Smith v. University of Texas
| Decision Date | 04 January 1984 |
| Docket Number | No. 13829,13829 |
| Citation | 664 S.W.2d 180 |
| Parties | 16 Ed. Law Rep. 350 James P. SMITH, Appellant, v. The UNIVERSITY OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
Claude E. DuCloux, Robinson, Felts, Starnes & Latting, Austin, for appellant.
Mark White, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for appellee.
Before PHILLIPS, C.J., and EARL W. SMITH and GAMMAGE, JJ.
Under the Texas Tort Claims Act 1 (hereafter, the Act), appellant, James P. Smith, sued The University of Texas (hereafter the University) and the National Collegiate Athletic Association (hereafter NCAA) for personal injuries received by Smith while serving as an appointed, unpaid and volunteer official at the NCAA National Track and Field Meet conducted under the auspices of NCAA by the University at Memorial Stadium in Austin. Smith took a nonsuit as to NCAA. The University's motion for summary judgment was sustained by the trial court and judgment was entered dismissing Smith's suit against the University.
In this appeal, Smith contends that the trial court erred in granting the University's motion for summary judgment dismissing his petition for the reasons that: (1) there is no requirement under the Act that the tangible real or personal property involved in the tort be defective and (2) a claim under the Act can arise through the negligence of an unpaid agent duly appointed by, and carrying out the duties of, a paid State employee. We agree. The judgment of the trial court is reversed and this cause is remanded for trial.
Section 3 of the Act provides in part Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this State.... (emphasis added)
Section 2(3) defines "officer, agent, or employee" as follows:
"Officer, agent, or employee" shall mean every person who is in the paid service of any unit of government, by competent authority, whether full or part-time, whether elective or appointive, and whether supervisory or nonsupervisory, it being the intent of the Legislature that this Act should apply to every person in such service of a unit of government, save and except as herein provided....
Tex.R.Civ.P.Ann. 166-A (1976 & Supp.1983) provides:
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(b) ... A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.
(c) Motion and Proceedings Thereon. The motion for summary judgment shall state the specific grounds therefor.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of the damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues as expressly set out in the motion or in an answer or any other response....
The burden of demonstrating the lack of a genuine issue of material fact is upon the movant, and all doubts are resolved against movant. 4 McDonald, Texas Civil Practice, § 17.26.12(IV), at 174 (Rev.Ed.1971); Town North National Bank v. Broaddus, 569 S.W.2d 489, 494 (Tex.1978); Mays v. Foremost Insurance Company, 627 S.W.2d 230, 233 (Tex.App.1981, no writ).
In its motion for summary judgment the University contends that summary judgment should be granted on these grounds:
1. The sole allegations of negligence in plaintiff's original petition concern the alleged negligence of certain officials in the discharge of their duties in failing to properly supervise and in failing to promulgate rules and regulations. The allegations contained in the petition fail to allege a valid cause of action against the University under the laws of Texas.
2. All pleadings in the case and the deposition of plaintiff, Smith, are incorporated by reference in the motion for summary judgment for all purposes. The pleadings and the testimony of the plaintiff show that plaintiff has failed to allege a cause of action under the laws of the State of Texas.
3. That both Smith and Drolla (the head supervisor of the shot-put event) were "volunteer officials" and were not officers, agents or employees of the University within the meaning of the Act. Neither Smith nor Drolla received any pay or compensation for their voluntary services. Smith's sole contention, as shown by exhibit "A" (an excerpt from his deposition) was that he was injured because of the negligence of volunteer official John Drolla; Smith was not alleging or contending that any other act or omission on the part of the University caused his injuries. Thus, the alleged negligent acts and omissions of Drolla do not state a cause of action under the Act.
4. There is no allegation by Smith that he was injured because of any defective or deficient property or from the use of any property which was inappropriate for the purposes for which it was being used.
As noted, the University's motion for summary judgment incorporates by reference all pleadings in the case and the deposition of Smith as a part of the motion. In addition, attached to the motion were two exhibits. Exhibit "A" contains an excerpt from the deposition of Smith. The excerpt thereof relied upon by the University in its brief reads:
Q. And it is your sole contention in this lawsuit that the act of John Drolla just before this accident occurred is what caused you to be hurt?
A. Yes, sir.
Q. And that is the only reason you were hurt?
A. Yes, sir.
Exhibit "B" is an affidavit by Cleburne Price, Jr., reciting that he is, and was at all times pertinent to the lawsuit, head track coach at the University; that he was "in charge of the NCAA National Track and Field Championships held at The University of Texas at Austin in June, 1980;" that Smith and Drolla "were among many volunteer officials who participated in the meet"; that "[n]either Smith nor Drolla was paid or in any way compensated for their participation as field event officials"; and that injuries to Smith were caused by a shot thrown by a Texas A & M University student who was not employed by or in any way compensated by the University.
In Smith's reply to the University's motion for summary judgment, he asserts that his petition encompasses more than the negligence of John Drolla because the petition alleges the failure of the University to properly supervise the shot-put events and the failure to promulgate or require rules and regulations of conduct reasonably calculated to protect the participants, officials, and others from harm.
Smith, in his reply, enumerates facts developed in discovery (Smith's request for admissions and interrogatories propounded to the University, and the University's answers to such, which are found in the transcript) as follows:
1. Price was the meet director of the NCAA track and field championships held at the University June 3-7, 1980.
2. Price was an agent or employee of the University at all times during the track meet.
3. Price was responsible for the overall organization and conduct of the track meet.
4. Price appointed John Drolla to act as head official of the shot-put event and determined his qualifications to so act.
5. The facilities of Memorial Stadium are governed generally by state law and rules and regulations of the University System Board of Regents.
6. The conduction of the shot-put event involved the direction of the use of state property and facilities. (emphasis added)
Smith's reply further alleges that Price was acting within the scope of his employment while performing all duties incident to running the track meet, and that he was a competent authority who could assign duties to others, such as John Drolla.
Smith further asserts that in § 13 of the Act, the Legislature has required that the Act be construed liberally to achieve the intention of the Act, and that to allow a State employee, with authority, duty and ability to perform a function, to delegate that duty to an unpaid volunteer and thereby avoid liability for injuries resulting from the negligent performance of the duty, contradicts the purposes of the Act.
Smith further contends, in his reply, that § 3 of the Act affords a cause of action for "[p]ersonal injuries proximately caused by ... some use of tangible property, real or personal, under circumstances where such unit of government would be liable to the claimant if [the unit of government were] a private person." (emphasis added).
More specifically, Smith's reply to the motion for summary judgment alleges that "[t]he injuries sustained by James P. Smith arose from the improper direction of the use of state property, namely the shot put sector," and that it was the intent of the Legislature "to make units of government liable for the injuries proximately caused by the negligence in the use of property where liability would...
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