the City of Houston v. Mary M. Babin Kennedy ( 2007 )

Opinion issued August 2, 2007

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-07-00097-CV

__________

CITY OF HOUSTON, Appellant

V.

MARY M. BABIN KENNEDY, Appellee

On Appeal from the 215th District Court

Harris County, Texas

Trial Court Cause No. 04-45471-CV

MEMORANDUM OPINION

Appellant, the City of Houston, ("the City") appeals an order denying its plea to the jurisdiction on grounds of governmental immunity from suit in a wrongful death action brought by appellee, Mary M. Babin Kennedy ("Kennedy"), individually and as the representative of the estate of Joseph Kennedy ("Joseph"), deceased. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006). The City appeals the trial court's order denying its plea to the jurisdiction, and Kennedy appeals the trial court's orders (1) granting the City's motion for partial summary judgment on all of her intentional torts claims and (2) granting the City's motion to dismiss her claims against the individual city employees. We affirm the trial court's orders granting the motions for partial summary judgment and to dismiss, and we vacate the order denying the plea to the jurisdiction.

Factual and Procedural Background  

  The parties submitted no evidence, and our facts thus come from   Kennedy's pleadings  , construed liberally in favor of jurisdiction.   See Tex. Natural Res. Conservation Comm'n v. IT-Davy,   74 S.W.3d 849, 853 (Tex. 2002)  .    On   September 3, 2002, between 5:00 a.m. and 5:30 a.m.,     Kennedy  's husband, Joseph, who was   a kidney dialysis   patient, became very ill, experienced shortness of breath,   lapsed in and out of consciousness, fell asleep and   then   awoke again  .      Kennedy   called 9-1-1 and requested that an emergency ambulance be   dispatched to t  heir home   to transport   Joseph   to a hospital emergency room for treatment.    

Two Houston Fire Department   p  aramedics  , Victor Munoz and Jason Mize ("the Paramedics"),   arrived at the Kennedys  '     home and   immediately went into the bedroom where Joseph   was   lying on the bed.    Kennedy   told the   P  aramedics that Joseph was scheduled for dialysis treatment th  at   morning and that the ambulance that transported him to the dialysis normally picked him up around 9:45 a.m.    Kennedy,   thinking that the Paramedics were going to take her husband to the hospital, started preparing to go with him to the hospital. While   Kennedy   was gathering Joseph  's medi  cines,   she heard one of the Paramedics tell   her husband, that, if they took him to hospital now, he would have to wait there three to four hours before he could be seen because the   h  ospital   e  mergency   r  oom was so busy.    One of the Paramedics told Kennedy that, because   he was going to dialysis in the morning, he could see the doctor then. The other P  aramedic   did   not   say anything. The Paramedic  s   then left the home without transporting   Joseph to the hospital and   without saying anything to   Kennedy   as to why they   did not take Joseph to the hospital.    

About four and one-half hours later, at approximately 9:45 a.m., the scheduled ambulance service arrived   to take   Joseph to   his   dialysis   appointment   at the Northwest Kidney Center  . After Joseph arrived at the center, he complained that he was not feeling well, and he went into cardiac arrest. Joseph was subsequently transported to   Northwest Memorial Hermann Hospital, where he     died   later that same day. Kennedy alleges that Joseph   would not have died if the   Paramedics had   taken him to the hospital when they responded to her 9-1-1 call.   Kennedy also alleges that the Paramedics forged Joseph's signature on a Refusal of Service Statement form during or after they spoke with Joseph.

In her petition, Kennedy sued the City and the Paramedics, individually, for causing Joseph's death, alleging that the Paramedics were negligent in failing to transport him to the hospital emergency room when they were called to the Kennedys' home. In her petition, Kennedy alleges that the City has waived its immunity from these claims under the   Texas Tort Claims Act. ⁽¹⁾ Kennedy alleges that the conduct of the Paramedics and the City violated several city and fire department ordinances and statutes, including ones with criminal penalties attached to them, and their action was taken with conscious indifference or reckless disregard for Joseph's safety. Kennedy has also asserted claims against the City and the Paramedics, individually, for various intentional torts, including claims for misrepresentations and intentional false statements, "cover-up," forgery, and criminal conspiracy. Kennedy alleges that her allegations supporting these claims are "intertwined" with her negligence claims against the City.

The City and the Paramedics answered Kennedy's petition and filed special exceptions to the petition and a plea to the jurisdiction. The City also filed a motion for partial summary judgment with respect to Kennedy's intentional tort claims and a motion to dismiss the Paramedics as individual defendants. The trial court denied the City's plea to the jurisdiction, but granted its motions for summary judgment and to dismiss the Paramedics as individual defendants. After Kennedy filed her Second Amended Petition in this action, the trial court denied the special exceptions.

Plea to the Jurisdiction

In   its sole issue, the   City argues that the trial court erred in denying its plea to the jurisdiction because   Kennedy   failed to plead and prove waiver of sovereign immunity under the Texas Tort Claims Act ("the Act").   Kennedy responds that   waiver of sovereign immunity exists not only under   Section 101.021   of the Act, but also independently under   Sections 101.055 and 101.062, which pertain to emergency services  . She asserts that she has pled facts which, if true, establish waiver under all three of these provisions  . We disagree.  

Standard of Review

In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003)  . To determine if the plaintiff has met that burden, "we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties."   Id.   (quoting   Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001))  . If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend.   County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)  . Because sovereign immunity from suit defeats a trial court's subject-matter jurisdiction, immunity from suit may properly be asserted in a jurisdictional plea. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)  .

We review   de novo   a trial court's ruling on a jurisdictional plea, construing the pleadings in the plaintiff's favor and looking to the pleader's intent.   Id. at 226  ;   IT-Davy, 74 S.W.3d at 855  . Whether the pleader has alleged facts that affirmatively demonstrate subject-matter jurisdiction is a legal question that we review   de novo  .   Miranda, 133 S.W.3d at 226  .    

  Waiver of Governmental Immunity from Suit

A municipality such as the City is immune from liability for its governmental functions unless that immunity is specifically waived.   City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). By designating the operation of emergency ambulance service as a governmental function, ⁽²⁾ the Legislature has shrouded this function with immunity unless a claim falls within one of three specific areas of liability for which immunity is waived by Section 101.021 of the Act. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144   (Tex. App.--San Antonio 1999, no pet.);   McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex. App.--Fort Worth 1991, no writ). Section 101.021 of the Act provides that 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 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).

Despite the waiver found in Section 101.021, a governmental unit specifically retains its immunity in claims arising from:

[t]he action of an employee while responding to an emergency call . . . if the action is in compliance with the laws and ordinances applicable to the emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.

Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2)  ;   Borrego v. City of El Paso, 964 S.W.2d 954, 957   (Tex. App.--El Paso 1998, pet. denied). Similarly, in the case of 9-1-1 emergency services like th  ose   involved here,   Section 101.062   further provides:

  This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.

  Tex. Civ. Prac. & Rem. Code Ann. § 101.062(b)  .    

Contrary to Kennedy's arguments, Texas courts have held that   Sections     101.055   and   101.062     do not   provide an independent basis for the   waiver of the   City's liability.    Section 101.062  , like   Section     101.055(2)  ,   provides   additional   protection for a governmental unit because it requires that the plaintiff allege and prove that the action forming the basis of the complaint violated a statute or ordinance   or constituted conscious indifference  .    City of El Paso v. Hernandez,   16 S  .W.  3d     409, 416   (Tex. App.--El Paso   2000  ,   pet.   denied).    Accordingly, a governmental unit   has no sovereign immunity in an action involving a claim related to 9-1-1 emergency service unless (1) governmental immunity is waived under   Section 101.021     and   (2) the action violates a statute or ordinance   or constitutes conscious indifference to the safety of a patient  .      Id.  

Use or Misuse of Tangible Personal Property    

We   now turn     to an   analysis of whether the fac  ts alleged in Kennedy's petition   establish a waiver of sovereign immunity under   Section 101.021  .    Kennedy relies on paragraph VII of her second amended petition to show that she has pled facts establishing a waiver of immunity under Section 101.021. Kennedy argues that this paragraph alleges that Joseph's death was caused by the negligent use of unspecified medical equipment and or the condition of the equipment. This paragraph provides in pertinent part that:

  The severity of Joseph   L.   Kennedy's   medical condition should have been apparent to the   p  aramedics after Plaintiff,   Mary     Kennedy  , told them that her husband, Joseph L.   Kennedy  , was a kidney-dialysis patient, and described his condition as being very severe having breathing problems, shortness of breath, going in and out of consciousness, falling asleep and waking up again.   The paramedics could have verified the severity of Joseph L. Kennedy's medical condition by the use of tangible equipment and personal property carried by paramedics and used by the Paramedics to check the vital signs of a patient to determine the severity of his medical condition in order to decide whether to transport a patient to the hospital's emergency room.  

The death of Joseph L.   Kennedy  ,   Deceased, was proximately caused by the paramedics' wrongful acts, omissions, or negligent use of or condition of tangible equipment and personal property in their possession used to examine Joseph L.   Kennedy's   vital signs to verify the severity of his medical condition in order to determine whether to transport him to the hospital.  

(Emphasis added.)    

     Under Section 101.021,   "use" is defined in the context of   Section 101.021(2)   as "to put or bring into action or service; to employ for or apply to a given purpose."   Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996). Mere non-use of property is insufficient to support a claim under the Tort Claims Act.    Id. These allegations do not establish waiver of the City's immunity based on the use of personal tangible property or defective property.     

In this case,   t  he facts alleged by   Kennedy   do not demonstrate that   the Paramedics   operated or used   any medical equipment   either in a wrongful or negligent fashion   as required to waive immunity under Section 101.021 of the Act  .    Instead, Kennedy alleges that the Paramedics   could have   used the equipment that they carried to properly evaluate Joseph before making the decision not to transport him to the hospital emergency room. The   gravamen of   Kennedy's   complaint is that   the Paramedics   made an incorrect medical decision regarding whether Joseph had a life-threatening emergency and, as a result,   they did not transport him to the hospital emergency room. In other words, Kennedy's complaint is essentially   about   the   non-use of the equipment and misuse or non-use of intangible information--  observations regarding Joseph's health and the statements by Kennedy  --neither of which fall within   Section 101.021(2)  .   See City of Orange v. Jackson, 927 S.W.2d 784, 786-87   (Tex. App.--Beaumont 1996, no writ) (explaining that arresting officer's decision to take injured arrestee to jail did not constitute negligent operation or use of squad car or misuse of tangible personal property; real basis of the claim is the failure to use the police car to take arrestee to a medical facility);   see also Clark, 923 S.W.2d at 584; Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 178-79 (Tex. 1994).   Accordingly, Kennedy has not pled facts establishing a waiver of immunity under Section 101.021. Because Kennedy has not met the threshold statute, it is unnecessary for us to consider whether she has pled facts establishing waiver under Sections 101.055(2) and 101.062. The trial court erred in denying the City's plea to the jurisdiction. We sustain the City's sole issues.Motions for Partial Summary Judgment

  In her first issue, Kennedy argues that the trial court erred in granting the City's Motion for Partial Summary Judgment regarding intentional tort claims because they are "intertwined" and a part of her allegations of a waiver of the City's immunity under the Tort Claims Act. We disagree.

It is well established that the waiver of immunity under the Torts Claim Act does not apply to claims for intentional torts.    Tex. Civ. Prac. & Rem. Code Ann. § 101.05  7  ;   Pineda v. City of Houston, 175 S.W.3d 276, 281-82 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Assuming that the allegations are not intended to be separate causes of action against the City, they still do not claim any use of tangible personal property or allege any other basis for the waiver of immunity under Section 101.021. Rather, these allegations support Kennedy's arguments for waiver under Sections   101.055(2) and 101.062. As noted above, these alleged statutory violations are irrelevant in light of Kennedy's failure to plead waiver under the threshold Section 101.021.   We overrule Kennedy's first issue.

Motion to Dismiss

In her second issue, Kennedy argues that the trial court erred in dismissing the Paramedics under Section 101.106 of the Act because the trial court had considered a previous, similar motion and denied it. Kennedy also argues that the motion should have been denied because she sued the Paramedics "individually, on other causes of action, which are not under the Texas Tort Claims Act." We disagree.

Kennedy has cited no authority for the proposition that a trial court cannot reconsider a motion to dismiss in a pending case. Furthermore, the language of Section 101.106 creates a mandatory election of remedies. ⁽³⁾ Because Kennedy asserts claims against the City under the Act, any cause of action against the Paramedics, individually, arising from the same cause of action must be dismissed. See Villason v. O'Rourke  , 166 S.W.3d 752, 761-62 (Tex. App.--Beaumont 2005, pet. filed) (citing Johnstone v. State, 22 S.W.3d 408, 409 (Tex. 2000)) (explaining that statutory construction dictates that Section 101.106 prevails over less specific statutes and procedural rules). Accordingly, we overrule Kennedy's second issue.  

Conclusion

We affirm the trial court's orders granting the City's motion for partial summary judgment on the intentional tort claims and granting the motion to dismiss the individual paramedics. We vacate the order denying the City's plea to the jurisdiction, and we dismiss the non-intentional tort claims against the City for want of jurisdiction.

   George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Bland

1. The applicable Texas Civil Practices and Remedies Code statutes involved are: Section 101.021 (establishing governmental liability and waiver for tort claims), Section 101.0215 (including emergency ambulance services as a governmental function), Section 101.062 (including 9-1-1 emergency services specifically in the governmental liability and waiver), Section 101.055 (excluding emergency calls or situation from governmental liability and waiver where actions were in compliance with laws, ordinances, and not with reckless disregard for others), Section 101.057 (excluding intentional torts from the governmental liability and waiver), Section 101.106 (excluding all other remedies once a governmental unit suit has been filed).

2. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a)(18) (Vernon 2005).

3. "The filing of a suit under this chapter against a governmental unit constitutes an irrevocable election by the plaintiff and immediately and forever bars any suit or recovery by the plaintiff against any individual employee of the governmental unit regarding the same subject matter." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(a).