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Perez v. City of Dallas12/13/2005
to negligent implementation of policy and do not qualify for immunity. We disagree.
The negligent implementation of policy theory does not itself waive sovereign immunity. Waiver of immunity must be demonstrated under some provision of the Texas Tort Claims Act before a claim of negligent implementation of policy can be invoked. See Pitonyak, 84 S.W.3d at 342; Jackson, 927 S.W.2d at 786. Additionally, " governmental entity's right of sovereign immunity is waived by the negligent implementation of policy ... if the death or injury involved did not arise from the use or condition of tangible personal property or from the operation or use of a motor-driven vehicle." Bruen, 92 S.W.3d at 28; Jackson, 927 S.W.2d at 786-87 (emphasis added); see Tex. Civ. Prac. & Rem. Code Ann. ยง 101.021(1)(A). Because waiver of immunity has not been demonstrated under a provision of the Texas Tort Claims Act and because Perez's alleged negligent implementation claim did not arise from the use or condition of tangible personal property or the operation or use of a motor-driven vehicle, Perez's claim of negligent implementation of policy is unavailing.
Perez has raised and combined separate recognized legal propositions to support his claim of waiver of sovereign immunity: a premises defect due to the absence of a guardrail around an open garbage pit and negligent implementation of policy due to allegedly faulty directions given by City employees, pursuant to City policy. Whether we analyze these propositions individually or in combination, we conclude no fact question is raised as to the jurisdictional issue by Perez's amended petition or by the evidence submitted. Immunity from liability has not been waived. We decide Perez's points against him.
V. CONCLUSION
Perez's allegations fail to establish a waiver of sovereign immunity. We decide Perez's points against him and affirm the trial court's order of dismissal.
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