City of El Campo v. Rubio

• Decision Date: 12 November 1998
• Docket Number: No. 13-98-238-CV,13-98-238-CV
• Citation: 980 S.W.2d 943
• Parties: The CITY OF EL CAMPO, Texas, Appellant, v. David RUBIO and Pascuala Torres, Appellee.
• Court: Texas Court of Appeals

Page 943

980 S.W.2d 943

The CITY OF EL CAMPO, Texas, Appellant, v. David RUBIO and Pascuala Torres, Appellee.

No. 13-98-238-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 12, 1998.

Darrell G. Noga, Matthew Roy Scott, Cooper & Scully, Dallas, for Appellant.

Robert Steven Kwok, Robert Kwok & Assoc PC, John C. Maher, Jr., Maher & Serafino, Houston, for Appellee.

Before Justices HINOJOSA, YANEZ, and RODRIGUEZ.

OPINION

RODRIGUEZ, Justice.

This is an attempted appeal ¹ from the trial court's denial of the City of El Campo's plea to the jurisdiction and motion for summary judgment based on official immunity. We dismiss in part for want of jurisdiction and affirm.

At approximately midnight on April 16, 1995, David Rubio, his wife Pascuala Torres, and their two children ("the Rubios") were traveling on Highway 59 in El Campo, Texas, when Rubio was pulled over by El Campo Police Officer Mark Biskup. Biskup suspected Rubio was intoxicated because the van was swerving between lanes. Biskup determined Rubio was not intoxicated, but a routine check of his driver's license revealed the license was suspended. Biskup placed Rubio under arrest.

Neither Torres nor the minor Rubio children were licensed to drive. While Biskup denies the allegations, the Rubios claim that Biskup "ordered and instructed Torres to drive the van and offered instruction on how to operate the vehicle by showing her the gas and brake pedals." Biskup also asked whether Elizabeth Torres, a twelve-year-old child, would drive the van back to the police station. The Rubios further alleged that Biskup represented he would activate the emergency flashers on his vehicle to clear the road for Torres.

Claiming she was acting under direct orders from Biskup, and fearful for her and her children's safety due to their location on the highway in the middle of the night, Torres attempted to drive the van and follow Biskup, who was already on the highway and making a U-turn to proceed in the opposite direction. As she pulled onto the highway, the van was struck by an oncoming vehicle, causing Torres severe injury.

The Rubios brought suit against the City claiming negligence, gross negligence, and intentional infliction of emotional distress, and requested exemplary damages. The City answered and thereafter filed a plea to the jurisdiction asserting the facts as set forth by the Rubios did not allege the use or operation of a motor-driven vehicle by a governmental employee, nor did their allegations of non-use or misuse of the emergency flashers state a claim under the Texas Tort Claims Act. ² The City also filed a motion for summary judgment raising Biskup's official immunity. The trial court denied both the plea to the jurisdiction and the motion for summary judgment. This appeal followed.

After the briefs were filed, the Rubios filed a "Supplemental Exhibit to Their Response to Appellant's Brief on Accelerated Appeal." This supplemental exhibit contains excerpts from the deposition of Elizabeth Torres, which allegedly support the Rubios' version of the incident. Claiming the Rubios failed to follow proper appellate procedure in supplementing the record, the City filed a motion to strike the supplemental exhibit. We ordered the motion carried with the case.

At any time before the clerk's record is prepared, any party may designate items to be included in the clerk's record. TEX.R.APP. P. 34(b)(1). Rule 34 also provides that "[i]f a relevant item has been omitted from the clerk's record, ... any party may, by letter, direct the trial court clerk to prepare, certify, and file in the appellate court a supplement containing the omitted item." TEX.R.APP. P. 34(c)(1).

The Rubios neither requested that items be included in the clerk's record, nor did they request the trial court clerk to prepare a supplemental record. Accordingly, the City's motion to strike the Rubios' Supplemental Exhibit is GRANTED. Considering only the documents contained in the clerk's record, we now address the City's issues.

PLEA TO THE JURISDICTION

The City's first two issues question whether (1) under the facts of this case, the City is immune from liability under the Act, and if so, (2) did the trial court err in denying the City's plea to the jurisdiction.

A plea to the jurisdiction contests the trial court's authority to determine the subject matter of the cause of action. State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.--Corpus Christi 1989, writ denied). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject matter jurisdiction. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.--Austin 1994, writ denied). We take the allegations in the pleadings as true and construe them in favor of the pleader. Texas Ass'n of Business, 852 S.W.2d at 446.

We consider the Rubios' pleadings in light of the provisions of the Act, which provide 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 the scope of his 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

(B) the employee would be personally liable to the claimant according to Texas law....

TEX. CIV. PRAC. & REM.CODE ANN. § 101.021 (Vernon 1997).

USE OF A MOTOR-DRIVEN VEHICLE

Relying on LeLeaux v. Hamshire-Fannett Sch. Dist., 835 S.W.2d 49 (Tex.1992), the City claims the governmental employee must actually be driving the motor-driven vehicle involved in the accident; therefore, because Biskup was not driving the Rubio vehicle at the time of the accident, there is no waiver of immunity. We disagree.

In LeLeaux, a student hit her head on the top of a school bus door. The bus was parked, the motor was off, the bus was empty, and the bus driver was not present when the accident occurred. No school related business was being performed.

LeLeaux did not hold that the vehicle in question had to be driven by a governmental employee, only that a governmental employee "use" or "operate" the vehicle. The supreme court defined "operation" as "a doing or performing of a practical work," and "use" as "to put or bring into action or service; to employ for or apply to a given purpose." LeLeaux, 835 S.W.2d at 51. Finding immunity barred LeLeaux's claim, the supreme court held her injury did not arise out of the "use or operation" of a motor driven vehicle, and that the school bus was "nothing more than the place where Monica happened to injure herself." Id.

In this case, the Rubios alleged that Biskup instructed Torres on how to drive--he showed her where the gas pedal was, where the brake pedal was, and then ordered her to follow him back to the El Campo police station. The Rubios claim Torres had little or no choice and no control over the situation: she could have driven the vehicle, she could have had her twelve-year-old daughter drive the vehicle, or she could have sat on the side of Highway 59 at midnight with two children until help arrived from Houston.

Rather than LeLeaux, we find the allegations in the Rubios's petition more analogous to those in County of Galveston v. Morgan, 882 S.W.2d 485 (Tex.App.--Houston [14th Dist.] 1994, writ denied). In that case, Morgan, who was part of a work crew resurfacing a road, was injured when he fell from the raised bed of a dump truck positioned too close to a power line. Galveston County did not own the dump trucks, but its employees supervised the drivers and provided front and rear spotters who signaled the dump truck drivers when to move forward and when to stop. Spotters were necessary because a dump truck driver cannot see what is above him. Part of the spotters' job was to watch for overhead obstructions, such as power lines.

In finding that Galveston County employees "used" or "operated" the dump trucks in question, our sister court held that

[t]he spotters in question were county employees. They were a necessary part of the job. The spotters told the truck driver when to move forward, how far to move, when to raise his bed, how far to raise it, when to lower his bed, and when to stop. The movement of the truck and the laying of the gypsum was within the spotters' sole discretion. If a driver moved his truck contrary to the spotters' direction, he could be fired. Although the spotters were not the drivers of the trucks, the spotters "used or operated" the trucks by exercising complete control over their "use or operation."

County of Galveston, 882 S.W.2d at 490 (emphasis added). The City claims that for the Rubios's allegations to fall within County of Galveston's holding, Biskup would have had to, at a minimum, waved or pointed Torres into the path of the oncoming vehicle. The City, however, ignores the Rubios' pleading wherein they claim Biskup ordered Torres to follow him to the police station. When Biskup pulled out onto the highway, Torres followed him, as ordered. In attempting to distinguish County of Galveston, the City claims Torres exercised her own thinking and controlled her own movements on the highway. Again, the City ignores the Rubios' allegations that Torres was acting under "direct orders" from Biskup.

The City claims the facts of this case are more closely akin to those in City of Columbus v. Barnstone, 921 S.W.2d 268 (Tex.App.--Houston [1st Dist.] 1995, no writ). In that case, Barnstone was involved in a head-on collision with Ellis, a drunk driver. Prior to the accident, the police had been called to the home of Ellis's mother-in-law where Ellis had arrived, intoxicated, and attempted to obtain possession of her minor children. The police officers...