Special contributing author Laura Mueller, City Attorney for Dripping Springs
David E Shaw v. City of Dallas, 05-19-01233-CV (Tex. App.—Dallas, July 27, 2020) (mem. op.).
In this Texas Tort Claims Act, the Court of Appeals upheld the trial court’s dismissal of the pro se plaintiff’s Tort Claims Act action against the City.
The plaintiff called an ambulance after suffering severe stomach pain. He alleges that the driver of the ambulance hit potholes on the way to the hospital exacerbating his injuries. The plaintiff had surgery to fix the stomach issue. The plaintiff sued the City under the Tort Claims Act pro se arguing that the bumpy ambulance ride exacerbated his stomach injury. The City argued that there was no evidence that the ambulance ride caused the injury because the stomach injury was a pre-existing condition. The trial court dismissed the plaintiff’s claims for lack of sufficient evidence.
In order to waive the government’s immunity through the Tort Claims Act, the plaintiff has to allege that the government employee caused an injury. Despite the court’s liberal construction of the pro se plaintiff’s petitions and evidence, the only evidence presented that alleged wrongdoing by the City occurred was the statement by the nurse practitioner that the bumpy ride might have “add[ed] more pain to the abdomen area.” The Court of Appeals agreed with the trial court that this statement alone was insufficient to waive immunity. The Court also noted that it does liberally construe pro se plaintiff pleadings but has to hold a pro se plaintiff to the same procedural standard as a plaintiff with counsel in order to avoid giving a pro se applicant an unfair advantage.
If you would like to read this opinion click here. Panel consists of Justices Myers, Partida-Kipness, and Reichek. Opinion by Justice Amanda L. Reichek.