Texas Department of Transportation v. Able

• Decision Date: 16 November 2000
• Docket Number: No. 99-0108,99-0108
• Citation: 35 S.W.3d 608,43 Tex.Sup.Ct.J. 1055
• Parties: (Tex. 2000) Texas Department of Transportation, Petitioner v. Luke W. Able, Ben Dees and George Hans Knoll, coexecutors of the Estate of Margaret Able, deceased, Ramona Lee Dees, and Sylvia Jane Knoll, Respondents
• Court: Texas Supreme Court

Page 608

35 S.W.3d 608 (Tex. 2000)

Texas Department of Transportation, Petitioner v. Luke W. Able, Ben Dees and George Hans Knoll, coexecutors of the Estate of Margaret Able, deceased, Ramona Lee Dees, and Sylvia Jane Knoll, Respondents

No. 99-0108

IN THE SUPREME COURT OF TEXAS

Argued November 7, 1999.

Decided July 6, 2000.

Rehearing Overruled Nov. 16, 2000.

On Petition for Review from the Court of Appeals for the First District of Texas

Justice Gonzales delivered the opinion of the Court, in which Justice Enoch, Justice Baker, Justice Abbott, Justice Hankinson and Justice O'Neill joined.

A jury found that the Texas Department of Transportation (TxDOT) did not negligently cause a fatal automobile accident on a high occupancy vehicle lane. We must decide whether the State has waived sovereign immunity under the Texas Tort Claims Act when a state agency has entered into a joint enterprise with another governmental unit that is found to have negligently caused the accident. The jury found that there was a joint enterprise and the trial court determined the State waived sovereign immunity. The court of appeals affirmed. 981 S.W.2d 765. We hold that a governmental unit that enters into a joint enterprise can be liable under the waiver of sovereign immunity found in the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code § 101.021(2). Accordingly, we affirm the judgment of the court of appeals.

I. Background

On the evening of December 7, 1993, Dr. Luke Able and his wife Margaret were traveling in their minivan outbound from Houston, Texas on the U.S. Highway 290 high-occupancy vehicle or HOV lane. The Ables collided head-on with a vehicle driven by Jerry Huebner with its lights off, heading inbound the wrong direction, in the same HOV lane. Both Margaret Able and a passenger in Huebner's vehicle were killed. Dr. Able and Huebner were severely injured. Later that night at the hospital, Huebner gave a statement to Harris County Deputy Sheriff J. Keele about the accident. According to Officer Keele's supplemental accident report, Huebner remembered getting on the HOV lane traveling outbound, turning around in a park-and-ride, proceeding to a traffic light that turned from red to green and then continuing on his way. Huebner stated that this was the last thing he remembered.

Dr. Able, Margaret Able's estate, and Margaret Able's survivors, Ramona Lee Dees and Sylvia Jane Knoll, filed suit against TxDOT, the Houston Metropolitan Transit Authority (Metro), the City of Houston, and Harris County for negligence and gross negligence. The plaintiffs sued the governmental entities individually and as participants in a joint enterprise. They alleged a joint enterprise based on (1) agreements between the governmental entities, including a written agreement between TxDOT and Metro entitled "Transitways Master Operations and Maintenance Agreement" (Master Agreement), (2) common law, and (3) various provisions of the Texas Civil Practice and Remedies Code. The plaintiffs non-suited Harris County before trial, and the case proceeded against the three remaining governmental entities.

At trial, the court excluded Huebner's statements in Officer Keele's supplemental accident report. But the jury heard testimony from the plaintiffs' expert on cross examination about the possibility that Huebner intentionally drove the wrong way on the HOV lane on the night of the accident. At the trial's conclusion, the jury was asked to decide which, if any, defendants were negligent and to apportion the percentage of negligence among the defendants. The jury found that (1) Metro and Huebner, who was not a defendant, were negligent, (2) Metro was grossly negligent, (3) TxDOT and the City of Houston were not negligent, and (4) TxDOT and Metro were engaged in a joint enterprise on the date of the accident. The jury apportioned fifty percent of the negligence to Metro and the remaining fifty percent to Huebner.

The jury awarded $1,000,000 to Dr. Able, $750,000 each to Ramona Dees and to Sylvia Knoll for the loss of their mother, and $200,000 to the Estate of Margaret Able. Based on the jury's findings, the trial court rendered a judgment against Metro for $200,000, the maximum award allowed under the Tort Claims Act, and a judgment that the plaintiffs take nothing from the City of Houston and Harris County. The trial court also rendered a judgment against TxDOT for the statutory maximum award of $500,000, based on the jury's finding that TxDOT and Metro were engaged in a joint enterprise. Of this $500,000, the court awarded $250,000 to Dr. Able and $250,000 jointly to Ramona Dees, Sylvia Knoll and the Estate of Margaret Able.

Only TxDOT appealed. In the court of appeals, TxDOT argued that it did not waive its sovereign immunity and that a judgment could not be rendered against it because the jury found that TxDOT was not negligent. TxDOT further complained that there was no evidence to support the jury's finding that TxDOT and Metro were engaged in a joint enterprise and that the trial court improperly excluded statements by Huebner that resulted in harmful error. The court of appeals overruled all of TxDOT's points of error and affirmed the trial court's judgment. 981 S.W.2d 765. TxDOT petitioned this Court for review, and we granted the petition.

II. Discussion

TxDOT makes the same arguments here that it asserted in the court of appeals. We turn first to TxDOT's complaint that there has been no waiver of sovereign immunity in the present case. The general rule is that the State has sovereign immunity unless it has been waived. See Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998); Director of Dep't of Agric. & Env't v. Printing Indus. Ass'n, 600 S.W.2d 264, 265-66 (Tex. 1980). This immunity applies to both the State and its agencies such as TxDOT. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); Tex. Civ. Prac. & Rem. Code § 101.001(2).

A. Section 101.021

Section 101.021 of the Texas Civil Practice and Remedies Code provides a limited waiver of sovereign immunity:

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 his scope of 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; and

(2) personal injury and death 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. Prac. & Rem. Code § 101.021. Section 101.021 has been interpreted to waive sovereign immunity in three general areas: "use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property." Lowe, 540 S.W.2d at 298. The plaintiffs and TxDOT agree that subsection (1) of section 101.021 does not apply to this case. Therefore, the only issue before this Court involving waiver of sovereign immunity is the interpretation of subsection (2) of section 101.021.

TxDOT argues that the "so caused" language of subsection (2) allows liability only for the negligence or wrongful acts or omissions caused by its own employees. TxDOT cites this Court's construction of the "so caused" language, used in a prior version of section 101.021, to mean "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." Lowe, 540 S.W.2d at 299; accord Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex. 1983) (interpreting "so caused" to mean that "[t]he proximate cause of the damages for death or personal injury must be the negligence or wrongful act or omission of the officer or employee acting within the scope of his employment or office."). Because the jury found no negligence by TxDOT or its employees here, TxDOT asserts it cannot be liable as a matter of law under section 101.021(2).

Furthermore, TxDOT argues it cannot be liable for the negligent acts of Metro's employees. The Tort Claims Act defines employee as:

a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority, but does not include an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.

Tex. Civ. Prac. & Rem. Code § 101.001(1). TxDOT contends that under this definition, Metro employees are not employees of TxDOT for purposes of section 101.021(2); accordingly, TxDOT cannot be vicariously liable for Metro's negligence.

We disagree with TxDOT's interpretation of the "so caused" language in section 101.021(2). This Court has previously held that liability under subsection (2) can arise under different theories:

[S]ubsection 2 is broader than subsection 1 in that it encompasses governmental liability based on respondeat superior for misuse of tangible personal property other than motor-driven vehicles and equipment. Subsection 2 is also broader because it encompasses governmental liability for a condition of real property or tangible personal property. Thus, in addition to liability based on principles of respondeat superior, subsection 2 includes governmental liability for premise defects.

DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex. 1995). These theories of liability are based on different standards of care owed - some of which are not dependent upon the actions of any employee. Thus, we have stated that the limiting language in subsection (1)(b), requiring the employee to be personally liable to the claimant under Texas law, would be inapposite in the context of subsection (2). See DeWitt, ...