City of West Columbia, Texas v. J. Marcelino E. Cornejo Garcia and Wife Ernestina Rangel, and Their Children, M. C., J.J.C. and M.C.
01-16-00139-CV
| Tex. App. | Oct 13, 2016Background
- Matula & Matula Construction (M&M) contracted with the City of West Columbia to perform municipal water/sewer work; while working the project in May 2015, worker Marcelino Cornejo suffered a catastrophic illness/injury and became paralyzed.
- Cornejo sued M&M and the City alleging intentional infliction of emotional distress, negligence (including vicarious liability/agency theories), failure to operate/maintain motor-driven pumps, and premises-liability based on exposure to allegedly contaminated water at the site.
- The City filed a plea to the jurisdiction asserting governmental immunity under the Texas Tort Claims Act; the trial court denied the plea and the City appealed.
- Cornejo’s petition alleged (1) City joint responsibility for M&M’s intentional conduct and negligence, (2) City negligence in failing to operate its motor-driven pumps to remove contaminated water, and (3) premises liability as owner/controller of the site.
- The appellate court reviewed the plea de novo, construing pleadings liberally for jurisdictional purposes, and noted no jurisdictional evidence was offered by either party at the plea stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether intentional tort claims fall within Tort Claims Act waiver | Cornejo alleged City’s joint responsibility and foreseeability for exposure | City: Act does not waive immunity for intentional torts | Court: Denied—intentional tort claims barred; plea should have been granted on these claims |
| 2. Whether City can be vicariously liable for M&M’s negligence (right to control/agency) | Cornejo: City retained control/was responsible for safety equipment and pump operation (imputing liability) | City: No allegation/evidence City exercised requisite control; M&M was independent contractor | Court: Denied plea as to these negligence theories—pleadings sufficiently construed in plaintiff’s favor at this stage; issue may be revisited with contract/evidence |
| 3. Whether failure to operate/maintain motor-driven pumps constitutes "use" of motor-driven equipment under section 101.021(1)(A) | Cornejo: City used pumps but they were ineffective; photo shows pump in use | City: Allegation is non-use (failure to use), which does not meet "use" requirement | Court: Denied plea on this claim—construing allegations and photo favorably, plaintiff met "use" element at plea stage |
| 4. Whether premises-liability claim falls within Act waiver (special defect vs. licensee standard) | Cornejo: City controlled site and dangerous condition caused injury | City: No allegation of willful/wanton/gross negligence or special defect; thus no waiver | Court: Granted plea on premises-liability claim—pleading failed to allege willful/wanton/gross negligence or special defect; immunity not waived |
Key Cases Cited
- State v. Holland, 221 S.W.3d 639 (Tex. 2007) (plea-to-jurisdiction de novo review and liberal construction of pleadings)
- Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for jurisdictional pleadings and evidence consideration on pleas)
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex. 2000) (courts may consider evidence when resolving jurisdictional issues)
- City of Watauga v. Gordon, 434 S.W.3d 586 (Tex. 2014) (Tort Claims Act does not waive immunity for intentional torts)
- Tex. Natural Res. Conserv. Comm’n v. White, 46 S.W.3d 864 (Tex. 2001) (stationary electric pump is motor-driven equipment for Act’s "use" requirement)
- Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (scope and limits of Tort Claims Act waiver)
- Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (showing right to control by contract or actual control for vicarious liability)