524 S.W.3d 793
Tex. App.2017Background
- On Nov. 11, 2014 Deputy Constable Kenneth Caplan shot and severely injured Lori Annab; Caplan was off-duty and owned the Glock he used.
- Caplan had a troubled employment history and several prior incidents suggesting anger/road-rage problems; he disclosed mood-stabilizing medication when applying.
- Harris County had approved/authorized Caplan to carry and use the firearm and had the authority to revoke that authorization.
- Annab sued Harris County under the Texas Tort Claims Act (TTCA), alleging negligent use/misuse of property by (a) hiring/retaining Caplan, (b) repeatedly authorizing and qualifying him to possess/use the firearm, and (c) negligently failing to withdraw that authorization.
- Harris County filed a plea to the jurisdiction asserting sovereign immunity (intentional-torts exclusion, no “use” of tangible personal property, negligent entrustment inapplicable, and scope-of-employment arguments); the trial court granted the plea and Annab appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TTCA intentional-torts exclusion bars Annab's claim | Annab: claim targets County’s negligent authorization/failure to revoke (a negligent use/misuse of property), not Caplan’s intentional shooting | County: the injury stems from an intentional tort (shooting) excluded by §101.057, so immunity stands | Court: intentional-torts exclusion does not defeat Annab’s negligent-use theory; County failed to prove exclusion applies |
| Whether negligent entrustment/hiring claims waive immunity | Annab: alleges County’s hiring/authorization contributed to injury | County: negligent entrustment requires ownership/control of chattel; Caplan owned the gun so entrustment claim fails | Court: negligent entrustment claim fails (no waiver); dismissal as to entrustment affirmed |
| Whether County’s alleged acts constitute a “use” of tangible personal property under §101.021(2) | Annab: County’s authorization/control over firearm and related policies show County used/controlled the gun so its use proximately caused injury | County: merely allowing/authorizing or failing to revoke is nonuse or misuse of information; without more there is no “use” and no proximate causation | Court: pleadings/evidence did not conclusively establish County’s “use” or proximate causation; because County raised this challenge for first time on appeal, case remanded for further development rather than dismissed |
| Whether County conclusively proved lack of jurisdiction (burden on plea) | Annab: pleadings, construed liberally, and submitted evidence raise jurisdictional questions; County failed to conclusively negate jurisdiction | County: argued multiple bases (intentional-tort exclusion, non-use, scope of employment) to show no waiver | Held: County failed to conclusively establish lack of jurisdiction on the record before the trial court (except for negligent entrustment); trial court’s grant reversed in part and remanded |
Key Cases Cited
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standards for pleading jurisdictional facts and sovereign-immunity waiver under TTCA)
- City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014) (TTCA excludes intentional torts from waiver)
- Delaney v. Univ. of Houston, 835 S.W.2d 56 (Tex. 1992) (intervening intentional act does not always vitiate governmental negligence liability)
- Young v. City of Dimmitt, 787 S.W.2d 50 (Tex. 1990) (distinguishing negligence in supervision/entrustment from officer’s intentional tort)
- DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (distinguishing governmental “use” of property from a condition/premises defect)
- San Antonio State Hosp. v. Cowan, 128 S.W.3d 244 (Tex. 2004) (definition of “use” of property under §101.021(2))
- Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380 (Tex. 2016) (providing/furnishing access to property alone is not a “use” under §101.021(2))
- City of Dallas v. Sanchez, 494 S.W.3d 722 (Tex. 2016) (proximate-cause requirements for TTCA waiver under §101.021(2))
- Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012) (procedural rules when jurisdictional arguments are first raised on appeal)
- Prairie View A&M Univ. v. Mitchell, 27 S.W.3d 323 (Tex. App.—Houston [1st Dist.] 2000) (use/misuse of information does not equal use/misuse of tangible personal property under TTCA)