Caldwell County, Texas v. McCoy Genfan, Individually and Vicki Genfan, on Behalf of the Estate of Mark Genfan and Alisin Genfan

• Court: Court of Appeals of Texas
• Decided: September 22, 2021
• Docket: 07-21-00087-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-21-00087-CV

CALDWELL COUNTY, TEXAS, APPELLANT

V.

MCCOY GENFAN, INDIVIDUALLY AND VICKI GENFAN, ON BEHALF OF THE ESTATE OF MARK GENFAN AND ALISIN GENFAN, APPELLEES

On Appeal from the 421st District Court Caldwell County, Texas Trial Court No. 19-0-143, Honorable Stephen Yelenosky, Presiding

September 22, 2021 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and DOSS, JJ.

Caldwell County, Texas appeals from an interlocutory order denying its plea to the

trial court’s jurisdiction. It sought the dismissal of the wrongful death and survivors action

initiated against it by McCoy Genfan, individually, and Vicki Genfan, on behalf of the

estate of Mark and Alisin Genfan. The latter sued the County for purportedly failing to

adequately warn against flood waters covering a road down which Mark and Alisin Genfan drove on December 7, 2018.1 Apparently, their car was washed away, and they drowned.

The claims sounded in negligence and premises liability. The County invoked sovereign

immunity and moved to dismiss the suit. The trial court denied the motion upon hearing

the arguments and considering the evidence presented. We reverse.2

A plaintiff has the burden to affirmatively establish a trial court’s jurisdiction. Town

of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). Doing that includes the

obligation to illustrate a governmental entity’s immunity was waived. Id. So, when the

entity challenges jurisdiction, the court need not look only to the pleadings but also may

consider evidence touching upon the subject. Id. Indeed, it must consider such evidence

if necessary to resolve the jurisdictional issue, such as when jurisdiction and the merits

intertwine. Id. Should the existence of jurisdictional facts be at issue (as opposed to

simply questioning whether the pleadings alone illustrate jurisdiction), the standard of

review mirrors that utilized when considering traditional motions for summary judgment;

in other words, all the evidence is viewed in a light most favorable to the plaintiff. Id.

Several procedural vehicles exist through which a trial court’s jurisdiction may be

attacked. They include a plea to the jurisdiction and both a traditional and no evidence

motion for summary judgment. Id. at 551. Furthermore, where the existence of

jurisdiction and the underlying merits of the suit are intertwined, the evidence supporting

jurisdiction and the merits is necessarily intertwined, too. Id. at 552. “Thus, when a

challenge to jurisdiction that implicates the merits is properly made and supported,

1 They lived near the creek, used the road over which it ran, knew its waters sometimes swelled over the road, and, according to McCoy, would not attempt a crossing when the water level was high.

2 Because this appeal was transferred from the Third Court of Appeals, we are obligated to apply

its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.

2 whether by a plea to the jurisdiction or by a traditional or no-evidence motion for summary

judgment, the plaintiff will be required to present sufficient evidence on the merits of her

claims to create a genuine issue of material fact.” Id. Finally, should the evidence of

record illustrate the presence of a material issue of fact regarding jurisdiction, the pre-trial

jurisdictional challenge must be denied and await later determination.

The County urged various grounds purporting to show why dismissal was

warranted. One such ground concerned a governmental entity’s response to an

emergency. That is, statute waives a governmental entity’s sovereign immunity in certain

instances. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (stating that a

governmental unit is liable for “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”). But the entity retains its

immunity when, among other times, the claim asserted against it arises “from the action

of an employee while responding to an emergency call or reacting to an emergency

situation if the action is in compliance with the laws and ordinances applicable to

emergency action, or in the absence of such a law or ordinance, if the action is not taken

with conscious indifference or reckless disregard for the safety of others.” Id.

§ 101.055(2).

The legislature did not define “emergency” when enacting § 101.055(2).

Nevertheless, it has been assigned a broad meaning. City of Houston v. Hussein, No.

01-18-00683-CV, 2020 Tex. App. LEXIS 8965, at *19 (Tex. App.—Houston [1st Dist.]

Nov. 19, 2020, pet. denied) (mem. op. on reh’g); Zapata v. City of Gonzales, No. 13-18-

00065-CV, 2020 Tex. App. LEXIS 805, at *10 (Tex. App.—Corpus Christi Jan. 30, 2020,

3 no pet.) (mem. op.) That the meaning has been held to encompass flooding is beyond

question. As noted by our Supreme Court in City of San Antonio v. Hartman, “[w]hile the

statute certainly has been applied to traffic accidents, it has also been applied in other

circumstances, and at least twice to floods.” City of San Antonio v. Hartman, 201

S.W.3d 667, 672–73 (Tex. 2006) (emphasis added).

Here, the Genfans attempt to negate the application of § 101.055(2) in three ways.

The first two concern the existence of an emergency. Allegedly, the County failed to

present evidence illustrating that it was responding to an emergency when placing signs

to warn drivers of flooding over the roadway in question. Whether or not the County had

such a burden is unimportant, given the record at bar. See Quested v. City of Houston,

440 S.W.3d 275, 284 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (op. on reh’g)

(stating that the burden lay with the plaintiff to establish that the emergency exception did

not apply); see also City of San Antonio v. Hartman, 201 S.W.3d at 672 (observing that

because the Hartmans do not contend any law or ordinance governed the placement of

barricades on Rigsby Avenue or the City’s acts or omissions showed it did not care what

happened to motorists, § 101.055(2) applied unless the Hartmans “presented some

evidence that City employees were not reacting to an emergency situation”). In

addressing those claims, we begin by considering allegations within the Genfans’ live

pleading.

Therein, they averred that: 1) “Caldwell County has several creek crossings that

become dangerous when rain causes high-water to go over” them; 2) on “Friday,

December 7th, heavy rain prompted Caldwell County to dispatch a team of workers

assigned to close the roads where the water crossings were known to be high during

4 rainy weather”; 3) “[e]mails obtained from Caldwell County reveal that . . . at 9:41 a.m., .

. . [the] Southeast River Road at the Morrison Creek crossing [the crossing over which

the decedents drove] had been closed by County workers” due to high water; and 4)

“[t]hese emails conclusively established actual knowledge on the part of Caldwell County

that there was an acute danger on the day in question (December 7, 2018) and the

County needed to warn the public of that danger.” (Emphasis added). Supporting

Genfans’ own factual allegations is evidence that: 1) four inches of water will move some

cars; 2) “storms” were coming to or were in the area and county employees were alerted

to post warning signs at locations over which creek water crossed; 3) by the evening of

December 7th, it already had been raining for many hours, if not all day; 4) the Morrison

Creek was known to “come[] up quick” and become dangerous; 5) the point at which the

creek crossed the road could have no water running across it but within 30 to 40 minutes

“it will be over four foot high going across that intersection”; 6) the County began closing

roads on the day in question from “7” to “3”; 7) the Southeast River Road crossing was

closed at 9:41 a.m.; 8) County personnel had viewed that particular crossing about an

hour earlier and erected a sign with the warning ““Danger High Water”; 9) those personnel

returned by 9:41 a.m. to discover that the water had risen to a level “too high for a vehicle”;

10) those employees determined that the crossing “needed to be closed”; and 11) the

creek was running four to five feet deep over the road later that afternoon.

Section 101.055(2) concerns a governmental entity’s reaction “to an emergency

situation.” City of San Antonio v. Hartman, 201 S.W.3d at 673. Whether an emergency

presented itself generally implicates a question of fact. Durham v. Bowie County, 135

S.W.3d 294, 299 (Tex. App.—Texarkana 2004, pet. denied). Yet, there may be instances

5 when the evidence is so clear and uncontroverted that the answer may be determined as

a matter of law. See, e.g., City of San Antonio v. Hartman, 201 S.W.3d at 673 (stating

that while there may be “some fact [tangential] questions here . . . . There [was] no fact

question whether the City was reacting to an emergency situation” and “an emergency

situation existed as a matter of law”); Durham, 135 S.W.3d at 299 (holding that “the first

requirement of the statute [was] satisfied in that the evidence conclusively demonstrate[d]

Bowie County was reacting to an emergency situation at the time its employees placed

the road closure signs February 16”). This is one such instance. The County was aware

of storms in the area and the effect they could have on roads over which Morrison Creek

crossed. Inches of water running across those particular roadways posed danger to

vehicles, and the water level of that creek had a propensity to rise quickly. So, the County

reacted to the danger by warning of the water and closing roads. The river crossing over

which the decedents would later traverse was closed before the Genfans approached it

due to water being “too high for a vehicle.” That level eventually would rise to 4 or 5 feet.

Viewing this evidence in a light favoring the Genfans leads us to conclude, as a matter of

law, that the County was reacting to an emergency situation. It was attempting to

ameliorate the immediate danger caused by creek waters flooding a road.

We reject the Genfans’ proposition that because the County had time to prepare

for the situation, it was not reacting to an emergency. Time to react does not necessarily

make a situation any less of an emergency. Our Supreme Court observed as much in

Hartman when it said “[t]he statute exempts governments reacting to an emergency

situation, which necessarily includes prioritizing some risks over others.” City of San

Antonio v. Hartman, 201 S.W.3d at 673. Consequently, “evidence that the City had time

6 to do more at Rigsby Avenue is not evidence that the City was no longer reacting to an

emergency situation.” From that we recognize the appropriate focus to be the tenor of

the situation; that is, did it pose an emergency. If it did, then § 101.055(2) encompasses

the situation irrespective of the time available to prepare for the particular aspect of the

situation that caused injury. For instance, the presence of a tornado on the ground and

the havoc and destruction it causes is no less of an emergency simply because weather

forecasters predicted its presence a day or two earlier. Similarly, seeing a hurricane

aimed at a Galveston coastline days before it hits does not make the resulting developing

floods brought by its wind and rain less of an emergency situation. The same is no less

true of a dangerously and rapidly rising creek caused by a storm. There may be time to

do more but once the storm appears and the creek starts its rise to a level threatening

injury or death, the situation becomes an emergency. Irrespective of the steps taken by

the County in response, the situation presented before the County determined the

applicability of § 101.055(2), and the circumstances here were one of an emergency

situation. City of San Antonio v. Hartman, 201 S.W.3d at 673 (holding that placing

barricades in the road to warn travelers of widespread flooding across streets was a

response to an emergency situation); Durham, 135 S.W.3d at 299 (holding that Bowie

County’s placement of warning signs at a chasm caused by storms and flooding

constituted an emergency, as a matter of law); City of Arlington v. Whitaker, 977 S.W.2d

742, 743–44 (Tex. App.—Fort Worth 1998, pet. denied) (holding, as a matter of law, that

the fire chief’s decision to park his official vehicle across a road to block egress into four

feet of water traversing the road was a response to an emergency situation).

7 Another way in which the Genfans tried to thwart application of the emergency

exception was by contending that the response taken by the County was not “in

compliance with the laws and ordinances applicable to emergency action.” If it were not,

then its conduct fell outside § 101.055(2). See Durham, 135 S.W.3d at 301 (reiterating

that immunity is not waived so long as action taken complies with the laws and ordinances

applicable to emergency action). And, according to the Genfans, the County failed to

comply because the signs or barricades utilized by it failed to comport with the Texas

Manual on Uniform Traffic Control Devices. Yet, as specified in the statute, the laws and

ordinances in question must be applicable to “emergency action.” The Genfans cite us

to nothing in the Manual expressly stating that its provisions were intended to regulate an

entity’s response to an “emergency.”3 This is of import because “Section 101.055(2) was

[not] intended to refer to a general law . . . that might touch on emergency situations.”

Durham, 135 S.W.3d at 301. It was intended to refer to laws and ordinances expressly

governing such situations. Consequently, the Durham court held that “while the Manual

[in question] is a ‘law’ or ‘ordinance,’ the asserted portions of [it] were not ‘applicable to

emergency action’ within the meaning of Section 101.055(2).” Id. at 302. This result also

comports with the general statement in Tex. DOT v. Andrews, 155 S.W.3d 351 (Tex.

App.—Fort Worth 2004, pet. denied) wherein the court said that the Manual “does not set

legal standards for liability under the Tort Claims Act.” Id. at 359.

Indeed, we must remember that § 101.055(2) deals with emergencies. They

involve dangerous circumstances necessitating immediate response. Should the

3 On the other hand, they represent that the Manual’s provision does not apply unless signage is used to warn of the emergency. Conceding its general inapplicability to an emergency situation if signage is not used seems rather contradictory to the notion that the Manual is “applicable to emergency action.”

8 government personnel undertaking that response view it practical to utilize signage

warning the public of the dangerous circumstance, it would be counterintuitive to require

them to hesitate by first determining if their signs comport with specifications found in the

Manual. We hesitate to require those responding to an emergency situation to first

consult the Manual before undertaking measures to ameliorate the dangers posed to

others.

Thus, we find solace in both the words of Durham and Andrews. The provisions

of the Manual mentioned by the Genfans were not laws or ordinances “applicable to

emergency actions.”

One final note concerns the last caveat mentioned in § 101.055(2). It pertains to

actions “taken with conscious indifference or reckless disregard for the safety of others.”

Those too fall outside the provision’s scope. Proving such disregard and indifference

requires evidence that the actor knew the relevant facts but did not care about the result.

City of San Antonio v. Hartman, 201 S.W.3d at 672 n.19. No doubt, the County knew of

the flooding or emergency. In response, it sent crews out to monitor the roads and close

them if necessary. One crew went to the area where the decedents would eventually be

swept away and saw that the water level did not necessitate an immediate road closure.

Nevertheless, they placed sawhorses near the roadway warning of the high water. Soon

they returned to discover the creek had risen to a level necessitating closure. That led

them to turn the sawhorses in a manner revealing language that the road was closed.

Whether the sawhorses were placed in the middle or side of the road was disputed.

Undisputed, though, was that the County took precautionary measures in response to the

emergency. The Genfans conceded as much in their live pleading when averring that

9 County employees “placed the [warning] sign on the side of the road - where they always

placed it when the creek was too high to cross.” Thus, the record negates, as a matter

of law, any suggestion that the County knew the relevant facts (i.e., the flooding) but did

not care about the result (i.e., the safety of others).

Viewing the evidence of record in a light most favorable to the Genfans, we

conclude that it and the pleadings establish, as a matter of law, the applicability of

§ 101.055(2). The County retained its sovereign immunity. Consequently, the trial court

erred in denying the County’s plea to the jurisdiction. We reverse that decision, grant the

plea, and dismiss, without prejudice, the Genfans’ suit against Caldwell County.

Brian Quinn Chief Justice