law-TTCA cases | Texas Tort Claims Act | Waiver of sovereign immunity | premises liability special defect |
no waiver for intentional torts |
RECENT TEXAS TORT CLAIMS ACT (TTCA) and related APPEALS
DECIDED BY THE TEXAS SUPREME COURT WITH OPINION
Franka MD v. Velasquez, No. 07-0131 (Tex. Jan 21, 2011)(Hecht)(TTCA, HCLC, government employee vs
governmental entity)
Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting within the general
scope of his employment must be dismissed “if it could have been brought under this chapter [that is, under the Act] against
the governmental unit”.1 The court of appeals construed the quoted clause to mean that, to be entitled to dismissal, the
employee must establish that governmental immunity from suit has been waived by the Act.2 But as we stated in Mission
Consolidated Independent School District v. Garcia: “we have never interpreted ‘under this chapter’ to only encompass tort
claims for which the Tort Claims Act waives immunity.”3 Rather, “all [common-law] tort theories alleged against a
governmental unit . . . are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4 Accordingly, we
reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings.
[...] we hold that for section 101.106(f), suit “could have been brought” under the Act against the government regardless of
whether the Act waives immunity from suit. We reverse the judgment of the court of appeals and remand to the trial court for
further proceedings.
JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ,
INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th district
(04-06-00190-CV, 216 SW3d 409, 09-06-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice
Johnson, and Justice Willett joined. [28 page opinion in pdf]
Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. [21-page opinion in pdf]
(Justice Guzman not sitting)
View Electronic Briefs 07-0131 FRANKA, M.D. and NAGAKRISHNA REDDY, M.D. v. VELASQUEZ
Colquitt v. Brazoria Cty., No. 09-0369 (Tex. Oct. 1, 2010)(per curiam)
(TTCA, timely filing lawsuit as notice of claim, actual notice of claim)
GLENN COLQUITT v. BRAZORIA COUNTY; from Brazoria County; 14th district (14-08-00210-CV, 282 SW3d
582, 01-27-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial
court.
Per Curiam Opinion [pdf]
View Electronic Briefs in 09-0369 COLQUITT v. BRAZORIA COUNTY
City of Dallas v. Carbajal, No. 09-0427 (Tex. May 7, 2010)(per curiam)
(TTCA Tort Claims Act, presuit notice requirement, police report held insufficient to constitute actual notice)
CITY OF DALLAS v. OLIVIA J. CARBAJAL; from Dallas County;
5th district (05-08-00500-CV, 278 SW3d 802, 01-22-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion [pdf]
Dallas County v. Posey, No. 08-0094 (Tex. 2009)(per curiam)
(TTCA, prisoner suicide with telephone cord in cell, no liability)
TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam)
(TTCA, loose gravel not a special defect)
motion for rehearing granted
TxDoT v. Gutierrez, No. 07-1013 (Tex. 2009)(per curiam)
(TTCA, loose gravel not a special defect)
Denton County v. Beynon, No. 08-0016 (Tex. May 1, 2009)(Willett)
(Texas Tort Claims Act TTCA governmental immunity waiver, special defect hazardous road conditions)
(mis-positioned flood gate pole that impaled car and caused severe injury in accident does not qualify as
special defect to permit suit against county under the TTCA)
DENTON COUNTY, TEXAS v. DIANNE BEYNON AND ROGER BEYNON, INDIVIDUALLY, ET AL.; from Denton
County; 2nd district (02-07-00066-CV, 242 SW3d 169, 11-29-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the case.
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
Justice Green, and Justice Johnson joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
(would hold that flood gate pole on side of road that pointed toward oncoming traffic and impaled swerving
driver's car and injured passenger was special defect under TTCA)
In this premise-liability case, we decide whether a seventeen-foot floodgate arm located approximately three
feet off a two-lane rural roadway is a “special defect” under the Texas Tort Claims Act (TTCA). We hold the
floodgate arm does not meet the TTCA’s narrow definition of a special defect. Accordingly, we reverse the
court of appeals’ judgment and dismiss the case.
The TTCA does not define “special defect” but likens it to “excavations or obstructions” that exist “on” the
roadway surface.[5] The existence of a special defect is a question of law that we review de novo.[6] Where
a special defect exists, the State owes the same duty to warn as a private landowner owes to an invitee,[7]
one that requires the State “to use ordinary care to protect an invitee from a dangerous condition of which
the owner is or reasonably should be aware.”[8]
TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam) (first, superseded opinion)
Note: New Opinion issued May 22, 2009) TxDOT v.York (Tex. 2009)(per curiam)No. 07-0743 (Tex. Dec. 5,
2008)(per curiam)(TTCA, dangerous road conditions, special defect) (TTCA, Texas Tort Claims Act suit,
exception to sovereign immunity, dangerous road conditions, loose gravel, special defect, premises defect)
City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road
condition, uneven pavement, plea to the jurisdiction)
UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous
condition, ostrich defense, water hose across sidewalk)
Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(O’Neill)
(public employment, wrongful termination claim, TTCA, tort claims, TCHRA claim, immunity waiver)
City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability,
dangerous road condition, failure to close flooded road, drowning of children in car that was swept away)
Stephen F. Austin State Univ. v. Flynn, No. 04-0515 (Tex. Jun. 29, 2007)(Medina)(Recreational Use
Statute, TTCA, plea to the jurisdiction, sovereign immunity; suit dismissed as jurisdictionally barred)
Justice Hecht wrote a concurring opinion in Stephen F. Austin State University v. Flynn
PETITIONS DENIED BY THE TEXAS SUPREME COURT
IN TORT CLAIMS ACT APPEALS
08-0594
TRUDY LEGGETT, INDIVIDUALLY AND AS HEIR OF NATHAN LEGGETT, DECEASED v. CITY OF AUSTIN,
TEXAS; from Travis County; 3rd district (03-07-00345-CV, 257 SW3d 456, 06-12-08)(TTCA, drowning
death, flooded street, sovereign immunity)
07-0457
LINDA THOMAS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAMON
HOLLIMON, DECEASED AND ASHLEY DOMINQUE HOLLIMON, INDIVIDUALLY v. GLENDA PIERSON; from
Walker County; 1st district (01-04-01084-CV, ___ SW3d ___, 04-19-07, pet. denied Aug. 2008)
(TTCA, Tort Claims Act, prisoner killing by guards) as amended, as reinstated
08-0330
DALLAS COUNTY, TEXAS v. BRAD ERNEST NADEAU; from Dallas County; 5th district (05-07-00236-CV,
___ SW3d ___, 02-05-08, pet. denied Aug. 2998) (TTCA, notice of claim requirement, plea to the jurisdiction
denied)
Dallas County, Texas appeals the trial court's denial of its motion to dismiss and plea to the jurisdiction. In a
single issue, Dallas County argues the trial court erred in denying its motion to dismiss and plea to the
jurisdiction because Nadeau failed to give notice of his suit under section 89.0041 of the Texas Local
Government Code. We affirm the trial court's order denying Dallas County's motion to dismiss and plea to
the jurisdiction.
08-0305
MARCUS A. GIPSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF GWENDOLYN
FOSTER, DECEASED, ET AL. v. CITY OF DALLAS; from Dallas County; 5th district
(05-07-00628-CV, 247 SW3d 465, 03-11-08, pet. denied Jun 2008) (TTCA, immunity, firefighters,
emergency services)
Appellants 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.
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' lawsuit.
08-0184
TY BOTKIN AND MICHELLE BOTKIN, INDIVIDUALLY AND AS NEXT FRIENDS OF S.B., A MINOR v.
KERRVILLE INDEPENDENT SCHOOL DISTRICT; from Kerr County; 4th district (04-07-00733-CV, ___ S.W.
3d ___, 02-06-08, pet. denied 2008) (TTCA, plea to jurisdiction sustained)
S. B. was injured while driving through a traffic control gate at KISD's premises.
REVERSED AND RENDERED Appellant Kerrville Independent School District ("KISD") brings this
interlocutory appeal stemming from the trial court's order denying its plea to the jurisdiction on Appellees Ty
Botkin's and Michelle Botkin's claims (collectively "Botkins"). In two issues, KISD states that the trial court
erred in denying its plea to the jurisdiction because (1) the Botkins' alleged facts and claims do not fall within
the limited waiver of immunity for school districts and (2) they failed to exhaust their administrative remedies.
Because we hold that the Botkins failed to invoke the trial court's subject matter jurisdiction pursuant to the
Texas Tort Claims Act, we reverse the judgment of the trial court and render judgment dismissing the case
for lack of jurisdiction. * * *
The Botkins had the burden to affirmatively demonstrate an express waiver of immunity. Because the
Botkins' allegations are unrelated to KISD's use or operation of a motor vehicle, we conclude that the
Botkins' claims do not fall within the waiver of immunity for school districts under the Act. Accordingly, the trial
court erred in denying KISD's plea to the jurisdiction. We sustain KISD's first issue.
08-0222
PEGGY JOHNSON v. JOHNSON COUNTY, TEXAS; from Johnson County; 10th district
(10-07-00095-CV, ___ S.W.3d ___, 01-30-08, pet. denied May 2008) (prisoner suicide, TTCA, immunity)
Eugene Johnson hanged himself with the mattress cover in a Johnson County jail cell. Appellant brought
suit against Johnson County, and now appeals the trial court’s dismissal of her cause of action. We affirm * *
*
Johnson County’s incarcerating Eugene Johnson in a jail cell containing a mattress cover did not constitute a
use of that property proximately causing his death within the meaning of Civil Practice and Remedies Code
Section 101.021. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Evidence favorable to Appellant being
taken as true, the trial court did not err in granting Johnson County’s plea to the jurisdiction and dismissing
Appellant’s cause of action.[3] We overrule Appellant’s issue.
07-0949
DALLAS COUNTY, TEXAS v. FLORECE COUTEE, ET AL.; from Dallas County; 5th district
(05-06-01695-CV, 233 SW3d 542, 08-28-07, pet. denied April 2008)(TTCA plea to the jurisdiction properly
denied)
In this accelerated, interlocutory appeal, appellant Dallas County challenges the trial court's order denying
its motion to dismiss and plea to the jurisdiction in a suit brought by appellees Florece Coutee, Dajuanna
Hamilton, and Tonjou Smith under the Texas Tort Claims Act. The appellees sued for injuries allegedly
resulting from a vehicle collision.
In the sole issue presented, Dallas County contends the trial court erred in denying its motion to dismiss and
plea to the jurisdiction because appellees did not provide written notice of the suit to the county judge and
district attorney having jurisdiction to defend the county in a civil suit within thirty business days after the suit
was filed. Dallas County contends this notice is required by section 89.0041 of the Texas Local Government
Code. We conclude section 89.0041 of the Texas Local Government Code is not applicable to this case. We
decide against Dallas County on its sole issue.
08-0184
TY BOTKIN AND MICHELLE BOTKIN, INDIVIDUALLY AND AS NEXT FRIENDS OF S.B., A MINOR v.
KERRVILLE INDEPENDENT SCHOOL DISTRICT; from Kerr County; 4th district (04-07-00733-CV, ___ S.W.
3d ___, 02-06-08, pet. denied)(TTCA, plea to jurisdiction sustained)
Appellant Kerrville Independent School District ("KISD") brings this interlocutory appeal stemming from the
trial court's order denying its plea to the jurisdiction on Appellees Ty Botkin's and Michelle Botkin's claims
(collectively "Botkins"). In two issues, KISD states that the trial court erred in denying its plea to the
jurisdiction because (1) the Botkins' alleged facts and claims do not fall within the limited waiver of immunity
for school districts and (2) they failed to exhaust their administrative remedies. Because we hold that the
Botkins failed to invoke the trial court's subject matter jurisdiction pursuant to the Texas Tort Claims Act, we
reverse the judgment of the trial court and render judgment dismissing the case for lack of jurisdiction.
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