Thank you for sharing!

Your article was successfully shared with the contacts you provided.
No. 04-03-00145-CV, 7/9/2003. Civil Litigation Click here for the full text of this decision FACTS:The appellant, Wayne Norrell, was a participant in a NASCAR racing event held at the San Antonio Speedway. The appellee, the Gardendale Volunteer Fire Department, was present to provide fire protection services. At some time during the event, a fire occurred in the pit area of the Speedway, and Gardendale responded. The fire truck was driven by Gardendale volunteer Todd McCarthy the wrong way down a one-way street. A door on the back of the truck had been left open by another Gardendale volunteer, Robert Lockwood III. McCarthy did not activate the truck’s siren. In the meantime, Norrell was standing in one of three lanes of the pit road, facing the direction from which he expected traffic. As McCarthy drove the truck past Norrell, the open door hit Norrell in the back, injuring him. Norrell sued McCarthy and Lockwood individually, but later settled his claims against them. Norrell filed a claim against Gardendale, a third-party defendant in the case. Gardendale filed a plea to the jurisdiction, which the trial court granted. HOLDINGAffirmed. Under certain circumstances, the state or a governmental unit of the state is liable for personal injuries proximately caused by “the wrongful act or omission or the negligence of an employee acting within the scope of his employment.” Texas Civil Practice and Remedies Code �101.021(1). Under the Texas Tort Claims Act, an emergency service organization, such as Gardendale, is a “governmental unit.” The act defines employee as a person “who is in the paid service of a governmental unit.” In its plea to the jurisdiction, Gardendale alleged that because it was composed entirely of unpaid volunteers, and not employees, �101.021 did not apply to waive its immunity. Norrell asserts Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1994), is inapplicable here because, unlike the reserve deputy sheriff in that case, McCarthy and Lockwood were working for Gardendale at the NASCAR event, and Gardendale was being compensated for rendering its services at the event. Norrell relies on Smith v. University of Texas, 664 S.W.2d 180 (Tex. App. � Austin 1984, writ ref’d n.r.e.). In Smith, the University of Texas was held liable on the grounds that the actions of the volunteers were not their own actions, but instead, were the actions of the paid university employee who was supervising the volunteers. The Smith court relied on the holding in El Paso Laundry Co. v. Gonzales, 36 S.W.2d 793 (Tex. Civ. App. � El Paso 1931, writ dism’d w.o.j.), which held that an unpaid volunteer worker held the same status as an employee under certain circumstances. However, in Dillard, the Texas Supreme Court was critical of any reliance on El Paso Laundry because that case “did not involve the statutory definition [of employee] that governs here.” Also, the Dillard court explained that in Smith “liability was predicated on the actions of a paid university employee who supervised volunteers, and not on the actions of volunteers themselves.” Here, Norrell has not raised any claim against a paid employee of Gardendale. For these reasons, Norrell’s reliance on Smith is misplaced. McCarthy and Lockwood were volunteers with Gardendale, and, under the clear language of the act, the court holds that they were not employees of a governmental unit. Accordingly, Gardendale’s immunity is not waived under �101.021. Norrell also asserts that Gardendale is not entitled to immunity because the fire truck was operated in violation of laws and ordinances applicable to emergency services. Norrell relies on �101.062 for his assertion that liability may exist for the actions of a volunteer under the supervision of a public agency providing 9-1-1 emergency services ��101.055 and 101.062 require that the actions or omissions be those of an “employee.” McCarthy and Lockwood were not employees of Gardendale. Therefore, ��101.055 and 101.062 do not apply to waive Gardendale’s immunity. A claim of negligent supervision or training is a distinct cause of action. However, a causal nexus is required between the operation or use of a motor driven vehicle and a plaintiff’s injuries. Although Norrell has alleged a casual nexus between his injury and the operation of the fire truck, “[f]ailures in conduct, including the failure to adequately train employees, do not involve the use of tangible personal property.” San Antonio State Hosp. v. Cowan, 75 S.W.3d 19 (Tex. App. � San Antonio 2001, pet. granted). Accordingly, Norrell’s claim of negligent supervision and training does not invoke the act’s waiver provision. OPINION:Marion, J.; Stone, Green and Marion, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.