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.

Tyler Court of Appeals holds District is immune from sewer backup as 20 year old plastic coupler which failed was not part of the motor system

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Sean Self v. West Cedar Creek Municipal Utility District, 12-20-00082-CV, (Tex. App – Tyler, Jan. 6, 2021)

This is an appeal from the granting of a plea to the jurisdiction in a sewage backup case in which the Tyler Court of Appeals affirmed the order.

Self and his wife Kimberly entered into a contract with the District in 2012  water and sewer services. After sewage backed up into their home in April 2015, the District made some repairs to the vault system. Another backup occurred in 2016 and Sean Self sued the District alleging negligent use of motor-driven equipment, premises defect, unconstitutional taking, non-negligent nuisance, and breach of contract. The District filed a plea to the jurisdiction, which was granted. Self appealed.

It is undisputed that a plastic coupler (known as a quick connect) failed causing the backup. Self argued the motors, pipes and couplers are all one system. The court explained in detail how the Self system worked. The coupler gives District employees the ability to remove the pump without cutting pipes. There is no motor in the coupler. It merely assists in disconnecting the pump if it needs to be worked on. If the coupler fails, gravity will cause any sewage coming from a higher-grade property to backfill Self’s property. Self’s expert plumber testified the pumps used can cause high pressure, which could potentially break the coupler, but he did not know that is what occurred in this instance.  However, there was no evidence that the coupler assists in sewage collection other than to the extent it helps maintain the connection between the pump and the discharge line. The evidence shows that, if the coupler breaks, whether the pump is on or not, the sewage in the tank would flow out to the ground or through the line in the tank and back into the house, due to the force of gravity, not the operation or use of motorized equipment. Under a premise defect theory, the duty owed by an owner of premises to an invitee is not that of an insurer. The coupler was placed in 1995. The fact that materials deteriorate over time and may become dangerous does not itself create a dangerous condition, and the actual knowledge required for liability is of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. No evidence of actual knowledge existed. In the context of an inverse condemnation claim, “the requisite intent is present when a governmental entity knows that a specific act is causing identifiable harm or knows that the harm is substantially certain to result.” A taking cannot be established by proof of mere negligent conduct. No knowledge of intent is present. While Self alleged a claim for non-negligent nuisance, there is no separate waiver of governmental immunity for nuisance claims. Finally, as to the breach of contract claim, no goods are services were provided to the District, it was the District providing services to Self. As a result, no waiver of immunity exists.

If you would like to read this opinion click here. Panel consists of Chief Justice Worthen, and Justices Hoyle and Neeley.  Affirmed. Opinion by Justice Neeley. Docket page with attorney information found here.

The Eleventh Court of Appeals held that failure to monitor or provide medical care for an inmate who was injured in a county jail is insufficient to waive immunity under the Tort Claims Act.   

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

James Garms v. Comanche County, No. 11-19-00015-CV (Tex. App.—Eastland   December 18, 2020) (mem. op.).

In this appeal from a trial court’s judgment granting the city’s plea to the jurisdiction on a tort claims case, the Eastland Court of Appeals affirmed the trial court’s grant of the plea because injuries allegedly caused by failure to monitor or provide medical care is a nonuse of tangible personal property which does not waive immunity under the Tort Claims Act.

The plaintiff sued the county after he was injured in the county jail.   The plaintiff was an inmate in the county jail when he was injured.  He had informed the jail staff that he felt unwell and his blood pressure was checked.  Despite a high blood pressure reading, the duty nurse was not notified and the plaintiff was not monitored.  The plaintiff lost consciousness and sustained a serious head injury.  The plaintiff was left unattended with a serious head injury which caused further issues.  The plaintiff sued the county for negligence caused by a faulty motorized camera and failure to monitor and provide medical care to the plaintiff. The trial court granted the county’s plea to the jurisdiction.

Immunity from a governmental function can be waived under the Tort Claims Act if the injury is caused by: (1) the operation or use of motor-driven equipment; or (2) use of tangible of personal property.  Tex. Civ. Prac. & Rem. Code § 101.021.  The plaintiff must also show a nexus between the injury and the uses listed in the Tort Claims Act.  LeLeaux v. Hampshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992).  Claims based on inaction of government employees or nonuse of tangible property are insufficient to waive immunity under the Tort Claims Act.  Harris Cty. v. Annab, 547 S.W.3d 609, 614 (Tex. 2018).  The court of appeals held that the claims for failure to monitor or provide medical care did not waive the county’s immunity.  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 Chief Justice Bailey and  Justices Trotter and Wright. Opinion by Justice W. Stacy Trotter.

 

First Court of Appeals holds transporting patient to hospital was Texas Medical Liability Act claim, but passenger’s claim was proper under TTCA

City of Houston v. Najla Hussein and Asha Obeid, No. 01-18-00683 (Tex. App. — Houston November 19, 2020) (mem. op.).

This is a case involving the interplay between the Texas Tort Claims Act (“TTCA”) and Texas Medical Liability Act (“TMLA”) stemming from a single motor vehicle collision. The City appealed the trial court’s order denying its motion for summary judgment and its motion to dismiss the negligence suit brought by plaintiffs, Najla Hussein and Asha Obeid.

Hussein’s mother, Obeid, was suffering chest pain and called 911 in response. First responders arrived and placed Obeid in the ambulance and began to transport Hussein and her mother to a hospital.   Mid transport, Obed made a request to be transported to a different and specific hospital. In response to her request, the ambulance exited the tollway and while driving through a narrow toll booth, the left and right sides of the ambulance struck the booth allegedly causing injuries to Obed and her daughter. Plaintiffs filed suit alleging the negligent operation of a motor vehicle. The city filed a motion for summary judgment asserting the application of the TTCA’s “emergency responder exception” while also moving to dismiss their claims arguing that they constitute health care liability claims under the TMLA.  The trial court denied both motions.

In considering the City’s motion to dismiss under the TMLA, the court of appeals determined that Obed’s claim constituted a health care liability claim, and as such, was required to submit an expert report, with a curriculum vitae for the expert whose opinion is offered, on a defendant physician or health care provider within 120 days of the filing of the City’s answer. See Tex. Civ. Prac. & Rem. Code Ann. §§ 74.001(a)(13), 74.351(a),(b). As no expert report was submitted, the court dismissed Obed’s claim with prejudice, reversing the trial court’s judgment. However, the TMLA claim related only to the mother (Obed) who was receiving treatment, not to Hussein.  As to Hussein’s claim for personal injuries under the TTCA, the emergency responder exception requires the driver to be responding to an emergency.  While lights and sirens were used when traveling to Obed’s location, her EKG was normal, and no lights and sirens were on when he impacted the toll barriers. As a result, a fact question exists on whether an emergency existed.

If you would like to read this opinion click here. Panel consists of Chief Justice Radack, Justice Goodman and Justice Countiss. Memorandum Opinion by Justice Countiss.

Beaumont Court of Appeals held Plaintiff failed to overcome emergency responder exception under Texas Tort Claim Act in vehicle accident case

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Texas Dept. of Pub. Safety v. Kendziora, 09-19-00432-CV (Tex.App.—Beaumont, Nov. 5, 2020)

This is an interlocutory appeal from the denial of Texas DPS’s plea to the jurisdiction in a case involving a car accident while a DPS trooper (“Chapman”) was responding to an emergency. The Beaumont Court of Appeals reversed the denial.

Chapman was responding to a call reporting one hundred people fighting at a sports complex. En route, he approached a red light with his lights and siren activated, activated his airhorn, and slowed to a near stop while clearing the intersection. He looked both ways while crossing the intersection and cleared multiple lanes before being struck by Kendziora. Kendziora filed suit under the Texas Tort Claims Act (“TTCA”) for personal injuries sustained from that collision. DPS put forth the emergency exception defense under TTCA, which preserves immunity if the employee was in compliance with applicable law or was not acting recklessly. Chapman testified that he considered the nature of the emergency in deciding to respond immediately and urgently, while still ensuring vehicles at the intersection were stopped before proceeding. Kendziora testified that she did not hear any sirens or see any police lights prior to the collision.

The Court of Appeals held that Kendziora failed to raise a fact issue as to whether Chapman acted recklessly when he entered the intersection. She did not present any evidence showing Chapman failed to slow as necessary before entering the intersection or that he acted recklessly. Kendziora argued that the dashcam video is evidence of the reckless actions, but the video was not tendered or admitted into evidence in the lower court and was not part of the appellate record.

If you would like to read this memorandum opinion click here. Panel consists of Chief Justice McKeithen, Justice Kreger, and Justice Johnson. Opinion by Chief Justice McKeithen.

The Sixth Court of Appeals affirmed the dismissal of TTCA case because the trial court was not required to review a late-filed amended petition in making its decision on summary judgment. 

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Raul Gonzales v. City of Farmers Branch, No. 06-20-00054-CV (Tex.App.—Texarkana  November 5, 2020) (mem. op.).

This is a Texas Tort Claims Act (“TTCA”)/vehicle accident case where the Texarkana Court of Appeals affirmed the trial court’s summary judgment in favor of the City.

The plaintiff was a passenger in a vehicle where a police officer shot and killed the driver of the vehicle.  The plaintiff alleged that the city negligently trained and supervised its officers and for reckless use of the firearm.   The city filed a plea to the jurisdiction and a motion for summary judgment arguing that the plaintiff’s claims were for intentional torts for which the city retains immunity.  The trial court granted the city’s plea to the jurisdiction and summary judgment, dismissing the plaintiff’s claims.  On the same day, the plaintiff filed an amended petition.  The plaintiff appealed the trial court’s judgment arguing that: (1) he should have been allowed to speak at the non-jury trial; and (2) that the trial court should have taken into consideration his late amended petition before issuing its judgment.

The court held that amended petitions must be filed within seven days of the date of a summary judgment proceedings or have leave of the court before being filed. Tex. R. Civ. P. 63;  Horie v. Law Offices of Art Dula, 560 S.W.3d 425, 431 (Tex. App.—Houston [14th Dist.] 2018, no pet.).  The court of appeals noted that no trial was held in this case, it was decided by summary judgment, and thus there was no trial for the plaintiff to be excluded from.  Further, the court held Gonzales did not appeal the dismissal on substantive grounds and only argued the amended petition should have been considered.  The court of appeals affirmed the trial court’s judgment dismissing the plaintiff’s claims because the plaintiff did not request leave to file the amended petition as required by the Rules of Civil Procedure.

If you would like to read this opinion click here.   Panel consists of  Chief Justice Morriss and Justices Burgess and Stevens. Opinion by Chief Justice Josh R. Morriss, III.

Plaintiff failed to allege breach of heightened burden under Recreational Use Statute, but should be given opportunity to amend holds Fort Worth Court of Appeals

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The City of Fort Worth v. Wesley Rust, 02-20-00130-CV (Tex. App. – Fort Worth, Oct. 22, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”)/Recreational Use Statute (“RUS”) case.

Plaintiff Rust was injured at a municipal golf course when his city-owned golf cart (Cart #60) unexpectedly accelerated, causing Rust to fall out of the cart. Rust alleges the accelerator pedal became dislodged and stuck behind the brake pedal causing the acceleration. Rust sued under the TTCA asserting a waiver of immunity due to a dangerous condition of tangible personal property—the golf cart.  The City filed a plea to the jurisdiction which was denied. The City appealed.

Texas law provides that if a landowner gives permission to another to enter his premises for recreation, the RUS limits that landowner’s liability to only those actions that were intentional or grossly negligent. The Recreational Use Statute limits the Tort Claims Act’s waiver of governmental immunity by lowering the duty of care owed to a person who enters and engages in recreation on a governmental unit’s property. While Rust argues this interplay between the RUS and TTCA is limited to claims involving motor-vehicle accidents or premise liability, the court was not persuaded. The plain language of the RUS states that it applies to governmental landowners even to the extent their immunity might be waived under the entire chapter of the TTCA, not merely a specific subsection.  Therefore Rust did not alleged a waiver of immunity.  While Rust also asserts factual questions exist which prevent granting the plea, Rust failed to meet the initial burden to properly plead a waiver. The court held “If we were to search for a fact issue on the City’s gross negligence, it would relieve Rust of his burden to allege facts giving fair notice of a waiver of immunity under the TCA as limited by the RUS.” So, it declined to review the factual evidence. However, the court noted the pleadings do not affirmatively demonstrate incurable defects in jurisdiction, so Rust should be permitted to amend his pleadings to allege gross negligence.

If you would like to read this opinion click here. Panel consists of Justice Gabriel, Justice Kerr and Justice Bassel.  Opinion by Justice Gabriel.

 

The First Court of Appeals held employment discrimination claims cannot be brought under the TCHRA in state court where the same claims were previously dismissed in federal court.     

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Suran Wije v. David A. Burns and Univ. of Texas, No. 01-19-00024-CV (Tex. App.—Houston [1st Dist.] September 3, 2020) (mem. op.).

In this employment discrimination claim, the plaintiff sued a University official and the University for discrimination after he was unable to be re-employed by the University.  The Court of Appeals held that the University retained its immunity.

The plaintiff was an employee at the University from 2000-2005.  While there he made complaints regarding IT issues to his boss.  Years after resigning from the University in 2005, the plaintiff attempted to get a new position at the University but was unsuccessful.   The plaintiff found out he had been “blacklisted.” He sued the University in federal court after receiving a right to sue letter from the EEOC.  The plaintiff alleged that he was being discriminated against by the University and that his personnel file had misinformation in it.  The federal court dismissed his claims with prejudice and so he filed his claims in state court.  The claims included TCHRA claims, a 1983 claim, fraud, defamation, and negligence claims under the Texas Tort Claims Act. The trial court granted the University’s plea to the jurisdiction and the plaintiff appealed.

The State and state agencies, like the University, retain their immunity from federal sec. 1983 claims.  Moore v. La. Bd. of Elementary & Secondary Educ., 743 F.3d 959, 963 (5th Cir. 2014).  University officials also retain immunity.  The TCHRA contains an election of remedies and disallows suits under the TCHRA if the claims involved have already been adjudicated by a different court.  Tex. Labor Code § 21.211; City of Waco v. Lopez, 259 S.W.3d 147, 155 (Tex. 2008).  The Texas Tort Claims Act claims must be negligence claims that cause injury to a person or damage to property under its narrow waiver and does not allow for intentional tort claims. Tex. Civ. Prac. & Rem. Code Ch. 101.   The Court of Appeals held that the University’s immunity had not been waived for any of the claims because: (1) they retain immunity for sec. 1983 claims; (2) his TCHRA claims were barred because they had already been brought to another court; and (3) neither his negligence or intentional tort claims met the requirements of the Texas Tort Claims Act.

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

The First Court of Appeals held City EMS providers are “health care professionals” therefore claims related to emergency medical services must be brought as health care liability claims requiring expert reports.  

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Houston v. Shirley Houston, No. 01-19-00255-CV (Tex. App.—Houston [1st Dist.] August 25, 2020).

In this medical negligence case, the plaintiff sued the City after being injured during her ambulance transport.  The Court held she had to bring a health care liability claim and dismissed the suit for failure to provide the required expert report.

The City’s emergency medical staff dropped the plaintiff from a gurney while transporting her the ambulance.  The plaintiff was injured.  The plaintiff sued the City as a negligence claim and not as a health care liability claim. The City argued the claim should be dismissed for not filing the statutorily required expert report as a health care liability claim.  The trial court denied the City’s motion to dismiss.  The City appealed.

A claim is a health care liability claim under the Texas Medical Liability Act if the injury is caused by “(1) whether the defendant is a physician or health care provider; (2) whether the claim at issue concerns treatment, lack of treatment, or a departure from accepted standards of medical care, or health care, or safety, or professional or administrative services directly related to health care; and (3) whether the defendant’s act or omission complained of proximately caused the injury to the plaintiff.”  See Tex. Civ. Prac. &  Rem. Code Chapter 74.  The Court of Appeals held that EMS for the City is a “health care provider” because emergency services providers are included in the definition of health care institution, regardless of the fact that the City is a political subdivision.  Id.  The Court provided a long list of health care liability claims brought against political subdivisions as examples.  Next, the Court held that the claim involves an allegation with a nexus between the injuries and the provision of medical care including that the gurney was a piece of medical equipment and she was being transported for medical care when the injuries occurred.  See  Ross v. St. Luke’s Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).  Finally, the Court held that the location of the injury does not determine whether it is a health care liability claim.  Because the Court determined that the claim is a health care liability claim, an expert report was required, but never filed by the plaintiff.  The claim should have been dismissed.

If you would like to read this opinion click here.   Panel consists of Justices Kelly, Hightower, and Countiss. Opinion by Justice Julie Countiss.

El Paso Court of Appeals holds under Texas Tort Claims Act that a proper jurisdictional analysis should “not involve a significant inquiry into the substance of the claims.”

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City of El Paso, Texas v. Joanna Cangialosi, 08-19-00163-CV (Tex. App. – El Paso, Aug. 31, 2020).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claim Act (“TTCA”) automobile accident case. The El Paso Court of Appeals affirmed the denial.

Cangialosi was approaching a red stoplight. A vehicle driven by Aaron Roacho approached Cangialosi’s car from the rear at a high rate of speed, failed to stop, and struck Cangialosi’s vehicle with enough force to drive it into two other vehicles, killing several passengers. El Paso police officers were conducting surveillance in a residential neighborhood to investigate a spate of recent house burglaries. When police began following two suspects, the suspects increased their speed to avoid apprehension.  Six other El Paso police vehicles joined the pursuit, but Plaintiffs allege only one was a marked police unit that had its lights and siren engaged. They then lost sight of the vehicle.  The suspect vehicle (who testified he was not aware he was being followed by police) struck Cangialosi’s car.  Officer Villalobos, prior to the Cangialosi’s collision, struck another car due to his speed. The petition alleges that the manner in which the officers conducted the pursuit proximately caused the collision.  The City’s police department brought disciplinary charges against Villalobos and another officer, which were sustained as violating a safety practice and excessive speed (60mph in 30 zone). After Cangialosi filed suit, the City filed a plea to the jurisdiction which was denied. The City appealed.

The City first asserted that no evidence existed a “pursuit” was underway so failing to follow the pursuit policy is irrelevant. The court held given that officers had witnessed an apparent break-in by the two-vehicle occupants, there is at least some evidence the police intended to apprehend the suspects.  Moreover, the record contains at least some evidence of a violation of department policy.  The Texas Supreme Court has agreed that a “peace officer’s flawed execution of policy gives rise to a colorable negligence claim.”  While expressing no opinion on whether negligence actually exists, the Court held sufficient pleadings and evidence creating factual disputes exists to establish jurisdiction and submit to a jury. The City next argued the suspect testified he was not aware that any vehicle was following him, so any pursuant could not have caused the accident. However, since the City did not respond to the Plaintiff’s arguments as to factual issues which may exist, the Court simply held it was not the role of the court to divine responses to well-articulated and facially plausible arguments.  Therefore, it held the Plaintiff has at least raised a fact question as to whether the suspect driver appreciated that the police were in pursuit at the time of the crash. A plaintiff is not required to “put on their case simply to establish jurisdiction.”  The plea was properly denied.

If you would like to read this opinion click here. Panel consists of Chief Justice Alley, and Justices Rodriguez and Palafox. Opinion by Chief Justice Alley.

 

Dallas Court of Appeals holds City’s immunity waived when manhole cover flipped up and struck motorist

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City of Saginaw, Texas v. Brandon Cruz, 05-19-01141-CV, (Tex. App – Dallas, Aug. 27, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals affirmed in part and reversed in part.

The City had contractors working on widening a roadway.  With partial construction complete, the City opened a portion of the road.  The day the roadway portion opened, Crus started driving on the road when  a manhole cover flipped open in front of him after the preceding car drove over it.  Cruz was injured and filed suit. During litigation, the City responded to admissions, but later discovered the admissions were incorrect and based on an incomplete copy of the construction contract.  The City moved to amend its admissions and filed a plea to the jurisdiction, which was denied. The City appealed.

The court agreed with the City that the only potential claim would be a premise liability claim and thereafter dismissed Cruz’s general negligence claims. Although the TTCA imposes different standards of care depending on whether the condition is a premises defect or a special defect, the City did not contest in its plea whether the manhole cover constituted a premises defect or a special defect. Cruz had only to prove that Saginaw had constructive knowledge of any alleged special defect. While the City attempted to limit the time frame of the defect to when the preceding car caused the cover to flip up, the court found the City could have and was alleged to have constructive knowledge the manhole was not affixed property and therefore constituted constructive knowledge of a special defect. While the City argued it could not have discovered the problem with the manhole as it did not control the construction site, the contract reserved the City’s right to enter and inspect the work. Further, the City’s admissions admitted a certain level of control consistent with the contract. The admissions the City sought to amend concerned the City’s control over the manhole cover and contractor work.  After analyzing the timing of the admissions and motion to amend, and noting other admissions also establish control over the site, the court held the trial court did not abuse its discretion in denying the motion to amend admissions.

Justice Schenck’s dissent held the record contains no evidence of the nature of the defect, actual knowledge of the defect, how long the defect existed, or that a reasonable inspection would have discovered the defect. The majority opinion equates to the City being strictly liable for the alleged defect, which is contrary to the law.

If you would like to read this opinion click here. Panel consists of Justices Schenck, Partida-Kipness, and Nowell. Affirmed. Memorandum Opinion by Justice Partida-Kipness. Dissenting Opinion by Justice Schenck can be found here. Docket page with attorney information can be found here.