Kerry A. Kilburn and Cynthia H. Kilburn v. Fort Bend County Drainage District, 411 S.W.3d 33

Kerry and Cynthia Kilburn own land adjacent to a creek; Fort Bend County Drainage District excavated and graded the creek in Dec 2008–Jan 2009.
County’s records incorrectly showed an easement; some excavation occurred on the Kilburns’ property before the error was discovered.
Kilburns claimed the County’s work damaged the creek and their property (aesthetic and functional damage, diminished property value, altered creek location).
Original suit pleaded trespass and takings; amended petition dropped trespass and asserted negligence and takings, alleging failure to plan/assess and negligent use of motor-driven equipment.
County filed a plea to the jurisdiction asserting the negligence claim was really an intentional trespass claim and thus barred by sovereign immunity; trial court granted the plea and dismissed the negligence claim with prejudice.
The Fourteenth Court of Appeals reversed and remanded, holding the petition pleaded negligence within the Texas Tort Claims Act waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the amended petition pleads negligence or is actually a trespass/intentional-tort claim	Kilburns: petition alleges negligent planning and operation of excavation equipment causing physical property damage; intent to act is not intent to cause the specific damage	County: negligence claim is a disguised trespass; prior allegations of intentional entry and damage show intentional tort	Court: pleadings construed liberally for plaintiff — allegations describe negligence (failure to plan/perform with reasonable care) not an intentional trespass; issue resolved for jurisdictional pleading stage
Whether sovereign immunity is waived under Tex. Civ. Prac. & Rem. Code §101.021(1) for property damage arising from operation/use of motor-driven equipment	Kilburns: alleged property damage arose from use of motor-driven equipment by employees acting within scope; employees would be personally liable — fits §101.021(1) waiver	County: pleadings insufficiently specific; claimed injury resulted from erroneous records/planning and equipment use was not negligent or outside intended purpose	Court: allegations adequate to invoke §101.021(1); waiver applies if damages arise from use of motor-driven equipment and proximate causation is pleaded; trial court erred in granting plea to jurisdiction

Tex. Dep’t of Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (pleadings construed liberally in favor of plaintiffs when jurisdiction is challenged)
Reed Tool Co. v. Copelin, 689 S.W.2d 404 (Tex. 1985) (distinguishing intentional torts from negligence by requirement of intent to cause specific injury)
Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) (sovereign immunity waived only by clear and unambiguous statutory language)
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994) (governmental immunity principle)
Holder v. Mellon Mortgage Co., 954 S.W.2d 786 (Tex. App.—Houston [14th Dist.] 1997) (separate negligence claim may be pursued even if facts also give rise to an intentional tort absent immunity)
Freeman v. Harris County, 183 S.W.3d 885 (Tex. App.—Houston [1st Dist.] 2006) (§101.021(1) does not require equipment be used for an unintended purpose for waiver to apply)