Mary Churchwell and David Churchwell v. City of Big Spring, Texas, and Big Spring Animal Control

• Court: Court of Appeals of Texas
• Decided: April 29, 2004
• Docket: 11-03-00176-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

Mary Churchwell and David Churchwell

Appellants

Vs.                   No. 11-03-00176-CV -- Appeal from Howard County

City of Big Spring, Texas, and Big Spring Animal Control

Appellees

Mary Churchwell and David Churchwell sued the City of Big Spring, Texas, and Big Spring Animal Control^[1] for injuries sustained by Mary Churchwell when a dog attacked her.  The dog, named Fatboy, was owned by Boe Payne who lived near the Churchwells.  Shortly before the attack, Fatboy had attacked an infant, and Big Spring had quarantined Fatboy.  Big Spring released Fatboy to Payne; and, approximately two weeks later, Fatboy attacked Mary Churchwell.  The trial court granted Big Spring=s plea to the jurisdiction based on sovereign immunity.  We affirm.

 Sovereign immunity in Texas deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state or the governmental unit consents to suit.  Texas Department of Parks and Wildlife v. Miranda, No. 01-0619, 2004 WL 726901 (Tex. April 2, 2004).  Absent that consent, the Texas Tort Claims Act provides a limited waiver of sovereign immunity.  TEX. CIV. PRAC. & REM. CODE ANN. '' 101.001 thru 101.109 (Vernon 1997 & Pamph. Supp. 2004).  Thus, a municipality is immune from tort liability unless that immunity is waived under the Texas Tort Claims Act.  City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex.1998).

The Texas Tort Claims Act expressly waives sovereign immunity in three areas:  use of publicly owned automobiles, premise defects, and injuries arising out of conditions or use of property.  County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002).   The question in this case is whether the Churchwells have alleged Ainjuries arising out of conditions or use of property@ by Big Spring and met the waiver conditions of Section 101.021.

Shortly after the Churchwells filed their original petition, Big Spring filed its plea to the jurisdiction, special exceptions, and original answer.  After the entry of an agreed order requiring the Churchwells to amend their petition, the Churchwells filed an amended petition that alleged:

[T]his claim arises from the use or condition of tangible property by Defendant Big Spring Animal Control, namely, the use of the kennels inside the animal control facility and the decision to release Fatboy instead of keeping Fatboy quarantined and/or the failure to use the mechanisms within the facility to euthanize Fatboy.

The Churchwells rely on Michael v. Travis County Housing Authority, 995 S.W.2d 909 (Tex.App. B Austin 1999, no pet=n), where two dogs escaped from their owner=s yard and injured a child.  The Housing Authority knew of the dogs= vicious nature, and the Housing Authority built a fence around the owner=s yard to keep the dogs in the yard.  The dogs escaped through holes in the fence and attacked the child.  Because of the defective condition of the fence, the court held that sovereign immunity was waived. 

In this case, however, the Churchwells do not complain of a premise defect; Fatboy did not escape from defective Big Spring kennels.  Their complaint is that Big Spring was negligent in releasing Fatboy to his owner.  Stated another way, the Churchwells argue that Big Spring failed to use the kennels to restrain Fatboy or that Big Spring failed to use its facilities to euthanize Fatboy.

The Texas Supreme Court has held that the Ause of property@ must have actually caused the injury.  It is not sufficient that a use of property merely furnished the condition that made the injury possible.  Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339 (Tex. 1998), and Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 590 (Tex.2001),  illustrate the concept that the property must have been directly involved in the injury before there can be a waiver of sovereign immunity.  In Bossley, a suicidal patient escaped by pushing aside a hospital employee as that employee was going through two self-locking doors.  Hospital staff members chased the patient about half a mile to Interstate Highway 30 where the patient leaped into the path of a truck and was killed.  As opposed to the Michael case, the doors were not defective. Pointing out that the Aunlocked doors permitted [the patient=s] escape but did not cause his death,@ the Texas Supreme Court held that there was no waiver of sovereign immunity under the Texas Tort Claims Act. Dallas County Mental Health and Mental Retardation v. Bossley, supra at 343. Similarly, in Miller, the Texas Supreme Court found that there was no waiver of sovereign immunity even if the prison doctor and on-site clinic staff improperly administered pain medication which masked the symptoms of meningitis, improperly read and interpreted fever-detecting equipment, and improperly used clinic facilities and equipment in diagnosing and treating Miller.  The court reasoned that the Ause of property@ must have actually caused the injury, and that A[t]he property >used= on Miller did not.@  Texas Department of Criminal Justice v. Miller, supra at 588.

The dog attack against Mary Churchwell occurred more than two weeks after it was released from Big Spring=s control.  There was no allegation that the dog escaped from Big Spring=s property due to a defective condition of that property. As in Bossley, the use and condition of any Big Spring property was too attenuated from Mary Churchwell=s injury to be said to have caused it.  See Dallas County Mental Health and Mental Retardation v. Bossley, supra at 343. 

The trial court did not err in holding that it did not have subject matter jurisdiction.

                                                                 This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 29, 2004

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

Wright, J., and  McCall, J.

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^[1]Big Spring Animal Control is the unit of the City that deals with animal problems; therefore, the term ABig Spring@ will refer to both appellees.