Date: 05-15-2022

Case Style:

Nathan White v. City of Houston

Case Number: 01-20-00415-CV

Judge: Gordon Goodman

Court:

Court of Appeals For The First District of Texas

On appeal from The 61st District Court Harris County, Texas

Plaintiff's Attorney:

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Defendant's Attorney: Lydia S. Zinkhan
Robert W. Higgason

Description:

Houston, Texas - Personal Injury lawyer represented Appellant with a personal injury claim.

White alleged that an unsecured firehose became entangled in his car’s rear
axle as one of the City’s firetrucks passed him on the street. The firetruck then
dragged his car for about 30 feet before the hose came free. He asserted a cause of
action for negligence complaining of the following acts or omissions:
a. failing to properly stow and secure equipment, including the subject
fire hose, on the fire truck, which the operator knew or should have
known posed a high degree of risk of serious injury to persons,
including Plaintiff;
b. failing to maintain a proper lookout while operating the fire truck;
c. allowing an item appurtenant to the fire truck or vehicle equipment
to trail behind the fire truck while operating on public roads;
d. failing to mark items extending from and trailing behind the fire
truck in a safe and proper manner;
e. failing to maintain proper control of items appurtenant to the fire
truck [and/or] vehicle equipment;
f. failing to operate the fire truck in a reasonable and prudent manner
under the circumstances then existing;
g. failing to comply with all applicable laws or ordinances that apply
to an emergency situation, if any;
h. violating the terms and provisions of the Texas Transportation
Code; and
i. upon information and belief, there are other acts of negligence,
incompetence, recklessness, and/or omissions which may be
proved at trial.
White sought to recover damages for personal injuries he sustained in the accident
and medical expenses he incurred as a result.
3
White pleaded that the City had waived its governmental immunity under the
Texas Tort Claims Act’s waiver of immunity for personal injury arising from the
operation or use of a motor-driven vehicle and motor-driven equipment. See TEX.
CIV. PRAC. & REM. CODE § 101.021(1). He further alleged that the emergency
exception did not apply because the City’s firefighters did not comply with laws or
ordinances applicable to the emergency action or else acted with reckless disregard
for the safety of others. See id. § 101.055(2).
After discovery, the City filed a plea to the jurisdiction. In its plea, the City
maintained the evidence showed the firetruck was on an emergency call at the time
of the accident, its crew did not operate the truck in a reckless manner and did not
violate any laws en route, and its crew was not aware that the hose had come loose
and caused the accident until after the fact. The City argued that it had not waived
its immunity under the circumstances for three reasons:
(1) because the firefighters were dispatched to an emergency, the emergency
and 911-emergency-service exceptions negated any waiver of liability
that otherwise could apply to the accident under the Tort Claims Act;
(2) the firefighters have official immunity, which in turn negates the City’s
liability for negligent use of a motor-driven vehicle or motor-driven
equipment because the City’s governmental immunity for negligence of
this kind is waived only to the extent the firefighters would be liable; and
(3) because the hose was not in use when it came loose from the truck and
caused the accident, the Tort Claims Act’s waiver of immunity for injury
caused by a condition or use of tangible property did not apply.
See id. §§ 101.021(1)(B), 101.021(2), 101.055(2), 101.062(b).
4
In support of these arguments, the City attached several documents to its
jurisdictional plea, including the Houston Police Department report on the accident;
the affidavit of J.P. Cody, a Captain with the Houston Fire Department; and the
transcript of Cody’s deposition.
White opposed the City’s jurisdictional plea. In his response, White
emphasized that he alleged the firefighters committed negligent acts and omissions
both while on the road and beforehand. White supported his opposition with excerpts
from the depositions of the four firefighters who crewed the firetruck in question
when the accident occurred—Captain Cody, N. Evans, J. Clemente, and C. Hershey.
The trial court granted the City’s plea and dismissed White’s claims.
White appeals.
DISCUSSION
On appeal, the issues have narrowed. White argues that the City’s immunity
is waived under the Tort Claims Act’s provision for liability when personal injury is
caused by a condition or use of property. He posits that the City’s firefighters
negligently stowed and secured the hose that came loose and that this negligence
caused his injuries. White also argues that because there is evidence that the
firefighters’ negligence occurred three hours before the accident, the emergency
exception does not bar his negligence claim as a matter of law.
5
Standard of Review
Governmental immunity protects political subdivisions, like cities, from
lawsuits unless the Legislature has clearly and unambiguously waived that
immunity. City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457 (Tex.
2020). An assertion of governmental immunity implicates subject-matter
jurisdiction and is properly raised in a plea to the jurisdiction. Id.
When a governmental unit asserts immunity, the plaintiff must show that the
trial court has jurisdiction by alleging a valid waiver of immunity. Ryder Integrated
Logistics v. Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015) (per curiam). If the plea
challenges the plaintiff’s pleadings, the court must determine whether the plaintiff
has alleged facts that affirmatively demonstrate that there is jurisdiction. Id. In doing
so, the court must liberally construe the pleadings in the plaintiff’s favor. City of
Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018).
The parties may also submit evidence in connection with a jurisdictional plea.
Chambers–Liberty Ctys. Nav. Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). The
trial court’s review of any evidence mirrors the summary-judgment standard. Id. If
the evidence creates a fact question as to the jurisdictional issue, the trial court cannot
grant the plea, and the fact issue must be resolved by the factfinder. Id. But if the
evidence is undisputed or does not raise a fact question on the jurisdictional issue,
the trial court rules on the jurisdictional plea as a matter of law. Id.
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We review the trial court’s ruling on a jurisdictional plea de novo. Id. We
likewise review any questions of statutory construction de novo. Id.
Applicable Law
Waiver of Immunity for Injury Caused by a Condition or Use of Property
Under the Tort Claims Act, a governmental unit is liable for “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 § 101.021(2).
A condition of tangible personal property can refer to an intentional or an
inadvertent state of being. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388
(Tex. 2016). To invoke waiver based on a condition of tangible personal property,
the plaintiff must allege that the property was defective or inadequate so that its
intended and ordinary use posed a hazard to him. Id.
To invoke waiver based on use of tangible personal property, the plaintiff
must allege that the governmental unit put or brought the property into action or
service or employed the property for or applied it to a given purpose. Tex. Dep’t of
Crim. Justice v. Rangel, 595 S.W.3d 198, 206 (Tex. 2020). This use of the property
must have actually caused the plaintiff’s injury. Id. Moreover, the plaintiff’s alleged
injury must be contemporaneous with the property’s use to qualify under this waiver
of immunity. Harris Cty. v. Annab, 547 S.W.3d 609, 613 (Tex. 2018).
7
By definition, the non-use of or failure to use property is not a use of property.
Id. at 614. Hence, an allegation that a governmental unit failed to use property does
not suffice to invoke the waiver of immunity for the use of property. Sampson, 500
S.W.3d at 389. An allegation that a governmental unit failed to use property with a
more effective safety feature than the property it did use is likewise insufficient to
invoke the waiver of immunity for the use of property. Tex. A & M Univ. v. Bishop,
156 S.W.3d 580, 584 (Tex. 2005).
However, a narrow exception applies when a plaintiff alleges that property
used by a governmental unit lacked an integral safety component altogether and this
component’s complete absence caused the plaintiff’s injuries. City of N. Richland
Hills v. Friend, 370 S.W.3d 369, 372 (Tex. 2012). For example, the Court has held
that a state university’s provision of a football uniform and its related protective
equipment to a player without a knee brace was sufficient to invoke the waiver of
immunity for a condition or use of tangible personal property, given the athlete’s
prior knee injury. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976).
Emergency Exception to the Waiver of Governmental Immunity
Governmental immunity nonetheless is not waived with respect to a claim
arising “from the action of an employee while responding to an emergency call or
reacting to an emergency situation if the action is in compliance with the laws and
ordinances applicable to emergency action, or in the absence of such a law or
8
ordinance, if the action is not taken with conscious indifference or reckless disregard
for the safety of others.” TEX. CIV. PRAC. & REM. CODE § 101.055(2).
In terms of traffic laws, the operator of an authorized emergency vehicle may
operate it in certain ways that otherwise would be unlawful. When responding to an
emergency call or fire alarm, the operator of a firetruck may lawfully:
• proceed past a stop sign or red traffic light;
• exceed the maximum speed limit, as long as doing so does not endanger
life or property; and
• disregard regulations controlling the direction of travel or turning.
TEX. TRANSP. CODE §§ 546.001(2)–(4), 546.002(b)(1), (3). When doing so, the
operator generally must use the firetruck’s emergency lights or sirens. See id.
§§ 546.003–.004. Nonetheless, the operator is neither relieved from the duty to
operate the firetruck with appropriate regard for the safety of all persons nor the
consequences of reckless disregard for others’ safety. Id. § 546.005.
That said, by its plain language, the emergency exception is not confined to
the manner in which emergency vehicles are operated in an emergency situation.
See, e.g., City of San Antonio v. Hartman, 201 S.W.3d 667, 669, 672–73 (Tex. 2006)
(applying emergency exception in case in which plaintiffs alleged city failed to
timely erect barricades to prevent traffic from driving into flooded area).
9
For purposes of the emergency exception, conscious indifference and reckless
disregard require proof that a governmental actor knew the relevant facts but did not
care about the result. Id. at 672 n.19.
Analysis
Waiver for Condition or Use of Tangible Personal Property
The summary-judgment evidence is largely undisputed. When the accident in
question happened, the firetruck had been dispatched to a house fire. En route to the
fire, a hose stored on the rear portion of the truck came loose. The truck dragged the
hose behind it and the hose eventually became entangled with White’s vehicle. The
firetruck then dragged White’s vehicle for some distance until the hose broke free
from the truck. None of the four firefighters onboard the truck realized what had
happened until afterward. Upon returning to their station, the firefighters discovered
that the hose was missing and learned of the accident after retracing their route.
The hose in question was stored behind the firetruck’s cab. It was stowed in a
compartment or hose bed that has a lid or cover. The hose is an inch and three
quarters in diameter. It was folded across itself, or cross-laid, in four segments, each
being about 50 feet in length. One end of the hose was attached to an additional short
length of hose about 3 to 4 feet long that was connected to the truck. The other end
of the hose had a metal nozzle for spraying water affixed to it. When properly cross-
10
laid, the hose fits relatively snugly inside the compartment. But there was no device
or mechanism within the compartment that secured the folded hose in place.
White does not assert that a condition of the hose itself caused his injuries. He
instead argues that the hose lacked an integral safety component, specifically a
device or mechanism designed to secure it in place during transport. For example,
Captain Cody testified that there was no means of securing the hose once it was
cross-laid in the compartment. He further testified that such devices do exist,
specifically a kind of canvas cover with hooks. Cody thought that other trucks
operated by the Houston Fire Department have this device. Similarly, Evans testified
that nets or tarps can be used to hold a hose in place. But he stated the truck in
question did not have any component designed to secure the hose in place once it
was cross-laid in the compartment. Clemente and Hershey likewise testified that
nothing held the hose in place inside the compartment. The record does not contain
any contrary evidence. And while Cody described the dislodgment of the hose as a
“fluke” or “outlier,” he acknowledged that he had heard of at least one or two prior
instances in which a hose had slid out of its compartment while being transported.
The City responds that this evidence is immaterial because at most it supports
an allegation of non-use of different equipment than the Houston Fire Department
used. We disagree.
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White does not assert that the Houston Fire Department should have used a
different type of hose or a firetruck with a differently designed storage compartment.
Rather, White alleges that the hose, or the compartment in which it was stowed,
lacked an integral safety component to secure the hose in place while in transit. This
allegation, and the undisputed evidence that such components exist and are used,
suffice to invoke the statutory waiver for a condition or use of tangible personal
property. See Friend, 370 S.W.3d at 372; Lowe, 540 S.W.2d at 300.
The City also responds that White’s allegations are legally insufficient to
invoke this statutory waiver of immunity because the evidence indisputably shows
that the firefighters were not using the hose for its intended and ordinary purpose
when the accident occurred and that White’s resulting injuries likewise were not
contemporaneous with their use of the hose. We again disagree.
When the accident happened, firefighters were not using the hose to
extinguish or contain a fire. They were not handling the hose at all. But “the plain
meaning of ‘use’ does not necessarily require physical manipulation of an object.”
Rangel, 595 S.W.3d at 207. The hose need only have been put or brought into action
or service to qualify as being used. Id. By being stowed and transported on the truck,
the hose was put or brought into service to extinguish fires as needed. When the hose
became dislodged, it was being transported in a firetruck en route to a fire. Thus, the
hose was in use when it caused the accident in which White was injured.
12
Transporting a firehose to a location where it is to be employed to extinguish a fire
is as much a part of its intended and ordinary use as extinguishing a fire. White’s
injuries therefore were contemporaneous with the alleged use of the hose.
The City relies on Sampson for its contrary position, but Sampson is
inapposite. In Sampson, the plaintiff sued a state university after tripping on an
extension cord. 500 S.W.3d at 383. The Court held that the plaintiff’s claim was one
for premises defect rather than negligence relating to a condition or use of tangible
personal property because the plaintiff did not allege the extension cord was
defective and it was undisputed that the cord was resting in a static position, rather
than being actively deployed or put into place, at the time of the accident. Id. at 390–
91. Here, however, we are not called on to distinguish a premises-defect claim from
one for negligent activity. White’s allegations involve the latter, and the hose in
question was far from static when it became entangled with White’s vehicle. Unlike
Sampson’s stationary unattended extension cord, firefighters were actively
transporting the firehose from one place to another when the accident occurred.
We thus hold that White has alleged a claim that is legally sufficient to invoke
the statutory waiver of governmental immunity for injuries caused by a condition or
use of tangible personal property and that the summary-judgment evidence relevant
to this issue does not foreclose the applicability of this waiver as a matter of law.
13
Emergency Exception to Waiver of Governmental Immunity
The question then becomes whether the emergency exception to the waiver of
governmental immunity applies. White argues that the exception does not apply
because the negligence he alleges—the negligent stowing of the hose—occurred
some time before the emergency response rather than during it. We disagree.
It is undisputed that the firetruck had been dispatched to an emergency
situation, specifically a house fire, at the time of the accident. According to the police
report, Clemente, who was behind the wheel, told the investigating officer that the
truck’s lights and sirens were activated while en route to the fire. Cody submitted an
affidavit in which he also stated that the lights and sirens were activated. Cody
further represented that, as the officer in charge and a front-seat passenger, he did
not see Clemente operate the truck in an improper or reckless manner or violate any
law or departmental rules while en route to the fire. The record does not contain any
evidence that contradicts Cody’s account. In addition, all four firefighters on the
truck testified that they did not know the hose had come loose and caused an accident
before they returned to their station.
White does not dispute that the firetruck was responding to an emergency
when the accident happened. He instead tries to sidestep the emergency exception
by arguing that the negligence that caused his injuries—the negligent stowing or
securing of the hose—preceded the emergency and that his claim therefore does not
14
arise from the actions of the firefighters while responding to the emergency call. See
TEX. CIV. PRAC. & REM. CODE § 101.055(2) (providing that governmental immunity
is not waived with respect to claims “arising . . . from the action of an employee
while responding to an emergency call or reacting to an emergency situation”).
The fatal flaw in White’s argument is that the mere act of stowing the hose in
the firetruck was not contemporaneous with the accident or his alleged injuries and
therefore does not qualify for the waiver of immunity for a condition or use of
tangible personal property in the first place. To qualify for the waiver pertaining to
a condition or use of property, White must allege that he was injured while the
firefighters used the hose. See Annab, 547 S.W.3d at 613. Assuming for the sake of
argument that stowage alone could constitute use of the hose, White does not allege
he was injured when the firefighters stowed the firehose. The evidence is not
definitive as to exactly when the hose was stowed in the truck, but it is undisputed
that firefighters did so well before the truck departed the station—either earlier in
the morning or on a prior shift. It was only the later transport of the stowed hose
while responding to a house fire—and the hose’s dislodgment en route—that
coincided with the accident and White’s injuries. Thus, White’s claim necessarily
arises from the firefighters’ transport of the allegedly negligently stowed hose while
responding to the emergency call, which makes the exception applicable. Because
there is not a fact issue as to whether the firefighters were responding to an
15
emergency when the accident happened, and there is no evidence that the firefighters
were aware the hose had become dislodged but did not care about the danger this
posed to motorists, the emergency exception is applicable as a matter of law. See
Hartman, 201 S.W.3d at 672–73 (applying exception as matter of law when
evidence showed city was responding to emergency and there was no allegation that
city had violated law or ordinance or did not care what happened to motorists).
In other words, White’s emergency-exception argument is self-defeating
because it contradicts the very basis on which he seeks to invoke the Tort Claims
Act’s waiver of immunity for injuries caused by a condition or use of property. White
cannot contend both that the fire department’s use of the hose while responding to
an emergency was contemporaneous with the accident that caused his injuries for
purposes of the waiver of immunity but that his negligence claim actually arises from
an altogether different action taken by the firefighters before responding to the
emergency when assessing whether the emergency exception negates the waiver.
We hold that the emergency exception to the Tort Claims Act’s waiver of
governmental immunity applies to White’s claim. Thus, the trial court did not err in
granting the City’s jurisdictional plea based on governmental immunity.
Because the City is immune from suit based on the emergency exception, we
need not address the parties’ disputes about whether the individual firefighters have
official immunity and whether this also defeats White’s suit against the City.

Outcome: We affirm the trial court’s judgment.

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Defendant's Experts:

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