dissenting.
The majority opines that since the appellants challenged the summary judgment by specific points rather than by a general “Ma-looly” point of error, the summary judgment must be affirmed because there are other possible grounds upon which the trial court could have based the summary judgment. I disagree because, in my opinion, the other arguments alleged in the motion for summary judgment are not independent grounds upon which summary judgment could have been granted.
In their first amended petition, the War-ners pled negligence and gross negligence. In its motion for summary judgment, Orange County argued it was entitled to summary judgment based on the affirmative defense of sovereign immunity. Under the common-law doctrine of sovereign immunity, a governmental entity “is immune from tort liability for its own acts or the acts of its agents unless the Texas Tort Claims Act waives immunity.” City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.1998). Under the Tort Claims Act, a governmental unit 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 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; 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 1997).
In its motion for summary judgment, in support of its affirmative defense of sovereign immunity, Orange County argued (a) the Plaintiffs made no allegation of any condition or use of real property; (b) the Plaintiff’s allegations did not implicate the use of any tangible personal property; (c) the facts as alleged by the Plaintiffs do not amount to the use of an automobile as contemplated by the Texas Tort Claims Act; (d) the operation or use of the vehicle was not the proximate cause of the Plaintiffs injuries; (e) under section 101.055(3), the Texas Tort Claims Act does not apply to a claim arising from the failure to provide or the method of providing police protection; and (f) under section *359101.057(2), governmental entities are immune from liability for intentional torts committed by third parties. The trial court granted summary judgment without specifying the ground relied on.
On appeal, the Warners argue the trial court erred in finding the incident did not arise out of the use and operation of a motor driven vehicle and erred in that there remains a fact question as to whether the county’s negligence was a proximate cause of the event. Their appellate brief is restricted to these two arguments.
The majority holds that the summary judgment must be affirmed based on the Warners’ failure to address (e) and (f) listed above. I agree with the basic premise that if summary judgment may have been granted on a ground not challenged, the summary judgment must be affirmed. However, the ground relied on in granting the summary judgment must be an independent ground. See Jensen Const. Co. v. Dallas County, 920 S.W.2d 761, 767 (Tex.App. — Dallas 1996, writ denied) (when motion for summary judgment alleges more than one basis of support, and order granting motion is silent about the reason for granting the motion, appellant must show that each independent ground alleged in the motion is insufficient to support summary judgment). See also Winston v. American Medical Int'l, Inc., 930 S.W.2d 945, 951 (Tex.App. — Houston [1st Dist.] 1996, writ denied); Johnson v. Calhoun County Indep. School Dist., 943 S.W.2d 496, 499 (Tex.App. — Corpus Christi 1997, writ denied).
I do not agree that sections 101.057(2) and 101.055(3) are independent grounds. Both are exceptions to the limited waiver of immunity brought about by the act. In Delaney v. University of Houston, the Texas Supreme Court stated:
[I]f a claim is barred by immunity, but immunity is waived under sections 101.021-.022 of the Act, action is still prohibited if the claim falls within [an] exception. If, however, a claim is not barred by immunity, neither the waiver of immunity by the Act, nor the exceptions to that waiver, are relevant.
835 S.W.2d 56, 58 (Tex.1992). Therefore, a determination of whether the Warners’ claim is barred by either section 101.057(2) or 101.055(3) is to be made after it has been decided that sovereign immunity is waived under some other section of the Tort Claims Act. It is a two-step process. The first step is a determination of whether immunity has been waived under some provision of the act. In this case, to determine if sovereign immunity is waived by section 101.021, our analysis must focus upon whether the use or operation of a motor vehicle caused an injury to the plaintiff and whether the county’s negligence was the proximate cause of the event. If the resolution of this first step results in a finding that sovereign immunity has been waived, then the second step is to determine if an exception to the waiver applies, in this case 101.057(2) or 101.055(3).
Assuming the trial court granted summary judgment on one of these two exceptions, the judgment would have been dependent upon an initial determination that sovereign immunity had been waived. This determination that sovereign immunity had been waived would have included a finding that a motor vehicle had been used or operated and the county’s negligence was the proximate cause of the event. Thus, the exceptions, in this case, are dependent on the finding of the use of a motor vehicle and proximate cause. As stated earlier, these two issues were the focus of the Warners’ appellate brief. The question of whether a fact issue exists (as to proximate cause or the use or operation of a motor vehicle) is not answered. If a fact issue remains as to use or operation of a motor vehicle or proximate cause, the summary judgment would have been improperly granted. For these reasons I would proceed to determine the merits of the case.