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.

Mere acknowledgment a police report exists does not establish actual notice of claim because the existence of an investigation alone is insufficient to demonstrate actual notice says 13th Court of Appeals

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City of Mission, Texas v. Lucila Gonzalez, 13-20-00138-CV, (Tex. App – Corpus Christi & Edinburg, July 22, 2021)

This is a premise liability case under the Texas Tort Claims Act (“TTCA”) where the Corpus Christi & Edinburg Court of Appeals reversed a denial of the City’s plea to the jurisdiction and dismissed the claims.

Gonzalez was taking the trash out at her residence when she slipped and fell, striking her right knee on the ground. It is undisputed that the fall occurred on private property. However, Gonzalez alleges the area where she fell was muddy “because of negligent repair work to a water line rupture” by City employees. City firefighters emptied the water line across the street from her residence. Gonzalez alleges that the released water flowed across the street, causing the muddy condition and her fall. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Under the TTCA, a governmental unit must be given notice of a claim against it not later than six months after the day that the incident. The letter of representation Gonzalez sent to the City does not comply with the written notice requirements of § 101.101 because it fails to reasonably describe the incident, the injury claimed, or the time and place of the incident. Gonzalez asserted the police report established actual notice of claim; however, no police report was in the record. The City’s mere acknowledgment a police report exists does not raise a fact issue because the existence of an investigation alone is insufficient to demonstrate actual notice.  Nothing else in the record indicates actual knowledge of the claim sufficient under the TTCA. The plea should have been granted.

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

Since injured inmate had observed repair of table and knew it was inadequate, inmate accepted the risk of sitting at table – County therefore not liable under TTCA

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Hidalgo County Detention Center v. Isidro Villa Huerta, 13-20-00113-CV, (Tex. App – Corpus Christi & Edinburg, July 22, 2021)

This is a premise liability case under the Texas Tort Claims Act (“TTCA”) where the Corpus Christi & Edinburg Court of Appeals reversed a denial of the City’s plea to the jurisdiction and dismissed the claims.

A table in a “day room” at the county jail broke at the base. The Hidalgo County Sheriff’s Office submitted a “Maintenance Work Order Request Form” for repair of the table that same day. A technician welded the table and returned the form half an hour later, indicating that the problem had been resolved. Huerta, an experienced welder and inmate at the jail, observed the repair performed by the technician.  Two days later, he sat on the table with three other inmates when the same point at the base broke. Huerta asserted he was injured and filed suit. The County filed a plea to the jurisdiction, which was denied. The County appealed.

Under the provisions of the TTCA applicable, the County owed a duty of care not to injure a licensee by willful, wanton or grossly negligent conduct, and to use ordinary care either to warn of or to make reasonably safe, a dangerous condition of which the County is aware and the licensee is not. Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition. If a licensee is aware of a dangerous condition, he has all that he is entitled to expect, that is, an opportunity for an intelligent choice as to whether the advantage to be gained by coming on the land is sufficient to justify him in incurring the risks involved.  The court disagreed with the County and noted the same table had broken at the same place at least three separate times, so a fact issue exists on whether the County had actual notice of the dangerous condition. However, Huerta testified that he observed the table’s repair two days before his fall, and based on his experience, he knew the weld was inadequate to ensure the structural integrity of the table because Hidalgo County’s “in-house maintenance guy” did a “quick tack [weld].” Huerta knowingly decided to sit at the same table. As a result, he was already aware of the danger and accepted the risk. The plea should have been granted.

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

 

Dallas Court of Appeals holds coordination of extra-duty assignments for police officers is a governmental function – Plaintiffs required to provide proper notice of claim under TTCA

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Town of Highland Park v. Tiffany Renee McCullers, individually and for the benefit of Calvin Marcus McCullers and Calvin Bennett McCullers and ANF of C.J., Minor, and Sonya Hoskins, et al, 05-19-01431-CV, (Tex. App – Dallas, June 29, 2021)

This is a Texas Tort Claims Act (“TTCA”) case in which the Dallas Court of Appeals reversed the denial of the Town’s plea to the jurisdiction and dismissed the claims.

The Town had a program to provide extra-duty work to various police officers in the area, but which was at the request of private citizens. The Town offered a security service assignment to Southern Methodist University (“SMU”) police officer Calvin Marcus McCullers (“Officer McCullers”) to guard a private residence under construction. After accepting the assignment, Officer McCullers sat for just over an hour in his car on the property. The National Weather Service issued a severe thunderstorm warning. Heavy rains occurred over the property so much that water rose up the sides of his vehicle. Seconds later, Officer McCullers opened the passenger door, stepped out of the vehicle, lost his footing, and the water swept him and his vehicle over an embankment at the edge of the Property. Officer McCullers did not survive. The family sued the City under general negligence and premise liability theories. The Town filed a plea to the jurisdiction, which was denied. The Town appealed.

It is undisputed that Plaintiffs did not provide written notice to the Town of their claims within six months of the accident, however, the Plaintiffs assert the Town had actual notice of the claims. Actual notice under section 101.101(c) requires evidence that the government had knowledge of its alleged fault in causing or contributing to the claimant’s injury. The issue is not whether the City should have made the connection between injury and responsibility as alleged, but whether the City made the connection or had knowledge that the connection had been made. The Town (i) acted on and investigated Officer McCullers’s request for rescue and (ii) learned of Officer McCullers’s death. However, those acts and the knowledge of Officer McCullers’s death are not sufficient to establish actual notice under the TTCA. Further, even if the Town had knowledge of the area’s general propensity for flooding, such is insufficient. The Texas Supreme Court has held the City’s knowledge of torrential rains did not establish actual knowledge of flooding at a specific location. As a result, no notice was provided.  Further, as to the Plaintiff’s premise liability claim, the Town did not own the property. Plaintiffs assert the Town had an easement on the property. However, the record shows that (i) the Town had neither a possessory interest nor an ownership interest in the land located within the easement, (ii) the easement did not give the Town authority to control or maintain the land located within the easement, and (iii) the Town had not used the easement for some years before July 5, 2016.  Finally, the actions of the Town were not proprietary. TTCA section 101.0215 enumerates “police and fire protection and control” as the first in the statutory list of governmental functions. The extra-duty jobs were provided only to certified law enforcement officers.  Officer McCullers was serving in a police capacity at the time of his death. As a result, the plea should have been granted.

The Concurring opinion focused more on the proprietary-governmental dichotomy. Texas courts have consistently held that when a city’s police activities are aimed at crime prevention, such activities are necessarily governmental. Since such was a governmental function, Plaintiffs failed to provide proper notice.

The Dissent would hold the coordination of off-duty officers was proprietary. The Town coordinated private security services for private property owners, not the general public.

Panel consists of Chief Justice Burns, and Justices Pedersen and Goldstein. Reversed and dismissed. Opinion by Justice Pedersen can be read here. Dissenting opinion by Chief Justice Burns can be read here. Concurring Opinion by Justice Goldstein can be read here. Docket page with attorney information found here.

Tyler Court of Appeals holds Tort Claims Act notice must list specific claimants in order to waive immunity

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Leondra Leach v. The City Of Tyler, 12-21-00004-CV (Tex. App. – Tyler June 9, 2021).

This is a Texas Tort Claims Act (“TTCA”) premise defect case where the Tyler Court of Appeals affirmed the trial court’s order dismissing the case for lack of proper notice.

Leach asserts he was injured when a piece of board flew from a City “roll-off” truck as it passed Leach on the roadway. The board struck the truck he was driving and entered the driver’s side window, striking him in the head. Leach’s employer submitted a notice of claim using a Claims Notice form provided by the City, but did not fill in certain fields as to Leach. Leach did not fill out his own form. After Leach filed suit, the City filed a no-evidence motion for summary judgment as to proper notice under the City’s charter and ordinance, which the trial court granted.  Leach appealed.

Ameri-Tex (Leach’s employer) listed itself alone as the “claimant” and omitted Leach’s name from that field. Section 101.101(a) speaks to the governmental unit’s entitlement to receive a notice of a claim along with the damage or injury claimed. Ameri-Tex listed only its property damages under the provision for the amount of claim. The court noted that had Ameri-Tex made some reference to Leach’s damages in the “amount of claim” section, even if such damages were described as “unknown at this time,” its earlier omission of Leach as a “claimant” would be less critical. However, part of the purpose behind the notice provision is that the entity has an awareness of its fault as ultimately alleged and an incentive to investigate the allegations to assess its exposure to liability because it no longer is protected by the shield of immunity.  Without knowledge of the identity of a potential claimant and the knowledge this additional claimant will make personal injury claims as opposed to merely property damage claims, the entity does not have the same incentive. Notice which does not convey the “perceived peril” that would serve the notice requirement’s purpose is insufficient.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Memorandum opinion by Justice Neeley.

 

Dallas Court of Appeals holds malfunctioning 911 system did not proximately cause plaintiff’s death

The City of Dallas v. Estate of Yolanda Jeanne Webber, et al., 05-20-00669-CV (Tex. App. – Dallas, April 22, 2021).

This is a Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals held the City was immune from suit.

Yolanda Webber began experiencing shortness of breath while riding in a car with her family.  Despite constant attempts by family and later bystanders to reach the 9-1-1 operator, none were able to get through. While paramedics from a nearby fire station were able to eventually arrive, Webber passed away shortly afterward.  The family brought suit against the City asserting the negligent use of tangible personal property was the proximate cause of her death. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Under the TTCA, immunity is not waived if the property’s condition or use does not proximately cause the injury or death. The Webbers allege the various components of the City’s 9-1-1 system caused Yolanda’s death by preventing her from receiving timely medical attention.  However, a mere delay in treatment resulting from a malfunctioning 9-1-1 system is not a proximate cause of a claimant’s injuries for purposes of immunity waiver. Proximate causation requires that the condition or use of the property must actually have caused the injury.  Property that simply hinders or delays treatment falls short. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Burns, Justice Myers and Justice Carlyle. Memorandum Opinion by Justice Carlyle

The emergency exception to the Tort Claims Act preserves immunity from car accident damages and injuries caused by a fire hose falling from a fire truck en route to a fire.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Nathan White v. City of Houston, No. 01-20-00415-CV (Tex. App.—Houston  March 25, 2021).

In this appeal from a trial court’s holding that the city retained immunity under the emergency exception to the Texas Tort Claims Act, the First Court of Appeals affirmed the trial court’s judgment because the use of a fire hose on a fire truck headed to an emergency began when the truck left for the emergency invoking both the Texas Tort Claims Act and its emergency exception.

The plaintiff sued the city after his car was damaged and he was injured by a fire hose dragging behind a fire truck en route to an emergency.  The plaintiff sued the city arguing that the dragging hose was missing an integral safety component because there is equipment available that could have ensured that the hose did not fall off the truck while it was in motion.  The plaintiff also argued that because the hose was en route it was in use at the time of the dragging, but was not actually being used in the emergency, so the emergency exception did not apply.  The city argued that because the fire truck was en route that the emergency exception to the Tort Claims Act applied and preserved immunity.  The trial court granted the city’s plea to the jurisdiction m and the plaintiff appealed.

The Texas Tort Claims Act waives a city’s immunity when there are injuries or damages caused by the operation or use of a motor-driven vehicle and motor-driven equipment.  Tex. Civ. Prac. & Rem. Code § 101.021.  Immunity is not waived for non-use of property.  Once a waiver is established due to use of property, the governmental entity can retain its immunity if the use was during an emergency and the action was “not taken with conscious indifference or reckless disregard for the safety of others.” Id. § 101.055(2).  The court of appeals held that if the hose being on the truck was sufficient to invoke use under the Tort Claims Act, that use was related to the emergency where the truck carrying the hose was headed.  The court also held there was no evidence of conscious indifference or reckless disregard. The court of appeals upheld the trial court’s grant of the city’s plea to the jurisdiction.

If you would like to read this opinion click here.   Panel consists of Justices Goodman, Landau, and Guerra.  Opinion by Justice Gordon Goodman.

San Antonio Court of Appeals holds receipt of payment or exclusive use of premises are not substantial factors to determine invitee status under TTCA for premise defect case

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City of San Antonio v. Nadine Realme, 04-20-00119-CV (Tex.App.—San Antonio, March 17, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the Plaintiff alleges a premises defect claim against the City. The Court of Appeals reviewed the denial of the City’s plea to the jurisdiction, ultimately affirming the denial.

Plaintiff Realme paid to participate in a 5K run/walk that took place on the City’s streets and sidewalks. The event itself was sponsored by private entities and Realme’s participation fee was directed to the private entities. She followed the pre-designated route and, along that route, between the sidewalk and the street, she tripped on a metal object protruding from the ground, causing bodily injury. She sued the City.  The City filed a plea to the jurisdiction and argued that Realme was not an invitee, but rather a licensee under premise defect standards. As a result, the City had to have actual knowledge of the dangerous defect. The crux of the City’s argument was two-fold: that the City did not receive payment for Realme’s use of the premises, that other – nonpaying – members of the public also had access to the area and, therefore, Realme was not an invitee under the TTCA. The trial court denied the City’s plea to the jurisdiction, which the City then appealed to the Court of Appeals.

The specific TTCA provision that the Court of Appeals focused upon states that the City owes to Realme “only the duty that a private person owes to a licensee on private property unless the claimant pays for the use of the premises.” The Court of Appeals overruled the City’s argument after analyzing the plain language of that provision to come to the conclusion that the language makes no distinction between who received payment for use of the premises or even whether the payment was for the exclusive use of the premises. The fact that the City did not receive payment is immaterial.  On appeal, the City also raised a new issue that Realme’s claim is barred by immunity under the Recreational Use Statute. However, the Court of Appeals found that the City did not provide Realme the opportunity to develop the record or conduct discovery on the Recreational Use argument at the trial level, nor show how Realme would be unable to demonstrate jurisdiction through that avenue even if given the opportunity. The Court of Appeals refused to address for the first time on appeal. In construing Realme’s pleadings in her favor and considering the evidence admitted, the Court of Appeals found there was a material fact issue on the question of immunity, affirmed the denial, and remanded the case to the trial court for further proceedings.

If you would like to read this Memorandum Opinion, click here. Panel consists of Chief Justice Martinez and Justices Alvarez and Rios. Memorandum Opinion by Justice Rios.

Fourth Court holds plaintiff’s premise defect claims cannot be brought as tangible personal property claims

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City of San Antonio v. Nolan Anderson, 04-20-00320-CV (Tex.App.—San Antonio, March 10, 2021)

This is a Texas Tort Claims Act (“TTCA”) case where the Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the claims with prejudice.

Plaintiff Anderson was on crutches and exiting a terminal at the San Antonio International Airport. There was deposition testimony that it was raining that day. He stated that he noticed a rubber mat outside the terminal door, that the ground was wet when he moved his crutches forward and fell, injuring himself. Anderson alleged both a condition/use of tangible personal property (by failing to use a slip-preventing mat) and, alternatively, a defective condition of the premises (because the City should have known it was raining and needed to have made safe an area where one would not expect to find water). During Anderson’s deposition, when asked if he had any reason to believe anyone from the City knew about the water before he fell, replied: “Not that I know of, no, sir.” The City filed a plea to the jurisdiction and a no-evidence motion for partial summary judgment. The trial court granted the summary judgment but denied the plea to the jurisdiction. The City then appealed the denial.

The Court of Appeals focused on Anderson’s apparent attempt to couch a premises defect claim as a tangible personal property claim. The TTCA clearly delineates between the two claims such that one claim cannot be both a condition/use of personal property and a premises defect. The former claim was succinctly dismissed because Anderson expressly alleges it is attributed to a failure to use a certain type of mat, which is not a valid claim under the TTCA. As to the latter, none of Anderson’s testimony created a fact issue as to whether City had any knowledge or notice of the water on the ground or mat, which is one required element for bringing forth a premises defect claim. As a result, the denial of the plea to the jurisdiction was reversed and Anderson’s claims were dismissed with prejudice.

If you would like to read this memorandum opinion, click here. Panel consists of Justices Chapa, Rodriguez, and Valenzuela. Memorandum Opinion by Justice Valenzuela.