CITY OF NORTH RICHLAND HILLS, Appellant, v. Laura FRIEND, Individually and as Personal Representative of the Estate of Sarah Elizabeth Friend, Deceased, and Luther Friend, Individually, Appellees.
No. 02-09-00166-CV.
Court of Appeals of Texas, Fort Worth.
Feb. 24, 2011.
Rehearing Overruled March 31, 2011.
337 S.W.3d 387
ANNE GARDNER, Justice.
Taylor Olson Adkins Sralla & Elam, LLP and George Staples, Daniel R. Barrett and Fredrick ‘Fritz’ Quast, Fort Worth, TX, for Appellant. Keith Law Firm PC and Darrell L. Keith, Fort Worth, TX, for Appellees. PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
“Trial courts are to be encouraged to proceed expeditiously from the granting or denying of temporary injunctive relief to full consideration of the merits so as to reduce the necessity for interlocutory appeals.” Id. (quoting Coal. of Cities for Affordable Util. Rates v. Third Court of Appeals, 787 S.W.2d 946, 947 (Tex.1990) (per curiam) (orig. proceeding)). Instead, the parties and the trial court here postponed a final resolution of the merits of the case, as well as extended the duration of the temporary injunction—the very order about which appellant complains—in part to obtain from this Court a ruling as to an order that is only interlocutory in nature. As we have said, judicial economy dictates that we not reward such efforts. Id.
Additionally, a party may not use an appeal of a temporary injunction ruling to get an advance ruling on the merits. Id. By seeking and obtaining a continuance of the trial setting, the parties are seeking an advisory opinion on the merits of their case. To quote from the parties’ joint motion for continuance, to the extent “the issues before the Court of Appeals are important to the outcome of this case ...,” the parties are seeking an advisory opinion from this Court. We have no jurisdiction to issue such opinions. See id. at 364 (citing Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex.2000) (per curiam)).
Conclusion
Accordingly, without addressing the merits of Barnett‘s issue on appeal, we dismiss this interlocutory appeal.
ANNE GARDNER, Justice.
I. Introduction
Appellant, the City of North Richland Hills (the City), brings this interlocutory appeal from the trial court‘s denial of its plea to the jurisdiction in the lawsuit filed against it by Appellees Laura Friend, Individually and as Personal Representative of the Estate of Sarah Elizabeth Friend, Deceased, and Luther Friend, Individually (collectively, the Friends). The City contends in one issue that the trial court should have granted its plea to the jurisdiction in its entirety, arguing that the Friends’ claims are barred by governmental immunity because the City has not, through a statutory waiver of immunity, consented to those claims. We affirm in part and reverse in part.
II. Background
On July 14, 2004, twelve-year-old Sarah Elizabeth Friend visited the City‘s NRH20 water park for junior lifeguard training, and after the training finished for the day, she remained at the park to enjoy the water rides. While standing in line for the “Green Extreme” ride, she collapsed due
The Friends filed suit against the City, NRH20, and two City employees. They added additional defendants through amended pleadings, including seventeen City employees. The City filed a combined motion to dismiss, special exceptions, and a plea to the jurisdiction, arguing that the Friends’ pleadings had not alleged facts showing a waiver of the City‘s immunity, that the recreational use statute2 barred the Friends’ claims, and that the claims against the City‘s employees should be dismissed under
The Friends then filed a fourth amended petition, and the City filed another plea to the jurisdiction asserting that it had not consented to suit under the Texas Tort Claims Act (TTCA) and that the Friends were barred by
III. Standard of Review
Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Tex. Natural Res. Conservation Comm‘n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002). A plea to the jurisdiction is a dilatory plea that challenges the trial court‘s subject matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). It is used to defeat a cause of action without regard to whether the claims asserted have merit. Id.
The plaintiff has the burden of alleging facts that affirmatively establish the trial court‘s subject matter jurisdiction. Tex. Ass‘n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We con
IV. Discussion
In its sole issue, the City contends that the trial court erred by denying its plea to the jurisdiction because the TTCA does not waive the City‘s immunity from suit. Specifically, the City contends that because the Friends sued both the City and some of its employees,
A. Applicable Law
1. Governmental Immunity
Unless waived by the State, governmental immunity from suit defeats a trial court‘s subject matter jurisdiction. Miranda, 133 S.W.3d at 225. “[Governmental] immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued[,] unless the state consents to suit.” Id. at 224. In Texas, governmental immunity has two components: immunity from liability and immunity from suit. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex.2006); Miranda, 133 S.W.3d at 224. Immunity from liability “bars enforcement of a judgment against a governmental entity” and is an affirmative defense. Tooke, 197 S.W.3d at 332; Miranda, 133 S.W.3d at 224. Immunity from suit, on the other hand, “bars suit against the [governmental] entity altogether” because it “deprives a court of subject matter jurisdiction.” Tooke, 197 S.W.3d at 332; Miranda, 133 S.W.3d at 224.
2. TTCA Section 101.106(b) Election of Remedies
3. TTCA Sections 101.021(2) and 101.022 Waivers of Immunity
The City asserts that it has not consented to the Friends’ suit because the applicable provisions of the TTCA have not waived the City‘s governmental immunity. Relevant to this case,
B. Premises Defect
The Friends contend they have adequately alleged injury caused by a premises defect by pleading that the City “failed to provide an AED device and/or other resuscitative equipment or devices at or near the Green Extreme structure and activity.” We disagree.
The TTCA provides a limited waiver of immunity for tort claims arising from either ordinary premises defects or special defects.
The Friends have also failed to allege an ordinary premises defect. Chapter 101 does not define “premises,” but “premises” is defined in civil practice and remedies code section 75.001(2) to include “land, roads, water, watercourse, private ways, and buildings, structures, machinery, and equipment attached to or located on the land, road, water, watercourse, or private way.”
C. Condition or Use of Tangible Personal Property
1. Non-Use of Tangible Personal Property
The Friends allege that the City “failed to provide an AED device and/or other resuscitative equipment at or near the Green Extreme” and that the AED was “removed ... from the Green Extreme and improperly placed ... in a location where ... it could not be timely obtained and used at or near the Green Extreme.” However, allegations of failure to use or nonuse of tangible personal property are not sufficient to establish a waiver of immunity. See Tex. Dep‘t of Criminal Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex.2001) (distinguishing failure to use or nonuse of property from use or condition). The Friends’ allegations concerning the placement or availability of resuscitative equipment so that it could not be timely obtained or used at or near the Green Extreme are nothing more than allegations that the AEDs were not used by the City, that is, they are nonuse allegations that do not waive immunity under the TTCA. See Kassen v. Hatley, 887 S.W.2d 4, 14 (Tex.1994) (holding “non-use of available drugs during emergency medical treatment is not a use of tangible personal property that triggers waiver of sovereign immunity.“). And to the extent the Friends allege that the removal of the AEDs from the Green Extreme and placement of that equipment elsewhere was a “use” or “misuse” under the TTCA, changing storage locations cannot logically be characterized as putting or bringing them into action or service or employing or applying them to a given purpose. See Miller, 51 S.W.3d at 588 (stating that “‘[u]se’ means ‘to put or bring into action or service; to employ for or apply to a given purpose‘“) (quoting Tex. Nat. Res. & Conservation Comm‘n v. White, 46 S.W.3d 864, 869 (Tex.2001)).
2. Use of Tangible Personal Property Did Not Cause Death
The Friends also allege that the City “used or misused the portable radio communication devices in calling for the necessary resuscitative equipment.” However, the TTCA only waives the City‘s governmental immunity for the use of tangible personal property if that use caused the personal injury or death. See
3. Lack of an Integral Safety Component
The City also contends that the Friends have not alleged sufficient facts to establish a waiver of immunity relating to a use of tangible personal property that lacked an integral safety component. We disagree.
Waiver based upon lack of an integral safety component is limited to very narrow circumstances. Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 585 (Tex.2005); Tex. State Technical Coll. v. Beavers, 218 S.W.3d 258, 261 (Tex.App.-Texarkana 2007, no pet.). A governmental unit does not waive immunity merely when the governmental unit could have provided property that is better, safer, or with a more effective safety feature; the property used must lack an integral safety component that led to the plaintiff‘s injuries. See Bishop, 156 S.W.3d at 581 (holding claim by drama student acting in play that knife furnished by faculty advisors was unsafe without a stab pad was merely claim that stab pad would have made knife safer, not that an integral safety component was lacking for purposes of governmental waiver). The plaintiff must allege that the integral safety component is entirely lacking and not merely inadequate. Id. at 584; Beavers, 218 S.W.3d at 264; Thurman v. Harris Cnty., No. 01-07-00235-CV, 2009 WL 1635430, at *6 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (mem.op.) (reversing dismissal and remanding to allow plaintiffs to clarify by amended pleadings whether ferry completely lacked safety barrier as integral safety component); see also Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex.1989) (holding failure to furnish life preserver as part of swimming equipment furnished to epileptic patient constituted use of property lacking integral safety component); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex.1976) (holding absence of knee brace with uniform constituted use of property lacking integral safety component); Overton Mem‘l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex.1975) (holding bed rails were integral safety component lacking for hospital bed used for patient); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 223-24 (Tex.App.-Fort Worth 2003, pet. denied) (holding barrels of ice furnished without necessary scoop to prevent contamination constituted “condition” of tangible personal property lacking integral safety component sufficient to waive immunity).
The Friends allege that the City was negligent in the “misuse or use of tangible personal property that lacked an integral safety component” because “the necessary resuscitative equipment and devices contained an oxygen cylinder, mask, and other airway equipment, but lacked an integral safety component consisting of an AED device.” This allegation includes sufficient facts to establish that the equipment that was furnished entirely lacked an integral safety device, and it therefore sufficiently established use or misuse of tangible personal property by the City pursuant to
D. Emergency Response
The City argues that its immunity has not been waived by the TTCA because an exception to the waiver applies and the Friends have not pleaded sufficient facts to
This chapter does not apply to a claim arising:
....
(2) from the action of an employee while responding to an emergency call or an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others.
The Friends have not alleged any ordinance or law that might have governed the City employees’ actions in this case. See id. at 673 (noting that plaintiffs failed to assert any applicable law or ordinance). They were therefore required to allege sufficient facts of “conscious indifference” or “reckless disregard” for the safety of others under
The Friends generically allege the City‘s conduct “amounted to gross neglect and/or gross negligence,” but their pleadings include much more. The Friends’ petition alleges (1) that the City‘s “NRH20 Water Park was equipped with at least two (2) automated external defibrillators“; (2) that NRH20 “employed several individuals who were responsible for providing first aid, resuscitative treatment and/or other health care intervention to and for individuals, including Sarah Friend, in need of cardiorespiratory assessment, care and resuscitation and therapy“; and (3) that NRH20 “authorized or permitted” an emergency medical technician, “to be
Liberally construing the Friends’ allegations as we are required to do, we hold that the Friends’ assertions of gross negligence are not mere conclusory allegations. The pleading allegations establish that the City was aware of the necessity of using an AED to resuscitate an individual experiencing a cardiac episode, that the City had AEDs available at NRH20, that the City had trained its employees on the use of the AEDs, but that the City employees did not use an AED to resuscitate Sarah. These factual assertions are sufficient to allege that the City knew the relevant facts but did not care about the result, even in responding to an emergency call. Thus, we hold that the Friends have alleged sufficient facts to establish the nonapplicability of
E. Exemplary Damages
The City also argues that the trial court erred by denying its plea to the jurisdiction to the extent that the Friends seek exemplary damages. Because the Friends do not allege that the City‘s conduct in this case involved a proprietary function, we agree. The TTCA specifically prohibits the recovery of exemplary damages for governmental functions. See
Because the Friends’ fifth amended petition, construed liberally in the Friends’ favor, alleges a waiver of governmental immunity for injuries arising from use or misuse of tangible personal property based on the lack of an integral safety component and gross negligence by employees acting in response to an emergency situation, we affirm the trial court‘s denial of the City‘s plea to the jurisdiction as to that claim. As to all other allegations of liability and entitlement to exemplary damages in the Friends’ fifth amended petition, we reverse the trial court‘s denial of the City‘s plea to the jurisdiction and dismiss those allegations for lack of subject matter jurisdiction.
DAUPHINOT, J. filed a dissenting opinion.
LEE ANN DAUPHINOT, Justice, dissenting.
I agree with the majority‘s analysis of whether the Friends sufficiently alleged a waiver of immunity, but I dissent because I do not believe that such analysis is necessary. We cannot determine from the pleadings whether the operation of the water park is a governmental or proprietary function. If the water park is a proprietary function, NRH does not have immunity, and no analysis of whether immunity has been waived is necessary. Accordingly, I respectfully dissent.