Brantley v. City of Dallas

• Decision Date: 31 December 1976
• Docket Number: No. 8736,8736
• Citation: 545 S.W.2d 284
• Parties: Will Edward BRANTLEY, Appellant, v. CITY OF DALLAS, Appellee.
• Court: Texas Court of Appeals

Page 284

545 S.W.2d 284

Will Edward BRANTLEY, Appellant, v. CITY OF DALLAS, Appellee.

No. 8736.

Court of Civil Appeals of Texas,

Amarillo.

Dec. 31, 1976.

Rehearing Denied Jan. 24, 1977.

Smith, Rachal, Schutze, Sanderson & Boudreaux, Joe N. Boudreaux, Dallas, for appellant.

Strasburger, Price, Kelton, Martin & Unis, Rowland B. Foster, Dallas, for appellee.

ROBINSON, Justice.

Plaintiff Will E. Brantley filed suit against the City of Dallas alleging personal injuries as a result of negligence on the part of employees of the Dallas Fire Department's Emergency Ambulance Service in failing to transport him to a hospital. The trial court denied plaintiff's motion for partial summary judgment and granted the defendant City's motion for summary judgment based on governmental immunity. Plaintiff appeals, contending that the operation of an emergency ambulance service is a proprietary rather than a governmental function, and in the alternative, that governmental immunity has been waived by the Texas Tort Claims Act, Vernon's Ann.Civ.St. art. 6252--19. Affirmed.

The emergency ambulance service in question is operated by the City of Dallas pursuant to city ordinances which make it unlawful for anyone except the Dallas Fire Department or the U.S. Government to operate an emergency ambulance service within the city limits except in certain specified situations. Several private ambulance companies provide non-emergency service in the city. Emergency service is provided for patients in circumstances which call for immediate action and in which the element of time in transporting the sick, wounded or injured for medical treatment is essential to the health or life of the person.

We do not find that the question of whether an emergency ambulance service operated by a city is a governmental or proprietary function has been decided by the courts of this state. However, our courts have held that the operation of a city hospital is a governmental function. In City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (Tex.Com.App.1937, opinion adopted), the court held that the establishment and maintenance of a hospital is a governmental function and that a city is not liable for injuries caused by the negligence of its employees in the operation of the city's hospital. The court cited Dillon's Municipal Corporations (5th Ed.) Vol. 4, p . 2986, § 1661 as follows:

Dillon's statement of the general rule is:

'The power of even duty on the part of a municipal corporation to make provision for the public health and for the care of the sick and destitute, appertains to it in its governmental or public, and not its corporate, or as it is sometimes called, private capacity.' Applying the general rule to the particular question here presented, he says: 'And therefore where a city, under its charter, and the general laws of the state enacted to prevent the spread of contagious diseases, establishes a hospital it is not responsible to persons injured by reason of the misconduct of its agents and employees therein.'

The Tennessee Supreme Court in City of Memphis v. Bettis, 512 S.W.2d 270 (Tenn.1974), held that the operation of an emergency ambulance was a governmental and not a proprietary function. The Tennessee court relied on an earlier case, dealing with a public hospital wherein it had quoted 6 McQuillin Municipal Corporations § 2669, which states:

The duty of a municipal corporation to conserve the public health is governmental, and it is not liable for injuries inflicted while performing such duty. The decisions are practically unanimous in holding that a municipality is not liable for the torts of its board of health or other health officers on The theory that the duty in regard to preventing sickness or caring for sick people is strictly a governmental or public function. (Emphasis supplied.)

The courts of other statutes have held that the operation of an ambulance by a city hospital is not a proprietary function. City of Newark v. United States, 149 F.Supp. 917 (D.N.J.1957); Watson v. City of Atlanta, 136 Ga. 370, 71 S.E. 664 (1911).

In the Texas case of Ayala v. City of Corpus Christi, 507 S.W.2d 324 (Tex.Civ.App.--Corpus Christi 1974, no writ), wherein a private ambulance service sought to enjoin the city from operating an emergency ambulance service, the court stated,

The institution of an emergency ambulance service is, we believe, a service kindred to the police or fire service. This type of service is incident to the police power of the state: i.e. to protect the health, safety, and general welfare of its citizens. See Attorney General's opinions #M--231 (1968); #M--385 (1969); #C--772 (1966); #M--806 (1971).

We conclude that the operation of an emergency ambulance service by a city is a governmental function and that the City of Dallas is not liable for the negligence of its employees in performing that function unless its governmental immunity has been waived by the Texas Tort Claims Act, art. 6252--19, V.A.C.S.

Plaintiff contends that his injuries arose from negligence of the defendant City's employees arising either from the use and operation of a motor vehicle or from the use of tangible personal property for which governmental immunity has been expressly waived and abolished by art. 6252--19, V.A.C.S (Supp.1976). The relevant portion of that statute is as follows:

Liability of governmental units

Sec....