Opinion
02-22-00265-CV
02-16-2023
The City of Wichita Falls, Appellant v. Trinesha Preston, Appellee
On Appeal from County Court at Law No. 1 Wichita County, Texas Trial Court No. CCL1-CV2019-0483
Before Birdwell, Bassel, and Wallach, JJ.
MEMORANDUM OPINION
Mike Wallach Justice
I. Introduction
On October 6, 2018, forty-year-old Appellee Trinesha Preston boarded one of Appellant the City of Wichita Falls's buses and was on her way to sit down when she fell and broke her right ankle. Preston sued the City for negligence under the Texas Tort Claims Act (TTCA), alleging that the City's bus driver, Natalie Hill, had negligently operated the bus, thereby proximately causing Preston's injuries. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1). The City filed a plea to the jurisdiction, arguing that the City's immunity had not been waived under the TTCA and relying on the recording of the incident by the bus's proprietary surveillance camera system. Preston countered the video with a sworn declaration, the trial court denied the City's plea, and the City filed this accelerated interlocutory appeal. See id. § 51.014(a)(8).
The City appeals, in two issues, complaining that the trial court erred by denying its plea to the jurisdiction because (1) Preston's declaration failed to raise a fact issue to sufficiently controvert the City's video evidence of causation and (2) there is no causal nexus between the bus's alleged negligent operation and Preston's injuries, relying on its video to support these arguments. Because the video does not conclusively show that Preston's injuries were caused by another passenger's act, we affirm the trial court's order and remand the case for further proceedings.
II. Discussion
The TTCA provides that a governmental unit is liable for personal injury
proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the . . . personal injury . . . arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law.Id. § 101.021(1). The TTCA creates a unique statutory scheme in which governmental immunity from suit is waived and abolished to the extent of liability created under the statutory scheme. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
Governmental immunity is properly asserted in a plea to the jurisdiction. Id. at 225-26; see Dragoo v. City of Fort Worth, No. 02-20-00178-CV, 2021 WL 4472628, at *1 (Tex. App.-Fort Worth Sept. 30, 2021, no pet.) (mem. op.). A plea to the jurisdiction challenges whether a plaintiff has alleged facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Mission Consol. ISD v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012) (stating that a plea to the jurisdiction's purpose generally is to defeat an action "without regard to whether the claims asserted have merit" (quoting Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). Whether a trial court has subject matter jurisdiction and whether a plaintiff has alleged facts that affirmatively demonstrate that jurisdiction are questions of law that we review de novo. Miranda, 133 S.W.3d at 226. We consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. Id. at 227.
The standard of review for a plea to the jurisdiction generally mirrors that of summary judgment under Rule of Civil Procedure 166a(c). Id. at 228. When the jurisdictional challenge implicates the merits of the plaintiff's cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the factfinder. Id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court should rule on the plea to the jurisdiction as a matter of law. Id. at 228.
Accordingly, after the governmental entity asserts that the trial court lacks subject matter jurisdiction and supports that assertion with evidence, a plaintiff is required, "when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue." Id. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id.
A. The record
1.Preston's pleadings
Preston sued the City, alleging that its employee Hill had "suddenly, rapidly, and without warning accelerated" the bus before Preston had a chance to sit down, causing her to fall and fracture her right ankle. Preston alleged that Hill had been negligent, careless, and reckless in the disregard of her duties by suddenly accelerating without warning, failing to control the bus's speed, driving at an unsafe speed, failing to keep a proper lookout for Preston's safety, failing to ensure passenger safety, and using a cell phone while driving the bus.
Preston initially sued Hill too, but she removed Hill from her second amended petition after Hill filed a motion to dismiss under Civil Practice and Remedies Code Section 101.106. See Tex. Civ. Prac. & Rem. Code Ann. § 101.106.
2.The City's answer, plea, and jurisdictional evidence
The City answered with a variety of affirmative defenses, including governmental immunity, and it designated another passenger as the responsible third party who actually and proximately caused Preston's injury. The City attached the bus surveillance video to its plea to the jurisdiction, in which it argued that, based on the video, an unknown third party had reached out, grabbed hold of Preston's shirt, and pulled her to the ground, and that the bus's operation did not cause Preston's injuries because the bus had pulled away so slowly that its back wheels did not leave the curb before Preston fell. The City contended, "The bus merely furnished the location where [Preston] was injured; it did not cause the injury." The City asserted that the video clips-eight in total-"clearly show[ed] that the bus did not leave the curb at a high rate of speed as alleged by [Preston]" but rather "barely moved."
The different clips provide the following views: (1) the main passenger door; (2) inside view, looking toward the back of the bus; (3) inside view, looking out toward the side doors; (4) inside view, looking from the middle of the bus to the back of the bus; (5) inside view, looking out of the front windshield; (6) outside view, looking down the right side of the bus; (7) outside view, looking down the left side of the bus; and (8) outside view, looking directly behind the bus.
3. Preston's response and jurisdictional evidence
In her response to the City's pleas, Preston argued that there was a factual dispute about whether Hill had been negligent and "ample evidence that disputed material facts exist as to what occurred and the cause of [her] fall" because "the parties tell two entirely different versions of events." She referred to her declaration and argued that when all eight camera angles of the City's video were viewed "in synchronization, it is apparent that the bus had already begun accelerating from the bus stop prior to [her] fall." Preston contended that because the bus began accelerating before her fall, "a jury could readily believe her account." She further argued that her account was not "blatantly contradicted" or "utterly discredited" by the video, and she claimed that "[a]t worst, the video is ambiguous as to exactly what occurred."
In her declaration, Preston averred as follows:
On or about October 6, 2018, my two daughters and I boarded a Wichita Falls Transit System (Falls Ride) bus near the Walmart Supercenter . . . . My daughters boarded first, and then I followed them.
After boarding the bus, I paid the fare for all three of us, then began walking down the aisle to find a seat. As I was walking down the aisle, but before I sat down, the bus suddenly began rapidly accelerating, causing me to lose my balance, slip, and begin falling down. My daughter, noticing my fall, then reached out and attempted to stop my fall. However, because the bus was still accelerating, she was unsuccessful.
At no time did I "trip" over anyone's foot, nor did someone "grab" my shirt and "pull me to the ground." I was already passing my daughter when the acceleration of the bus caused me to lose my balance, and I was already falling down before my daughter grabbed my shirt.
As a result of the fall, I landed backwards on my right ankle. Almost immediately, I began to feel pain in my ankle.
4. The bus video
The bus video consists of eight 7-minute-and-12-second clips. Each clip shows that the bus begins moving somewhere between 45 and 48 seconds and stops moving at 52 seconds. Only the first and second clips show the incident. None of the clips shows how fast the bus accelerated or was moving when Preston fell.
The first clip shows the main passenger door and entry of Preston's two daughters before Preston; Hill closes the bus's door after Preston pays the fares. What appears to be a cell phone or other electronic device is on a rack next to the fare box, and Hill pushes a button on it as Preston turns to walk down the aisle. Four seconds later, the bus starts to move. Two seconds after the bus begins to move, Preston begins screaming in pain. It takes four seconds to stop the bus. After putting the bus in park, Hill rushes to attend to Preston and then returns to the front of the bus to radio for assistance. After radioing for assistance, Hill pulls out what looks like a personal cell phone (not the device in the rack next to the fare box) and calls 911 for an ambulance. The bus's windshield wipers are on during the entire video.
The second clip-the inside view, looking towards the back of the bus-shows that the bus is completely empty before one of Preston's daughters wanders into sight. She puts her belongings down on one set of seats, which face the aisle, and then her sister appears and puts her belongings down on the opposite set of seats. Both girls-who appear to be young teenagers-remain standing for a few seconds before a voice from outside of view says, "Y'all sit down." At 46 seconds into the video, Preston appears and walks past both girls, with her wallet in one hand and her cell phone in her other hand. The bus audibly begins to move at 48 seconds, and Preston appears to slightly stumble forward before her smaller daughter reaches out and pulls the back of Preston's shirt. Preston's left foot slips forward, and she crushes her right foot under herself. Preston's smaller daughter calls 911.
The third and fourth clips show nothing other than the bus's brief movement but not its rate of acceleration or speed.
The fifth clip-the inside view looking out from the front windshield-shows that it is raining outside. The sixth clip-the outside view, looking down the bus's right side-shows grass that has been rained upon for a while and wet pavement. The seventh clip-the outside view, looking down the bus's left side-shows the wet pavement. The eighth clip-the outside view, looking directly behind the bus-shows wet pavement and movement beginning at 48 seconds and ending four seconds later.
B. Analysis
The City argues that the video completely controverted Preston's declaration, preventing Preston from raising a fact issue to defeat the City's plea, and that there is no causal nexus between the bus's alleged negligent operation and Preston's injuries. Preston replies that the trial court properly denied the City's plea because of a factual dispute as to the cause of her fall and injuries when "she fell due to the sudden and unexpected acceleration of the bus, while [the City] claims that another passenger tripped [her]."
By requiring that the plaintiff's personal injury arise from the operation or use of a vehicle, the statute "requires a nexus between the injury negligently caused by a governmental employee and the operation or use of [the] motor-driven vehicle." PHI, Inc. v. Tex. Juv. Just. Dep't, 593 S.W.3d 296, 302 (Tex. 2019) (quoting LeLeaux v. Hamshire-Fannett ISD, 835 S.W.2d 49, 51 (Tex. 1992)); see DART 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.").
The vehicle's use or operation must have actually caused the injury. PHI, 593 S.W.3d at 302. That is, the tortious act must relate to the employee's operation of the vehicle and not some other aspect of her conduct. See Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 928 (Tex. 2015). For example, a driver's failure to supervise children at a bus stop may rise to the level of negligence, but it "cannot accurately be characterized as negligent operation of the bus." Id. (emphasis added). When the vehicle is only the setting for an employee's wrongful conduct, any resulting harm will not give rise to a claim for which immunity is waived under the TTCA. Id.; see Montoya v. Houston ISD, 177 S.W.3d 332, 337 (Tex. App.-Houston [1st Dist.] 2005, no pet.) (holding that allegations related to bus driver's duty to supervise and respond to student's behavior and not the driver's operation or use of the bus itself).
If an act alleged to be a superseding cause should have been anticipated at the time of the defendant's negligence, then there is no superseding cause-only a "concurrent" cause, which does not break the causal nexus. Univ. of Tex. M.D. v. Baker, 401 S.W.3d 246, 258 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) (citing Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 857 (Tex. 2009), in analysis of TTCA claim). That is, an "intervening" cause that is foreseen or foreseeable does not break the causal chain, while a "superseding" cause is one that alters the natural sequence of events, produces results that would not otherwise have occurred, is an act or omission not brought into operation by the defendant's original wrongful act, and operates entirely independently of the defendant's allegedly negligent act or omission. Id.
The jurisdictional question before us is whether the pleadings and jurisdictional evidence create a fact question regarding the causal relationship between Preston's injury and Hall's driving. See Ryder, 453 S.W.3d at 928-29.
Both parties referred the trial court to Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769 (2007), with regard to the video and now refer us to it. In Scott, after a deputy's use of his patrol vehicle caused the plaintiff's vehicle to crash and left the plaintiff a quadriplegic, the plaintiff sued under 42 U.S.C. § 1983. 550 U.S. at 375-76, 127 S.Ct. at 1773. The deputy responded with a motion for summary judgment on the defense of qualified immunity. Id. at 376, 127 S.Ct. at 1773. The district court denied the motion on the basis that issues of material fact required submission to the jury, and the Eleventh Circuit affirmed the decision to allow the case to proceed to trial. Id., 127 S.Ct. at 1773-74.
The Supreme Court disagreed, noting that although a court would usually review the facts in the light most favorable to the summary-judgment nonmovant, "[t]here is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question," and the videotape "quite clearly contradicts" the plaintiff's version of the story. Id. at 378, 127 S.Ct. at 1775. The Court observed that at the summary-judgment stage, facts must be viewed in the light most favorable to the nonmovant only if there is a "genuine" dispute as to those facts, and that when the record, taken as a whole, could not lead a rational trier of fact to find for the nonmovant, there is no genuine issue for trial. Id. at 380, 127 S.Ct. at 1776.
The Court stated, "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id., 127 S.Ct. at 1776. The Court held that the plaintiff's version, when compared to the video, was "so utterly discredited by the record that no reasonable jury could have believed him" and that the Eleventh Circuit should have viewed the facts in the light depicted by the video. Id. at 380-81, 127 S.Ct. at 1776. But see Aguirre v. City of San Antonio, 995 F.3d 395, 410 (5th Cir. 2021) (noting that Scott "was an exceptional case with an extremely limited holding" and that when video evidence is ambiguous or supports the nonmovant's account, or when there is any evidence challenging the video's accuracy or completeness, then Scott has no application).
Here, no one challenges the accuracy or completeness of the video, but the video does not provide the kind of absolute contradictory proof that negates any fact issue. Cf. Scott, 550 U.S. at 380-81, 127 S.Ct. at 1776. Specifically, the video does not show the bus's actual rate of acceleration or how fast Hill was driving, and Preston's daughter's grabbing her shirt could be seen as trying to stop Preston from falling during the bus's acceleration or as pulling her mother down. Preston's daughter's actions may show a contributing cause, see Baker, 401 S.W.3d at 258, but they do not rise to the level of the sole proximate cause of Preston's fall. Accordingly, we conclude that Preston raised a fact issue sufficient to controvert the video and that there is a fact issue as to Hill's alleged negligent operation of the bus and Preston's injuries, and we overrule the City's two issues.
III. Conclusion
Having overruled the City's two issues, we affirm the trial court's order and remand this case to the trial court for further proceedings.