Inmate’s use of machine was not Department’s use of machine so no waiver of immunity under TTCA says Amarillo Court of Appeals

Marcus A. Tavira v. Texas Dept. of Criminal Justice 07-14-00046-CV (Tex. App. – Amarillo, February 24, 2016).

This is a Texas Tort Claims Act case where an inmate was injured by a lift machine when performing acts as part of the prison’s Community Service Squad.

Tavira was an inmate incarcerated in Childress County. He was on the Community Service Squad and was assisting with installing netting to prevent foul balls from hitting spectators. He was instructed by guards to retrieve ties to hold the netting which were located on the opposite side of a boom on the lift machine. While retrieving the ties, the machine tipped forward, striking and pinning him. As a result, he is a paraplegic paralyzed from waist down. Tavira sued the TDCJ alleging various acts of negligence. The TDCJ filed a plea to the jurisdiction which was granted. Tavira appealed.

Under the Texas Tort Claims Act the TDCJ can be liable for the negligent operation of motor driven equipment (i.e. the lift machine) by an employee. It is undisputed that inmate Altamira was operating the telehandler when Tavira was injured. Tavira alleged Altamira was the TDCJ’s “agent.” The Court found no case law indicating that an inmate on a Department work detail meets the act’s definition of an employee. In 1995, the Legislature added §101.029, which provides a waiver of the Department’s immunity for damage or injury caused under some circumstances by the negligence of a prison inmate not applicable here.  However, this addition would be unnecessary if inmates qualified as “employees.” The guard’s direction, alone, is also insufficient to establish the negligent operation of the lifter qualifying as a waiver as there is no waiver for negligent supervision. Further, nothing indicates Tavira was provided property which lacked an integral safety component. The failure to provide a helmet to perform work is different than providing property which is defective. No waiver exists and more detailed pleadings would not cure the defects. As a result, the plea was properly granted.

If you would like to read this opinion click here. Panel: Chief Justice Quinn, Justice Campbell and Justice Hancock. Memorandum Opinion by Justice Campbell.  The attorney for TDCJ is listed as Kimberly Kay Coogan.  The attorney listed for Tavira is Mark A. Dicarlo.