                IN THE SUPREME COURT OF TEXAS
                                         444444444444
                                           NO . 15-0094
                                         444444444444


                               CITY OF DALLAS, PETITIONER,

                                                 v.

  DIANE SANCHEZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF
   MATTHEW SANCHEZ, DECEASED, AND ARNOLD SANCHEZ, RESPONDENTS

           4444444444444444444444444444444444444444444444444444
                             ON PETITION FOR REVIEW FROM THE
                      COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444

                                          PER CURIAM

       Hours before Matthew Sanchez died from a drug overdose, a 9-1-1 operator dispatched an

ambulance to his apartment complex. Once on scene, however, emergency personnel provided

assistance to a different drug-overdose victim at the same complex and then left the premises without

aiding Sanchez, erroneously concluding that two closely timed 9-1-1 calls concerning overdose

victims at the same locale were redundant. In a wrongful-death suit against the City of Dallas,

Sanchez’s parents allege the 9-1-1 telephone system malfunctioned and disconnected Sanchez’s call

before the responders could establish the overdose reports were not duplicative.

       The issue in this Rule 91a dismissal proceeding is whether the Texas Tort Claims Act waives

the City’s immunity from suit based on allegations in the wrongful-death suit that a condition of the

City’s telephone system proximately caused Sanchez’s death by preventing him from receiving

potentially life-saving medical care. See TEX . CIV . PRAC. & REM . CODE § 101.021(2) (providing a
limited waiver of governmental immunity arising from the “condition or use” of tangible personal

property); TEX . R. CIV . P. 91a (authorizing dismissal of a cause of action that has no basis in law or

fact). We hold governmental immunity is not waived and dismissal is required because the requisite

causal nexus between the alleged condition and Sanchez’s injury is lacking. See Dallas County v.

Posey, 290 S.W.3d 869, 872 (Tex. 2009) (the alleged condition must actually have caused the injury

to invoke the Tort Claims Act’s immunity waiver; mere involvement of property is not sufficient).

We therefore reverse the court of appeals’ judgment and render judgment dismissing the case.

        Dismissal is appropriate under Rule 91a “if the allegations, taken as true, together with

inferences reasonably drawn from them, do not entitle the claimant to the relief sought . . . [or] no

reasonable person could believe the facts pleaded.” TEX . R. CIV . P. 91a.1. Whether the dismissal

standard is satisfied depends “solely on the pleading of the cause of action.” TEX . R. CIV . P. 91a.6.

We review the merits of a Rule 91a motion de novo because the availability of a remedy under the

facts alleged is a question of law and the rule’s factual-plausibility standard is akin to a

legal-sufficiency review. See Wooley v. Shaffer, 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th

Dist.] 2014, pet. denied); cf. Marsh USA Inc. v. Cook, 354 S.W.3d 764, 768 (Tex. 2011) (application

of the law to undisputed facts is reviewed de novo); City of Keller v. Wilson, 168 S.W.3d 802, 827

(Tex. 2005) (“[L]egal-sufficiency review in the proper light must credit favorable evidence if

reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not.”).

        The dismissal grounds under Rule 91a have been analogized to a plea to the jurisdiction,

which requires a court to determine whether the pleadings allege facts demonstrating jurisdiction.

See Wooley, 447 S.W.3d at 75. In this case, the analogy is particularly apt because the City’s Rule

                                                   2
91a motion challenges the trial court’s subject-matter jurisdiction on the pleaded facts. Whether a

pleader has alleged facts affirmatively demonstrating the existence of subject-matter jurisdiction is

a question of law reviewed de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004); see also Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922,

927 (Tex. 2015) (per curiam) (“We review jurisdiction and pleading sufficiency de novo.”). To

determine whether dismissal under Rule 91a is required in this case, we thus consider whether the

pleadings, liberally construed, allege sufficient facts to invoke a waiver of governmental immunity

under the Tort Claims Act. Miranda, 133 S.W.3d at 226; see also Ryder Integrated, 453 S.W.3d at

926.

       In the early hours of November 16, 2012, City of Dallas 9-1-1 dispatchers received two 9-1-1

calls within approximately ten minutes of one another. Both calls originated from the same

apartment complex and both requested assistance for a drug-overdose victim; however, the calls

were placed from different phone numbers and concerned different residents.

       This wrongful-death and survival action arises from the second 9-1-1 call, which was placed

at 2:55 a.m. on Matthew Sanchez’s behalf. The 9-1-1 dispatcher acquired information regarding the

nature of the emergency and Sanchez’s address, including the apartment number, and informed the

caller that emergency responders were en route. The call was subsequently disconnected and not

reestablished. After emergency responders arrived at the apartment complex to assist the subject of

the first 9-1-1 call, they erroneously concluded that the two 9-1-1 calls were redundant and that a

single individual was the subject of both calls. Consequently, the emergency responders never went

to Sanchez’s apartment to provide aid. Sanchez died at approximately 8:40 a.m.

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        Sanchez’s parents sued the City of Dallas for negligence alleging: (1) the City’s 9-1-1

dispatcher misused the phone system by hanging up before emergency responders arrived to assist

Sanchez, or in the alternative, the 9-1-1 phone system malfunctioned, causing the call to disconnect

prematurely; (2) the 9-1-1 dispatcher failed to follow proper procedure and violated various federal,

state, and local laws and regulations by either disconnecting the call or failing to redial after the call

disconnected; and (3) if the emergency responders had located Sanchez before leaving the premises,

they “would have most likely saved [his] life.”

        In a Rule 91a motion to dismiss asserting governmental immunity from suit, the City argued

the allegations in the lawsuit did not invoke a waiver of immunity under the Tort Claims Act because

(1) the allegations complained about communication of information and the failure to dispatch an

ambulance, not a condition or misuse of tangible property, and (2) Sanchez’s death was caused by

a drug overdose, not the 9-1-1 telephone system. See TEX . CIV . PRAC. & REM . CODE § 101.021(2).

Alternatively, to the extent immunity might otherwise be waived under the Tort Claims Act, the City

asserted the pleadings failed to overcome a statutory exception making the Act inapplicable to 9-1-1

emergency services, except for actions that “violate[] a statute or ordinance applicable to the action.”

Id. § 101.062(b).

        The trial court granted the City’s motion to dismiss as to all claims except the allegation that

the 9-1-1 phone system failed or malfunctioned. On interlocutory appeal, the court of appeals

affirmed, holding Sanchez’s parents (1) sufficiently alleged a defect in the phone system proximately

caused his death and (2) adequately pleaded a violation of a statute or ordinance as an exception to



                                                    4
section 101.062’s waiver exclusion.1 499 S.W.3d 645, 653-54.

         We have jurisdiction over the City’s petition for review because the court of appeals’

decision is inconsistent with our decisions in Dallas County v. Posey, 290 S.W.3d 869 (Tex. 2009),

and Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583 (Tex. 2001). See TEX . GOV ’T

CODE §§ 22.001(a)(2), (e), 22.225(b), (c), (e), 51.014(a)(8); see also Austin State Hosp. v. Graham,

347 S.W.3d 298, 300 (Tex. 2011).

         The Texas Tort Claims Act waives governmental immunity from suit 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 § 101.021(2). For immunity to be waived under section 101.021(2), “personal

injury or death must be proximately caused by a condition or use of tangible personal or real

property.” Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 342-43

(Tex. 1998). To establish a waiver of the City’s immunity under section 102.021(2), we must

therefore determine whether the phone’s condition was a proximate cause of Sanchez’s death.

         Proximate cause requires both “cause in fact and foreseeability.” Ryder, 453 S.W.3d at 929.

For a condition of property to be a cause in fact, the condition must “serve[] as ‘a substantial factor

in causing the injury and without which the injury would not have occurred.’” Id. (quoting Del Lago

Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010)). When a condition or use of property

merely furnishes a circumstance “that makes the injury possible,” the condition or use is not a


        1
          The court of appeals also affirmed dismissal of the Sanchezes’ negligent use/misuse claim, but they have not
appealed that ruling.

                                                          5
substantial factor in causing the injury. Bossley, 968 S.W.2d at 343. To be a substantial factor, the

condition or use of the property “must actually have caused the injury.” Posey, 290 S.W.3d at 872

(“This nexus requires more than mere involvement of property; rather, the condition must actually

have caused the injury.”). Thus, the use of property that simply hinders or delays treatment does not

“actually cause[] the injury” and does not constitute a proximate cause of an injury. See Miller, 51

S.W.3d at 588.

       In   Miller,   prison   staff misdiagnosed      a prisoner’s    meningitis    and provided

treatment—including pain-relievers, anti-nausea medicine, and fluids—that masked the symptoms

and made it more difficult to correctly diagnose the meningitis. Id. We concluded the treatment was

not a proximate cause of the prisoner’s death because it “did not actually cause his death.” Id.

Instead, the prisoner’s death was caused by meningitis, “the passage of time[,] and an alleged error

in medical judgment.” Id.

       Even construing the pleadings liberally, see Miranda, 133 S.W.3d at 226, the alleged

telephone-system malfunction was not a proximate cause of Sanchez’s death. Between the alleged

malfunction and Sanchez’s death, emergency responders erroneously concluded separate 9-1-1 calls

were redundant and left the apartment complex without checking the specific apartment unit the

dispatcher had provided to them. Moreover, approximately six hours passed between the phone

malfunction and Sanchez’s death, further attenuating the causal connection. Although disconnection

of the telephone call may have contributed to circumstances that delayed potentially life-saving

assistance, the malfunction was too attenuated from the cause of Sanchez’s death—a drug

overdose—to be a proximate cause. See Bossley, 968 S.W.2d at 343 (use of property is not a

                                                 6
proximate cause when it is too attenuated from the injury). The alleged defect did not actually cause

Sanchez’s death nor was his death “hastened or exacerbated” by a telephone malfunction. See Posey,

290 S.W.3d at 872; Miller, 51 S.W.3d at 588. The malfunction was merely one of a series of factors

that contributed to Sanchez not receiving timely medical assistance. See Miller, 51 S.W.3d at 588.

Sanchez’s death was caused by drugs, the passage of time, and misinterpretation of information. See

id. (concluding the death was caused by meningitis, time, and an alleged error in judgment, not by

symptom-masking treatment). Accordingly, the pleadings do not establish a defect in the 9-1-1

telephone system was a proximate cause of Sanchez’s death as required to establish a waiver of

governmental immunity under the Tort Claims Act.

       Without hearing oral argument, we reverse the court of appeals’ judgment and render

judgment dismissing the case. See TEX . R. APP. P. 59.1.



OPINION DELIVERED: July 1, 2016




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