City immune from wrongful death claims at airport since independent contractor was in charge of trains

The City of Houston v. Ranjel,et al, No. 14-12-00458-CV (Tex. App. – Houston [14th Dist.], August 1, 2013).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case.  The incident occurred at the Bush Intercontinental Airport (the Airport) owned by the City of Houston. The Airport has a complex automated people mover or APM system which is a remotely controlled, above-ground train that transports passengers along elevated guideways from terminal to terminal.  Houston retained Johnson Controls, Inc. to operate and maintain the APM due to its complexity in operation. During an expansion project, a Johnson employee, let three contractor employees into a new guideway area to finish part of the expansion work. The work area was separate from the area which was in operation; however, at some point several contractor employees walked into the operational area and were struck by trains. Different lawsuits were brought but ultimately were consolidated.  The estates of the employees sued the City of Houston alleging the City did not provide a safe operating system, negligently operated the trains, failed to have safety policies and failed to maintain the system properly.

The evidence shows that Houston owned the APM system but did not operate or maintain it on a day-to-day basis because its employees lacked the knowledge and expertise to do so. Johnson operated and maintained the system and Houston had no involvement. Houston had no ability to directly affect the daily operation of trains other than shutting down electrical main feeds. It is undisputed that at the time of the train strike and immediately beforehand, there were no Houston employees present in the Control Center.

The 14th District Court of Appeals held that for a waiver to exist under the TTCA, a governmental employee must be the one operating, taking control of or using the motor-driven equipment or tangible personal property. Therefore, even though the APM is motor driven equipment, there is no waiver of immunity here. The court seemed to focus heavily on the fact that Houston had no contractual right to override the direct operation of the APM and Johnson was a truly independent contractor (not an employee). And since Johnson’s cross-claim for contribution is derivative of the plaintiff’s claims, there is likewise no waiver of immunity.  The court reversed and rendered dismissing all claims against the City.

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