     Case: 18-10555      Document: 00514985683         Page: 1    Date Filed: 06/06/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                      Fifth Circuit

                                                                                 FILED
                                                                              June 6, 2019
                                      No. 18-10555
                                                                             Lyle W. Cayce
                                                                                  Clerk

BRIDGET ALEX, Individually and on Behalf of the Estate of Brandon Alex;
JASHAWN ALEX; MICHAELLE COHEN; ESTATE OF BRANDON ALEX;
DETREASURE COKER,

               Plaintiffs - Appellees

v.

T-MOBILE USA, INCORPORATED; T-MOBILE US INCORPORATED,
formerly known as MetroPCS Communications Incorporated,

               Defendants - Appellants




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-1532
                             USDC No. 3:17-CV-2622


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       After Brandon Alex’s death, members of his family (collectively, the
“Estate”) sued T-Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “T-
Mobile”) and alleged that T-Mobile caused Brandon’s death because its failed



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 18-10555
technology prevented Brandon from receiving timely medical attention after
an injury. The district court rejected T-Mobile’s assertion of statutory
immunity because the Estate had plausibly alleged that T-Mobile’s service was
the proximate cause of Brandon’s death. Although this case is tragic, and the
Estate’s claim is emotionally compelling, Texas law appears to insulate T-
Mobile from suit—we reverse.
                           FACTS AND PROCEEDINGS

      On March 11, 2017, seven-month old Brandon Alex was injured after
falling from a daybed. His babysitter dialed 9-1-1 three separate times from
her T-Mobile/MetroPCS cell phone. She was placed on hold each time, for a
total of more than forty minutes. Unable to connect to a dispatcher, she
eventually called Brandon’s grandmother, who drove him to an emergency
room more than an hour after the first 9-1-1 call. Brandon was pronounced
dead soon after arriving at the hospital.
      The Estate sued T-Mobile in state court for claims arising from
Brandon’s death. The matter was removed to the Northern District of Texas.
T-Mobile moved to dismiss the claims, asserting statutory immunity. The
district court held that statutory immunity did not bar the claims. The district
court certified its decision for interlocutory appeal, concluding that it presented
the following question of law: “whether, as a matter of law, the use of property
that hinders or delays treatment, without other intervening causes, can never
be the proximate cause of an injury.”
                             STANDARD OF REVIEW
      We review de novo a district court’s denial of a motion to dismiss,
“accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff[s].” Billings v. Propel Fin. Servs., L.L.C., 821
F.3d 608, 611 (5th Cir. 2016) (quotation omitted).


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                                 No. 18-10555
                                 DISCUSSION
      In a four-page opinion, the Supreme Court of Texas provided guidance
on what constitutes proximate cause in a similar case. City of Dall. v. Sanchez,
494 S.W.3d 722 (Tex. 2016). Sanchez’s parents sued the City of Dallas for
negligence, alleging that the City’s defective 9-1-1 system caused their son’s
death. Id. The City moved to dismiss the claims, asserting governmental
immunity under the Texas Tort Claims Act (“TTCA”). To establish a waiver of
governmental immunity, the parents needed to establish that “the phone’s
condition was a proximate cause of Sanchez’s death.” Id. at 726.
      The court articulated the following rule:
                   Proximate cause requires both cause in fact and
            foreseeability. 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. When a condition or use of
            property merely furnishes a circumstance that makes
            the injury possible, the condition or use is not a
            substantial factor in causing the injury. To be a
            substantial factor, the condition or use of the property
            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.

Id. at 726 (citations and quotations omitted) (emphasis added).

      Under Texas Health and Safety Code §§ 771.053(a) and 772.407, T-
Mobile is immune from claims arising out of its provision of 9-1-1 services
“unless the act or omission proximately causing the claim, damage, or loss
constitutes gross negligence, recklessness, or intentional misconduct.” So, the




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                                       No. 18-10555
Estate must establish proximate cause to prevail on a claim against T-Mobile
under the statutes. 1 See id.
       The parties debate the binding effect of the above-quoted Sanchez
statement. At an absolute minimum, the statement is non-erroneous judicial
dictum, and we must follow it under the Erie doctrine. 2
        In Texas, there are two types of dicta: obiter dictum and judicial dictum.
Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C., 896 F.3d 340,
346 (5th Cir. 2018). Obiter dictum is made in passing and is not binding. Id.
Judicial dictum is “a statement made deliberately after careful consideration
and for future guidance in the conduct of litigation.” Id. Judicial dictum
“should be followed unless found to be erroneous.” Id.
       In Sanchez, the statement appears as the culminating point of the rule
statement. Sanchez, 494 S.W.3d at 726. Based on the language and structure
of the opinion, this statement appears to be deliberate and “plainly intended
to guide future courts and litigants” on the appropriate requirements to
establish proximate cause in similar circumstances. Autobahn, 896 F.3d at
347 (emphasis removed). Accordingly, the statement must at least be treated
as judicial dictum. 3
       To the extent the facts in Sanchez are slightly different from those at
hand, “this court must make an ‘Erie guess,’ i.e., forecast how the Supreme
Court of Texas ‘would rule.’” Mid-Continent Cas. Co. v. Eland Energy, Inc., 709



       1  The Estate argues that “[a]s long as pleadings plausibly allege gross negligence,
recklessness and/or intentional misconduct, §§ 771.053(a) and 772.407 provide no immunity
to T-Mobile.” However, this is at odds with the quoted portion of the relevant statutes.
        2 While T-Mobile argues that the Sanchez statement was not dictum at all, we need

not reach this issue.
        3 And the Estate cannot show that the statement is somehow erroneous. Indeed, it is

consistent with the approach to proximate causation that Texas outlined more than a decade
earlier. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001) (cited
favorably in Sanchez).
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F.3d 515, 520 (5th Cir. 2013) (citing Paz v. Brush Engineered Materials, Inc.,
555 F.3d 383, 392 (5th Cir. 2009)). “This prediction may be based on [Texas]
case law, dicta, general rules on the issues, decisions of other states, and
secondary sources.” Id. (alteration in original).
      Based on the express language of the Sanchez statement, we conclude
that the Supreme Court of Texas would probably rule that the Estate has failed
to plead facts that could support a finding of proximate cause. Accordingly, the
district court erred in attempting to modify Texas’s proximate cause law. See
W.-S. Life Assurance Co. v. Kaleh, 879 F.3d 653, 658 (5th Cir. 2018) (“When
making an Erie guess, [o]ur task is to attempt to predict state law, not to create
or modify it.” (alteration in original) (quotation omitted)).
                                  CONCLUSION
      For the foregoing reasons, we REVERSE the district court and REMAND
with instructions to dismiss the action against T-Mobile.




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