Opinion Issued June 26, 2008
In The
Court of Appeals
For The
First District of Texas
NO. 01-07-00847-CV
MICHAEL ANTHONY EVANS, Appellant
V.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE—INSTITUTIONAL DIVISION, Appellee
On Appeal from the 405th District Court
Galveston County, Texas
Trial Court Cause No. 06CV0574
MEMORANDUM OPINION
Appellant, Michael Anthony Evans, sued the Texas Department of Criminal Justice—Institutional Division (“TDCJ”) for injuries he sustained while on board a prison bus. The trial court granted summary judgment in favor of TDCJ, who pleaded sovereign immunity. Evans contends that the trial court erred in (1) granting summary judgment; (2) denying his motion for summary judgment; and (3) denying his motion for new trial. We affirm.
Background
In February 2006, TDCJ was transporting Evans, an inmate, by bus to the hospital for medical treatment. When the driver stopped the bus at the hospital’s front gate, Evans got up to use the restroom at the back of the bus. While Evans was in the restroom, the bus moved forward. As the bus crossed the entrance, an officer lowered the security gate, which struck the top of the bus and damaged the clearance lights. Evans alleges that the collision threw him from side to side and, as a result, he sustained injuries to his neck, lower back, and groin.
According to the Administrative Incident Review report, the accident occurred when the bus driver drove into the sally port without leave to do so, and the officer activated the mesh gate without a clear signal from the ground. According to the report, both the driver and the officer erred in not allowing someone on the ground to signal them before taking action—either to drive forward or to lower the gate.
In response to Evans’s suit, TDCJ moved for summary judgment, claiming sovereign immunity. In its summary judgment motion, TDCJ asserted that it was immune from suit as a matter of law because its liability derives from the TDCJ employees’ liability, and the employees were immune because Evans has failed to file any evidence in support of a finding of gross negligence.
Summary Judgment
We review de novo the trial court’s grant of summary judgment. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We must make inferences, resolve doubts, and view the evidence in the light most favorable to the non-movant. Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). TDCJ’s motion for summary judgment contained both traditional and no-evidence grounds for summary judgment. See Tex. R. Civ. P. 166a(c), (i).
Under Rule of Civil Procedure 166a(c), summary judgment is properly granted only when the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215–16. The movant must establish that it is entitled to summary judgment as a matter of law on each element of its cause of action. Rhône-Poulenc, 997 S.W.2d at 223. Only if the movant conclusively establishes its cause of action does the burden shift to the non-movant to respond with evidence raising a genuine issue of material fact that would preclude summary judgment. Id. at 222–23. In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true, every reasonable inference must be indulged in favor of the non-movant, and any doubts must be resolved in favor of the non-movant. Knott, 128 S.W.3d at 215.
A no-evidence summary judgment motion asserts that no evidence exists as to at least one essential element of the non-movant’s claims on which the non-movant would have the burden of proof at trial. Bendigo v. City of Houston, 178 S.W.3d 112, 114 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.)). The trial court must grant the motion unless the non-movant produces summary judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We must ascertain whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Bendigo, 178 S.W.3d at 114.
When, as here, “a trial court’s order granting summary judgment does not specify the grounds relied upon, [we] affirm the summary judgment if any of the summary judgment grounds are meritorious.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73 (Tex. 2000). An appellant must negate all possible grounds. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.). If the appellant fails to negate each possible ground upon which the judgment may have been granted, an appellate court must uphold the summary judgment. See Ellis, 68 S.W.3d at 898.
TDCJ’s Motion for Summary Judgment
In his first three issues, Evans contends that the trial court erred in granting summary judgment for TDCJ on the grounds of sovereign immunity because a genuine issue of material fact exists as to whether TDCJ’s alleged negligence overcomes the heightened liability standard of section 497.096 of the Texas Government Code.
Sovereign Immunity
A governmental entity’s limited waiver of sovereign immunity is set out in Texas Civil Practice and Remedies Code section 101.021, which provides as follows:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or
use of a motor-driven vehicle or motor-driven equipment; and
(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 (Vernon 2005). When the governmental unit’s liability under section 101.021(2) is based on respondeat superior for an employee’s negligence arising from the misuse of tangible personal property, the liability is derivative or indirect. Gill v. Tex. Dep’t of Crim. Justice, 3 S.W.3d 576, 581 (Tex. App.—Houston [1st Dist.] 1999, no pet.). Respondeat superior imposes liability on the employer that is responsible for the acts of its employee, acting in the scope of his employment, when the negligence of the employee is shown to have been the proximate cause of injury. Id.
In support of its sovereign immunity claim, TDCJ relies on the following provision of the Texas Government Code:
An employee of the Texas Department of Criminal Justice, sheriff, employee of a sheriff’s department, county commissioner, county employee, county judge, employee of a community corrections and supervision department, restitution center, or officer or employee of a political subdivision other than a county is not liable for damages arising from an act or failure to act in connection with community service performed by an inmate imprisoned in a facility operated by the department or in connection with an inmate or offender programmatic or nonprogrammatic activity, including work, community service, educational, and treatment activities, if the act or failure to act was not intentional, willfully or wantonly negligent, or performed with conscious indifference or reckless disregard for the safety of others.
Tex. Gov’t Code Ann. § 497.096 (Vernon 2004) (emphasis added). TDCJ thus claims it retains its sovereign immunity because the bus driver and the officer are immune under section 497.096 if they did not act with intentional, willful, or wanton negligence or reckless disregard for the plaintiff’s safety, and the summary judgment record fails to raise a fact issue under this liability standard. See Cobb v. Tex. Dep’t of Criminal Justice, 965 S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.] 1998, no pet.). The Texas Supreme Court, this court, and other courts of appeals have equated section 497.096’s liability standard with gross negligence. See, e.g., Burk Royalty Co. v. Walls, 616 S.W.2d 911, 916–20 (Tex. 1981) (equating willful negligence, conscious indifference to the welfare of others, and reckless disregard for the rights of others with gross negligence); Wheeler v. Yettie Kersting Mem’l Hosp., 866 S.W.2d 32, 50 & n.25 (Tex. App.—Houston [1st Dist.] 1993, no writ) (equating willful negligence and reckless disregard with gross negligence); Morrone v. Prestonwood Christian Acad., 215 S.W.3d 575, 582 (Tex. App.—Eastland 2007, pet. denied) (equating extreme degree of risk indicating conscious indifference with gross negligence). We conclude, therefore, that, to fall within the exception to section 497.096, the TDCJ’s employee’s act or omissions must constitute “gross negligence.” Gross negligence is “more than momentary thoughtlessness, inadvertence or error of judgment. It means such an entire want of care as to establish that the act or omission was the result of actual conscious indifference to the rights, safety, or welfare of the person affected.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 20 (Tex. 1994) (italics omitted); see also Cobb, 965 S.W.2d at 63 (stating ordinary negligence rises to the level of gross negligence if defendant’s act or omission shows he was aware of danger and did not care enough to avoid it).
Gross negligence includes two elements: (1) viewed objectively from the actor’s standpoint, the act or omission must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others, and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.
Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex. 1998).
Analysis
TDCJ moved for summary judgment on the ground that Evans had produced no evidence to support a finding that the TDCJ employees “caused the bus and gate to hit either willfully or wantonly negligently, or with conscious indifference or reckless disregard to the Plaintiff’s safety.” Evans contends that TDCJ has waived this ground because TDCJ did not amend its motion for summary judgment after Evans amended his original petition to include an allegation of gross negligence. TDCJ, however, asserted that Evans produced no-evidence of gross negligence, an assertion that tracked the allegations in Evans’s third amended petition, the live pleading in this case. TDCJ therefore properly raised this ground in its summary judgment motion.
In his response to TDCJ’s motion, Evans did not produce any evidence to support a gross negligence claim. Evans instead attached evidence in support of his own summary judgment motion. This evidence includes TDCJ’s answers to Evans’s interrogatories, the administrative incident review report, a post order specifying the duties of the mezzanine picket officer, and Evans’s offender grievance forms. We review this evidence to determine whether it raises a fact issue.
None of the evidence Evans produced creates a fact issue that TDCJ’s acts or omissions, when viewed objectively from the officers’ standpoints at the time of the incident, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others. Moreover, Evans has not cited any evidence showing that the officers had an actual, subjective awareness of such a risk, but nonetheless proceeded with conscious indifference to the rights, safety, or welfare of others. See Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 171-73 (Tex. 2005) (concluding there was no evidence of gross negligence where defendant knew that certain valves were leaking, but did not know that leakage presented any danger of compressor explosion); see also Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex. 1993) (holding that no evidence of gross negligence existed for failing to warn and repair defect in sidewalk ramp where defect did not pose extreme risk of injury and when no other persons had fallen because of it). The record does not contain any evidence to show that either officer was aware of the other’s actions and thus, would have been aware of a substantial risk of harm to others. In addition, the administrative review report that Evans attached as evidence stated that the driver of the bus assumed that he could pull into the sally port without being signaled because it was empty. This does not support a finding that the bus driver was aware of the risk of his actions. Allegations are not sufficient to overcome summary judgment; the non-movant must have actual proof. Because Evans did not produce any evidence that the TDCJ officers were grossly negligent, he does not overcome the heightened liability standard applicable to his claim. See Tex. Gov’t Code Ann. § 497.096. Because the officers cannot be held personally liable under section 497.096, TDCJ is immune from suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021. We therefore hold that the trial court did not err in granting TDCJ’s summary judgment.
Evans’s Motions for Summary Judgment and New Trial
In his fourth and fifth issues, Evans contends that the trial court erred in denying his motion for summary judgment. He claims that the evidence on file and attached to his motion for summary judgment establishes that TDCJ was grossly negligent as a matter of law. The summary judgment evidence Evans attaches merely raises the issue of the defendant’s negligence; as we have discussed, it does not raise a fact issue as to gross negligence and thus, it cannot establish TDCJ’s gross negligence as a matter of law. We thus overrule Evans’s fourth and fifth issues.
In his final issue, Evans contends that the trial court erred in denying his motion for new trial. Evans’s motion reurges that the trial court deny TDCJ’s motion but does not raise any new argument or attach any new evidence. Having concluded that the trial court properly granted summary judgment for TDCJ, we hold that the trial court likewise did not err in denying Evans’s motion for new trial.
Conclusion
We affirm the judgment of the trial court.
Jane Bland
Justice
Panel consists of Justices Taft, Jennings, and Bland.