COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00152-CV
SOMCHAI SARAMANEE AND APPELLANTS
ANDREW TERRELL BOGGESS
V.
TOWN OF NORTHLAKE APPELLEE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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Appellants Somchai Saramanee and Andrew Terrell Boggess appeal from
the trial court‘s grant of Appellee the Town of Northlake‘s plea to the jurisdiction.
In three issues, Saramanee and Boggess argue that they pled sufficient facts to
establish a waiver of governmental immunity under section 101.021 of the Texas
Tort Claims Act (TTCA), that Northlake did not produce evidence establishing
1
See Tex. R. App. P. 47.4.
that section 101.021 does not apply, and that even if section 101.021 does not
waive immunity, immunity is waived under section 101.0215 for negligence
arising from Northlake‘s provision of police enforcement. Because we hold that
Saramanee and Boggess alleged sufficient facts to demonstrate a waiver of
immunity under section 101.021, we reverse the trial court‘s order dismissing
their claims.
While on patrol on October 7, 2007, Northlake Police Officer Nick
McGregor observed a group of motorcyclists driving on the freeway; two
motorcyclists in the front of the group were speeding and performing ―wheelies.‖
McGregor decided to stop the motorcyclists, and to do so, he drove onto the
freeway on ramp, crossed the white lines to get into the right lane, got in front of
the two motorcycles in the lane, and then stopped his car in the lane. Of the two
motorcyclists, one came to a stop and the other drove around the police car and
did not stop. McGregor opened his driver‘s side car door and exited his vehicle
on the driver‘s side. Boggess and Saramanee were among the motorcycle
drivers in the group, and an accident occurred when Saramanee struck
Boggess‘s motorcycle.
Boggess and Saramanee filed suit against the Town of Northlake, alleging
that McGregor was recklessly and grossly negligent in the operation of his police
vehicle. Northlake filed a plea to the jurisdiction, asserting governmental
immunity and contending that (1) Boggess and Saramanee had not stated a
claim for which the town‘s immunity from suit had been waived and (2) Boggess
2
and Saramanee had failed to allege facts showing either that their injuries had
been caused by the use or operation of a motor vehicle2 or by the condition or
use of tangible personal property.3
In their response, Boggess and Saramanee did not specify which section
of the TTCA waived immunity for their claims, but they asserted that there was ―a
clear nexus between [McGregor‘s] use of the vehicle‖ and their injuries, and they
used the ―arises from‖ language of section 101.021(1), impliedly arguing that
their injuries were caused by the operation or use of McGregor‘s vehicle. They
attached to their response an internal investigation memo from the Northlake
police department, which stated that McGregor had violated department
directives by using his vehicle to block the roadway and by failing to have due
regard for the safety of other vehicles on the roadway.
At the hearing on Northlake‘s plea to the jurisdiction, Boggess and
Saramanee put on evidence to show that the accident resulted from McGregor‘s
actions. The trial court watched the video from the in-car camera in McGregor‘s
vehicle. Boggess then testified about the accident. He stated that as he was
driving on the freeway, he saw an all-black car driving on the service road at a
high rate of speed. He saw the driver cut across the solid white line to get onto
2
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2011)
(waiving a governmental unit‘s immunity for injuries and damages arising from
the use or operation of a motor vehicle).
3
See id. § 101.021(2) (waiving immunity for damages resulting from the
use or condition of tangible property).
3
the interstate, come to a complete stop, and turn on its emergency lights. After
McGregor‘s car stopped, Boggess started slowing down to miss the vehicle,
―which [he] just thought was an erratic driver.‖ When McGregor exited the car,
Boggess saw that it was a police officer, ―so [he] took evasive action to make
sure that [he] did not contact the officer himself, which led to the accident.‖
Boggess also testified that he did not have a Class M certification on his driver‘s
license, and he acknowledged that other motorcycle drivers were able to pass
McGregor‘s vehicle to the left and on the shoulder to the right.
Northlake argued that the evidence did not show that it was the use of
McGregor‘s vehicle that directly caused Boggess‘s and Saramanee‘s damages,
but rather that McGregor‘s use of the vehicle merely created the condition that
made the accident possible. After hearing the evidence, the trial court concluded
that the damages did not arise from McGregor‘s use or operation of his motor
vehicle. The court noted that the evidence showed that another motorcyclist had
time to come to a complete stop behind McGregor‘s vehicle even though he had
been ahead of Boggess on the road and that McGregor had time to get out of his
vehicle before the accident occurred. The trial court also referenced Boggess‘s
testimony regarding why he swerved:
He says he sees the car coming at a high rate of speed, coming
down . . . the access road, pulling onto the road at a high rate of
speed. He doesn‘t think it‘s a police car, so I guess he just doesn‘t
care if it‘s not a police car. After [McGregor] stops, turns on his
lights, and . . . swings open the door and puts his feet [on the road],
then [Boggess] says, oh, it‘s a police officer, I guess I better swerve
4
it since it‘s a police officer. I mean, that—your client‘s testimony
doesn‘t make any sense in that regard.
The court then concluded, ―What I see when I look at the video[], and
coupled with your own client‘s testimony is, that the vehicle was in park, and the
officer‘s feet were on the pavement, he was not using or operating the motor
vehicle at the time the accident occurred.‖ The trial court then granted
Northlake‘s plea to the jurisdiction.
Governmental Immunity
The state has sovereign immunity from suit and from liability unless that
immunity has been waived.4 Cities, as political subdivisions of the state, are also
entitled to immunity—referred to as governmental immunity—both from suit and
from liability, except when that immunity has been waived.5
The TTCA waives immunity from liability for
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 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.6
4
State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
5
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
6
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
5
To the extent that the TTCA waives a governmental unit‘s immunity from liability,
it also waives the governmental unit‘s liability from suit.7
Standard of Review for Pleas to the Jurisdiction
We review a trial court‘s ruling on a plea to the jurisdiction de novo. 8 A
plaintiff has the burden of alleging facts that affirmatively demonstrate that the
trial court has subject-matter jurisdiction.9 Accordingly, because a governmental
unit has immunity from suit, a plaintiff asserting a claim against a governmental
unit must allege facts that affirmatively demonstrate that the legislature has
waived immunity for the claims brought.10
In determining a plea to the jurisdiction challenging the pleadings, that is,
asserting that the plaintiff has not met this burden, a court looks at the allegations
in the plaintiff‘s pleadings and accepts them as true.11 If, however, the plea to
the jurisdiction challenges the existence of jurisdictional facts, a court must also
consider the relevant evidence necessary to resolve the jurisdictional issues
7
Id. § 101.025(a) (―Sovereign immunity to suit is waived and abolished to
the extent of liability created by this chapter.‖).
8
Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 407 (Tex. App.—
Fort Worth 2006, pet. denied).
9
City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex. App.—Fort
Worth 2009, no pet.).
10
City of Arlington v. Randall, 301 S.W.3d 896, 906 (Tex. App.—Fort Worth
2009, pet. filed).
11
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Pakdimounivong, 219 S.W.3d at 407.
6
raised.12 When a jurisdictional challenge also implicates the merits of the
plaintiff‘s claim, then the trial court considers the evidence submitted by the
parties to determine if a fact question exists.13 If the evidence creates a fact
question about the jurisdictional issue, then the trial court cannot grant the plea to
the jurisdiction; instead, the trial court must leave the fact issue for determination
by the fact finder.14 But if the evidence is undisputed, or if the evidence does not
raise a fact question on the jurisdictional issue, the trial court rules on the plea to
the jurisdiction as a matter of law.15
Analysis
In their first issue, Saramanee and Boggess argue that they pled sufficient
facts to establish a waiver of governmental immunity under section 101.021
based on their allegations that McGregor operated and used a patrol car
negligently in a manner that caused an accident, resulting in Saramanee‘s and
Boggess‘s property damage and injuries.
In Northlake‘s plea to the jurisdiction, it challenged both the pleadings and
the existence of jurisdictional facts. With respect to Northlake‘s challenge to their
pleadings, Saramanee and Boggess had the burden to plead facts that, if true,
12
Miranda, 133 S.W.3d at 227.
13
Id.
14
Id. at 227–28.
15
Id. at 228.
7
demonstrate (1) that their damages were proximately caused by McGregor‘s
negligence or wrongful act during the scope of his employment, (2) that the
damages resulted from the operation or use of a motor-driven vehicle, and (3)
that McGregor would be personally liable to them under Texas law. 16 Northlake‘s
plea to the jurisdiction challenged their pleadings with respect to the ―operation or
use‖ element. In their petition, Saramanee and Boggess alleged that without
operating his siren or emergency lights, McGregor pulled onto the highway at a
high rate of speed directly in front of the motorcycle drivers and then ―suddenly
slammed on his brakes[,] forcing the motorcycles to take emergency evasive
action to avoid a collision with the patrol unit.‖ If such action on McGregor‘s part
constitutes the operation or use of a motor vehicle, and if the damages
complained of arose from this operation or use, then their pleadings sufficiently
alleged a waiver of immunity.17
At issue here are the terms ―arises from‖ and ―operation or use.‖ The term
―operation‖ means ―‗a doing or performing of a practical work,‘‖ and the term
―use‖ means ―‗to put or bring into action or service; to employ for or apply to a
given purpose.‘‖18 By use of the phrase ―arises from,‖ the statute ―requires a
16
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1); Miranda, 133
S.W.3d at 227.
17
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
18
LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.
1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766
S.W.2d 208, 211 (Tex. 1989)).
8
nexus between the injury negligently caused by a governmental employee and
the operation or use‖ of a vehicle by the employee. 19 The nexus ―requires more
than mere involvement of property.‖20 For immunity to be waived, the
employee‘s operation or use of the vehicle must not be merely part of a
sequence of events that ultimately results in the injury but must actually cause
the injury.21 If the vehicle is nothing more than the place where the plaintiff has
injured himself, or if the vehicle does no more than furnish the condition that
makes the injury possible, immunity is not waived.22
Saramanee and Boggess alleged in their petition that without operating his
siren or emergency lights, McGregor pulled onto the highway at a high rate of
speed directly in front of the motorcycle drivers and then ―suddenly slammed on
his brakes[,] forcing the motorcycles to take emergency evasive action to avoid a
collision with the patrol unit.‖ In their response to Northlake‘s plea, they asserted
that McGregor slammed on his brakes to block their path at a time when they did
not have sufficient time or distance from his vehicle to stop. These facts do not
19
Id.
20
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003).
21
Id.
22
Id.; LeLeaux, 835 S.W.2d at 51; see also Dallas County Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (holding that
immunity is not waived based on the use or condition of tangible property when
the use or condition of the property was too attenuated from the injury to be said
to have caused it).
9
allege that McGregor‘s actions with his vehicle merely furnished a condition that
made the accident possible or that his actions were merely part of a sequence of
events that ultimately led to their injuries. They allege that Boggess had to take
emergency evasive action to avoid hitting McGregor because of McGregor‘s
actions and that McGregor‘s operation of his vehicle was the reason for and
actual cause of Boggess‘s swerving into the left lane and Saramanee‘s resulting
collision with Boggess. Saramanee and Boggess‘s pleadings thus alleged facts
showing that their injuries arose from McGregor‘s use or operation of his
vehicle.23 Accordingly, we hold that Saramanee and Boggess sufficiently pled a
waiver of Northlake‘s immunity. We sustain their first issue.
In their second issue, Saramanee and Boggess argue that Northlake did
not meet its burden to prove that their injuries and property damage did not arise
from and were not caused by McGregor‘s operation or use of his patrol car. In
addition to challenging Saramanee and Boggess‘s pleadings, Northlake also
challenged the existence of jurisdictional facts, that is, it argued that the facts of
the case did not give rise to jurisdiction. Because the facts as pled sufficiently
alleged a waiver of immunity, in order to prevail on its plea, Northlake had to
show that despite what Saramanee and Boggess pled, their damages actually
23
See, e.g., Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex. App.—Dallas
1987, no writ) (holding that the plaintiffs had alleged a waiver of immunity based
on the operation of a motor-driven vehicle when they alleged that a bus driver
failed to activate the flashers or warning signals of the school bus when children
were exiting and that their daughter was struck by a car as she crossed the street
immediately after exiting the bus).
10
arose in some manner other than as alleged and that the manner in which the
damages arose did not support a waiver of immunity.
Northlake alleged below that the damages complained of did not arise from
McGregor‘s operation or use of his motor vehicle because the damages were
actually caused when Saramanee drove his motorcycle into Boggess‘s
motorcycle. And again on appeal, Northlake points out that at the time of the
accident, McGregor‘s vehicle was not being used or operated. But what matters
is not whether McGregor was driving his vehicle at the exact moment of the
collision, but whether McGregor did actually use or operate his vehicle and
whether that use or operation gave rise to the injuries. Northlake had the burden
to bring forth favorable evidence on this point.24 If it did so, Saramanee and
Boggess would then have had the burden to submit evidence raising an issue of
fact on the issue of jurisdiction.25
The trial court considered evidence submitted by both sides about the
cause of the accident.26 The evidence conflicted about whether, as Northlake
police department‘s report stated, Saramanee and Boggess ―possibly were
unable to see [McGregor‘s] vehicle parked in the roadway due to the other
motorcycles in front of them,‖ or whether, as Boggess testified, he did see
24
See Miranda, 133 S.W.3d at 227.
25
See id.
26
See id.
11
McGregor‘s vehicle. The evidence also conflicted on whether Boggess had
come to a stop at the time that he was struck by Saramanee. Boggess also gave
seemingly contradictory evidence about whether he could have avoided hitting
McGregor‘s vehicle without swerving into the left lane, at one point stating that if
McGregor had not exited the patrol car, he could have stayed in the same lane
and passed the vehicle without moving into the left lane, and stating at another
point that his only choice was between moving into the left lane and hitting
McGregor‘s vehicle.
The trial court was not called upon, however, to resolve these factual
disputes because while the evidence may raise questions of fact about the merits
of Saramanee and Boggess‘s claims, it does not raise questions of fact on the
issue of jurisdiction.27 Regardless of whether Boggess stopped his motorcycle
and was then hit by Saramanee or was hit by Saramanee because he swerved
into Saramanee‘s driving lane, and regardless of whether it was McGregor or his
vehicle that Boggess was attempting to avoid hitting, even Northlake‘s evidence
showed that McGregor‘s actions directly set in motion the rapid sequence of
events that resulted in the accident, either because Boggess took evasive action
to avoid hitting McGregor or his vehicle (after McGregor used his vehicle by
27
See id. at 227–28 (stating that if the evidence creates a fact question on
the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction
and must leave the fact issue for the fact finder, but that if the relevant evidence
fails to raise a fact question on the jurisdictional issue, then the trial court rules on
the plea to the jurisdiction as a matter of law).
12
stopping on the freeway and by opening the door) or because McGregor used his
vehicle as a blockade, resulting in Boggess stopping his motorcycle and
Saramanee striking it almost immediately after the stop. Without regard to what
the evidence at trial will ultimately show, under any of the factual scenarios
supported by the evidence submitted to the trial court for jurisdictional purposes,
Northlake failed to show that Saramanee‘s and Boggess‘s damages did not arise
from McGregor‘s use or operation of his vehicle.28
Northlake contends that the video from the in-car camera in McGregor‘s
vehicle conclusively showed that his use of the vehicle was too attenuated from
the accident. It argues that the video demonstrated a gap of eight to fourteen
seconds between when McGregor stopped and when the accident occurred and
a gap of twelve to eighteen seconds between the time at which McGregor
activated his emergency lights and the time of the accident. Northlake bases its
calculations on the time stamp on the video, from the time at which the video
shows McGregor entered the freeway and the time at which McGregor can be
heard saying ―What happened? You okay?‖ Even assuming that a time gap of
less than thirty seconds between two events could make the second event too
attenuated from the first to show causation, Northlake is incorrect that the video
28
See Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 867 (Tex.
App.—Austin 2001, pet. denied) (holding that the trial court did not err by denying
a school district‘s plea to the jurisdiction because school bus driver‘s affirmative
act in honking to signal to a student that the street was safe to cross was a use of
the bus and may have contributed to the accident); Hitchcock, 738 S.W.2d at 37.
13
conclusively shows that McGregor‘s vehicle did no more than furnish a condition
that made the injuries possible. The camera was facing forward, and therefore it
did not record the accident or any events that happened behind McGregor‘s
vehicle. The video thus does not conclusively establish sufficient attenuation
between McGregor‘s actions and the accident.
Northlake cites cases that it urges this court to follow, but those cases are
distinguishable. This is not a case in which the facts alleged in the pleadings or
the evidence demonstrated that Boggess and Saramanee could have avoided
the accident if they had not ignored McGregor‘s flashing lights until it was too
late.29 Nor is this a case when the plaintiffs‘ allegations showed or the evidence
before the trial court proved that Boggess chose to move over into another lane
instead of stopping; here, Boggess alleged and testified that he did not have time
to stop, and Northlake‘s evidence did not conclusively prove otherwise.30 Finally,
this case is not one in which the plaintiffs were injured because they attempted to
evade the police instead of yielding to a traffic stop.31 None of the cases cited by
29
See City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied) (holding that immunity was not waived when the
plaintiff‘s injuries resulted from a driver ignoring the flashing lights of two police
cars and striking the vehicle in which the plaintiff was sitting).
30
See Tex. Dep’t of Pub. Safety v. Grisham, 232 S.W.3d 822, 827 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (holding that immunity was not waived
when the plaintiff driver, upon seeing a stopped patrol car on the shoulder, chose
to move into the left lane, which was obstructed by a vehicle, instead of slowing
down).
14
Northlake addressed a scenario in which a government employee‘s use or
operation of a vehicle creates a situation that requires immediate evasive action
that results in injuries. Accordingly, we sustain Saramanee and Boggess‘s
second issue.
Because we have sustained their first two issues, which are dispositive, we
do not reach Saramanee and Boggess‘s third issue in which they argue that
Northlake‘s immunity was waived under section 101.0215 of the TTCA.32
Having sustained Saramanee and Boggess‘s dispositive issues, we
reverse the trial court‘s order dismissing their claims for want of jurisdiction and
remand this cause for further proceedings.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: March 17, 2011
31
See City of Dallas v. Hillis, 308 S.W.3d 526, 535 (Tex. App.—Dallas
2010, pet. filed) (concluding that the police officer‘s use of his patrol car was too
attenuated from the plaintiff‘s conduct to constitute a cause of the plaintiff‘s
injuries when the police officer attempted to initiate a traffic stop of the plaintiff
and, instead of stopping, the plaintiff accelerated, attempted to flee, and
ultimately lost control of his motorcycle).
32
See Tex. R. App. P. 47.1.
15