the City of Dallas v. Estate of Yolanda Jeanne Webber Through Personal Representative Debra Webber on Behalf of Tenekki Webber and Shemeka Webber, as Estate Beneficiaries

• Court: Court of Appeals of Texas
• Decided: April 22, 2021
• Docket: 05-20-00669-CV
• Status: Published

Opinion

REVERSED AND RENDERED; Opinion Filed April 22, 2021

In the Court of Appeals Fifth District of Texas at Dallas No. 05-20-00669-CV

THE CITY OF DALLAS, Appellant V. ESTATE OF YOLANDA JEANNE WEBBER THROUGH PERSONAL REPRESENTATIVE DEBRA WEBBER ON BEHALF OF TENEKKI WEBBER AND SHEMEKA WEBBER, AS ESTATE BENEFICIARIES, Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-02069

MEMORANDUM OPINION Before Chief Justice Burns, Justice Myers, and Justice Carlyle Opinion by Justice Carlyle The City of Dallas appeals the trial court’s order denying its plea to the

jurisdiction. We reverse and render judgment dismissing all claims against the City.

Because the legal issues are settled, we issue this memorandum opinion. See TEX.

R. APP. P. 47.4. Yolanda Webber began experiencing shortness of breath while riding in a car

with her sisters, Tenekki Webber and Shemeka Webber.1 Each sister tried to call

9-1-1, but neither could reach an operator. They removed Yolanda from the car and

placed her on the sidewalk, while bystanders in the area also tried to call 9-1-1.

Nobody could get through.

Unable to reach 9-1-1, Tenekki called their other sister, Debra Webber, who

walked to a nearby fire station to summon help. Bystanders performed CPR on an

unresponsive Yolanda for approximately thirty minutes before paramedics reached

her. And Yolanda, who suffered prolonged cardiac arrest and an anoxic brain injury,

had no pulse when she arrived at the hospital. Doctors revived and sedated her, but

she did not recover. On the recommendation of her doctors, Yolanda’s family took

her off life support, and she died.

Tenekki, Shemeka, and Debra2 sued various parties involved with operating

the 9-1-1 system, including the City. The City filed a plea to the jurisdiction,

attaching evidence in support of its contention that governmental immunity barred

the Webbers’ claims. The Webbers responded with their own evidence, and the trial

court denied the City’s plea after conducting a hearing.

1 Although the petition alleges Shemeka is Yolanda’s sister, other parts of the record suggest she might be Yolanda’s niece. The distinction is unimportant to our analysis, so we refer to her as Yolanda’s sister, consistent with the petition’s allegations. 2 The capacities in which each sister sued the City are unclear. The petition states that all three sisters are plaintiffs, but its caption suggests Debra, acting as the personal representative of Yolanda’s estate, filed suit on behalf of Tenekki and Shemeka, as estate beneficiaries. Because we conclude the City is immune from the Webbers’ claims in any event, we need not untangle the capacities in which each sister sued. –2– The City contends the trial court erred because the Webbers failed to establish

immunity waiver for their claims. We review the trial court’s ruling de novo. Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “In a suit

against a governmental unit, the plaintiff must affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity.” Dallas Area Rapid Transit v.

Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine whether a plaintiff has met

that burden, we “consider the facts alleged by the plaintiff and the evidence

submitted by the parties.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578

S.W.3d 506, 512 (Tex. 2019). We construe the pleadings liberally, taking all factual

assertions as true, and view the evidence in the light most favorable to the plaintiff.

See id.at 512, 520; Miranda, 133 S.W.3d at 228. If the evidence raises a fact issue

on jurisdiction, we must deny the plea and allow the factfinder to resolve the issue.

McKenzie, 578 S.W.3d at 512. But “if the evidence is undisputed or fails to raise a

fact question, the plea must be granted.” Id. (quoting Univ. of Tex. at Austin v. Hayes,

327 S.W.3d 113, 116 (Tex. 2010)).

The Webbers’ petition asserts waiver under the Texas Tort Claims Act

(TTCA), which provides 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.” TEX. CIV. PRAC. & REM. CODE § 101.021(2). Immunity is not waived

if the property’s condition or use does not proximately cause the injury or death. City

–3– of Dallas v. Sanchez, S.W.3d 722, 726 (Tex. 2016) (per curiam). The Webbers allege

that the condition or use of City property—the various components of its 9-1-1

system—caused Yolanda’s death by preventing her from receiving timely medical

attention.

But as the supreme court has explained, a mere delay in treatment resulting

from a malfunctioning 9-1-1 system is not a proximate cause of a claimant’s injuries

for purposes of immunity waiver. See Sanchez, 494 S.W.3d at 726. In Sanchez, the

City received two 9-1-1 calls from the same apartment complex within ten minutes

of each other. Id. at 725. Each caller reported a drug overdose, but the second caller

got disconnected. Id. Paramedics attended to the subject of the first call but never

responded to the second, after mistakenly concluding the two calls concerned the

same overdose. Id. The victim who received no medical attention died, and his

family sued the City, alleging that the condition or use of the 9-1-1 system caused

the victim’s death by preventing him from receiving timely medical care. Id.

The supreme court explained that proximate causation in this context requires

that “the condition or use of the property must actually have caused the injury.” Id.

at 726 (quotation omitted). Property use “that simply hinders or delays treatment

does not ‘actually cause the injury’ and does not constitute a proximate cause of an

injury.” Id. The court went on to hold that the City was immune from suit because

the malfunctioning 9-1-1 system, which merely delayed treatment, did not

proximately cause the victim’s death. Id. at 726–27.

–4– Here, the Webbers similarly allege that the City’s malfunctioning 9-1-1

system caused Yolanda’s death by delaying potentially life-saving treatment. We are

bound by the supreme court’s instruction in Sanchez that such a delay in these

circumstances is not a proximate cause of a claimant’s injuries. We must conclude,

therefore, that the Webbers failed to establish immunity waiver under the TTCA.3

We reverse the trial court’s order denying the City’s plea and render judgment

dismissing all claims against the City for lack of jurisdiction.

/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE

200669F.P05

3 Because the City is immune from the Webbers’ claims, we need not address the City’s alternative arguments, raised for the first time on appeal, concerning whether the Webbers have standing to assert those claims. See TEX. R. APP. P. 47.1; KingVision Pay-Per-View, Ltd. v. Dallas Cty., No. 05-12-00765-CV, 2014 WL 1008203, at *1 (Tex. App.—Dallas Feb. 20, 2014, pet. denied) (mem. op.). –5– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

THE CITY OF DALLAS, Appellant On Appeal from the 160th Judicial District Court, Dallas County, Texas No. 05-20-00669-CV V. Trial Court Cause No. DC-18-02069. Opinion delivered by Justice Carlyle. ESTATE OF YOLANDA JEANNE Chief Justice Burns and Justice WEBBER THROUGH PERSONAL Myers participating. REPRESENTATIVE DEBRA WEBBER ON BEHALF OF TENEKKI WEBBER AND SHEMEKA WEBBER, AS ESTATE BENEFICIARIES, Appellee

In accordance with this Court’s opinion of this date, the order of the trial court is REVERSED and judgment is RENDERED that:

All claims against the City of Dallas are dismissed for lack of jurisdiction.

It is ORDERED that appellant the City of Dallas recover its costs of this appeal from appellee Estate of Yolanda Jeanne Webber through Personal Representative Debra Webber on Behalf of Tenekki Webber and Shemeka Webber, as Estate Beneficiaries.

Judgment entered this 22nd day of April, 2021.

–6–