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.

Dallas Court of Appeals holds Parkland Hospital did not have actual knowledge of glass pane defect prior to it falling and injuring Plaintiff

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Dallas County Hospital District d/b/a Parkland Health & Hospital System v. Lidia Bravo and Jefrey Bravo, 05-20-00640-CV, (Tex. App – Dallas, March 4, 2021)

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

Plaintiff Bravo visited a sick family member at a Parkland hospital when as he sat in the main lobby, a large glass pane from a second-story walkway suddenly fell on him from overhead, causing him injuries. Bravo sued Parkland for a premises defect. Parkland filed a plea to the jurisdiction, which was denied. Parkland appealed.

Under a premise defect theory, a limited duty requires the owner of the premises to avoid injuring the plaintiff through willful, wanton, or grossly negligent conduct and to use ordinary care either to warn the plaintiff of, or make reasonably safe, a dangerous condition of which the owner is aware and the plaintiff is not. Parkland submitted evidence the glass pane was installed prior to October of 2015 and Parkland received no notice of any potential problems with the pane prior to Bravo’s injury. None of Plaintiff’s evidence showed Parkland had any prior actual notice of a dangerous condition or provided a basis from which such notice could reasonably be inferred. As a result, no actual knowledge is evidenced. The plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justices Molberg, Reichek, and Nowell. Reversed and rendered. Memorandum Opinion by Justice Molberg. Docket page with attorney information found here.

Austin Court of Appeals holds City’s diligent search established no actual knowledge of premise defect, therefore no waiver of immunity exists

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City of Austin v Brandy Credeur, 03-19-00358-CV (Tex. App. – Austin, February 11, 2021)

This is a premise defect case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Credeur was injured when she fell walking along a city sidewalk in front of private property owned by Riedel. She asserts she stepped off the sidewalk to cross the street, stepped on a cement block covering a pipe, and then onto an “adjacent, improperly sealed water valve cover,” both of which were obscured by Riedel’s “overgrown lawn.” She sued the City, Riedel, and a utility company. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Texas courts “consistently treat[] slip/trip-and-fall cases as presenting claims for premises defects.” The court considered Plaintiff’s rendition of facts and even added a photo of the area in the opinion. Even assuming that the sidewalk, in this case, was “sufficiently related to the street” to come within the realm of special defects, the court held the alleged defect was not on the sidewalk itself but in the grass near the sidewalk.  Credeur stepped off the sidewalk to cross the street, walking through an area not intended for pedestrian use, and thus the defect she encountered cannot be considered to have posed a danger to the ordinary users of the sidewalk.  As a result, it is not a special defect, but a premise defect.  The City produced evidence that employees did a diligent search of all reports made to the City which could have notified it of the defect prior to Credeur’s injury and found none.  Without actual knowledge of the defect, no waiver of immunity exists. [Comment: the court went into detail about all the City did to establish a lack of knowledge, which can be a good roadmap for other entities having to establish the same type of fact.] The City’s evidence detailed what the City did in response to discovery to find reports and that all departments which might have a report were searched. Credeur has not identified another City employee or department that might have received a report about the alleged defect. As a result, Credeur failed to raise a fact question as to notice and the City’s plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Byrne, Justice Triana and

Justice Smith. Memorandum Opinion by Chief Justice Byrne

 

Beaumont Court of Appeals holds City is not liable for alleged failure to create a police report, failure to investigate, or failure to prosecute as asserted by Plaintiff

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Caryn Suzann Cain v. City of Conroe, Tex., et al., 09-19-00246-CV, 2020 WL 6929401 (Tex. App.—Beaumont Nov. 25, 2020)

 This is an interlocutory appeal from the trial court’s order granting the City’s motion to dismiss, plea to the jurisdiction, and traditional motion for summary judgment.

Plaintiff, Caryn Suzann Cain, filed a pro se civil suit against the Conroe Police Department alleging police negligence in the department’s investigation and disposal of her complaints regarding disputes with her neighbors. Cain asserted the City failed to render police assistance and file an incident report after she was allegedly assaulted by her neighbor’s dog, and that the Department showed bias towards her neighbor, a state correctional officer, who allegedly continued to harass her over a period of eighteen months.  Cain later § 1983 claims against the City.  In response, the City defendants filed a motion to dismiss under §101.106(e) of the Civil Practice and Remedies Code, a plea to the jurisdiction, and traditional motion for summary judgment.  The trial court granted all motions.

The officers were entitled to dismissal of the tort claims under §101.106(e).  Next, under the TTCA if an injury does not arise from a city employee’s operation or use of a motor-driven vehicle, then the city is not liable for its employee’s negligence. “Arises from” requires a plaintiff to show a direct connection between the injury and the employee’s vehicle operation or use.  Simply using a patrol vehicle’s radio is not actionable. Similarly, the court noted mere involvement of tangible personal property in an injury does not, by itself, waive immunity.  The tangible personal property must do more than create the condition that makes the injury possible. Here, no tangible personal property was negligently used to result in any of the alleged injuries. Next, to allege a valid constitutional rights violation under § 1983 against the City, Cain was required to assert a deprivation was caused by a policy, custom, or practice of the City. A municipality is not liable under § 1983 for the unconstitutional acts of its non-policymaking employees.  The Court determined Cain did not allege sufficient facts showing an unconstitutional policy or custom was being implemented. Finally, the Due Process Clause does not require the State to protect life, liberty, and property of its citizens against invasion by private actors, and it generally confers no affirmative right to government aid.  Thus, Cain’s allegation that the City failed to protect her against her neighbor did not constitute a due process violation.

If you would like to read this opinion click here.  Panel consisted of Chief Justice Steve McKeithen and Justices Hollis Horton and Leanne Johnson.  Opinion by Chief Justice McKeithen.  Docket page with attorney information can be found here.

 

El Paso Court of Appeals holds courts analyze the substance of pleadings, not the form of creative pleadings trying to reframe the claims.

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Joseph O. Lopez v. The City of El Paso, 08-19-00123-CV (Tex. App.—El Paso Dec. 9, 2020)

This is an interlocutory appeal from the trial court’s order granting the City’s plea to the jurisdiction in which the El Paso Court of Appeals affirmed.

Plaintiff, Joseph O. Lopez sued the City of El Paso, for alleged injuries he sustained as the result of an arrest by two City police officers.  Lopez alleged that during the arrest, the officers forcefully pulled him from his vehicle; flung him to the ground, pinned him and applied pressure on his torso, head, and neck.  He also asserts one of the officers struck him in the head multiple times.  Lopez further alleged that the officers negligently employed a baton while using excessive force. The City filed a plea to the jurisdiction, which was granted.

On appeal, the Eighth Court of Appeals addressed the sole issue of whether the trial court abused its discretion by deciding that Appellant had failed to allege sufficient facts to support a waiver of immunity under the Texas Tort Claims Act (“TTCA”).  First, the court noted that § 101.106(a) bars a plaintiff from suing city employees once the plaintiff has elected to sue the city first, even in cases where city employees might otherwise be solely and personally liable in their individual capacities.  The court then acknowledged Lopez had creative pleading in an attempt to avoid characterizing the officers’ conduct as an intentional tort.  It noted that when courts analyze a plaintiff’s pleadings to determine the existence of waivers of immunity, courts look at the substance of the pleadings, not to their characterization or form. The TTCA does not apply to intentional acts including assault, battery, false imprisonment, or any other intentional tort.  In this case, the police conduct alleged by Lopez, the substance of his claims, fell under the category of intentional torts, specifically assault and battery, not negligence.  As a result, the alleged tortious conduct did not sustain a waiver of immunity under the TTCA.  The plea was properly granted.

 

If you would like to read this opinion click here.  Panel consisted of Chief Justice Jeff Alley and Justices Yvonne Rodriguez and Gina Palafox.  Opinion by Justice Rodriguez.  Docket page with attorney information can be found here.

 

14th Court of Appeals holds describing the general place where an injury occurs is sufficient for Tort Claims Act notice.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Metro. Transit Auth. of Harris County v. Tracey Carr, No. 14-19-00158-CV (Tex. App.—Houston [14th]  January 12, 2021) (mem. op.).

In this appeal from a trial court’s order denying the city’s plea to the jurisdiction in a vehicle accident tort claims case, the 14th Court of Appeals affirmed the denial.

The plaintiff sued the transit authority after she was injured on a bus.  The plaintiff was injured when boarding a bus due to the driver’s sudden acceleration.  The plaintiff alleged that the injury occurred on October 25, 2017 on or around 7:15 p.m. near a specific intersection on Bus 3578.  She stated that the driver was male and either Hispanic or Caucasian.  The plaintiff injured her back, neck, and spine.  The plaintiff notified the transit authority of this information within six months of her alleged injury.  The transit authority filed a plea to the jurisdiction asserting the notice was insufficient because she gave the wrong bus number in her notice.  The trial court denied the Authority’s plea to the jurisdiction and the Authority appealed.

A plaintiff is required to present written notice to the governmental entity within six months of an injury that could give rise to a claim under the Texas Torts Claim Act.  The notice has to “reasonably” describe the injury or damage, the time and place of the incident in question, and the facts of the incident.  Tex. Civ. Prac. & Rem. Code § 101.101(a).  Whether a notice provided to the governmental entity is timely and adequate is a question of law for the court to decide.  The court of appeals upheld the trial court’s denial of the transit authority’s plea to the jurisdiction, holding that the plaintiff’s notice was sufficient because she provided notice of the location, the injury, and the facts of the injury.   The description was sufficient with the street intersection despite the allegation that the bus number of the bus where the accident occurred was incorrect.

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

 

City not liable for accident caused by stolen ambulance says San Antonio Court of Appeals

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The City of San Antonio v. Smith, 04-20-00077-CV (Tex.App.—San Antonio, November 25, 2020) (mem. op.)

This is an appeal from a denial of the city’s plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case stemming from the operation of an ambulance.

Two paramedics were dispatched to a “Code 3” emergency in an apartment complex, warranting the use of the ambulance’s lights and sirens while in transit. When they arrived, they parked the ambulance, left the emergency lights on, and left the vehicle idling. Neither paramedic had heard of an idling ambulance being stolen nor had any inclination that the area would pose such a risk. While they were attending to the patient, an unknown person stole the ambulance and collided with two cars. The occupants of the other vehicles sued the city under the TTCA, alleging their injuries arose from the operation or use of a motor vehicle or were caused by a condition or use of tangible personal property. The allegation was that the City negligently left the ambulance unattended and it failed to use an adequate anti-theft device. The City filed a plea to the jurisdiction, primarily focusing on the facts that the ambulance was not operated by a city employee and that nonuse of property do not fall under TTCA’s’ waiver of immunity. The trial court denied the City’s plea and the City appealed.

The Court quickly dismissed the “operation of a motor vehicle” claim, as it was undisputed that no city employee was operating the ambulance. The appellees’ “condition or use of tangible personal property” claim focused on case law holding that items lacking an “integral safety component” fall under the TTCA’s waiver of immunity. However, the Court distinguished that such cases are not only the outer bounds of what could fall under the TTCA, but also inapplicable here because the ambulance did have anti-theft measures: door locks and an alarm. Thus, the appellees’ argument was not that the ambulance lacked an integral safety component, but that the ones present were not enough, and that does not waive immunity under the TTCA. Ultimately, the Court reversed the denial and dismissed the appellees’ case.

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

Fifth District Court of Appeals holds property owner’s pleadings adequately alleged waiver of immunity in sewer backup case due to overtaxed pumps

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The City of Blue Ridge v. Rappold, 05-19-00961-CV (5th Cir. Dec. 3, 2020) (mem. op.)

This is an interlocutory appeal from a denial of the City’s plea to the jurisdiction, in a sewage backflow case.

The Rappolds brought a claim under the Texas Tort Claims Act (“TTCA”), alleging that the City’s wastewater treatment facility (“WWTF”) failed in its operation, causing raw sewage and stormwater to cover portions of the Rappolds’ property several times over the course of three years.  The City requested discovery to which Rappold objected.  The trial court considered the plea prior to the City’s motion to compel discovery. The first sewage backup event was allegedly due to an electrical failure in the pumps while the remaining were due to high levels of rain creating too much waterflow for the pumps to handle. The plea was denied and the City appealed.

The court first held that identifying a specific person in the pleadings is not necessary to establish causation, only that a City employee acted negligently within the course and scope of their duties. It also disagreed with the City’s claim that the Rappolds’ claim indicates non-use and, similarly, fails to show operation. The court points to allegations that the City failed to properly maintain the WWTF and that the City’s employees were not using the WWTF as designed. These additional allegations created a sufficient nexus between the damage and the City’s actions to adequately allege that the City was negligently using the motor-driven equipment. Similarly, the City employees’ knowledge that the WWTF is unable to handle large amounts of water it receives at times indicates negligence in continuing to operate the pumps in such a condition. The court also found proper pleading of the “condition or use of tangible personal property”  as different components failed at different times.  Finally, it held that the Rappolds were able to properly plead a takings claim by alleging that the City’s knowledge of the WWTF’s inadequacy resulted in the City using the Rappolds’ land as an overflow depository.

If you would like to read this memorandum opinion, click here. Panel consists of Justice Molberg and Justice Carlyle. Memorandum opinion by Justice Carlyle.