County immune from suit brought by late Judge’s widow asserting her husband was exposed to asbestos in the Jefferson County courthouse and subsequently died.

Jefferson County, Texas v. Ellarene Farris, et al., 01-17-00493-CV (Tex. App. – Houston [14th Dist.], August 31, 2018).

This is an interlocutory appeal in a wrongful death case where the 14th Court of Appeals reversed the denial of Jefferson County’s plea to the jurisdiction.

Widow Ellarene Farris asserts her late husband, Judge James Farris, was exposed to asbestos in the Jefferson County courthouse and subsequently died. She sued Jefferson County in its capacities as premises owner and employer.  The County filed a plea to the jurisdiction, which was denied. The County appealed.

Judge Farris retired in December 1996 and passed away in 2004.  The County asserts it did not have the notice of claim within six months after the last alleged exposure, so no waiver of immunity exists. Farris’ widow contends that she had no claim, and thus no notice was required, until after Judge Farris’s death on November 5, 2004, to which she properly submitted written notice to the County. The court held the Tort Claims Act specifies that the event triggering the notice requirement is “the incident giving rise to the claim.” Tex. Civ. Prac. & Rem. Code § 101.101(a). The wrongful-death claim only could be pursued if Judge Farris himself “would have been entitled to bring an action for the injury” if he had lived. Since his last exposure was in 1996, his notice would have likewise been untimely in 2005.  As a result, Mrs. Farris’ notice was untimely.

The dissent asserts the death is a necessary element to provide notice, so the notice timeline starts to run from the date of death, not the last exposure. Judge Farris died of mesothelioma on November 5, 2004, a mere nine days after exhibiting his first symptoms of illness and nearly eight years after his last exposure. Justice Jennings would hold the notice timely.

If you would like to read this opinion click here. Panel consists of Justice Jennings, Justice Massengale and Justice Caughey. Opinion by Justice Massengale.  Dissenting opinion by Justice Jennings found here. The attorneys listed for the County are Quentin Dean Price and Kathleen Marie Kennedy.  The attorney listed for Farris are Aaron Heckaman, Justin Jenson and Jason Kyle Beale.