law-TTCA cases

RECENT TEXAS TORT CLAIMS ACT APPEALS DECIDED
BY THE TEXAS SUPREME COURT WITH OPINION (Tex. 2008)

TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam)         
(TTCA, dangerous road conditions, special defect) (TTCA, Texas Tort Claims Act suit, exception to sovereign
immunity, dangerous road conditions, loose gravel, special defect, premises defect)
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE
ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF
OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County;
10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court.
Per Curiam Opinion

City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road
condition, uneven pavement, plea to the jurisdiction)

UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous
condition, ostrich defense, water hose across sidewalk)   

Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(O’Neill)
(public employment, wrongful termination claim, TTCA, tort claims, TCHRA claim, immunity waiver)

City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous
road condition, failure to close flooded road, drowning of children in car that was swept away)

Stephen F. Austin State Univ. v. Flynn, No. 04-0515 (Tex. Jun. 29, 2007)(Medina)(Recreational Use
Statute, TTCA, plea to the jurisdiction, sovereign immunity; suit dismissed as jurisdictionally barred)
Justice Hecht wrote a concurring opinion in Stephen F. Austin State University v. Flynn


PETITIONS DENIED BY THE TEXAS SUPREME COURT
IN TORT CLAIMS ACT APPEALS

08-0594          
TRUDY LEGGETT, INDIVIDUALLY AND AS HEIR OF NATHAN LEGGETT, DECEASED v. CITY OF AUSTIN,
TEXAS; from Travis County; 3rd district (03-07-00345-CV, 257 SW3d 456, 06-12-08)(TTCA, drowning death,
flooded street, sovereign immunity)

07-0457  
LINDA THOMAS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAMON
HOLLIMON, DECEASED AND ASHLEY DOMINQUE HOLLIMON, INDIVIDUALLY v. GLENDA PIERSON; from
Walker County; 1st district (01-04-01084-CV, ___ SW3d ___, 04-19-07, pet. denied Aug. 2008)
(TTCA, Tort Claims Act, prisoner killing by guards) as amended, as reinstated

08-0330  
DALLAS COUNTY, TEXAS v. BRAD ERNEST NADEAU; from Dallas County; 5th district (05-07-00236-CV, ___
SW3d ___, 02-05-08, pet. denied Aug. 2998) (TTCA, notice of claim requirement, plea to the jurisdiction denied)
Dallas County, Texas appeals the trial court's denial of its motion to dismiss and plea to the jurisdiction. In a
single issue, Dallas County argues the trial court erred in denying its motion to dismiss and plea to the
jurisdiction because Nadeau failed to give notice of his suit under section 89.0041 of the Texas Local
Government Code. We affirm the trial court's order denying Dallas County's motion to dismiss and plea to the
jurisdiction.

08-0305  
MARCUS A. GIPSON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF GWENDOLYN FOSTER,
DECEASED, ET AL. v. CITY OF DALLAS; from Dallas County; 5th district
(05-07-00628-CV, 247 SW3d 465, 03-11-08, pet. denied Jun 2008) (TTCA, immunity, firefighters, emergency
services)
Appellants challenge the trial court's order granting the City of Dallas's plea to the jurisdiction and dismissing
their lawsuit, in which they alleged a Dallas Fire Rescue unit's negligently failed to respond promptly to a medical
emergency. Concluding there is no waiver of governmental immunity under the Texas Tort Claims Act, and
therefore, the trial court did not err in granting the City's plea to the jurisdiction, we resolve the Gipsons' issue
against them and affirm the trial court's order.
Having concluded that the City retains governmental immunity pursuant to section 101.021(1) and (2), we need
not address whether the exceptions to the waiver of immunity pursuant to sections 101.055(2) and 101.062(b)
apply here. We resolve the Gipsons' issue against them and affirm the trial court's order granting the City's plea
to the jurisdiction and dismissing the Gipsons' lawsuit.

08-0184  
TY BOTKIN AND MICHELLE BOTKIN, INDIVIDUALLY AND AS NEXT FRIENDS OF S.B., A MINOR v. KERRVILLE
INDEPENDENT SCHOOL DISTRICT; from Kerr County; 4th district (04-07-00733-CV, ___ S.W.3d ___, 02-06-08,
pet. denied 2008) (TTCA, plea to jurisdiction sustained)
S. B. was injured while driving through a traffic control gate at KISD's premises.
REVERSED AND RENDERED Appellant Kerrville Independent School District ("KISD") brings this interlocutory
appeal stemming from the trial court's order denying its plea to the jurisdiction on Appellees Ty Botkin's and
Michelle Botkin's claims (collectively "Botkins"). In two issues, KISD states that the trial court erred in denying its
plea to the jurisdiction because (1) the Botkins' alleged facts and claims do not fall within the limited waiver of
immunity for school districts and (2) they failed to exhaust their administrative remedies. Because we hold that
the Botkins failed to invoke the trial court's subject matter jurisdiction pursuant to the Texas Tort Claims Act, we
reverse the judgment of the trial court and render judgment dismissing the case for lack of jurisdiction. * * *
The Botkins had the burden to affirmatively demonstrate an express waiver of immunity. Because the Botkins'
allegations are unrelated to KISD's use or operation of a motor vehicle, we conclude that the Botkins' claims do
not fall within the waiver of immunity for school districts under the Act. Accordingly, the trial court erred in denying
KISD's plea to the jurisdiction. We sustain KISD's first issue.

08-0222  
PEGGY JOHNSON v. JOHNSON COUNTY, TEXAS; from Johnson County; 10th district
(10-07-00095-CV, ___ S.W.3d ___, 01-30-08, pet. denied May 2008) (prisoner suicide, TTCA, immunity)
Eugene Johnson hanged himself with the mattress cover in a Johnson County jail cell.  Appellant brought suit
against Johnson County, and now appeals the trial court’s dismissal of her cause of action.  We affirm * * *
Johnson County’s incarcerating Eugene Johnson in a jail cell containing a mattress cover did not constitute a use
of that property proximately causing his death within the meaning of Civil Practice and Remedies Code Section
101.021.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021.  Evidence favorable to Appellant being taken as
true, the trial court did not err in granting Johnson County’s plea to the jurisdiction and dismissing Appellant’s
cause of action.[3]  We overrule Appellant’s issue.

07-0949  
DALLAS COUNTY, TEXAS v. FLORECE COUTEE, ET AL.; from Dallas County; 5th district
(05-06-01695-CV, 233 SW3d 542, 08-28-07, pet. denied April 2008)(TTCA plea to the jurisdiction properly
denied)
In this accelerated, interlocutory appeal, appellant Dallas County challenges the trial court's order denying its
motion to dismiss and plea to the jurisdiction in a suit brought by appellees Florece Coutee, Dajuanna Hamilton,
and Tonjou Smith under the Texas Tort Claims Act. The appellees sued for injuries allegedly resulting from a
vehicle collision.
In the sole issue presented, Dallas County contends the trial court erred in denying its motion to dismiss and
plea to the jurisdiction because appellees did not provide written notice of the suit to the county judge and district
attorney having jurisdiction to defend the county in a civil suit within thirty business days after the suit was filed.
Dallas County contends this notice is required by section 89.0041 of the Texas Local Government Code. We
conclude section 89.0041 of the Texas Local Government Code is not applicable to this case. We decide against
Dallas County on its sole issue.

08-0184  
TY BOTKIN AND MICHELLE BOTKIN, INDIVIDUALLY AND AS NEXT FRIENDS OF S.B., A MINOR v. KERRVILLE
INDEPENDENT SCHOOL DISTRICT; from Kerr County; 4th district (04-07-00733-CV, ___ S.W.3d ___, 02-06-08,
pet. denied)(TTCA, plea to jurisdiction sustained)
Appellant Kerrville Independent School District ("KISD") brings this interlocutory appeal stemming from the trial
court's order denying its plea to the jurisdiction on Appellees Ty Botkin's and Michelle Botkin's claims (collectively
"Botkins"). In two issues, KISD states that the trial court erred in denying its plea to the jurisdiction because (1)
the Botkins' alleged facts and claims do not fall within the limited waiver of immunity for school districts and (2)
they failed to exhaust their administrative remedies. Because we hold that the Botkins failed to invoke the trial
court's subject matter jurisdiction pursuant to the Texas Tort Claims Act, we reverse the judgment of the trial
court and render judgment dismissing the case for lack of jurisdiction.


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