Metropolitan Transit Authority of Harris County, Texas v. Terry Smith

Citation: Not availableDocket: 14-17-00807-CV

Court: Court of Appeals of Texas; December 10, 2018; Texas; State Appellate Court

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The Fourteenth Court of Appeals affirmed the trial court's denial of a plea to the jurisdiction from the Metropolitan Transit Authority of Harris County (METRO) in case NO. 14-17-00807-CV. METRO contested the court's jurisdiction over a negligent use claim regarding a .22 caliber handgun, arguing that the firearm was not issued, approved, or owned by METRO or its officer, Gregory Hudson. The background details indicate that Officer Terry Smith from the Houston Police Department was shot in the abdomen while working alongside METRO Officer Hudson on June 9, 2015. During a traffic stop, a loud pop was heard, and shortly after, Smith experienced symptoms leading to the discovery of a gunshot wound. Initial investigations by Sergeant Robles of HPD’s Homicide Division explored various scenarios, including a drive-by shooting and potential sniper locations, which were ruled out based on evidence. Richard, the driver Smith was ticketing, was also investigated but cleared as a suspect. Ultimately, Robles concluded that the likely cause of Smith's injury was an accidental discharge of Hudson's firearm. The court affirmed the trial court's ruling, maintaining that it had jurisdiction over the case.

Investigators interrogated Hudson extensively about a shooting incident in which he denied any involvement, despite failing a polygraph test. Robles’s investigation revealed that the shot that hit Smith came from behind him, fired from close range. Witness statements and a security video suggested Hudson was in the area where the shot originated, making him the only person close enough to have fired it. However, Robles concluded that the evidence was insufficient to justify further investigation of Hudson. In March 2016, Smith filed a lawsuit against METRO for personal injuries sustained from the shooting, claiming METRO was liable for Hudson’s actions under the doctrine of respondeat superior. Smith's amended petition alleged three forms of negligence against Hudson: improper use of personal property, negligent handling of his firearm, and negligent discharge of his firearm. Smith invoked the trial court’s jurisdiction under section 101.021(2) of the Texas Tort Claims Act. METRO responded with a plea to the jurisdiction and motion to dismiss, arguing that governmental immunity had not been waived, which the trial court denied. METRO appealed the decision. The appellate court confirmed its jurisdiction to review the interlocutory appeal, as denials of pleas to the jurisdiction by governmental units are appealable under Texas law. METRO contended that: (1) it did not "use" tangible personal property since it did not provide Hudson with a .22 caliber firearm; (2) Hudson had official immunity for his actions, which extended to METRO; and (3) there was no causal link between Smith’s shooting and METRO or any .22 caliber weapon. The court noted that a plea to the jurisdiction seeks dismissal for lack of subject matter jurisdiction and can challenge the sufficiency of jurisdictional claims. The trial court's ruling on such pleas is reviewed de novo, with pleadings construed liberally in favor of the plaintiff. If pleadings do not sufficiently establish jurisdiction, the court must allow the plaintiff to amend, unless the pleadings negate jurisdiction outright, in which case the plea may be granted without amendment opportunities.

Courts must evaluate relevant evidence when a plea to the jurisdiction questions jurisdictional facts. If evidence creates a factual issue regarding jurisdiction, the trial court submits the matter to the fact finder during a trial on the merits; otherwise, it rules on the motion as a matter of law. The review standard for jurisdictional pleas aligns with traditional summary judgment practices, where evidence favoring the nonmovant is credited, and reasonable inferences are drawn in their favor. The movant must demonstrate a lack of subject-matter jurisdiction with conclusive proof, meaning that reasonable people could not differ in their conclusions. If the movant meets this burden, the nonmovant must present sufficient evidence to raise a genuine issue of material fact regarding jurisdiction; failure to do so results in the plea being sustained. Governmental immunity, akin to sovereign immunity, protects governmental entities from lawsuits, with the Texas Tort Claims Act providing a limited waiver for specific tort claims. Notably, section 101.021(2) waives immunity for personal injuries caused by the use of tangible property if the governmental unit would be liable as a private entity. In Smith's case, METRO contested the jurisdictional sufficiency of his allegations regarding the negligent discharge of a firearm by Hudson, asserting that it did not use or issue the weapon and thus retained immunity. Smith argued that the negligent act led to his injuries, but METRO maintained that immunity is not waived unless the governmental unit is directly responsible for the use of the harmful property. Smith did not dispute METRO's status as a governmental unit and did not address any alleged defects in the firearm's condition.

The Texas Supreme Court interprets "use" in section 101.021(2) as the act of putting or employing tangible personal property into action or service. Government entities are liable under this section for the misuse of such property by their employees, establishing liability via the doctrine of respondeat superior. For a waiver of immunity to occur, it is essential that a governmental employee is the one using the tangible property. While the term "paid employee" is not explicitly mentioned, Texas courts have clarified that a governmental employee must be the user of the property to trigger liability. Case law indicates that governmental entities do not need to own or provide the tangible property to be held liable for injuries resulting from its use. Courts have consistently rejected arguments asserting that immunity is not waived due to the lack of ownership or provision of the property by the state or its subdivisions. Additionally, merely furnishing or providing access to property does not constitute a "use" under the Tort Claims Act, as established in various cases, including those involving hospital equipment and other tangible items. METRO's reliance on certain cases to argue that liability requires the governmental entity to supply the harmful object is unsupported by the prevailing interpretations of the law.

None of the cited cases establish that governmental immunity is waived unless the agency itself supplies and uses the object causing the harm. In Cowan, the Texas Supreme Court ruled that the San Antonio State Hospital did not use Cowan’s walker and suspenders, which he retained upon admission, to commit suicide; immunity was upheld as plaintiffs failed to demonstrate the Hospital's direct use of the items. In Bishop, the Court found that the university was not liable for a student’s injury involving a real Bowie knife used in a play directed by independent contractors, as the faculty advisors’ oversight did not constitute usage under the Tort Claims Act. The Beavers case presented a different situation, where a student was injured while using a hydraulic hoist in a technical course. The Texarkana court of appeals noted that TSTC claimed immunity because no employee was using the hoist at the time, but this ruling distinguished itself from Cowan and Bishop. However, the reasoning in Beavers has been questioned by other courts, indicating ongoing legal debate on the issue of governmental immunity.

Furnishing personal property does not equate to a use of property when a governmental unit instructs the plaintiff on its use, as established by the Texas Supreme Court, which has not found waivers under such circumstances. The court has consistently limited the integral safety component doctrine to situations where such components are entirely absent, not merely inadequate. Although METRO relies on the Beavers case, the court does not endorse its reasoning. Importantly, interpretations of section 101.021(1) indicate that a waiver may exist for injuries from the use of non-government owned vehicles operated by county employees, without the vehicle needing to be owned by the county. METRO argues that if it is not required to furnish property, immunity under section 101.021(2) would be waived, illustrating this with a hypothetical involving improper handcuffing, which could be classified as an intentional tort, thus not covered by the waiver of immunity. The court finds METRO's arguments unconvincing and unsupported by case law. Moreover, METRO acknowledges that had it put the firearm into service, a waiver would apply. Under the doctrine of respondeat superior, METRO is liable for the actions of its employee, Hudson, if he was acting within the scope of his employment. As Smith has adequately alleged the use of tangible personal property leading to a waiver of governmental immunity, the court rejects METRO’s claims that immunity is only waived if the governmental agency itself provides the harmful object.

METRO contests Smith's claims regarding jurisdictional facts relating to the shooting incident. While METRO acknowledges that Smith's injuries resulted from a shooting, it asserts that there is no causal connection between the shooting, METRO, or the alleged use of a .22 caliber weapon, which is necessary for jurisdictional waiver under section 101.021(2). Citing Texas Supreme Court precedents, METRO emphasizes that incidental involvement of property does not establish a waiver and that a direct causal nexus is required.

METRO argues that Hudson is not the shooter, as Smith cannot identify him as such, Hudson denies the accusation, and no evidence (like a .22 caliber weapon or shell casings) supports Smith's claims. METRO posits that there is a total absence of jurisdictional evidence on causation, which implicates the merits of Smith's case. As the party challenging jurisdiction, METRO had the initial responsibility to demonstrate that no genuine issue of material fact existed concerning causation, and if successful, the burden would shift to Smith to prove otherwise.

Despite METRO's assertions, Smith provided evidence to raise a genuine issue of material fact, including a police report suggesting Hudson was likely the shooter based on proximity and the absence of others in the vicinity. Consequently, the trial court's denial of METRO's plea to the jurisdiction regarding causation was deemed appropriate.

Additionally, METRO claims that Hudson is protected by official immunity, which, if applicable, would shield METRO from liability. Official immunity is an affirmative defense that requires the defendant to prove its elements. If liability arises from an employee’s negligent use of property, the governmental entity's liability is contingent on the employee's liability. If the employee can assert official immunity, the entity's sovereign immunity remains intact.

Governmental employees can claim official immunity from lawsuits if they perform discretionary duties within their authority and act in good faith. The standard for assessing good faith is objective, focusing on whether a reasonably prudent officer would have believed their actions were justified, rather than on the officer's personal beliefs.

METRO claims official immunity for Hudson, asserting that Hudson did not shoot Smith, Smith did not identify his shooter, writing tickets is a discretionary function, and both were acting within their employment scope when Smith was shot. However, METRO did not provide evidence that Hudson acted in good faith, which is necessary for official immunity. Hudson's personal belief that he did not shoot Smith does not meet the objective standard required. Moreover, Smith's uncertainty about who shot him does not impact the assessment of Hudson's good faith.

Because METRO failed to demonstrate Hudson's good faith, it could not establish official immunity for Hudson or METRO itself. Consequently, the trial court's denial of METRO's plea to the jurisdiction is affirmed.