Use of backhoe to create access hole was not enough to establish nexus of damage to property due to debris entering pipes says 14th Court of Appeals

The City of Houston v. Kelley Street Associates, LLC, 14-14-00818-CV (Tex. App. – Houston [14th Dist.], November 30, 2015).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a Texas Tort Claims Act (“TTCA”) case in which the Fourteenth Court of Appeals reversed and dismissed the Plaintiff’s claims.

Two water utility workers were dispatched to an area to deal with a flooded street. They utilized a backhoe to lift up a slab of concrete sidewalk to get to a valve and replaced it using various hand tools. Kelley sued the City alleging its office building was damaged by flooding after the City repaired a water meter and valves in front of its office building.  Essentially, Kelley alleges that in using the backhoe (i.e. motor driven equipment), the workers loosened debris which entered the piping system rupturing the plumbing in its building, causing flooding and damage. The City filed a plea to the jurisdiction which was denied. The City appealed.

The Texas Supreme Court has “consistently required a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff’s injuries” under the Texas Tort Claims Act. The City contends there was no nexus between the City’s use of the backhoe and Kelley’s alleged flooding because the backhoe was used only to remove the concrete sidewalk for access, was then shut down, and hand tools were used to open the pipe. For liability to attach, the use of a motor-driven equipment must have actually caused the injury. After analyzing the facts, the court held the operation of the backhoe did no more than furnish a condition making the alleged damages possible.  The court focused on the fact hand tools were used primarily to get at the pipe and valve and the backhoe simply lifted the sidewalk to allow access. Even if the backhoe dislodged rocks, dirt, and debris, the operation and use of the backhoe did not cause the debris to enter the open pipe. When the City’s workers ceased using the backhoe, the wheel valve had not yet been removed and the pipe had not yet been exposed for any rocks or debris to enter. Use of the hand tools exposed the pipe and created an opportunity for entry of rocks or debris.  As a result, there is no waiver of immunity and the claims were dismissed. [Comment: Under the TTCA, a plaintiff only gets damages for injury to property if caused by the negligent use of motor driven equipment. Personal injury damages are allowed for negligent use of tangible personal property, but not property damage.]

If you would like to read this opinion click here. Panel: Justice Boyce and Justice Donovan. Memorandum Opinion by Justice Boyce.  The attorneys listed for the City are Robert W. Higgason and John B. Wallace.  The attorney listed for Kelly Street Associates is H. Miles Cohn.