Gipson v. City of Dallas

The trial court did not err in granting the city of Dallas' plea to the jurisdiction, because no nexus existed between Gwendolyn Foster's injury and the use or operation of the ambulance that arrived late in response to the 911 call.

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Click here for the full text of this decision FACTS:Members of the Gipson family alleged that, in the early morning hours of Aug. 5, 2004, their mother Gwendolyn Foster became short of breath. Someone called 911, and Foster waited for an ambulance. When it failed to arrive roughly 13 minutes after the call was made, one of Foster’s sons drove Foster to Fire Station No. 24, which was seven blocks from her house at a daylight driving time of one minute and 15 seconds. Although Foster was treated at the station house and taken to a hospital in Rescue Unit 24 the delayed ambulance she died the next day. The Dallas Fire Rescue Department initiated an internal investigation of Rescue Unit 24′s response, specifically that of its driver, to Foster’s medical emergency. The department’s internal affairs section concluded that a 911 operator dispatched Rescue Unit 24 to Foster’s house at 05:14:16 hours, the en route key was activated at 05:18:31 hours, and this difference of four minutes and 15 seconds “constitute[d] an unacceptable delay in getting Rescue 24 underway and en route to [Foster's house].” The investigator concluded that Rescue Unit 24′s driver engineer violated the city of Dallas’ Personnel Rule 34-36(b)(5)(A) and certain sections of the Dallas Fire-Rescue Department Manual of Procedures and that he failed to respond or to respond promptly to a medical emergency. The Gipsons cited this investigation in their second amended original petition, in which they alleged that Foster’s death was caused by the city’s “negligence in the use of tangible personal property and/or a motor driven-vehicle: to wit an ambulance which failed to respond promptly to a medical emergency.” They alleged the city’s sovereign immunity was waived pursuant to Texas Civil Practice & Remedies Code �101.021, .055 or .062. The city filed a plea to the jurisdiction. The Gipsons filed a response in opposition and attached evidence. After a hearing, the trial court granted the plea to the jurisdiction and dismissed the Gipsons’ suit. An interlocutory, accelerated appeal followed. HOLDING:Affirmed. Sovereign immunity, the court stated, deprives a trial court of subject matter jurisdiction for suits against the state or other governmental units unless the state consents to suit. Section 101.021 waives governmental immunity for: 1. 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; and 2. personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. But under �101.055(2), the court noted, such a waiver of immunity does not apply to a claim arising from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others. Moreover, �101.062, which deals specifically with 911 services, provides that Chapter 101 applies to a claim against a public agency that arises from an action of an employee of the public agency or a volunteer under direction of the public agency and that involves providing 911 service or responding to a 911 emergency call only if the action violates a statute or ordinance applicable to the action. The court found �101.055(2) and �101.062(b) inapplicable, however, because the statutes “are relevant only after the threshold issue of the existence of a waiver of immunity pursuant to section 101.021 is met.” The operation or use of a motor vehicle, the court stated, “does not cause injury if it does no more than furnish the condition that makes the injury possible. It is undisputed, the court stated, that Foster was not transported from her home to the fire station by an ambulance in response to a telephone call. Thus, the ambulance did not actually cause Foster’s injury. As a result, the court found no nexus between the use or operation of the ambulance and Foster’s injury. Accordingly, the court concluded that the city did not waive its governmental immunity pursuant to �101.021(1). OPINION:Moseley, J.; Moseley, Lang and Mazzant, JJ.

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