Texas Mutual Insurance Company v. Texas Department of Insurance, Division of Workers' Compensation--Appeal from 98th District Court of Travis County

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State: Texas

Court: Texas Northern District Court

Docket No: 03-05-00776-CV

Case Date: 12/15/2006

Plaintiff: City of Seguin

Defendant: Rebecca Sewell and Stephen Sewell, Sr., Individually and as Next Friends of Stephen Sewell, Jr., A

Preview:City of Seguin v. Rebecca Sewell and Stephen Sewell, Sr., Individually and as Next Friends of Stephen Sewell, Jr., A Minor Child; LRB Corporation; Jeff Ellis & Associates--Appeal from 25th Judicial District Court of Guadalupe County
No. 04-02-00478-CV CITY OF SEGUIN, Appellant v. Rebecca SEWELL, et al., Appellees From the 25th Judicial District Court, Guadalupe County, Texas Trial Court No. 00-0399-CV Honorable Dwight E. Peschel, Judge Presiding Opinion by: Phil Hardberger, Chief Justice Sitting: Phil Hardberger, Chief Justice Karen Angelini, Justice Sandee Bryan Marion, Justice Delivered and Filed: October 9, 2002 AFFIRMED The City of Seguin brings this interlocutory appeal from the denial of a motion for summary judgment based on an assertion of official immunity. (1) We affirm the trial court's judgment. Background In July of 1999, Stephen Sewell, Jr., a nine-year-old, was at the City of Seguin Wave Pool on a field trip with the Little Red Barn Playschool Daycare ("LRB"). Stephen was unable to swim, but he was given permission to leave the kiddie pool and go to the wave pool by an LRB employee. Stephen fell into the pool while trying to get an inner tube because another boy accidently bumped him. Stephen believes that he yelled to a lifeguard for help, but Stephen is uncertain whether the lifeguard heard him. Stephen was pulled from the pool by lifeguards, who administered CPR until an ambulance arrived. Stephen was taken by ambulance to a hospital, where he was in intensive care for 24 hours. As of December 29, 1999, Stephen was under the care of a licensed child psychiatrist and a child therapist for post traumatic stress disorder. At that time, Stephen re-experienced his traumatic experience on a daily basis through agitated behavior and intense fear. Stephen's required treatment was expected to continue for approximately one year. Initially, the Sewells sued LRB for negligence. LRB filed a third party petition against the City, claiming the City and its employees negligently caused Stephen's injuries through a condition or use of tangible personal or real property and/or by maintaining a defective premises. The Sewells amended their petition to add a negligence claim against the City. The City moved for summary judgment on numerous grounds under both traditional and no-evidence standards. The
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City relied on the affidavit of Robin Kunkel, the Director of the City of Seguin Parks and Recreation Department, to establish official immunity. LRB objected to Kunkel's affidavit, asserting that Kunkel was not qualified, and the affidavit is based on hearsay, presents conclusory statements, and contains contradictions and inconsistencies. The trial court denied the City's motion, stating the Kunkel's affidavit was not sufficient summary judgment evidence without the hearsay and conclusions. The City filed this interlocutory appeal, challenging the trial court's denial of the motion. Standard of Review Under traditional summary judgment standards, a party moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied). In reviewing a summary judgment, an appellate court accepts as true all evidence supporting the non-movant. Nixon, 690 S.W.2d at 549. All inferences are indulged in favor of the non-movant, and all doubts are resolved in the non-movant's favor. Id. We apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). We look at the evidence in the light most favorable to the respondent against whom the summary judgment was rendered, disregarding all contrary evidence and inferences. Moore, 981 S.W.2d at 269. A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. Discussion If the City can show that the lifeguards are not liable based on official immunity, the City is also immune. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995). Official immunity is an affirmative defense requiring the City to prove that the lifeguards were performing a discretionary duty, in good faith, within the scope of their authority. City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). The parties do not appear to be disputing whether the lifeguards were acting within the scope of their authority; therefore, our discussion is limited to whether the lifeguards were performing a discretionary duty and whether they were acting in good faith. Because we conclude that the City did not meet its summary judgment burden with regard to the good faith element of its defense, we do not address the discretionary duty element. To establish good faith as a matter of law, the City was required to show that a reasonably prudent lifeguard, under the same or similar circumstances, could have believed that his action was appropriate based on the information he possessed when the conduct occurred. Telthorster v. Tennell, No. 01-0074, 2001 WL 1898483, at *6 (Tex. June 27, 2002). The City was not required to prove that all reasonably prudent lifeguards would have engaged in the same conduct. Id. The City was required to prove only that a reasonably prudent lifeguard, under similar circumstances, might have reached the same decision. Id. The only summary judgment evidence produced by the City in their effort to show that the lifeguards' actions were in good faith was Kunkel's affidavit. Objections were made that the affidavit was based on hearsay and contained conclusory statements. The trial court sustained these objections without specifying the portions of the affidavit that were inadmissible. The recitation in Kunkel's affidavit regarding the actions taken by the lifeguards was based on what Kunkel learned from speaking with the lifeguards. Kunkel's affidavit states that her statements and opinions are based on her interviews of the lifeguards and city personnel at the scene. Hearsay is defined as a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). Kunkel was relying on the statements of the lifeguards as proof of the actions that they took and the events that transpired. Kunkel did not have any personal knowledge of the actions or events. "[A] hearsay statement that does not fall within one of the exceptions provided by statute or rule is inadmissible and, when contained within
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an affidavit, may not be considered as summary judgment evidence." Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 680 (Tex. App.--Amarillo 1998, pet. denied). Assuming, without deciding, that the handwritten statements by the lifeguards that were attached to Kunkel's affidavit could be considered by the trial court as business records and as proof of the events that occurred, several statements made in Kunkel's affidavit are not contained in the handwritten statements, including: (1) all lifeguards were following the 10/20 second rule; (2) lifeguard Tracy Labinksi properly scanned her zone, detected Stephen in distress and was able to render aid within a couple of seconds; (3) lifeguard Justin was also scanning the pool; (4) all three lifeguards were in their lifeguard chairs and were in proper scanning positions; (5) Tracy was able to detect Stephen and immediately provide emergency maneuvers; and (6) Justin blew his whistle. Therefore, the handwritten statements cannot support the conclusion in Kunkel's affidavit that the lifeguards acted in good faith. In addition, some of the statements made in Kunkel's affidavit contradict the statements made by Justin in his handwritten statement. Justin states that when Tracy checked on Stephen and saw that he was unconscious, "She and Vicki paniced [sic] at first and finaly [sic] whistled for manager and EMS. From there I went to help. They finaly [sic] did the himlick [sic] on the victim. Thats [sic] the time that I arrived." From Justin's statement, an inference arises that the lifeguards panicked, delaying their ability to immediately summon help and render aid. Therefore, Justin's handwritten statement defeats the establishment of good faith because a reasonably prudent lifeguard should not panic and delay when faced with a potential drowning victim. Without the hearsay statements contained in Kunkel's affidavit, there is no basis for her conclusion that the lifeguards acted in good faith, and the handwritten statements do not otherwise establish that the lifeguards acted in good faith as a matter of law. Conclusion The judgment of the trial court is affirmed. PHIL HARDBERGER, CHIEF JUSTICE DO NOT PUBLISH 1. In addition to addressing the official immunity issue, the City's brief also challenges the causation element of LRB Corporation's premises defect claim and contends that LRB asserted the premises defect claim to circumvent the City's official immunity defense. Because official immunity is not a defense to a premises defect claim, we do not have jurisdiction to consider any issues relating to the premises defect claim in this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code 51.104(a)(5) (Vernon Supp. 2002) (interlocutory appeal permitted only from denial of motion for summary judgment based on assertion of official immunity); see also City of Augustine v. Parrish, 10 S.W.3d 734, 739 n.1 (Tex. App.--Tyler 1999, pet. dism'd w.o.j.); City of Columbus v. Barnstone, 921 S.W.2d 268, 271 (Tex. App.-Houston [1st Dist.] 1995, no writ).

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