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City of Houston v. Fagan12/2/1999
(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. TEX. CIV. PRAC. & REM. CODE ANN. §101.021 (Vernon 1998).
The City concedes the acts complained of in this case are a governmental function and that an automobile collisionfalls under § 101.021(1). Its argument is that this case falls under an exception set out in the same act.
Under § 101.055, the act provides that:
This chapter 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. TEX. CIV. PRAC. & REM. CODE ANN. § 101.055 (Vernon's 1998) (emphasis added).
The plaintiff bears the burden of alleging facts affirmatively showing the trial court has subject-matter jurisdiction. See Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). When deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition. See Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.-Austin 1994, writ denied). We take allegations in the pleadings as true and construe them in favor of the pleader. See Texas Ass'n of Business, 852 S.W.2d at 446. Appellees, in their second amended original petition, pled that immunity was not a bar to the suit because " he act of defendants were not in compliance with the laws and ordinances and were taken with conscious indifference or reckless disregard for the safety of [appellee]"(emphasis added). Fagan, through her pleadings, has alleged that governmental immunityfrom suit has been statutorily waived. As such, the trial court was not without jurisdiction, and it properly denied the City's plea to the jurisdiction.
Summary Judgment
The second issue presented bythe City is whether Officer Storemske was entitled to the affirmative defense of official immunity as a matter of law. The City's alternative motion for summary judgment was denied. A governmental unit may appeal an interlocutory order denying a motion for summary judgment based on an assertion of official immunity. See TEX. CIV. PRAC. & REM. CODE Ann. § 51.014(a)(5) (Vernon Supp.1998).
Summary judgment is proper when a movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Bangert v. Baylor College of Med., 881 S.W.2d 564, 566 (Tex. App.-Houston [1st Dist.] 1994, writ denied). Defendants are entitled to summary judgment if they conclusively establish all elements of an affirmative defense as a matter of law. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991); Bangert, 881 S.W.2d at 566. However, we make every reasonable inference in favor of the non-movant and resolve any doubts in their favor. See Randall's Food Mkts., Inc., 891 S.W.2d at 644; Bangert, 881 S.W.2d at 565-66. If the movant establishes a right to summary judgment, the non-movant must produce summary judgment proof showing the existence of an issue of material fact to preclude summary judgment. See Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982); Cummings v. HCA Health Servs. of Texas, 799 S.W.2d 403, 405 (Tex. App.-Houston [14th Dist.] 199
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