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.

Plaintiff’s notice was sufficient under § 101.101 of TTCA

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Metro. Transit Auth. of Harris County v. Hunter, 14-18-00822-CV, (Tex. App.—Houston [14th Dist.] Aug. 18, 2020, no pet. h.)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a slip/fall case filed against Metropolitan Transit Authority of Harris County, Texas (Metro).  The Fourteenth Court of Appeals affirmed the denial.

Metro filed a plea to the jurisdiction asserting that Plaintiff, Bridget Hunter’s (“Hunter”), personal injury suit was jurisdictionally barred because she to failed provide proper notice under the Texas Tort Claims Act. Hunter filed her personal injury suit against Metro within six months of the incident made the basis of her suit. Metro, while acknowledging a notice was filed within six months, argued it failed to have all the minimum statutory requirements. The trial court denied Metros’ plea and Metro appealed.

The court found that Hunter’s petition met all Texas Tort Claims Act (TTCA) statutory notice requirements. Specifically, she alleged (1) the damage or injury claimed, that Hunter “suffered serious personal injuries,” and that she was also seeking damages. She alleged the time and place of the incident by alleging that she sustained personal injuries on February 20, 2017, on a bus in Harris County, Texas, while the “bus driver was driving bus route 028 within the course and scope of employment for Defendant METRO. Plaintiff was picked up at Stop Id: 12198 approximately at 8:30 A.M. on February 20, 2017.” “After Plaintiff boarded the bus, she slipped and fell on a watery substance twice. Subsequently, the bus driver negligently continued driving after seeing that Plaintiff had fallen.” The court found that the language contained in Hunter’s first amended petition met the TTCA’s explicit notice requirement and affirmed the trial court’s denial of Metro’s plea.

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

Plaintiff properly alleged premise defect claim for valve cover protruding through worn roadway but failed to establish waiver under any other theory

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The City of Beaumont v. Raul Isern, 09-19-00451-CV, (Tex. App – Beaumont, Aug. 13, 2020)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a personal injury/premise defect case. The Beaumont Court of Appeals affirmed in part and reversed in part.

Plaintiff Isern asserts he was injured when he struck a water valve street cover on the roadway while riding his bicycle. Isern alleged that the City failed to properly inspect, repair, and Maintain its public streets, and had actual and/or constructive knowledge of the dangerous condition. According to Isern, the City allowed the condition of the roadway to deteriorate and become unsafe, causing the valve cover, which was once “flush” or level with the street, to protrude from the buckled, cracked, split, uneven, and unsafe pavement.  He asserted claims for premise defect, special defect, and the negligent use of tangible personal property. The City filed a plea to the jurisdiction, which was denied. The City appealed.

The court first held tangible personal property must do more than merely furnish the condition that makes the injury possible. As such, Isern’s pleadings fail to allege facts that affirmatively demonstrate that his injuries arose from the City’s use of tangible personal property. The court then agreed with the City that the valve cover is not a special defect. “Construing the valve cover to be an excavation or obstruction which presents an unexpected and unusual danger to the ordinary user of the roadway strains the definition of those conditions.” However, regarding the premise defect claim, Isern specifically pled that the City failed to warn about the condition despite having had actual knowledge that the condition was both unreasonably dangerous and posed an unreasonable risk of harm. Isern also asserted he had no knowledge of the dangerous condition. Isern further pled the condition was not a longstanding or permanent fixture of the roadway, and that the incident was proximately caused by the City’s negligence when it repaved the area and left the valve cover above pavement grade. Isern alleged that the City had received prior reports of accidents at the location where the incident occurred. In its response, the City produced no evidence of its lack of knowledge of the condition. Finally, while Isern properly plea a premise defect claim, he cannot assert a general negligence claim with an independent waiver of immunity under the TTCA.   As a result, the plea was properly denied as to the premise defect claim but should have been granted as to all others.

If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, and Justices Kreger and Horton. Memorandum Opinion by Chief Justice McKeithen. Docket page with attorney information can be found here.

Waco Court of Appeals held that a contract for a Water District to provide water services to a customer is not a contract that waives governmental immunity under Chapter 271 of the Local Government Code.

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Special contributing author Laura Mueller, City Attorney for Dripping Springs

Mclennan County Water Control and Improvement Dist. v. Matthew and Rachel Geer, et. al, 10-17-00399-CV (Tex. App.—Waco, July 22, 2020).

In this governmental immunity case, the Waco Court of Appeals dismissed the case against the Water District because the plaintiff failed to allege a cause of action that waives governmental immunity for breach of contract (Chapter 271 of the Local Government Code) or for negligence (Texas Tort Claims Act) for actions surrounding the turning off of the plaintiffs’ water by the District.

The plaintiffs are owners of property in the Water District.  The Water District turned off the plaintiffs’ water after it was discovered that the plaintiffs had two buildings hooked up to the same meter.  The Water District also sent an employee to the plaintiffs’ property and took pictures on-site without the plaintiffs’ consent.  The plaintiffs’ sued the Water District for breach of contract for turning off their water and for trespass under the Tort Claims Act for entering their property without permission.  The trial court denied the Water District’s plea to the jurisdiction and the Water District appealed.  The Court of Appeals held that the District’s governmental immunity had not been waived and dismissed the case.

To present a claim for breach of contract that waives immunity under Texas Local Government Code Chapter 271, a plaintiff has to allege that the contract in question is a contract “stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.”  Tex. Loc. Gov’t Code        § 271.151.  To present a claim under the Tort Claims Act, the claim has to be based on a negligent, not intentional act.  Tex. Civ. Prac. & Rem. Code § 101.021. The Court of Appeals held that a contract for water service where the service is provided by the Water District to an individual is not a contract for which immunity is waived under Chapter 271 because the Water District is not contracting to receive goods or services.  The Court also held that the intentional act of entering someone’s property without permission is not a valid claim under the Tort Claims Act, because the Tort Claims Act is for negligent acts.

If you would like to read this opinion click here.  Panel consists of Chief Justice Gray and  Justices Davis and Neill. Opinion by Chief Justice Gray.

 

 

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.