Election of Remedies Requirement does not bar TTCA suit against governmental unit

 
First Court of Appeals rejects City of Houston’s position, citing earlier precedent and opinions of other courts of appeals that have followed it.

 
City of Houston v. McMahon, No. 01-11-01037-CV (Tex.App.- Houston [1^st Dist.] Apr. 12, 2012, no pet. h.)

 
MEMORANDUM OPINION

The City of Houston (“the City”) appeals the trial court’s interlocutory order denying its plea to the jurisdiction.[1]  In its sole issue, the City contends that the trial court erred in denying its plea because it has immunity pursuant to subsection (b) of the election-of-remedies provision of the Texas Tort Claims Act.[2] 

In accordance with this Court’s opinion in City of Houston v. Esparza, we affirm the trial court’s order denying the City’s plea to the jurisdiction.  See No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).

Background Summary

Greta McMahon, Individually and as Next Friend of Kelsey McMahon, sued the City and its employee, Bradley Wyatt Nugent.  The petition alleges that Greta McMahon and Kelsey McMahon were riding in a car hit by a vehicle driven by Nugent, who was operating his vehicle in the scope of his employment with the City.  McMahon alleges that Nugent’s negligent and careless conduct caused the collision.  As a result of the collision, McMahon claims that she and Kelsey suffered personal injuries.

The City filed a motion to dismiss all of McMahon’s claims against Nugent.  In its motion, the City asserted, “Because plaintiff has sued both the Houston and its employee, Nugent, this Court must immediately dismiss Nugent on Houston’s motion[.]”  The City cited Tort Claims Act subsection 101.106(e), which provides, “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by a governmental unit.” [3]  The City asserted, “The language of the statute requiring dismissal of the employee on the filing of a motion by the governmental unit is mandatory.”

The trial court granted the City’s motion, dismissing Nugent from the suit.

The same day the trial court signed the order dismissing Nugent, the City filed a plea to the jurisdiction.  In its plea, the City cited Tort Claims Act subsection 101.106(b), which provides that the “filing of a suit against any employee of a governmental unit . . . immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.”[4]  The City asserted, “By filing suit against Nugent regarding the same subject matter, [McMahon] perfected [the City’s] section 101.106(b) immunity, defeating this Court’s subject-matter jurisdiction.”  In response, McMahon cited this Court’s opinion in Esparza in which we held that filing a suit against both the governmental unit and its employee invokes subsection (e) and results in an involuntary election of the governmental unit as the exclusive defendant, should the government or its employee choose to file a motion to dismiss on behalf of the employee.[5] 

The trial court denied the City’s plea to the jurisdiction.  The City now appeals the trial court’s order, raising one issue.

Standard of Review and Related Legal Principles

Governmental immunity from suit defeats a trial court’s subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction.  See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638–39 (Tex. 1999).  We review de novo a trial court’s ruling on a jurisdictional plea.  Miranda, 133 S.W.3d at 226; see Kalyanaram v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex. App.—Dallas 2007, pet. denied). 

The issue presented in this appeal requires us to interpret Tort Claims Act section 101.106.  “The meaning of a statute is a legal question, which we review de novo to ascertain and give effect to the Legislature’s intent.”  Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009); Galbraith Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009).  In construing statutes, our primary objective is to give effect to the legislature’s intent as expressed in the language of the statute.  Galbraith Eng’g Consultants, 290 S.W.3d at 867; see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005).  “Where text is clear, text is determinative of that intent.”  Entergy Gulf States, 282 S.W.3d at 437.  “This general rule applies unless enforcing the plain language of the statute as written would produce absurd results.”  Id.  We presume the legislature intended a just and reasonable result when it enacted the statute.  City of Rockwall v. Hughes, 246 S.W.3d 621, 626 (Tex. 2008).  We read a statute as a whole, interpreting and giving effect to each of its parts.  See State ex. rel. State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (quoting Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). 

Analysis

In its sole issue, the City asserts that the trial court erred in denying its plea to the jurisdiction because subsection 101.106(b) grants it immunity and bars any suit by McMahon against it arising from the automobile accident with Nugent.  McMahon responds that the City’s position is contrary to our holding in Esparza, 2011 WL 4925990, at *6.  We agree with McMahon. 

Sovereign and governmental immunity exist to protect the State and its political subdivisions from lawsuits and liability for money damages because such lawsuits hamper governmental functions by interfering with the appropriate use of tax resources.  See Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).  Even so, the State, and likewise its political subdivisions, may be sued when the legislature has statutorily waived immunity.  See id. 

The Torts Claim Act establishes a limited waiver of immunity and authorizes suits to be brought against governmental units in certain defined circumstances and with certain restrictions.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–109 (Vernon 2011 & Vernon Supp. 2011); Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).  With respect to a statutory waiver of immunity, as in the Tort Claims Act, we interpret the waiver narrowly, because the legislature’s intent to waive immunity must be clear and unambiguous.  Mission Consol. Indep. Sch. Dist., 253 S.W.3d at 655 (Tex. 2008) (citing Tex. Gov’t Code Ann. § 311.034 (Vernon 2005)).  Relevant to this case, the Act waives governmental immunity to the extent that liability arises from the “use of a motor-driven vehicle or motor-driven equipment.”  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A) (Vernon 2011).

The City does not presently dispute that section 101.021 generally waives its immunity for personal injury claims arising from an accident involving the use of a motor vehicle, such as that asserted by McMahon.  Nonetheless, the City claims that, under the procedural posture of this case, its immunity remains intact pursuant to Tort Claims Act section 101.106.[6]  That statute, entitled “Election of Remedies,” provides, in relevant part, as follows:

(a)      The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter.

(b)     The filing of a suit against any employee of a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against the governmental unit regarding the same subject matter unless the governmental unit consents.

                    . . . .

(e)      If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.

          . . . .

Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (Vernon 2011).

In Esparza—a case with a similar factual and procedural background to this case—the City made the same argument it makes here: a plaintiff who sues both the governmental employee and the governmental unit cannot maintain suit against either.  See Esparza, 2011 WL 4925990 at *3.  More particularly, the City contends that if a plaintiff, such as McMahon, originally sues both a governmental unit and its employee then, on the governmental unit’s motion, the employee must be dismissed under subsection (e) and the plaintiff’s remaining suit against the governmental unit must be dismissed under subsection (b).  According to the City, the employee is dismissed under subsection (e) and the governmental unit is immune from suit under subsection (b). 

As pointed out by McMahon, we rejected the City’s argument in Esparza.  See id. at *4, 6.  We reasoned that requiring dismissal of the claims against the governmental unit when a plaintiff sues both the governmental unit and its employee would render subsection (e) “superfluous, and its language, which does not mention dismissal of the governmental unit, would be incongruent.”  Id. at *6.  We held that the filing of a suit against both the governmental unit and its employee invokes subsection (e) and results in the plaintiff’s involuntary election of the governmental unit as her exclusive defendant, should the government or its employee choose to file a dismissal motion on behalf of the employee.  See id.  Under those circumstances, subsection (a) forever bars the claimant from pursuing her claims against the government employee, the non-elected defendant; but, subsection (b) does not simultaneously prohibit the claimant from pursuing her claims against the governmental unit, her elected defendant.  See id. at *5–6.  In sum, “[W]hile a claimant who erroneously fails to make an election has an election foisted upon her by operation of the statute, her inartful drafting does not, alone, bar her claims against both the employee and the employer.”  Id. at *6.  

Following our precedent in Esparza, we conclude that subsection (b) does not provide immunity when a claimant sues both a governmental unit and its employee.[7]  See id. at *4, 6; see also Tex. Civ. Prac. & Rem. Code Ann. § 101.106(e).  If she has otherwise complied with the jurisdictional requisites of the Tort Claims Act, McMahon is not barred by subsection (b) from pursuing her claims against the City, her elected defendant.[8]  See Esparza, 2011 WL 4925990, at *10.  We hold that the trial court properly denied the City’s plea to the jurisdiction.

We overrule the City’s sole issue.

Conclusion

We affirm the trial court’s order denying the City’s plea to the jurisdiction.

                                                                      Laura Carter Higley

                                                                      Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

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[1]         See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2011).
[2]         See id. § 101.106(b) (Vernon 2011).  
[3]         See id. § 101.106(e).
[4]         Id. § 101.106(b).
[5]         City of Hous. v. Esparza, No. 01–11–00046–CV, 2011 WL 4925990, at *6 (Tex. App.—Houston [1st Dist.] Oct. 7, 2011, pet. filed) (op. on reh’g).
[6]         The Supreme Court of Texas has stated that that “section 101.106 is an immunity statute.”  Newman v. Obersteller, 960 S.W.2d 621, 623 (Tex. 1997).  The supreme court reiterated this position in Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011).  There, the court, citing Newman, stated that section 101.106 is a statute which confers immunity.  Id. at 371 n.9 (citing Newman, 960 S.W.2d at 623).  
[7]         The City is critical of our opinion in Esparza.  Since its issuance, we have relied on and reaffirmed the reasoning of Esparza in a number of opinions.  See, e.g., Metro. Transit Auth. v. Light, No. 01–11–00747–CV, 2012 WL 252187, at *2–3 (Tex. App.—Houston [1st Dist.] Jan. 26, 2012, no pet.) (mem. op.); City of Hous. v. Tsaig, No. 01–11–00432–CV, 2012 WL 170606, at *3 (Tex. App.—Houston [1st Dist.] Jan. 19, 2012, (no pet.) (mem. op.); Tex. Dept. of Aging and Disability Servs. v. Johnson, No. 01–11–00526–CV, 2012 WL 27728, at *2 (Tex. App.—Houston [1st Dist.] Jan. 5, 2012, no pet.) (mem. op.); City of Hous. v. Marquez, No. 01–11–00493–CV, 2011 WL 6147772, at *3 (Tex. App.—Houston [1st Dist.] Dec. 8, 2011, no pet.) (mem. op.); City of Hous. v. McClain, No. 01–11–00194–CV, 2011 WL 6015697, at *2 (Tex. App.—Houston [1st Dist.] Dec. 1, 2011, pet. filed) (mem. op.); City of Hous. v. San Miguel, No. 01–10–01071–CV, 2011 WL 5429048, at *2–3 (Tex. App.—Houston [1st Dist.] Nov. 10, 2011, no pet.) (mem. op.).  Here, we again reaffirm Esparza and apply its holding.  We also note that two of our sister courts have relied on our reasoning in Esparza to reject the same argument made by the City in this case.  In Texas Tech University Health Sciences Center v. Villagran, the Amarillo Court of Appeals relied on Esparza in reaching the following holding: “[W]hen a claimant sues both the governmental unit and its employee together, the overall statutory scheme of section 101.106 requires that the trial court dismiss the employee upon the governmental unit’s motion, leaving the governmental unit to defend suits that otherwise comport with the Tort Claims Act’s jurisdictional constraints.”  No. 07–11–0257–CV, 2012 WL 967366, at *7 (Tex. App.—Amarillo Mar. 22, 2012, no pet. h.).  The San Antonio Court of Appeals also adopted our holding in Esparza, commenting, “Esparza’s construction achieves the legislature’s goals: it reduces litigation costs by determining the elected defendant at the outset, protects government employees in the course and scope of employment by allowing them to be immediately dismissed, and gives the plaintiff’s election—whether by pleading or operation of statute—irrevocable consequences.”  Tex. Dept. of Public Safety v. Deakyne, No. 04–11–00271–CV, 2012 WL 726916, at *7 (Tex. App.—San Antonio Mar. 7, 2012, no pet. h.).
[8]         The City has not challenged McMahon’s compliance with the Tort Claims Act jurisdictional requirements, other than the election-of-remedies provision.  See Esparza, 2011 WL 4925990, at *10 n.22.

TTCA Notice of Claim Requirement for suit under the Tort Claims Act

  
Texas Tort Claims Act: Waiver of immunity allows for suits against governmental defendants that would otherwise be jurisdictionally barred, subject to requirement that timely notice be given in writing or governmental entity have actual notice. But what amounts to actual notice?  A recent opinion by the Austin Court of Appeals discusses supreme court precedent on the issue:

    
Absent a waiver, governmental entities are generally immune from suits for damages. University of Tex. Sw. Med. Ctr. v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010). Such immunity deprives a trial court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224. The Texas Tort Claims Act ("the Act") provides a limited waiver of governmental immunity "to the extent of liability created by [the Act]." Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011); Tex. Gov't Code Ann. § 311.034 (West Supp. 2011). To take advantage of this waiver, claimants must provide a governmental entity with sufficient notice of their claims. Tex. Civ. Prac. & Rem. Code Ann. § 101.101. 

In its sole point of error, the County alleges that because it did not receive the required statutory notice of Gough's claim, its plea to the jurisdiction should not have been denied. See Colquitt v.  Brazoria County, 324 S.W.3d 539, 543 (Tex. 2010) (per curiam).

  
Under the Act, a party seeking to impose liability must provide a governmental entity formal, written notice not later than six months after the day the incident giving rise to the claim occurred, reasonably describing (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101(a); Cathey v. Booth, 900 S.W.2d 339, 340 (Tex. 1995). However, the formal notice requirement does not apply "if the governmental unit has actual notice of the death, injury, or property damage claimed." Tex. Civ. Prac. & Rem. Code Ann. § 101.101(c). The purpose of the Act's notice provision is to ensure prompt reporting of claims to allow governmental units time to guard against unfounded claims, settle claims, and prepare for trial. Cathey, 900 S.W.2d at 341. In this case, the parties agree that Gough did not present the County with formal notice within six months of the accident. Accordingly, their dispute centers on whether the County received actual notice of Gough's claim.

   
The Texas Supreme Court interpreted the Act's actual notice provision in Cathey v. Booth. Id. at 340-41. In that case, the appellants urged that a hospital had actual notice of their negligence claims by virtue of its medical records of the stillbirth of their child. However, the court rejected that interpretation of actual notice, which would "require[] only that a governmental unit have knowledge of a death, an injury, or property damage." Id. at 341 (emphasis added). The court asserted that such an interpretation would force defendants such as hospitals "to investigate the standard of care provided to each and every patient that received treatment" and would therefore "eviscerate the purpose of the statute." Id. The court held that actual notice to a governmental entity "requires knowledge of (1) a death, injury, or property damage; (2) the governmental unit's alleged fault producing or contributing to the death, injury, or property damage; and (3) the identity of the parties involved." Id.

SOURCE: AUSTIN COURT OF APPEALS - 03-11-00164-CV – 12/ 9/11

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 9, 2011, no pet. h.) 

Appellant Concho County ("the County") brings this interlocutory appeal from the trial court's denial of its plea to the jurisdiction in a personal injury suit brought by Billy Randall Gough, temporary administrator of the estate of Gary August Gough, under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, .101 (West 2011). We affirm the order denying the plea to the jurisdiction.

The County's interpretation of actual notice would effectively narrow "awareness of alleged fault" to the point of requiring awareness of liability. "Fault, as it pertains to actual notice, is not synonymous with liability; rather, it implies responsibility for the injury claimed." University of Tex. Sw. Med. Ctr., 324 S.W.3d at 550. In this case, an allegation of such responsibility was clearly communicated. The pleadings affirmatively demonstrate that the County had knowledge of Gary Gough's allegations in satisfaction of the actual notice requirements of the Texas Tort Claims Act; we therefore hold that governmental immunity was waived and the trial court's exercise of subject-matter jurisdiction was proper. We overrule the County's sole issue on appeal.
  

CONCLUSION 
  

Because we hold that actual notice was received under section 101.021 of the civil practice and re   medies code, we affirm the trial court's order denying the County's plea to the jurisdiction.

SOURCE: THIRD COURT OF APPEALS OF TEXAS - 03-11-00164-CV – 12/ 9/11

BACKGROUND

The basic facts in this case are undisputed. Before dawn on September 29, 2008, Gary August Gough walked onto the roadway of U.S. Highway 87 in Eden, Texas, and was struck by an oncoming Ford F-150 pickup truck. ⁽¹⁾ The driver of the vehicle was Concho County Sheriff Richard Doane, who then contacted the county police dispatch by radio to report that he had struck a pedestrian. An officer from the Texas Department of Public Safety (DPS), Trooper Rob Manley, evaluated the scene and authored a report identifying Gary Gough's failure to yield the right of way as the cause of the accident. Gary Gough suffered injuries from the impact and was transported from the scene for treatment. ⁽²⁾

  
Subsequent to this incident, the parties exchanged a series of communications. On October 15, 2008, counsel for Gary Gough submitted an open records request to the Concho County Attorney for "all county cell phone records for Richard Doane and all other sheriff personnel for September 28, 29, and 30, 2008." On October 28, an attorney for the County wrote a letter to Gary Gough stating that an independent investigation found Gary Gough's negligence to have caused the accident and demanding that he pay $2,663.14 for repairs to the sheriff's vehicle. Then, on November 3, another attorney for the County responded in writing to Gary Gough's open records request, stating, "Because the requested information relates to an incident that the County anticipates will form the basis of litigation . . . this information is being withheld." Finally, on December 11, the same attorney for the County wrote in another letter to Gary Gough's counsel that "Concho County's election to withhold the requested documents pursuant to the litigation exception is based, in part, on statements made by you regarding bringing a lawsuit on behalf of your client Gary Gough."

On September 28, 2010, as Temporary Administrator of Gary Gough's estate, Gough sued the County for the negligent operation of Doane's vehicle under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (providing for governmental liability if property damage, personal injury, or death is proximately caused by an employee's negligence and "arises from the operation or use of a motor-driven vehicle"). The County filed a plea to the jurisdiction asserting governmental immunity. It alleged that Gough failed to comply with the notice of the Texas Tort Claims Act as required for a waiver of such immunity. See id. § 101.101. After a hearing, the trial court denied the County's plea to the jurisdiction. This interlocutory appeal followed.

Concho County, Texas v. Gough (Tex.App.- Austin, Dec. 8, 2011, no pet. h.) 

Governmental immunity & local governmental entities

   
THE DEFENSE OF GOVERNMENTAL IMMUNITY

Governmental immunity protects political subdivisions of the state, including cities, from lawsuits for money damages, unless such immunity has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Governmental immunity, like sovereign immunity, involves immunity from suit and immunity from liability. Harris Cnty. Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 842 (Tex. 2009); Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 n.2 (Tex. 2008) (explaining that “both types of immunity afford the same degree of protection”). Immunity from suit is jurisdictional and bars suit, whereas immunity from liability is not jurisdictional and protects from judgments. Harris Cnty. Hosp. Dist., 283 S.W.3d at 842.

STATUTORY WAIVERS OF SOVEREIGN / GOVERNMENTAL IMMUNITY

When governmental immunity is waived by the legislature, the waiver must use clear and unambiguous language indicating its intent do so. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 838 (Tex. 2010); Harris Cnty. Hosp. Dist., 283 S.W.3d at 842. A plaintiff bears the burden to affirmatively demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity, which may be either a reference to a statute or to express legislative permission. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999).

A municipality, like the City, has immunity only for its governmental acts, not its proprietary acts. East Houston Estate Apartments., L.L.C. v. City of Houston, 294 S.W.3d 723, 730 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In the Texas Tort Claims Act, the legislature has noted that governmental functions “are those functions that are enjoined on a municipality by law and are given it by the state as part of the state’s sovereignty, to be exercised by the municipality in the interest of the general public.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (Vernon 2011). On the other hand, a proprietary act is an act performed by a municipality in its discretion, primarily for the benefit of those within its corporate limits rather than for the general public. Id. § 101.0215(b). The legislature has expressly stated that governmental functions include fire protection, street construction and design, and parking facilities. Id. § 101.0215(a)(1), (25), (31).

The legislature has waived governmental immunity from suit for local governmental entities when they enter into certain contracts. See TEX. GOV’T CODE ANN. § 271.152. However, this Court has held that section 271.152’s waiver of immunity does not include claims founded in quantum meruit. City of Houston v. Swinerton Builders, Inc., 233 S.W.3d 4, 13 (Tex. App.—Houston [1st Dist.] 2007, no pet.)( section 271.152 waives sovereign immunity only for breach of contract and “lists no other claims, either in law or in equity”; therefore, section 271.152 does not apply to claims for quantum meruit ); see also H & H Sand & Gravel, Inc. v. City of Corpus Christi, No. 13-06-00677-CV, 2007 WL 3293628, at *3 (Tex. App.—Corpus Christi Nov. 8, 2007, pet. denied) (mem. op.) (holding that claims in equity, including waiver by acceptance of material and benefit and detrimental reliance, are not encompassed by section 271.152’s limited waiver). Furthermore, section 271.152(2) defines a “contract subject to this subchapter” as a “written contract.” Because a claim for promissory estoppel is not a claim on a written contract, immunity is not waived under section 271.152 for such a claim. The workers’ promissory estoppel and quantum meruit claims sound in equity, and they are simply not included in section 271.152’s limited waiver of governmental immunity. See Swinerton Builders, Inc., 233 S.W.3d at 13.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11

WAIVER OF IMMUNITY PER TEXAS TORT CLAIMS ACT

The Texas Tort Claims Act waives a governmental entity’s immunity from suit on all claims for which it waives immunity from liability. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.025. It provides a limited waiver of immunity for: (1) property damage, personal injury, and death caused by the negligence of an employee if it arises from the operation or use of a motor-driven vehicle or equipment and (2) personal injury and death so caused by a condition or use of tangible personal or real property. Id. § 101.021 (Vernon 2011).

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00490-CV - 8/25/11

RELATED LEGAL TERMS: sovereign and governmental immunity doctrines, waiver of immunity to sue and/or liability, governmental immunity vs. sovereign immunity vs. official immunity , Texas Tort Claims Act

Tort Claims Act & Recreational Use Statute - Premises Liability Suits against Governmental Defendants

GOVERNMENTAL DEFENDANTS AND IMMUNITY FROM SUIT AND LIABILITY

To what extent and under what circumstances does the Texas Tort Claims Act (TTCA) waive immunity of governmental entities? How does it interact with the Recreational Use Statute?


The Texas Tort Claims Act grants a limited waiver of governmental immunity in certain circumstances: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.022; see Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). For example, in a claim based on a premises defect, the municipality owes to the claimant only the duty owed a licensee on private property, unless the claimant pays for the use of the property. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

The duty owed some claimants is restricted further by the Tort Claims Act's incorporation of the Recreational Use Statute. See id. § 101.058. That section provides:

To the extent that Chapter 75 [i.e., the Recreational Use Statute] limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.

Id. The Recreational Use Statute, in turn, provides:

[I]f 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.

Id. § 75.002(f) (West Supp. 2010).

The statute lists a number of activities that qualify as “recreation,” including nature study (which specifically includes bird-watching) and any other activity associated with enjoying nature or the outdoors. Id. § 75.001(3). And as to the duty owed, a landowner has no duty to warn or protect trespassers from obvious defects or conditions. State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006). The only duty a premises owner owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). See Footnote 1 Thus, a municipality waives immunity under the Tort Claims Act and the Recreational Use Statute if the municipality's conduct is grossly negligent. Miranda, 133 S.W.3d at 225. Gross negligence requires that the landowner be actually, subjectively aware of-and consciously indifferent to-an extreme risk of harm. Shumake, 199 S.W.3d at 288.
The existence of subject matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. We review the trial court's ruling de novo. Id at 228. When the plea challenges the claimant's pleadings, we determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court's jurisdiction, construing the pleadings liberally and in favor of the claimant. Id. at 226. If the pleadings affirmatively negate jurisdiction, the plea should be granted. Id. at 227. When the plea challenges the existence of jurisdictional facts, we consider evidence submitted by the parties just as the trial court did. Id. We take as true all evidence favorable to the claimant, and we indulge all reasonable inferences in her favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question on the jurisdictional issue, then the plea can be resolved as a matter of law. Id. If the evidence raises a fact question on the jurisdictional issue, then the fact finder must resolve the issue at trial. Id.

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11