File: 070628F - From documents
Opinion issued March 11, 2008.
Court of Appeals
District of Texas at Dallas
MARCUS A. GIPSON, INDIVIDUALLY AND AS REPRESENTATIVE OF
ESTATE OF GWENDOLYN FOSTER,
DECEASED, DAHGARA G. GIBSON,
GIPSON, SHERE R. GIBSON, CHARNESSA S. MITCHELL,
GAWALLEN V. ROGERS, SWAHN A. GIBSON, KOURTNE C. GIBSON,
LOVE J. FOSTER, AND GWYNDOLYN L. FOSTER, INDIVIDUALLY,
CITY OF DALLAS, Appellee
On Appeal from the 14th Judicial District
Trial Court Cause No.
Moseley, Lang, and Mazzant
Appellants Marcus A.
Gipson, individually and as representative of the estate of Gwendolyn Foster, deceased, Dahgara G. Gibson, Christopher
L. Gipson, Shere R. Gibson, Charnesssa S. Mitchell, Gawallen V. Rogers, Swahn A.
Gibson, Kourtne C. Gibson, Love J. Foster, and Gwyndolyn L. Foster, individually
(the Gipsons), challenge the trial court's order granting the City of Dallas's
plea to the jurisdiction and dismissing their lawsuit, in which they alleged a
Dallas Fire Rescue unit's negligently failed to respond promptly to a medical
emergency. Concluding there is no waiver of governmental immunity under the
Texas Tort Claims Act, and therefore, the trial court did not err in granting
the City's plea to the jurisdiction, we resolve the Gipsons' issue against them
and affirm the trial court's order.
I. FACTUAL AND
In their second amended
original petition, the Gipsons alleged that, in the early morning hours of August 5, 2004, their mother, Gwendolyn
Foster, became short of breath. 9-1-1 was called, and Foster waited for an
ambulance. When it failed to arrive 13.12 minutes after the call was made, one
of Foster's sons drove her to Fire Station No. 24, which was seven blocks from
her house at a daylight driving time of one minute, fifteen seconds. Although
Foster was treated at the station house and taken to a hospital in Rescue Unit
24, she died the next day.
The Dallas Fire Rescue
Department initiated an internal investigation of Rescue Unit 24's response, specifically that of its driver, to
Foster's medical emergency. The department's Internal Affairs Section concluded
that a 9-1-1 operator dispatched Rescue Unit 24 to Foster's house at 05:14:16
hours, the En Route Key was activated at 05:18:31 hours, and this difference of
four minutes and fifteen seconds “constitute[d] an unacceptable delay in getting
Rescue 24 underway and en route to [Foster's house].” The investigator concluded
that Rescue Unit 24's driver engineer violated City of Dallas Personnel Rule
34-36(b)(5)(A) and certain sections of the Dallas Fire-Rescue Department Manual
of Procedures, Volume 2, Rules and Regulations and that he failed to respond or
to respond promptly to a medical emergency. The Gipsons cited this investigation
in their second amended original petition, in which they alleged that Foster's
death was caused by the City's “negligence in the use of tangible personal
property and/or a motor driven-vehicle: to wit an ambulance which failed to
respond promptly to a medical emergency.” They alleged the City's sovereign
immunity was waived pursuant to sections 101.021, .055,
and/or .062 of the Texas Tort Claims Act. See Footnote 1
filed a Plea to the Jurisdiction. The Gipsons filed a response in opposition and attached evidence. After a hearing, the trial
court granted the plea to the jurisdiction and dismissed
the Gipsons' suit. See
This interlocutory, accelerated appeal followed. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2007); Tex. R. App. P.
II. STANDARD OF
Sovereign immunity from
suit defeats a trial court's subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26
(Tex. 2004). The existence of subject matter jurisdiction is a question of law.
Id. at 226. Whether a pleader has alleged facts that affirmatively
demonstrate a trial court's subject matter jurisdiction is a question of law
reviewed de novo. Id. A court deciding a plea to the jurisdiction is not
required to look solely to the pleadings, but may consider evidence and must do
so when necessary to resolve the jurisdictional issues raised. Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The court should, of
course, confine itself to the evidence relevant to the jurisdictional issue.
Id. If the evidence creates a fact question regarding the jurisdictional
issue, then the trial court cannot grant the plea to the jurisdiction, and the
fact question will be resolved by the fact finder. Miranda, 133 S.W.3d at
227-28. However, if the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the
jurisdiction as a matter of law. Id. at 228.
deprives a trial court of subject matter jurisdiction for lawsuits against the State or other governmental units unless
the State consents to suit. Id. at 224; Dallas County v. Wadley,
168 S.W.3d 373, 376 (Tex. App.-Dallas 2005, pet. denied). While sovereign
immunity refers to the immunity from suit and liability of the State and the
various divisions of state government, governmental immunity protects political
subdivisions of the State, including counties, cities, and school districts.
See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex.
2003). Municipal corporations have traditionally been afforded some degree of
governmental immunity for governmental functions, unless that immunity is
waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291-92 (Tex. 1995);
Gates v. City of Dallas, 704 S.W.2d 737, 739 (Tex. 1986). The operation
of an emergency ambulance service is a governmental function. Tex. Civ. Prac.
& Rem. Code Ann. § 101.0215(a)(18) (Vernon 2005).
of the civil practice and remedies code is referred to as the Texas Tort Claims Act. Id. § 101.002 (Vernon 2005). Unless
the Texas Tort Claims Act waives immunity, a municipality is immune from suit
and from tort liability for its own acts or the acts of its agents for its
governmental functions. See Tex. Dep't of Criminal Justice v. Miller, 51
S.W.3d 583, 587 (Tex. 2001); City of Amarillo v. Martin, 971 S.W.2d 426,
427 (Tex. 1998); Guillen v. City of San Antonio, 13 S.W.3d 428, 432 (Tex.
App.-San Antonio 2000, pet. denied); City of El Paso v. Hernandez, 16
S.W.3d 409, 415 (Tex. App.-El Paso 2000, pet. denied).
101.021 waives governmental immunity for:
(1) property damage, personal injury,
and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of
(A) the property damage,
personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment;
(B) the employee would be
personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use
of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant
according to Texas law.
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)-(2) (Vernon
2005). However, chapter 101, and thus the above
waiver of immunity, does not apply to a claim arising from:
the action of an employee
while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and
ordinances applicable to emergency action, or in the absence of such a law or
ordinance, if the action is not taken with conscious indifference or reckless
disregard for the safety of others[.]
Id. § 101.055(2) (Vernon
2005). Further, section 101.062, which deals specifically with 9-1-1 services, provides that chapter 101
applies to a claim
against a public agency that arises from an action of an employee of the
public agency or a volunteer under direction of
the public agency and that involves providing 9-1-1 service or responding to a
9-1-1 emergency call only if the action violates a statute or ordinance
applicable to the action.
Id. § 101.062(b) (Vernon
The Gipsons contend the
trial court erred in granting the City's plea to the jurisdiction because the evidence established the Texas Tort Claims Act
waives the City's claim to governmental immunity with regard to negligent use of
a motor-driven vehicle and tangible personal property, the ambulance, by Rescue
Unit 24's actions that violated City of Dallas ordinances and/or the City's
employees' conscious indifference.
Waiver under Sections
101.055(2) and 101.062(b)
The Gipsons argue that
sections 101.055(2) and 101.062(b) constitute waivers of governmental immunity independent of and in addition to the waiver set
forth in section 101.021. This argument was considered and rejected in
Hernandez, 16 S.W.3d at 415-16. The El Paso Court of Appeals examined the
language of sections 101.055 and 101.062 and decided they lacked the language
evidencing the legislature's “clear intent to waive liability independently of
section 101.021.” Id. at 415. In addition, sections 101.055 and 101.062
are located in the “Exclusions and Exceptions” subchapter. The court concluded
that these sections provide exclusions and exceptions to the waiver that may
exist under section 101.021 by which the governmental unit may retain its
sovereign immunity. See id. at 415-16; see also City of Amarillo,
971 S.W.2d at 428 (discussing section 101.055(2) as “an exception” to waiver
pursuant to section 101.021).
We agree with the
reasoning and conclusion set forth in Hernandez. We conclude sections 101.055(2) and 101.062(b) are relevant only
after the threshold issue of the existence of a waiver of immunity pursuant to
section 101.021 is met. Thus, we reject the Gipsons' argument that sections
101.055(2) and 101.062(b) waive governmental immunity independent of and in
addition to the waiver provided by section 101.021.
Waiver under Section
Next, we consider the
Gipsons' pleading and the jurisdictional facts to determine whether their claim comes within any area of liability for
which immunity is waived under section 101.021. In its plea to the jurisdiction,
the City argued the ambulance was never used in response to Foster's call, and
the failure to use tangible property is not actionable under the Texas Tort
The term “arises from”
requires “a nexus between the injury negligently caused by a governmental employee and the operation or use of a
motor-driven vehicle or piece of equipment.” LeLeaux v. Hamshire-Fannett
Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). This nexus requires more
than mere involvement of property; rather, “the [vehicle]'s use must have
actually caused the injury.” Dallas Area Rapid Transit v. Whitley, 104
S.W.3d 540, 543 (Tex. 2003) (internal quotations omitted); Dallas County
Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.
1998). Thus, as with the condition or use of property, the operation or use of a
motor vehicle “does not cause injury if it does no more than furnish the
condition that makes the injury possible.” Whitley, 104 S.W.3d at 543;
Bossley, 968 S.W.2d at 343. “Operation” refers to “a doing or performing
of a practical work”; “use” is defined in the context of this statute as “to put
or bring into action or service; to employ for or apply to a given purpose.”
LeLeaux, 835 S.W.2d at 51; Hernandez, 16 S.W.3d at 416. Mere
non-use of property is insufficient to support a claim under the Texas Tort
Claims Act. Hernandez, 16 S.W.3d at 416; see Kassen v. Hatley, 887
S.W.2d 4, 14 (Tex. 1994) (“We have never held that a non-use of property can
support a claim under the Texas Tort Claims Act.”).
The Gipsons make no
complaint regarding Foster's trip by ambulance from the fire station to the hospital. Rather, their claim arises from the delay
in responding to the 9-1-1 call. It is undisputed that Foster was not
transported from her home to the fire station by an ambulance in response to a
telephone call. Thus, the ambulance did not “actually cause” Foster's injury.
See id.; Brantley v. City of Dallas, 545 S.W.2d 284, 286-87 (Tex.
Civ. App.-Amarillo 1976, writ ref'd n.r.e.) (ambulance responded to emergency
call, examined plaintiff, but refused to transport him to hospital; held refusal
to transport “not equivalent to an allegation that plaintiff's injuries were
proximately caused by negligence arising from the use or operation of a motor
vehicle”). Accordingly, there is no nexus between the use or operation of the
ambulance and Foster's injury. We conclude that the City's governmental immunity
is not waived pursuant to section 101.021(1).
We also consider the
Gipsons' allegations and the evidence to the extent they are directed to any negligence by the driver of Rescue Unit
24 in failing to respond timely to the dispatcher's announcement. Rather than
use of the ambulance, this claim relates to the non-use or mis-use of dispatch
information. However, “information is not tangible personal property, since it
is an abstract concept that lacks corporeal, physical, or palpable qualities.”
Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 581 (Tex. 2001)
(citing Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175,
179 (Tex. 1994)). Accordingly, we conclude that the City's governmental immunity
is not waived pursuant to section 101.021(2).
Having concluded that the
City retains governmental immunity pursuant to section 101.021(1) and (2), we need not address whether the exceptions to
the waiver of immunity pursuant to sections 101.055(2) and 101.062(b) apply
here. We resolve the Gipsons' issue against them and affirm the trial court's
order granting the City's plea to the jurisdiction and dismissing the Gipsons'
The Gipsons also alleged a waiver of governmental immunity pursuant to section
101.022 relating to claims arising from premises
and special defects. However, they do not argue that section on appeal, and we
do not consider it further.
There is no reporter's record in the record on appeal.