McBride v. TDCJ-ID, TDCJ-ID

• Court: Court of Appeals of Texas
• Citation: 964 S.W.2d 18
• Docket Number: No. 12-96-00173-CV,TDCJ-ID,12-96-00173-CV
• Parties: Kirk Wayne McBRIDE, Appellant, v., et al., Appellees.
• Decision Date: 27 June 1997

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964 S.W.2d 18 Kirk Wayne McBRIDE, Appellant,
v.
TDCJ-ID, et al., Appellees. No. 12-96-00173-CV. Court of Appeals of Texas,
Tyler. June 27, 1997.
Rehearing Overruled Aug. 28, 1997.

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Kirk Wayne McBride, New Boston, for appellant.

Elizabeth M. Cooper, Austin, for appellee.

Before RAMEY, C.J., and HOLCOMB and HADDEN, JJ.

HOLCOMB, Justice.

Inmate Kirk Wayne McBride ("McBride") sued the Texas Department of Criminal Justice--Institutional Division ("TDCJ-ID") pursuant to TEX. CIV. PRAC. & REM.CODE ANN. § 101.001 et seq., commonly known as the Texas Tort Claims Act ("the Act"), for damages resulting from a workrelated injury. He also sued Dr. A.P. Larson ("Larson") for malpractice in treating that injury. The trial court rendered summary judgment in favor of TDCJ-ID and Larson. On appeal, McBride contends that summary judgment was improper because he stated a cause of action under the Act, sovereign immunity did not protect TDCJ-ID, and TDCJ-ID failed to meet its summary judgment burden by establishing that no genuine issue of material fact existed as to its affirmative defenses. McBride also complains that Larson's summary judgment evidence was inadequate to support the judgment. We affirm judgment for Larson and reverse and remand judgment for TDCJ-ID.

We will first address the summary judgment for TDCJ-ID. In his First Amended Petition, McBride alleged that a TDCJ-ID employee ordered him to pack a fifty (50) gallon trash barrel and carry it up a flight of stairs. He complained that the condition of the barrel, namely that it did not have handles, caused him to fall backwards down the stairs, hurting his back and testicle. McBride further alleged that TDCJ-ID's employees were negligent in their implementation of the entity's policy of maintaining a safe workplace, which proximately caused his injuries.

In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See TEX.R. CIV. P. 166a(c); Cate v. Dover Corp., 790 S.W.2d 559, 562 (Tex.1990). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of a material fact are resolved against the movant. Cate, 790 S.W.2d at 562; Acker v. Texas Water Comm'n., 790 S.W.2d 299, 301-02 (Tex.1990). We must,

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therefore, view the evidence and its reasonable inferences in the light most favorable to the nonmovant. Great American Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex.1995). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great American, 391 S.W.2d at 47.

When a defendant moves for summary judgment based upon an affirmative defense, it bears the burden to expressly present and conclusively prove all elements of the affirmative defense as a matter of law so that no genuine issue of material fact exists. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). The movant-defendant must come forward with summary judgment evidence with respect to each element of the affirmative defense. Id. Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a summary judgment motion filed on the basis of an affirmative defense. Palmer v. Enserch Corp., 728 S.W.2d 431, 437 (Tex.App.--Austin 1987, writ ref'd n.r.e.).

When the trial court does not state the specific grounds on which the summary judgment was granted, the reviewing court must consider whether any theories set forth in the motion will support a summary judgment. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). Summary judgment must be affirmed if any of the theories advanced are meritorious. Id.

In the instant case, the trial court did not specify upon what basis it granted judgment for TDCJ-ID. Consequently, we must address and evaluate every theory set forth in the governmental entity's motion to determine if summary judgment was proper. TDCJ-ID's theories were as follows: 1) McBride failed to comply with the mandatory notice provision of the Act; 2) McBride failed to state a cause of action under the Act; 3) TDCJ-ID is entitled to sovereign immunity; 4) TDCJ-ID's employee is not liable to McBride as a matter of law; 5) TDCJ-ID's employee is entitled to official immunity, and the official immunity of the employee precludes TDCJ-ID's respondeat superior liability; and 6) TDCJ-ID's acts were discretionary, which are exempted from the waiver of sovereign immunity.

In his first point of error, McBride contends that the trial court erred in granting summary judgment on his failure to give notice pursuant to the Act. In order to bring a claim under the Act, a plaintiff must comply with TEX. CIV. PRAC. & REM.CODE § 101.101 (Vernon 1986), which mandates that a governmental unit be notified of a claim against it not later than six months after the day that the incident giving rise to the claim occurred. In its summary judgment evidence, TDCJ-ID offered the affidavit of Charles French, the Assistant General Counsel for the TDCJ-ID, who testified that "to the best of my knowledge and belief, this office has not received any Notice of Claims from this Plaintiff." McBride objected that French testified without personal knowledge, and that he was not competent to testify to the facts stated in the affidavit. McBride then offered his own affidavit, stating that he had sent notice to James A. Collins, Director and Administrative Head of the TDCJ-ID, and James A. Shaw, Warden of Coffield Unit of TDCJ-ID, as provided by the Act. Thus, a fact issue remained and TDCJ-ID failed to meet its burden as to notice. TDCJ-ID is not entitled to judgment on this affirmative defense as a matter of law. In further support of this holding, we note that TDCJ-ID neither pled lack of notice as an affirmative defense, nor did it specially except to McBride's failure to plead notice in his First Amended Petition. McBride did plead notice in his Second Amended Petition, which he filed after TDCJ-ID filed its Motion for Summary Judgment, but before the court ruled on the motion. TDCJ-ID neither amended its answer to include a verified denial that notice was given, as required by TEX.R. CIV. P. 93(12) nor did it file a motion to strike McBride's pleading as being untimely. Consequently, TDCJ-ID waived

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lack of notice as an affirmative defense. We sustain point of error one.

In his second point of error, McBride complains that the trial court erred in granting summary judgment for failing to state a cause of action within the Act. Section 101.021 of the Act states the following: "A governmental unit in the state is liable for: ... (2) personal injury ... 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...