City of Beaumont v. Mahmood

558 S.W.3d 712

The CITY OF BEAUMONT, Appellant

v.Khalid MAHMOOD, Appellee

NO. 09-18-00145-CV

Court of Appeals of Texas, Beaumont.

Submitted on July 18, 2018

Opinion Delivered September 27, 2018

Tyrone E. Cooper, City Attorney, Sharae N. Reed, First Assistant City Attorney, Beaumont, TX, for Appellant.

Jeffrey Musslewhite, Brown and Musslewhite, Ltd., LLP, Houston, TX, for Appellee.

Before McKeithen, C.J., Kreger and Horton, JJ.

HOLLIS HORTON, Justice

This is an interlocutory appeal from an order issued by a district court denying the City of Beaumont’s plea to the jurisdiction. We affirm.

Background

In August 2014, Khalid Mahmood was driving down a street in the City of Beaumont when a large fiberglass manhole fell from one of the City’s trucks. Mahmood, who was driving a minivan, hit the manhole.

In 2016, Mahmood sued the City, claiming that he was injured when his minivan struck the manhole after it fell from a truck being driven by a City employee, Christopher Norman. Mahmood alleged that Norman was in the course and scope of his employment with the City when the collision occurred; that the City, through its employees, had negligently secured the manhole to the truck before the collision occurred; and that Norman’s negligent operation of the truck was the reason the manhole fell from the truck.

Nearly two years after Mahmood sued, the City challenged the trial court’s exercise of jurisdiction over Mahmood’s claims by filing a plea to the jurisdiction. In its plea, the City asserted that Mahmood "cannot show a nexus between the injuries he allegedly sustained and the [City’s] use of motor-driven equipment." The City also alleged that Mahmood could not show that his injuries had been "caused by the use of tangible personal property or real property by a City employee." In support of its plea, the City relied on Mahmood’s answers to the City’s requests for discovery, a deposition the City obtained from Mahmood, the deposition of Christopher Norman, and the deposition of Wilma Jones, another of the City’s employees who was present when Mahmood’s minivan struck the City’s manhole.

In his response to the City’s plea, Mahmood relied on the Texas Tort Claims Act to argue that the Legislature had waived the City’s immunity for injuries that arose from the operation or use of a motor-driven vehicle being used by an employee while in the course and scope of the City’s employment. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (West 2011). Additionally, Mahmood relied on a waiver provision in the Tort Claims Act that waives a municipality’s immunity if the plaintiff’s injury arose from the municipality’s use of tangible personal property. See id. § 101.021(2) (West 2011). While Mahmood attached his deposition to his response, he did not ask the trial court to review any evidence that the City had not already asked the court to consider in resolving the City’s plea.

In April 2018, and without stating a basis for its ruling, the trial court denied the City’s plea. We note our jurisdiction over the City’s accelerated appeal. See id. § 51.014(a)(8) (West Supp. 2017).

Waiver of Immunity

The City challenged the trial court’s jurisdiction over Mahmood’s case by filing a plea to the jurisdiction. A plea to the jurisdiction is a dilatory plea, which governmental entities may use to challenge a court’s power to resolve the merits of a plaintiff’s claims. See Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000).

Generally, trial courts do not possess subject-matter jurisdiction over a suit against a governmental entity unless the Legislature has enacted a statute waiving the entity’s immunity for the type of claim the plaintiff has asserted in the suit. See Fed. Sign v. Tex. S. Univ. , 951 S.W.2d 401, 403 (Tex. 1997) ; Duhart v. State , 610 S.W.2d 740, 741 (Tex. 1980). But in cases involving torts, the Legislature waived the immunity that governmental entities, such as municipalities, otherwise enjoy if the plaintiff’s claim is one that falls within the requirements in the statutory waiver. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021 -.029 (West 2011 & Supp. 2017). Thus, section 101.025 of the Tort Claims Act allows a plaintiff to sue a governmental entity for damages if the requirements in the Tort Claims Act apply to the plaintiff’s claim. See id. § 101.025 (West 2011).

For injuries that arise from a municipality’s operation of motor-driven vehicles, the Tort Claims Act waives a municipality’s immunity from suit if the municipality’s employee was driving the vehicle, the employee was acting in the scope of his employment, the collision arose "from the operation or use of a motor-driven vehicle[,]" and "the employee would be personally liable to the claimant according to Texas law[.]" Id. § 101.021(1). The Tort Claims Act also provides a second waiver of a municipality’s immunity from suits if the suit arose from the municipality’s use of tangible property, and the municipality was engaged in a governmental function when the plaintiff’s injury occurred. Id. § 101.021(2).¹ Additionally, for the use-of-property waiver to apply, it must also be shown that the municipality "would, were it a private person, be liable to the claimant according to Texas law." Id.

The evidence the trial court considered in deciding the City’s plea contains two basic versions of the events that led to Mahmood’s collision with the manhole. In reviewing rulings on pleas to the jurisdiction, and unless the evidence about how a tort occurred is conclusively established by the evidence the trial court considered in ruling on the plea, the evidence is reviewed in the light that favors the party who opposed the plea. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004). When trial courts consider evidence from an interested party, that party’s testimony must be clear, positive, direct, credible, free from contradiction, and uncontroverted before it will be considered conclusive as having established a fact. McIntyre v. Ramirez , 109 S.W.3d 741, 749 (Tex. 2003).

The evidence the trial court considered in ruling on the City’s plea included the depositions of (1) Christopher Norman, (2) Wilma Jones, and (3) Mahmood.² These depositions contain two versions about the circumstances that led to Mahmood’s collision. Both at trial and on appeal, the parties do not dispute several facts, including the following: (1) the City owned the truck from which the manhole fell; (2) while the truck was in the City’s yard, the City’s employees loaded and strapped the manhole to the truck; (3) before leaving the City’s yard, Norman checked to see that the equipment was secured to the bed of his truck; and (4) while moving the manhole across town, Norman and the others in the truck were all acting in the course and scope of their employment with the City. Although no disagreement exists over these facts, the accounts of the three witnesses conflict about what happened just before the collision occurred.

Mahmood’s version about what happened differs from the accounts given by Norman and Jones. In his deposition, Mahmood testified that something fell off the truck that he was following as he was driving down the street. According to Mahmood, the object that fell from the truck rolled toward him, and he could not avoid hitting it because he did not have time to stop. Mahmood explained that he hit the brakes, but "[the manhole] just hit me." Mahmood also testified that his minivan and the truck were both in motion when the collision occurred.

In contrast to Mahmood’s version of the events, Norman and Jones testified in their depositions that when the manhole fell off the truck, Norman stopped. At that point, all the employees in the truck got out of the truck, and Jones walked about twenty-five feet up the road to flag traffic. While flagging traffic, Jones forced several cars in the truck’s lane to change lanes while other City employees, not including Norman, retrieved the manhole and were rolling it toward the truck. While some of the City’s employees were in the process of rolling the manhole toward the truck, Mahmood, while traveling in the outside lane, swerved to miss Jones as Jones was flagging traffic. Mahmood then struck the manhole. According to Norman and Jones, the manhole was being rolled toward the truck, not away from it, when the collision occurred.

Mahmood relied on two provisions found in the Tort Claims Act, section 101.021(1) and section 101.021(2), to support his claim that the City was not immune from suit under the circumstances we have described. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1), (2). Generally, these two provisions give an individual the right to sue a governmental entity for accidents caused by governmental employees if (1) the injury arose from the governmental entity’s operation or use of a motor-driven vehicle, or (2) the injury arose from the entity’s use of tangible personal property, if the entity, treated as a private person, would be liable for having caused the plaintiff’s injury. Id.

The City argues that the evidence conclusively established that no nexus exists between its truck, the manhole, and the collision. To determine whether the evidence the City asked the trial court to consider on the question of the alleged non-existence of a relationship between the use of the truck and the collision, we observe that the Tort Claims Act contains no statutory definitions for the terms operation or use. See id. § 101.001 (West Supp. 2017) (Definitions). Even so, the Texas Supreme Court has explained that the term operation , as it is used in the Tort Claims Act, refers to " ‘a doing or performing of a practical work[.]’ " LeLeaux v. Hamshire-Fannett Indep. Sch. Dist. , 835 S.W.2d 49, 51 (Tex. 1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg , 766 S.W.2d 208, 211 (Tex. 1989) ). The LeLeaux Court explained that the term use means " ‘to put or bring into action or service; to employ for or apply...