                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________
                              NO. 09-18-00145-CV
                             ____________________


                    THE CITY OF BEAUMONT, Appellant
                                         V.

                        KHALID MAHMOOD, Appellee

_______________________________________________________             ______________
                   On Appeal from the 172nd District Court
                          Jefferson County, Texas
                         Trial Cause No. E-198,371
________________________________________________________             _____________

                                    OPINION

      This is an interlocutory appeal from an order issued by a district court denying

the City of Beaumont’s plea to the jurisdiction. We affirm.

                                    Background

      In August 2014, Khalid Mahmood was driving down a street in the City of

Beaumont when a large fiberglass manhole fell from one of the City’s trucks.

Mahmood, who was driving a minivan, hit the manhole.



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      In 2016, Mahmood sued the City, claiming that he was injured when his

minivan struck the manhole after it fell from a truck being driven by a City

employee, Christopher Norman. Mahmood alleged that Norman was in the course

and scope of his employment with the City when the collision occurred; that the

City, through its employees, had negligently secured the manhole to the truck before

the collision occurred; and that Norman’s negligent operation of the truck was the

reason the manhole fell from the truck.

      Nearly two years after Mahmood sued, the City challenged the trial court’s

exercise of jurisdiction over Mahmood’s claims by filing a plea to the jurisdiction.

In its plea, the City asserted that Mahmood “cannot show a nexus between the

injuries he allegedly sustained and the [City’s] use of motor-driven equipment.” The

City also alleged that Mahmood could not show that his injuries had been “caused

by the use of tangible personal property or real property by a City employee.” In

support of its plea, the City relied on Mahmood’s answers to the City’s requests for

discovery, a deposition the City obtained from Mahmood, the deposition of

Christopher Norman, and the deposition of Wilma Jones, another of the City’s

employees who was present when Mahmood’s minivan struck the City’s manhole.

      In his response to the City’s plea, Mahmood relied on the Texas Tort Claims

Act to argue that the Legislature had waived the City’s immunity for injuries that

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arose from the operation or use of a motor-driven vehicle being used by an employee

while in the course and scope of the City’s employment. See Tex. Civ. Prac. & Rem.

Code Ann. § 101.021(1) (West 2011). Additionally, Mahmood relied on a waiver

provision in the Tort Claims Act that waives a municipality’s immunity if the

plaintiff’s injury arose from the municipality’s use of tangible personal property. See

id. § 101.021(2) (West 2011). While Mahmood attached his deposition to his

response, he did not ask the trial court to review any evidence that the City had not

already asked the court to consider in resolving the City’s plea.

      In April 2018, and without stating a basis for its ruling, the trial court denied

the City’s plea. We note our jurisdiction over the City’s accelerated appeal. See id.

§ 51.014(a)(8) (West Supp. 2017).

                                    Waiver of Immunity

         The City challenged the trial court’s jurisdiction over Mahmood’s case by

filing a plea to the jurisdiction. A plea to the jurisdiction is a dilatory plea, which

governmental entities may use to challenge a court’s power to resolve the merits of

a plaintiff’s claims. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.

2000).

      Generally, trial courts do not possess subject-matter jurisdiction over a suit

against a governmental entity unless the Legislature has enacted a statute waiving

                                          3
the entity’s immunity for the type of claim the plaintiff has asserted in the suit. See

Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 403 (Tex. 1997); Duhart v. State, 610

S.W.2d 740, 741 (Tex. 1980). But in cases involving torts, the Legislature waived

the immunity that governmental entities, such as municipalities, otherwise enjoy if

the plaintiff’s claim is one that falls within the requirements in the statutory waiver.

See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021-.029 (West 2011 & Supp. 2017).

Thus, section 101.025 of the Tort Claims Act allows a plaintiff to sue a governmental

entity for damages if the requirements in the Tort Claims Act apply to the plaintiff’s

claim. See id. § 101.025 (West 2011).

      For injuries that arise from a municipality’s operation of motor-driven

vehicles, the Tort Claims Act waives a municipality’s immunity from suit if the

municipality’s employee was driving the vehicle, the employee was acting in the

scope of his employment, the collision arose “from the operation or use of a motor-

driven vehicle[,]” and “the employee would be personally liable to the claimant

according to Texas law[.]” Id. § 101.021(1). The Tort Claims Act also provides a

second waiver of a municipality’s immunity from suits if the suit arose from the

municipality’s use of tangible property, and the municipality was engaged in a




                                           4
governmental function when the plaintiff’s injury occurred. Id. § 101.021(2). 1

Additionally, for the use-of-property waiver to apply, it must also be shown that the

municipality “would, were it a private person, be liable to the claimant according to

Texas law.” Id.

       The evidence the trial court considered in deciding the City’s plea contains

two basic versions of the events that led to Mahmood’s collision with the manhole.

In reviewing rulings on pleas to the jurisdiction, and unless the evidence about how

a tort occurred is conclusively established by the evidence the trial court considered

in ruling on the plea, the evidence is reviewed in the light that favors the party who

opposed the plea. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228

(Tex. 2004). When trial courts consider evidence from an interested party, that

party’s testimony must be clear, positive, direct, credible, free from contradiction,

and uncontroverted before it will be considered conclusive as having established a

fact. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003).




      1
         The Tort Claims Act waives a municipality’s immunity for many
governmental functions, but it does not waive a municipality’s immunity regarding
a municipality’s proprietary functions. See Tex. Civ. Prac. & Rem. Code Ann. §
101.0215 (West Supp. 2017). In Mahmood’s case, neither party has ever claimed
that the City was engaged in a proprietary function when Mahmood’s collision with
the manhole occurred.

                                          5
      The evidence the trial court considered in ruling on the City’s plea included

the depositions of (1) Christopher Norman, (2) Wilma Jones, and (3) Mahmood.2

These depositions contain two versions about the circumstances that led to

Mahmood’s collision. Both at trial and on appeal, the parties do not dispute several

facts, including the following: (1) the City owned the truck from which the manhole

fell; (2) while the truck was in the City’s yard, the City’s employees loaded and

strapped the manhole to the truck; (3) before leaving the City’s yard, Norman

checked to see that the equipment was secured to the bed of his truck; and (4) while

moving the manhole across town, Norman and the others in the truck were all acting

in the course and scope of their employment with the City. Although no

disagreement exists over these facts, the accounts of the three witnesses conflict

about what happened just before the collision occurred.

      Mahmood’s version about what happened differs from the accounts given by

Norman and Jones. In his deposition, Mahmood testified that something fell off the

truck that he was following as he was driving down the street. According to

Mahmood, the object that fell from the truck rolled toward him, and he could not

avoid hitting it because he did not have time to stop. Mahmood explained that he hit


      2
       Mahmood’s discovery responses are included in the evidence the City asked
the court to consider in deciding its plea. Nevertheless, Mahmood’s discovery
responses are consistent with his deposition about how the collision occurred.
                                         6
the brakes, but “[the manhole] just hit me.” Mahmood also testified that his minivan

and the truck were both in motion when the collision occurred.

      In contrast to Mahmood’s version of the events, Norman and Jones testified

in their depositions that when the manhole fell off the truck, Norman stopped. At

that point, all the employees in the truck got out of the truck, and Jones walked about

twenty-five feet up the road to flag traffic. While flagging traffic, Jones forced

several cars in the truck’s lane to change lanes while other City employees, not

including Norman, retrieved the manhole and were rolling it toward the truck. While

some of the City’s employees were in the process of rolling the manhole toward the

truck, Mahmood, while traveling in the outside lane, swerved to miss Jones as Jones

was flagging traffic. Mahmood then struck the manhole. According to Norman and

Jones, the manhole was being rolled toward the truck, not away from it, when the

collision occurred.

      Mahmood relied on two provisions found in the Tort Claims Act, section

101.021(1) and section 101.021(2), to support his claim that the City was not

immune from suit under the circumstances we have described. See Tex. Civ. Prac.

& Rem. Code Ann. § 101.021(1), (2). Generally, these two provisions give an

individual the right to sue a governmental entity for accidents caused by

governmental employees if (1) the injury arose from the governmental entity’s

                                          7
operation or use of a motor-driven vehicle, or (2) the injury arose from the entity’s

use of tangible personal property, if the entity, treated as a private person, would be

liable for having caused the plaintiff’s injury. Id.

      The City argues that the evidence conclusively established that no nexus exists

between its truck, the manhole, and the collision. To determine whether the evidence

the City asked the trial court to consider on the question of the alleged non-existence

of a relationship between the use of the truck and the collision, we observe that the

Tort Claims Act contains no statutory definitions for the terms operation or use. See

id. § 101.001 (West Supp. 2017) (Definitions). Even so, the Texas Supreme Court

has explained that the term operation, as it is used in the Tort Claims Act, refers to

“‘a doing or performing of a practical work[.]’” 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)). The LeLeaux Court

explained that the term use means “‘to put or bring into action or service; to employ

for or apply to a given purpose.’” Id.

      That said, courts must deny pleas to the jurisdiction if fact issues exist that

would allow a reasonable jury to find that the entity’s operation or use of its vehicle

caused the collision to occur. See Miranda, 133 S.W.3d at 228 (stating that to defeat

a governmental entity’s jurisdictional plea, the plaintiff must “show that there is a

                                           8
disputed material fact regarding the jurisdictional issue”). In applying this standard,

the appellate court is tasked with reviewing the trial court’s ruling on the plea; in

doing so, the court must “indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.” Id.

       Here, the evidence before the court on the plea reveals that a fact question

exists about whether the manhole was still traveling toward Mahmood’s minivan

when he struck it in his minivan. If the manhole was still rolling toward Mahmood

and had not yet stopped, a reasonable factfinder might determine that a nexus exists

between the City’s allegedly negligent failure to properly secure the manhole to the

truck and Mahmood’s collision with the manhole. Because the City failed to

conclusively prove that the collision occurred in the manner that its employees

described, we hold the trial court did not err by denying the City’s plea.

       Additionally, Mahmood’s response to the City’s plea alleged that the manner

the City used its tangible property caused his injuries. Under the Tort Claims Act,

governmental entities are not immune from suits for personal injuries if the

plaintiff’s injury in the suit was “caused by a . . . use of tangible personal . . . property

if the governmental unit would, were it a private person, be liable to the claimant

according to Texas law.” Id. § 101.021(2) (emphasis added). As to the City’s

manhole, the evidence shows that it was being taken to the location where it was to

                                             9
be installed when it fell off the City’s truck. Thus, a reasonable jury might find at

trial that the manhole was in use even though it had not yet been installed when the

collision occurred. Because the City did not conclusively prove that the collision

occurred while the manhole was not in use, we conclude the trial court properly

denied the City’s plea. See Estate of Lindburg, 766 S.W.2d at 211.

      Finally, we note that the waiver provisions at issue in this case also require

that a court determine whether the City could be held liable for the plaintiff’s injury

were it treated as a private person. Tex. Civ. Prac. & Rem. Code Ann. § 101.021.

While the City has not argued that a private person could not be liable for negligently

failing to secure a load that fell off a truck and caused an alleged injury, it is

necessary to address whether the City had a duty to properly secure the manhole to

its truck to resolve whether the trial court’s ruling should be affirmed. See id. In this

case, Norman testified that the City trained him to “make sure [equipment loaded

onto the truck had been] tied down real good and it’s safe to go up and down the

road.” He explained that properly securing equipment on a truck with either straps

or chains is determined based on “how much the equipment weigh[s] that you’re

hauling.”

      Under Texas law, a private person who loads equipment on a truck must “use

reasonable care in doing so to prevent an unreasonable risk of harm to other

                                           10
motorists who would be affected if the load was inadequately secured.” Bujnoch v.

Nat’l Oilwell Varco, L.P., 542 S.W.3d 2, 10 (Tex. App.—Houston [14th Dist.] 2017,

pet. denied). While we conclude the City might be held liable if the factfinder

determined that the collision occurred in the manner described by Mahmood, we

express no opinion about which version of the events a jury might find credible.

Instead, in this interlocutory appeal, our task is limited to deciding whether the trial

court erred by denying the City’s plea. Thus, to resolve the appeal, we need only to

determine whether fact issues existed sufficient to avoid dismissal. Because the City

failed to conclusively prove how the collision occurred, we hold the trial court did

not err by denying the City’s plea. For the reasons we have explained, we affirm.

      AFFIRMED.



                                                      _________________________
                                                            HOLLIS HORTON
                                                                 Justice


Submitted on July 18, 2018
Opinion Delivered September 27, 2018


Before McKeithen, C.J., Kreger and Horton, JJ.




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                             DISSENTING OPINION

      I respectfully dissent. When a plea to the jurisdiction challenges the existence

of jurisdictional facts, an appellate court must consider relevant evidence submitted

by the parties to determine if a fact issue exists, as the trial court must do. City of

Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009); Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004). We take as true all evidence

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228.

      Mahmood relies on two sections of the Texas Tort Claims Act (TTCA).

Section 101.021 of the TTCA provides that a governmental unit is liable for personal

injury proximately caused by an employee acting within the course and scope of his

employment if the alleged personal injury arises from the operation or use of a

motor-driven vehicle and the employee would be personally liable to the claimant

according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (West

2011). In addition, a governmental unit is liable for personal injury caused by a

condition or use of tangible personal property if the governmental unit would, if it

were a private person, be liable to the claimant under Texas law. Id. § 101.021(2)

(West 2011).



                                          1
      The “arises from” language in subsection one “requires a nexus between the

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

motor-driven vehicle[.]” LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835

S.W.2d 49, 51 (Tex. 1992); see also Dallas Area Rapid Transit v. Whitley, 104

S.W.3d 540, 543 (Tex. 2003). The use of the motor vehicle must be shown to have

actually caused the victim’s injury for the TTCA’s waiver to apply. Tex. Nat. Res.

Conservation Comm’n v. White, 46 S.W.3d 864, 869 (Tex. 2001). The term “use” in

section 101.021 of the TTCA means ‘“to put or bring into action or service; to

employ for or apply to a given purpose[,]’” and the term “operation” refers to ‘“a

doing or performing of a practical work[.]’” Tex. Dep’t of Criminal Justice v. Miller,

51 S.W.3d 583, 588 (Tex. 2001); see Mount Pleasant Indep. Sch. Dist. v. Estate of

Lindburg, 766 S.W.2d 208, 211 (Tex. 1989). “[T]he 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.’” Whitley, 104 S.W.3d at 543 (quoting Dallas Cty. Mental

Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). In

addition, “mere involvement of tangible personal property in an injury will not, in

and of itself, waive liability.” Tex. Tech. Univ. Health Sci. Ctr. v. Jackson, 354

S.W.3d 879, 884 (Tex. App.—El Paso 2011, no pet.). The tangible personal property

must do more than merely furnish the condition that makes the injury possible. Id.

                                          2
“A plaintiff must show that the tangible personal property was the instrumentality

of harm.” Id. Mere involvement of tangible personal property in the events leading

to the injury is insufficient to meet the causation requirement. Id. at 885. By its

express language, the TTCA limits the waiver of sovereign immunity to injuries

proximately caused by a condition or use of personal property. Id.; see also Tex. Civ.

Prac. & Rem. Code Ann. § 101.021(2).

      In my view, Mahmood did not demonstrate a nexus between the City

employees’ use or operation of the truck, the manhole, or the strap and his alleged

injury. See Jackson, 354 S.W.3d at 884–85. Mahmood’s pleadings affirmatively

showed that the City employees’ use or operation of the manhole, the truck, or strap

did nothing more than furnish the condition that made his injury possible, or were

only involved in the circumstances that caused his injury. See Whitley, 104 S.W.3d

at 543; Jackson, 354 S.W.3d at 884–85. In my opinion, Mahmood failed to

demonstrate that his claim falls within the waiver of immunity for injuries caused by

the use or operation of a motor vehicle. Regardless of precisely when Norman

stopped the truck and regardless of whether the manhole was in motion or at rest

when Mahmood struck it, Mahmood did not demonstrate that the manhole was being

put into service, employed or applied for a particular purpose, or being used in the

doing or performing of a practical work when his alleged injury occurred. Further,

                                          3
he did not show that the strap securing the manhole was the instrumentality of harm.

See Jackson, 354 S.W.3d at 884; see also Sampson v. Univ. of Tex. at Austin, 500

S.W.3d 380, 390 (Tex. 2016). For all these reasons, I would sustain the City’s issue,

reverse the trial court’s order denying the City’s plea to the jurisdiction, and render

judgment dismissing Mahmood’s claim for want of jurisdiction.



                                              _____________________________
                                                    STEVE McKEITHEN
                                                        Chief Justice



Dissent Delivered
September 27, 2018




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