Under TTCA, the integral safety component doctrine turns on entity negligently providing personal property missing an integral safety component, not the non-use of property.

City of Houston v. Frank Gutkowski, Individually, Frank Gutkowski, as Representative for the Estate of Patricia Gutkowski, Deceased, Tammie Rene Gutkowski and Carl Gutkowski  14-17-00234-CV  (Tex. App—— Houston [14th Dist.], October 17, 2017)

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

Patricia Gutkowski fell out of bed and was unable to move. Her family called 9-1-1 which dispatched Houston Fire Fighters to the scene. Upon arrival, the family of Patricia Gutkowski alleged HFD personnel did not have a portable lifting device, lift board, or lift sling.  As a result, HFD personnel were unable to place Gutkowski in a proper position for lifting resulting in an injury and laceration to her leg. The laceration caused significant blood loss which allegedly caused a heart attack later that day. The Gutkowski family sued the City, which filed a plea to the jurisdiction. The trial court denied the plea and the City appealed.

The court first analyzed the pleadings and evidence and determined the Gutkowski’s claim relating to property lacking an integral safety component was actually a claim for the non-use of personal property in disguise.  While the Gutkowski family alleged the emergency service vehicle was tangible personal property lacking an integral safety component of a lifting device, they did not allege the vehicle was improperly used. They only alleged it did not have something HFD personnel should have used in the bedroom. Further, the integral safety component doctrine is limited to and turns on the governmental entity negligently providing personal property missing an integral safety component, not the non-use of certain medical equipment over others. Further, the allegation HFD personnel negligently wrapped the laceration with tangible supplies is insufficient to trigger a waiver of immunity. It is not enough that some property is involved; the use of that property must have actually caused the injury.  Here, that is not the case. As a result, the plea should have been granted.

If you want to read this opinion click here. The panel consists of Justice Christopher, Justices, Brown, and Wise. Justice Wise delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

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Fort Worth Court of Appeals held trial court was within its discretion to allow Plaintiff time to replead and produce evidence in response to jurisdictional plea

City of Bedford v. Leah Smith 02-16-00436-CV (Tex. App—– Fort Worth, October 12, 2017)

This is a Texas Tort Claims Act (“TTCA”) case involving a pedestrian falling into a manhole where the Fort Worth Court of Appeals affirmed in part and reversed in part the denial of the City’s plea to the jurisdiction.

Smith alleges she was walking across the grass to reach her apartment when she stepped onto a manhole lid which flipped open. Smith fell into the manhole and was injured.  Smith sued the City which filed a plea to the jurisdiction. The trial court denied the plea and Smith appealed.

Even though the trial court denied the plea, its order specifically held the manhole was not a special defect. The court performed a cursory analysis citing its own recent precedent and agreed it was not a special defect as it was not excavation-like in nature. Additionally, since Smith did not challenge that finding in the appeal, the plea should have been granted as to the special defect claims. As to the premise defect claims, the court simply stated the pleadings do not support a claim for premise defect. Smith also alleged a general negligence claim. However, Smith did not plead sufficient facts to establish a negligence claim for the negligent condition or use of tangible personal property. But the trial court was within its discretion to provide Smith an opportunity to amend her pleadings since the City’s evidence and the pleadings did not affirmatively negate an incurable jurisdictional defect. The trial court also has discretion to postpone its consideration of a jurisdictional plea so that the plaintiff has sufficient opportunity to produce evidence that might raise a fact issue.  The City filed its plea and held a hearing two weeks after filing an answer, so no time for discovery had elapsed. And while the court cautioned that a trial court is to make a finding on jurisdiction as soon as practical, it could not say, with the record before it, that the trial court abused its discretion in this case. As a result, the plea as was properly denied without prejudice to allow the Plaintiff an opportunity to replead and produce evidence.

If you want to read this opinion click here. The panel consists of Justice Walker, Justices, Meier, and Kerr. Elizabeth Kerr delivered the opinion of the court. The attorney listed for Smith is Steven R. Samples.  The attorney listed for the City is William W. Krueger, III.

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Dallas Court of Appeals holds immunity is waived when employees dropped elderly woman while lifting her from wheelchair

Dallas County Hospital District d/b/a Parkland Health & Hospital System v. Connie Moon, as Personal Representative of the Estate of Sandra Mercado 05-17-00538-CV (Tex.App— Dallas, October 12, 2017)

This is a Texas Tort Claims Act (“TTCA”) case involving the alleged negligent use of tangible personal property (i.e. a wheelchair) in which the Dallas Court of Appeals affirmed the denial of the hospital’s plea to the jurisdiction.

Mercado (a 72 year old woman confined to a wheelchair) was in a Parkland Hospital examination room when three Parkland employees attempted to transfer her from the wheelchair to the examination table. The employees removed the arms of the wheelchair to make the attempt, however, they dropped her in the process, fracturing her ankle.  Mercado’s estate sued Parkland for personal injuries. In response, Parkland filed a plea to the jurisdiction which the trial court denied. Parkland appealed.

Mercado’s attorney contended the wheelchair was lacking an integral safety component when the employees removed the arms and the employees, therefore, misused the wheelchair. Parkland contended Mercado’s claims were really the non-use of a “Hoyer lift and sling” as alleged in the pleadings. The court agreed Parkland retains immunity to the extent Mercado alleged Parkland should have used different equipment. The court also agreed Mercado did not properly allege the negligent “use” of the examination table as being the cause of the injury. However, Mercado’s counsel did properly allege, from a pleadings standpoint, that the negligent use of the wheelchair caused or contributed to the injury. As a result, the plea was properly denied as to the wheelchair allegations.

If you want to read this opinion click here. The panel consists of Justice Lang-Miersand Justices,   Brown, and Boatright. Justice Lang-Miers delivered the opinion of the court. To see the attorneys listed for the Appellant and Appellee’s click here.

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Texarkana Court of Appeals holds the vote and decision not to vote on District business cannot be an ultra vires claim

Kilgore Independent School District, et al. v. Darlene Axberg, John Claude Axberg, Sheila Anderson, and the State of Texas 06-17-00060-CV (Tex.App— Texarkana, October 12, 2017)

This is an appeal from the denial of a plea to the jurisdiction where property owners brought ultra vires and invalidity claims arising from the school district’s repeal of a homestead exemption. The Texarkana Court of Appeals reversed-in-part and affirmed-in-part.

Kilgore Independent School District (“KISD”) voted to repeal KISD’s local option homestead exemption (“LOHE”). That repeal came just fourteen days after Governor Greg Abbott signed Senate Bill No. 1 (“SB1”), which could potentially increase the statewide homestead exemption and forbid a local taxing authority from repealing existing LOHEs. SB1 raised the level of property values on which a school district is not allowed to tax from the first $15,000 to the first $25,000. Property owners sued alleging KISD’s repeal was invalid because it violated state law, that taxes subject to the LOHE had been illegally collected, and that KISD officials committed various ultra vires actions. KISD and the officials filed a plea to the jurisdiction, which the trial court denied. The KISD Defendants appealed.

It is not an ultra vires act for an official to make an erroneous decision while staying within its authority.  When an official is granted discretion to interpret the law, an act is not ultra vires merely because it is erroneous. It is only when these improvident actions are unauthorized does an official shed the cloak of the sovereign and act ultra vires.  If the conduct is based on the misinterpretation of the boundaries of his authority, it can give rise to an ultra vires claim.  As to the superintendent of schools, the Plaintiff failed to plead and support an ultra vires claim.  The superintendent could not and did not vote on the repeal and was improperly included merely because she was the head of the district.  Additionally, the Plaintiff failed to plead proper ultra vires claims against the Trustees. The vote or nonvote of an individual Trustee, by definition, cannot be an ultra vires act since their entire authority is to vote on district business.  But the Board is the body which makes the determination and it is the collective decision which is the act of KISD. Without the authorization of the Board, a single Trustee lacks the authority to repeal or reinstate the LOHE. The act of voting, or refraining from voting, by the Trustees as a collective body, was not outside the Trustee’s authority in this case.  However, as to KISD, the court held it was not immune from the Plaintiff’s suit. Sovereign immunity does not apply when a suit challenges the constitutionality or validity of a statute or other government enactment and seeks only equitable and/or injunctive relief.  And while a party cannot circumvent immunity by disguising a claim for money damages as a declaratory judgment action, immunity will not defeat a claim seeking the refund of illegally collected taxes or fees paid under duress. Further, the Plaintiff was not required to exhaust administrative remedies under the Tax Code because all questions in the lawsuit are questions of law. Finally, the Plaintiff was not barred by an election of remedies because the ultra vires claims against the officials and the claims against KISD are distinguishable and separate from one another.  As a result, the plea should have been granted as to the officials and denied as to KISD.

If you would like to read this opinion click here. The panel consists of Chief Justice III Morris and Justices Moseley and Burgess. Chief Justice III Morriss delivered the opinion of the court.  To see the attorneys listed for the Appellant and Appellee’s click here .

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State properly dismissed from suit alleged “falsified sovereignty”

Claudia Puentes v. The State of Texas,04-17-00258-CV ( Tex. App— San Antonio, October 4, 2017).

This is an interlocutory appeal where the San Antonio Court of Appeals affirmed the granting of the State’s plea to the jurisdiction in this §1983 case.

Puentes initially alleged she was assaulted, drugged and remove from a bar (“Brass Monkey”) and published such statements on social media. She was sued by the Brass Monkey for damages. Puentes filed counter-claims against the City, it’s PD, and a specific Officer alleging they violated her civil rights and for “falsified sovereignty.”  She then filed claims against the State of Texas for failing to train the PD’s officers and other purported constitutional violations. The State filed a plea to the jurisdiction which the trial court granted. Puentes appealed.

The court simply noted Puentes has not and cannot show any waiver of immunity for any of her claims against the State. Puentes’s claims against the State fall within three broad categories: (1) claims under 42 U.S.C. § 1983 for violations of the Constitution; (2) claims under the Texas Constitution; and (3) intentional torts. With regard to Puentes’s §1983 claims, the State has immunity from federal claims pursuant to the Eleventh Amendment. Regarding claims under the Texas Constitution, no fact pattern presented showed or could have showed a waiver of immunity. Finally, the State is immune from intentional torts and expressly excluded from the waiver found in the Texas Tort  Claims Act. As a result, the plea was properly granted.

If you would like to read this opinion click here. The panel consists of Justices Angelini, Alvarez, Rios. Justice Angelini delivered the opinion of the court. Attorney listed for Ms. Puentes is Rodolfo R. Munoz. Attorneys listed for the State of Texas are Bradford Bennett and Christopher Hilton.

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Dallas Court of Appeals holds simply because building was having roof repairs does not equate to actual knowledge of dangerous condition due to water at specific location of convention center

City of Dallas v. Leslie Papierski 05-17-00157-CV (Tex. App— Dallas, October 2,2017)

This is a Texas Tort Claims Act (“TTCA”) case and interlocutory appeal from the denial of the City’s plea to the jurisdiction. The Dallas Court of Appeals reversed and rendered in favor of the City.

The Dallas Convention Center hosted a cheerleading competition where Papierski attended with her daughter. While walking down a ramp in the arena, Papierski slipped and fell on a small puddle of water.  At approximately the same time and location, another person slipped and fell while walking up the ramp. The incidents were reported to the Convention Center. The reports stated, “building was undergoing water penetration repairs; however, no penetration had ever occurred previously in this area before.” A subsequent search of incident reports revealed no reports of past roof leaks or injuries in the area.  Papierski sued under a premise defect theory and the City filed a plea to the jurisdiction. The trial court denied the plea and the City appealed.

The 5th District Court of Appeals first held objections to hearsay, best evidence, self-serving statements, and unsubstantiated opinions are considered defects in form which require a formal ruling from the judge. Since the Plaintiff did not obtain a ruling, those objections to the City’s evidence are waived. Additionally, the affidavits challenged state the affiants are “personally acquainted” with the facts through center operations and procedures, which meets the personal knowledge requirement. Next, under invitee status which requires actual knowledge for liability, such knowledge on the part of a governmental entity requires knowledge that the dangerous condition existed at the time of the accident. Awareness of a potential problem is not actual knowledge.  The City established it did an exhaustive search for records of prior incidents of leakage in that location and were unable to locate any. Simply because the facility was having roof repairs due to leaks in other halls or areas does not mean the City had knowledge a leak created a dangerous condition at this specific location. No repair was occurring over the accident ramp. Additionally, even though some cases hold a condition which exists for a long enough period of time can attribute liability, no evidence exists in the record indicating how long the water was on the ramp. As a result, no fact question exists as to knowledge and the plea should have been granted.

If you would like to read this opinion click here. The panel consists of Justices Bridges, Fillmore, and Stoddart. Justice Bridges delivered the opinion of the court. Attorneys listed for the City are Sonia Ahmed, Barbara E. Rosenberg, Molly Parks Ward, and Jennifer Carter Huggard. Attorneys listed for Ms. Papierski are Aaron Herbert and Marissa Maggio.

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Plaintiff failed to plead ordinary negligence under Recreational Use Statute, but properly alleged gross negligence

City of Midland and Washington Aquatic Center v. Herbert Bunch, 11-16-00276-CV (Tex. App. – Eastland, September 29, 2017).

This is a Texas Tort Claims Act/Recreational Use case where the Eastland Court of Appeals reversed in part and affirmed in part a trial court order denying the City’s plea to the jurisdiction.

Bunch alleges he was visiting the Washington Aquatic Center swimming pool run by the City and paid for entry to the premises. After he sat down on a bench, the bench broke causing him to fall backwards to the ground, sustaining injuries.  Bunch sued and alleged the City knew the bench needed to be replaced and did not warn him it was rusted. He sued for premise defects and gross negligence asserting he was simply sitting on a bench to watch his son and was not engaged in recreation. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

Under the Recreational Use Statute “if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Tex. Civ. Prac. & Rem. Code §75.002(f)(West 2015). The court went through various dictionary definitions examining this subsection and determined Bunch entered the premises and was engaged in “recreation” at the time of his injury. He did not plead he was “spectating” nor did he plead he was parenting. So he did not plead a proper claim for ordinary negligence. However, he did amend his pleadings and properly allege gross negligence. He alleged that the City was “actually, subjectively aware of the risk involved” due to the rusted bench it knew needed to be replaced  “but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, which constitutes malice.” As a result, the plea should have been granted to the ordinary negligence claims but was properly denied as to the gross negligence claims.

If you would like to read this opinion click here. Panel includes Chief Justice Wright, Justice Willson, and Justice Bailey. Memorandum Opinion by Chief Justice Wright. The attorneys listed for the City are Matthew J. Coolbaugh and Aaron M. Dorfner. The attorney listed for the Plaintiffs is Stacy K. Schroeder Sustaita.

Austin Court of Appeals holds Utility Agency was immune from contract dispute regarding water service agreement

 

West Travis County Public Utility Agency v. Travis County Municipal Utility District No. 12,03-16-00880-CV (Tex.App— Austin, August 29,2017)

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a case involving immunity from a contract.

The Lower Colorado River Authority (“LCRA”) and MUD 12 entered into a water sale contract in which the LCRA agreed to provide MUD 12 with raw water from the Colorado River in exchange for specified payments. As part of the contract the MUD had to install a specific meter to measure the water flow for payments. Later, LCRA assigned the contract to West Travis County Public Utility Agency (“Agency”).  Evidence admitted at the hearing demonstrates that MUD 12 spent over $100,000 to install the Master Meter in two concrete tanks.  A dispute arose regarding the fees charged by the Agency and the MUD sued for breach of contract. The Agency filed a plea to the jurisdiction which the trial court denied. The Agency appealed.

The Agency is a governmental entity entitled to sovereign immunity. To be a proper waiver of immunity goods or services must be provided by a contractor to the governmental entity. The MUD asserts immunity is waived under Tex. Loc. Gov’t Code §271.152 because it provided goods and services to the Agency by way of the Master Meter. However, the court noted it cannot read the meaning of “services” so broadly that the requirement is read completely out of the statute. Not every “benefit” received by a governmental entity operating within a contractual relationship with another party qualifies as a “service.” The governmental entity must have a right under the contract to receive services—even under a broad interpretation of that term—because otherwise the benefits incidentally accruing to it would be too “indirect.”   The Agency had no contractual right to receive any services from MUD. Had MUD 12 not installed the Master Meter—for whatever reason—there would be no contract upon which to sue. Additionally, an “essential term” to the contract is the amount the governmental entity has agreed to pay the claimant for the “service.” No such payment terms were present.  As a result, the contract does not fall under the waiver of immunity. The plea should have been granted.

Justice Pemberton concurred and dissented. He believed immunity was waived under the contract, but only for direct damages and attorney’s fees. The specific performance claims were barred.

If you would like to read this opinion click here.  The panel consists of Justice Puryear, Pemberton, and Goodwin. Justice Puryear delivered the opinion of the court. Justice Pemberton delivered the concurring and dissenting opinion. If you would like to see this opinion click here. Attorney’s listed for West Travis County Public Utility Agency are Mr. James F. Parker III, Mr. David Klein and Mr. Jose E. De La Fuente. Attorneys for Travis County Municipal Utility District No, 12 are Ms. Mary Byars, Ms. Jane M.N. Webre.

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Trial court properly denied plea in vehicle accident case since City officer saw Plaintiff rubbing his back noting he had “a slight pain”

 City of San Antonio v. Carlos Mendoza 04-17-00168-CV (Tex.App— San Antonio, September 13, 2017)

This is a Texas Tort Claims Act (“TTCA”) case involving the alleged negligent operation or use of a motor vehicle in which the San Antonio Court of Appeals affirmed the denial of the City’s plea to the jurisdiction.

Officer Gonzales, an on-duty San Antonio City Park Police Officer rear-ended a van driven by Carlos Mendoza. Gonzales’s supervisor, Fidencio Herrera, arrived at the scene to investigate and spoke to Gonzales and Mendoza. Herrera prepared investigative reports concerning the accident. Over a year later, Mendoza sued under the TTCA and alleged the City was provided actual notice of its fault in the accident. The City filed a plea to the jurisdiction which was denied. The City appealed.

The sole issue on appeal was whether the City had actual notice that Mendoza was injured as a result of the accident. It was undisputed the reports satisfied all other requirements of the actual notice provisions. Mendoza did not request medical attention at the scene. To establish knowledge of an injury, it is not necessary that the governmental unit be absolutely certain of the nature and extent of the injury. At the scene, Gonzales asked Mendoza if he was “ok” and Mendoza responded, “I got a slight pain” and began rubbing his back and stretching down.  Gonzales did not reference the comment in his reports. Neither did Herrera.  The City argued either Gonzales did not hear Mendoza or interpreted them to mean he was not injured. However, the court held, under the standard of review, it must presume the facts which support the trial court order, which was a denial. The City next argued Mendoza’s statements were “too vague and indefinite” to provide the City with actual notice of his alleged injuries. However, Mendoza did more than simply state he had a slight pain; he rubbed his back and stretched downward to stretch his back. As a result, there was evidence to support the trial court’s implied finding that the City had knowledge of Mendoza’s injury, requiring a denial of the plea.

If you would like to read this opinion click here. The panel consists of Justices Angelini, Chapa, and Rios. Justice Angelini delivered the opinion of the court. Attorneys listed for the Appellant are Nathan Mark Ralls and James Leech Jr.   Attorneys listed for the Appellee are Shannon Kathleen Dunn, Beth Watkins, Stephanie De Sola, Nadine Rodriguez, and Fidel Rodriguez Jr.

 

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District immune from suit challenging the validity of district actions, but Plaintiff entitled to replead as ultra vires claim

 Bexar-Medina-Atascosa Counties Water Control and Improvement District No. 1 (Cross-Appellee) v. Bandera County River Authority and Groundwater District (Cross-Appellant) 04-16-00536-CV (Tex.App— San Antonio, September 13, 2017)

This is a declaratory judgment case between two local governmental entities. The San Antonio Court of Appeals held no jurisdiction was present in the pleadings but remanded to allow Appellant the opportunity to amend as an ultra vires case.

Bandera County River Authority and Groundwater District (“Bandera Water District”) sued Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1’s (“BMA”) seeking a declaratory judgment that BMA has no jurisdiction in Bandera County to perform water well and surface water regulatory acts such as well inspections, well investigations, and enforcement of water regulations. BMA filed a plea to the jurisdiction which the trial court denied. The parties filed competing summary judgment motions. The trial court granted Bandera Water District’s motion and denied BMA’s motion. After a hearing on attorney’s fees, both parties appealed.

BMA asserts the trial court lacks declaratory judgment jurisdiction since Bandera Water District is not challenging the validity of a law. Bandera Water District responds that it challenges “the validity of [BMA’s] exercise of its authority.”  Citing to Tex. Dep’t of Transp. v. Sefzik, 355 S.W.3d 618, 622 (Tex. 2011), the court held immunity is not waived unless the validity of an ordinance or rule is being challenged. Bandera Water District challenges BMA’s ability “to do” specific acts, not the validity of an ordinance or statute. “It is not enough for a litigant to challenge the actions of a governmental entity under a statute, ordinance, contract, or franchise; the validity of the statute, ordinance, contract, or franchise itself must be challenged for governmental immunity to be waived.”  So no jurisdiction exists against the entity of BMA. However, Bandara Water District requested the ability to amend its pleadings to allege an ultra vires claim. The court felt that was the proper mechanism for a suit challenging the legal authority to act so granted the remand.

If you would like to read this opinion click here. The panel consists of Chief Justice Marion, Justice Angelini, and Justice Alvarez. Chief Justice Marion delivered the opinion of the court. Attorneys listed for the Appellant are Peter B. Gostomski, Shawn Kevin Fitzpatrick, and Edward T. Hecker. Attorneys listed for the Appellee are Gregory M. Ellis, Mark N. Osborn and Andrew S. Miller.