Texas Judiciary Online - HTML Opinion

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Opinion=20 issued August 2, 2007 =

In = The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. 01-07-00097-CV

__________

CITY OF=20 HOUSTON, Appellant

MARY M.=20 BABIN KENNEDY, Appellee

On = Appeal=20 from the 215th District Court

Harris=20 County, Texas

Trial Court=20 Cause No. 04-45471-CV

MEMORANDUM=20 OPINION

Appellant, = the City=20 of Houston, ("the City") appeals an order denying its plea to the=20 jurisdiction on grounds of governmental immunity from suit in a = wrongful=20 death action brought by appellee, Mary M. Babin Kennedy = ("Kennedy"),=20 individually and as the representative of the estate of Joseph = Kennedy=20 ("Joseph"), deceased. See Tex. Civ. Prac. & Rem. Code = Ann. =A7=20 51.014(a)(8) (Vernon Supp. 2006). The City appeals the trial = court's order=20 denying its plea to the jurisdiction, and Kennedy appeals the = trial=20 court's orders (1) granting the City's motion for partial summary = judgment=20 on all of her intentional torts claims and (2) granting the City's = motion=20 to dismiss her claims against the individual city employees. We = affirm the=20 trial court's orders granting the motions for partial summary = judgment and=20 to dismiss, and we vacate the order denying the plea to the=20 jurisdiction.

Factual and Procedural Background =

The = parties=20 submitted no evidence, and our facts thus come from Kennedy's=20 pleadings, = construed=20 liberally in favor of jurisdiction. See=20 Tex. = Natural=20 Res. Conservation Comm'n v. IT-Davy,=20 74 S.W.3d = 849, 853=20 (Tex. 2002). = On September = 3, 2002,=20 between 5:00 a.m. and 5:30 a.m., = Kennedy's = husband, Joseph,=20 who was a kidney=20 dialysis = patient, = became very=20 ill, experienced shortness of breath, lapsed in = and out of=20 consciousness, fell asleep and then = awoke=20 again. = Kennedy = called = 9-1-1 and=20 requested that an emergency ambulance be dispatched = to=20 their home=20 to = transport=20 Joseph = to a = hospital=20 emergency room for treatment.

Two Houston=20 Fire Department paramedics, Victor = Munoz and=20 Jason Mize ("the Paramedics"), arrived at = the=20 Kennedys' = home and=20 immediately went=20 into the bedroom where Joseph = was lying on = the bed.=20 Kennedy = told the=20 Paramedics = that=20 Joseph was scheduled for dialysis treatment that morning = and that=20 the ambulance that transported him to the dialysis normally picked = him up=20 around 9:45 a.m. Kennedy, thinking = that the=20 Paramedics were going to take her husband to the hospital, started = preparing to go with him to the hospital. While Kennedy was = gathering=20 Joseph's = medicines, = she heard = one of the=20 Paramedics tell her = husband, that,=20 if they took him to hospital now, he would have to wait there = three to=20 four hours before he could be seen because the hospital = emergency=20 room was so = busy.=20 One of the = Paramedics told Kennedy that, because he was = going to=20 dialysis in the morning, he could see the doctor then. The other=20 Paramedic=20 did not = say = anything. The=20 Paramedics then left = the home=20 without transporting Joseph to = the=20 hospital and without = saying=20 anything to Kennedy = as to why = they=20 did not = take Joseph=20 to the hospital.

About four=20 and one-half hours later, at approximately 9:45 a.m., the = scheduled=20 ambulance service arrived to take = Joseph to=20 his = dialysis=20 appointment=20 at the = Northwest=20 Kidney Center. After = Joseph=20 arrived at the center, he complained that he was not feeling well, = and he=20 went into cardiac arrest. Joseph was subsequently transported to=20 Northwest = Memorial=20 Hermann Hospital, where he = died = later that = same day.=20 Kennedy alleges that Joseph would not = have died=20 if the Paramedics = had=20 taken him = to the=20 hospital when they responded to her 9-1-1 call. Kennedy = also alleges=20 that the Paramedics forged Joseph's signature on a Refusal of = Service=20 Statement form during or after they spoke with Joseph.

In her=20 petition, Kennedy sued the City and the Paramedics, individually, = for=20 causing Joseph's death, alleging that the Paramedics were = negligent in=20 failing to transport him to the hospital emergency room when they = were=20 called to the Kennedys' home. In her petition, Kennedy alleges = that the=20 City has waived its immunity from these claims under the = Texas Tort = Claims=20 Act.^{=20
(1)} Kennedy = alleges=20 that the conduct of the Paramedics and the City violated several = city and=20 fire department ordinances and statutes, including ones with = criminal=20 penalties attached to them, and their action was taken with = conscious=20 indifference or reckless disregard for Joseph's safety. Kennedy = has also=20 asserted claims against the City and the Paramedics, individually, = for=20 various intentional torts, including claims for misrepresentations = and=20 intentional false statements, "cover-up," forgery, and criminal=20 conspiracy. Kennedy alleges that her allegations supporting these = claims=20 are "intertwined" with her negligence claims against the = City.

The City=20 and the Paramedics answered Kennedy's petition and filed special=20 exceptions to the petition and a plea to the jurisdiction. The = City also=20 filed a motion for partial summary judgment with respect to = Kennedy's=20 intentional tort claims and a motion to dismiss the Paramedics as=20 individual defendants. The trial court denied the City's plea to = the=20 jurisdiction, but granted its motions for summary judgment and to = dismiss=20 the Paramedics as individual defendants. After Kennedy filed her = Second=20 Amended Petition in this action, the trial court denied the = special=20 exceptions.

Plea to the Jurisdiction

In=20 its sole = issue,=20 the City = argues that=20 the trial court erred in denying its plea to the jurisdiction = because=20 Kennedy failed to = plead and=20 prove waiver of sovereign immunity under the Texas Tort Claims Act = ("the=20 Act"). Kennedy = responds=20 that waiver of = sovereign=20 immunity exists not only under Section=20 101.021 of the = Act, but=20 also independently under Sections=20 101.055=20 and 101.062, which = pertain to=20 emergency services. She = asserts that=20 she has pled facts which, if true, establish waiver under all = three of=20 these provisions. We=20 disagree.

Standard of=20 Review

In a suit=20 against a governmental unit, the plaintiff must affirmatively = demonstrate=20 the court's jurisdiction by alleging a valid waiver of immunity.=20 Dallas = Area=20 Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. = 2003). To = determine if=20 the plaintiff has met that burden, "we consider the facts alleged = by the=20 plaintiff and, to the extent it is relevant to the jurisdictional = issue,=20 the evidence submitted by the parties." Id.=20 (quoting=20 Tex. = Natural=20 Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.=20 2001)). If the = pleadings=20 affirmatively negate the existence of jurisdiction, then a plea to = the=20 jurisdiction may be granted without allowing the plaintiff an = opportunity=20 to amend. County = of=20 Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). Because = sovereign=20 immunity from suit defeats a trial court's subject-matter = jurisdiction,=20 immunity from suit may properly be asserted in a jurisdictional = plea.=20 Tex. = Dep't of=20 Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. = 2004). =

We review=20 de = novo=20 a trial = court's=20 ruling on a jurisdictional plea, construing the pleadings in the=20 plaintiff's favor and looking to the pleader's intent. = Id. at=20 226; = IT-Davy,=20 74 S.W.3d at 855. Whether = the=20 pleader has alleged facts that affirmatively demonstrate = subject-matter=20 jurisdiction is a legal question that we review de = novo. = Miranda,=20 133 S.W.3d at 226.

Waiver of=20 Governmental Immunity from Suit =

A = municipality such=20 as the City is immune from liability for its governmental = functions unless=20 that immunity is specifically waived. City = of LaPorte=20 v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). By = designating the=20 operation of emergency ambulance service as a governmental = function,^{=20
(2)} the Legislature has shrouded this function with = immunity=20 unless a claim falls within one of three specific areas of = liability for=20 which immunity is waived by Section 101.021 of the Act. = See = Medrano v.=20 City of Pearsall, 989 S.W.2d 141, 144 (Tex. = App.--San=20 Antonio 1999, no pet.); McKinney v. City=20 of Gainesville, 814 S.W.2d 862, 865 (Tex. = App.--Fort=20 Worth 1991, no writ). Section 101.021 of the Act provides that a=20 governmental unit in the state is liable for:

(1)=20 property damage, personal injury, and death proximately caused by = the=20 wrongful act or omission or the negligence of an employee acting = within=20 his scope of employment if:

(A) the=20 property damage, personal injury, or death arises from the = operation or=20 use of a motor-driven vehicle or motor-driven equipment; = and

(B) the=20 employee would be personally liable to the claimant according to = Texas=20 law; and

(2)=20 personal injury and death so caused by a condition or use of = tangible=20 personal or real property if the governmental unit would, were it = a=20 private person, be liable to the claimant according to Texas=20 law.

Tex. Civ.=20 Prac. & Rem. Code Ann. =A7 101.021 (Vernon=20 1997).

Despite the=20 waiver found in Section=20 101.021, a = governmental=20 unit specifically retains its immunity in claims arising = from:

[t]he=20 action of an employee while responding to an emergency call . . . = if the=20 action is in compliance with the laws and ordinances applicable to = the=20 emergency action, or in the absence of such a law or ordinance, if = the=20 action is not taken with conscious indifference or reckless = disregard for=20 the safety of others.

Tex. Civ.=20 Prac. & Rem. Code Ann. =A7 101.055(2); = Borrego v. City=20 of El Paso, 964 S.W.2d 954, 957 (Tex. = App.--El Paso=20 1998, pet. denied). Similarly, in the case of 9-1-1 emergency = services=20 like those = involved = here,=20 Section=20 101.062 further = provides:=20

This = chapter applies=20 to a claim against a public agency that arises from an action of = an=20 employee of the public agency or a volunteer under direction of = the public=20 agency and that involves providing 9-1-1 service or responding to = a 9-1-1=20 emergency call only if the action violates a statute or ordinance=20 applicable to the action.

Tex. Civ.=20 Prac. & Rem. Code Ann. =A7 101.062(b).

Contrary to=20 Kennedy's arguments, Texas courts have held that Sections=20 101.055 and = 101.062 = do=20 not provide an = independent basis for the waiver of = the=20 City's = liability.=20 Section=20 101.062, like = Section=20 101.055(2), provides=20 additional = protection for a=20 governmental unit because it requires that the plaintiff allege = and prove=20 that the action forming the basis of the complaint violated a = statute or=20 ordinance or = constituted=20 conscious indifference. = City = of El Paso=20 v. Hernandez, 16 = S.W.3d = 409, = 416 (Tex. = App.--El Paso=20 2000, = pet. denied).=20 Accordingly, a=20 governmental unit has no = sovereign=20 immunity in an action involving a claim related to 9-1-1 emergency = service=20 unless (1) governmental immunity is waived under Section=20 101.021 = and=20 (2) the = action=20 violates a statute or ordinance or = constitutes=20 conscious indifference to the safety of a patient. = Id. =

Use=20 or = Misuse=20 of = Tangible=20 Personal Property

We=20 now = turn = to an = analysis = of whether=20 the facts alleged = in=20 Kennedy's petition establish = a waiver=20 of sovereign immunity under Section=20 101.021. = Kennedy = relies on=20 paragraph VII of her second amended petition to show that she has = pled=20 facts establishing a waiver of immunity under Section 101.021. = Kennedy=20 argues that this paragraph alleges that Joseph's death was caused = by the=20 negligent use of unspecified medical equipment and or the = condition of the=20 equipment. This paragraph provides in pertinent part that: =

The = severity of=20 Joseph L. = Kennedy's medical = condition=20 should have been apparent to the paramedics = after=20 Plaintiff, Mary = Kennedy, told = them that her=20 husband, Joseph L. Kennedy, was = a = kidney-dialysis=20 patient, = and=20 described his condition as being very severe having breathing = problems,=20 shortness of breath, going in and out of consciousness, falling = asleep and=20 waking up again. The=20 paramedics could=20 have verified the severity of Joseph L. Kennedy's = medical=20 condition by the use of tangible equipment and personal property = carried=20 by paramedics and=20 used by the Paramedics to=20 check the vital signs of a patient to determine the severity of = his=20 medical condition in order to decide whether to transport a = patient to the=20 hospital's emergency room.

The death=20 of Joseph L. Kennedy, Deceased, = was=20 proximately caused by the paramedics' wrongful acts, omissions, or = negligent use of or condition of tangible equipment and personal = property=20 in their possession used to examine Joseph L. Kennedy's vital = signs to=20 verify the severity of his medical condition in order to determine = whether=20 to transport him to the hospital. =

(Emphasis=20 added.)

Under = Section=20 101.021, "use" is = defined in=20 the context of Section=20 101.021(2) as "to = put or bring=20 into action or service; to employ for or apply to a given = purpose."=20 Kerrville State=20 Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). Mere = non-use of=20 property is insufficient to support a claim under the Tort Claims = Act.=20 Id. These = allegations=20 do not establish waiver of the City's immunity based on the use of = personal tangible property or defective property.

In this=20 case, = the facts = alleged by=20 Kennedy = do not = demonstrate=20 that the = Paramedics=20 operated = or used=20 any = medical=20 equipment either in = a=20 wrongful or negligent fashion as = required to=20 waive immunity under Section 101.021 of the Act. = Instead, = Kennedy=20 alleges that the Paramedics could=20 have used the = equipment=20 that they carried to properly evaluate Joseph before making the = decision=20 not to transport him to the hospital emergency room. = The gravamen = of=20 Kennedy's=20 complaint = is that=20 the = Paramedics=20 made an = incorrect=20 medical decision regarding whether Joseph had a life-threatening = emergency=20 and, as a result, they did = not=20 transport him to the hospital emergency room. In other words, = Kennedy's=20 complaint is essentially about = the = non-use of = the=20 equipment and misuse or non-use of intangible = information--observations=20 regarding Joseph's health and the statements by = Kennedy--neither = of which=20 fall within Section=20 101.021(2). = See = City of=20 Orange v. Jackson, 927 S.W.2d 784, = 786-87 (Tex.=20 App.--Beaumont 1996, no writ) (explaining that arresting officer's = decision to take injured arrestee to jail did not constitute = negligent=20 operation or use of squad car or misuse of tangible personal = property;=20 real basis of the claim is the failure to use the police car to = take=20 arrestee to a medical facility); see=20 also=20 Clark, 923=20 S.W.2d at 584; = Univ. of Tex.=20 Med. Branch at Galveston v. York, 871 S.W.2d 175, 178-79 = (Tex.=20 1994). = Accordingly,=20 Kennedy has not pled facts establishing a waiver of immunity under = Section=20 101.021. Because Kennedy has not met the threshold statute, it is=20 unnecessary for us to consider whether she has pled facts = establishing=20 waiver under Sections 101.055(2) and 101.062. The trial court = erred in=20 denying the City's plea to the jurisdiction. We sustain the City's = sole=20 issues.Motions for=20 Partial Summary Judgment

In her = first issue,=20 Kennedy argues that the trial court erred in granting the City's = Motion=20 for Partial Summary Judgment regarding intentional tort claims = because=20 they are "intertwined" and a part of her allegations of a waiver = of the=20 City's immunity under the Tort Claims Act. We disagree. =

It=20 is well established that the waiver of immunity under the Torts = Claim Act=20 does not apply to claims for intentional torts. Tex. Civ. = Prac.=20 & Rem. Code Ann. =A7 101.057; = Pineda = v. City=20 of Houston, 175 S.W.3d 276, 281-82 (Tex. App.--Houston [1st = Dist.]=20 2004, no pet.). Assuming that the allegations are not intended to = be=20 separate causes of action against the City, they still do not = claim any=20 use of tangible personal property or allege any other basis for = the waiver=20 of immunity under Section 101.021. Rather, these allegations = support=20 Kennedy's arguments for waiver under Sections 101.055(2) = and=20 101.062. As noted above, these alleged statutory violations are = irrelevant=20 in light of Kennedy's failure to plead waiver under the threshold = Section=20 101.021. We = overrule=20 Kennedy's first issue.

Motion to=20 Dismiss

In her=20 second issue, Kennedy argues that the trial court erred in = dismissing the=20 Paramedics under Section 101.106 of the Act because the trial = court had=20 considered a previous, similar motion and denied it. Kennedy also = argues=20 that the motion should have been denied because she sued the = Paramedics=20 "individually, on other causes of action, which are not under the = Texas=20 Tort Claims Act." We disagree.

Kennedy = has cited no=20 authority for the proposition that a trial court cannot reconsider = a=20 motion to dismiss in a pending case. Furthermore, the language of = Section=20 101.106 creates a mandatory election of remedies.^{=20
(3)} Because Kennedy asserts claims against the City = under the=20 Act, any cause of action against the Paramedics, individually, = arising=20 from the same cause of action must be dismissed. See = Villason v.=20 O'Rourke, 166 = S.W.3d 752,=20 761-62 (Tex. App.--Beaumont 2005, pet. filed) (citing = Johnstone v.=20 State, 22 S.W.3d 408, 409 (Tex. 2000)) (explaining that = statutory=20 construction dictates that Section 101.106 prevails over less = specific=20 statutes and procedural rules). Accordingly, we overrule Kennedy's = second=20 issue.

Conclusion

We affirm=20 the trial court's orders granting the City's motion for partial = summary=20 judgment on the intentional tort claims and granting the motion to = dismiss=20 the individual paramedics. We vacate the order denying the City's = plea to=20 the jurisdiction, and we dismiss the non-intentional tort claims = against=20 the City for want of jurisdiction.

George C. = Hanks,=20 Jr.

Justice

Panel=20 consists of Justices Nuchia, Hanks, and Bland=20

1. The applicable Texas Civil Practices and = Remedies=20 Code statutes involved are: Section 101.021 (establishing = governmental=20 liability and waiver for tort claims), Section 101.0215 (including = emergency ambulance services as a governmental function), Section = 101.062=20 (including 9-1-1 emergency services specifically in the = governmental=20 liability and waiver), Section 101.055 (excluding emergency calls = or=20 situation from governmental liability and waiver where actions = were in=20 compliance with laws, ordinances, and not with reckless disregard = for=20 others), Section 101.057 (excluding intentional torts from the=20 governmental liability and waiver), Section 101.106 (excluding all = other=20 remedies once a governmental unit suit has been filed).=20

2. Tex. Civ. Prac. & Rem. Code Ann. =A7=20 101.0215(a)(18) (Vernon 2005).=20

3. "The filing of a suit under this chapter = against a=20 governmental unit constitutes an irrevocable election by the = plaintiff and=20 immediately and forever bars any suit or recovery by the plaintiff = against=20 any individual employee of the governmental unit regarding the = same=20 subject matter." Tex. Civ. Prac. & Rem. Code Ann. =A7=20 101.106(a).

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FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_004D_01C7E1C3.91D20140--