As a result, “some” evidence exists the MarketPlace may be proprietary.  As a result, the pleadings indicate jurisdiction and the trial court properly denied the plea.

If you would like to read this opinion click here. Panel consists of Justice Alvarez, Rios, and Rodriguez.  Memorandum Opinion by Justice Alvarez. Docket page with attorney information found here.

No waiver of immunity for city contract to install sewer lines on property says 4th Court of Appeals

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Twanda Brown v. City of Ingram04-1900508-CV (Tex. App. —  San Antonio, Nov. 20, 2019).  

In this suit, the San Antonio Court of Appeals affirmed the granting of the City’s plea to the jurisdiction related to counterclaims regarding utility services.  

The City of Ingram (“the City”) sued Brown and eight other defendants, seekingdeclaratory judgment that its ordinances regarding penalties and permits for utilities and wastewater are “valid and reasonable exercises of the City’s police powers.” Brown answered the City’s suit and asserted a counterclaim for breach of contract, alleging the City “breached its Contract for Wastewater Services by knowingly permitting an unqualified, unlicensed subcontractor” to connect her property to the City’s sewer system. Brown alleged the subcontractor’s negligence “sever[ed] a gas line and caus[ed] damages to Brown and her property.” The City filed a plea to the jurisdiction which was granted.  Brown appealed.  

The Texas Tort Claims Act makes sanitation, water, and sewer services governmental functions, thereby entitling the City to immunity absent a waiver. The City’s actions of connecting residents to the city’s sewer system is a governmental functionImmunity is waived for breach of contract claims for goods or services provided to the entityBrown’s pleadings allege the purported contract was an agreement to provide goods or services to Brown (i.e. construction and installation of service lines), not the other way around. Because any purported contract does not involve the provision of goods or services to the City, it is not a “contract subject to” the waiver in Texas Local Government Code chapter 271 subchapter I.  

Several days after the trial court granted the plea to the jurisdiction, the City filed a motion to strike an affidavit submitted by the City on the basis that counsel for the City learned the affiant made a mistake as to the location of a photograph.  Brown filed an objection but also sought in the alternative, the trial court re-open the hearing. The court noted the record does not reflect whether the trial court ruled on either. However, the court held the issue is irrelevant to the ability to rule on the appeal as it does not change the analysis of the type of contract involved.  Finally, the court denied the City’s request for sanctions as they do not believe the claims “lacked any reasonable basis in law.”   

If you would like to read this opinion click hereThe panel consists of Chief Justice Marion, and Justices Alvarez and Chapa. Opinion by Chief Justice Marion. The attorney for Brown is listed as Roger Gordon.  The attorneys listed for the City are Charles E. ZechScott Micheal Tschirhart  and Llse D. Bailey 

Even though inmate asserted eye-injury due to laser was accidental, Fort Worth Court of Appeals holds pleadings actually assert battery – no waiver of immunity exists

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Tarrant County, Texas v. Tony Lee Green, 02-19-00159-CV (Tex. App. – Fort Worth, Oct. 24, 2019)

This is a Texas Tort Claims Act (“TTCA”) case where the Fort Worth Court of Appeals reversed the denial of the County’s plea to the jurisdiction based on an intentional tort.

While Green was a jail inmate, he asserts Corporal Davis at the jail pointed a temperature gun which utilized a laser for measurements at his left eye, causing injury.   Corporal Davis admits to using a laser temperature gun, but denied the laser impacting Green. Green testified that he does not believe Davis hit him with the laser intentionally.  However, he testified Davis pointed the temperature gun at him as a result of Green telling a joke about Davis moments before. The County filed a plea to the jurisdiction asserting Green alleged an intentional tort, even though Green disclaimed the injury was performed intentionally. The trial court denied the plea and the  County appealed.

Although the specific intent to inflict injury is unquestionably part of some intentional torts, a specific intent to injure is not an essential element of a battery, which does not require physical injury and which can involve a harmful or offensive contact intended to help or please the plaintiff. The court noted that accidental injuries can sometimes result from an intentional tort.  The court drew a distinction between criminal and civil analysis for “intentional” conduct regarding battery. Green’s allegations constitute a common-law battery claim because the contact—either offensive or provocative—was an intentional act made in response to Green’s own provocative statement. As battery is an intentional tort, no waiver of immunity exists. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justice Bassel and Justice Wallach. Memorandum opinion by Chief Justice Sudderth. The attorneys listed for Green are Scott H. Palmer and Niles Illich.  The attorneys listed for the County are Christopher Taylor and Kimberly Colliet Wesley.

Texas Supreme Court holds University immune under Recreational Use Statute when bicyclist is hit by motor vehicle driven by University employee

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University of Texas Austin v April Garner, 18-0740 (Tex. Oct 18, 2019.

This is a Recreational Use Statute case where the Texas Supreme Court reversed the denial of the University’s plea to the jurisdiction and dismissed the claims.

The University of Texas at Austin owns and operates the Colorado Apartments, a student housing complex. Within the complex are four roads that permit two-way traffic around the complex and contain parking spaces that are oriented perpendicularly to the road.  They connect to City of Austin streets. Bicyclists commonly use the road. Garner was traveling by bicycle to the trail head at Eilers Park.  University employee Angel Moreno was backing out from a southwest-facing parking space and struck Garner. Garner sued the University for negligence, contending that the Tort Claims Act waived the University’s immunity by the operation and use of a motor vehicle. The University filed a plea to the jurisdiction asserting the application of the Recreational Use Statute (“RUS”), which was denied, and the court of appeals affirmed. The University appealed.

The RUS limits the liability of all landowners—public and private—who permit others to use their property for activities the statute defines as “recreation.” Such landowners are “effectively immunize[d]” from ordinary negligence claims, owing those who use their property for recreation only the duty not to injure them intentionally or through gross negligence. Garner’s only claim against the University sounds in ordinary negligence. She does not allege that the University or Moreno acted with gross negligence, malicious intent, or bad faith.  The court of appeals held the RUS did not apply because under subsection (c) it did not grant permission to use the roads for recreational use. However, under the RUS subsection (f) states “Notwithstanding Subsections (b) and (c), if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Subsection (f) contains no language (unlike subsection (c)) requiring permission or invitation. Here, it is undisputed that Garner (1) entered premises owned by a governmental unit and (2) engaged in an activity on those premises—bicycling—that qualifies as “recreation” under the statute. As a result, no waiver of immunity applies.

If you would like to read this opinion click here. Per curium opinion.  For the docket page click here.