Note: Included cases are from November 11, 2017 through December 10, 2017.
Governmental Immunity: City of San Antonio v. Torres, No. 04-17-00309-CV, 2017 WL 5472537 (Tex. App.—San Antonio Nov. 15, 2017) (mem. op.). This case involves a collision between a City of San Antonio police vehicle and a truck containing passengers Patrick Torres and Johnnie Dears (collectively referred to as Torres).
Torres’ truck was struck by a city police vehicle being operated without emergency lights or sirens activated. The police officer failed to heed the stop sign at an intersection, resulting in the collision. Torres sued the city for personal injury damages, alleging that the officer negligently caused the collision. The city filed a plea to the jurisdiction asserting its governmental immunity. The city argued that the officer was responding to an emergency situation, his actions were in compliance with the applicable statute and ordinances, and he did not act with conscious indifference or reckless disregard for the safety of others. The trial court denied the city’s plea to the jurisdiction, and the city filed this interlocutory appeal.
In its appeal, the city argues: (1) Torres failed to plead facts demonstrating jurisdiction exists; (2) the city presented sufficient evidence to support its plea that the officer was in compliance with the applicable statute and ordinances and did not act with conscious indifference or reckless disregard for the safety of others; and (3) Torres failed to present evidence raising a fact issue regarding the jurisdictional facts.
The court of appeals analyzed the city’s three arguments, concluding that Torres did state a claim against the city arising from the employee’s driving with reckless disregard for the safety of others. The court pointed out that the Third Amended Petition alleged that the officer “drove inattentively, failed to keep a proper lookout, failed to control his speed, failed to heed a stop sign, and failed to operate his vehicle with appropriate regard for the safety of others.” Because the court must liberally construe the pleadings, the court concluded that Torres did state a claim.
The city provided an affidavit from the officer on the evidence, along with a deposition and the incident crash information. The court pointed out that the city did not present evidence that the officer “looked for oncoming traffic at the intersection or that he took any other action to determine whether slowing down was necessary to protect the safety of others.” Without this evidence, the court concluded that the city’s evidence was insufficient to establish that the officer complied with the law and ordinances applicable to an emergency situation. The court also concluded that the evidence presented contained no facts demonstrating the officer identified or considered any possible risks to the safety of others. Taken together, the city’s evidence failed to establish the applicability of the emergency exception to waiver of immunity in Section 101.055(2) of the Texas Tort Claims Act.
The court held that when viewing the evidence presented in the light most favorable to Torres, there is a material fact question as to whether the officer acted recklessly or with conscious disregard for the safety of others. Thus, the court affirmed the trial court’s order denying the city’s plea to the jurisdiction.
Takings: Rodriguez v. City of Fort Worth, No. 07-16-00037-CV (Tex. App.—Amarillo Dec. 8, 2017) (mem. op.). This is a takings/condemnation and Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals affirmed the granting of the city’s plea to the jurisdiction.
Prior to Rodriguez’s ownership of a residential structure, the City of Fort Worth’s Building Standards Commission found it to be substandard and hazardous to public health. A copy of the order was mailed to the then owner and filed in the deed records of Tarrant County on October 19, 2012. Rodriguez purchased the property on December 12, 2012, without personal knowledge of the commission’s order but, the court found Rodriguez possessed constructive knowledge due to the filing in the deed records. The property was demolished on June 28, 2013, by a contractor hired by the city. Rodriguez brought suit, alleging the city intentionally destroyed the building (a takings) or negligently destroyed it under the TTCA. The city filed a plea to the jurisdiction which the trial court granted. Rodriguez appealed.
As to Rodriguez’ TTCA claim, nothing in the record shows city employees were involved with the demolition by “operating” or “using” motor-driven vehicles or equipment or by exercising any control over the independent contractor or its employees. No city-owned motor-driven vehicles or equipment were used in the demolition. As a result, the city has not waived its immunity under the TTCA.
As to Rodriguez’ takings claim, Rodriguez did not allege any facts demonstrating that demolition of his property was for public use. The improvements on the property were found to be substandard and hazardous to public health; however, the owner was given the opportunity to bring those improvements up to code in order to prevent their demolition. When the owner failed to comply, the city removed the public health hazard. As such, Rodriguez’ claims do not allege a constitutional takings.
Rodriguez also asserted he requested leave to amend his pleadings and was denied. However, Rodriguez was given and took advantage of two prior amendments to address the city’s plea and supplemental plea. Because Rodriguez had a reasonable opportunity to amend he cannot now complain about being deprived of an opportunity to amend. Furthermore, even if Rodriguez were afforded an opportunity to amend, his live pleading indicates incurable defects – specifically, the use of an independent contractor of the tort claims and lack of a public purpose for takings. As a result, the plea was properly granted.*
*Case summaries taken largely from the work of the Law Offices of Ryan Henry, PLLC, and reprinted with permission from Ryan Henry. To sign up for the firm’s blog, go to www.rshlawfirm.com.