City of Hous. v. Branch

695 S.W.3d 580

CITY OF HOUSTON, Appellant

v.John Anthony BRANCH, Appellee

NO. 01-21-00255-CV

Court of Appeals of Texas, Houston (1st Dist).

Opinion issued January 30, 2024

Rehearing en Banc Granted January 30, 2024

On Appeal from the 333rd District Court, Harris County, Texas, Trial Court Case No. 2020-31674

ARTURO G. MICHEL, City Attorney, SUZANNE R. CHAUVIN, Chief, General Litigation Section, CHRISTY L. MARTIN, CITY OF HOUSTON LEGAL DEPARTMENT, 900 Bagby Street, 4th Floor, Houston, Texas 77002, for Appellant.

MORGAN A. MCPHEETERS, MCPHEETERS LAW, PLLC, 4447 N. Central Expy., Ste. 101, Box #158, Dallas, Texas 75205, KATHERINE M. JAMES, John Hallman, THE JAMES LAW FIRM, 440 Louisiana, Suite 900, Houston, Texas 77002, for Appellee.

Before the court en banc.

OPINION ON EN BANC RECONSIDERATION

April L. Farris, Justice

Appellee John Anthony Branch has filed a motion for en banc reconsideration of our September 1, 2022 opinion and judgment. See Tex R. App P. 49.5. A majority of the Court has voted to grant en banc reconsideration. We withdraw our opinion of September 1, 2022, vacate our judgment of the same date, and issue this opinion and judgment in their stead.

Branch sued the City of Houston for negligence, alleging that he was injured when a Houston city councilmember hit the gas pedal of a golf cart with his foot, causing the golf cart to strike Branch. The City moved for summary judgment, arguing that Branch could not establish that the Texas Tort Claims Act ("Tort Claims Act" or "the Act") waived its governmental immunity. The trial court denied the City’s summary judgment motion.

The City appeals, arguing that the Tort Claims Act does not waive immunity because Branch’s injury did not arise from the "operation or use of a motor-driven vehicle." See Tex Civ Prac & Rem Code § 101.021(1). Rather, the City argues that the golf cart was being used as a "waiting area or holding cell" when Branch was injured. The City also argues that the Tort Claims Act only waives governmental immunity when the motor vehicle in question is a government-owned vehicle, and the golf cart here was privately owned. The City further argues that Branch filed an untimely amendment to his petition to assert the Tort Claims Act’s personal property waiver, which also does not apply to waive the City’s immunity in this case.

We hold that Branch has raised a fact issue precluding summary judgment for the City. Giving the statutory terms their everyday meaning, we hold that hitting the gas pedal—even inadvertently—constitutes the "operation or use of a motor-driven vehicle." Branch has presented some evidence that his injuries arose from the city councilmember’s accidental engagement of the golf cart’s gas pedal, causing the golf cart to roll forward and injure Branch. We further hold that nothing in the Tort Claims Act restricts the motor-vehicle waiver of governmental immunity to government-owned vehicles. Accordingly, we affirm the judgment of the trial court.

Background

On October 13, 2018, the Booker T. Washington High School Alumni Association held a parade in Houston to celebrate the school’s 125th anniversary. John Gibbs was the president-elect of the Alumni Association and served as a co-Chair of the parade. At that time, Gibbs was also the community outreach liaison for City of Houston Councilmember Michael Kubosh.

Although the parade was not sponsored by the City of Houston, several city leaders and elected officials attended the parade, including Councilmember Kubosh. Gibbs’s role was to drive Councilmember Kubosh along the parade route in Kubosh’s privately owned golf cart. According to Gibbs, before the parade started, he drove Councilmember Kubosh in the golf cart to the correct position in the parade lineup. Gibbs stopped the golf cart and "applied the golf cart’s brake and emergency brake." Branch, another participant in the parade, walked over to the golf cart and "leaned with his elbows on the windshield of the golf cart." Branch’s feet "were underneath the front of the golf cart."

Gibbs then got out of the golf cart from the driver’s side of the cart. According to Gibbs, the golf cart’s emergency brake was still on. Councilmember Kubosh, who had been sitting in the passenger seat of the golf cart, "started to slide towards the driver’s side of the vehicle." In his peripheral vision, Gibbs saw Councilmember Kubosh’s left foot "pass over the gas pedal without touching it." However, when Councilmember Kubosh shifted his body weight within the golf cart, "the golf cart shifted forward." Gibbs did not see the golf cart strike Branch, but he heard other people ask Branch if he was okay. Branch responded that he was.

Branch filed a personal injury lawsuit against the City. He alleged that "City employee Michael Kubosh operated a golf cart which ran over" him, causing him injury. Specifically, he alleged that Councilmember Kubosh failed to maintain a proper lookout; failed to control the operation of the golf cart; failed to avoid the incident in question; failed to pay attention to his surroundings; and failed to operate the golf cart as a person of ordinary prudence would have in the same or similar circumstance.

Branch further alleged that, at the time of the incident, Councilmember Kubosh was a City of Houston employee and was acting in the course and scope of his employment with the City. Branch also alleged that the Tort Claims Act waived the City’s governmental immunity "from claims involving personal injury caused by the negligent operation or use of a motor-driven vehicle by [the City’s] employee, if the employee would be liable to [Branch] according to Texas law." See Tex Civ Prac & Rem Code § 101.021(1).

The City filed a traditional motion for summary judgment and argued that Branch’s suit should be dismissed because the Tort Claims Act’s motor-vehicle waiver did not apply to waive the City’s governmental immunity. The City argued that the motor-vehicle waiver applied only to "publicly owned automobiles," and the City’s summary judgment evidence established that Councilmember Kubosh personally owned the golf cart.

The City also argued that the Tort Claims Act did not waive governmental immunity because Councilmember Kubosh was not operating the golf cart at the time of the accident. According to the City, at the time the golf cart "lurch[ed] forward," the golf cart was being used "as nothing more than a waiting area for Councilmember Kubosh while he waited for the parade to start." The City argued that Councilmember Kubosh did not touch the gas pedal, but the "weight shift within the golf cart" caused it to move forward "without anyone operating it." As summary judgment evidence, the City attached a picture of the golf cart and an affidavit from Gibbs.

Branch responded and argued that the City did not retain its immunity solely because the golf cart was privately owned by Councilmember Kubosh instead of owned by the City. Branch also argued that, beyond merely shifting his weight in the golf cart, Councilmember Kubosh touched the gas pedal with his foot. Branch supported this assertion with his own affidavit. He averred:

At the parade City of Houston Councilmember Kubosh was sitting in the passenger seat of a stopped golfcart. Councilmember Kubosh leaned over to the driver’s side of the golf cart to speak to someone. When Councilmember Kubosh did this, he reached out his hand and leaned his body to the driver’s side of the golf cart. Then Councilmember Kubosh’s foot hit the gas pedal and I heard the golfcart’s engine rev. I then felt the golf cart hit me.

Branch also averred that Gibbs "was about 10 feet away, talking to someone else, when the golfcart hit" Branch. Branch argued that this evidence created a fact issue on whether Councilmember Kubosh was operating and using the golf cart at the time of the accident.

Among other arguments made in its reply, the City argued that one of the cases that Branch had relied upon to support his contention that privately owned vehicles fall within the motor-vehicle waiver was inapposite because the case did not address the motor-vehicle waiver but instead involved the Tort Claims Act’s tangible personal property waiver. Branch, however, had only pleaded the motor-vehicle waiver as the applicable waiver of immunity.

The day before the hearing on the City’s summary judgment motion, Branch filed an amended petition. Branch asserted the tangible personal property waiver as an additional basis for waiving the City’s governmental immunity. See Tex Civ Prac & Rem Code § 101.021(2) (waiving immunity for personal injury and death caused by "a condition or use of tangible personal or real property"). Branch continued to assert the motor-vehicle waiver. He also amended the factual allegations in this petition to state, "City employee Michael Kubosh was in the passenger seat of a golf cart when he ran over Plaintiff."

On May 4, 2021, the day of the summary judgment hearing, the trial court denied the City’s motion for summary judgment. The order recited that the court considered the motion, "the pleadings, the response, the reply (if any), the affidavits, and other evidence on file." Later that same day, Branch filed a motion for leave to amend his petition. The trial court did not sign an order specifically granting or denying Branch’s motion for leave to amend.

The City filed this interlocutory appeal of the trial court’s order denying the summary judgment motion. See id. § 51.014(a)(8) (allowing interlocutory appeal from order that grants or denies plea to jurisdiction by governmental unit); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019) (stating that section 51.014(a)(8) "allows an interlocutory appeal to be taken when The trial court denies the governmental entity’s claim of no jurisdiction, whether it has been asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise’ ") (quoting Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).

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