                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-10-00152-CV


SOMCHAI SARAMANEE AND                                                APPELLANTS
ANDREW TERRELL BOGGESS

                                         V.

TOWN OF NORTHLAKE                                                       APPELLEE


                                      ----------

          FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

                                      ----------

                         MEMORANDUM OPINION1

                                      ----------

      Appellants Somchai Saramanee and Andrew Terrell Boggess appeal from

the trial court‘s grant of Appellee the Town of Northlake‘s plea to the jurisdiction.

In three issues, Saramanee and Boggess argue that they pled sufficient facts to

establish a waiver of governmental immunity under section 101.021 of the Texas

Tort Claims Act (TTCA), that Northlake did not produce evidence establishing

      1
       See Tex. R. App. P. 47.4.
that section 101.021 does not apply, and that even if section 101.021 does not

waive immunity, immunity is waived under section 101.0215 for negligence

arising from Northlake‘s provision of police enforcement. Because we hold that

Saramanee and Boggess alleged sufficient facts to demonstrate a waiver of

immunity under section 101.021, we reverse the trial court‘s order dismissing

their claims.

      While on patrol on October 7, 2007, Northlake Police Officer Nick

McGregor observed a group of motorcyclists driving on the freeway; two

motorcyclists in the front of the group were speeding and performing ―wheelies.‖

McGregor decided to stop the motorcyclists, and to do so, he drove onto the

freeway on ramp, crossed the white lines to get into the right lane, got in front of

the two motorcycles in the lane, and then stopped his car in the lane. Of the two

motorcyclists, one came to a stop and the other drove around the police car and

did not stop. McGregor opened his driver‘s side car door and exited his vehicle

on the driver‘s side.   Boggess and Saramanee were among the motorcycle

drivers in the group, and an accident occurred when Saramanee struck

Boggess‘s motorcycle.

      Boggess and Saramanee filed suit against the Town of Northlake, alleging

that McGregor was recklessly and grossly negligent in the operation of his police

vehicle.   Northlake filed a plea to the jurisdiction, asserting governmental

immunity and contending that (1) Boggess and Saramanee had not stated a

claim for which the town‘s immunity from suit had been waived and (2) Boggess


                                         2
and Saramanee had failed to allege facts showing either that their injuries had

been caused by the use or operation of a motor vehicle2 or by the condition or

use of tangible personal property.3

      In their response, Boggess and Saramanee did not specify which section

of the TTCA waived immunity for their claims, but they asserted that there was ―a

clear nexus between [McGregor‘s] use of the vehicle‖ and their injuries, and they

used the ―arises from‖ language of section 101.021(1), impliedly arguing that

their injuries were caused by the operation or use of McGregor‘s vehicle. They

attached to their response an internal investigation memo from the Northlake

police department, which stated that McGregor had violated department

directives by using his vehicle to block the roadway and by failing to have due

regard for the safety of other vehicles on the roadway.

      At the hearing on Northlake‘s plea to the jurisdiction, Boggess and

Saramanee put on evidence to show that the accident resulted from McGregor‘s

actions. The trial court watched the video from the in-car camera in McGregor‘s

vehicle. Boggess then testified about the accident. He stated that as he was

driving on the freeway, he saw an all-black car driving on the service road at a

high rate of speed. He saw the driver cut across the solid white line to get onto

      2
       See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2011)
(waiving a governmental unit‘s immunity for injuries and damages arising from
the use or operation of a motor vehicle).
      3
       See id. § 101.021(2) (waiving immunity for damages resulting from the
use or condition of tangible property).


                                        3
the interstate, come to a complete stop, and turn on its emergency lights. After

McGregor‘s car stopped, Boggess started slowing down to miss the vehicle,

―which [he] just thought was an erratic driver.‖ When McGregor exited the car,

Boggess saw that it was a police officer, ―so [he] took evasive action to make

sure that [he] did not contact the officer himself, which led to the accident.‖

Boggess also testified that he did not have a Class M certification on his driver‘s

license, and he acknowledged that other motorcycle drivers were able to pass

McGregor‘s vehicle to the left and on the shoulder to the right.

      Northlake argued that the evidence did not show that it was the use of

McGregor‘s vehicle that directly caused Boggess‘s and Saramanee‘s damages,

but rather that McGregor‘s use of the vehicle merely created the condition that

made the accident possible. After hearing the evidence, the trial court concluded

that the damages did not arise from McGregor‘s use or operation of his motor

vehicle. The court noted that the evidence showed that another motorcyclist had

time to come to a complete stop behind McGregor‘s vehicle even though he had

been ahead of Boggess on the road and that McGregor had time to get out of his

vehicle before the accident occurred. The trial court also referenced Boggess‘s

testimony regarding why he swerved:

      He says he sees the car coming at a high rate of speed, coming
      down . . . the access road, pulling onto the road at a high rate of
      speed. He doesn‘t think it‘s a police car, so I guess he just doesn‘t
      care if it‘s not a police car. After [McGregor] stops, turns on his
      lights, and . . . swings open the door and puts his feet [on the road],
      then [Boggess] says, oh, it‘s a police officer, I guess I better swerve



                                         4
      it since it‘s a police officer. I mean, that—your client‘s testimony
      doesn‘t make any sense in that regard.

      The court then concluded, ―What I see when I look at the video[], and

coupled with your own client‘s testimony is, that the vehicle was in park, and the

officer‘s feet were on the pavement, he was not using or operating the motor

vehicle at the time the accident occurred.‖         The trial court then granted

Northlake‘s plea to the jurisdiction.

                             Governmental Immunity

      The state has sovereign immunity from suit and from liability unless that

immunity has been waived.4 Cities, as political subdivisions of the state, are also

entitled to immunity—referred to as governmental immunity—both from suit and

from liability, except when that immunity has been waived.5

      The TTCA waives immunity from liability for

      property damage, personal injury, and death proximately caused by
      the wrongful act or 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.6



      4
       State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).
      5
       Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
      6
       Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).


                                        5
To the extent that the TTCA waives a governmental unit‘s immunity from liability,

it also waives the governmental unit‘s liability from suit.7

                Standard of Review for Pleas to the Jurisdiction

      We review a trial court‘s ruling on a plea to the jurisdiction de novo. 8 A

plaintiff has the burden of alleging facts that affirmatively demonstrate that the

trial court has subject-matter jurisdiction.9 Accordingly, because a governmental

unit has immunity from suit, a plaintiff asserting a claim against a governmental

unit must allege facts that affirmatively demonstrate that the legislature has

waived immunity for the claims brought.10

      In determining a plea to the jurisdiction challenging the pleadings, that is,

asserting that the plaintiff has not met this burden, a court looks at the allegations

in the plaintiff‘s pleadings and accepts them as true.11 If, however, the plea to

the jurisdiction challenges the existence of jurisdictional facts, a court must also

consider the relevant evidence necessary to resolve the jurisdictional issues

      7
       Id. § 101.025(a) (―Sovereign immunity to suit is waived and abolished to
the extent of liability created by this chapter.‖).
      8
      Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 407 (Tex. App.—
Fort Worth 2006, pet. denied).
      9
      City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex. App.—Fort
Worth 2009, no pet.).
      10
       City of Arlington v. Randall, 301 S.W.3d 896, 906 (Tex. App.—Fort Worth
2009, pet. filed).
      11
        Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.
2004); Pakdimounivong, 219 S.W.3d at 407.


                                           6
raised.12     When a jurisdictional challenge also implicates the merits of the

plaintiff‘s claim, then the trial court considers the evidence submitted by the

parties to determine if a fact question exists.13 If the evidence creates a fact

question about the jurisdictional issue, then the trial court cannot grant the plea to

the jurisdiction; instead, the trial court must leave the fact issue for determination

by the fact finder.14 But if the evidence is undisputed, or if the evidence does not

raise a fact question on the jurisdictional issue, the trial court rules on the plea to

the jurisdiction as a matter of law.15

                                         Analysis

      In their first issue, Saramanee and Boggess argue that they pled sufficient

facts to establish a waiver of governmental immunity under section 101.021

based on their allegations that McGregor operated and used a patrol car

negligently in a manner that caused an accident, resulting in Saramanee‘s and

Boggess‘s property damage and injuries.

      In Northlake‘s plea to the jurisdiction, it challenged both the pleadings and

the existence of jurisdictional facts. With respect to Northlake‘s challenge to their

pleadings, Saramanee and Boggess had the burden to plead facts that, if true,


      12
        Miranda, 133 S.W.3d at 227.
      13
        Id.
      14
        Id. at 227–28.
      15
        Id. at 228.


                                            7
demonstrate (1) that their damages were proximately caused by McGregor‘s

negligence or wrongful act during the scope of his employment, (2) that the

damages resulted from the operation or use of a motor-driven vehicle, and (3)

that McGregor would be personally liable to them under Texas law. 16 Northlake‘s

plea to the jurisdiction challenged their pleadings with respect to the ―operation or

use‖ element. In their petition, Saramanee and Boggess alleged that without

operating his siren or emergency lights, McGregor pulled onto the highway at a

high rate of speed directly in front of the motorcycle drivers and then ―suddenly

slammed on his brakes[,] forcing the motorcycles to take emergency evasive

action to avoid a collision with the patrol unit.‖ If such action on McGregor‘s part

constitutes the operation or use of a motor vehicle, and if the damages

complained of arose from this operation or use, then their pleadings sufficiently

alleged a waiver of immunity.17

      At issue here are the terms ―arises from‖ and ―operation or use.‖ The term

―operation‖ means ―‗a doing or performing of a practical work,‘‖ and the term

―use‖ means ―‗to put or bring into action or service; to employ for or apply to a

given purpose.‘‖18 By use of the phrase ―arises from,‖ the statute ―requires a

      16
       See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1); Miranda, 133
S.W.3d at 227.
      17
        See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
      18
       LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.
1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766
S.W.2d 208, 211 (Tex. 1989)).


                                         8
nexus between the injury negligently caused by a governmental employee and

the operation or use‖ of a vehicle by the employee. 19 The nexus ―requires more

than mere involvement of property.‖20          For immunity to be waived, the

employee‘s operation or use of the vehicle must not be merely part of a

sequence of events that ultimately results in the injury but must actually cause

the injury.21 If the vehicle is nothing more than the place where the plaintiff has

injured himself, or if the vehicle does no more than furnish the condition that

makes the injury possible, immunity is not waived.22

      Saramanee and Boggess alleged in their petition that without operating his

siren or emergency lights, McGregor pulled onto the highway at a high rate of

speed directly in front of the motorcycle drivers and then ―suddenly slammed on

his brakes[,] forcing the motorcycles to take emergency evasive action to avoid a

collision with the patrol unit.‖ In their response to Northlake‘s plea, they asserted

that McGregor slammed on his brakes to block their path at a time when they did

not have sufficient time or distance from his vehicle to stop. These facts do not


      19
        Id.
      20
        Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003).
      21
        Id.
      22
        Id.; LeLeaux, 835 S.W.2d at 51; see also Dallas County Mental Health &
Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (holding that
immunity is not waived based on the use or condition of tangible property when
the use or condition of the property was too attenuated from the injury to be said
to have caused it).


                                         9
allege that McGregor‘s actions with his vehicle merely furnished a condition that

made the accident possible or that his actions were merely part of a sequence of

events that ultimately led to their injuries. They allege that Boggess had to take

emergency evasive action to avoid hitting McGregor because of McGregor‘s

actions and that McGregor‘s operation of his vehicle was the reason for and

actual cause of Boggess‘s swerving into the left lane and Saramanee‘s resulting

collision with Boggess. Saramanee and Boggess‘s pleadings thus alleged facts

showing that their injuries arose from McGregor‘s use or operation of his

vehicle.23 Accordingly, we hold that Saramanee and Boggess sufficiently pled a

waiver of Northlake‘s immunity. We sustain their first issue.

      In their second issue, Saramanee and Boggess argue that Northlake did

not meet its burden to prove that their injuries and property damage did not arise

from and were not caused by McGregor‘s operation or use of his patrol car. In

addition to challenging Saramanee and Boggess‘s pleadings, Northlake also

challenged the existence of jurisdictional facts, that is, it argued that the facts of

the case did not give rise to jurisdiction. Because the facts as pled sufficiently

alleged a waiver of immunity, in order to prevail on its plea, Northlake had to

show that despite what Saramanee and Boggess pled, their damages actually

      23
         See, e.g., Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex. App.—Dallas
1987, no writ) (holding that the plaintiffs had alleged a waiver of immunity based
on the operation of a motor-driven vehicle when they alleged that a bus driver
failed to activate the flashers or warning signals of the school bus when children
were exiting and that their daughter was struck by a car as she crossed the street
immediately after exiting the bus).


                                         10
arose in some manner other than as alleged and that the manner in which the

damages arose did not support a waiver of immunity.

      Northlake alleged below that the damages complained of did not arise from

McGregor‘s operation or use of his motor vehicle because the damages were

actually caused when Saramanee drove his motorcycle into Boggess‘s

motorcycle. And again on appeal, Northlake points out that at the time of the

accident, McGregor‘s vehicle was not being used or operated. But what matters

is not whether McGregor was driving his vehicle at the exact moment of the

collision, but whether McGregor did actually use or operate his vehicle and

whether that use or operation gave rise to the injuries. Northlake had the burden

to bring forth favorable evidence on this point.24 If it did so, Saramanee and

Boggess would then have had the burden to submit evidence raising an issue of

fact on the issue of jurisdiction.25

      The trial court considered evidence submitted by both sides about the

cause of the accident.26 The evidence conflicted about whether, as Northlake

police department‘s report stated, Saramanee and Boggess ―possibly were

unable to see [McGregor‘s] vehicle parked in the roadway due to the other

motorcycles in front of them,‖ or whether, as Boggess testified, he did see


      24
        See Miranda, 133 S.W.3d at 227.
      25
        See id.
      26
        See id.


                                       11
McGregor‘s vehicle.      The evidence also conflicted on whether Boggess had

come to a stop at the time that he was struck by Saramanee. Boggess also gave

seemingly contradictory evidence about whether he could have avoided hitting

McGregor‘s vehicle without swerving into the left lane, at one point stating that if

McGregor had not exited the patrol car, he could have stayed in the same lane

and passed the vehicle without moving into the left lane, and stating at another

point that his only choice was between moving into the left lane and hitting

McGregor‘s vehicle.

      The trial court was not called upon, however, to resolve these factual

disputes because while the evidence may raise questions of fact about the merits

of Saramanee and Boggess‘s claims, it does not raise questions of fact on the

issue of jurisdiction.27 Regardless of whether Boggess stopped his motorcycle

and was then hit by Saramanee or was hit by Saramanee because he swerved

into Saramanee‘s driving lane, and regardless of whether it was McGregor or his

vehicle that Boggess was attempting to avoid hitting, even Northlake‘s evidence

showed that McGregor‘s actions directly set in motion the rapid sequence of

events that resulted in the accident, either because Boggess took evasive action

to avoid hitting McGregor or his vehicle (after McGregor used his vehicle by


      27
          See id. at 227–28 (stating that if the evidence creates a fact question on
the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction
and must leave the fact issue for the fact finder, but that if the relevant evidence
fails to raise a fact question on the jurisdictional issue, then the trial court rules on
the plea to the jurisdiction as a matter of law).


                                           12
stopping on the freeway and by opening the door) or because McGregor used his

vehicle as a blockade, resulting in Boggess stopping his motorcycle and

Saramanee striking it almost immediately after the stop. Without regard to what

the evidence at trial will ultimately show, under any of the factual scenarios

supported by the evidence submitted to the trial court for jurisdictional purposes,

Northlake failed to show that Saramanee‘s and Boggess‘s damages did not arise

from McGregor‘s use or operation of his vehicle.28

      Northlake contends that the video from the in-car camera in McGregor‘s

vehicle conclusively showed that his use of the vehicle was too attenuated from

the accident. It argues that the video demonstrated a gap of eight to fourteen

seconds between when McGregor stopped and when the accident occurred and

a gap of twelve to eighteen seconds between the time at which McGregor

activated his emergency lights and the time of the accident. Northlake bases its

calculations on the time stamp on the video, from the time at which the video

shows McGregor entered the freeway and the time at which McGregor can be

heard saying ―What happened? You okay?‖ Even assuming that a time gap of

less than thirty seconds between two events could make the second event too

attenuated from the first to show causation, Northlake is incorrect that the video


      28
        See Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 867 (Tex.
App.—Austin 2001, pet. denied) (holding that the trial court did not err by denying
a school district‘s plea to the jurisdiction because school bus driver‘s affirmative
act in honking to signal to a student that the street was safe to cross was a use of
the bus and may have contributed to the accident); Hitchcock, 738 S.W.2d at 37.


                                        13
conclusively shows that McGregor‘s vehicle did no more than furnish a condition

that made the injuries possible. The camera was facing forward, and therefore it

did not record the accident or any events that happened behind McGregor‘s

vehicle. The video thus does not conclusively establish sufficient attenuation

between McGregor‘s actions and the accident.

      Northlake cites cases that it urges this court to follow, but those cases are

distinguishable. This is not a case in which the facts alleged in the pleadings or

the evidence demonstrated that Boggess and Saramanee could have avoided

the accident if they had not ignored McGregor‘s flashing lights until it was too

late.29 Nor is this a case when the plaintiffs‘ allegations showed or the evidence

before the trial court proved that Boggess chose to move over into another lane

instead of stopping; here, Boggess alleged and testified that he did not have time

to stop, and Northlake‘s evidence did not conclusively prove otherwise.30 Finally,

this case is not one in which the plaintiffs were injured because they attempted to

evade the police instead of yielding to a traffic stop.31 None of the cases cited by



      29
          See City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App.—Houston
[14th Dist.] 2004, pet. denied) (holding that immunity was not waived when the
plaintiff‘s injuries resulted from a driver ignoring the flashing lights of two police
cars and striking the vehicle in which the plaintiff was sitting).
      30
       See Tex. Dep’t of Pub. Safety v. Grisham, 232 S.W.3d 822, 827 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (holding that immunity was not waived
when the plaintiff driver, upon seeing a stopped patrol car on the shoulder, chose
to move into the left lane, which was obstructed by a vehicle, instead of slowing
down).


                                         14
Northlake addressed a scenario in which a government employee‘s use or

operation of a vehicle creates a situation that requires immediate evasive action

that results in injuries.   Accordingly, we sustain Saramanee and Boggess‘s

second issue.

      Because we have sustained their first two issues, which are dispositive, we

do not reach Saramanee and Boggess‘s third issue in which they argue that

Northlake‘s immunity was waived under section 101.0215 of the TTCA.32

      Having sustained Saramanee and Boggess‘s dispositive issues, we

reverse the trial court‘s order dismissing their claims for want of jurisdiction and

remand this cause for further proceedings.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: March 17, 2011




      31
         See City of Dallas v. Hillis, 308 S.W.3d 526, 535 (Tex. App.—Dallas
2010, pet. filed) (concluding that the police officer‘s use of his patrol car was too
attenuated from the plaintiff‘s conduct to constitute a cause of the plaintiff‘s
injuries when the police officer attempted to initiate a traffic stop of the plaintiff
and, instead of stopping, the plaintiff accelerated, attempted to flee, and
ultimately lost control of his motorcycle).
      32
        See Tex. R. App. P. 47.1.


                                         15
