Opinion
NO. 14-20-00051-CV
04-06-2021
CITY OF HOUSTON, TEXAS, Appellant v. CHELSEA MANNING, INDIVIDUALLY AND AS NEXT FRIEND OF T.N., LATISHELY DEWALT, AS NEXT FRIEND OF A.M., AND CIERRA WILLIAMS, Appellees
On Appeal from the 127th District Court Harris County, Texas
Trial Court Cause No. 2019-30594
MEMORANDUM OPINION
A City of Houston fire truck was involved in a collision with appellees. The accident occurred when the fire truck, responding to a dumpster fire call, proceeded through an intersection against a red signal and struck appellees' vehicle. Appellees filed this negligence suit, and the City sought dismissal on immunity grounds in a motion for summary judgment, which the trial court denied.
In this interlocutory appeal, the City argues that the trial court lacks subject-matter jurisdiction over some or all claims for two reasons. First, the City contends that it is immune because the fire truck's driver is entitled to official immunity. Second, the City contends that the trial court has no jurisdiction over appellees' claims for negligent training, retention, and supervision.
We overrule the City's first contention as to appellees' negligence and negligence per se claims because a genuine and material fact question exists relevant to the good-faith element of the driver's official immunity. For this reason, and on this record, the City failed to show that it is entitled to judgment as a matter of law. However, we agree with the City that appellees' live pleading fails to establish a waiver of immunity for any claim predicated on negligent training, retention, or supervision, and so we render judgment that those claims be dismissed. We affirm the remainder of the trial court's order denying the City's summary judgment motion.
Background
Houston Fire Department ("HFD") Station 82 received a dispatch call to respond to a dumpster fire at an apartment complex. HFD Engineer/Operator Wilhelm Schmidt drove the fire truck southbound on Fondren Road. At the same time, Chelsea Manning was driving westbound on Ludington Drive, which intersects with Fondren Road. Also in Manning's car were three passengers, T.N., A.M., and Cierra Williams. As Manning's car entered the intersection of Ludington Drive and Fondren Road on a green light, the fire truck driven by Schmidt proceeded through the red light on Fondren Road and collided with the passenger side of Manning's car. The fire truck was travelling at 45 miles per hour, which was 10 miles per hour over the posted speed limit for that section of Fondren Road.
Houston Police Department ("HPD") officers responded to the scene. Schmidt gave a statement to one of the investigating officers, which was paraphrased in the accident report:
We were responding to a burning trash can call, so we had our lights and sirens activated traveling south on Fondren. We were approaching the intersection and the person driving a car must have gotten scared and accelerated as we were making it through the light. We struck the car but then we got out and helped the people that were in the car. I did not see the color [of] the light when I went through it. The speed that we were traveling was around 45 mph, at the time of impact. (Spelling and capitalization normalized).
Manning and the three passengers suffered injuries and were transported to a nearby hospital. The HPD officer in charge of the accident investigation concluded that Schmidt was responding to an emergency call, that Manning had a green light when she entered the intersection, and that Schmidt failed to proceed with "duty and care" through the intersection.
Manning, individually and on T.N.'s behalf, as well as Latishely Dewalt, as next friend of A.M., sued the City of Houston. Williams later intervened in the suit. Appellees asserted a claim for negligence and alleged, among other things, that the City was vicariously liable for Schmidt's failure to properly proceed with "duty and care" through the intersection and failure to slow the fire engine as necessary for safe operation before proceeding through the red light. Appellees also asserted a claim for negligence per se, alleging that the City was vicariously liable for Schmidt's violations of the Transportation Code. Finally, appellees alleged that the City negligently trained, retained, and supervised its employees.
Williams, who was seventeen years old at the time of the accident, intervened on her own behalf. Because she filed the petition in intervention in her own name, we presume she reached the age of majority. Accordingly, we refer to her by her name, rather than by a pseudonym. See Tex. R. App. P. 9.9 (sensitive data in civil cases includes name of person who was a minor "when the underlying suit was filed"). Manning and Dewalt filed as next friends of T.N. and A.M., respectively, so we refer to those minor parties by their initials. See id.
The City moved for traditional summary judgment, asserting that the trial court lacked jurisdiction over appellees' claims because the City had not waived its governmental immunity. The City made two arguments in support of its jurisdictional challenge. First, the City asserted that Schmidt was protected by official immunity, which preserved the City's governmental immunity. Second, and alternatively, the City argued that it was immune because the emergency response exception in the Texas Tort Claims Act ("TTCA") barred any possible waiver of governmental immunity. See Tex. Civ. Prac. & Rem. Code § 101.055(2). In support of its motions, the City included as exhibits an affidavit from Schmidt and an affidavit from HFD District Chief Deena Elliott. Schmidt attested among other things that: the call to which he responded was dispatched as an emergency call; he activated the fire truck's overhead lights and siren; as he approached the intersection of Fondren and Ludington, he "slowed down to clear the intersection"; he saw no cars on either side of the fire truck, and the cars across the intersection heading north on Fondren slowed or stopped to yield to the fire truck; and as he entered the intersection, Manning's vehicle crossed in front of the fire truck, he attempted to brake, but he could not avoid the impact. In Schmidt's opinion, his actions in driving toward the scene of the dumpster fire were both reasonable and proper under the circumstances, he considered both the risk of harm to others from the fire itself as well as risk of harm to others from his driving, and he believed that another firefighter under the same or similar circumstances could have believed that Schmidt's actions were justified based on his perception of the facts at the time and that the need to immediately reach the scene outweighed any minimal risk of harm to others from his driving.
Chief Elliott's affidavit is generally similar in substance to Schmidt's. Elliott, who investigated the incident for HFD, expounded on the nature of the emergency, explaining that the dumpster was near an apartment complex, the call was received at night when residents likely were sleeping, that there was a significant risk that residents would not be alerted to the danger of the dumpster fire, that Schmidt followed department policy by activating the truck's emergency lights and siren, that Schmidt slowed significantly as he neared the intersection, and that he attempted to avoid the collision. In Elliott's opinion, "another reasonably prudent engineer/operator, including herself, under the same or similar circumstances, could have believed that the need to quickly reach the incident scene outweighed any minimal risk of harm to others and that all Engineer/Operator Schmidt's decisions and action before the incident were justified and reasonable based on his perception of the facts at the time." Chief Elliott also expressed an opinion pertaining to the emergency response exception to immunity, but because the parties do not address the emergency response exception on appeal, we do not detail her opinion in that regard.
Appellees responded, arguing that the City did not retain its governmental immunity because Schmidt could be held liable for negligence under Texas law and that the TTCA's emergency response exception did not apply under these circumstances. In support, appellees included as exhibits: (1) HPD's accident and investigation report; (2) HPD "Event History Record" for the dumpster fire; (3) an audio recording of a caller reporting the dumpster fire to 911; (4) photographs of the accident scene; (5) a city ordinance setting the speed limit for Fondren Road; and (6) numerous video recordings of "bodycam" footage, recorded by HPD officers who responded to the accident. Relying on this evidence, appellees argued that Schmidt failed to exercise due care for the safety of others, ran the red light at Ludington Drive without slowing as necessary for safe operation, and endangered life and property by exceeding the speed limit as he ran the red light.
The trial court denied the City's motion. This interlocutory appeal followed.
Appellate Jurisdiction
Before addressing the merits, we first consider appellees' argument that we lack appellate jurisdiction over this interlocutory appeal. According to appellees, the City appealed the trial court's denial of its motion for summary judgment "pursuant only to Section 51.014(a)(5) of the Texas Civil Practice & Remedies Code." Section 51.014(a)(5) provides an avenue for interlocutory appeal when the trial court "denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state." Tex. Civ. Prac. & Rem. Code § 51.014(a)(5). Because appellees sued the City, not Schmidt individually, they say that section 51.014(a)(5) does not apply, and thus we lack jurisdiction.
It is true that the City's notice of appeal stated that it "desires to appeal the denial of its Motion for Summary Judgment pursuant to Civil Practice and Remedies Code § 51.014(a)(5)." However, a technical defect in the notice does not deprive this court of jurisdiction. See, e.g., Griggs v. Wood, No. 14-00-00226-CV, 2001 WL 987906, at *1 n.1 (Tex. App.—Houston [14th Dist.] Aug. 30, 2001, no pet.) (mem. op.) (citing Tex. R. App. P. 25.1(b)); see also GTECH Corp. v. Steele, 549 S.W.3d 768, 773 n.6 (Tex. App.—Austin 2018) (determining that court possessed appellate jurisdiction under subsection (f) of section 51.014, and therefore did not need to decide whether it also possessed jurisdiction under subsection (a)(8) asserted in appellant's notice of appeal), aff'd sub nom., Nettles v. GTECH Corp., 606 S.W.3d 726 (Tex. 2020). The City filed a motion challenging the trial court's jurisdiction over appellees' suit, which is a jurisdictional plea that the trial court denied. We have appellate jurisdiction over such interlocutory orders, and thus we have jurisdiction in this appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (authorizing review of order that "grants or denies a plea to the jurisdiction by a governmental unit as that term is defined in Section 101.001").
Standard of Review
Subject-matter jurisdiction is necessary to a court's authority to decide a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A plaintiff must allege facts affirmatively showing the trial court has subject-matter jurisdiction, id. at 446, and a party may challenge the lack of subject-matter jurisdiction by filing a plea to the jurisdiction or by other means, including, as here, by motion for summary judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); see also Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 21 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Because subject-matter jurisdiction is a question of law, we review the court's ruling de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); City of Brazoria v. Ellis, No. 14-14-00322-CV, 2015 WL 3424732, at *3 (Tex. App.—Houston [14th Dist.] May 28, 2015, no pet.) (mem. op.).
To obtain a traditional summary judgment based on lack of jurisdiction, a movant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Town of Shady Shores v. Swanson, 590 S.W.3d 544, 551 (Tex. 2019) (citing Tex. R. Civ. P. 166a(c)). The nonmovant may raise a genuine issue of material fact by producing "'more than a scintilla of evidence establishing the existence of the challenged element.'" Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). Though the City asserted immunity by way of a traditional summary judgment motion, the applicable standards generally mirror those governing review of an order denying a plea to the jurisdiction. See Miranda, 133 S.W.3d at 228; Ellis, 2015 WL 3424732, at *3. A defendant's jurisdictional plea may challenge either the plaintiffs' pleadings or the existence of jurisdictional facts. Miranda, 133 S.W.3d at 228. The City challenged the existence of jurisdictional facts, so we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. at 227. In both traditional summary judgment and plea to the jurisdiction contexts, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts arising from such evidence in the nonmovant's favor. See id. at 228. If the relevant evidence is undisputed or a fact question is not raised relative to the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea, and the fact issue will be resolved by the fact finder. Id. at 227-28.
Analysis
A. Applicable law
The City, as a municipality and political subdivision of the State, cannot be vicariously liable for an employee's acts unless its governmental immunity has been waived. Gomez v. City of Houston, 587 S.W.3d 891, 896 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (en banc); City of Pasadena v. Belle, 297 S.W.3d 525, 529 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Under the facts of this case, the only possible waiver of the City's immunity from suit and liability is found in section 101.021 of the TTCA, which provides in relevant part:
A governmental unit in the state is liable for . . . 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 equipment; andTex. Civ. Prac. & Rem. Code § 101.021(1).
(B) the employee would be personally liable to the claimant according to Texas law. . . .
The parties agree appellees' claims arise from the use of a motor vehicle. They also agree that Schmidt was acting within the scope of his employment when he responded to the dispatcher's call. However, the parties dispute whether Schmidt "would be personally liable to the claimant[s] under Texas law." The City contends that Schmidt is protected by official immunity.
Under the official immunity defense, a government employee like Schmidt may be immune from a lawsuit that arises from the performance of the employee's discretionary duties in good faith, provided the employee was acting within the scope of the employee's authority. Belle, 297 S.W.3d at 530. Because official immunity is an affirmative defense, the burden rests on the City to establish all elements of the defense. See Gomez, 587 S.W.3d at 897. As is frequently so in cases like this one, the parties here dispute only the good-faith element.
A court measures good faith against a standard of objective legal reasonableness, without regard to the employee's subjective state of mind. Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). To be entitled to summary judgment, the City had to prove conclusively that a reasonably prudent firefighter, under the same or similar circumstances, could have believed his actions were justified based on the information he possessed at the time. Telthorster v. Tennell, 92 S.W.3d 457, 465 (Tex. 2002); City of Lancaster v. Chambers, 883 S.W.2d 650, 656-57 (Tex. 1994). The City need not prove that it would have been unreasonable not to take these actions, or that all reasonably prudent firefighters would have taken the same actions. See Telthorster, 92 S.W.3d at 465. Rather, the City must prove conclusively that a reasonably prudent firefighter, under the same or similar circumstances, might have reached the same decision. See id. That Schmidt may have been negligent will not defeat good faith; this test of good faith does not inquire into "what a reasonable person would have done," but into "what a reasonable [firefighter] could have believed." Id. (internal quotations and citations omitted). The good-faith standard is analogous to an abuse-of-discretion standard that protects "'all but the plainly incompetent or those who knowingly violate the law.'" Tex. Dep't of Pub. Safety v. Bonilla, 481 S.W.3d 640, 643 (Tex. 2015) (per curiam) (quoting City of San Antonio v. Ytuarte, 229 S.W.3d 318, 321 (Tex. 2007) (per curiam)).
Good faith depends on how a reasonably prudent firefighter could have assessed both the need to which the firefighter was responding and the risks of the firefighter's course of action, based on the firefighter's perception of the facts at the time of the event. Wadewitz, 951 S.W.2d at 467. The "need" aspect of the balancing test refers to the urgency of the circumstances requiring firefighting intervention. Id. In the context of an emergency response, need is determined by factors such as: (1) the seriousness of the crime or accident to which the firefighter is responding; (2) whether the firefighter's immediate presence is necessary to prevent injury or loss of life or to apprehend a suspect; and (3) what alternative courses of action, if any, are available to achieve a comparable result. Id. The "risk" aspect refers to the countervailing public-safety concerns: (1) the nature and severity of the harm the firefighter's actions could cause (including injuries to bystanders as well as the possibility that an accident would prevent the firefighter from reaching the scene of the original emergency); (2) the likelihood that any harm would occur; and (3) whether any risk of harm would be clear to a reasonably prudent firefighter. Id.
To prevail, a governmental defendant's proof must sufficiently address these need/risk factors. Telthorster, 92 S.W.3d at 462. An expert offering testimony regarding good faith must discuss what a reasonable firefighter could have believed based on the firefighter's perception of the facts at the time of the event, and this discussion must be substantiated with reference to both the need and risk aspects of the balancing test. See Wadewitz, 951 S.W.2d at 466-67; Belle, 297 S.W.3d at 531. In addition, the facts of the case may require the expert to provide a continuing assessment of the need and risk factors because emergency responses may involve rapidly changing circumstances. Belle, 297 S.W.3d at 531.
A reviewing court analyzing these factors first must determine whether the governmental unit met its initial burden to prove conclusively the firefighter's good faith. Gomez, 587 S.W.3d at 898. Only when it has been determined that the governmental unit met this burden does the court address whether the nonmovant's evidence raises a genuine issue of material fact on the issue of good faith. Id. To raise a fact issue, the nonmovant must do more than show that a reasonably prudent firefighter could have reached a different decision. See Bonilla, 481 S.W.3d at 643. Instead, the nonmovant must offer evidence that no reasonable firefighter in the firefighter's position could have believed that the facts were such that they justified the challenged conduct. See id.
B. The trial court did not err in denying the motion as to appellees' claims for negligence and negligence per se.
The City contends the evidence establishes conclusively that Schmidt retained his official immunity because he responded to the fire call in good faith based on the facts he perceived at the time of the accident. Appellees counter that the City is not entitled to summary judgment as a matter of law because appellees controverted material facts forming the basis of the City's proof on the good-faith element, namely that Schmidt slowed down as he neared the intersection. As appellees argue, a government official is not entitled to judgment as a matter of law on official immunity grounds if the opinion offered in support of good faith presumes the truth of material facts in dispute.
When faced with "an official traffic-control device," a motorist is required to stop and "may proceed when the intersection can be safely entered without interference or collision with traffic using a different street or roadway." Tex. Transp. Code § 545.151(a)(2). Officials such as firefighters are authorized to violate traffic laws in certain circumstances, but they may do so only when it is safe. See id. § 546.001(2) (authorizing emergency vehicle operator to "proceed past a red or stop signal or stop sign, after slowing as necessary for safe operation").
As this court has held, an opinion that a governmental employee acted in good faith does not conclusively establish good faith when the opinion is reached by assuming the truth of disputed facts. Gomez, 587 S.W.3d at 898; see also Ellis, 2015 WL 3424732, at *5. Schmidt stated in his affidavit, "I believe that a reasonably prudent Engineer/Operator under the same or similar circumstances could have believed that my actions were justified based on my perception of the facts at the time . . . ." One of the facts on which Schmidt based his opinion included slowing down "to clear the intersection." Likewise, Chief Elliott based her expert opinion that any reasonably prudent engineer/operator, under the same or similar circumstances, could have believed that Schmidt's actions before the incident were justified and reasonable on the fact that Schmidt "slowed considerably as he neared the intersection."
The City's evidence of good faith therefore is premised, at least in part, on the asserted fact that Schmidt significantly slowed the fire truck as he approached the intersection, but the record contains other evidence that he may not have done so. This evidence includes Schmidt's statement that he was travelling at 45 miles per hour at the time of the accident, which was ten miles per hour over the posted speed limit. Thus, there exists some evidence that Schmidt exceeded the applicable speed limit as he drove through a red signal, and he did not know whether the light was red. Viewing this evidence in the light most favorable to the non-moving appellees, a fact finder reasonably could infer that Schmidt either did not slow down at all or did not slow "as necessary for safe operation" of the emergency vehicle. See Tex. Transp. Code § 546.001. Other evidence includes HPD officers' statements at the scene, as recorded on the bodycam footage, that Schmidt "should have slowed down," and the investigation report's conclusion that Schmidt "FAILED TO PROCEED WITH DUTY AND CARE THROUGH THE INTERSECTION." Thus, whether Schmidt slowed as he approached and entered the intersection was a disputed fact.
Neither Schmidt nor Chief Elliott proffered an opinion on the good-faith element based on a need-versus-risk analysis under the alternative scenario that Schmidt did not slow as he approached the intersection. And whether Schmidt slowed the vehicle as he approached the intersection is a material fact. Because no witness testified that the standard for good faith was satisfied if Schmidt did not slow the fire truck as he approached the intersection, we conclude the City is not entitled to summary judgment on its immunity defense because whether Schmidt acted in good faith is not shown conclusively on this record. See Tex. Dep't of Pub. Safety v. Bonilla, 509 S.W.3d 570, 579-80 (Tex. App.—El Paso 2016, pet. denied) (because officer's opinion was predicated on "material factual assumptions" that were disputed, including whether he slowed or paused when approaching the intersection, court held that summary judgment was inappropriate); see also Gomez, 587 S.W.3d at 899 (concluding that city defendant did not conclusively demonstrate that police officer acted in good faith where there was a dispute whether officer had activated patrol car's emergency lights) (citing Ellis, 2015 WL 3424732, at *5-7; Collins v. City of Houston, No. 14-13-00533-CV, 2014 WL 3051231, at *6 (Tex. App.—Houston [14th Dist.] July 3, 2014, no pet.) (mem. op.); Harris County v. Smyly, 130 S.W.3d 330, 335 (Tex. App.—Houston [14th Dist.] 2004, no pet.); Junemann v. Harris County, 84 S.W.3d 689, 694-95 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)).
C. The City's appellate arguments do not compel reversal.
The City insists that we must reverse the ruling because: (1) appellees failed to respond to the City's official immunity argument in their summary judgment response; (2) appellees' evidence was not made part of the record; and (3) at this point in the jurisdictional analysis, a court may only consider the City's evidence, not any controverting evidence. We address each argument.
First, according to the City, appellees waived any challenge to official immunity because in their summary judgment response, they disputed the City's reliance on the emergency response exception but did not address the good-faith element of official immunity through argument and evidence.
We disagree. Although appellees focused the bulk of their responsive arguments on the applicability of the TTCA's emergency response exception, they also asserted "that the negligence of the HFD operator would be actionable if this case were not one implicating governmental immunity." Thus, appellees took the stance in the trial court that Schmidt did not retain his official immunity. In the fact section of their response, appellees identified and referenced attached evidence demonstrating the fact issues they contended existed as to whether Schmidt: "(i) exercised due care for the safety of others, (ii.) ran the red light at Ludington Drive after slowing as necessary for safe operation and (iii.) endangered life and property by exceeding the speed limit as it ran the red light." These asserted fact disputes pertain directly to the issue of good faith raised by the City's motion. We conclude that appellees fairly and sufficiently challenged Schmidt's official immunity in the trial court and did not waive their corresponding appellate arguments. See Tex. R. App. P. 33.1(a).
Next, the City contends that we are precluded from considering certain audio and video exhibits appellees referenced in their summary judgment response because they were not made part of the trial court record. Specifically, the City challenges the bodycam footage captured by responding HPD officers (appellees' exhibits G, H, I, and J), as well as the 911 call reporting the dumpster fire (appellees' exhibit D). In their response to the City's motion, appellees stated, "Because of file size constraints, a copy of these exhibits has been uploaded to, and may be downloaded from, the following link: https://bit.ly/2NgXplm. A CD-ROM containing the attached exhibits has also been sent to counsel of record and to the Clerk of the Court." According to the City, the Internet link was inaccessible at the time of the trial court's ruling and the CD-ROM was not made part of the clerk's record, so the challenged exhibits are not properly before us.
We abated this appeal, directed the trial court to determine and identify an accurate copy of the five challenged media files, and directed the clerk to prepare a supplemental clerk's record certifying the accuracy of each media file. The clerk then filed in our court copies of the five exhibits, along with a "Certification and Directive" signed by the trial judge, stating that "the five audio and video recordings included in the enclosed CD-ROM . . . are . . . accurate copies of the evidence attached to Plaintiffs' Response to the City of Houston's Motion for Summary Judgment as Exhibits D, G, H, I, and J, which this Court considered in deciding the motion." Accordingly, the exhibits are appropriately part of our record.
Finally, citing the Supreme Court's opinion in Bonilla, the City says we should not consider appellees' evidence when determining in the first instance whether the City conclusively proved that Schmidt acted in good faith. See Bonilla, 481 S.W.3d at 645 n.23 ("Bonilla disputes the trooper's version of events in several material respects, but Bonilla's controverting evidence is not germane to the competence of DPS's evidence in the first instance."). This court previously has explained why Bonilla does not support the City's argument. See Gomez, 587 S.W.3d at 900-01 (discussing Bonilla, 481 S.W.3d at 643-45). Because Bonilla did not address any issue as to whether an opinion regarding an officer's good faith assumed the truth of disputed facts, that case does not control here. See id. at 901.
In sum, none of the City's arguments alters our conclusion based on the present record. We hold the trial court did not err in denying the City's motion for summary judgment as to appellees' claims for negligence and negligence per se. See Gomez, 587 S.W.3d at 901.
We overrule the City's first issue. D. The trial court lacks subject-matter jurisdiction over appellees' claims for negligent training, retention, or supervision.
In its second issue, the City argues that we should dismiss the portions of appellees' negligence claims that are based on allegations of negligent training, retention, or supervision, because the TTCA does not waive the City's immunity for such claims.
As discussed, appellees invoked the "operation or use of a motor-driven vehicle" waiver of immunity. Tex. Civ. Prac. & Rem. Code § 101.021(1)(A). The statute requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle. LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992). Negligent hiring, retention, training, or supervision of employees does not constitute operation or use of a motor vehicle, and therefore such claims against governmental units are not cognizable under the TTCA. Harlingen Consol. Indep. Sch. Dist. v. Miranda, No. 13-18-00391-CV, 2019 WL 1187151, at *3 (Tex. App.—Corpus Christi Mar. 14, 2019, no pet.) (mem. op.) ("[A] claim of negligent training does not constitute the operation or use of a motor vehicle and is, therefore, not cognizable under the TTCA."); see also Dallas Area Rapid Transit v. Edwards, 171 S.W.3d 584, 587-88 (Tex. App.—Dallas 2005, pet. denied); Los Fresnos Consol. Indep. Sch. Dist. v. Rivas, No. 13-04-168-CV, 2005 WL 1981494, at *6 (Tex. App.—Corpus Christi Aug. 18, 2005, pet. denied) (mem. op.); Norrell v. Gardendale Volunteer Fire Dep't, 115 S.W.3d 114, 118 (Tex. App.—San Antonio 2003, no pet.).
To the extent that appellees intended to invoke the statutory waiver for claims predicated on a "condition or use of tangible personal . . . property," Tex. Civ. Prac. & Rem. Code § 101.021(2), that argument too fails. Appellees allege, without elaboration, that the City failed to train and supervise employees and that the City negligently retained employees. Appellees have not alleged that a "use" of tangible property was involved in any of the purported failures to train, retain, or supervise. The trial court lacks subject-matter jurisdiction over those claims. See Tex. Dep't of Criminal Justice-Cmty. Justice Assistance Div. v. Campos, 384 S.W.3d 810, 815 (Tex. 2012); see also Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580-81 (Tex. 2001) (concluding that claims related to negligent failure to train, instruct, and discipline involved the misuse or non-use of information, which is not tangible property).
Because appellees' allegations of negligent training, retention, and supervision do not involve the operation or use of a motor-driven vehicle or the use of tangible personal property or real property, they do not demonstrate a valid waiver of immunity under the TTCA for appellees' negligence claims against the City. Accordingly, we agree with the City that the trial court lacks jurisdiction over these claims.
Appellees observe that the City's appellate challenge to the claims for negligent training, retention, and supervision was not presented to the trial court below in the summary judgment motion. True, but a governmental entity may raise a jurisdictional challenge for the first time on appeal. See, e.g., Dallas Metrocare Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013) (per curiam) (holding "an appellate court must consider all of a defendant's immunity arguments, whether the governmental entity raised other jurisdictional arguments in the trial court or none at all"); Rusk State Hosp. v. Black, 392 S.W.3d 88 (Tex. 2012).
We sustain the City's second issue and render judgment that any part of appellees' claims premised on negligent training, retention, and supervision be dismissed for want of jurisdiction.
Conclusion
The trial court did not err in refusing to dismiss appellees' suit in its entirety for a lack of subject-matter jurisdiction. However, we hold that the trial court does not possess subject-matter jurisdiction over any part of appellees' negligence claims premised on allegations of negligent training, retention, or supervision, and we render judgment that those claims be dismissed without prejudice for want of jurisdiction. The trial court possesses jurisdiction over the remainder of appellees' negligence claims. Accordingly, we affirm the remainder of the trial court's order.
/s/ Kevin Jewell
Justice Panel consists of Chief Justice Christopher and Justices Jewell and Poissant.