                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-14-00012-CV

CAROLYN NORTHCUTT, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JAMES H. BELL,
                                     Appellants
v.

CITY OF HEARNE,
                                                               Appellee



                            From the 82nd District Court
                              Robertson County, Texas
                           Trial Court No. 12-03-19048-CV


                           MEMORANDUM OPINION


       In one issue, appellant, Carolyn Northcutt, as personal representative of the estate

of James H. Bell, challenges a plea to the jurisdiction granted in favor of appellee, the City

of Hearne. Because we conclude that the record does not contain sufficient jurisdictional

facts to support a waiver of governmental immunity under section 101.021 of the Texas

Civil Practice and Remedies Code, we affirm. See TEX. CIV. PRAC. & REM. CODE ANN. §

101.021 (West 2011).
                                           I.       BACKGROUND

        This case involves a tragic accident that occurred within the city limits of Hearne,

Texas, and resulted in the death of James H. Bell. Specifically, in her original petition,

Northcutt made the following allegations:

        On April 10, 2010, James H. Bell (“Bell”) was driving his motorcycle
        northbound on Hwy 79 within the city limits of Hearne, Robertson County,
        Texas[,] at approximately 9:49 p.m.            Officer Christopher Sullivan
        (“Sullivan”), who was acting in the course and scope of his employment
        with the Hearne Police Department, had hidden his patrol car in a private
        driveway (with the patrol car lights off), setting up a speed trap. As Mr.
        Bell approached the speed trap on his motorcycle, Sullivan pulled the patrol
        vehicle out of the private driveway to pursue a northbound vehicle
        (traveling ahead of Mr. Bell’s motorcycle northbound on Hwy 79) for a
        traffic violation. Sullivan flipped on his lights and pulled the patrol vehicle
        out of the private driveway onto the shoulder in such a way to cause Bell to
        swerve to avoid contact. As a result of such evasive action, Bell lost control
        of his motorcycle and it flipped onto its side, throwing Bell onto the
        highway. Defendant Ewing, traveling northbound on Hwy 79, failed to
        take evasive action and struck Bell.[1] Bell died as a result of the accident.

Northcutt asserted a negligence cause of action against the City and sought wrongful-

death and survival damages. Additionally, Northcutt alleged that the City waived

governmental immunity under section 101.021(1) of the Texas Civil Practice and

Remedies Code—otherwise known as the Texas Tort Claims Act (“TTCA”). See id. §

101.021(1).

        In response to Northcutt’s original petition, the City filed an original answer

denying Northcutt’s allegations and asserting governmental immunity. Thereafter, the




        1 Rita L. Ewing was the driver of the oncoming vehicle that struck Bell. The record reflects that the
trial court granted summary judgment in favor of Ewing. Northcutt does not challenge the trial court’s
summary-judgment order as to Ewing. Accordingly, Ewing is not a party to this appeal.

Northcutt v. City of Hearne                                                                           Page 2
City filed a plea to the jurisdiction, arguing, among other things, that Northcutt failed to

plead sufficient jurisdictional facts to support the waiver of governmental immunity.

After a hearing, the trial court granted the City’s plea to the jurisdiction, and this appeal

followed.

                                    II.    APPLICABLE LAW

A.     Plea to the Jurisdiction

       A plea to the jurisdiction is a dilatory plea used to defeat a cause of action without

regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d

547, 554 (Tex. 2000). The plea challenges the trial court’s subject-matter jurisdiction. Id.

Whether the trial court has subject-matter jurisdiction and whether the pleader has

alleged facts that affirmatively demonstrate the trial court’s subject-matter jurisdiction

are questions of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004).

       The plaintiff has the burden to plead facts affirmatively showing that the trial court

has jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).

We construe the pleadings liberally in favor of the pleader, look to the pleader’s intent,

and accept as true the factual allegations in the pleadings. See Miranda, 133 S.W.3d at 226,

228. If a plea to the jurisdiction challenges the existence of jurisdictional facts, as is the

case here, we consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised, as the trial court is required to do, even if those

facts implicate the merits of the cause of action. Id. at 227.



Northcutt v. City of Hearne                                                             Page 3
        A trial court’s review of a plea to the jurisdiction challenging the existence of

jurisdictional facts mirrors that of a tradition motion for summary judgment. Id. at 228;

see TEX. R. CIV. P. 166a(c). The governmental unit is required to meet the summary-

judgment standard of proof for its assertion that the trial court lacks jurisdiction. Miranda,

133 S.W.3d at 228. Once the governmental unit meets its burden, the plaintiff is then

required to show that there is a disputed material fact regarding the jurisdictional issue.

Id. If the evidence creates a fact question regarding jurisdiction, the trial court must deny

the plea to the jurisdiction and leave its resolution to the factfinder. Id. at 227-28. But, if

the 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. “In

considering this evidence, we ‘take as true all evidence favorable to the nonmovant’ and

‘indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.’”

City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009) (quoting Miranda, 133 S.W.3d at

228).

B.      Immunity

        Sovereign immunity protects the State and its various divisions from lawsuits for

money damages. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853

(Tex. 2002).     Governmental immunity provides similar protections to the political

subdivisions of the State, such as counties, cities, and school districts. Wichita Falls State

Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003).             Governmental immunity

encompasses two components: (1) immunity from liability, which bars enforcement of a

judgment against a governmental entity; and (2) immunity from suit, which bars suit

Northcutt v. City of Hearne                                                              Page 4
against the entity altogether. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). If the

Legislature has not expressly waived immunity from suit, the State retains such

immunity even if its liability is not disputed. IT-Davy, 74 S.W.3d at 853. Immunity from

liability protects the State from money judgments even if the Legislature has expressly

given consent to sue. Id. A plaintiff who sues the State must establish the State’s consent

to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); see Dallas Area Rapid

Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Otherwise, sovereign immunity from

suit defeats a trial court’s subject-matter jurisdiction. Jones, 8 S.W.3d at 638. Furthermore,

municipalities, such as the City, enjoy a “‘heavy presumption in favor of immunity.’”

Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838, 848 (Tex. 2009) (quoting

Nueces County v. San Patricio County, 246 S.W.3d 651, 653 (Tex. 2008)).

                                        III.   ANALYSIS

       In her sole issue, Northcutt argues that the trial court erred in granting the City’s

plea to the jurisdiction because there is a fact issue as to whether or not the City is liable

for the negligent operation of a motor vehicle by Officer Sullivan. In support of her

argument, Northcutt contends that the record evidence demonstrates that the City

waived immunity under the TTCA. We disagree.

       Here, the asserted source of waiver is the TTCA. The Texas Supreme Court has

stated that the TTCA “provides a limited waiver of governmental immunity.” Alexander

v. Walker, 435 S.W.3d 789, 790 (Tex. 2014) (citing TEX. CIV. PRAC. & REM. CODE ANN. §

101.023 (West 2011)). In arguing that the City waived governmental immunity, Northcutt



Northcutt v. City of Hearne                                                             Page 5
relies on section 101.021 of the Texas Civil Practice and Remedies Code, which provides

the following:

       A governmental unit in the state is liable for:

           (1) property damage, personal injury, and death proximately caused by
               the wrongful act of 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 ANN. § 101.021.

       The term “arises from,” as used in the TTCA, requires a nexus between an injury

negligently caused by a governmental employee and the operation or use of a motor-

driven vehicle. Whitley, 104 S.W.3d at 543. “This nexus requires more than mere

involvement of property.” Id. “Rather ‘the [vehicle]’s use must have actually caused the

injury.” Id. (quoting Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 869

(Tex. 2001). “Thus, as with the condition or use of property, the operation or use of a

motor vehicle ‘does not cause injury if it does no more than furnish the condition that

makes the injury possible.’” Id. (quoting Dallas County Mental Health & Mental Retardation

v. Bossley, 968 S.W.2d 339, 343 (Tex. 1987)). Essentially, the question before this Court is




Northcutt v. City of Hearne                                                            Page 6
whether the evidence creates a fact question on the nexus or causal relationship between

Sullivan’s conduct and Bell’s accident and death.

        Proximate cause consists of two components—cause in fact and foreseeability.

HMC Hotel Props. II Ltd. P’ship v. Keystone-Tex. Prop. Holding Corp., 439 S.W.3d 910, 913

(Tex. 2014) (citing Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp.,

299 S.W.3d 106, 122 (Tex. 2009)). “The cause-in-fact element is satisfied by proof that (1)

the act was a substantial factor in bringing about the harm at issue, and (2) absent the

act . . . the harm would not have occurred.” Id. (citing Akin, Gump, Strauss, Hauer & Feld,

L.L.P., 299 S.W.3d at 122). 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) (citing Nixon v. Mr. Prop. Mgmt.

Co., 690 S.W.2d 546, 549-50 (Tex. 1985); Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99,

103 (Tex. 1977)). “These elements cannot be established by mere conjecture, guess, or

speculation.” HMC Hotel Props. II Ltd. P’ship, 439 S.W.3d at 913 (citing Doe v. Boys Club of

Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)).

        In arguing that Officer Sullivan’s actions caused Bell’s accident, Northcutt directs

us to an investigation report, which was admitted as an exhibit at the hearing on the

City’s plea to the jurisdiction.2 But, it is important to recognize that the trial court


        2In his report, Trooper Scott Swick of the Texas Department of Public Safety provided the following
narrative regarding his opinion of what happened:

        #1 [Bell’s motorcycle] NB on US 79, entering the Hearne city limits. There was a Hearne
        patrol unit parked in a private drive on the NB side of the roadway, observing vehicular
        traffic. There was also a truck in front of #1 that was displaying a defective head lamp.
        The Hearne patrol unit turned out of the private drive and onto the NB improved shoulder,

Northcutt v. City of Hearne                                                                         Page 7
sustained an objection made by the City as to hearsay contained in the investigation

report. The trial court admitted the report and stated that it would “disregard any

hearsay statements. I will look more at the time, date, and things of that nature.”

Northcutt did not assert the applicability of a hearsay exception, nor does she complain

about the evidentiary ruling on appeal. See TEX. R. EVID. 803(8); see also McRae v. Echols,

8 S.W.3d 797, 799-800 (Tex. App.—Waco 2000, pet. denied).                                 Accordingly, the

investigating trooper’s narrative opinion in the report on how the crash occurred is not

before us.

        Moreover, the record reflects that Northcutt neither submitted evidence nor filed

a response to the City’s plea to the jurisdiction, despite having the opportunity to do so.

See Kirwan, 298 S.W.3d 622; see also Miranda, 133 S.W.3d at 227. As such, the only evidence

that is before this Court is Officer Sullivan’s affidavit describing the incident. And in his

affidavit, Officer Sullivan stated the following, in pertinent part:

        3. On the evening of April 10, 2010, at approximately 9:50 p.m., I was on
        duty as a patrol officer with the City of Hearne Police Department and was
        monitoring traffic on the south side of the City of Hearne along Highway
        79. To place myself in a position where I could observe traffic coming into
        the City, I backed my patrol car into a short gravel driveway that led from
        Highway 79 into the GATX rail yard. From this position, I could see, to my


        in preparation to allow #1 to pass his location, so he could conduct a legal and valid traffic
        stop on the truck. Thinking that the patrol unit was going to pull out in front of him, the
        driver of #1 applied its brakes and in doing so lost control, causing #1 to fall onto it’s [sic]
        right side. The driver of #1 was ejected and came to rest in the NB lane of traffic. #1 came
        to rest on it’s [sic] right side in the NB lane of traffic, facing S.

The record does not contain evidence as to Bell’s thoughts prior to losing control of his motorcycle. As
such, any commentary on Bell’s thoughts is speculative and not probative. See Natural Gas Pipeline Co. of
Am. v. Justiss, 397 S.W.3d 150, 156 n.5 (Tex. 2012) (noting that speculation is the act or practice of theorizing
about matters over which there is no certain knowledge and that a causation finding cannot be supported
by mere conjecture, guess, or speculation).

Northcutt v. City of Hearne                                                                                Page 8
       left, in a southerly direction down Highway 79. From that location, I could
       see motor vehicle traffic as it entered the City of Hearne. I sat with my
       window down.

       4. At approximately 9:50 p.m., on April 10, 2010, I observed a motor vehicle
       with only one functioning headlight approaching from the south. Behind
       that motor vehicle, I could see another motor vehicle coming and a
       motorcycle behind the second motor vehicle. As the motor vehicle with the
       non-functioning headlight approached, I put my car into drive with my
       headlights and taillights on. As that motor vehicle passed me, I started
       moving slowly forward and turned right very slowly (going north) onto the
       shoulder of Highway 79. The second motor vehicle that I observed behind
       the motor vehicle with the defective headlight passed safely. As I had seen
       the motorcycle behind the second motor vehicle, I stayed on the shoulder
       of Highway 79 moving very slowly with my headlights and taillights
       operating waiting for the motorcycle to pass. My window was rolled down.
       I heard the sound of metal and plastic colliding with the ground. I looked
       in my rearview mirror to see that the motorcycle had fallen to the pavement
       approximately 100 feet behind my vehicle. When I heard the sound of the
       motorcycle crash on the road, I was still sitting on the shoulder of Highway
       79 with my headlights and taillights on. I did not pull onto Highway 79
       until after I heard the sound of the motorcycle accident and saw the
       motorcycle rider on the ground. At that time, I pulled onto the highway,
       turned on my overhead emergency lights and made a U-turn to render aid
       to the driver of the motorcycle.

       5. As I was aware of the two motor vehicles and the motorcycle following,
       I took care to keep my vehicle well on the shoulder and off of the traffic lane
       of Highway 79 until after the motorcycle passed. Neither the first motor
       vehicle (with the non-functioning headlight) nor the second motor vehicle
       had to take any evasive action to avoid my car as they passed me on
       Highway 79. My car was on the shoulder as the motorcycle approached
       my position. At no time between the time that I first observed the motor
       vehicle with the non-functioning headlight until after the motorcycle
       accident did I pull into the traffic lane of Highway 79. The motorcycle did
       not contact or collide with my vehicle.

       Without a number of unreasonable assumptions and stacked inferences, nothing

in Officer Sullivan’s affidavit creates a fact question as to whether or not Officer Sullivan’s

actions were negligent or actually caused Bell’s injury. See Whitley, 104 S.W.3d at 543;


Northcutt v. City of Hearne                                                              Page 9
White, 46 S.W.3d at 869; Hotel Props. II Ltd. P’ship, 439 S.W.3d at 913; see also Ron v. Airtran

Airways, 397 S.W.3d 785, 800 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (Frost, J.,

dissenting) (“This court should not find a genuine fact issue precluding summary

judgment by unreasonable inferences from the summary-judgment evidence or by piling

one inference upon another.” (citing Schlumberger Well Surveying Corp. v. Nortex Oil & Gas

Corp., 435 S.W.2d 854, 858 (Tex. 1968); Engstrom v. First Nat’l Bank of Eagle Lake, 936 S.W.2d

438, 445 (Tex. App.—Houston [14th Dist.] 1996, writ denied))). In fact, Officer Sullivan’s

statements undermine Northcutt’s allegation that Bell’s injuries were caused by the

evasive actions taken to avoid contact with Officer Sullivan. This is especially true given

that Officer Sullivan did not observe either of the other two vehicles on Highway 79—

both of which were closer to him—take evasive action to avoid his patrol car and that Bell

was 100 feet behind Officer Sullivan’s vehicle. In any event, it was Northcutt’s burden to

provide evidence demonstrating a causal nexus and, therefore, a waiver of governmental

immunity based on Officer Sullivan’s actions on the night in question; however,

Northcutt has failed in meeting this burden. See Miranda, 133 S.W.3d at 228; see also Dallas

County v. Logan, 420 S.W.3d 412, 423 (Tex. App.—Dallas 2014, pet. denied) (op. on

remand) (“The plaintiff bears the burden to affirmatively demonstrate the court’s

jurisdiction by alleging a valid waiver of immunity.” (citing Whitley, 104 S.W.3d at 542;

City of Irving v. Seppy, 301 S.W.3d 435, 443 (Tex. App.—Dallas 2009, no pet.))).

       Nevertheless, in arguing on appeal that she satisfied her burden, Northcutt relies

heavily on the Texas Supreme Court’s recent decision in Ryder Integrated Logistics, Inc. v.

Fayette County, 453 S.W.3d 922 (Tex. 2015) (per curiam). After reviewing the Ryder

Northcutt v. City of Hearne                                                             Page 10
opinion, we find the case to be distinguishable from the case at bar. First, we note that,

in this case, the City challenged the existence of jurisdictional facts, which necessitated

an examination of the evidence to determine whether the trial court has subject-matter

jurisdiction. On the other hand, Ryder focused on the sufficiency of the pleadings and

did not involve a challenge to the existence of jurisdictional facts. Id. at 927-31.

       Second, though the Ryder court did examine the alleged facts to an extent, the

quantum of alleged facts in Ryder is much more substantial than the evidence in the

instant case. In Ryder, much of the relevant facts were admitted and, thus, undisputed.

Specifically, in its third-party negligence claim against the County, Ryder alleged that

Fayette County Deputy Sheriff Randy Thumann’s act of positioning his cruiser facing

eastbound traffic with its headlights and high-beam spotlight illuminated caused an

accident. Id. at 926. The County conceded that Deputy Sheriff Thumann had, in fact,

positioned his cruiser facing eastbound traffic with its headlights and high-beam

spotlight illuminated—an arguably negligent act. Id. Here, Northcutt has not presented

any probative evidence demonstrating that Officer Sullivan negligently operated a motor

vehicle and thereby caused the accident. And especially given that the uncontroverted

evidence shows that the two vehicles ahead of Bell did not take evasive action and that

Bell was 100 feet behind Officer Sullivan’s vehicle, at best, we can only state that

Northcutt’s complaints about Officer Sullivan’s actions seem to be more properly

classified as a condition that made the accident possible, rather than the actual cause of

the accident itself. See Whitley, 104 S.W.3d at 543 (stating that “the operation or use of a

motor vehicle ‘does not cause injury if it does no more than furnish the condition that

Northcutt v. City of Hearne                                                            Page 11
makes the injury possible.’” (quoting Bossley, 968 S.W.2d at 343)); see also City of Dallas v.

Hillis, 308 S.W.3d 526, 532 (Tex. App.—Dallas 2010, pet. denied) (“When an alleged cause

is geographically, temporally, or causally attenuated from the alleged effect, that

attenuation will tend to show that the alleged cause did no more than furnish the

condition that made the effect possible.” (citing Bossley, 968 S.W.2d at 343)).

       Therefore, based on the foregoing, we cannot say that the record contains sufficient

jurisdictional facts to support the waiver of governmental immunity under section

101.021 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021. As such, we cannot conclude that the trial court erred in granting the

City’s plea to the jurisdiction. See Kirwan, 298 S.W.3d at 622; see also Miranda, 133 S.W.3d

at 226. We overrule Northcutt’s sole issue on appeal.

                                      IV.    CONCLUSION

       We affirm the judgment of the trial court.



                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
       (Justice Davis dissenting)
Affirmed
Opinion delivered and filed July 30, 2015
[CV06]




Northcutt v. City of Hearne                                                            Page 12
