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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

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

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

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Failure to use an x-ray machine in the right body area to locate a missing sponge constitutes the misuse of tangible personal property under TTCA

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Univ. of Tex. Sw. Med. Ctr. V. Rhoades, No. 05-19-00445-CV (Tex. App.—Dallas June 30, 2020).

This is a medical negligence case brought under the Texas Tort Claims Act (TTCA) filed after a sponge was left inside Plaintiff Rhoades during surgery.  The Dallas Court of Appeals held the plea to the jurisdiction was properly denied because Rhoades had made a proper allegation of misuse of tangible personal property.

Rhoades had surgery at the Medical Center for breast reconstruction surgery.  During the surgery, surgery included removal of tissue from her abdomen for use in her chest.  After the surgery in the abdomen was completed, but the surgery in her chest area was still in progress, the surgical staff realized they were missing a sponge.  The staff x-rayed Rhoades body in its search for the sponge but did not x-ray low enough in Rhoades’ abdomen.  While Rhoades was still in recovery in the ICU, the sponge was found with an x-ray of her pelvic area and it was removed. Complications after the sponge-removal surgery resulted in multiple further surgeries.  Rhoades sued the Medical Center for medical negligence asserting a waiver of immunity for misuse of tangible personal property (i.e. the sponge and the first x-ray machine.)  The Medical Center filed a plea to the jurisdiction which was denied. The Medical Center appealed.

The Texas Tort Claims Act, states that a governmental entity’s immunity is waived for “ personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. “  Tex. Civ. Prac. & Rem. Code § 101.021(2).   Immunity is not waived for incorrect medical judgment.  Non-use of medical equipment is insufficient to waive immunity as is negligent medical judgment. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2001).  The Court of Appeals held that Rhoades had sufficiently alleged misuse of the x-ray machine in failing to take the x-rays in the right location to discover the sponge during the initial surgery and that the misuse of the sponge by leaving it in the body are sufficient to waive governmental immunity to overcome a plea to the jurisdiction.  Not monitoring or responding to medical equipment in a timely fashion can constitute a waiver of governmental immunity for negligent use of the equipment.  It was not a misuse of the information that the x-ray provided that caused the medical injuries, but it was not using it in the correct area that caused the additional surgery that led to further medical issues.

The dissent stated that immunity was not waived by the use of the x-ray machine, because the use of the x-ray machine did not cause the injuries or additional surgeries, but instead the non-use of the x-ray machine in her pelvic area did not find the sponge.   The x-ray machine was operated and functioned properly and produced the images correctly, and there is no allegation that it should not have been used.

If you would like to read this opinion click here. Panel consists of Justices Bridges, Molberg, and Partida-Kipness.  Opinion by Justice Partida-Kipness.

Texas Supreme Court holds TTCA waives immunity for slight negligence claims, which applies to common carriers (buses) and imposes a higher degree of care for passengers

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VIA Metropolitan Transit v Curtis Meck, 18-0458 (Tex. June 26, 2020)

This is a Texas Tort Claims Act (TTCA) case involving a VIA bus accident where the Texas Supreme Court affirmed a jury award against VIA.

VIA Metropolitan Transit is a governmental entity that operates public transportation services in San Antonio and Bexar County. Curtis Meck boarded a VIA bus operated by Frank Robertson, who was new to the job and still in training. Robertson began to pull away from the stop when another passenger shouted “Back door!,” apparently to notify Robertson that a passenger was still trying to exit. Traveling just under five miles per hour, Robertson made an “abrupt stop,” causing Meck to fall forward into the partition behind Robertson’s seat. Meck asserts this caused a herniated disc in his neck. Mech sued VIA asserting negligence and asserted VIA was a “common carrier” with a high degree of care imposed for the benefit of the passengers. After a trial on the merits the jury found for Meck and VIA appealed. VIA did not object to the designation as a common carrier and did not object during jury selection when Meck’s attorneys told the jury of the higher duty imposed on VIA. VIA moved for a directed verdict asserting it was not a common carrier and the jury instruction was incorrect. The motion was denied.

Under the Texas Transportation Code, the duties and liabilities of a common carrier are the same as provided for under common law. Tex. Transp. Code §5.001(a)(1). A common carrier owes a duty to its passengers to act as “a very cautious and prudent person” would act under the same or similar circumstances.  To qualify as a common carrier (in contrast to a private carrier), the entity must provide transportation services to the general public, as opposed to providing such services only for particular individuals or groups and as its primary function. VIA argued it is not a common carrier because (1) it is not “in the business” of providing such services, (2) providing such services is not its “primary function,” and, (3) in any event, it cannot be a common carrier because it is a governmental body that performs only governmental functions.  While the Court agreed that VIA is statutorily prohibited from generating revenue greater than an amount “sufficient to meet [its] obligations,” it disagreed that profit is necessary to qualify for the “in business” designation. The  Court held VIA was indisputably in “the business of transporting people” and therefore met the first prong. And while VIA argued it performs numerous governmental functions that include constructing roads, issuing bonds, collecting taxes, and promoting economic development, for the purpose of “implementing the State’s transportation policy”, the Court held it must only do so to fulfill its obligation to operate as a “rapid transit authority.”  As a result, transporting people is its primary function. The Court agreed that VIA is a governmental entity and that it was performing governmental functions that provided, by default, governmental immunity. However, that status does not prevent it from being a common carrier with a higher degree of care to its passengers. The Court further declined to change the law by requiring a lower, ordinary standard of care. The Court then held the TTCA does not define what type of negligence is subject to the waiver of immunity. However, the common law has long used the term “negligence” to refer to “three degrees or grades of negligence,” including gross negligence, ordinary negligence, and slight negligence (which applies to common carriers).  As a result, all three types are subject to the waiver in the TTCA. Finally, the Court held the evidence was legally sufficient to uphold the jury award.

Chief Justice Hecht wrote a concurring opinion noting the “slight negligence” or “high decree of care” standards are misleading, unnecessary and should be abandoned. They suggest that common carriers are to “exercise all the care, skill, and diligence of which the human mind can conceive” and invites the jury “to scrutinize the carrier’s conduct in an endeavor to find it defective.”  However, he notes that given the evidence, an instruction on a “reasonable care” standard would not have changed the outcome.

If you would like to read this opinion click here. Justice Boyd delivered the opinion of the Court, in which Justice Green, Justice Lehrmann, Justice Blacklock, and Justice Busby joined. Chief Justice Hecht delivered a concurring opinion, in which Justice Guzman, Justice Devine, and Justice Bland joined.

Paying for train ticket is not the same as paying for use of train station under TTCA premise defect claim says 5th Court of Appeals

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Special guest author Laura Mueller, City Attorney for Dripping Springs

City of Dallas v. Kennedy, No. 05-19-01299-CV (Tex. App.—Dallas June 13, 2020) (mem. op.)

This is a slip and fall/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed and rendered on the trial court’s denial of the City’s plea to the jurisdiction.

Vernell Kennedy injured herself when she fell at the City of Dallas’ Eddie Bernice Johnson’s Union Station by tripping on a broken area of tile.  She had traveled by Amtrak train from Kilgore to Dallas before using the Station and had purchased her train ticket in Longview.  She sued the City for failing to repair the floor or warning of the dangerous condition.  The City filed a plea to the jurisdiction claiming that it was protected by governmental immunity on the basis that Ms. Kennedy was a licensee, not an invitee because she did not pay to use the train station.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

Under the Tort Claims Act, a city owes “owes to the claimant only the duty that a private person owes to a licensee on private property,”  Tex. Civ. Prac. & Rem. Code § 101.022.  The duty to a licensee regarding premises defects is to warn of premises defects that the entity has actual knowledge of.  If someone pays for the use of property, the claimant becomes an invitee and the city’s duty to protect the individual from harm is elevated to warning the individual of dangers the person knew or should have known of.  The plaintiff in this case argued that she was an invitee because she had paid to ride the train to the station. The court of appeals disagreed.

“A fee must be paid specifically for entry onto and use of the premises” to change a plaintiff to an invitee.  City of Dallas v. Davenport, 418 S.W.3d 844, 848 (Tex. App.—Dallas 2013, no pet.)(holding that paying for a plane ticket did not make a person an invitee when injured on airport property); but see City of Fort Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.).  Because Kennedy had purchased only a train ticket, and no payment was made to use the station itself, she was a licensee and the city only owed her a duty to warn her of dangers of which the city had actual knowledge.  Actual knowledge of the danger in this case was not established by Kennedy, because there were no reports on file at the city that the danger existed.

If you would like to read this opinion click here.

San Antonio Court of Appeals holds because officer’s affidavit was too sparse to establish a proper lookout trial court properly denied the plea to the jurisdiction

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City of San Antonio v Huron, 04-19-00570-CV (Tex. App. – San Antonio, June 11, 2020)

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

David L. Arredondo was struck and killed by a San Antonio Police Department (SAPD) vehicle when Arredondo was riding his bicycle.  Arredondo failed to stop at a stop sign, and he rode across the unlit intersection. The City sent investigators and a supervisor to the scene, and the driver/officer gave a statement regarding the accident. The investigators took photographs and videos, collected evidence, and filed their reports.  No formal written notice of claim was filed, but just over thirteen months after the accident, the family filed suit.  The City asserted its immunity from suit for lack of formal or actual notice.  The family asserted the City had actual notice due to the investigation and reports.    The plea was denied and the City appealed.

“[A]ctual notice exists only when the governmental unit has ‘knowledge of (1) a death, injury, or property damage; (2) the governmental unit’s alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved.’”  “[S]ubjective awareness of alleged fault requires neither adjudication of liability nor confession of fault.”  But a governmental unit’s subjective awareness of its potential fault is not enough to establish actual notice. The investigation reports, prepared by an SAPD investigator, identifies the officer driving the SAPD vehicle, the decedent, the location, and other facts pertaining to the accident.  The only finding of fault in the Texas Peace Officer’s Crash Report points to Arredondo.  Neither of the two CSI reports gave any indication of fault by any party, and the court expressly did not infer that the City gained any subjective awareness of its alleged fault merely because it conducted an extensive investigation. It is the facts disclosed in the investigation, not the breadth of the investigation alone, that inform the actual notice question. The driving officer’s report, however, was very sparse and noted “I was traveling [southwest] in the #1 lane of Somerset [Road], when I felt something strike my vehicle. I immediately noticed my windshield was damaged and [I] came to an immediate stop.”  All persons have the duty to maintain a proper lookout and to observe in a careful manner the traffic and the general environment at and in the vicinity of an intersection. The officer’s affidavit was so sparse, it did not establish he was maintaining a proper lookout. He does not list his speed at the time of the accident or much of anything else. From this evidence, the trial court could have found that the officer did not see Arredondo and it could have concluded that the officer was failing to keep a proper lookout in violation of his duty.  As a result, the plea was properly denied. [Comment: This opinion appears to be inconsistent with the burdens attributed to the parties during a plea as the opinion does not go into what evidence was present in response to the plea to establish a failure to keep a proper lookout. The court seems to treat the absence of evidence as a proper submission of contradicting evidence to make an implied finding by the trial court.]

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

Slowing and visually observing stopped traffic was not reckless action for purposes of emergency responder doctrine of TTCA

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City of Kingsville v Dominguez, 13-19-00236-CV (May 28, 2020)

This is a motor vehicle accident case under the Texas Tort Claims Act (TTCA) where the Corpus Christi Court of Appeals reversed the denial of a plea to the jurisdiction and dismissed the plaintiff’s claims.

Dominguez alleged that Oscar Mendiola, while operating a City fire truck, failed to yield the right of way at a signal light which resulted in a collision with Dominguez’s vehicle. The record demonstrated the fire truck was traveling behind an ambulance and the truck’s siren and emergency lights were both activated.  Mendiola slowed as he approached, visually confirmed traffic had stopped, then proceeded.  According to the official accident report, the investigating officer concluded that the fire truck driver was facing a red light and failed to yield the right of way to Dominguez. The officer also concluded that Dominguez “disregarded an Emergency Vehicle while operating emergency lights.” The officer did not issue a citation to either driver. The City filed a plea to the jurisdiction based on the emergency responder exception of the TTCA. The plea was denied and the City appealed.

Part of the policy behind the emergency responder exception is because imposing “liability for a mere failure in judgment could deter emergency personnel from acting decisively and from taking calculated risks” and would “allow for judicial second-guessing of the split-second and time-pressured decisions emergency personnel are forced to make.”  However, compliance with the requirements of Chapter 546 of the Texas Transportation Code does not relieve the driver of liability if they act recklessly (i.e., he understood the risks but did not care about the result).  The City argued Mendiola acted to minimize the risk to others as he entered the intersection, thereby demonstrating that Mendiola “clearly did care about the result” of his actions. Dominguez responds that Mendiola’s actions of entering the intersection against a red light without stopping were evidence of recklessness. The court held the fire truck driver slowed below the speed limit, visually confirmed stopped vehicles, had the lights and sirens on, and therefore did not act recklessly. As a result, the plea should have been granted.

If you would like to read this opinion, click here.

Texas Supreme Court holds plaintiff lacked standing to challenge PIP payments since he suffered no out-of-pocket expenses

 

Farmers Texas County Mutual Insurance Co. v Beasley, 18-0469 (Tex. March 27, 2020)

While not a governmental entity case, this case involves standing to sue under a personal injury protection policy (PIP) and the distinction made with incurred rates vs. list rates of the medical providers. This can affect not only litigation but also those entities which are self-insured.

Beasley was injured in a car accident and his treatment displayed in the medical provider’s invoices totaled $2,662.54. Beasly had health coverage with BlueCross Blue Shield (BCBS) which negotiated a provider rate of $1,068.90.  The medical providers did not attempt to recover or hold him liable for the difference. Beasley also had a PIP policy through Farmers Texas County Mutual Insurance Company (Farmers).  The policy stated it would pay benefits because of bodily injury, including reasonable medical expenses. Beasley made a claim but sought the list/invoiced rates. Farmers paid Beasley $1,068.90.  He sued for the difference alleging breach of contract and asserting the policy covers reasonable medical costs, regardless of any reductions the providers agreed to accept later. Farmers asserted the policy was for medical expenses incurred. The trial court granted Farmers’ plea to the jurisdiction but the court of appeals reversed holding the breach of contract claim was sufficient to confer jurisdiction. Farmers appealed.

Standing is a requirement of jurisdiction and Beasley must establish an injury. Beasley was not harmed as the medical providers did not attempt to charge him for the difference.  He was not able to claim any unreimbursed, out-of-pocket medical expenses. Nor does Beasley assert that any of his medical providers withheld treatment as a result of the adjusted bills. The fact Beasley felt personally aggrieved by the lack of payment does not mean he suffered an injury. [Comment: yes, he actually made that argument.] Beasley also asserts Farmers impermissibly considered a collateral source in determining how much to reimburse: BCBS’s payments to Beasley’s medical providers. But a health insurer’s negotiated discounts do not constitute a collateral source of benefits to the insured in this context.  Adjustments in the amount of charges to arrive at the amount owed is a benefit to the insurer, one it obtains from the provider for itself, not for the insured. As a result, the collateral source rule is inapplicable in Beasley’s case. Beasley, therefore, was not able to establish standing to bring suit.

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

 

Property owner negated premise duty as a matter of law involving brown-recluse spider attack on invitee

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Homer Hillis v Henry McCall, 18-1065 (Tex. March 13, 2020)

This is a premises-liability case where the Texas Supreme Court ruled the property owner negated as a matter of law the duty to warn of the brown-recluse spider danger. While not a governmental liability case, the analysis of knowledge would be similar.

Hillis owns a bed and breakfast (the B&B) and a neighboring cabin which he rents out. Hillis hired a housekeeper to prepare and clean the B&B before guests arrived. That process included utilizing “bug bombs” in the event the housekeeper noticed any pest problems, on an “as needed” basis. Hillis leased the neighboring cabin on the property to Henry McCall, and utilized him as a handyman. Hillis typically called McCall several days before guests arrived and asked him to perform various tasks associated with B&B services. While checking under the sink for a leak in response to a Hillis call, McCall was bitten by a brown recluse spider. Before he was bitten, McCall had observed spiders in both the cabin and the B&B on several occasions and had notified Hillis about the general presence of spiders. Hillis asserted he would pass along the information to the housekeeper to take care of. McCall sued Hillis for negligence under a premises-liability theory, alleging that the presence of brown recluse spiders on Hillis’s property constituted an unreasonably dangerous condition. Hillis filed a motion for summary judgment, arguing that, under the longstanding doctrine of ferae naturae, he owed no duty to McCall with respect to indigenous wild animals that Hillis had neither introduced to nor harbored on the property. The trial court granted the MSJ and McCall appealed.

The Texas Supreme Court held the duties owed by a landowner in a premises-liability case “depend upon the role of the person injured on his premises.”  When the injured person qualifies as an invitee, as McCall did by admission of the parties,  then as a general rule the landowner owes a “duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is or reasonably should be, aware but the invitee is not.” The duty does not extend to warning the invitee of hazards that are open and obvious. The Court also recognized that with certain exceptions, a premises owner generally owes no duty to protect invitees from wild animals on the owner’s property. Wild animals “exist throughout nature” and are “generally not predictable or controllable.” The exception to this doctrine is when wild animals are found in artificial structures or places where they are not normally found, the landowner knows or should know of the unreasonable risk of injury and patrons would not be expected to recognize the danger. Under this exception, the landowner owes the general duty owed to an invitee to warn or make safe unreasonably dangerous conditions they know or should know about. However, many insects and spiders are commonly found indoors. The ever-present possibility that an insect or spider bite may occur indoors does not amount to an unreasonable risk of harm. The Court analyzed the record and listed pertinent facts. The Court found knowledge of the general intermittent presence of spiders does not necessarily amount to knowledge of an unreasonable risk of harm, and Hillis had no particular reason to know that brown recluses, or other venomous spiders, were inside the B&B. Further, McCall and Hillis had identical actual knowledge of the presence of spiders on the property. According to McCall, Hillis should have warned him that the spiders McCall himself had seen and reported to Hillis were dangerous. The Court expressly stated “[w]e will not impose a duty on a landowner to warn an invitee about something he already knows.”  As a result, Hillis negated a duty to McCall as a matter of law.

If you would like to read this opinion click here. The docket page can be found here.

Texas Supreme Court holds supervisor’s order to use tear-gas gun was “use” under TTCA, but riot exception preserved immunity

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Texas Dept. Crim. Justice v Cesar Rangel, 18-0721, (Tex. Feb. 7, 2020)

This is a Texas Tort Claims Act (“TTCA”) case where the Texas Supreme Court held the Department of Criminal Justice (“Department”) retained immunity for hitting an inmate with a tear-gas shell.

Two groups of inmates were threatening each other in  The Pam Lychner State Jail.  The groups totaled approximately thirty (30) inmates. After giving orders to cease hostilities for almost an hour, which were ignored, Department officials ordered a guard to fire tear-gas (including a skat shell) at the groups.  A “skat shell” launches five pyrotechnic submunitions that are designed to deliver chemical agents at a range of up to eighty meters. The shell hit Rangel, injuring him. Rangel sued.  The Department conducted an internal use-of-force review that “revealed several mistakes” as to how the incident was handled, noting that the skat shell was “designed for outdoor areas” only and “that chemical agents should have been administered through the door rather than in the middle of the housing area.” The official who authorized the use indoors was disciplined. The Department filed a plea to the jurisdiction, which was denied.

The Texas Supreme Court held the supervisor’s order to use the tear-gas gun was a “use of tangible personal property” under the TTCA. It was not the use by the individual guard following orders, but was a “use” by the supervisor who authorized an order the gun be put into play. The distinguishing factor is the order by the supervisor specifically to use the weapon, and not merely making the weapon available to the guard with no direction. [Comment: the Court spent multiple pages in the opinion on this distinction.] This also had an interplay with the court of appeals opinion on the intentional tort exceptions. However, the immunity waiver does not apply to a claim “based on an injury or death connected with any act or omission arising out of civil disobedience, riot, insurrection, or rebellion.” TEX. CIV. PRAC. & REM. CODE § 101.057(1). Rangel argued that the circumstances did not constitute a riot or there was a fact issue as to whether a riot existed. Using the plain and ordinary meaning of the term “riot” also includes how the term is used in other statutes, including the Penal Code. The Penal Code defines “riot” in part as “the assemblage of seven or more persons resulting in conduct” that “creates an immediate danger of damage to property or injury to persons.” TEX. PENAL CODE § 42.02(a). While not identical, that definition is in line with the ordinary meaning of “riot,” emphasizing not only the size of assemblage and nature of the events but also the immediate danger.  As a result, the undisputed facts of the case constitute a riot as a matter of law. As a result, no waiver of immunity exists and the plea should have been granted.

If you would like to read this opinion click here. Opinion by Justice Lehrmann.  Docket page found here.

Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

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The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.

Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

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The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.

El Paso Court of Appeals holds concrete barrier and canal at end of roadway is a special defect

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City of El Paso, Texas v. Albert Lopez and Lexby Lopez, 08-19-00056-CV, (Tex. App – El Paso, Dec. 12, 2019)

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

Plaintiff Lopez was traveling on his motorcycle at night when the roadway ended with a concrete barrier and canal. There were neither road signs nor any other type of warnings or lighting. Lopez struck the barrier and was killed. The police investigation report noted “the driver . . . failed to stop for the end of the street or roadway and crashed his bike into the canal.” A nearby resident also gave a statement that “there are a lot of cars that crash into the canal” because “[t]here are no warning signs to let you know that the street ends so when people come out the bars they wind up crashing at the canal.”  The investigation listed “lack of signs and illumination” as factors in causing the accident.  Lopez’s family brought a wrongful death claim against the City. The City filed a plea to the jurisdiction, which was denied.

The Plaintiffs failed to provide statutory notice of the accident but asserted the City had actual notice of its fault. Citing to the recent Texas Supreme Court case in Worsdale v. City of Killeen, 578 S.W.3d 57 (Tex. 2019), the court held the “critical inquiry is the governmental unit’s actual anticipation of an alleged claim rather than subjective confirmation of its actual liability.” After reviewing the record the court held the  City had actual notice of the claim under the TTCA. Next, the court analyzed whether the concrete barrier was a special defect. Both the canal and the concrete barrier were located on the roadway’s path, neither of which were visible in the dark to ordinary motorists. As a result, the court determined it was a special defect and the plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley, Justices Rodriguez and Palafox. Opinion by Justice Birdwell. The attorneys listed for the Plaintiffs are Ramon King Jr. and Lloyd Robles.  The attorney listed for the City is Anelisa Benavides.