Error in County records held to be the negligent use of motor-driven equipment says 14th Court of Appeals.
Kilburn v. Fort Bend County Drainage District, 14-13-00011-CV (Tex. App. – Houston [14th Dist.], August 13, 2013).
This is a Texas Tort Claim Act case where the main issue is whether the plaintiffs plead an actual negligence claim or are attempting to mask their trespass claim. The Fourteenth District Court of Appeals held a proper negligence claim was alleged. I try to normally not comment on the wisdom of a particular opinion, but for the record, I do need to say I believe they got it wrong. However please read on for yourself.
The Kilburns own a ten-acre tract of land adjacent to a creek in Fort Bend County which the County excavated to remove debris and grade its banks. It is uncontested the County erroneously believed it had an easement which would have allowed the work. By the time the error in the records was discovered the work was substantially complete. The Kilburns originally sued the County alleging trespass, but later dismissed and alleged the negligent operation or use of motor driven equipment damaged their property. The County filed a plea to the jurisdiction alleging the negligence claim was simply a recast of the trespass claim for which it has immunity. The trial court granted the City’s plea and the Kilburns appealed.
The Houston court held that even though the Kilburns did not allege the equipment was negligently used and focused on the negligence in not confirming the easement, it was still a negligence claim. It focused on the argument that the difference centers on whether an “intent” to harm is present and since there was no intent to harm, it must be negligence. The court held the County failed to raise the jurisdictional challenge that the negligent use of information is not a waiver at the trial court level and therefore disregarded the argument on appeal. The court did state in a footnote that it believed the negligent use of information argument would still fail because the cases holding the failure to use information came under recasting of negligent use of tangible personal property, not motor-driven equipment, so were not applicable. As a result, the Kilburns properly alleged a negligence, not trespass, claim and the order granting the plea to the jurisdiction is reversed.
If you would like to read this opinion click here.