

 
 

                                                                                                                             
 
 
 
 
NUMBER 13-10-00670-CV
 
COURT OF APPEALS
 
THIRTEENTH DISTRICT
OF TEXAS
 
CORPUS CHRISTI - EDINBURG  
                                                                                                                     

 
CITY OF MCALLEN,                                                                 Appellant,
 
v.
 
MICHAEL RENE CORPUS,                                                              
 Appellee.
                                               
                                                                        
 
On appeal from the County
Court at Law No. 6 
of Hidalgo County,
Texas.
                                                                                                                     

 
MEMORANDUM OPINION
 
Before Chief Justice
Valdez and Justices Rodriguez and Benavides 
Memorandum Opinion by
Justice Rodriguez
 
            Appellant City of McAllen (the City)
challenges the trial court's denial of its plea to the jurisdiction and motion
to dismiss in this Texas Tort Claims Act (TTCA) case brought by appellee
Michael Rene Corpus.  See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2011).  By one
issue, the City argues that the trial court erred in denying its plea to the
jurisdiction because Corpus failed to plead facts alleging a waiver of the
City's governmental immunity.  We reverse and render.
I. 
Background
 
            Corpus pleaded the following facts in his
amended petition:
On
or about May 6, 2009, [Corpus] was seriously injured as a result of actions
undertaken by an employee of [the City].  Namely, on said date, McAllen Animal
Control Officer, Roberto Mata, responded to a bee call initiated by [Corpus]. 
Upon arriving at [Corpus]'s location, [Corpus] requested that Mr. Mata follow
him to the location where the bees were located.  Mr. Mata refused and insisted
that [Corpus] accompany him in his animal control vehicle to the location.  Mr.
Mata's vehicle was equipped with animal/pest control devices.  Two animal
control vehicles arrived at the complained[-]of area, one operated by Mr. Mata
and the other operated by another animal control officer.
 
When
they arrived at the area, Mr. Mata, armed with his protective clothing and
gear, approached the hive while [Corpus] remained in [the City]'s vehicle.  At
no time was the animal control vehicle that Mr. Mata was operating turned off. 
The motor was running at all times.  [Corpus] was instructed to remain in the
vehicle for his safety.  After Mr. Mata located the hive, Mr. Mata began
spraying the bees which caused the bees to become agitated.  Then Mr. Mata
either in an attempt to seek refuge or to retrieve another animal/pest control
device recklessly opened the vehicle door to his unit thereby allowing the bees
to enter the vehicle and attack [Corpus], who was not wearing or given
protective gear/clothing.  Mr. Mata was using and/or operating his vehicle in a
manner in which the vehicle was intended to be operated.
 
            As a
result of the operation or use of [the City]'s motor-driven vehicle created by
[the City]'s employee, Roberto Mata, [Corpus] received hundreds of bee stings
that required him to seek medical attention.  [Corpus] was caused to suffer
considerable personal injuries.
 
Corpus alleged the following specific negligent act: 
"Failing to use and/or operate the motor vehicle as a person of ordinary
prudence would have maintained under the same or similar circumstances . . .
."  Corpus prayed for damages in the form of past and future medical care
and expenses, pain and suffering, and mental anguish.
            The City filed its plea to the jurisdiction
and motion to dismiss based on Corpus's pleadings alone, arguing that Corpus
failed to plead facts waiving the City's governmental immunity under the TTCA
because (1) the negligent actions he pled did not involve Mata's operation or
use of a motor vehicle, and (2) there is no nexus between the operation or use
of a motor vehicle by Mata, if any, and Corpus's injuries.  Corpus responded to
the City's plea.  Neither the City nor Corpus incorporated evidence into their
plea or response.  After a hearing, the trial court denied the City's plea to
the jurisdiction.  This accelerated, interlocutory appeal followed.  See id.
§ 51.014(a)(8) (Vernon 2008) (permitting the accelerated appeal of an
interlocutory order "grant[ing] or den[ying] a plea to the jurisdiction by
a governmental unit").
II. 
Standard of Review and Applicable Law
 
            A plea to the jurisdiction is a dilatory
plea; its purpose is "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 jurisdiction over the subject matter of a pleaded cause of action.  Tex.
Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex.
Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex. App.–Corpus
Christi 2004, no pet.).  Subject matter jurisdiction is a question of law;
therefore, an appellate court reviews de novo a trial court's ruling on a plea
to the jurisdiction.  Miranda, 133 S.W.3d at 226; Morris, 129
S.W.3d at 807.  
Because immunity from suit defeats a
trial court's subject-matter jurisdiction, it may be properly asserted in a
jurisdictional plea.  Miranda, 133 S.W.3d at 225-26.  In a suit against
a governmental unit, the plaintiff must affirmatively demonstrate the court's
jurisdiction by alleging a valid waiver of immunity.  Dallas Area Rapid
Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).  When a trial court's
decision concerning a plea to the jurisdiction is based on the plaintiff's
petition, we accept as true all factual allegations in the petition to
determine if the plaintiff has met this burden.  Id.; Morris, 129
S.W.3d at 807.  We examine the pleader's intent and construe the pleading in
plaintiff's favor.  County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.
2002); Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002)
(per curiam).  A plea to the jurisdiction may be granted without allowing the
plaintiff to amend the pleading if the pleading affirmatively negates the
existence of jurisdiction.  Brown, 80 S.W.3d at 555; Ramirez, 74
S.W.3d at 867.
Under the doctrine of governmental
immunity, a municipality is immune from tort liability from its own acts or the
acts of its agents, unless the TTCA clearly and unambiguously waives immunity. 
City of Amarillo v. Martin, 971 S.W.2d 426, 427 (Tex. 1998).  Relevant
to this case, the TTCA waives immunity for property damage, personal injury,
and death caused by the wrongful act or omission or negligence of an employee
acting within the scope of his employment if the injury rises from operating or
using a motor vehicle and the employee would be personally liable to the
claimant according to Texas law.  Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(1).  "Operation"
refers to "doing or performing of a practical work"; "use"
is defined in the context of this statute as "put[ting] or bring[ing] into
action or service; [] employ[ing] for or apply to a given purpose."  LeLeaux
v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992)
(citations omitted); see Starkey v. Andrews, 104 S.W.3d 626, 629 (Tex.
App.–Tyler 2003, no pet.).  The supreme court has interpreted the "arises
from" requirement to mean that the vehicle's use "must have actually
caused the injury."  Whitley, 104 S.W.3d at 543 (internal
quotations omitted).  This causal nexus is not satisfied by the mere
involvement of a vehicle nor by an operation or use that "does no more
than furnish the condition that makes the injury possible."  Id.
(internal quotations omitted); see City of Kemah v. Vela, 149 S.W.3d
199, 204 (Tex. App.–Houston [14th Dist.] 2004, pet. denied); Gill v. Tex.
Dep't of Criminal Justice, 3 S.W.3d 576, 581 (Tex. App.–Houston [1st Dist.]
1999, no pet.).
III. 
Discussion
 
            By its sole issue, the City argues that the
trial court erred in denying its plea to the jurisdiction because Corpus's
petition failed to allege facts waiving the City's governmental immunity under
the TTCA.  Specifically, the City argues that the negligent act alleged by
Corpus does not amount to the use or operation of a motor-vehicle as
contemplated by section 101.021(1) and that the facts alleged do not show the
requisite causal nexus because the presence of the animal control vehicle did
no more than furnish the condition that made Corpus's injuries possible.  We
agree.
Corpus states in his amended petition
that "[a]s a result of the [negligent] operation or use of [the City]'s
motor-driven vehicle . . . [by Mata], [Corpus] received hundreds of bee stings
. . . [and] . . . was caused to suffer considerable personal injuries." 
It is not enough, however, to merely state that the negligent act involved a
motor-vehicle or that the use of the motor-vehicle caused the plaintiff's
injury.  See Los Fresnos Consol., Indep. Sch. Dist. v. Southworth,
156 S.W.3d 910, 915 (Tex. App.–Corpus Christi 2005, pet. denied) (citing Tex.
Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)) ("Mere
reference to the TTCA does not establish consent to be sued and is therefore
insufficient to confer jurisdiction on the trial court.").  Instead, we
look to the substance of the complained-of actions, as alleged by the plaintiff
in his petition.  See id. (holding that we "must consider the
particular facts of the case before us to determine whether" the claim
alleged by the plaintiff falls within the limited scope of the TTCA's waiver of
governmental immunity) (citation omitted).  And the facts alleged here by
Corpus belie his bald statement that his injuries were caused by Mata's use or
operation of the animal control truck.  
In his amended petition, Corpus alleged
that Mata "recklessly opened" the door of the animal control truck
"thereby allowing the bees to enter the vehicle and attack
[Corpus]."  We do not believe the opening of the truck door amounts to the
vehicle doing or performing a practical work nor does opening the door bring
the truck into action or service.  See LeLeaux, 835 S.W.2d at
51.  Rather, it is plain from the alleged facts that the truck was stationary
and operating, at most, as a shelter for Corpus and Mata; as such, it was not
in use or operation as a vehicle.  See Starkey, 104 S.W.3d at 629
(reasoning that the bus from which a disabled student fell when school
employees attempted to load him was not being used or operated within the
meaning of the TTCA where it was merely the setting of the injury).  
            Further, the facts alleged by Corpus
affirmatively negate that his injuries arose from that alleged use.  As noted
above, the animal control truck was not in operation; it was parked.  Corpus
was injured when the bees entered the cab of the truck where he happened to be
sitting.  Although we do not condone Mata opening the truck door and exposing a
passenger not wearing protective gear to agitated bees, we nonetheless cannot
conclude that Corpus's injuries resulted from the operation or the use of the
truck.  See Vela, 149 S.W.3d at 204 (holding that the stationary police
car in which the plaintiff was sitting did not cause her injuries when it was
rear-ended by another car); Gill, 3 S.W.3d at 581 (holding that the
prisoner plaintiff's injury did not result from the use or operation of the
prison truck in which prisoner just happened to be standing when a tree stump
rolled onto his leg).  Under the facts of this case, the animal control truck
did no more than furnish the condition that made Corpus's injuries possible.  See
Whitley, 104 S.W.3d at 543.
Because Corpus failed to allege facts
showing that his injury arose from Mata's operation or use of a motor-vehicle,
he failed to plead a waiver of the City's governmental immunity.  See Tex. Civ. Prac. & Rem. Code Ann. §
101.021(1); see also Whitley, 104 S.W.3d at 542.  And based on
the facts alleged, we conclude that the defect in Corpus's pleading is
incurable.  The negligent act alleged by Corpus—which involves the truck only
as the site of the injury—affirmatively negates the existence of a cause of
action that would waive the City's immunity and confer jurisdiction on the
trial court.  See Brown, 80 S.W.3d at 555; Ramirez, 74
S.W.3d at 867.  The City's sole issue is sustained.
IV. 
Conclusion
 
            We reverse the order of the trial court and
render judgment granting the City's plea to the jurisdiction and dismissing
Corpus's claims with prejudice.
            
 
 
                                                                                                             NELDA
V. RODRIGUEZ
                                                                                                             Justice
 
Delivered
and filed the 
19th
day of May, 2011.

