COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00166-CV
CITY OF NORTH RICHLAND HILLS APPELLANT
V.
LAURA FRIEND, INDIVIDUALLY APPELLEES
AND AS PERSONAL
REPRESENTATIVE OF THE
ESTATE OF SARAH ELIZABETH
FRIEND, DECEASED, AND
LUTHER FRIEND, INDIVIDUALLY
----------
FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
------------
OPINION
------------
I. Introduction
Appellant, the City of North Richland Hills (the City), brings this
interlocutory appeal from the trial court‘s denial of its plea to the jurisdiction in the
lawsuit filed against it by Appellees Laura Friend, Individually and as Personal
Representative of the Estate of Sarah Elizabeth Friend, Deceased, and Luther
Friend, Individually (collectively, the Friends). The City contends in one issue
that the trial court should have granted its plea to the jurisdiction in its entirety,
arguing that the Friends‘ claims are barred by governmental immunity because
the City has not, through a statutory waiver of immunity, consented to those
claims. We affirm in part and reverse in part.
II. Background
On July 14, 2004, twelve-year-old Sarah Elizabeth Friend visited the City‘s
NRH20 water park for junior lifeguard training, and after the training finished for
the day, she remained at the park to enjoy the water rides. While standing in line
for the ―Green Extreme‖ ride, she collapsed due to a hypertrophic
cardiomyopathic condition.1 NRH20 was equipped with at least two automated
external defibrillator devices (AEDs). Sarah did not, however, receive external
defribrillation until the North Richland Hills Fire Department arrived at the scene
approximately twenty minutes later. Sarah was transported and admitted to a
nearby hospital, where she was unable to maintain a regular heart rate and
subsequently died.
The Friends filed suit against the City, NRH20, and two City employees.
They added additional defendants through amended pleadings, including
1
Hypertrophic cardiomyopathy is a disease in which the heart muscle
becomes abnormally thick; it can cause abnormal heart rhythms that can, in rare
instances, lead to sudden cardiac death. See Mayo Clinic, ―Hypertrophic
cardiomyopathy,‖ http://www.mayoclinic.com/health/hypertrophic-
cardiomyopathy/DS00948 (last visited February 23, 2011).
2
seventeen City employees. The City filed a combined motion to dismiss, special
exceptions, and a plea to the jurisdiction, arguing that the Friends‘ pleadings had
not alleged facts showing a waiver of the City‘s immunity, that the recreational
use statute2 barred the Friends‘ claims, and that the claims against the City‘s
employees should be dismissed under section 101.106 of the civil practices and
remedies code.3 The trial court granted the plea to the jurisdiction as to the City‘s
employees but declined to dismiss the claims against the City based on the use
of tangible personal property or a condition of real property. The trial court did,
however, order the Friends to more specifically plead the factual basis for their
claims ―based upon a condition of real property or a premises defect theory of
recovery.‖
The Friends then filed a fourth amended petition, and the City filed another
plea to the jurisdiction asserting that it had not consented to suit under the Texas
Tort Claims Act (TTCA) and that the Friends were barred by civil practice and
remedies code section 101.106 from asserting claims against the City because
they had sued both the City and its employees. Before the hearing on the City‘s
plea, the Friends filed their fifth amended petition. The petition alleged a
negligence claim based on a premises defect and a claim based on the use or
condition of tangible personal property (specifically, the AEDs and the radio
2
See Tex. Civ. Prac. & Rem. Code Ann. § 75.002 (Vernon Supp. 2010).
3
See id. § 101.106 (Vernon 2005).
3
equipment used by an employee to call for the necessary resuscitative
equipment). The Friends also filed a response to the City‘s plea to the
jurisdiction, arguing that the TTCA waived the City‘s immunity and that section
101.106 of the TTCA did not bar their claims against the City. The trial court
denied the plea to the jurisdiction, and this interlocutory appeal followed.
III. Standard of Review
Whether the trial court has subject matter jurisdiction is a question of law
that we review de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction is a dilatory plea that
challenges the trial court‘s subject matter jurisdiction. Bland Indep. Sch. Dist. v.
Blue, 34 S.W.3d 547, 554 (Tex. 2000). It is used to defeat a cause of action
without regard to whether the claims asserted have merit. Id.
The plaintiff has the burden of alleging facts that affirmatively establish the
trial court‘s subject matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 446 (Tex. 1993). We construe the pleadings liberally in favor of
the plaintiff, look to the pleader‘s intent, and accept the pleadings‘ factual
allegations as true. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
226 (Tex. 2004).
IV. Discussion
In its sole issue, the City contends that the trial court erred by denying its
plea to the jurisdiction because the TTCA does not waive the City‘s immunity
from suit. Specifically, the City contends that because the Friends sued both the
4
City and some of its employees, section 101.106(b) of the civil practice and
remedies code bars any claim against the City unless the City has consented to
the suit. The City continues by arguing that the TTCA has not waived the City‘s
governmental immunity.
A. Applicable Law
1. Governmental Immunity
Unless waived by the State, governmental immunity from suit defeats a
trial court‘s subject matter jurisdiction. Miranda, 133 S.W.3d at 225.
―[Governmental] immunity deprives a trial court of subject matter jurisdiction for
lawsuits in which the state or certain governmental units have been sued[,]
unless the state consents to suit.‖ Id. at 224. In Texas, governmental immunity
has two components: immunity from liability and immunity from suit. Tooke v.
City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006); Miranda, 133 S.W.3d at 224.
Immunity from liability ―bars enforcement of a judgment against a governmental
entity‖ and is an affirmative defense. Tooke, 197 S.W.3d at 332; Miranda, 133
S.W.3d at 224. Immunity from suit, on the other hand, ―bars suit against the
[governmental] entity altogether‖ because it ―deprives a court of subject matter
jurisdiction.‖ Tooke, 197 S.W.3d at 332; Miranda, 133 S.W.3d at 224.
2. TTCA Section 101.106(b) Election of Remedies
Civil practice and remedies code section 101.106(b) states: ―The filing of a
suit against any employee of a governmental unit constitutes an irrevocable
election by the plaintiff and immediately and forever bars any suit or recovery by
5
the plaintiff against the governmental unit regarding the same subject matter
unless the governmental unit consents.‖ Tex. Civ. Prac. & Rem. Code §
101.106(b). The supreme court has interpreted section 101.106(b) to bar ―any
suit‖ against the governmental unit relating to the same subject matter, even if
the claimant simultaneously sued both the governmental unit and its employee.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 659–60 (Tex.
2008). However, the supreme court has also held that the issue of whether the
governmental entity has consented to the suit—and is therefore precluded from
relying on section 101.106(b)—is determined by reference to the Constitution
and state laws. Id. at 660. Thus, we refer to the TTCA to determine whether the
City has consented to suit in this case.
3. TTCA Sections 101.021(2) and 101.022 Waivers of Immunity
The City asserts that it has not consented to the Friends‘ suit because the
applicable provisions of the TTCA have not waived the City‘s governmental
immunity. Relevant to this case, section 101.022 provides that the City‘s
immunity is waived for premises defects or ―special defects such as excavations
or obstructions on highways, roads, or streets.‖ Id. § 101.022(a), (b) (Vernon
Supp. 2010). In addition, section 101.021(2) of the TTCA waives the City‘s
governmental immunity 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 [Friends] according to Texas law.‖ Tex. Civ.
Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005). Conversely, the TTCA
6
does not waive governmental immunity if the governmental unit would not be
liable to the claimant under Texas law if it were a private person. Id. §§
101.021(2), .025(a) (Vernon 2008); Miranda, 133 S.W.3d at 224. Thus, the
TTCA creates a unique statutory scheme in which immunity from liability and
immunity from suit are coextensive. Miranda, 133 S.W.3d at 224; see also Tex.
Civ. Prac. & Rem. Code §§ 101.021(2), .025(a). We must therefore determine
whether the Friends have established a waiver of the City‘s governmental
immunity by pleading sufficient facts to bring their suit within the TTCA‘s waiver
of immunity in sections 101.021(2) or 101.022. See Tex. Civ. Prac. & Rem.
Code §§ 101.021(2), .022(a), (b), .025(a); Miranda, 133 S.W.3d at 226.
B. Premises Defect
The Friends contend they have adequately alleged injury caused by a
premises defect by pleading that the City ―failed to provide an AED device and/or
other resuscitative equipment or devices at or near the Green Extreme structure
and activity.‖ We disagree.
The TTCA provides a limited waiver of immunity for tort claims arising from
either ordinary premises defects or special defects. Tex. Civ. Prac. & Rem. Code
Ann. § 101.022(a), (b). Different standards of care apply depending upon
whether the condition was an ordinary premises defect (same duty as licensee)
or a special defect (same duty as invitee). Id.; see Univ. of Tex. at Austin v.
Hayes, 327 S.W.3d 113, 116 (Tex. 2010). The legislature has not defined
―special defect,‖ but the statute refers to conditions such as ―excavations or
7
obstructions on highways, roads, or streets.‖ Id. (citing Tex. Civ. Prac. & Rem.
Code § 101.022(b)); see also Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 n.11
(Tex. 2009) (noting conditions can be special defects only if they pose a threat to
ordinary users of a particular highway). As a matter of law, the allegations of
failure to provide or place the AEDs at or near the Green Extreme activity and
structure in the City‘s water park cannot constitute a ―special defect‖ because no
highway, road, or street is involved. See Tex. Civ. Prac. & Rem. Code Ann.
§ 101.022(b). Thus, the Friends‘ allegations do not waive the City‘s immunity
based on the existence of a special defect.
The Friends have also failed to allege an ordinary premises defect.
Chapter 101 does not define ―premises,‖ but ―premises‖ is defined in civil practice
and remedies code section 75.001(2) to include ―land, roads, water, watercourse,
private ways, and buildings, structures, machinery, and equipment attached to or
located on the land, road, water, watercourse, or private way.‖ Id. § 75.001(2)
(Vernon Supp. 2010); see Nunez v. Sansom Park, 197 S.W.3d 837, 842 (Tex.
App.—Fort Worth 2006, no pet.) (defining ―premises‖ as ―a building or part
thereof with its grounds and appurtenances‖ and holding that negligent use of or
a condition in real property does not exist apart from a premises liability claim).
Further, ―‘[d]efect‘ has been defined as a shortcoming, an imperfection, or the
want of something necessary for completeness.‖ Nunez, 197 S.W.3d at 842.
Here, the Friends‘ pleading that the City ―failed to provide an AED device and/or
other resuscitative equipment or devices at or near the Green Extreme structure
8
and activity‖ does not involve a building or its grounds or appurtenances. Thus,
although the pleading arguably alleges a defect based on the ―want of something
necessary for completeness,‖ the pleading does not allege a premises defect.
See id. at 842–43; see also State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994)
(holding stopped vehicle blocking highway not a premises defect); Retzlaff v.
Tex. Dep’t of Criminal Justice, 135 S.W.3d 731, 740–41 (Tex. App.―Houston
[1st Dist.] 2003, no pet.) (holding razor wire on prison fence not a premises
defect). Therefore, the Friends‘ pleadings do not allege the existence of an
ordinary or special premises defect sufficient to invoke the TTCA‘s waiver of the
City‘s immunity.4
C. Condition or Use of Tangible Personal Property
1. Non-Use of Tangible Personal Property
The Friends allege that the City ―failed to provide an AED device and/or
other resuscitative equipment at or near the Green Extreme‖ and that the AED
was ―removed . . . from the Green Extreme and improperly placed . . . in a
location where . . . it could not be timely obtained and used at or near the Green
Extreme.‖ However, allegations of failure to use or nonuse of tangible personal
property are not sufficient to establish a waiver of immunity. See Tex. Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001) (distinguishing
4
Because we hold that the Friends‘ pleadings do not sufficiently allege the
existence of a premises defect, we need not address the City‘s argument that the
Friends‘ premises defect claims are barred by the Recreational Use Statute. See
Tex. Civ. Prac. & Rem. Code Ann. § 75.002.
9
failure to use or nonuse of property from use or condition). The Friends‘
allegations concerning the placement or availability of resuscitative equipment so
that it could not be timely obtained or used at or near the Green Extreme are
nothing more than allegations that the AEDs were not used by the City, that is,
they are nonuse allegations that do not waive immunity under the TTCA.
See Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex. 1994) (holding ―non-use of
available drugs during emergency medical treatment is not a use of tangible
personal property that triggers waiver of sovereign immunity.‖). And to the extent
the Friends allege that the removal of the AEDs from the Green Extreme and
placement of that equipment elsewhere was a ―use‖ or ―misuse‖ under the TTCA,
changing storage locations cannot logically be characterized as putting or
bringing them into action or service or employing or applying them to a given
purpose. See Miller, 51 S.W.3d at 588 (stating that ―‗[u]se‘ means ‗to put or bring
into action or service; to employ for or apply to a given purpose‘‖) (quoting Tex.
Nat. Res. & Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001)).
2. Use of Tangible Personal Property Did Not Cause Death
The Friends also allege that the City ―used or misused the portable radio
communication devices in calling for the necessary resuscitative equipment.‖
However, the TTCA only waives the City‘s governmental immunity for the use of
tangible personal property if that use caused the personal injury or death. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); Miller, 51 S.W.3d at 588. In
essence, the Friends‘ allegation concerning the use or misuse of the radio
10
equipment is a recasting of their allegation concerning the nonuse of the AEDs,
and any connection between the use or misuse of the radio equipment as alleged
in the Friends‘ pleading is too attenuated from Sarah‘s collapse and eventual
death from a heart condition to be said to have caused them. See Miller, 51
S.W.3d at 588; Dallas Cnty. MHMR v. Bossley, 968 S.W.2d 339, 342–43 (Tex.
1998). We therefore hold that the Friends have not alleged sufficient facts to
establish a waiver of immunity based on the use or misuse of the radio
equipment.
3. Lack of an Integral Safety Component
The City also contends that the Friends have not alleged sufficient facts to
establish a waiver of immunity relating to a use of tangible personal property that
lacked an integral safety component. We disagree.
Waiver based upon lack of an integral safety component is limited to very
narrow circumstances. Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 585 (Tex.
2005); Tex. State Technical Coll. v. Beavers, 218 S.W.3d 258, 261 (Tex.
App.―Texarkana 2007, no pet.). A governmental unit does not waive immunity
merely when the governmental unit could have provided property that is better,
safer, or with a more effective safety feature; the property used must lack an
integral safety component that led to the plaintiff‘s injuries. See Bishop, 156
S.W.3d at 581 (holding claim by drama student acting in play that knife furnished
by faculty advisors was unsafe without a stab pad was merely claim that stab pad
would have made knife safer, not that an integral safety component was lacking
11
for purposes of governmental waiver). The plaintiff must allege that the integral
safety component is entirely lacking and not merely inadequate. Id. at 584;
Beavers, 218 S.W.3d at 264; Thurman v. Harris Cnty., No. 01-07-00235-CV,
2009 WL 1635430, at *6 (Tex. App.―Houston [1st Dist.] 2009, pet. denied)
(mem. op.) (reversing dismissal and remanding to allow plaintiffs to clarify by
amended pleadings whether ferry completely lacked safety barrier as integral
safety component); see also Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d
169, 171 (Tex. 1989) (holding failure to furnish life preserver as part of swimming
equipment furnished to epileptic patient constituted use of property lacking
integral safety component); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex.
1976) (holding absence of knee brace with uniform constituted use of property
lacking integral safety component); Overton Mem’l Hosp. v. McGuire, 518
S.W.2d 528, 529 (Tex. 1975) (holding bed rails were integral safety component
lacking for hospital bed used for patient); Univ. of N. Tex. v. Harvey, 124 S.W.3d
216, 223–24 (Tex. App.—Fort Worth 2003, pet. denied) (holding barrels of ice
furnished without necessary scoop to prevent contamination constituted
―condition‖ of tangible personal property lacking integral safety component
sufficient to waive immunity).
The Friends allege that the City was negligent in the ―misuse or use of
tangible personal property that lacked an integral safety component‖ because
―the necessary resuscitative equipment and devices contained an oxygen
cylinder, mask, and other airway equipment, but lacked an integral safety
12
component consisting of an AED device.‖ This allegation includes sufficient facts
to establish that the equipment that was furnished entirely lacked an integral
safety device, and it therefore sufficiently established use or misuse of tangible
personal property by the City pursuant to TTCA section 101.021(2). However,
this does not end the inquiry as to waiver of the City‘s immunity because we must
also determine whether an exception to the waiver of immunity applies.
D. Emergency Response
The City argues that its immunity has not been waived by the TTCA
because an exception to the waiver applies and the Friends have not pleaded
sufficient facts to avoid application of the exception. In that regard, the limited
waivers of immunity found in section 101.021 of the TTCA do not apply in cases
arising from certain emergency situations absent conscious indifference or
reckless disregard for the safety of others. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.055 (Vernon 2005). Section 101.055(2) of the TTCA provides:
This chapter does not apply to a claim arising:
....
(2) from the action of an employee while responding to an
emergency call or 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 ordinance, if the action is
not taken with conscious indifference or reckless disregard for the
safety of others.
Id. § 101.055(2). When an exception applies, the TTCA is unavailable as a
waiver of immunity even if the facts otherwise fall within a waiver found in section
13
101.021. See City of San Antonio v. Hartman, 201 S.W.3d 667, 671–72 (Tex.
2006). The supreme court has interpreted the term ―emergency‖ under this
section very broadly. Id. at 673 (holding that placing flood barricades on a road
six hours after flooding began remained an ―emergency situation‖ as a matter of
law). The Friends‘ pleadings allege claims for Sarah‘s wrongful death arising
from conduct of City employees in responding to an emergency situation.
The Friends have not alleged any ordinance or law that might have
governed the City employees‘ actions in this case. See id. at 673 (noting that
plaintiffs failed to assert any applicable law or ordinance). They were therefore
required to allege sufficient facts of ―conscious indifference‖ or ―reckless
disregard‖ for the safety of others under section 101.055(2) in order to establish
waiver of immunity in an emergency situation. Id. at 672 & n.19; see Tex. Civ.
Prac. & Rem. Code Ann. § 101.055(2). The City argues that the Friends have
failed to make any allegation suggesting that the City employees‘ actions in this
case amounted to ―conscious indifference‖ or ―reckless disregard for the safety of
others.‖ See Tex. Civ. Prac. & Rem. Code Ann. § 101.055(2). These terms
mean that the ―party knew the relevant facts but did not care about the
result,‖ Hartman, 201 S.W.3d at 672 & n.19, which equates to the state of mind
required for gross negligence as defined by the legislature.5
5
As defined by the legislature, gross negligence is an act or omission
involving an extreme degree of risk considering the probability and magnitude of
the potential harm to others when viewed objectively from the standpoint of the
actor at the time of its occurrence and of which the actor has actual, subjective
14
The Friends generically allege the City‘s conduct ―amounted to gross
neglect and/or gross negligence,‖ but their pleadings include much more. The
Friends‘ petition alleges (1) that the City‘s ―NRH20 Water Park was equipped
with at least two (2) automated external defibrillaters‖; (2) that NRH20 ―employed
several individuals who were responsible for providing first aid, resuscitative
treatment and/or other health care intervention to and for individuals, including
Sarah Friend, in need of cardiorespiratory assessment, care and resuscitation
and therapy‖; and (3) that NRH20 ―authorized or permitted‖ an emergency
medical technician, ―to be trained in resuscitative treatment.‖ The pleading also
alleges that despite the knowledge, training, and presence of the AEDs on the
premises, (1) the AEDs ―were utilized improperly during the resuscitative efforts
and other proper, safe, and effective resuscitative attempts were either
performed incorrectly or not at all by various employees‖ of NRH20, including the
emergency medical technician; (2) ―Sarah Friend did not receive external
defibrillation (which was a necessary and appropriate part of the assessment,
care and treatment for her cardiac condition(s)) until after the arrival of the North
Richland Hills Fire Department personnel, approximately 21 minutes after her
collapse‖; (3) ―Sarah Friend experienced profound hypoxia and/or anoxia during
this time period‖; and (4) she was transported to the emergency department of a
awareness of the risk involved but nevertheless proceeds with conscious
indifference to the rights, safety, or welfare of others. Tex. Civ. Prac. & Rem.
Code Ann. § 41.001 (Vernon 2008); see Stephen F. Austin State Univ. v. Flynn,
228 S.W.3d 653, 660 (Tex. 2007).
15
hospital where she was defibrillated several times but was unable to maintain a
regular heartbeat as a result of the hypoxia and/or anoxia and was pronounced
dead a few hours later.
Liberally construing the Friends‘ allegations as we are required to do, we
hold that the Friends‘ assertions of gross negligence are not mere conclusory
allegations. The pleading allegations establish that the City was aware of the
necessity of using an AED to resuscitate an individual experiencing a cardiac
episode, that the City had AEDs available at NRH20, that the City had trained its
employees on the use of the AEDs, but that the City employees did not use an
AED to resuscitate Sarah. These factual assertions are sufficient to allege that
the City knew the relevant facts but did not care about the result, even in
responding to an emergency call. Thus, we hold that the Friends have alleged
sufficient facts to establish the nonapplicability of civil practice and remedies
code section 101.055(2).6
6
It is important to note that the City did not present evidence with its two
pleas to the jurisdiction. Our inquiry is therefore limited under the appropriate
standard of review to whether the pleadings allege sufficient facts to support the
assertion that the City employees acted with ―conscious indifference‖ or ―reckless
disregard‖ for the safety of others. See Miranda, 133 S.W.3d at 226; see also
City of Dallas v. Porter, No. 05-02-00364-CV, 2002 WL 1773008, at *4 (Tex.
App.—Dallas Aug. 2, 2002, no pet.) (mem. op.) (holding that for plea to the
jurisdiction that did not present evidence of jurisdictional facts, pleadings alleged
sufficient facts of reckless conduct and stating that ―[a]lthough the City‘s
entitlement to immunity pursuant to section 101.055 might be established after
the case is further developed, [the plaintiff] is not required to prove her case in
order to defeat the plea to the jurisdiction‖). We express no opinion as to
whether the Friends may ultimately carry their burden of proof as to the
conscious indifference or reckless disregard of the City‘s employees once the
16
E. Exemplary Damages
The City also argues that the trial court erred by denying its plea to the
jurisdiction to the extent that the Friends seek exemplary damages. Because the
Friends do not allege that the City‘s conduct in this case involved a proprietary
function, we agree. The TTCA specifically prohibits the recovery of exemplary
damages for governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. §
101.024 (Vernon 2008) (―This chapter does not authorize exemplary damages.‖);
see also Durbin v. City of Winnsboro, 135 S.W.3d 317, 325 (Tex. App.—
Texarkana 2004, pet. denied) (recognizing that the TTCA does not authorize
exemplary damages for a governmental unit‘s governmental functions and that
exemplary damages are available in suits involving proprietary functions of a
governmental unit).
V. Conclusion
Because the Friends‘ fifth amended petition, construed liberally in the
Friends‘ favor, alleges a waiver of governmental immunity for injuries arising from
use or misuse of tangible personal property based on the lack of an integral
safety component and gross negligence by employees acting in response to an
emergency situation, we affirm the trial court‘s denial of the City‘s plea to the
jurisdiction as to that claim. As to all other allegations of liability and entitlement
to exemplary damages in the Friends‘ fifth amended petition, we reverse the trial
case is further developed. The matter is not before us given the procedural
posture of this appeal.
17
court‘s denial of the City‘s plea to the jurisdiction and dismiss those allegations
for lack of subject matter jurisdiction.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DAUPHINOT, J. filed a dissenting opinion.
DELIVERED: February 24, 2011
18
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-166-CV
CITY OF NORTH RICHLAND HILLS APPELLANT
V.
LAURA FRIEND, INDIVIDUALLY APPELLEES
AND AS PERSONAL
REPRESENTATIVE OF THE
ESTATE OF SARAH ELIZABETH
FRIEND, DECEASED, AND
LUTHER FRIEND, INDIVIDUALLY
------------
FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY
------------
DISSENTING OPINION
------------
I agree with the majority‘s analysis of whether the Friends sufficiently
alleged a waiver of immunity, but I dissent because I do not believe that such
analysis is necessary. We cannot determine from the pleadings whether the
operation of the water park is a governmental or proprietary function. If the water
park is a proprietary function, NRH does not have immunity, and no analysis of
whether immunity has been waived is necessary. Accordingly, I respectfully
dissent.
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: February 24, 2011
2