COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-17-00080-CV
THE CITY OF THE COLONY, APPELLANT
TEXAS
V.
MARK AND KIM RYGH APPELLEES
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 15-00533-431
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MEMORANDUM OPINION1
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I. INTRODUCTION
The primary question in this interlocutory appeal from the denial of
Appellant The City of The Colony, Texas’s jurisdictional plea is whether a nexus
1
See Tex. R. App. P. 47.4.
exists between the City’s use of a “Vac” truck to clear a blockage in a sewer main
and the property damage that Appellees Mark and Kim Rygh sustained when
their residence flooded with raw sewage. Because we resolve that question in
favor of the City, and because the Ryghs did not otherwise establish a waiver of
the City’s governmental immunity, we will reverse and render a judgment of
dismissal.
II. BACKGROUND
On the morning of April 23, 2014, the Ryghs awoke at their residence at
4033 Heron Cove Lane to discover that their toilets were stopped up and would
not flush. Kim left around 7:15 a.m. to take her grandson to school, but she was
back home by 7:30 a.m. Between then and 8:00 a.m., her residence “was
completely flooded with raw sewage coming up from the toilets and the showers.”
Meanwhile, at 7:15 a.m., Kim Rygh’s neighbor Jimmy Harper notified the
City that the “overflow” pipe on the side of his house at 4041 Heron Cove Lane
was expelling sewage into his yard. The City promptly responded by dispatching
members of its Water Distribution/Sewer Collection Division of its Public Works
Department to the area.
Depicted in the following image by a brown line, a 15” sewer main runs
under Heron Cove Lane and beyond that street’s cul de sac through an
unimproved area, with manholes located at the intersection of Heron Cove Lane
2
and Avocet Way (marked X-1), at the entrance of the cul de sac on Heron Cove
Lane (marked X-2), and at an unimproved area southeast of Holden Circle
(marked X-3):
Maintained by the City, the sewer main is “entirely gravity flow,” flowing
downstream in a northeasterly direction, as denoted by the arrows in the image
along its route. Residential properties tie in to the sewer main via lateral lines.
The Ryghs’ residence is adjacent to the manhole located at the intersection of
Heron Cove Lane and Avocet Way (X-1).
3
City employee Marco Chavez arrived in the area around 7:30 a.m. and
noticed sewage flowing out of the manhole located at the intersection of Heron
Cove Lane and Avocet Way (X-1). Suspecting that the sewer main had a
blockage, and knowing that the sewer main flowed downstream in a
northeasterly direction, he determined that the blockage had to be located at
some point northeast of the manhole, causing sewage to back up towards the
residences located upstream along Heron Cove Lane and into their laterals.2
Chavez therefore headed to the next downstream manhole—located at the
entrance of the cul de sac on Heron Cove Lane (X-2)—but it too was full of
sewage. Chavez then made his way to the unimproved area southeast of
Holden Circle—where the next downstream manhole is located (X-3)—but he
was unable to open the manhole because it was covered with brush. Chavez
radioed Hollis about the condition of the manhole and returned to Heron Cove
Lane to check on the upstream manholes.
2
In his affidavit, City employee Bobby Hollis explained how a blockage is
located:
[T]he crew takes manhole covers off to see if sewage in the main is
backed up into the manhole. If so, they continue downstream until
they eventually locate a manhole that is dry. When a dry manhole is
located[,] they know that the blockage in the main is between the dry
manhole and the last upstream manhole that contained sewage that
had backed up into it.
4
When Hollis arrived at the unimproved area southeast of Holden Circle, he
cleared the brush from around the manhole, opened it, and discovered that it was
dry inside, meaning that the blockage was located somewhere between that
manhole (X-3) and the upstream manhole located at the entrance of the cul de
sac on Heron Cove Lane (X-2). Hollis radioed to his crew to bring the Vac truck
to nearby Holden Circle.
In his affidavit, Hollis explained what the Vac truck is and how it functions:
The Vac truck consists of a Sterling Anterra vehicle. In the front of
the vehicle there is a reel that contains approximately five hundred
(500) feet of hose. The hose is blue in color except for the leader
hose which is black in color and is approximately twenty (20) feet
long. When used to clean a blockage in a sewer main, a cleaning
nozzle is attached to the front of the leader hose. The Vac truck is
powered by the engine of the truck and switches which activate a
PTO (“power take off”) [that] sends pressurized water from the tank
located on the back of the truck through the hose and eventually to
the nozzle.
....
. . . [T]he nozzle . . . is lowered [down the dry manhole and
into the sewer main via a horseshoe shaped trough or invert], the
PTO is activated[,] and pressurized water is propelled downstream
out of the back of the nozzle[,] which propels [the nozzle] upstream
toward the blockage. Initially, about 800 psi (“pressure per square
inch”) is used so that the nozzle can begin moving forward
approximately 3 to 5 feet past the opening in the invert and out of
sight. At that point, the psi is increased to approximately 2,000 to
2,500 psi[,] and the nozzle is propelled forward upstream in the main
much like a jet ski until it strikes and breaks through the blockage[,]
which allows the sewage backed up behind it to flow downstream
toward, through, and past the downstream dry manhole. [Emphasis
added.]
5
After City employee Robert Willis arrived with the Vac truck, he affixed the
nozzle to the hose and lowered it into the sewer main through the invert facing
upstream. The crew activated the PTO, which pressurized the water through the
hose and propelled the nozzle forward, simultaneously discharging water
downstream. The nozzle travelled upstream ten to fifteen feet before it
encountered the blockage, but it failed to break through it. Willis pulled the hose
back and released it, and on this second attempt, the nozzle broke through the
blockage, causing the sewage to immediately begin flowing downstream away
from the residences on Heron Cove Lane. Chavez, who was positioned at the
upstream manhole located at the entrance of the cul de sac on Heron Cove Lane
(X-2), saw the sewage immediately begin to recede in the manhole. At some
point soon thereafter, Hollis met Kim, who showed Hollis that sewage had
backed up into her residence.
The Ryghs later sued the City, alleging that its employees’ negligent use of
the Vac truck to break through the blockage in the sewer main had caused the
sewage to back up into their residence. The Ryghs also alleged that the
employees were negligent for failing to notify them—either before or after the
employees used the Vac truck—that their residence could be flooded with raw
sewage. The Ryghs averred that their residence had sustained damages in the
amount of $68,795.94. The City filed a motion for summary judgment or,
6
alternatively, a plea to the jurisdiction, arguing that the Ryghs had failed to allege
any claim within the Texas Tort Claims Act’s (TTCA) limited waiver of immunity.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011). The trial court
denied the motion and plea, and this interlocutory appeal followed. See id.
§ 51.014(a)(8) (West Supp. 2017).
III. THE CITY’S GOVERNMENTAL IMMUNITY REMAINS INTACT
In what we construe as its first and second issues, the City argues that the
Ryghs failed to invoke the trial court’s subject-matter jurisdiction by establishing a
waiver of the City’s governmental immunity under TTCA’s motor-vehicle
exception—the only provision of the TTCA that the Ryghs rely upon to show
waiver. Specifically, the City contends (1) that its employees’ use of the Vac
truck did not, as a matter of law, cause the Ryghs’ residence to flood and (2) that
the employees’ alleged failure to notify the Ryghs that their residence could flood
did not relate to the employees’ operation or use of the Vac truck. The Ryghs
respond that their claims fall within the TTCA’s motor-vehicle exception.
A. Standard of review.
A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for
lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004). Immunity from suit defeats a trial court’s subject-matter jurisdiction
and, thus, is properly asserted in a plea to the jurisdiction. See Tex. Dep’t of
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Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225‒26 (2004). We review the trial
judge’s ruling denying a jurisdictional plea based on governmental immunity
de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849,
855 (Tex. 2002).
A plea to the jurisdiction may challenge either the pleadings or the
existence of jurisdictional facts. Miranda, 133 S.W.3d at 226‒27. When a plea
to the jurisdiction challenges a plaintiff’s pleadings, we consider whether the
pleader has alleged sufficient facts to demonstrate the court’s subject-matter
jurisdiction over the matter, construing the pleadings liberally in favor of the
plaintiff and looking to the pleader’s intent. Id.; see City of Waco v. Kirwan, 298
S.W.3d 618, 621 (Tex. 2009). If a plea to the jurisdiction challenges the
existence of jurisdictional facts, we consider relevant evidence submitted by the
parties when necessary to resolve the jurisdictional issues that have been raised.
Miranda, 133 S.W.3d at 227. 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.
B. The TTCA’s motor-vehicle exception.
Governmental immunity protects political subdivisions of the State,
including cities like the City, from lawsuits for money damages unless immunity
has been waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374
8
(Tex. 2006). The TTCA provides a limited waiver of immunity for property
damage that is proximately caused by the negligence of an employee acting
within the scope of his employment if (i) the damage “arises from the operation or
use of a motor-driven vehicle” and (ii) “the employee would be personally liable to
the claimant according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(1). The City’s arguments home in on the former statutory language.
The supreme court has repeatedly clarified that the phrase “arises from”
requires a nexus between the operation or use of the motor-driven vehicle and
the plaintiff’s personal injuries and property damage. Dallas Area Rapid Transit
v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); LeLeaux v. Hamshire-Fannett ISD,
835 S.W.2d 49, 51 (Tex. 1992). This nexus requires more than mere
involvement of property; the vehicle’s operation or use must have actually
caused the injury. Whitley, 104 S.W.3d at 543. Thus, 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.” Id. (quoting Dallas Cty. Mental Health & Mental
Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex.), cert. denied, 525 U.S. 1017
(1998)).
As for the terms “operation” and “use,” we define them according to their
ordinary meanings. See Mount Pleasant ISD v. Estate of Lindburg, 766 S.W.2d
208, 211 (Tex. 1989) (for purposes of motor-vehicle exception, defining
9
“operation” to mean “a doing or performing of a practical work” and “use” to mean
“to put or bring into action or service; to employ for or apply to a given purpose”).
C. There is no causal nexus between the City’s use of the Vac truck to
clear the blockage and the sewage that flooded the Ryghs’ residence.
The jurisdictional evidence demonstrates that Willis lowered the nozzle into
the sewer main so that when the water on the Vac truck was pressurized, it
propelled the nozzle upstream toward the blockage and the pressurized water
downstream away from the blockage. Thus, as both Willis and City employee
Gerardo Vasquez explained in their affidavits, no water was sent upstream
toward the residences on Heron Cove Lane, including the Ryghs’ residence,
which was estimated to be a lengthy 423 feet upstream from the blockage. As
for the nozzle itself, when asked at his deposition whether the Vac truck could
have pushed the wastewater upstream when the nozzle broke through the
blockage, Hollis testified,
A. Nope.
Q. How do you know?
A. It’s not how it works.
Q. How do you know?
A. It’s designed and engineered to do this. It’s not designed and
engineered to flood houses.
10
Joseph Chase, Supervisor of the City’s Water Distribution/Sewer Collection
Division, echoed Hollis’s testimony at his deposition:
Q. Okay. But if there’s a stoppage . . . and something hits that
blockage to clear it, . . . does it just break the blockage in your
estimation and your experience?
Or does it . . . force the water back . . . .
A. It just breaks the blockage.
Once the nozzle broke through the blockage, the crew immediately shut off
the pump that pressurized the water to send the nozzle upstream, and several
City employees observed the sewage flowing downstream, away from the Ryghs’
residence.3 In fact, according to Chavez, who was monitoring the next upstream
manhole (X-2) from the time the crew lowered the Vac truck hose into the dry
manhole (X-3) until when the blockage was cleared, at no point “did any water or
sewage reverse flow and travel upstream back toward [his] manhole.”
Consequently, Hollis, Willis, and Vasquez each opined that the Vac truck did not
cause the sewage to back up into the Ryghs’ residence.
The only sentence in the Ryghs’ response that gives us any pause is this
one: “Appellees’ home did not flood until the line was cleared at approximately
8:00 a.m. or thereafter.” The record, however, does not support that statement.
3
Chase confirmed in his deposition that “[w]ater doesn’t run upstream.”
11
Kim Rygh swore in her own affidavit that her residence was “completely
flooded with raw sewage” “[b]etween 7:30 a.m. and 8:00 a.m.”—not “at
approximately 8:00 a.m. or thereafter.” Thus, Kim’s own affidavit contradicts the
statement in her brief.
Moreover, the statement fails to coincide with the City’s response times.
Although Chavez arrived at Heron Cove Lane sometime around 7:30 a.m., Hollis
did not clock in at work until 7:54 a.m., and Willis did not clock in until 7:59 a.m.
Just before he left work to go to Heron Cove Lane, Hollis saw Willis and advised
him that the sewer main was backed up and that he needed to respond in the
Vac truck. After getting the Vac truck “set up and ready to go,” Willis and another
crew member headed over to Heron Cove Lane in the Vac truck. When Hollis
discovered that the manhole located at the unimproved area southeast of Holden
Circle (X-3) was dry, he contacted Willis, who was still en route, and told him to
go to Holden Circle. After the Vac truck arrived there, the crew initiated the
procedure to clear the blockage. Chavez recalled that it took him nine or ten
minutes to drive from work to Heron Cove Lane without any stops.
Cross-referencing the employees’ affidavits, if it took Chavez nine or ten
minutes to travel from work to Heron Cove Lane, then it is safe to assume that it
would have taken Willis a similar amount of time to drive the Vac truck from work
to Holden Circle. If Willis did not leave work in the Vac truck until some point
12
after he clocked in at 7:59 a.m., then he and the crew could not have conducted
the procedure to clear the blockage in the sewer main until sometime after 8:00
a.m.—after the Ryghs’ residence had already “completely flooded with raw
sewage.”
The Ryghs alternatively argue that there are at least material fact issues
apropos to “the exact cause of the flooding,” but we are not tasked in this appeal
with determining “the exact cause of the flooding.” Our narrow inquiry here is
instead limited to examining whether a causal connection exists between the
City’s use of the Vac truck and the damage that the Ryghs sustained to their
residence.
The jurisdictional evidence conclusively establishes that the property
damage sustained by the Ryghs did not arise from the City’s use of the Vac truck
to clear the blockage in the sewer main. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.021(1)(A); Whitley, 104 S.W.3d at 543. The trial court therefore erred by
denying the City’s jurisdictional plea challenging the Ryghs’ claim that the City’s
negligent use of the Vac truck caused their residence to flood. We sustain the
City’s first issue.
D. The City’s alleged negligent failure to contact the Ryghs did not
involve the operation or use of the Vac truck.
The Ryghs additionally alleged that the City’s employees were negligent
for failing to notify them—either before or after the employees used the Vac
13
truck—that their residence could flood with sewage. Failing to notify the Ryghs
had nothing to do with operating or using the Vac truck; it merely implicated
human communications (or lack thereof). Insofar as there was any connection
between the complained-of omission and the City’s use of the Vac truck, it was
far too remote to satisfy Whitley’s well-established nexus requirement. The trial
court erred by denying the City’s jurisdictional plea challenging the Ryghs’ claim
that the City’s employees were negligent for failing to notify the Ryghs that their
residence could flood. See Tex. Dep’t of Transp. v. City of Floresville Elec.
Power & Light Sys., 53 S.W.3d 447, 455‒56 (Tex. App.—San Antonio 2001, no
pet.) (“[Appellees’] claim seeks indemnification under section 752.008 of the
Texas Health and Safety Code based on [Appellant’s] failure to notify [Appellees]
before Neil began work on [Appellant’s] pole. Therefore, the basis of [Appellees’]
claim is [Appellant’s] failure to notify [Appellees], which does not involve . . . the
operation or use of a motor-driven vehicle.”). We sustain the City’s second
issue.4
4
Having sustained the City’s first and second issues, we need not address
its third issue arguing that an improperly installed clean-out pipe on the Ryghs’
property was the sole proximate cause of the flooding to their residence. See
Tex. R. App. P. 47.1.
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IV. CONCLUSION
Having sustained the City’s dispositive first and second issues, we reverse
the trial court’s order denying the City’s plea to the jurisdiction and render
judgment dismissing the Ryghs’ claims against the City for want of jurisdiction.
/s/ Bill Meier
BILL MEIER
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
WALKER, J., concurs without opinion.
DELIVERED: December 14, 2017
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