City of Smithville v. Thomas Watts, 03-13-00173-CV (Tex. App. – Austin, December 13, 2013).
This is an appeal arising from the denial of a plea to the jurisdiction in a car accident case under the Texas Tort Claims Act (“TTCA”). The Austin Court of Appeals reversed the denial and dismissed Watts’ claims.
Members of the Smithville Volunteer Fire Department (VFD) were returning from a call when the driver lost control of the fire truck due to a back tire blowout and collided with Watts’s vehicle. He sued the City only asserting a failure to properly maintain and repair the truck and tires and breach of express and implied warranties of merchantability. The City responded with a plea and evidence asserting 1) the VFD is a separate entity from the City and 2) there is no waiver of immunity under the TTCA. The City did concede that the City maintained the truck, but only at the request of the VFD who housed the truck and no repair request came in. Watts countered with evidence of nominal payments arguing the volunteers were paid employees. The trial court denied the plea and the City appealed.
Going through a phrase-by-phrase analysis of Tex. Civ. Prac. & Rem. Code §101.021(1)(A) (i.e. the operation or use of motor vehicle section) the court held that failure to properly inspect, maintain, or repair a truck does not satisfy the nexus requirement for the limited waiver under §101.021. And since the VFD is a separate entity and the operation of the vehicle was not done by a paid City employee (nominal payments do not count) there is no connection between the blowout and the negligence of a City employee. Watts also attempted to argue in his briefing §101.021(2), misuse of tangible personal property. However, the court noted the pleadings only assert negligent maintenance and it was the VFD, not the City, who “used” the property. It reversed the denial and dismissed all claims.
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