City no longer “used” property under Tort Claims Act after it loaded contents into truck for transport

William Boatman v. City of Garland, 05-13-01232-CV (Tex. App. – Dallas, June 12, 2014).

This is an appeal from the grant of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case. The Dallas Court of Appeals affirmed the dismissal of all claims.

Boatman picked up a load of recycling carts from the City’s Transfer Station for transport to Houston.  Upon arriving and opening the back of the truck, the contents fell on him. He alleged the City’s employees loaded the contents and therefore negligently used tangible personal property resulting in his injuries. The City filed a plea to the jurisdiction which the trial court granted and Boatman appealed.

The court first analyzed the term “use” of personal property under the TTCA and held that a governmental unit does not use property by merely allowing someone else to use it. Additionally, it is the use which must cause the injury, not merely the existence of personal property. Once the contents were loaded into the truck and Boatman drove to Houston, the City was no longer “using” the property. Further, the injuries he sustained were “distant geographically, temporally, and causally” from the loading of the contents. As a result, the trial court properly determined the City retained immunity. The court then analyzed whether Boatman should have been given the opportunity to appeal and held that the pleadings negated the existence of jurisdiction and remanding the case to amend would serve no legitimate purpose since the defects could not be cured.

If you would like to read this opinion click here. Panel: Justice Bridges, Justice Francis, and Justice Lang-Miers. Memorandum Opinion by Justice Francis. The attorneys listed for the City are Matthew Durham, Kurt C. Banowsky and Ronald Bradford Neighbor.  The attorney for Boatman is listed as Scott Robelen.