Russell v. City of Seymour

836 S.W.2d 283, 1992 Tex. App. LEXIS 1940, 1992 WL 171757
CourtCourt of Appeals of Texas
DecidedJuly 23, 1992
DocketNo. 11-91-055-CV
StatusPublished
Cited by2 cases

This text of 836 S.W.2d 283 (Russell v. City of Seymour) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Russell v. City of Seymour, 836 S.W.2d 283, 1992 Tex. App. LEXIS 1940, 1992 WL 171757 (Tex. Ct. App. 1992).

Opinion

OPINION

ARNOT, Justice.

Bill Russell suffered a fatal heart attack. His wife, Imogene Russell, individually, as his survivor, and as administratrix of his estate, sued appellees, the City of Seymour, Seymour/Baylor County Emergency Medical Service, and the Seymour Hospital Authority for negligently refusing to transfer Russell to another hospital in Wichita Falls, 50 miles away, which was better equipped to handle Russell’s life-threatening condition. Appellant claims that appellees’ refusal resulted in Russell’s death. Claiming governmental immunity, appellees moved for summary judgment which the trial court granted. On appeal appellant contends that because “use of a motor vehicle” means “non-use of a motor vehicle,” appel-lees have waived governmental immunity under TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(1)(A) (Vernon 1986) arguing Robinson v. Central Texas MHMR Center, 780 S.W.2d 169 (Tex.1989) as authority. We affirm.

On April 25, 1987, Bill Russell suffered a heart attack. Seymour EMS, operated by Emergency Medical Technicians (EMT) personnel, Dorothy Gaston and Merry Crounse, transported Russell to the Seymour Hospital. At the hospital, Russell was treated by Dr. Daniel B. Jackson. After stabilizing Russell’s condition and consulting with appellant, Dr. Jackson contacted Dr. Samuel Christopher Waters, a cardiac specialist in Wichita Falls. Dr. Waters agreed that he would receive Russell as a patient if Russell could be quickly transported to Wichita Falls. Bethania Hospital, in Wichita Falls, is about 50 miles from Seymour. Seymour EMS did not transport Russell. Instead, Dr. Jackson instructed Lifeline, an ambulance service in Wichita Falls, to make the transfer. Dr. Jackson anticipated that it would only take an additional 30 to 40 minutes to have Lifeline come to Seymour and transport Russell back to Wichita Falls. However, Lifeline did not arrive until later, and Russell did not arrive at Bethania until 9:25 p.m., some three and one-half hours after he was expected to arrive. Russell was treated at Bethania, but he only survived 5 days after his initial heart attack. Dr. Waters stated that the administration of streptokinase procedure would have increased Russell’s chance of survival. This procedure was not available at Seymour Hospital.

Appellant, Russell’s widow, alleges that Russell’s death was caused by the failure to receive treatment within the “window of opportunity.” Appellant argues that the failure to timely receive treatment was caused by appellees’ negligent failure to transport Russell to Bethania. Appellant contends that the Seymour EMS refused to transport Russell because of a hospital authority policy that stated that an ambulance could not leave Baylor County without a backup. On the day in question, there was no backup available.

TEX.CIV.PRAC. & REM.COED ANN. § 101.021 (Vernon 1986) provides that a governmental unit in the State is liable for:

(1) 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; and
[285]*285(B) the employee would be personally liable to the claimant according to Texas law; and
(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. (Emphasis added)

In her petition, appellant alleged that Russell’s death was caused by the negligent failure of the appellees to use the EMS ambulance, a motor-driven vehicle. On appeal, appellant complains that governmental immunity is waived pursuant to Section 101.021(1)(A). In Robinson, the court held that by the language “use of tangible personal property” in Section 101.-021(2), the legislature meant to include “non-use of tangible personal property.” Appellant urges that this holding should also be extended to Section 101.021(1)(A), that is, “use of a motor vehicle” means “non-use of a motor vehicle.” Appellant concedes in her brief and at argument that, but for the decision in Robinson, her action would be barred by governmental immunity-

We need not consider whether the decision in Robinson should be extended to Section 101.021(1)(A).1 To show that governmental immunity has been waived, appellant must allege facts in her petition that would satisfy a waiver under Section 101.021. Even if we assume that the legislature meant to include “non-use” when it waived immunity as to “use” of a motor vehicle, the summary judgment evidence conclusively precludes recovery on appellant’s alleged cause of action.

In her five points of error, appellant urges that the trial court erred in granting the summary judgment. Crucial to each of her five points of error is the proposition that governmental immunity has been waived pursuant to Section 101.021(1)(A) of the Texas Civil Practice and Remedies Code.

[286]*286When reviewing a summary judgment, this court will adhere to the following standards:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to a judgment as a matter of law;
(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and
(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

See TEX.R.CIV.P. 166a; Goswami v. Metropolitan Savings and Loan Association, 751 S.W.2d 487, 491 (Tex.1988); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

As summary judgment proof, appellees included deposition testimony of Dr. Jackson in which he testified that he ordered Lifeline, and not Seymour EMS, to make the transfer. Appellant argues that her responsive summary judgment evidence raises a fact question as to whether Dr. Jackson ordered Seymour EMS to transport Russell to Bethania, which order appellant claims the Seymour EMS refused.

As summary judgment evidence, appellant offered the following deposition testimony. Appellant, decedent’s wife, stated that Dr. Jackson suggested she use Dr. Waters as a cardiologist. After she agreed, he called Dr. Waters. Appellant testified that after the conversation with Dr. Waters, which she did not hear, Dr. Jackson told her that Dr. Waters would be the receiving physician and that Russell needed to be transferred immediately to Bethania. Appellant said that a few minutes later she heard Dr. Jackson tell EMT personnel, Gaston and Crounse, to get the ambulance equipment ready to transfer Russell as soon as possible to Wichita Falls.

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836 S.W.2d 283, 1992 Tex. App. LEXIS 1940, 1992 WL 171757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-city-of-seymour-texapp-1992.