CITY OF NORTH RICHLAND HILLS v. Friend
337 S.W.3d 387
Tex. App.2011Background
- 12-year-old Sarah Friend attended NRH20 water park for junior lifeguard training and remained after class; she collapsed from a hypertrophic cardiomyopathy while in line for a ride.
- NRH20 had at least two AEDs but Sarah did not receive external defibrillation until about 20 minutes after collapse by the fire department.
- Friends filed suit against the City, NRH20, and city employees; later amendments added numerous city employees as defendants.
- City moved to dismiss and argued immunity, lack of TTCA waiver, and that claims should be barred under the Recreational Use Statute or 101.106; trial court partially denied and required more factual pleadings.
- Friends' fifth amended petition alleged premises defect and use/misuse of tangible personal property (AEDs and radio equipment) and sought various damages; City plea to jurisdiction was denied, leading to this interlocutory appeal.
- Court liberally construed pleadings in Friends’ favor to determine whether the TTCA provides a waiver of immunity or whether an emergency exception applies.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| TTCA waiver via 101.021/101.022 applies? | Friends allege use of tangible personal property and a lack of integral safety component. | City asserts no waiver for the underlying claims; 101.106 bars suit unless consented. | Affirmed in part: waiver found for use/misuse of tangible personal property with lack of integral safety component; otherwise, dismissed. |
| Does emergency exception 101.055(2) defeat waiver? | City employees acted with gross negligence in responding to an emergency. | Emergency exception applies if actions complied with law or showed no conscious indifference. | Friends’ pleadings show conscious indifference; emergency exception does not bar waiver for those claims. |
| Exemplary damages under TTCA? | Damages sought for governmental functions should be available. | TTCA prohibits exemplary damages for governmental functions. | Exemplary damages barred; only waivable claims survive. |
Key Cases Cited
- Miranda v. Tex. Dep't of Crim. Justice, 133 S.W.3d 217 (Tex. 2004) (two-component immunity: immunity from liability and immunity from suit; consent required for suit)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (immunity from suit deprives a court of jurisdiction; immunity from liability is an affirmative defense)
- Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653 (Tex. 2008) (TTCA 101.106(b) election bars suit against unit unless consented; consent determined by state law)
- Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (pleadings construed liberally in plaintiff’s favor to establish jurisdictional facts)
- Miller v. Tex. Dep't of Crim. Justice, 51 S.W.3d 583 (Tex. 2001) (non-use of tangible property is not a waiver; use or misuse required for waiver)