Car accident Plaintiff failed to establish subjective awareness of fault by City, so City retains immunity

Quote

City of Houston v. Francisco Cruz, 14-18-00080-CV (Tex. App. – Houston [14th Dist.], August 27, 2019).

This is a Texas Tort Claim Act (“TTCA”) case involving a motor vehicle accident where the 14th Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the Plaintiff’s claims.

Cruz sued Reyes for damages resulting from a car accident which occurred in November 2015. Cruz alleges Reyes ran a red light at an intersection and collided with Cruz’s vehicle. Reyes moved to add the City of Houston as a third-party defendant. Cruz amended his petition to add the City as well. The City filed a plea to the jurisdiction based on a lack of statutory notice which was denied. The City appealed.

It was not until March of 2017 that Cruz’s lawyer sent a notice letter to the City but listed the client as Francisco Lopez in parts and Cruz in other parts. However, Cruz added the City two weeks after sending the letter. The City contends Cruz was required to give it notice of the claim within 90 days of the accident under the City’s’ charter, but at most within 180 days under the TTCA.  The City submitted affidavits from various custodians noting no notice was received for either Lopez or Cruz.  Cruz responded the City had actual notice because the City was aware of a malfunctioning traffic signal at the intersection on the day the accident occurred. Knowledge that a death, injury, or property damage has occurred, standing alone, is not sufficient.   Actual notice requires that a governmental unit have “subjective awareness that its fault, as ultimately alleged by the claimant, produced or contributed to the claimed injuries.” When factually the issues of communication are undisputed, the issue of subjective awareness is a question of law. Cruz merely provided information there was “a problem at the intersection” which is insufficient to establish a factual dispute on subjective awareness. Cruz failed to provide an affidavit or explanation as to why further discovery was needed. As a result, the plea should have been granted.

If you would like to read this opinion as click here. Panel consists of Justices Christopher, Bourliot, and Spain.  Memorandum opinion from Justice Bourliot. The attorenys listed for Cruz are Husein Hadimohammadabadi, Jamil Thomas and
Carnegie Harvard Mims III.  The attorney listed for the City is Fernando De Leon

 

Subcontractor did not contract directly with DFW Airport, so no waiver of immunity exists for breach of contract says Dallas COA

Quote

Ruth Torres v. Dallas/Ft Worth International Airport et. al, 05-18-00675-CV (Tex. App. —  Dallas, August, 29, 2019).

This is a breach of contract case where the Dallas Court of Appeals held the trial court was without jurisdiction to hear the claims.

Torres was to provide human resources consulting services to Pursuit of Excellence (POE), a corporation that contracted with DFW to provide airport operations services. POE filed suit against Torres for breach of contract.  Torres answered, counterclaimed, and attempted to bring in the Dallas/Ft.Worth International Airport (DFW).  DFW filed a plea to the jurisdiction, which was granted. Torres appealed.

DFW is a special purpose governmental entity which possesses immunity as a matter of law.  As a result, Torres must establish a waiver of immunity to proceed. The Texas Tort Claims Act expressly lists the operating and regulation of an airport to be a governmental function, so no proprietary aspects are involved. Although TEX. LOC. GOV’T CODE § 271.152 provides for a

waiver of immunity in certain cases, that waiver is not absolute.  Unfortunately for Torres, she did not contract with DFW, but with an independent contractor of DFW.  The waiver under §271.152 only applies to contracts entered into directly with DFW.  The remaining arguments asserted by Torres (UDJA, TOMA, PIA, etc.) were not raised at the trial court so cannot be raised for the first time on appeal. The plea was properly granted.

If you would like to read this opinion click here. Panel consists of Justices Myers, Osborne, and Nowell.  Opinion by Justice Myers.

4th Court of Appeals holds City painting of curb with yellow was a discretionary function entitling City to immunity

Quote

The City of San Antonio v. Elena Herrera, 04-18-00881-CV (San Antonio, Aug. 21, 2019) 

This is a Texas Tort Claims Act (TTCA) case where the San Antonio Court of Appeals held the painting of a ramp and curb specific non-contrasting colors was a discretionary function, entitling the City to retain immunity. 

Herrera fell in a City owned/operated parking garage allegedly due to a step from curb and ramp.  The curb of the landing, the ramp, and the flares are all painted yellow. The City’s discovery responses stated these elements of the garage have “always been painted a bright, highly visible yellow color,” and that City maintenance crews had painted it the same way once or twice a year for at least the last twelve years. Herrera asserted the coloring made the curb and ramp appear flush so she did not realize a step-down existed. The City filed a plea to the jurisdiction, which was denied. The City appealed. 

Herrera contends the unreasonably dangerous condition is the lack of visual contrast between the curb and the flares and the absence of any warning of the step down.  Herrera confirmed that her fall was not caused by a slippery substance or by a defect in the actual structure of the ramp/flares, such as a chip or crack, or that the lighting in the garage was insufficient.  Essentially, she is asserting the City failed to use contrasting colors. However, decisions about installing safety features are discretionary decisions.  Yellow paint on elements of a walkway is a common safety feature used to provide visual cues of an elevation change and the City’s use or non-use was a discretionary function for which the City maintains immunity.  The court found it significant no state regulations require any particular color scheme. Further, the City had no duty to bring forth evidence that a “conscious exercise” of discretion was made in order for the discretionary function exception to apply, only that the function is a discretionary one.  Finally, since she already replead once, she is not entitled to another opportunity.  Her claims were dismissed.

If you would like to read this opinion click here.  Panel consists of Chief Justice Marion, Justice Chapa, and Justice Rodriguez. Memorandum opinion by Justice Chapa. 

Dallas Court of Appeals holds officer entered intersection in good faith – entitled to official immunity

Quote

City of Dallas v. Rosa Rodriguez, 05-19-00045-CV, (Tex. App. – Dallas Texas, August 7, 2019)

In this Texas Tort Claims Act (“TTCA”)/motor vehicle accident/emergency responder case, the Dallas Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Rodriguez was injured when a Dallas police officer disregarded a red light and collided with her.  The officer driving the vehicle provided the accident investigation as well as her own affidavit, noting she was responding to an emergency call regarding a person who was breaking windows and threatening to shoot a woman in her home.

The officer stated she approached the intersection and came to a complete stop before proceeding through the intersection. The officer also stated that “all traffic on the northbound side had stopped and was giving [her] passage.” Rodriguez asserted the officer did not stop, and the PD had a policy requiring officers to come to a complete stop. It was discovered after the accident that the officer’s lights and sirens were not working properly, based on dash cam footage. The video’s GPS “speed” indication shows the officer’s speed at 23 mph just before she appears to come to a complete stop. The speed indicator quickly drops to 9 mph and then to 2  mph after after she stopped; the indicator immediately shows her speed at 3 mph as she slowly entered the intersection. The officer’s affidavit stated the potential danger posed by proceeding through the intersection was far less, considering all factors, than the danger posed to the officers and victims involved in the emergency at issue.  The City filed a plea to the jurisdiction arguing official immunity, which was denied.

The court first noted that Rodriguez’ objections to the officer’s affidavit (i.e., hearsay and best evidence) were not sufficiently specific. The court held that the “stop at the intersection is very brief, but the stop is apparent from the video, and it is clear that the GPS simply did not have time to read zero before” the officer started moving again. The video also indicates “triggers” including lights, siren, and brakes. The officer testified she understood that, in making discretionary decisions during emergency calls, she must weigh the need to respond urgently to the emergency call against the risk involved to the general public when responding to the emergency. She explained her thought process on the record.  The court held that the fact a collision occurred does not equate to a showing that the law was violated and is insufficient to raise a fact issue on recklessness.  An officer’s own affidavit can establish good faith, and an officer’s good faith is not rebutted by evidence that she violated department policy.  The record shows the need/risk analysis performed by the officer. Rodriguez failed to establish a fact issue as to recklessness. As a result, the plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Justices Bridges, Brown and Nowell. The attorneys listed for Dallas County are Bonnie Snell, Amy I. Messer, James B. Pinson, Jason G. Schuette, and Nicholas Palmer. The attorneys listed for Rosa Rodriguez are Susan B. Smith, Billy McGill Jr., and Briana Crozier.

Developer properly pleaded claims County failed to maintain roadways, Fort Worth Court of Appeals says

Quote

Wise County, et al v. Katherine Mastropiero02-18-00378-CV (Tex. App. – Fort Worth, August 9, 2019)

In this case, the Fort Worth Court of Appeals held that the district court had jurisdiction to hear a property owner’s claims the County must maintain roads in her subdivision.

Mastropiero (the developer) began to develop Prairie View Estates, a subdivision in Wise County. In Phase Two of the subdivision, the county refused to maintain the roadways. The plat described several roads and stated that the roads were “dedicate[d] to the public.” Mastropiero alleged that the owners, residents, and members of the public have used the roads continuously ever since. The final plat was then endorsed and filed in the County’s records.  Mastropiero asserted she did not have to file a maintenance bond after the  County accepted the roads but that the County was required to maintain the roads. She sued for a failure to maintain, and the County filed a plea to the jurisdiction, which was denied.

Article V, § 8 of the Texas constitution provides that the district court has supervisory jurisdiction to review certain actions of the County Commissioners Court. Mastropiero has alleged that the Commissioners Court failed to perform a clear statutory duty.  The County asserted it never “accepted” the dedication and thus has no statutory duty. Recording a map or plat showing streets or roadways does not, standing alone, constitute a completed dedication as a matter of law. But acceptance does not require a formal act; implied acceptance is also sufficient, including use of the roads by the public. The determination of whether a dedication has been accepted is a question of fact. As a result, from a jurisdictional standpoint, Mastropiero properly pleaded a cause of action against the County. Additionally, the suit against a single commissioner, but only in her official capacity, is the same as a suit against the County. A suit to compel prospective action is viable in an ultra vires suit, as is raised here.  The plea was properly denied.

If you would like to read this opinion, click here. Panel consists of Justices Birdwell, Bassel and Womack. Memorandum opinion by Justice Birdwell. The attorney listed for the County is James Stainton. Ms. Mastropiero appeared pro se.

Texas Supreme Court holds use of fluid during surgery can trigger waiver of immunity, irrespective of medical judgment

Quote

THE UNIVERSITY OF TEXAS M.D. ANDERSON CANCER CENTER v. LANCE MCKENZIE, 17-0730 (June 28, 2019)

This is a Texas Tort Claims Act (TTCA)/tangible personal property case in which the Texas Supreme Court affirmed the denial of the district’s plea to the jurisdiction for its use of a carrier agent during surgery. 

Cortney McKenzie-True began treatment for cancer at M.D. Anderson. She went through a test trial for treatment. The visible cancer was first surgically removed. After a chemo drug was administered, the body was washed out with a carrier agent. The hospital used D5W. Use of the carrier agent had an adverse effect on McKenzie-True, which was a known risk but was considered to have a small probability of occurring. McKenzie-True died, and the (McKenzie) family sued. The hospital filed a plea to the jurisdiction asserting the carrier agent was properly administered, so no negligent use of the drug had occurred. The lower courts denied the plea, and the hospital appealed. 

The hospital asserts the  McKenzies’ actual claims complain of negligent use of medical judgment, not negligent use of the carrier agent.  The McKenzies asserted it was the agent that caused the death, and the hospital should have known it was the incorrect fluid to use. This case blurs the fine line between medical judgment and the negligent implementation of that judgment. The Court held that “[w]hile we agree that a complaint about medical judgment, without more, is insufficient to waive immunity, the negligence alleged here does not involve only medical judgment.”  The issue becomes whether the injury is caused by improper medical judgment in which tangible property is used or whether the use, itself, of the property caused the injury, and the fact the property was administered properly is irrelevant. The Plaintiffs alleged D5W never should have been used, due to the high levels needed for the test trial procedure. The fact that the use was preceded by medical judgment is of no consequence, since all aspects of surgery are preceded by medical judgment. From a pleading standpoint, this is sufficient to establish jurisdiction and a potential waiver.  

Additionally, the Court held this was the analysis of immunity from suit, not immunity from liability.  Essentially, the Court held the plea allegations are based not only on medical judgment, but on a direct causal connection of the use of personal property. 

The dissent asserts that a separation of the decision (medical judgment) from the use of property is important. The majority’s interpretation eliminates sovereign immunity regarding medical judgment. Noting, “If sugar water [D5W] should not have been used, neither should a scalpel have been, or the surgical apparatus, or for that matter, the building.” The dissent asserted the medical judgment should not be disregarded and that if it was based on medical judgment, there is no waiver. 

If you would like to read this opinion, click here: opinion of the Court.  Justice Lehrmann delivered the opinion in which Justices Guzman, Boyd, Devine, and Blacklock joined. Chief Justice Hecht delivered a dissenting opinion, with Justice Green and Justice Brown joining.

El Paso Court of Appeals holds County is immune from claims woman was injured by closing elevator doors

Quote

County of El Paso, Texas v. Janice Baker, 08-18-00012-CV (Tex. App. – El Paso, May 31, 2019)

This is an interlocutory appeal in a premise defect case where the El Paso Court of Appeals held the County was entitled to governmental immunity.

While entering an elevator in the El Paso County Courthouse, Baker claims the doors shut on her, causing bodily injury. She reported the injury that day.  After Baker sued, the County filed a plea to the jurisdiction, which was denied. The County appealed.

Under a premise defect theory, a landowner owes a duty not to “injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.”  However, Baker’s petition asserts the County failed to inspect and failed to discover the malfunction in the doors. This is applicable to an invitee status, not a licensee status. Baker filed four amended pleadings and still was not able to properly plead the claims. Therefore, the court was not inclined to remand for a fifth opportunity. Under the licensee status, actual knowledge rather than constructive knowledge is required.  The County’s affidavit noted the last time the elevator had been inspected, that no notice of the defect was reported prior to Baker’s incident and no report has reoccurred. Baker’s evidence of a newspaper article that a woman got stuck in the elevator a year and a half later is insufficient to show the County had actual knowledge that the doors were likely to close on Baker. Nor would the fact that the County knew that the elevators were “old” and should be replaced show the kind of knowledge required for a valid licensee-premises-liability claim. The plea should have been granted.

If you would like to read this opinion, click here. Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Palafox. Opinion by Chief Justice McClure. The attorneys listed for the County are Jo Anne Bernal and John Untereker.  The attorney listed for Baker is Milad Kaissar Farah.

Eastland Court of Appeals holds erroneously calling the police is a discretionary act exempting employees from ultra vires claims

Quote

The University of Texas of the Permian Basin et al. v. Michael Banzhoff, 11-17-00325-CV (Tex. App. – Eastland, May 31, 2019).

This is an ultra vires and abuse of process case where there Eastland Court of Appeals held the University of Texas at Permian Basin (UTPB) retained governmental immunity.

UTPB hired Banzhoff as a golf coach but terminated him within a year. He was issued a criminal trespass notice not to attend UTPB sporting events. Shortly after his termination, Banzhoff was arrested at the Odessa Country Club for criminal trespass.  Banzhoff sued UTPB, the athletic director (Aicinena) and the interim coach who replaced him (Newman) alleging seven different causes of action. Aicinena and Newman moved to be dismissed under §101.106(e) of the Texas Tort Claims Act (TTCA) and UTPB filed a plea to the jurisdiction. The trial court granted the dismissal as to Aicinena and Newman, and partially granted UTPB’s plea. The trial court allowed the abuse of process and ultra vires claims to proceed. UTPB filed this interlocutory appeal.

As to the abuse of process claim, no waiver of governmental immunity exists for such a tort. To fall within the ultra vires exception, “a suit must not complain of a government officer’s exercise of discretion, but rather must allege, and ultimately prove, that the officer acted without legal authority or failed to perform a purely ministerial act.”  Suits complaining of ultra vires actions must be brought against government officials in their official capacity and may seek only prospective injunctive remedies. In this case, UTPB—a governmental entity—is not a proper defendant to Banzhoff’s ultra vires claim. As to the individuals, the general allegations in the pleadings are insufficient to plead an ultra vires claim against Aicinena or Newman.  Further, Banzhoff failed to plead any facts that support a finding that Aicinena or Newman exceeded any delegated authority, did not perform a ministerial duty, or violated Banzhoff’s constitutional rights.  The court expressly noted the criminal trespass notice in the record was not issued by either Aicinena or Newman and that there was no specific allegation either man called the police regarding Banzhoff’s presence at the Odessa Country Club. However, even if the court were to take Banzhoff’s allegations as true, “he fails to explain how issuing a criminal trespass notice or calling the police—even if done erroneously—are anything but discretionary actions by Aicinena or Newman.”  As a result, the plea should have been granted in its entirety.

If you would like to read this opinion click here. Panel consists of Chief Justice Bailey, Justice Willson and Wright, Senior Justice.   Memorandum Opinion by Chief Justice Bailey.  The attorneys listed for Banzhoff are Gerald K. Fugit and M. Michele Greene.  The attorneys listed for UTPB are Enrique M. Varela and Eric Hudson.

Texas Supreme Court holds County still retains immunity from liability after inmate fell using broken chair

Quote

Tarrant County v Roderick Bonner, 18-0431 (Tex. May 24, 2019)

This is an inmate Texas Tort Claims Act (TTCA) claim where the Texas Supreme Court held Tarrant County (County) was immune from liability for a defective chair while treating an inmate for his medical condition.

A deputy accidently damaged the leg of a chair while working at the jail where Bonner was housed. The deputy notified his supervisor of the damaged chair, who instructed the deputy to place the chair in the multipurpose room before filling out a report. Bonner, an inmate, had diabetes and entered the multipurpose room for treatment.  When he attempted to use the chair, it collapsed. Bonner sued for injuries under the TTCA asserting the negligent use of personal property.  At the summary judgment stage, the County argued despite the waiver under the TTCA, it retained immunity under the Texas Code of Criminal Procedure (TCCP) and Texas Government Code. The trial court granted the motion, the court of appeals reversed, and the County filed a petition for review.

Under the TCCP article 42.20, certain individuals and governmental entities are not liable for damages arising from action or inaction in connection with an inmate activity, including treatment activities, if the action or inaction was performed in an official capacity and was not performed with conscious indifference. Similarly, under the Texas Government Code § 497.096 a county and sheriff’s department employees are not liable for damages arising from action or inaction in connection with an inmate or offender treatment activity if the action or inaction was not intentional, willfully negligent or performed with conscious indifference or reckless disregard. After analyzing the statutory sections, the Court held Bonner’s allegations are more than simply the County failed to warn of the broken chair, it was the use of the chair during treatment which caused his injury. The two statutes immunize negligent acts and omissions that are reasonably related to the covered programs or activities, even when the relationship is indirect. As a practical matter, this includes acts or omissions, which give rise to damages during covered programs and activities. The Court recognized the statutes only immunize the County from liability to the extent its corporate actions or omissions were not performed with conscious indifference or reckless disregard for the safety of others. As a result, it was an immunity to liability only, not an immunity from suit. The County must assert it qualifies for the conditions, thereby placing the burden on the County. Once the defendant establishes that those conditions exist, the burden falls on the plaintiff to establish the statute’s exception to that defense, which is expressed as a heightened liability standard. The Court referred to this as a form of statutory immunity. Under this heightened standard, a defendant must have actual subjective knowledge of an extreme risk of serious harm.  Based on the record, the Court concluded no evidence exists of conscious indifference towards Bonner. As a result, the trial court’s granting of the summary judgment was proper.

Justice Boyd concurred in the judgment, but wrote separately as he disagreed (1) conscious indifference is “the same as” gross negligence or (2) a person cannot be consciously indifferent to a risk that is less than “extreme.”

If you would like to read this opinion click here.  Opinion by Justice Devine.  Justice Boyd wrote a concurring opinion found here. The docket page with attorney information can be found here.

Texas Supreme Court holds “good faith” efforts clause to seek future Board approval in contract is unenforceable. Also, damages would be consequential so Board retains immunity

Quote

Dallas/Fort Worth International Airport Board v Vizant Technologies, 18-0059, (Tex. May 17, 2019).

This is a governmental immunity defense in a breach of contract case where the Texas Supreme Court held Chapter 271 of the Texas Local Government Code did not waive immunity for the specific relief required under the contract.

The Dallas/Fort Worth International Airport Board (“Board”) retained Vizant Technologies (“Visant”) by contract to provide recommendations on how the airport could reduce payment-processing costs. The contract contained provisions where the Board would pay Vizant a percentage of savings and/or refunds based on its advice. The contract stated the cap on payments shall not exceed $50,000. The Court commented in a footnote the appearance this was done to avoid competitive bidding limits or authorizations by delegation to staff without Board approval. However, the contract also contained a provision that in the event Vizant’s fee exceeds this cap the Board “will make a good faith effort to receive board authorization to increase the compensation,” and “if approved,” the parties would amend the contract to reflect the higher amount. The Board’s staff paid the $50,000 and ultimately asked the Board to approve an increase to $330,000, but the Board denied that request. Vizant sued.  Vizant asserts its fees should have exceeded $300,000, but the airport failed to use a good faith effort to obtain Board approval. The Board filed a plea to the jurisdiction which was denied, but the court of appeals reversed and dismissed. Vizant filed its petition for review.

The Court first held the Board was acting in a governmental not proprietary capacity. the legislature has unambiguously declared that the “maintenance, operation, [and] regulation” of an airport and the “exercise of any other power granted” for that purpose, whether exercised “severally or jointly” by local governments, “are public and governmental functions, exercised for a public purpose, and matters of public necessity.”  As a result, the Board is immune absent a waiver.

Contract waivers are primarily found in Chapter 271 of the Texas Local Government Code. While it has a waiver of immunity, it has limiting language as to the types of damages allowed and contractual approvals which apply. The “good faith” effort language becomes pivotal for this analysis. A contractual duty to act in good faith does not create a new obligation or independent cause of action; instead, it merely governs the conduct by which the party must fulfill the contractual obligation to which it applies. Under the written terms of the contract, read literally, the Board promised to make a good-faith effort to obtain its own authorization for the higher payments. The parties agreed the Board’s staff negotiated based on delegated authority and executed the contract on the Board’s behalf, with the Board’s authority but without the Board’s express approval. Under these circumstances, the Court held it was reasonable to construe the clause as a promise by the Board’s staff to make a good-faith effort to obtain the Board’s authorization for any higher payment. The staff had no authority to contractually obligate the Board to pay anything more than $50,000. To the extent the staff agreed to make a good-faith effort, that promise is not enforceable against the Board—and even if it were, the remedy could never be to require the Board to pay more than it authorized to staff to negotiate. To the extent the Board made any form of agreement, the Board merely promised to make an effort to agree to the higher payment, but to do so in good faith. “In this sense, its promise was the equivalent of a promise to negotiate towards a future bargain in good faith.”  Agreements to negotiate toward a future contract are not legally enforceable.  However, even if such were enforceable, the listed measure of damages constitutes consequential damages incurred as a result of the defendant’s failure to act in good faith, not as a result of the defendant’s failure to perform under the anticipated contract. And since §271.153 expressly excludes this type of consequential damages, the Board retains immunity.

If you would like to read this opinion click here.  Opinion by Justice Boyd.  The docket page with attorney information can be found here.

Texas Supreme Court holds navigation district retains immunity from suit by State, but ultra-vires claims against commissioners can proceed to trial

Quote

Chambers-Liberty Counties Navigation District, et al. vs. State of Texas, 17-0365 (Tex. May 10, 2019)

This is an interlocutory appeal in a sovereign immunity/regulatory control case where the Texas Supreme Court held the Chambers-Liberty Counties Navigation District (“District”) retained immunity from suit against the claims brought by the State of Texas. However, the District’s commissioners were not immune from the ultra-vires claims.

The District leased part of a navigation stream to Sustainable Texas Oyster Resource Management, LLC (“STORM”) for specific oyster production. The Texas Parks and Wildlife Department (“Department”) asserted the Department had exclusive authority to regulate oyster production in Texas and sued the District to invalidate a lease issued to STORM.  In the 1950s, the State of Texas conveyed more than 23,000 acres submerged land to the District, which as become prime for oyster cultivation. After the lease was issued to STORM, the company sent no-trespass notices to holders of any oyster-production permits. These permits authorize a holder to “plant oysters and make private beds in public waters.”  STORM claimed exclusive use of the leased submerged land. While the District agrees the water above the submerged land belongs to the State, it asserts it owns the fee simple in the land and can lease its exclusive use. The Department sued the District to invalidate the lease and individual District commissioners for ultra-vires acts associated with the lease. The Department also sought monetary damages for “restitution.” The District and commissioners filed a plea to the jurisdiction, which was partially denied.

The Court first addressed the Department’s claim for monetary damages. It held that Under §311.034 of the Government Code (Texas Code Construction Act), the use of the term “person” in a statute does not waive immunity.  And while the Parks and Wildlife Code allows the Department certain rule making authority, the Department cannot waive immunity by rule which is not contained within the statute.  Since nothing in the applicable Parks and Wildlife Code waives immunity, no waiver for declaratory and monetary claims exists. The Department cannot circumvent the immunity by labeling a claim for monetary damages as “restitution.”    Next, the Court held an ultra-vires claim cannot be brought against the District. However, it can be brought against the commissioners. The Court held the Department properly pled the commissioners acted beyond their lawful authority by entering into the lease. The statute creating the District provided it “rights, privileges and functions” but only those conferred by law. Unlike a home-rule municipality which gets its power from the Texas Constitution, the District is a creature of statute and must look to the Legislature for its authority. Considering the entire regulatory system as a whole, the Court held the powers of the District are limited to navigation. While the statute allows the District to lease land and regulate marine commerce, the question of whether  oyster cultivation qualifies may be precluded when comparing the exclusive power granted to the Department. The Department shall regulate the taking and conservation of fish, oysters, and other marine life. The ultra-vires claims against the commissioners to prospectively enjoin the lease are permitted to go forward.  However, the Court was careful to explain that its holding only allows the State’s claims to go to trial, not whether the State will ultimately win on the present facts.

If you would like to read this opinion click here.  Opinion by Justice Blacklock. The docket page with attorney information can be found here.

First District Court of Appeals holds proving patient tangible personal property does not waive immunity

Quote

The University of Texas MD Anderson Cancer Center v. Roger Contreras, 01-18-01046-CV (Tex. App – Houston [1st Dist.], May 7, 2019).

In this Texas Tort Claims Act (TTCA) case the First District Court of Appeals held a medical facility does not waive its sovereign immunity by providing, furnishing, or allowing a patient to use tangible personal property.

Roger Contreras went to MD Anderson’s barbershop with the assistance of a nurse, a walker, and a rolling IV pole.  The nurse departed and left the IV pole but took the walker. She informed Contreras he could use the IV pole as an assisting device and did not need the walker. Contreras got up to go to the shampoo station after his haircut, his knee buckled causing him to fall, but when he tried to use the IV pole to catch himself, the pole rolled away. He hit the floor and was injured. Contreras’s medical expert opined that a IV pole is not a proper walking aid.  Contreras sued.  MD Anderson filed a plea to the jurisdiction, which was denied. MD Anderson appealed.

Contreras maintains that MD Anderson’s negligent use of a rolling IV pole as a mobility-assistance device (i.e. negligent use of personal property) caused his injuries. He argues that a nurse took his walker away and told him to use the IV pole to get around.  A governmental unit does not use personal property merely by providing, furnishing, or allowing another to use it.  An exception applies when personal property is provided that lacks an integral safety component. However, the exception applies solely when the component is entirely missing; the failure to provide a more effective safety feature does not trigger the exception. Otherwise, for purposes of section 101.021(2), a governmental unit uses tangible personal property if and only if the governmental unit itself is the user of the property. An allegation that the government enabled, authorized, or approved another’s use of the property is not enough.  Non-use is not use.  The court then held MD Anderson’s alleged defects in the plea are immaterial because the questions are jurisdictional. As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Goodman and Justice Countiss. Opinion by Justice Goodman. Council for MD Anderson are listed as Joshua Wilson and Kevin D. Molina. The attorney listed for Contreras is Joseph “Joe” Melugin.

Texas Supreme Court holds plaintiff in red-light challenge lawsuit was required to exhaust administrative remedies before filing for injunctive relief

Quote

Garcia v City of Willis, et al., 17-0713 (Tex. May 3, 2019)

In this constitutional challenge to red-light camera case, the Texas Supreme Court held the plaintiff was required to exhaust administrative remedies before bringing his constitutional-takings claim.

Luis Garcia sued the City of Willis on behalf of himself and “others similarly situated” who paid a civil penalty for violating a city ordinance for red-light infractions caught on camera. He sought the invalidation of the ordinance, a refund, or a takings claim. The City filed a plea to the jurisdiction, which was denied by the trial court, but granted by the court of appeals. On appeal to the Supreme Court, the State filed an amicus brief, arguing additional authority in support of the City.

While the City did not initially challenge Garcia’s standing to bring suit, the State’s amicus brief raised the issue, and the Court felt it was required to address that first. After receiving notice from the City of his red-light violation, Garcia paid the requisite civil fine. He has no outstanding fines and does not assert that he plans to violate red-light laws in the future. And for standing purposes, we “assume that [plaintiffs] will conduct their activities within the law,” barring some stated intent otherwise. Because no pending charges exist, Garcia lacks standing for prospective injunctive relief and could not be a class member of others similarly situated who have not paid the fine.  However, he does have standing to seek a refund of his past payment. In this context, immunity is waived only if Garcia paid the fine under duress.  Here, Garcia chose to voluntarily pay a fine and forgo administrative remedies that would have entitled him to an automatic stay of the enforcement of his fine under TEX. TRANSP. CODE § 707.014(a).  Because Garcia could have invoked this automatic reprieve from payment and challenged the notice of violation administratively — but chose not to — he cannot now claim he paid his fine under duress.  Therefore, the City maintains its immunity.

Garcia additionally argues the fine imposed on him amounts to an unconstitutional taking, because the underlying is unconstitutional and because the City failed to conduct the statutorily required engineering study.  He asserts he could not challenge the constitutionality of the fine in the administrative hearing. However, the fact remains that the hearing officer might have ruled in his favor for other reasons that would moot his constitutional arguments. As a result, he failed to exhaust his administrative remedies.

If you would like to read this opinion, click here.  Justice Brown delivered the opinion of the Court.  The docket page with attorney information can be found here.

Texas Supreme Court holds failure to engage a parking brake is the negligent “operation or use” of a vehicle under TTCA

Quote

Phi, Inc. v Texas Juvenile Justice Dept., 18-0099 (April 26, 2019)

This is an interlocutory appeal in a Texas Tort Claims Act (TTCA) case where the Texas Supreme Court held jurisdiction exists to determine whether the failure to engage an emergency brake is the “operation or use” of a motor vehicle.

Phi, Inc. owed a helicopter which was located at the bottom of an incline.  When the Texas Juvenile Justice Department parked a bus at the top of the hill and exited, the bus began to roll backwards.  It struck the helicopter causing significant damage. A local police officer investigated the accident. His report states that the accident occurred after the driver placed the vehicle in park and identified as a contributing factor the failure to engage parking brake.  The driver did not dispute the police officer’s finding but later asserted the brake had been broken.

Phi sued.  The Department filed a plea to the jurisdiction.  The court of appeals held no jurisdiction existed. The Court granted review.

Under the TTCA a waiver of immunity requires that the damage “arises from” the operation or use of the vehicle and the statute requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle. The evidence the brake was not engaged is a sufficient nexus. With regards to the terms “operation” or “use,” in general courts should strive to give simple words like “operation” and “use” a simple construction, rather than converting them into terms of art intelligible only to experts in the case law. The Court held “In terms of the everyday experience of driving, we think it self-evident that ensuring your car will not roll away after you leave it, including engagement of the emergency brake when necessary, is an integral part of the ‘operation or use’ of a vehicle. It seems no less a part of driving than any other act by which the driver controls the vehicle.” The Court spent the remainder of the opinion explaining why this opinion is consistent with prior caselaw in order to avoid future confusion.

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

 

Texas Supreme Court holds decision to allow erosion of riverbed to remain is discretionary, thereby preserving immunity under TTCA

Quote

Tarrant Regional Water District v Johnson, et al., 17-0095 (Tex. April 12, 2019)

This is a Texas Tort Claims Act (TTCA) case where the Texas Supreme Court held no waiver of immunity exists for the wrongful death action against the Tarrant Regional Water District (District).

Brandy Johnson, while five months pregnant, attempted to cross the Trinity River by walking across Dam #2. She slipped, fell into the river, and drowned.  The District built, then demolished and rebuilt a series of dams as part of an effort to channelize part of the Trinity River to help with flood control.  The parents brought a wrongful death action against the District asserting it maintained the Dam #2. The District filed a plea to the jurisdiction which was denied and the District appealed.

The District’s Director of Operations, testified that rather than filling in the eroded area below the dams and raising the depth to the level existing when the dams were constructed, the dam design engineer for the rebuild decided the deeper river bottom should remain in place to prevent kayakers and tubers from injuring themselves when passing through the chute.  The Plaintiffs alleged that the kayak chute was slippery and that the current running through it was deceptively dangerous. However, § 101.056 of the Tort Claims Act (discretionary functions) allows an entity to retain immunity if the negligent acts complained of were discretionary in nature. The Plaintiffs alleged the claims relating to the deeper river bed (and hydraulic boil) were not related to the original design but a failure to maintain that design, which is not discretionary.  The Court disagreed. The design versus maintenance “test” is simply the policy-level versus operational-level test applied to public works. However, the Court noted neither “design” nor “maintenance” appears in the text of §101.056. For that matter, neither do the terms “policy-level” or “operational-level.” Those terms are useful guides for interpretation, but are not part of the statute. The interpretational rubrics are only useful to the extent they yield results faithful to the statute’s textual distinction between discretionary and non-discretionary government decisions, which the Court recognized as a difficult task. The Court noted the statute’s focus is on preservation of the government’s discretionary decision-making authority, rather than on the often-useful but extratextual distinction between design and maintenance.  The District’s decisions related to the depth of the river at the base of the dam are discretionary design decisions, even at the rebuild level. Further, the Court emphasized the “public work” the District is alleged to have improperly maintained is the natural bed of a flowing river. Analyzing the riverbed as if it were a structural public work already stretches credulity. The notion that the District had a legal obligation to keep this natural “public work” at a constant depth beneath an opaque and running body of water is unsupportable. The Court held the District was immune from suit.

If you wish to read this opinion click here. Justice Blacklock delivered the opinion of the Court. The docket page with the attorney information is found here.