Jenicke v. City of Forest Hill

• Decision Date: 06 April 1994
• Docket Number: No. 2-92-093-CV,2-92-093-CV
• Citation: 873 S.W.2d 776
• Parties: Joe JENICKE, et ux Wanda Jenicke, Appellants, v. CITY OF FOREST HILL, Texas, Appellee.
• Court: Texas Court of Appeals

Page 776

873 S.W.2d 776

Joe JENICKE, et ux Wanda Jenicke, Appellants, v. CITY OF FOREST HILL, Texas, Appellee.

No. 2-92-093-CV.

Court of Appeals of Texas Fort Worth.

April 6, 1994.

Rehearing Overruled May 10, 1994.

Tim G. Sralla, Fielding, Barrett & Taylor, Fort Worth, for appellants.

George A. Staples, Jr., Staples & Hampton, Hurst, for appellee.

Before LATTIMORE, WEAVER and ASHWORTH, JJ.

OPINION

LATTIMORE, Justice.

This is an appeal by Joe and Wanda Jenicke (the "Jenickes") from a summary judgment granted in favor of the City of Forest Hill, Texas (the "City"). We affirm.

The Jenickes sued the City after Joe Jenicke ("Joe") was injured July 17, 1982 in a natural gas explosion at Sleepy's Liquor Store, 5110 Mansfield Highway, Forest Hill, Texas. Joe had been sent by his employer, Lone Star Gas Company, to investigate a gas leak reported by the Forest Hill Department of Public Safety ("DPS") ¹ after a car crashed into the front of the store. The explosion occurred as Joe was looking under the car in order to determine the extent of damage to a gas meter struck by the car.

The Jenickes asserted causes of action against the City pursuant to the Texas Tort Claims Act, TEX.CIV.PRAC. & REM.CODE ANN. §§ 101.021(1), (2) (Vernon 1986), and 42 U.S.C.S. §§ 1983 (Law.Co-Op 1986), 1988 (Law. Co-Op 1989). They alleged that the City was liable, pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(1), because their injuries were caused by the following specific acts and omissions of negligence by DPS employees arising from the operation and use of a motor-driven vehicle or motor-driven equipment:

(1) failing to call for assistance from, and utilize, a working fire truck;

(2) utilizing an inoperable fire truck;

(3) failing to properly position the fire truck to act as a safety barrier for civilians;

(4) failing to utilize available motor-driven equipment to set out a spray pattern to disburse gas in the area;

(5) failing to place the fire engine in an area protected from a potential blast; and

(6) failing to utilize the fire engine to properly deploy fire fighting and supply lines.

The Jenickes also alleged that the City was liable, pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2), because their injuries were caused by the following conditions or uses of tangible personal property under circumstances where the City would, if it were a private person, be liable to them under Texas law:

(1) failing to utilize available tangible equipment and material to properly establish a command post;

(2) failing to utilize equipment to ascertain that a main line crew was necessary to shut off the gas;

(3) failing to properly utilize communication equipment to forward relevant information to Lone Star Gas Company, including notification of the size and nature of the gas leak and the necessity of a main line crew to shut off the gas;

(4) failing to properly place the fire engine in a protected area to act as a barrier to civilians;

(5) misusing fire hoses to properly handle a gas leak;

(6) misusing an MSA explosion meter to fail to determine the gas danger zone and level of gas concentration;

(7) failing to properly disburse the leaking gas using fire hoses and other available tangible equipment;

(8) failing to properly deploy fire fighting and supply lines to diffuse the entire area;

(9) failing to utilize hoses and other equipment to set out a spray pattern to disburse gas in the area; and

(10) failing to utilize available training materials to properly train DPS supervisory personnel and operational personnel.

Next, the Jenickes alleged that the City was liable, also pursuant to TEX.CIV.PRAC. & REM.CODE ANN. § 101.021(2), because their injuries were caused by a condition or use of real property under circumstances where the City would, if it were a private person, be liable to them under Texas law. The Jenickes specifically asserted that:

(1) the City owed a duty of reasonable care not to injure Joe because it voluntarily undertook an affirmative course of action for Joe's benefit;

(2) although not an owner or occupier of the premises where Joe's injuries occurred, the City assumed control over both the premises where the injury occurred and persons on the premises, including Joe;

(3) the City knew, but failed to warn Joe of the explosive potential of the gas leak;

(4) the City allowed, directed, and encouraged Joe to place himself in a position of imminent danger; and

(5) Joe did not know of the explosive potential of the gas leak.

Finally, the Jenickes asserted the City was liable under 42 U.S.C.S. § 1983 for damages resulting from violations of various Constitutional torts. The City moved for summary judgment on the grounds that: (1) no genuine issues of material facts existed; (2) it was immune from the Jenickes' claims under the Texas Tort Claims Act by virtue of TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(3) (Vernon Supp.1994); and (3) the Jenickes' pleadings failed to state a cause of action under 42 U.S.C.S. § 1983. Although the City stated it was relying on "the pleadings, the affidavits herein filed and the discovery and responses to discovery in this case ...", no evidence was attached to its motion. The response filed by the Jenickes, however, had attached to it over 500 pages of evidence. The trial court granted the City's motion for summary judgment without giving the specific grounds for its ruling, stating it considered the pleadings, evidence and arguments of counsel.

When a motion for summary judgment is directed solely at the pleadings, the issue on appeal is whether the nonmovant's pleading, when liberally construed, fails to show a genuine issue of material fact as a matter of law. See TEX.R.CIV.P. 166a; Abbott v. City of Kaufman, 717 S.W.2d 927, 929 (Tex.App.--Tyler 1986, writ dism'd). In making this determination, we must take as true every factual allegation in the nonmovant's pleading and resolve all doubts as to the existence of a genuine issue of material fact against the movant. See Abbott, 717 S.W.2d at 929. This does not mean, however, that we must accept as true appellants' claims that statutory and constitutional violations occurred. The question of whether the facts and circumstances as alleged by the parties amount to violations of the statutes raised is a question of law.

When a trial court does not specify the grounds relied upon in granting summary judgment, we must affirm if any of the grounds asserted in support of the motion are meritorious. See Home Indem. Co. v. Pate, 814 S.W.2d 497, 500 (Tex.App.--Houston [1st Dist.] 1991, writ denied).

Texas Tort Claims Act

In points of error one through five, the Jenickes allege that the trial court erred in granting summary judgment for the City because: (1) the pleadings and evidence raised a disputed question of material fact; (2) they properly pled a cause of action for negligence; (3) the City did not establish the existence of governmental immunity as a matter of law; and (4) the facts pled raised a question of fact as to the applicability of governmental immunity.

The first issue we will address in analyzing the Jenickes' complaints of error is whether any fact questions exist on the applicability of TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(3). If there are none, the City is immune from liability pursuant to section 101.055(3) as a matter of law by the doctrine of governmental immunity. See Ross v. City of Houston, 807 S.W.2d 336, 338 (Tex.App.--Houston [1st Dist.] 1990, writ denied).

We note initially in addressing this section that appellee City did not raise TEX.CIV.PRAC. & REM.CODE ANN. § 101.055(2) (Vernon Supp.1994) and argue that it is immune from liability because the events at issue occurred during a response to an emergency situation. That exception to the waiver of liability is therefore not before us. Section 101.055(3) states that the Tort Claims Act "does not apply to a claim ... arising from the failure to provide or the method of providing police or fire protection." Section 101.055(3). In State v. Terrell, 588 S.W.2d 784 (Tex.1979), the Texas Supreme Court concluded that the legislature's purpose in enacting this section was to avoid judicial review of the policy decisions governmental units must make in deciding how much, if any, police or fire protection to provide for a community. Id., at 788. The language of this section was thus interpreted as requiring that if the negligence alleged relates to the formulation of policy, the governmental unit remains immune from liability. Id. If however, the negligence is in the manner in which policy is carried out, liability may exist under the Tort Claims Act. Id.

The Terrell court used the following example of a policy decision for which a governmental unit would be immune from allegations of negligence:

[D]amages resulting from a government's decision to provide only three fire trucks for a community may not be recovered against the governmental unit on the theory that [it] was negligent in providing an inadequate number of fire trucks.

See id. This is a decision relating to the formulation of policy because it concerns how much, if any, fire protection to provide for a community. We also find the court's application of the law to the facts in Terrell instructive:

Here, the Texas Highway Department, pursuant to a statute fixing maximum speeds, has a policy of detecting and apprehending individuals who exceed the speed limit by use of radar and motor vehicles. Such a policy decision is not subject to an attack of negligence under this Act. This policy, however, obviously does not include directing the officer to strike any vehicle in his path in apprehending a speeder. The accident which occurred in this case was not a part of the formulated policy. Therefore, the State is subject to liability for injuries resulting from the negligence, if any, of the highway patrolman in colliding with Mr. Terrell's vehicle.

Id.

After studying each of the specific acts and...