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City of El Paso v. Hernandez3/16/2000
bove, the complaint is plainly directed at a non-use of the vehicle which does not fall within Section 101.021. See Jackson, 927 S.W.2d at 786-87.
Use and Misuse of Other Tangible Personal Property
Appellees also contend that Mrs. Hernandez's death was proximately caused by EMS's use and misuse of other tangible personal property, namely, electronic communications equipment, computer equipment, telephones, two-way radio equipment, and dispatch equipment. They argue that because EMS includes "operator error" within its definition of "mechanical failure" as stated in its "Communications Division Policy and Procedure Manual," then Ponce's failure to timely dispatch the ambulance, which Appellees assert is "operator error" and therefore a mechanical failure of equipment, equates with a misuse of tangible personal property. Regardless of what is stated in the EMS communications manual, Raul Ponce is not tangible personal property and any error of judgment committed by him, no matter how egregious, is not misuse of tangible personal property. As was the case with the emergency vehicle, the facts alleged do not demonstrate that Mrs. Hernandez's death resulted from a use or misuse of the communications equipment within the meaning of Section 101.021(2). Even Ponce's use of the telephone to discuss personal matters with his supervisor rather than dispatching the ambulance is not a misuse of tangible personal property. To the contrary, it is a complaint about non-use of the equipment and misuse or non-use of intangible information (the acceptance of Mrs. Hernandez by Providence), neither of which fall within Section 101.021(2). See Clark, 923 S.W.2d at 584; University of Texas Medical Branch at Galveston v. York, 871 S.W.2d 175, 178-79 (Tex. 1994).
Inadequate Condition of Tangible Personal Property
In order to establish waiver under Section 101.021(2) of the Act, Appellees also rely on an allegation that the inadequate condition of the communications system contributed to the delay which caused the death of Mrs. Hernandez. To properly state a claim involving the "condition" of property, it is sufficient to allege that defective or inadequate property contributed to the injury . See Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31-32 (Tex. 1983); City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex.App.--Fort Worth 1998, no pet.); Washington v. City of Houston, 874 S.W.2d 791, 795 (Tex.App.--Texarkana 1994, no writ). Appellees rely on summary judgment evidence which reflects that at one point during the delay, all four lines at EMS became busy with calls so that additional calls "rolled over" to the fire department. Employees at the fire department would have been unfamiliar with this particular situation and could not have been of assistance. Appellees do not allege and there is no evidence, however, that any calls related to these events were "rolled over" to the fire department or that this condition of the system contributed to the delay. Consequently, Appellees' claim does not fall within Section 101.021(2).
For all of these reasons, we conclude that the City of El Paso was entitled to prevail on its defense of sovereign immunity. Accordingly, the trial court erred in denying the motion for summary judgment. Issues One, Two, Four, and Five are sustained. The order of the trial court denying the motion for summary judgment is reversed and the cause is remanded for trial against the remaining defendant.
(Publish)
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