Ector County v. Danny Breedlove and Diane Breedlove--Appeal from 358th District Court of Ector County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 11th District Court of Appeals » 2004 » Ector County v. Danny Breedlove and Diane Breedlove--Appeal from 358th District Court of Ector County

State: Texas

Court: Texas Northern District Court

Docket No: 11-03-00356-CV

Case Date: 11/04/2004

Plaintiff: Troy Huckaby as next friend of Jacob Huckaby

Defendant: Mandy Nicole Bragg--Appeal from County Court at Law of Henderson County

Preview:Ector County v. Danny Breedlove and Diane Breedlove-
-Appeal from 358th District Court of Ector County
11th Court of Appeals
Eastland, Texas
Opinion
Ector County
Appellant
Vs. No. 11-03-00356-CV -- Appeal from Ector County
Danny Breedlove and Diane Breedlove
Appellees
After heavy rains in October 2000, Danny and Diane Breedlove=s home was flooded. They sued Ector County,
claiming that (1) Ector County, in performing its road and ditch work, negligently increased the grade near their home
to the extent that water would not drain away from their residence, (2) Ector County negligently installed drainage
culverts near other properties and failed to place a culvert near their property, (3) Ector County=s right-of-way and
drainage ditches constituted a premises defect, and (4) Ector County employees= negligent operation and use of
motor-driven vehicles or motor-driven equipment proximately caused the flooding to the Breedlove home.
The trial court granted Ector County=s plea to the jurisdiction with regard to the Breedloves= claims of negligence in
performing road and ditch grade work, negligence in installing or failing to install drainage culverts, and premises
defect. The trial court denied Ector County=s plea with regard to the Breedloves= claim that their flood injury arose
from Ector County=s operation or use of motor-driven equipment. Ector County filed this interlocutory appeal from
that denial.[1] We reverse and render judgment for Ector County, dismissing the Breedloves= claim.
Standard of Review
Governmental immunity from suit defeats a court=s subject matter jurisdiction. Texas Department of Transportation v.
Jones, 8 S.W.3d 636, 638 (Tex.1999). Whether a court has subject matter jurisdiction is a legal question that we review
de novo. State ex rel. State Department of Highways and Public Transportation v. Gonzalez, 82 S.W.3d 322, 327
(Tex.2002).
The instances in which our legislature has waived sovereign immunity are limited and are narrowly defined. Texas
Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001). A plaintiff must affirmatively demonstrate
the court=s jurisdiction by alleging a valid waiver of immunity. Id. at 587. To determine if the plaintiff has met that
burden, we look to the facts alleged by the plaintiff and any evidence relevant to the jurisdictional issue. County of
Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002); Bland Independent School District v. Blue, 34 S.W.3d 547, 555
(Tex.2000). We view the petition in favor of the plaintiff, taking all allegations as true and construing them in favor of
the plaintiff. Texas Association of Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex.1993).
Sovereign Immunity and the Tort Claims Act
In the Texas Tort Claims Act, the legislature has provided a limited waiver of liability and suit in certain
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circumstances for torts committed by the government. See TEX. CIV. PRAC. & REM. CODE ANN. '' 101.021 -
101.029 (Vernon 1997 & Pamph. Supp. 2004 - 2005). Section 101.021 of the Texas Tort Claims Act provides that a
governmental unit in this state is liable for:
(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence
of an employee acting within his scope of employment if:
(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or
motor-driven equip-ment; and
(B) the employee would be personally liable to the claimant according to Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental
unit would, were it a private person, be liable to the claimant according to Texas law. (Emphasis added)
The Breedloves contend that Ector County employees were negligent in their Ause@ of motor-driven equipment in
performing road and ditch grade work near their property and that, therefore, governmental immunity was waived
under Section 101.021(1)(A). Ector County responds by pointing out that there was no motor-driven equipment near
the Breedloves= property at the time of the flooding, that the last work by Ector County near the Breedloves= property
was done two years before the flooding, and that the Ause@ of motor-driven equipment only created a condition that
made the flooding possible. Citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339,
343 (Tex.1998), Ector County argues that the use of motor-driven equipment did not cause injury within the meaning
of Section 101.021(1) because it did no more than furnish the condition that made the Breedloves= injury possible.
The Tort Claims Act does not define Ause.@ In both Ause of motor-driven equipment@ cases and Ause of property@
cases, the supreme court has given the word Ause@ its ordinary meaning and held that there must be a direct nexus
between the operation or use of the motor-driven equipment (or use of the government=s property) and plaintiff=s
alleged damages.[2] As the supreme court stated in Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543
(Tex.2003):
We have consistently required a nexus between the operation or use of the motor-driven vehicle or equipment and a
plaintiff=s injuries. See, e.g., White, 46 S.W.3d at 869; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d
49, 51 (Tex.1992)(AThe phrase >arises from= requires a nexus between the injury negligently caused by a
governmental employee and the operation or use of a motor-driven vehicle or piece of equipment.@); Hopkins v.
Spring Indep. Sch. Dist., 736 S.W.2d 617, 619 (Tex.1987). This nexus requires more than the mere involvement of
prop-erty. See generally Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex.1998). Rather, Athe [vehicle]=s use must have actually caused the injury.@ White, 46 S.W.3d at 869 (citing
Bossley, 968 S.W.2d at 342-43). Thus, as with the condition or use of property, the operation or use of a motor vehicle
Adoes not cause injury if it does no more than furnish the condition that makes the injury possible.@ Bossley, 968
S.W.2d at 343.
Whitley made it clear that the supreme court requires a direct nexus between the Ause@ of motor-driven equipment
and the plaintiff=s injury, just as Bossley mandated that there be a direct nexus be-tween the Ause@ of tangible
personal or real property and the plaintiff=s injury. The use of motor-driven equipment or the use of property does not
cause injury if it does no more than furnish the condition that made the injury possible.
Although the Breedloves attempted to bring their claim within the waiver of Section 101.021(1)(A) by phrasing their
claim in terms of Ector County=s Ause@ of motor-driven equipment, Ector County=s use of motor-driven equipment
only furnished the condition B the increased grade and misplacement of culverts B that caused the flooding of their
home. The use of the motor-driven equipment did not cause the Breedloves= injury within the meaning of the waiver
language in Section 101.021(1)(A). Texas Department of Transportation v. Curry, No. 10-03-00210-CV, 2004 WL
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2009386 (Tex.App. - Waco, September 8, 2004, no pet=n h.)(memorandum opinion); Hunt County v. Dallas, Garland
and Northeastern Railroad, No. 05-03-01587-CV, 2004 WL 1178609 (Tex.App. - Dallas, May 28, 2004, no
pet=n)(memorandum opinion).
This Court=s Ruling
We reverse the trial court=s order denying Ector County=s plea to the jurisdiction and render a judgment of dismissal.
TERRY McCALL
JUSTICE
November 4, 2004
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.
[1]TEX. CIV. PRAC. & REM. CODE ANN. ' 51.014(a)(8) (Vernon Supp. 2004 - 2005).
[2]See Justice Hecht=s concurring opinion in Texas Department of Criminal Justice v. Miller, supra at 589, where he
pointed out that Miller was the sixteenth case in which the supreme court had tried to determine whether plaintiff=s
injury or death had arisen from the government=s use of property so that the plaintiff=s claim for damages was within
the Act=s waiver of sovereign immunity.
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