Texas Supreme Court holds officer entitled to official immunity for turning on his lights.

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City of San Antonio v Riojas, 20-0293 (Tex. Feb. 18, 2022)

The Texas Supreme Court held an officer who turned his lights on to warn motorists of a traffic slowdown was entitled to official immunity.

Officer Tristan noticed a traffic slowdown and turned on his lights to warn motorists behind him.  Tristan observed a white sedan cross multiple lanes of traffic and exit the expressway. Officer Tristan then pulled onto the shoulder and radioed another officer to stop the sedan for making an improper lane change. While these events were occurring, Armando Riojas was riding his motorcycle behind Officer Tristan’s vehicle but three lanes over and directly behind a car driven by Vela. When the car in front of her slowed, Vela braked in response. Riojas swerved to avoid a collision but lost control of his motorcycle. Witnesses accused Tristan of causing the crash, including accusing him of scaring everyone on the stretch of road by turning on his lights. Riojas sued the City, alleging that Officer Tristan was negligent in turning on his emergency lights.  The City filed a plea to the jurisdiction which was denied and which the court of appeals affirmed. They determined Tristan was not entitled to official immunity. The City appealed.

Riojas concedes that by turning on his lights, Officer Tristan was performing a discretionary function within the scope of his employment. Riojas contends, however, that the City has not proven conclusively that Officer Tristan was acting in good faith. The need–risk assessment required for official immunity should not place an onerous burden on law enforcement.  Further, the need–risk balancing requirement does not go beyond the pursuit and emergency-response contexts.  The purpose for official immunity is most salient in the context of street-level police work, which frequently requires quick and decisive action in the face of volatile and changing circumstances. As a result, to be entitled to official immunity, Tristan had to only establish a reasonably prudent officer, under the same or similar circumstances, could have believed that his conduct was justified based on the information he possessed at the time. Riojas had to then show that no reasonable officer in Tristan’s position could have believed that the circumstances justified his conduct. Here, there was no suspect, no arrest, and no inherent danger to the public.  As this was not a pursuit case, the needs-risk analysis is not required or proper. Officer Tristian established his actions were reasonable and Riojas did not establish that no reasonable officer could have made the same call. As a result, Officer Tristan was entitled to official immunity as a matter of law, which in turn, removes the waiver of immunity from the City.

If you would like to read this opinion click here. Opinion by Chief Justice Hecht.

In police pursuit case, Texas Supreme Court holds 1) deviation from policy waives immunity only if lights or sirens are required, 2) officer exceeding the speed limit is part and parcel of a police chase and not not inherently reckless and 3) no independent waiver of immunity for negligent implementation of policy

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City of San Antonio v Maspero, et al. 19-1144 (Tex. Feb. 18, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Texas Supreme Court dismissed the Plaintiffs’ claims for lack of jurisdiction.

Plaintiffs contend that their injuries arose from a San Antonio police officer’s vehicular pursuit of a fleeing suspect who crashed into their car. The chase resulted from a joint drug task force attempted to stop a car leaving suspected drug trafficking ring location. Officer Kimberly Kory was assigned to assist with the investigation. When the suspect began to flee, the task force requested assistance but did not provide any specifics about how to respond to the fleeing vehicle. SAPD’s “General Manual” contains detailed procedures governing the vehicular pursuit of such suspects.  The record demonstrated the suspect sped in heavy traffic and through active school zones. The suspect got turned around and sped past Kory, missing her vehicle, but collided with an oncoming vehicle, carrying the Plaintiffs.  They sued the City, which filed a plea to the jurisdiction.  The City asserted the emergency response exception to the waiver of immunity.  The trial court granted the plea, but the court of appeals reversed.

Under Texas Transportation Code Section 546.006, a driver of an emergency vehicle must drive “with appropriate regard for the safety of all persons” and is not relieved of “the consequences of reckless disregard for the safety of others.” Section 546.003 states “the operator of an authorized emergency vehicle engaging in conduct permitted by Section 546.001 shall use, at the discretion of the operator in accordance with policies of the department or the local government that employs the operator, audible or visual signals.”  Plaintiffs argued that since Kory deviated from the SAPD policy on such pursuits, she cannot take advantage of the Transportation Code section. The Court disagreed, holding §545.003 only required adherence to policies regarding use of lights and sirens. At the point where the suspects collided with the Plaintiffs’ vehicle, Kory was not speeding or taking action which would have required lights and sirens. Further, the court found the use of her siren was inconsequential for purposes of the causal nexus. Plaintiffs failed to explain how their injuries arose from Officer Kory’s alleged failure to use her siren in conjunction with the lights.  Based on the undisputed facts asserted, the use of a siren would not have changed the collision. Further, the court does not believe Kory’s actions constitute recklessness or even that a fact question exists. Law enforcement must retain discretion to assess and balance these types of risks using reasoned judgment.  Kory had specific instructions to stop the suspect. She did not chase him into an obviously dangerous area or force him to crash. Isolated, minor instances of Kory speeding or swerving do not bypass the emergency exception under the TCAA. A police officer’s speeding and swerving during a pursuit are not inherently reckless actions. Exceeding the speed limit is part and parcel of a police chase.  Further, no evidence suggests that the speeding itself was a cause of the crash.  Further, the evidence shows Kory engaged in some degree of risk assessment while in pursuit.  Finally, the Court disagreed with the court of appeals holding that the City’s immunity is waived for the negligent implementation of policy. The Court clarified there is no independent waiver of immunity for negligent implementation of policy.  When a waiver already exists, but the discretionary exception may apply, that is when the distinction between negligent formation of policy and negligent implementation of that policy kicks in.  The distinction only applies when evaluating whether the discretionary exception to an existing waiver is to apply. As a result, in this case, there is no waiver of immunity and the trial court’s order is reinstated.

If you would like to read this opinion click here. Opinion by Justice Lehrman.

The emergency exception to the Tort Claims not grounds for jurisdictional plea when factual disputes exist regarding an officer’s recklessness

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Crystal Green, No. 14-20-00190-CV (Tex. App.—Houston [14th Dist.] Jan. 11, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s motion for summary judgment, the city argued that it retained its immunity from suit under the emergency exception to the Texas Tort Claims Act.  The Fourteenth Court of Appeals affirmed the trial court’s judgment because there was evidence that the officer may have been reckless when driving his vehicle during the emergency.

The plaintiff was injured in an automobile accident with a city police officer collided with her vehicle.  The plaintiff sued the city under the Texas Tort Claims Act.  The city argued in a summary judgment motion that it retained its immunity from suit because the officer was heading to an emergency when the accident occurred and because the officer had official immunity.  Evidence was presented that the officer may have entered the intersection where the accident occurred at a high rate of speed and without his sirens on.  The trial court denied the City’s motion for summary judgment and the city appealed.

The Tort Claims Act waives governmental immunity for injuries or damages caused by use of a motor vehicle.  See Tex. Civ. Prac. & Rem. Code § 101.021; Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000).  Immunity is retained for damages caused due to actions that are covered by the “emergency exception,” which covers the “action of an employee while responding to an emergency call or reacting to an emergency situation.  Id. § 101.055.  But the action must not be done with conscious indifference or reckless disregard for the safety to others.  Id.  In addition, the Texas Transportation Code requires that emergency vehicles be operated safely and without “reckless disregard for the safety of others.”  Tex. Transp. Code § 546.005.   There was evidence presented in the case that raised a fact issue of whether the officer’s operation of the vehicle that caused the injuries and damages was reckless. Because there was evidence of reckless disregard, the trial court did not grant the summary judgment in favor of the city.  The court of appeals agreed and upheld the denial of the summary judgment motion remanding the case back to the trial court.

If you would like to read this opinion click here.   Panel consists of Chief Justice Christopher and  Justices Hassan and Poissant.  Opinion by Justice Margaret “Meg” Poissant.

 

Fort Worth Court of Appeals held plaintiffs’ pleadings defective in flood/drowning case but remanded to allow plaintiffs to replead

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City of Fort Worth v. Soledad Alvarez, et al. 02-20-00408-CV  (Tex. App. – Fort Worth, February 10, 2022)

This is a Texas Tort Claims Act (“TTCA”) vehicle accident case where the Fort Worth Court of Appeals agreed jurisdiction was not pled or presented but remanded for an opportunity to cure the pleading.

Romero was traveling in a vehicle with her daughter when floodwaters due to rain swept the vehicle into an alleged rain-filled excavation on property owned by Whiz-Q that was purported to have improper drainage due to a defective excavation. Both occupants drowned. The family sued Whiz-Q, the City and TxDOT. The City filed a plea to the jurisdiction claiming that its immunity was not waived because it did not own, occupy, or control “the property where this incident occurred” or the access road Romero was on. The plea was denied, and the City appealed.

Plaintiffs argued their pleadings incorporated by implication that the flood waters on the access road constituted a defective condition, but the City asserts the pleadings only mention defective excavation. The court held the pleadings must be read as written, which does not include the flood waters as a defective condition. The City next argued that it did not have a duty to make the premises safe because it did not create the dangerous condition or agree to make safe a known, dangerous condition.   However, a premises-liability defendant may be held liable for a dangerous condition on real property if it created the condition or it “assum[ed] control over and responsibility for the premises,” even if it did not own or physically occupy the property. “The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.”  While the City has exclusive control over its roadways, it entered into an agreement with TxDOT to maintain the access road. The City’s jurisdictional evidence shows that, at the time of the accident, the City did not possess—that is it did not own, occupy, or control—the property or the defective excavation on the property. Whiz-Q owns and operates its business on the property.  The court concluded that at the time of the accident, either Whiz-Q or TxDOT owned or maintained the property, not the City. The pleadings are therefore defective. However, the court noted a premise defect (as opposed to a special defect) could still be potentially raised in the pleadings under the agreement with TxDOT; at least the City failed to negate all conceivable avenues under the agreement.  As a result, the suit was remanded to allow the Plaintiffs to replead under a premise defect theory only.

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

14th Court of Appeals holds officer was not entitled to official immunity – proper focus is on the actions which caused the plaintiff’s injury, not on the overall investigation the officer was performing

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Nicholas Hulick v. City of Houston, 14-20-00424-CV  (Tex. App. Houston [14th Dist.], Feb. 1, 2022)

This is a Texas Tort Claims Act (“TTCA”)/ vehicle accident case where the Fourteenth District reversed the granting of the City’s plea to the jurisdiction based on the official immunity of its officer.

Officer Andrew De La Guardia responded to a service call involving a homeless suspect causing a disturbance on the street outside of a business. It was raining heavily while he was en route to the location. When he arrived, he drove around the area looking for the suspect, but was unable to find anyone matching the description.  When the rain became more severe he decided to turn around and head back to the station. Slowing to ten to fifteen miles per hour, he looked through the rain for oncoming traffic. Seeing none, the officer attempted to cross the westbound lanes of traffic but struck a motorcycle driven by Hulick.  Hulick sued.  The city filed a plea to the jurisdiction, arguing De La Guardia had official immunity at the time. Hulick appealed.

A governmental employee is entitled to official immunity: (1) for the performance of discretionary duties; (2) within the scope of the employee’s authority; (3) provided the employee acts in good faith.  If the employee is immune, the employee would not be liable under Texas law to the Plaintiff, therefore the City retains its immunity from suit.  The court analyzed whether the officer was performing a discretionary function at the time. An action is discretionary if it involves personal deliberation, decision, and judgment; on the other hand, an action that requires obedience to orders or the performance of a duty as to which the employee has no choice is ministerial. The court noted the City correctly observed that a law enforcement officer’s operation of a vehicle is a discretionary function in certain circumstances, including high-speed chase and responding to an emergency.  However, absent such special circumstances, an officer’s operation of a motor vehicle on official, non-emergency business is ministerial.  De La Guardia discontinued his search for the suspect at that time and was attempting to return to the station. While the City asserts he was performing an investigation (which is discretionary) the court held the focus should be on the actions which caused the injury (i.e. failing to yield the right-of-way to oncoming traffic).  The record did not support a finding of official immunity in this circumstance and the order granting the plea was reversed.

If you would like to read this opinion click here.  Panel consists of Justice Jewell, Justice Bourliot and Justice Poissant. Memorandum opinion by Justice Jewell.

Dallas Court of Appeals holds detour did not take excavation outside the normal use of the roadway, therefore plaintiff properly alleged a special defect

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City of Irving, Texas v. Edwin Muniz, 05-21-00099-CV, (Tex. App – Dallas, Nov. 19, 2021)

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

During a rainstorm at night, Muniz entered an intersection undergoing construction for sewer pipe replacements. A detour sign directed him to merge slightly to the left, but he asserts he encountered a mesh fence with no time to brake. He traveled through the mesh fence into an excavation thirty-two feet deep. The court commented the evidence was confusing as to whether the signage indicated a lane shift or that traffic was to be closed heading westbound. Non-flashing barricades were present, but Muniz testified he did not see the barricades or cones depicted in the photographs on the night of his accident.  There was also a dispute as to Muniz’s speed.  Muniz sued asserting the excavation was a special defect, or at worse a premise defect. The City filed a plea to the jurisdiction, arguing, among other things, that the excavation was not on the roadway. The trial court denied the plea and the City appealed.

The City asserted because the detour directed traffic around the excavation, removing the  excavation from being a part of the regular roadway it could not be a special defect. The court noted the Texas supreme court “has never squarely confronted whether a hazard located off the road can (or can never) constitute a special defect,” but it has recognized that some intermediate courts of appeals have held that certain conditions located off the road were special defects. It is undisputed Muniz drove into a large hole in the normal roadway. The court noted the question, in this case, turns on whether such an excavation remains a special defect when the City attempts to warn of the excavation by erecting a detour but the warning failed. Here, the detour was not a separate roadway apart from the excavation but was on the same street as the excavation, only slightly shifted by lane redirects. An ordinary user of the roadway certainly could encounter the excavation. As a result, Muniz alleged sufficient facts to establish jurisdiction under a special defect theory.  The City also contended the detour design was a discretionary function. However, according to the court, the discretionary exclusion does not apply in the case of a special defect. The plea was properly denied.

The dissent noted the court was dealing with a portion of a road being taken out of commission for a construction project with the road actually moved to accommodate. He would have concluded the re-routing took the excavation out of the normal use of the roadway analysis.

Panel consists of Justices Schenck, Smith, and Garcia. Affirmed. Memorandum Opinion by Justice Smith can be read here.  Dissenting Opinion by Justice Schenck can be read here. Docket page with attorney information found here.

Fort Worth Court of Appeals holds dead tree which fell on trail jogger was a natural condition and City had not duty to warn

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City of Arlington v. Monique Ukpong, 02-21-00078-CV, (Tex. App – Fort Worth, Oct. 14, 2021)

This is a Texas Tort Claims Act (“TTCA”)/premise defect case where the Fort Worth Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Ukpong went running on the park’s trail, as she had done “many times before.” That day, while she was running on the trail, a dead hackberry tree next to the trail fell on her, causing injury. Ukpong sued the City.  The City filed a plea to the jurisdiction and asserted a lack of waiver of immunity. The trial court denied the plea and the City appealed.

The Tort Claims Act also provides that “if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property…”  When property is open to the public for “recreation,” however, the Recreational Use Statute (“RUS”) further limits a governmental unit’s duty by classifying recreational users as akin to trespassers.  Under the RUS, a landowner has no duty to warn or protect trespassers from obvious defects or conditions.  A property owner “may assume that the recreational user needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.”  Nature is full of risks and it is certainly foreseeable that human interaction with nature may lead to injuries and possibly even death. The City did not owe Ukpong a duty to protect her from obvious defects or conditions and generally did not owe a duty to warn or protect her from the dangers of natural conditions in the park, whether obvious or not.  Ukpong’s own pleadings asserted the dead tree was an obvious condition. Further, even if the dead tree was not an obvious condition, it was a natural condition, and no duty to warn existed regardless.  The City did not owe a duty to warn or protect Ukpong from the dead tree that fell on her. Therefore, the plea should have been granted.

Panel consists of Chief Justice Sudderth, and Justices Womack and Walker. Reversed and rendered. Memorandum Opinion by Justice Womack can be read here. Docket page with attorney information found here.

 

Passenger in pickup truck injured during a car accident failed to timely sue within limitations says First District Court of Appeals

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Andre Gibbs v. The City of Houston, 01-20-00570-CV, (Tex. App – Houston [1st Dist], Oct. 12, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the First Court of Appeals affirmed the granting of the City’s motion for summary judgment.

Brannon was driving a pickup truck when she collided with a Houston Police Department SUV, driven by a City employee. Gibbs was one of six passengers riding in the pickup truck.  Brannon sued the City, which the other passengers joined, but Gibbs was not named in the amended petition. After the statute of limitations passed, Gibbs was joined in a later petition. The City filed a motion for summary judgment against Gibbs asserting the statute of limitations. The trial court granted the motion and Gibbs appealed.

The party suing a governmental entity has the burden to establish jurisdiction by pleading—and ultimately proving—not only a valid immunity waiver but also a claim that falls within the waiver. the City argued that neither it nor its employee could be liable to Gibbs under Texas law because Gibbs’ claims are barred by limitations. Thus, the City argued, Gibbs’ claims do not fall within any TTCA waiver.  Gibbs asserted the “inadvertent omission” exception which is based on excusable inadvertence or mistake.  However, the exception was created when existing parties were inadvertently dropped from suit, then added back later. In this case, Gibbs joined as a party in the suit for the first time after limitations expired.  Ordinarily, an amended pleading adding a new party does not relate back to the original pleading. Since Gibbs was not added until after the limitations expired, it was proper for the court to grant the City’s summary judgment.

Panel consists of Chief Justice Radack and Justices Rivas-Molloy and Guerra. Affirm TC Judgement. Memorandum Opinion by Justice Rivas-Molloy can be read here. Docket page with attorney information found here.

Trial court’s granting of City’s plea to the jurisdiction considered void because it should have issued its order in the separate case created by the plaintiff’s bill of review

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 Clayton Richter, Dorothy Richter, and Jonathan Richter v. City of Waelder, Texas,13-20-00494-CV and 13-20-00495-CV, (Tex. App – Corpus Christi – Edinburg, August 12, 2021)

This is a flooding case, but the opinion focused entirely on procedural problems where the Corpus Christi Court of Appeals dismissed the appeal, noting the court lack jurisdiction over the appeals because the ultimate merits of this case were adjudicated in the wrong trial court proceeding.

The Richters sued the City of Waelder (the City) for various causes of action after leaks in the City’s waterpipe caused multiple flooding incidents on the Richters’ property. The trial court granted the City’s plea to the jurisdiction, but the Richters later filed a bill of review. The trial court granted the bill of review, but then again granted the City’s plea under the original cause number. The Richters appealed the granting of the plea and the City cross-appealed the granting of the bill of review.

A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record but is no longer appealable or subject to a motion for new trial. When a trial court grants a bill of review and sets aside a judgment in a prior case, the subsequent trial on the merits must occur in the bill of review proceeding, not in the underlying case in which the judgment is vacated.  By proceeding as it did, the trial court created two jurisdictional problems: (1) the bill of review judgment does not fully adjudicate the Richters’ suit; and (2) the trial court signed the judgment in the original cause after its plenary power expired. The trial court’s bill of review judgment fails to address the merits of the Richters’ claim. Therefore, it is not a final, appealable order. The granting of the plea in the original proceeding is void because the court had lost plenary power under that cause number.    Since the court of appeals only has appellate jurisdiction over either final judgments which are timely appealed (not present here) or authorized interlocutory orders (also not present because of a lack of plenary power), the court of appeals has no jurisdiction over either appeal. Essentially, the court’s opinion results in the trial court having to consider the plea to the jurisdiction under the cause number for the bill of review and not the original case.

Panel consists of Justices Longoria, Hinojosa, and Tijerina. Memorandum opinion by Justice Hinojosa can be found here. Docket pages with attorney information found here.

Pro se appellant could not prevail on summary judgment appeal when he failed to appeal each ground for summary judgment.

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   Special contributing author Laura Mueller, City Attorney for Dripping Springs

Elezar Balli v. Officer Florentino Martinez, et al., No. 14-20-00030-CV (Tex. App.—Houston [14th Dist.] August 10, 2021) (mem. op.).

In this appeal from a trial court’s summary judgment in favor of the defendant officers, the 14th Court of Appeals affirmed the trial court’s judgment because the pro se plaintiff failed to challenge all grounds for the summary judgment and the court was required to affirm the summary judgment on the unchallenged grounds.

The plaintiff sued the officers of the Clute Police Department for tort and 1983 claims pro se after he was arrested for domestic violence and transported to jail.  While being transported the plaintiff struggled against the officers, knocked the officers down, bit the police chief, threatened the officers, hit his head on the inside of the back seat of the police car, and damaged the police car.  During the arrest, the officers tased the plaintiff.  The officers tried to use a pillow to protect the plaintiff’s head in the backseat of the car.  The defendant officers argued that: (1) the amount of force was objectively reasonable as a matter of law; (2) they were entitled to qualified immunity; and (3) the plaintiff’s conviction for assault for biting the police chief barred his claim for damages.  The trial court granted the defendant officers’ summary judgment without specifying the grounds and the plaintiff appealed the summary judgment.  The trial court also dismissed the state law claims since under Section 101.106(f) of the Texas Civil Practices and Remedies Code, the plaintiff was required to bring suit against the City rather than the officers.  The City and Police Chief were dismissed from the case because they were not properly served and the trial court had no jurisdiction over them as defendants.  The plaintiff did not appeal these holdings.

Under Texas Rule of Civil Procedure Rule 166a(c), for a summary judgment to be overturned, an appellant has to prove that any and all grounds for summary judgment were not meritorious.  If the appellant does not challenge every ground for which summary judgment was granted, then a court of appeals has to uphold the summary judgment.  The appellant in this case only appealed the issue that his conviction for assault barred his claim and failed to challenge the other two grounds.

The court of appeals affirmed the trial court’s summary judgment in favor of the defendant officers because the pro se plaintiff failed to appeal on all of the summary judgment grounds.

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

Inmate failed to show the County had actual notice of his claim within statutory time period

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Christopher Branch v. Fort Bend County, 14-19-00477-CV, 2021 WL 2978639 (Tex. App.—Houston [14th Dist.] July 15, 2021, no pet. h.) (mem. op.)

This is Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals affirmed the trial court’s granting of a dispositive motion and holding there was no evidence the County was subjectively aware of any fault in causing or contributing to Branch’s injuries.

Branch alleged that he was injured on August 1, 2016, when he slipped and fell outside of his jail cell at the Fort Bend County Jail.  Branch further alleged that his fall was caused by a puddle of water that was a result of a burst pipe in the facility that jail personnel failed to diagnose and fix.  Prior to filing suit, Branch sent the County a letter on April 21, 2017, providing notice pursuant to the Texas Tort Claims Act regarding his injuries sustained on August 1, 2016.  Branch then sued the County on July 13, 2018.  The County filed a plea to the jurisdiction which the trial court granted.  Branch appealed.

Although formal written notice of a claim is not required when a governmental entity has actual notice of a claimant’s injury, mere knowledge that an incident has occurred is not sufficient.  Actual notice means that the governmental entity is subjectively aware that it may be responsible causing or contributing to a claimant’s death, injury, or property damage in the manner alleged by the claimant. Here, the County provided undisputed evidence establishing that Branch failed to give formal written notice within six months after the day of the incident giving rise to his claim.  Although Branch alleged for the first time on appeal that the County had actual notice of his claim, the appellate court also rejected that argument.  Instead, the court determined that there was no evidence in the record, which included the incident report or Branch’s inmate medical records, that showed the County was subjectively aware it might be responsible for Branch’s injury.  Finally, there was no evidence any investigation conducted with regard to Branch’s fall was conducted much less that it showed any subjective awareness on the part of the County.

If you would like to read this opinion click here. Panel consists of Justices Spain, Hassan, and Poissant.  Memorandum Opinion by Justice Hassan.

Since pedestrian plaintiff admitted he caused the accident to officers at the scene, City did not have actual notice of claim within required time period

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The City of Houston v. Michael Gantt, 14-20-00229-CV, (Tex. App – Houston, August 5, 2021)

This is a Texas Tort Claims Act (TTCA) case where the Fourteenth Court of Appeals reversed the trial court’s denial of the City’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Gantt was a pedestrian who was struck by a patrol car driven by Houston police officer Young. Gantt filed suit. The City filed a plea to the jurisdiction asserting Gantt did not meet the notice of claim requirements under the TTCA and the City did not have actual notice of the claim. The plea was denied and the City appealed.

Gantt admitted he did not provide written notice of claim timely under the TTCA, but asserted the City had actual knowledge of the claim. The City must have “subjective awareness” of its fault in the situation, else actual notice does not exist. The City’s crash report indicates Gantt ran in front of the vehicle and failed to yield the right of way to the vehicle. Gantt’s statement given to police states he ran in front of the vehicle and it was his fault he was hit. The court noted that while Gantt’s statement, alone, is not dispositive, Gantt did not claim it was Young’s fault. As a result, the City did not have actual notice and subjective awareness of its fault in the accident.

Panel consists of Chief Justice Christopher, and Justices Jewell and Poissant. Reversed and rendered. Memorandum Opinion by Justice Poissant can be read here. Docket page with attorney information found here.

Eastland Court of Appeals holds deputies entitled to qualified immunity after takedown broke suspects jaw as video did not show constitutional level violations

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Peter Klassen v. Gaines County, Texas, and Gaines County Deputy Sheriffs Ken Ketron and Clint Low, 11-19-00266-CV (Tex.App.—Eastland July 15, 2021)

This is an excessive force/§1983 case where the Eastland Court of Appeals affirmed the trial court’s granting of the County’s and deputy’s dispositive motions.

Deputies responded to a disturbance involving possible aggressive actions by Klassen. Klassen was ordered to the ground and, while one of the deputies was attempting to put Klassen into the prone position, Klassen moved his hands and the deputy used his body weight to move Klassen into position. This caused Klassen to strike his chin on the ground, knocking out several teeth and breaking his jaw. Klassen sued.  The deputies filed a motion to dismiss t under the Tort Claims ACT (“TTCA”), which the trial court granted. They then filed a motion for summary judgment for the remaining federal and state claims. The trial court granted the motion as to the state claims, leaving the federal claims pending. Klassen then filed an amended petition which was almost exactly the same as the previous petition except that he, relevantly, attached as an exhibit an expert’s opinion that the force used was excessive. In response, appellees filed another motion to dismiss and a motion for summary judgment in the alternative, which the trial court granted. Klassen appealed the granting of the motion.

The Court of Appeals specifically noted that the trial court stated in its order that it examined the entire record when it dismissed Klassen’s claims, as such an analysis indicates that the trial court dismissed the claims under its motion for summary judgment as opposed to a motion to dismiss under the pleadings. When doing so, the standard for determining whether a trial court made an appropriate holding when it considered certain summary judgment evidence is a review for an abuse of discretion. In this case, the Court found no such abuse.

The Court found dismissal of the deputies was proper under the TTCA. Second, the Court found there was no excessive force after reviewing the video.   Third, the Court found that qualified immunity shielded the deputies as Klassen was unable to establish specific actions constituted a violation of clearly established law. The Court found Klassen had suffered no “constitutional injury” via the excessive force claim, so the county could not be held liable for any failure to train its deputies.

If you would like to read the memorandum opinion click here. Panel consists of Chief Justice Bailey and Justices Trotter and Williams. Opinion by Justice Williams.

Slip and fall plaintiff failed to dispute hospital’s proof of no actual notice of dangerous condition

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The University of Texas MD Anderson Cancer Center v. Courtney Simpson, 01-20-00679-CV, (Tex. App – Houston [1st Dist.], July 22, 2021)

This is an interlocutory appeal in a premise defect/Texas Tort Claims Act (TTCA)  case where the First District Court of Appeals reversed the denial of the University’s plea and dismissed the Plaintiff’s claims.

Simpson was a visitor to the University’s MD Anderson hospital when she slipped and fell “due to a wet slippery floor.”  Simpson was visiting a friend who had surgery and was in a patient room. Simpson purportedly left her friend’s patient room to get ice from the ice machine. As she walked down the hallway, she fell and broke her wrist. Simpson asserted that she slipped on a round-shaped patch of clear liquid, about three to five inches in diameter. Simpson allegedly did not know that a clear liquid had caused her to fall until she heard someone hear the nurse’s station point out the liquid and admit they should have cleaned it up. Simpson did not know the identity of any of the persons who were present at the nurse’s station. MD Anderson asserted it did not receive any reports of substances or liquids being spilled or present on the floor where Simpson fell and did not receive any reports of falls at that location before Simpson fell.  Simpson asserted that anyone who would have admitted to knowing the water was there must be an employee of MD Anderson. The hospital asserted that an unidentified person commenting on the water does not establish a fact issue that the person was an MD Anderson employee. The trial court denied the plea and MD Anderson appealed.

To prove actual knowledge, the plaintiff must show that the governmental unit actually knew of the dangerous condition at the time of the accident.  Actual knowledge of an unreasonably dangerous condition can sometimes be proven through circumstantial evidence.  However, circumstantial evidence establishes actual knowledge only when it “either directly or by reasonable inference” supports that conclusion.  MD Anderson presented evidence establishing it did not have actual knowledge of a dangerous condition prior to the fall. Simpson testified she did not know what type of medical professionals were present at the nurse’s station and did not know what the admitting person was doing at the station. She admitted she did not see any ID badge on the admitting person and could not recall race or age. She also admitted that she did not know if the person was a nurse or not. MD Anderson produced evidence that non-employees of MD Anderson can be present at a nurse’s station and wear scrubs. MD Anderson met its burden, but Simpson did not dispute MD Anderson’s facts. As a result, the plea should have been granted.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.

First District Court of Appeals holds inmate failed to property provide notice of claim for alleged sexual assault

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Troylencia Wolf Anderson v. Waller County, Texas, et al, 01-20-00097-CV, (Tex. App – Houston [1st Dist.], July 20, 2021)

This is an alleged sexual assault case brought under the Texas Tort Claims Act (TTCA) where the First Court of Appeals affirmed the granting of the County’s plea to the jurisdiction.

Anderson alleged that while incarcerated at the Waller County Jail, she was taken to her cell by an unknown female jailor and given a minor amount of food and water. She took mayonnaise and obstructed the security camera. After eating her food, she claims she blacked out and therefore assumed she had been drugged. She asserts she was sexually assaulted then released. Anderson brought claims against the County, the Sheriff, and several jailors for sexual assault, assault, intentional infliction of emotional distress, and negligence. She amended her pleadings indicating the misuse or malfunctioning of security cameras lead to the assaults as well as providing unsafe food. The County filed several pleas to the jurisdiction, which were eventually granted. Anderson appealed.

A plaintiff’s failure to provide the statutorily required notice deprives the trial court of jurisdiction and requires the court to dismiss the plaintiff’s case. Knowledge that an injury has occurred, standing alone, is not sufficient to put a governmental unit on actual notice for TTCA purposes.  Further, mere investigation of an incident or injury does not show that a governmental unit had actual notice for purposes of the TTCA. Anderson’s written notice was provided four years after her incarceration and nothing in the record indicates the County was aware, for actual notice purposes, that Anderson had reported her claims to the Texas Rangers. Anderson did not allege the date on which the County received actual notice and did not allege that the County had actual notice that Anderson had received some injury within six months of the incident giving rise to Anderson’s claimed injury. Anderson’s allegations that the Texas Rangers investigated an unspecified complaint by Anderson at some unspecified time, even if taken as true, do not show actual knowledge of the claim. Finally, the court held that when a plea is granted, if it is one of pleading defects only which could be cured, the dismissal may be without prejudice, but if the petition could not possibly allege facts demonstrating a waiver of immunity, or if the Plaintiff had been given an adequate opportunity to replead and failed, then the dismissal should be with prejudice. The trial court properly granted the plea with prejudice.

Panel consists of Chief Justice Radack, and Justices Landau and Countiss. Memorandum Opinion by Justice Countiss can be read here. Docket page with attorney information found here.