the City of Houston v. Kelley Street Associates, LLC, 14-14-00818-CV

Kelley Street Associates owns an office building at 5825 Kelley Street, Houston; City of Houston crews performed repairs to a water meter/main adjacent to the building on October 2, 2012.
City personnel used a backhoe to break up and remove concrete above the water main; hand tools were used later to complete the repair.
The backhoe operation dislodged dirt, rocks, and debris that entered the opened water pipe during the repair and flowed into the building’s plumbing, damaging fixtures and causing flooding.
Kelley Street Associates sued the City (and its insurer) alleging negligence arising from operation/use of motor-driven equipment (the backhoe) that proximately caused property damage; the City filed a plea to the jurisdiction asserting sovereign immunity.
The trial court denied the City’s plea; the City took an interlocutory appeal challenging whether the damage “arises from” operation/use of motor-driven equipment under TEx. Civ. Prac. & Rem. Code §101.021(1)(A).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether property damage “arises from” use/operation of motor-driven equipment (§101.021(1)(A))	Backhoe was integral to the repair, dislodged debris that entered the pipe; therefore damage arises from its operation and immunity is waived	Backhoe only removed concrete (set the stage); hand tools caused entry of debris so no sufficient nexus to waive immunity	Trial court denial of plea to jurisdiction affirmed — sufficient nexus existed between backhoe use and damage
Standard/burden on plea to the jurisdiction	Evidence viewed in nonmovant’s favor and reasonable inferences drawn for plaintiff; plaintiff need not prove the merits at this stage	City must prove as a matter of law that §101.021(1) does not apply	Court applied the jurisdictional standard favoring the nonmovant and found the City did not negate the statutory exception

LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49 (Tex. 1992) (operation/use of vehicle must have nexus to injury; vehicle that merely provides setting is insufficient)
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003) (vehicle operation must be more than a setting for injury to waive immunity)
City of Waco v. Kirwan, 298 S.W.3d 618 (Tex. 2009) (plea-to-jurisdiction standards; when pleadings neither show nor negate jurisdiction, court may consider evidence)
Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 618 (Tex. 2004) (jurisdictional evidence must be taken in nonmovant's favor; reasonable inferences drawn for nonmovant)
San Antonio Water Sys. v. Overby, 429 S.W.3d 716 (Tex. App.—San Antonio 2014) (use of equipment that merely creates a condition, without showing how specific use caused damage, does not establish §101.021 nexus)
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (there can be multiple proximate causes of an injury)
Travis v. City of Mesquite, 830 S.W.2d 94 (Tex. 1992) (discussion of factual foreseeability and proximate cause concepts)