Under the Texas Tort Claims Act, injury to self by suicide is a foreseeable injury under the motor-vehicle waiver of immunity when officer did not properly fasten a seatbelt of a detainee 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Austin  v. Sayeed Anam, et al., 03-19-00294-CV (Tex. App.—Austin, July 30, 2020) (mem. op.).

In this Texas Tort Claims Act, the Court of Appeals upheld the trial court’s denial of the City’s plea to the jurisdiction for the death of an arrestee by suicide due to use of a motor vehicle because it was foreseeable that not properly fastening a seatbelt would allow an arrestee to commit suicide.

The decedent was arrested after shoplifting at a mall.   The officer performed a search on the decedent and fastened his seatbelt, but the decedent had a handgun in his waistband that went undetected.  During the ride, the decedent was able to unfasten his seatbelt, and after revealing to the officer that he was suicidal, told the officer he had a loaded handgun to his own head.  The officer then stopped and exited the vehicle and the decedent committed suicide.  The family of the decedent sued the City under the Tort Claims Act alleging that the use of a motor vehicle, not properly fastening the seatbelt, was the foreseeable cause of the death of the arrestee.  The City filed a plea to the jurisdiction arguing that there was not sufficient evidence that the motor vehicle caused the death.

In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that it was the operation or use of the motor vehicle that caused the injury or death.  The Court of Appeals held that the improper fastening of a seatbelt is a foreseeable cause of an injury to self by an arrestee.  The Court affirmed the trial court’s denial of the plea to the jurisdiction on causation.  The Court did not review the issue of whether tangible personal property caused the injury.

A dissent was filed, and the judge stated that death by suicide is not a proximate cause or foreseeable from not properly using a seatbelt, that instead the foreseeable injury from not using a seatbelt is injury from a car accident.

If you would like to read this opinion click here. Dissent by Chief Justice Rose can be viewed here.  Panel consists of Chief Justice Rose and Justices Triana and Smith.  Opinion by Justice Gisela Triana.

The Dallas Court of Appeals holds liberal construction for pro se pleadings cannot give pro se party an unfair advantage

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

David E Shaw v. City of Dallas, 05-19-01233-CV (Tex. App.—Dallas, July 27, 2020) (mem. op.).

In this Texas Tort Claims Act, the Court of Appeals upheld the trial court’s dismissal of the pro se plaintiff’s Tort Claims Act action against the City.

The plaintiff called an ambulance after suffering severe stomach pain.  He alleges that the driver of the ambulance hit potholes on the way to the hospital exacerbating his injuries.  The plaintiff had surgery to fix the stomach issue. The plaintiff sued the City under the Tort Claims Act pro se arguing that the bumpy ambulance ride exacerbated his stomach injury.  The City argued that there was no evidence that the ambulance ride caused the injury because the stomach injury was a pre-existing condition.  The trial court dismissed the plaintiff’s claims for lack of sufficient evidence.

In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that the government employee caused an injury.  Despite the court’s liberal construction of the pro se plaintiff’s petitions and evidence, the only evidence presented that alleged wrongdoing by the City occurred was the statement by the nurse practitioner that the bumpy ride might  have “add[ed] more pain to the abdomen area.”  The Court of Appeals agreed with the trial court that this statement alone was insufficient to waive immunity.   The Court also noted that it does liberally construe pro se plaintiff pleadings but has to hold a pro se plaintiff to the same procedural standard as a plaintiff with counsel in order to avoid giving a pro se applicant an unfair advantage.

If you would like to read this opinion click here. Panel consists of Justices Myers, Partida-Kipness, and Reichek.  Opinion by Justice Amanda L. Reichek.

14th Court of Appeals holds waiver of immunity in TCEQ SOAH hearing need not be by express statutory language

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Hyde v Harrison County, 14-18-00628-CV (Tex. App. – Houston [14th Dist.], July 30, 2020)

Harrison County (the “County”) owns and operates underground storage tanks at its road and bridge department and at its airport. A Texas Commission on Environmental Quality (the “Commission”) investigator determined the County violated the Texas Water Code by not providing a release detection for the pressurized piping. The Commission initiated an administrative enforcement action against the County. The Commission sought an administrative penalty of $5,626 against the County. At the contested case hearing at the State Office of Administrative Hearings (“SOAH”) the SOAH judge assessed an administrative penalty against the County. The County timely filed a petition in district court and argued the SOAH judge did not have jurisdiction over the County. The trial court agreed with the County and vacated the SOAH order. The Commission appealed.

The Court first held no express statutory waiver of immunity exists for the administrative proceedings or penalties in the Water Code. However, the court noted that there are limited circumstances where waiver need not be statutorily expressed. The Water Code requires such tanks comply with Commission requirements for pressurized piping release detection equipment. When a statutory context in which a statute defines “person” to include governmental entities, a statute imposes liability on a “person,” and construing the statute not to waive immunity would make part of the statutory scheme meaningless, the court may find a waiver. The court further noted that  § 7.051 allows the Commission to lower a penalty if the owner contributes to supplemental projects, but notes non-governmental entities cannot use this option if the project is necessary to bring the owner into compliance.  The Commission is also required to develop a policy to prevent “regulated entities” from avoiding compliance through the use of such supplemental projects. These provisions would be useless if governmental entities were not subject to regulation and penalties. The court concluded “…that applying the statutory definition of ‘person’ from Government Code section 311.005 to Water Code section 7.051 shows clear legislative intent to waive governmental immunity against assessment of an administrative penalty under section 7.051 because the context of section 7.051 affords no other reasonable construction.” As a result, the trial court erred in vacating the SOAH order.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justices Wise and Hassan. Opinion by Chief Justice Frost.

 

14th Court of Appeals holds police sergeant who picked up her husbands police vehicle to deliver it home, was acting within the course and scope of her employment

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City of Houston v. Isabel Mejia, 14-19-00559-CV (Tex. App. – Houston [14th Dist.], July 21, 2020)

This is a Texas Tort Claims Act (“TTCA”) case involving a motor vehicle accident in which the 14th Court of Appeals affirmed an order denying the City’s jurisdictional challenge on interlocutory appeal.

Isabel Mejia was driving her vehicle when Sergeant Michelle Gallagher (Gallagher) of the Houston Police Department failed to yield the right of way at an intersection and hit Mejia’s vehicle. The Mejias sued Gallagher and the City for personal injuries. The Mejias’ claims against Gallagher were dismissed pursuant to the City’s motion under Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e). The City originally admitted Gallagher was in the course and scope of her employment at the time, then later amended responses to Mejia’s request for admissions and denied she was within the course and scope. The City then filed a motion for summary judgment asserting Gallagher was not within her course and scope of employment at the time of the accident. Essentially, the City found out that Gallagher’s husband (a police lieutenant)  asked her to drive his “take home” police vehicle from the mechanic’s garage and was delivering it to their home when she was involved in the accident. Gallagher testified that at the time of the accident she was driving home, had no official duties, was not being paid, was not responding to a call for service, criminal activity, or an emergency situation. The motion was denied and the City appealed.

Under the TTCA  “scope of employment” means the performance of “the duties of an employee’s office or employment and includes being in or about the performance of a task lawfully assigned to an employee by competent authority.” Whether she was on duty, off duty, or using a police vehicle or not, is not dispositive. The focus is on  the capacity in which the officer was acting at the time of the accident (i.e. what the officer was doing and why she was doing it.) Gallagher’s affidavit reflects that her husband (a superior officer employed by Gallagher’s employer) asked her to pick up his City-issued vehicle from the City garage so her superior officer would have the vehicle available at the beginning of his shift (a benefit to Gallagher’s employer). Gallagher was not merely commuting to work, but running an errand for the City.  As a result, the City did not conclusively negate Gallagher’s course and scope.

Chief Justice Frost’s dissent asserts the majority used the wrong legal standard. Nothing in the record shows that in picking up her husband’s work vehicle and driving it to their home, Sergeant Gallagher was acting on the instructions of a supervisor or other superior in her chain of command. The mere conferring of an employer benefit is not the proper legal test.

If you would like to read this opinion click here. Panel consists of Chief Justice Frost, Justice Zimmerer and Justice Poissant. Opinion by Justice Zimmerer.  Dissent by Chief Justice Frost found here.

14th Court of Appeals holds 1) proof of causation necessary to maintain labor code disability discrimination & 2) plea was properly denied for breach of contract

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Norris Rogers v. Houston Community College, 14-18-00591-CV (Tex. App.—Houston [14th Dist.], July 14, 2020) (mem. op.).

This case contains two claims: (1) disability discrimination under Texas Labor Code Section 21.105; and (2) breach of contract under Chapter 271 of the Texas Local Government Code. The Court of Appeals reversed-in-part and affirmed-in-part the trial court’s orders and reinstated the contract claim.

The plaintiff, and adjunct electrical instructor, argued he was terminated by the College because of a disability which prevented him from performing carpentry work or general construction work.  He also argued a unilateral employment contract was created for employment.   The College filed a no-evidence summary judgment on the disability claim and a plea to the jurisdiction on the contract claim. The trial court granted both and Rogers appealed.

To establish a prima facie case of discrimination based on disability, a plaintiff must show that the plaintiff suffered an adverse employment decision because of the disability.  Donaldson v. Tex. Dept. of Aging & Disability Srvs., 495 S.W.3d 421, 436 (Tex. App.––Houston [1st Dist.] 2016, pet. denied).  The plaintiff did not establish he was terminated because of his disabilities.  During this analysis, the Court also discussed how a lack of causation in a no-evidence summary judgment argument can be presented.   The Court affirmed the trial court’s order dismissing the disability claims against the College.

Next, to establish a contract, and waiver of immunity, under Chapter 271 of the Texas Local Government Code the plaintiff must prove that the contract: (1) is in writing, (2) states the essential terms of the contract, (3) provides for goods or services for the entity; and (4) was properly executed for the entity.  The plaintiff presented evidence that a unilateral contract existed.  The College stated that its policies and procedures would not allow this type of contract, but the Court held that the policies presented did not sufficiently negate the contract could exist.  Because there was sufficient evidence from a jurisdictional standpoint that the contract could exist, the Court overturned the trial court’s order granting the plea to the jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Wise, Zimmerer, and Spain.  Opinion by Justice Ken Wise.

 

San Antonio Court of Appeals holds a fact question exists as to whether a deputy’s U-turn caused following traffic to skid into oncoming traffic

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Webb County v. Juan C. Garcia, 04-19-00891-CV (Tex. App. – San Antonio, July 22, 2020)

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

Webb County Sheriff’s Deputy Mauro Lopez witnessed Saldivar pass a vehicle from a no-passing lane on a three-lane highway. Deputy Lopez applied his brakes to make a U-turn prior to initiating his lights and siren. The video from Deputy Lopez’s dash camera shows he slowed from 70 miles per hour to 16 miles per hour in seven seconds. During this time, he began moving into the center turn lane, effectively blocking all traffic behind him. This caused traffic behind Lopez to hit their brakes suddenly, which caused an 18-wheeler truck to jackknife. It skidded into the westbound lane, directly into Saldivar’s path. Saldivar’s truck and the 18-wheeler collided, killing Saldivar and all passengers. The families sued and the County filed a plea to the jurisdiction. The plea was denied and the County appealed.

The County asserted Deputy Lopez did not control the 18-wheeler which caused the accident, so no waiver of immunity exists. The TTCA waives immunity if the injury “arises from the operation or use of a motor-driven vehicle”. The TTCA does not define the term “arises from” but case law states it requires a nexus between the operation or use of the motor-driven vehicle or equipment and cause of the plaintiff’s injuries. The Texas Supreme Court has “described the threshold as something more than actual cause but less than proximate cause.” The necessary causal nexus requires a showing that the use of the vehicle actually caused the injury.  Deputy Lopez testified that a vehicle going far below the speed limit poses a hazard to vehicles traveling behind it. The police crash report notes witnesses stated it was Deputy Lopez’s drastic reduction in speed which caused following traffic to have to take evasive measures. Taking the pleadings in a light most favorable to the non-movants, the court held  the evidence in this case raises a fact question about whether Deputy Lopez’s operation or use of his vehicle was “directly, causally linked to the accident and the damages sustained.” The court next considered whether Deputy Lopez possessed official immunity. Such immunity is governed by the needs/risk analysis. The court agreed Deputy Lopez was performing a discretionary duty in choosing to pursue the perceived traffic violation. However, Webb County did not conclusively establish that a reasonably prudent officer could have determined Deputy Lopez’s actions were justified under these circumstances. There was no detailed analysis of the need for immediate apprehension vs the risks related to the U-turn at that point and in that manner. Finally, as to the County’s assertion under the emergency responder exception, routine traffic stops were not listed as emergency calls in the department manual, Deputy Lopez did not activate his lights or siren, he did not call dispatch to notify the situation was an emergency, and nothing indicates there was an immediate need to pull in front of oncoming traffic as opposed to waiting for traffic to be more cleared or by activating lights/sirens. The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Marion, Justice Martinez, Justice Watkins.  Opinion by Justice Watkins.

Fort Worth Court of Appeals analyzes the law-of-the-case doctrine and determines private property owners did not establish claims against a city regarding fee simple land ownership

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City of Mansfield, et al., v Saverings, et al, 02-19-00174-CV (Tex. App. – Fort Worth, July 16, 2020)

In this lengthy opinion, the Fort Worth Court of Appeals holds certain private property owners did not establish a right to declaratory relief regarding fee-simple ownership of lots over which the City exercised some regulatory control, asserting they were public paths.

A developer filed a final plat in Tarrant County, creating a planned housing development—The Arbors of Creekwood – Gated Community (the Development) located in the City, but which had two HOAs. An amended plat divided the lots into R1 and R2 lots. All R2 lots were in the floodplain, which was governed by City ordinance. The developer created a lake and connected jogging paths ending at the lake. The developer testified the paths were for public use.  The boundary line for the R2 lots abutting the lake was to the north of the lake; thus, the lake was not included within the boundaries of these R2 lots. The developer executed a declaration of covenants, conditions, and restrictions (the Declaration) for the Development and filed them in Tarrant County. The Declaration stated the HOAs owned fee-simple title to private streets in the Development and “common properties” which had a complicated definition. In 1997, the Arbors HOA forfeited its right to do business and became a terminated entity. The surviving HOA asserted the Arbors HOA property lots (R2) automatically transferred to it. In January 2012, the City began planning for a “possible future trail connection” to the jogging path. Construction on the bridge began in 2013 and opened on January 25, 2014. Some owners of R1 lots noticed an increase in people using the jogging path and trespassing on the R1 lots. The R1 owners sued seeking a declaration they owned the R2 lots as common properties, and seeking to quiet title The Court of Appeals issued an interlocutory opinion in review of a temporary injunction noting the R2 lots were included in the definition of “common properties.” The R1 Owners also raised claims against the City Defendants for trespass and inverse condemnation.  The City Defendants filed a traditional and no-evidence motion for summary judgment, including arguments that the facts and law had substantially changed since the interlocutory order. They argued the R1 owners did not have a right to possess the R2 lots (which were originally owned by the defunct HOA) and that they did not have a private right to enforce a city ordinance on floodplain development. The trial court denied the City Defendants’ motions and granted the partial summary judgment of the R1 owners. The City Defendants appealed.

The court first went through a detailed analysis of the evidence submitted, objections to the evidence, and what constituted judicial admissions. The court held the law-of-the-case doctrine only applied to claims fully litigated and determined in a prior interlocutory appeal; it did not apply to claims that have not been fully litigated. The law-of-the-case doctrine is flexible and directs the exercise of court discretion in the interest of consistency but does not limit its power.  The interlocutory opinion (which was a complicating obstacle) did not address the R1 Owners’ UDJA claim regarding title to the R2 lots, only a probable right of relief for trespass claims based on an undeveloped record. The court noted they were substantially different arguments, issues, law, and review standards. [Comment: For a good analysis of the doctrine and its boundaries, read this section of the case.]  The City argued the R2 lots owned by the defunct HOA could be distributed only under the terms of the articles of incorporation and could not pass to the live HOA automatically. The court agreed with the City that the R1 owners did not establish a proper conveyance under the articles.

Next the court turned to the floodplain ordinance, where the R1 owners asserted the City failed to follow its own ordinance by obtaining studies before constructing structures in the floodplain connecting the jogging paths. The City Defendants’ argument no private cause of action to enforce the ordinance exists is one of standing. The R1 Owners did not challenge the validity of the ordinance but rather asserted that they wanted a construction of the ordinance and enforcement of it against the City Defendants. The R1 Owners did not have a right to enforce the ordinance through a UDJA claim, which only waives immunity for ordinance invalidation.  Alternatively, under the record, the R1 owners did not establish the City violated the ordinance. The City Defendants proffered summary-judgment evidence raising a fact issue on their substantial compliance.  Finally, since the court held the R1 owners could not bring a UDJA claim, the attorney’s fee award was reversed.

If you would like to read this opinion click here. Panel consists of Chief Justice Sudderth, Justices Gabriel and Kerr.  Opinion by Justice Gabriel.

San Antonio Court of Appeals affirms county’s jurisdictional challenge and award of sanctions against property owner

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Kehoe v Kendall County, 04-19-00825-CV (Tex. App. – San Antonio, July 15, 2020).

This is a declaratory judgment case involving a private property easement where the San Antonio Court of Appeals affirmed the City’s plea to the jurisdiction and awarded sanctions against the Plaintiff.

Kehoe asserts Kendall County improperly accepted a 40-foot easement across her property and sought a declaration no easement exists. She brought suit under the Uniform Declaratory Judgment Act (“UDJA”) and the Texas Private Real Property Rights Preservation Act (“PRPRPA”). The County filed a plea to the jurisdiction, which was granted, and sought sanctions asserting Kehoe previously sued over the easement and lost. The trial court granted sanctions and Kehoe appealed.

The court first held that Kehoes’ arguments in her brief, even broadly construed, do not address the trial court’s jurisdictional dismissal. The briefings consist solely of bare assertions of error, without citations to applicable authority or the record. Since nothing was properly briefed for review, the plea to the jurisdiction remains properly granted. Likewise, Kehoe does not address the standards for sanctions and so they are likewise affirmed.

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

Former City Manager properly alleged breach of contract under Chapter even though the actual contract document was not presented to the city council.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Port Isabel v. Edward Meza,  No. 13-19-00070-CV, 2020 WL 3786249 (Tex. App.—Corpus Christi July 2, 2020) (mem. op.).

This is a breach of contract case where the Corpus Christi Court of Appeals affirmed the denial of the  City’s plea to the jurisdiction.

Edward Meza was hired as the City Manager.  Two years later, the City Commission approved an employment/severance package for Mr. Meza, in concept.  The agreement was drafted and signed by the Mayor and Meza, but the actual agreement document was never taken back to the City Commission for approval.  Meza was later terminated and the severance policy was rescinded by the City Commission.  Meza sued the City for breach of contract.  The City argued the agreement was not properly approved and executed by the City. The City filed a plea to the jurisdiction which was denied.

Section 271.151 of the Texas Local Government Code waives immunity in contracts for services but requires a contract be “properly executed” by the governmental entity.  The court of appeals reviewed the agreement, the meeting minutes, the City’s Charter, and the affidavits of appointed and elected officials.  The July 2010 meeting minutes showed approval of the basics of the employment/severance agreement.  The City Charter provided that the mayor can sign documents for the City.  The court of appeals held that this evidence raised a fact issue that the agreement was properly executed sufficient to overcome the City’s plea to the jurisdiction.  The court of appeals affirmed the trial court’s denial of the plea to the jurisdiction.

If you would like to read this opinion click here. Panel consists of Justices Benavides, Longoria, and Perkes. Opinion by Justice Benavides.

Corpus Christi Court of Appeals holds recovery in breach of contract case under Chapter 271 waiver of immunity dependent on contract definition of “owner” – attorney’s fees are recoverable for any contract covered by Chapter 271 waiver.

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Special guest author Laura Mueller, City Attorney of Dripping Springs

City of Corpus Christi v. Graham Constr. Servs., Inc., 2020 WL 3478661, No. 13-19-00367-CV (Tex. App.—Corpus Christi June 25, 2020) (mem. op.).

This is a breach of contract claim under Chapter 271 of the Local Government Code involving a wastewater plant replacement project where the Court of Appeals affirmed the trial court’s denial of the city’s plea to the jurisdiction.

The City of Corpus Christi (City) entered into a contract with Graham Construction Services (Graham) for the replacement of a wastewater plant.  In the agreement, the City hired Carollo to provide engineering and contract administration services and Carollo was considered the owner’s representative.  The agreement had strict deadlines for the completion of the project in two different phases.  The agreement also had strict notice of claim requirements (i.e. less than 90 days after claim event).  Graham submitted over a dozen delay claims, arguing that it faced delays due to “unclear or conflicting specifications in the contract, unnecessarily burdensome testing requirements, and an uncooperative and obstructionist attitude on the part of Carollo”, but not within the time frames required by the agreement.  At some point, the City replaced Carollo with Freese & Nichols (Freese), but Carollo was still involved in the project.  Graham also submitted reports requesting an increase in price and extensions of the schedule.  The City reviewed the reports and met with Graham regarding these reports. The City refused to issue a certificate of substantial completion, and Graham left the job site.   Graham sued the City for breach of contract.  The City filed a counterclaim which included a third-party petition against Carollo.  Three years after the suit filing, the City filed a plea to the jurisdiction.  The trial court denied the plea as to the breach of contract and attorney fee claims and the City appealed.

Under Chapter 271 of the Texas Local Government Code’s waiver of immunity for goods/services contracts contract damages are limited to: (a) balance due including increased costs from owner caused delays; (b) change orders; (c) attorney’s fees; and (d) interest.  Id. § 271.153.  The chapter does not waive a contractor’s defense, but does require a contractor to comply with the adjudication methods found in the contract. Id. §§ 271.154; .155.  The City argued that it was not responsible for owner-caused delays because the delays were allegedly caused by Carollo, an independent contractor.  The Court held a fact issue exists because Carollo was listed as an Owner Representative in the agreement.  The Court also held (a) the City’s thirty and sixty-day notice of claim requirements are prohibited by § 16.071 of the Texas Civil Practice and Remedies Code; and (2) the City did not tell Graham it missed the notice of claim deadline but instead worked through the claim dispute.  These are permissible under § 271.155.  The Court compared this case to a recent contract case where the City did notify a contractor of the lateness of their claims.   See Mission Consol. Indep. Sch. Dist. v. ERO Int’l, LLP, 579 S.W.3d 123, 129 (Tex. App.—Corpus Christi–Edinburg 2019, no pet.).  Finally, the Court held that the contractor’s request for attorney’s fees was allowed because § 271.153 states that fair and equitable attorney’s fees are recoverable. The plea was properly denied.

If you would like to read this opinion click here.

 

 

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.

Texas Supreme Court holds contractor entitled to derivative immunity for conspiracy claims, but not fraud claims

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GTECH Corp v. Steele, et al, 18-0158 (Tex. June 12, 2020).

In this case, the Texas Supreme Court held a contractor providing certain functions of the Texas Lottery Commission was not entitled to derivative sovereign immunity.

GTECH provided instant ticket manufacturing and services to the Texas Lottery Commission.  GTECH was sued by multiple plaintiffs (in multiple suits alter consolidated on appeal) alleging that the instructions on a scratch-off lottery ticket were misleading, causing them to believe they had winning tickets when they did not.  GTECH created draft tickets, which the TLC commented on and made changes, but ultimately approved after the back-and-forth concluded. After several complaints, the TLC shut down the game within 60 days of its release.  The plaintiffs asserted claims for fraud, fraud by nondisclosure, aiding and abetting fraud and conspiracy.  GTECH filed pleas to the jurisdiction, asserting it was entitled to the same immunity held by the Lottery Commission. Due to the multitude of suits, some pleas were granted, some denied, but all ended up on appeal.

The Court first noted it had not yet had the opportunity to address whether a Texas government agency’s immunity from suit might extend to its private contractors and if so under what circumstances. In the instances of derivative immunity, it only applies  to a private company operating “solely upon the direction” of a government, and exercising “no discretion in its activities,” was “not distinguishable” from the entity such that “a lawsuit against one [was] a lawsuit against the other.”  Here, the contract required GTECH to provide suggested game designs. After receiving approval from the Lottery Commission, GTECH provided drafts and received comments. GTECH’s role also included crafting, designing, and choosing wording. The Commission’s instant product coordinator testified he would expect GTECH to notify the Commission if it saw concerns with a game, including misleading instructions.  Based on the contract and other evidence in the record, the Court held GTECH had some discretion with regard to the conduct at issue.  The Court held that close supervision and final approval of work over which a contractor has discretion are not the same as the government specifying the manner in which a task is to be performed. Importantly, the Court stated “[t]hus, even if we recognized derivative sovereign immunity for contractors, GTECH would not be entitled to immunity from suit on the fraud claims under the control standard.”  This seems to indicate the issue of derivative immunity for contracts with state agencies remains an open question. The Court also stated “[a] challenge to an element of a plaintiff’s claim by a defendant who lacks immunity from suit does not implicate the jurisdiction of the court; it should be raised in a motion for summary judgment rather than a plea to the jurisdiction.”  Finally, the majority held that extending immunity to contractors for fraud could not further the purpose of immunity.   However, the Court did say that GTECH WAS entitled to derivative immunity from the allegation of conspiracy and aiding and abetting because such claims require a finding of the underlying fraud claim being viable against the TLC.  Since the TLC has immunity from fraud claims, the conspiracy and aiding and abetting claims cannot be sustained against GTECH.

Chief Justice Hecht’s concurring in part and dissenting in part opinion notes that he believes since the ultimate decision and approval of the final ticket form rested with the Commission that GTECH should have been provided immunity as to the fraud claims. He stated “Today’s lesson is that if the government acts only through its own employees, it is immune from suit, but if it consults experts before it acts, it is still immune from suit but the experts are not, except that the experts are immune from suit for helping the government defraud but not for giving the government advice that it uses to defraud. And there you have it.”  He agreed GTECH was immune from the conspiracy and aiding and abetting claims.

Justice Boyd’s opinion essentially stated his opinion is that “the simple and logical conclusion” is simply that sovereign immunity only protects the sovereign, no one else. He clarified that this does not affect his opinion on official or qualified immunity which applies to individuals.

If you would like to read this opinion click here.  Opinion by Justice Busby. Chief Justice Hecht delivered an opinion concurring in part and dissenting in part. Justice Boyd delivered an opinion concurring in part and dissenting in part.

BOA appeal deadline of 10 days applies to Open Meetings, declaratory judgment, and as-applied constitutional claims, holds Dallas Court of Appeals

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Tejas Motel, LLC v City of Mesquite, by and through its Board of Adjustment, 05-19-00667-CV (Tex. Civ. App. – Dallas, June 4, 2020).

This is an appeal from a Board of Adjustment decision regarding non-conforming status in which the Dallas Court of Appeals affirmed the granting of the City’s plea to the jurisdiction.

The City of Mesquite had two zoning categories of lodging facilities within the City and placed conditions on their uses — Limited Services and General Services, neither of which Tejas Motel (“Tejas”) qualified under. Although the Tejas Motel had been nonconforming since 1997, the City did not specifically address that nonconformance until 2018, when the City passed an ordinance changing the manner in which the City’s Board of Adjustment could amortize nonconforming properties. The BOA held public hearings and scheduled a date for all non-conforming properties to become compliant, including Tejas. The City introduced evidence that the nonconforming use would adversely affect nearby properties.  Tejas then announced an agreement for a May 1, 2019 compliance date and the BOA approved that as a compliance date. Tejas, however, denied receiving a written copy after the BOA decision, which the BOA insists was mailed. Tejas then sued the BOA to invalidate the compliance date. The City filed a plea to the jurisdiction, which was granted.

The requirement that one timely file a petition for writ of certiorari to challenge a zoning board decision is part of an administrative remedy, which is provided by the Texas Local Government Code and must be exhausted before board decisions may be challenged in court. Under Tex. Loc. Gov’t Code §211.011 Tejas had ten days from the date the decision was filed to challenge the decision. The Board’s July 31 written “Decision and Order” triggered the statutory deadline. Tejas did not file by the deadline, thereby precluding the court from obtaining jurisdiction. This included challenges brought under the Texas Open Meetings Act, declaratory judgment claim and as-applied constitutional challenges.  Tejas also failed to state any viable federal claims. Although a city is not immune from federal constitutional claims, a trial court may grant a plea to the jurisdiction if a constitutional claim is not viable. Tejas had no constitutionally protected, vested due process interest in continuing to use the property in violation of the city’s ordinances, especially when it acquired the property knowing the restrictions.  As a result, the plea was properly granted.

If you would like to read this opinion, click here. The panel consists of Justices Molberg, Carlyle, and Evans.  Memorandum Opinion by Justice Carlyle.

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.