Steele v. Barbian, 9250
| Decision Date | 12 August 1981 |
| Docket Number | No. 9250,9250 |
| Citation | 620 S.W.2d 875 |
| Parties | Kathy STEELE and Ross Bell, Appellants, v. James BARBIAN, Appellee. |
| Court | Texas Court of Appeals |
Judge & Brown, John Judge, Amarillo, for appellants.
Underwood, Wilson, Sutton, C. A. Stein, Berry, Stein & Johnson, Amarillo, for appellee.
Kathy Steele and Ross Bell suffered a take-nothing summary judgment in their suit against James Barbian, a City of Amarillo employee, to recover property damages caused by his negligent failure to provide water to a fire hydrant. Because Barbian conclusively established his affirmative defenses of a statutory bar and governmental immunity, we affirm.
In 1976, the City of Amarillo undertook to improve and widen the roadway of Western Street. It was necessary to move fire hydrants at several locations, one of which was at the corner of Western Street and Scotty Drive. The relocation entailed shutting off water to the hydrant, installing additional pipe, and resetting the fire hydrant in cement. Water could not be restored to the hydrant for the several days it took the cement to set.
The Western Street-Scotty Drive fire hydrant was relocated in November of 1976. A short distance from the relocation, at 4205 Scotty Drive, Ross Bell owned real property improved with a house situated thereon. Kathy Steele leased the property from Bell.
On 6 August 1977, Bell's house caught fire and the City's fire department responded to a summons. Upon connecting hoses to the relocated Western Street-Scotty Drive fire hydrant, the firemen discovered there was no water supplied to the hydrant because, it was later determined, the water valve was closed. By the time the firemen secured a supply of water at a hydrant located approximately one thousand feet away and returned to the fire, the fire had destroyed the house.
Steele and Bell instituted suit against, and to recover their property damages from, the City of Amarillo, road contractor Ivan Dement and the State Department of Highways and Public Transportation. The City was charged with liability under the Texas Tort Claims Act 1 for the negligence of its fire department and water department employees in these respects: the fire department employees' failure to fight the fire in accordance with generally accepted fire-fighting principles, the water department employees' failure to notify the fire department that the hydrant was dry, and both department's employees' failure to see that the water supply was restored to the hydrant.
The City moved for a summary judgment on the ground of its governmental immunity. The City's ground was that the cause of action alleged against it is based solely on the negligence of its agents and employees in the performance of a governmental function, i. e., providing fire protection, and such cause of action is barred by the doctrine of governmental immunity. Steele and Bell responded to the motion.
The court severed the cause of action alleged against the City, granted the City's motion, and rendered a take-nothing summary judgment against Steele and Bell. No appeal was taken from the judgment and it became final. Subsequently, Steele and Bell took a nonsuit in their pending action against the other two original defendants.
Thereafter, Steele and Bell filed the present suit against Barbian in the same district court. They pleaded that their property damages were caused when Barbian, while in the course and scope of his employment as water distribution supervisor of the City's water department and performing proprietary functions, was negligent in failing to: (1) reconnect the water supply to the hydrant, (2) test the hydrant to see that the water supply had been properly reconnected, (3) properly supervise the water department field crew responsible for removal of the hydrant, (4) advise the fire department that the hydrant was dry, (5) reorder reconnection of the water supply to the hydrant in its new location, (6) order proper and appropriate tests to determine that the water supply to the hydrant had been properly reconnected, (7) maintain a proper and appropriate checklist, or other systematic means of insuring that the water supply to the hydrant would be properly reconnected, and (8) exercise ordinary care in the performance of his duties with the City water department distribution section.
Barbian answered and pleaded the affirmative defenses of the doctrines of governmental immunity, res judicata, collateral estoppel and estoppel by judgment. Following his reply to requests for admissions and interrogatories, Barbian's motion for summary judgment came before the court. The grounds of his motion were that Steele's and Bell's pleaded cause of action is barred by (1) the doctrine of governmental immunity, and by (2) the doctrines of res judicata, collateral estoppel and estoppel by judgment. The latter three doctrines were founded, in the main, on a provision included in the Texas Tort Claims Act in these words:
Sec. 12. (a) The judgment or settlement in an action or claim under this Act shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of a unit of government whose act or omission gave rise to the claim.
Steele and Bell submitted copies of the pleadings filed and the summary judgment rendered in their prior suit against the City, and then responded to Barbian's motion for summary judgment. Their response was that Barbian had not carried his burden of proof to show his entitlement to judgment as a matter of law on the grounds...
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Holland ex rel. Holland v. City of Houston
...function can be charged with no greater responsibility than that imposed upon the governmental unit." Id. (citing Steele v. Barbian, 620 S.W.2d 875, 878 (Tex.Civ.App. — Amarillo 1981, no writ)). "The purpose of § 101.106 is to protect government employees from individual liability for acts ......
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Thomas v. Oldham
...1992, no writ); City of Bedford v. Schattman, 776 S.W.2d 812, 813 (Tex.App.--Fort Worth 1989, orig. proceeding); Steele v. Barbian, 620 S.W.2d 875, 877 (Tex.Civ.App.--Amarillo 1981, no writ). This Court, however, has never addressed the extent to which section 101.106 might provide broader ......
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Brown v. Prairie View A & M University
...act or omission gave rise to the claim. Tex.Civ.Stat.Ann. art. 6252-19, § 12(a) (Vernon 1970). In addition, Dr. Owens relies on Steele v. Barbian, 620 S.W.2d 875 (Tex.Civ.App.-Amarillo 1981, no writ). That case holds summary judgment bars subsequent action under the statute and does not, in......
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City of Houston v. Lee
...exercised by a municipality. Gates v. City of Dallas, 704 S.W.2d 737 (Tex.1986). Such immunity extends to public officials. Steele v. Barbian, 620 S.W.2d 875, 878 (Tex.Civ.App.--Amarillo 1981, no writ); Kelly v. Galveston County, 520 S.W.2d 507, 512 (Tex.Civ.App.--Houston [14th Dist.] 1975,......