David Foster and Christeene Foster, Individuall and as Next Friend of Christofer Foster, a Minor v. the City of Houston, Texas

• Court: Court of Appeals of Texas
• Decided: October 5, 2004
• Docket: 14-04-00127-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed October 5, 2004

Affirmed and Memorandum Opinion filed October 5, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00127-CV

DAVID FOSTER AND CHRISTEENE FOSTER, INDIVIDUALLY AND AS NEXT FRIEND OF CHRISTOFER FOSTER, A MINOR, Appellants

V.

THE CITY OF HOUSTON, TEXAS, Appellee

On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 03-55425

M E M O R A N D U M   O P I N I O N

Appellants David and Christeene Foster, individually and as next friend of their son, Christofer Foster, appeal from the trial court’s dismissal of their claims against appellee, the City of Houston, Texas (“the City”).  This case arises from injuries sustained by David Foster as a result of a motorcycle accident and the alleged subsequent failure by the City to timely dispatch emergency medical services personnel to the scene.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion.  See Tex. R. App. P. 47.4.  We affirm.

Appellants present three issues for review in this appeal.  They argue that (1) Section 101.055(3)^[1] of the Texas Tort Claims Act (“Act”) does not apply to the negligent implementation of policy, (2) the trial court erred in dismissing their claims against the City because their pleadings adequately allege waiver of sovereign immunity under Sections 101.021(2)^[2] and 101.062(b)^[3] of the Act, and (3) the trial court abused its discretion in granting the City’s plea to the jurisdiction before their case was adequately developed through discovery.  Because our resolution of appellants’ second and third issues is dispositive of this case on appeal, we do not reach their first issue.

In their second issue, appellants argue that the trial court erred in dismissing their claims against the City because their pleadings adequately allege waiver of sovereign immunity under Sections 101.021(2) and 101.062(b) of the Act.  We disagree.

Appellants contend that the waiver of sovereign immunity for the use of “tangible personal property,” codified in Section 101.021(2), applies because the City’s use of its 9-1-1 emergency communications equipment was the proximate cause of Daniel Foster’s injuries.  But a nearly identical claim was raised and rejected by the court in City of Hidalgo Ambulance Service v. Lira, 17 S.W.3d 300, 304 (Tex. App.—Corpus Christi 2000, no pet.), and we find its reasoning persuasive.  In the present case, appellants do not allege that either the condition of the City’s emergency communications equipment or any City employee’s or agent’s operation of such equipment caused the injuries sustained by Daniel Foster.  Rather, appellants contend that the failure of City employees or agents to convey information concerning Daniel Foster’s injuries to the appropriate medical personnel through the operation of the emergency communications equipment was negligent, grossly negligent, or reckless.^[4]  Therefore, appellants’ contention that the City waived its defense of sovereign immunity through its use of tangible personal property is without merit because appellants do not contend that such use was negligent, grossly negligent, or reckless in nature.

Appellants also contend that the conduct of City employees or agents in response to Christeene Foster’s repeated calls for medical assistance violated several statutory provisions and local ordinances, including (1) Sections  42.062(a)^[5] and (2) Section 38.15(a)(2)^[6] of the Texas Penal Code, and (3) “numerous City ordinances.”  We do not agree.  Appellants do not allege facts concerning whether any City employee or agent (1) prevented or interfered with their placement of a call or request for emergency assistance, or (2) interrupted, disrupted, impeded, or interfered with emergency personnel in the performance of emergency medical services.  Rather, they claim that City employees or agents were on the receiving end of Christeene Foster’s calls for help and attempted to provide assistance, but were unable to do so because the accident location was not provided by the caller.  Further, appellants allege that the same conduct violated “numerous City ordinances,” yet fail to mention any single provision in particular.  Consequently, this claim fails due to inadequate briefing. See Tex. R. App. P. 38.1(h).  We therefore find that appellants did not adequately plead waiver of sovereign immunity by the City in the present case.

Accordingly, appellants’ second issue is overruled.

In their third issue, appellants argue that the trial court abused its discretion in granting the City’s plea to the jurisdiction before their case was adequately developed through discovery.  Whether a determination of subject matter jurisdiction can be made in a preliminary hearing or should be suspended pending further discovery must be left largely to the trial court’s sound exercise of discretion. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).  In the present case, appellants sought discovery of the following items: the audiotape of Christeene Foster’s conversations with the 9-1-1 emergency dispatchers, the identities of the actors involved in Christeene Foster’s calls for help, and a copy of the City’s 9-1-1 emergency service policies.  They claim that the City’s failure to comply with these discovery requests made the trial court’s granting of the City’s plea to the jurisdiction premature.  We disagree.

Appellants claim that the City’s failure to produce the audiotape of Christeene Foster’s conversations with the emergency dispatchers rendered the trial court’s decision premature.  But our review of the pleadings confirms that appellants were aware of the content of the exchanges that took place between Christeene Foster and the dispatchers without the City’s production of the audiotape.  According to their pleadings, appellants were repeatedly told that no emergency personnel would be dispatched because the caller did not know the location of the accident.  Therefore, the City’s production of the audiotape would not have clarified the manner of use or non-use of tangible personal property or the nature of the alleged violations of statutes and/or local ordinances.

Appellants next claim that the City’s failure to disclose the identities of the actors involved in Christeene Foster’s calls for medical assistance rendered the trial court’s decision premature.  We do not understand, however, and appellants fail to explain, how knowledge of such actors’ identities would have clarified the manner of use or non-use of tangible personal property or the nature of the alleged violations of statutes and/or local ordinances, as appellants claim.

Finally, appellants claim that the City’s failure to produce a copy of its 9-1-1 emergency service policies rendered the trial court’s decision premature.  The City’s sovereign immunity is not waived merely because the actions of its employees or associated volunteers violate its own service policies; rather, sovereign immunity is waived only as a result of violations of statutes or ordinances.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.062(b) (Vernon 1997).  Therefore, the City’s production of a copy of its own emergency service policies would not have clarified the manner of use or non-use of tangible personal property or the nature of the alleged violations of statutes and/or local ordinances.

Accordingly, appellants’ third issue is overruled.

The judgment of the trial court is affirmed.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 5, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1]  That Section provides: “This chapter does not apply to a claim arising: . . . (3) from the failure to provide or the method of providing police or fire protection.” (Vernon 1997).

^[2]  That Section provides: “A governmental unit in this state is liable for: . . . (2) 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.” (Vernon 1997).

^[3]  That Section provides: “This chapter applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 9-1-1 service or responding to a 9-1-1 emergency call only if the action violates a statute or ordinance applicable to the action.” (Vernon 1997).

^[4]  In other words, appellants do not contend that any City employee or agent was negligent, grossly negligent, or reckless in manually operating the telephones, computers, or other emergency equipment; instead, they assert that the conveyance or non-conveyance of information regarding Daniel Foster’s injuries was negligent, grossly negligent, or reckless because it was not done in a timely manner.

^[5]  That Section provides: “An individual commits an offense if the individual knowingly prevents or interferes with another individual’s ability to place an emergency telephone call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.” (Vernon Supp. 2003).

^[6]  That Section provides: “A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: . . . (2) a person who is employed to provide emergency medical services including the transportation of ill or injured persons while the person is performing that duty.” (Vernon Supp. 2003).