City of Houston v. Ranjel
407 S.W.3d 880
Tex. App.2013Background
- The City of Houston owns an automated people mover (APM) at Bush Intercontinental Airport but contracted Johnson Controls to operate and maintain it; Houston did not staff the APM control center.
- During Phase 3 expansion, the new guideway was turned over to Johnson Controls before punch-list work remained; Johnson Controls controlled access to the guideway.
- On October 26, 2010, two contractors (Turner and Cordero) were on an active portion of the guideway and were struck by an operating APM; Turner died and Cordero was severely injured.
- Plaintiffs sued Houston (and others) alleging Houston negligently failed to provide a safe APM system and asserting waiver of municipal immunity under Tex. Civ. Prac. & Rem. Code §101.021 (operation/use of motor-driven equipment and use of tangible personal property).
- Houston filed a plea to the jurisdiction, supported by undisputed deposition excerpts showing Johnson Controls operated the APM, no Houston employees were in the control room or at the site at the time, and Houston lacked contractual authority to directly control daily train operation.
- The trial court denied the plea; on interlocutory appeal the court considered whether the evidence shows a Houston employee operated or used the APM (required to waive immunity) or whether Johnson Controls was a Houston employee.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TTCA waiver applies because the APM was "motor-driven equipment" or "tangible personal property" operated/used by a Houston employee | Plaintiffs: APM operation/use by Houston employees is shown (or at least fact issue); waiver under §101.021 | Houston: No Houston employee operated/used the APM; waiver not shown | Held: No waiver — undisputed evidence shows no Houston employee operated/used the APM |
| Whether Johnson Controls is a Houston "employee" for TTCA waiver purposes | Plaintiffs: Houston controlled details of Johnson Controls’ work, so Johnson Controls is effectively an employee | Houston: Johnson Controls is an independent contractor operating under its own control; statutory employee status not met | Held: Johnson Controls was an independent contractor; not a Houston employee, so no waiver |
| Whether Morgan/Rubio analogies create a fact issue of government control over vehicle/equipment | Plaintiffs: Cases where government agents exercised direct control support a fact issue here | Houston: Those cases involved direct, mandatory control (spotters, officers); no similar control here | Held: Morgan/Rubio inapplicable — no evidence of direct, mandatory control by Houston employees |
| Whether Johnson Controls’ cross-claim for contribution against Houston survives if Houston is immune | Johnson Controls: Cross-claim valid because it contributed to alleged negligence | Houston: Cross-claim is derivative; if plaintiffs’ claims fail for lack of waiver, cross-claim fails too | Held: Cross-claim dismissed as derivative of plaintiffs’ claims because Houston’s immunity was not waived |
Key Cases Cited
- DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (waiver under §101.021 requires operation/use by a governmental employee)
- LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) (the operation/use triggering waiver must be that of the employee)
- County of Galveston v. Morgan, 882 S.W.2d 485 (Tex.App.—Houston [14th Dist.] 1994) (government spotters exercised direct control over trucks; waiver found)
- City of El Campo v. Rubio, 980 S.W.2d 943 (Tex.App.—Corpus Christi 1998) (police officer’s direct control over vehicle use supported waiver)
- Olivares v. Brown & Gay Eng’g, Inc., 401 S.W.3d 363 (Tex.App.—Houston [14th Dist.] 2013) (employee v. independent-contractor analysis focuses on right to control details of work)
- Texas A & M Univ. v. Bishop, 156 S.W.3d 580 (Tex. 2005) (right-to-control factors determine employee status; question may be decided as a matter of law when facts undisputed)
- Texas Dept. of Transportation v. Ramirez, 74 S.W.3d 864 (Tex. 2002) (leave to amend is futile when undisputed jurisdictional evidence negates waiver)