

 
 

 

NUMBER 13-08-00146-CV


COURT OF APPEALS



THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG



RAQUEL SALINAS,	Appellant,

v.

THE CITY OF BROWNSVILLE, 	Appellee.
  


On appeal from the County Court at Law No. 3

of Cameron County, Texas.

 


MEMORANDUM OPINION


Before Justices Rodriguez, Garza, and Benavides

Memorandum Opinion by Justice Benavides

	Raquel Salinas, appellant, appeals from the trial court's granting of a plea to the
jurisdiction in favor of the City of Brownsville (the "City"), appellee.  Salinas argues that the
City's governmental immunity is waived by the Texas Tort Claims Act ("TTCA") because
she properly pleaded facts conveying jurisdiction on the trial court and no emergency
exemption applies.  See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Vernon 2005
& Supp. 2009).  We affirm. (1)
I.  Background

	On May 1, 2006, a fire started in Salinas's home.  Salinas, her daughter, and her
niece were inside the home.  Salinas and her daughter escaped the fire, but Salinas was
not sure whether her niece also made it out of the house.  She went back inside the
smoke-filled house but was quickly overcome by the fumes and had to leave.  She sat
down on the concrete curb at the street.  Her niece made it safely out of the house through
a different door.
	The City's fire department arrived and extinguished the fire, and the City's
ambulance service arrived after the fire was suppressed.  The emergency medical
technicians ("EMTs") from the ambulance service raised Salinas from her seat on the curb
and had her sit on a washing machine, which was sitting nearby at the curb. (2) 
	The EMTs examined Salinas and determined that she was suffering from smoke
inhalation, which was exacerbated by Salinas's cigarette smoking habit.  The EMTs left
Salinas sitting on top of the washing machine, and while they were away, Salinas fainted,
fell off of the washing machine, and injured her back.
	On December 13, 2006, Salinas sued the City as well as other defendants not
parties to this appeal, alleging that the City's negligence caused her injuries.  The City
answered with a general denial, and then, on September 21, 2007, the City filed an
amended answer asserting the affirmative defense of sovereign immunity.  On January 2,
2008, the City filed its first plea to the jurisdiction contending that Salinas failed to plead
jurisdictional facts sufficient to bring her claim under the TTCA.  The trial court permitted
Salinas to replead, and on February 4, 2008, Salinas filed her "First Amended Original
Petition."  In that petition, Salinas pleaded additional jurisdictional facts attempting to bring
her lawsuit properly under the TTCA. 
	On February 5, 2008, the City filed its "Plea to the Jurisdiction to Plaintiff's First
Amended Petition" and argued that the City's governmental immunity was not waived by
the TTCA.  See id. § 101.021(2) (Vernon 2005).  The City argued that Salinas's negligence
cause of action against the City did "not fit within" the TTCA's waiver of its immunity; and,
therefore, the trial court did not have subject-matter jurisdiction over Salinas's claim. 
Salinas filed a response, and the trial court granted the City's plea to the jurisdiction.  This
appeal ensued.
II.  Standard of Review

	A plea to the jurisdiction challenges the court's subject-matter jurisdiction and
comprises a question of law which we review de novo.  See Tex. Natural Res.
Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Bland Indep. Sch. Dist.
v. Blue, 54 S.W.3d 547, 554 (Tex. 2000).  A court lacks subject-matter jurisdiction over a
governmental defendant when that defendant is immune from suit.  Tex. Ass'n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  
	To determine subject-matter jurisdiction, we begin with the pleadings.  Tex. Dep't
of Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  The plaintiff must plead facts
affirmatively demonstrating the court's subject-matter jurisdiction.  Tex. Air Control Bd., 852
S.W.2d at 446.  We are to construe the pleadings liberally, look to the pleader's intent, and
accept the pleader's factual assertions as true.  See Miranda, 133 S.W.3d at 226, 228. 
When the plea to the jurisdiction challenges the existence of jurisdictional facts, we resolve
the jurisdictional facts by considering the evidence presented by the parties.  Bland, 54
S.W.3d at 555.
	When the evidence presented creates a fact issue, the plea to the jurisdiction must
be denied and the fact question answered by the fact finder.  Miranda, 133 S.W.3d at 227-28. "[I]f the relevant evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." 
Id. at 228.  This standard is similar to that of a traditional motion for summary judgment. 
Id.  "[A]fter the state asserts and supports with evidence that the trial court lacks subject[-]matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits
and subject[-]matter jurisdiction are intertwined, to show that there is a disputed material
fact regarding the jurisdictional issue."  Id.  We do not "weigh the claims' merits but must
consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional
inquiry."  County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).  
III.  Applicable Law

	Neither party contests that the City is a governmental entity.  See Tex. Civ. Prac.
& Rem. Code Ann. § 101.001(3) (Vernon 2005).  As a governmental entity, the City is
entitled to governmental immunity (3) and can only be sued to the extent that its immunity has
been waived.  See Brown, 80 S.W.3d at 555.  In the tort context, the TTCA "expressly
waives . . . immunity in three general areas:  'use of publicly owned automobiles, premises
defects, and injuries arising out of conditions or use of property.'" Id. (quoting Tex. Dep't
of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting Lowe v. Tex. Tech Univ., 540
S.W.2d 297, 298 (Tex. 1976))).  
	Section 101.021 of the TTCA specifically provides that a governmental entity is
liable for "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 Ann. § 101.021(2).  To
come within the TTCA's waiver of governmental immunity, "a claimant must allege that (1)
the use or misuse of tangible personal property (2) proximately caused the personal injury
or death.  Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d 345, 348 (Tex.
App.-Amarillo 2008, pet. denied) (citing Dallas County Mental Health & Mental Retardation
v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998)).
	"Tangible property is understood to be property that is capable of being handled,
touched or seen."  Robinson v. City of San Antonio, 727 S.W.2d 40, 42 (Tex. App.-San
Antonio 1987, writ ref'd n.r.e.); see Univ. of Tex. Med. Branch at Galveston v. York, 871
S.W.2d 175, 179 (Tex. 1994) (noting that "tangible" connotes something that can be seen
and touched and "intangible" means "an abstract concept, lacking corporeal, physical, or
palpable qualities").  "'Use' means 'to put or bring into action or service; to employ for or
apply to a given purpose.'"  Mullins v. Estelle High Sec. Unit, 111 S.W.3d 268, 272 (Tex.
App.-Texarkana 2003, no pet.) (quoting Tex. Natural Res. Conservation Comm'n v. White,
46 S.W.3d 864, 869 (Tex. 2001)).  "Property does not cause injury if it does no more than
furnish the condition that makes the injury possible."  Bossley, 968 S.W.2d at 343 (citing
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 776 (Tex. 1995), abrogated on other
grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45-46 (Tex. 2007)).
IV.  Analysis

	On appeal, Salinas first contends that her pleadings properly conferred jurisdiction
on the trial court.  She then argues that no emergency exception applies.
A.	Salinas's Pleadings
	In her "First Amended Original Petition," Salinas asserted that the City, through the
EMTs,
	is liable for failing to properly position Plaintiff in a safe place while she was
being examined, moving Plaintiff from a safe position to a dangerous position
to examiner [sic] her, failing to monitor Plaintiff to prevent her from falling in
the event that she fainted, abandoning her in a dangerous position where
she could fall in the event that she fainted.

Salinas alleges that in placing her on the washing machine and leaving her unattended,
the EMTs acted with "conscious disregard of their training, first aid methods accepted in
the field," and Salinas's welfare.  Salinas further argued that the EMTs acted with "willful
and wanton negligence."  
	Alternatively, Salinas contended that the City is liable for:
	failing to train the EMTs that failing to properly position Plaintiff in a safe
place while she was being examined, moving Plaintiff from a safe position to
a dangerous position to examiner [sic] her, failing to monitor Plaintiff to
prevent her from falling in the event that she fainted, abandoning her in a
dangerous position where she could fall in the event that she fainted, would
be likely to cause harm to persons in the same or similar circumstances as
Plaintiff; or failing to provide the EMTs with basic first aid training, or failing
to provide Plaintiff with basic certifications and supervision for care of the
type to be expected when responding to a fire.

	Additionally, in a section entitled "Use of Tangible Personal Property or Motorized
Equipment," Salinas asserted that:
		The EMTs drove to the home of Plaintiff in an ambulance, which is
motorized equipment.[ (4)]  The EMTs had and used blood pressure monitors,
pulse indicators, and other tangible equipment to assess Plaintiff's condition. 
The EMTs had available to them in the ambulance oxygen and oxygen
masks.  The EMTs had available to them radios, phones and walkie-talkies
to communicate with persons who had greater understanding of medicine for
assessment of the Plaintiff's condition.  The use of all of these things,
tangible personal property and motorized equipment was central to the acts
and omissions complained of herein.

	Regarding causation, Salinas alleged that:
		Such acts and omissions were a proximate cause of the injuries
sustained by Plaintiff because it was foreseeable that a person suffering from
smoke inhalation, particularly one with a history of tobacco consumption,
would faint, it is foreseeable that a person perched atop a washing machine
would fall, and it is foreseeable that a person falling off a washing machine
would be injured.

B.	Sufficiency of Pleadings to Confer Jurisdiction
	The City contends that Salinas's pleadings are insufficient to overcome
governmental immunity and therefore do not bring her claims within the trial court's
jurisdiction.  We agree.
	For Salinas's lawsuit to properly come within the TTCA's waiver of governmental
immunity, two initial requirements must be met:  (1) the property involved must be tangible
personal property, and (2) that property must be "used."  See Tex. Civ. Prac. & Rem. Code
Ann. § 101.021(2).  Once the two initial requirements have been met, Salinas must further
demonstrate that the use of the tangible personal property proximately caused her injuries. 
See Bossley, 968 S.W.2d at 342-43.  The City does not contest that any of the
aforementioned property is tangible personal property.  Therefore, our inquiry begins at the
second step, and we must determine whether such property was "used" as required by the
TTCA.  See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2).  Then we must determine
whether the use of each item was the proximate cause of Salinas's injuries.  Bossley, 968
S.W.2d at 342-43.
	1.	"Blood Pressure Monitors, Pulse Indicators, and Other Tangible Equipment"
 Salinas asserted in her petition that the EMTs used "blood pressure monitors, pulse
indicators, and other tangible equipment" while evaluating Salinas for smoke inhalation. 
This equipment was employed for a specific purpose and has therefore been "used" as
contemplated by the TTCA.  See Mullins, 111 S.W.3d at 272.  However, Salinas's
pleadings fail to demonstrate that the use of this equipment was a proximate cause of her
injuries.
	"Proximate cause consists of both cause[-]in[-]fact and foreseeability."  Salas v.
Wilson Mem'l Hosp. Dist., 139 S.W.3d 398, 403 (Tex. App.-San Antonio 2004, no pet.). 
"Cause[-]in[-]fact means that the defendant's act or omission was a substantial factor in
bringing about the injury which would not otherwise have occurred."  Kiesel v. Rentway,
245 S.W.3d 96, 99 (Tex. App.-Dallas 2008, pet. dism'd).  "'Foreseeability' means that the
actor, as a person of ordinary intelligence, should have anticipated the dangers that his
negligent act created for others."  Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.
1992).  
	In her petition, Salinas argued only that her injuries were foreseeable.  She did not
state that the use of "blood pressure monitors, pulse indicators, and other tangible
equipment" were the cause-in-fact of her injuries.  In fact, she makes no argument that
these devices caused her any injury whatsoever.  See Salas, 139 S.W.3d at 403 (holding
that medical equipment was a substantial factor in bringing about the plaintiff's injuries
because she suffered physical impairment and endured pain only after the medical
equipment was used on her).  Here, Salinas does not complain that the monitors,
indicators and other equipment were a substantial factor in bringing about her back injury. 
Because Salinas failed to satisfy her pleading burden, we conclude that the trial court
correctly determined that Salinas failed to invoke the TTCA's waiver of immunity regarding
the use of the monitors, indicators, and other property.  See Gainesville Mem'l Hosp. v.
Tomlinson, 48 S.W.3d 511, 513-14 (Tex. App.-Fort Worth 2001, pet. denied).
	2.	Oxygen, Oxygen Masks, Radios, Phones, and Walkie-Talkies 
	Salinas does not assert that the EMTs actually used the oxygen, oxygen masks,
radios, phones, or walkie-talkies.  She merely argues that this equipment was in the
ambulance and available to the EMTs.  The non-use of tangible personal property has
"expressly been rejected" as a means of waiving immunity under the TTCA.  Id. at 514
(citing Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996); Kassen v. Hatley,
887 S.W.2d 4, 14 (Tex. 1994); Ager v. Wichita Gen. Hosp., 977 S.W.2d 658, 661 (Tex.
App.-Fort Worth 1998, no pet.)).  We conclude that the trial court correctly found that
governmental immunity was not waived regarding the non-use of the oxygen, oxygen
masks, radios, phones, and walkie-talkies.  Thus, we do not reach the question of whether
these items proximately caused her injuries. 
	3.	Washing Machine
	While Salinas did not list the washing machine as tangible personal property in the
use-of-tangible-personal-property section of her petition, she did argue that the EMTs' use
of the washing machine caused her injuries.  We disagree.
	As Salinas stated, the EMTs placed her on the washing machine so that they could
evaluate her health status after she inhaled the smoke in her house.  This factual situation
is similar to what occurred in Tomlinson.  See 48 S.W.3d at 512-13.  In that case,
Tomlinson was a patient at Gainesville Memorial Hospital ("GMH").  Id. at 512.  A nurse's
aid came to Tomlinson's room to get her out of bed for a shower and sat her on the edge
of her bed.  Id.  Tomlinson fell off her bed onto the floor and struck her head.  Id. 
Tomlinson sued GMH asserting that the misuse of the bed caused her injury and that
GMH's immunity was waived under the TTCA.  Id. at 513 (stating that Tomlinson claimed
that GMH "used the bed in a wrongful manner by allowing her to sit on the bed without
supervision in the condition she was in at the time" she was placed there).  The trial court
denied GMH's plea to the jurisdiction, but on appeal, the Fort Worth Court of Appeals
reversed, holding that "the evidence does not demonstrate that the bed proximately caused
Tomlinson's injuries."  Id. at 514.  (emphasis added).  Therefore, the Fort Worth court held,
Tomlinson did not properly demonstrate a waiver of GMH's immunity under the TTCA.  Id.
	Here, Salinas similarly argued that by placing her on the washing machine and
leaving her there, the EMTs used tangible personal property that was the proximate cause
of her injuries.  The washing machine was employed for a specific purpose and has
therefore been "used" as contemplated by the TTCA.  See Mullins, 111 S.W.3d at 272. 
However, like the bed in Tomlinson, the washing machine "did no more than furnish the
condition that made the injury possible[,] and it did not proximately cause the injury."  Id.
at 513 (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); Bossley, 968 S.W.2d at 342-43).  We conclude that the trial court correctly found that governmental immunity was not
waived regarding the use of the washing machine.
	4.	Negligent Training and Supervision
	To the extent that Salinas's pleadings state claims for negligent training and
negligent supervision of the EMTs, we hold that such claims do not bring her lawsuit under
the TTCA's waiver of sovereign immunity in the absence of the use of tangible personal
property.  See Campos v. Nueces County, 162 S.W.3d 778, 787-88 (Tex. App.-Corpus
Christi 2005, pet. denied); Hernandez v. City of Lubbock, 253 S.W.3d 750, 761 (Tex.
App.-Amarillo 2007, no pet.) (holding that a claim of negligent supervision and training,
which are distinct causes of action, do not bring a claim under the TTCA's waiver when
under applicable law, there was no use of tangible personal property); Univ. of Tex. Health
Sci. Ctr v. Schroeder, 190 S.W.3d 102, 107 (Tex. App.-Houston [1st Dist.] 2005, no pet.)
(declaring that "negligent supervision claims do not constitute a premise defect or the
condition or use of property claim," therefore the TTCA does not waive immunity for such
claims); Dallas Area Rapid Transit v. Edwards, 171 S.W.3d 584, 587-88 (Tex. App.-Dallas
2005, pet. denied) ("A claim of negligent supervision or training is not cognizable under the
Torts Claim Act.") (citing Tex. Dep't of Public Safety v. Petta, 44 S.W.3d 575, 580 (Tex.
2001)).
	5.	Additional Basis for Waiver of Immunity
	Salinas also argues that section 101.0215(a)(1), (18) provides that the City may be
held liable when providing emergency services.  See  Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.0215(a)(1), (18).  "However, this section merely provides a nonexclusive list of
governmental functions for which a municipality may be held liable under the Tort Claims
Act generally; it does not provide an independent basis for a waiver of governmental
immunity."  City of Kemah v. Vela, 149 S.W.3d 199, 203 n.1 (Tex. App.-Houston [14th
Dist.] 2004, pet. denied) (citing McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.
App.-Forth Worth 1991, no writ)).  We reject Salinas's argument under this section.  We
overrule Salinas's first appellate issue. (5)
V.  Conclusion

	Because Salinas failed to plead facts that would bring her claim under the TTCA,
we affirm the trial court's granting of the City's plea to the jurisdiction.	
 
								______________________________GINA M. BENAVIDES,
								Justice
 

Delivered and filed the
25th day of February, 2010.
1.  In its brief to this Court, the City argues that Salinas's appeal should be dismissed for want of
prosecution for failure to timely file her brief.  See Tex. R. App. P. 38.8.  On August 14, 2008, we denied the
City's motion to dismiss for want of prosecution and granted Salinas's motion for extension of time to file her
brief, which the City opposed.  On August 28, 2008, over the City's opposition, we granted Salinas's second
motion for extension of time to file her brief.  Salinas reasonably explained her failure to timely file her brief,
and the City has not shown significant injury by the late-filed brief.  See id. Rule 38.8(1); Serna v. Webster,
908 S.W.2d 487, 489 n.2 (Tex. App.-San Antonio 1995, no pet.).  Therefore, we deny the City's motion to
dismiss for want of prosecution.
2.  The record does not indicate:  (1) why the washing machine was sitting at the curb; (2) who owns
the washing machine; and (3) whether the washing machine was plugged in or turned on when Salinas was
placed on it.
3.  "Sovereign immunity refers to the State's immunity from suit and liability, while governmental
immunity protects political subdivisions of the State."  Tex. Tech Univ. Health Scis. Ctr. v. Ward, 280 S.W.3d
345, 348 (Tex. App.-Amarillo 2008, pet. denied) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
693 fn.3 (Tex. 2003)). 
4.  Salinas does not claim on appeal that the trial court's ruling regarding the use of a motorized vehicle
was error; therefore, we do not address the motorized vehicle subsection of section 101.021.  See Tex. R.
App. P. 38.1(i), 47.1; Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2005).
5.  Because we affirm the trial court's granting of the City's plea to the jurisdiction on grounds relating
to Salinas's first argument, we do not reach her second argument regarding the applicability of exemptions
to the waiver of immunity.  Such exemptions would only apply if we resolved her first issue in her favor.  See
Tex. R. App. P. 47.1.

