Court of Appeals of Texas, Third District, Austin
FROM THE DISTRICT COURT OF BASTROP COUNTY, 335TH JUDICIAL DISTRICT NO. 27, 221, HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING
Before Justices Puryear, Rose, and Goodwin
Melissa Goodwin, Justice
Appellee Thomas Watts was injured when his vehicle collided with a fire tanker truck owned by appellant City of Smithville but being driven by the Smithville Volunteer Fire Department. Watts brought suit against Smithville under the Texas Tort Claims Act (TCA). See Tex. Civ. Prac. & Rem. Code §§ 101.001–.109. Smithville filed a plea to the jurisdiction based on governmental immunity, and the trial court denied Smithville's plea. Smithville then perfected this interlocutory appeal. See id. § 51.014(a)(8). For the reasons that follow, we reverse the trial court's order denying Smithville's plea and render judgment dismissing Watts's claims against Smithville for lack of subject matter jurisdiction.
In March 2007, members of the Smithville Volunteer Fire Department (Fire Department) were returning from a call when the driver lost control of the fire truck and collided with Watts's vehicle. Watts was injured in the collision.
Watts did not sue the driver of the truck or the Fire Department to recover damages for the injuries that he sustained. He sued the City of Smithville, alleging that the trial court had jurisdiction under section 101.021(1) of the TCA because Smithville's maintenance employees were negligent by failing to properly inspect, maintain, and repair the truck and that one of the truck's tires, "or some other vehicle malfunction, " caused the collision. A back tire on the truck blew out at the time of the collision. He also sought damages based on breach of express and implied warranties of merchantability.
Smithville filed a plea to the jurisdiction. Smithville urged that there was no waiver of its governmental immunity for negligence or breach of warranty as alleged by Watts under the TCA or any other statute. Smithville also presented evidence including an affidavit by Smithville's director of public works, the truck's maintenance and repair records, and a receipt of payment for a state inspection of the truck dated June 1, 2006. Smithville's director of public works averred that the Fire Department is "a separate entity" from the city, and that its members are not employed by or "acting under the supervision, direction or control of the City of Smithville." He also averred that the "truck at issue in this case was kept at the premises of the Smithville Volunteer Fire Department, and they used the truck in the course of providing fire protection services, " and that Smithville provided maintenance and repair services for the truck. He described the procedural steps for the Fire Department's submission of service requests on the truck as follows:
Before each volunteer fire department shift, a member of the Smithville Volunteer Fire Department conducts a visual inspection of their vehicles. If a problem arises or is detected, a member of the Smithville Volunteer Fire Department submits a specific request for service to the City. . . . There were no pending service requests from the Volunteer Fire Department about the subject truck's condition at the time of the incident in 2007.
He also averred that the truck passed its annual inspection in June 2006 and received "basic maintenance servicing" in December 2006. The repair records showed that tires on the truck had been replaced, but there was no record that the back tire that blew out at the time had been replaced.
Watts filed a response with evidence. Watts argued that the fire fighters were employees of Smithville because they were "in the paid service" of the city and that the truck's driver would be personally liable to him for negligence per se. He also argued that there was a fact issue whether Smithville breached its duty to inspect the truck, to use due care to service the truck so as to permit its safe operation, and to warn the public. His evidence included the police incident report, copies of records showing payments from Smithville to volunteer fire fighters including the driver of the truck, and photos of the truck and the tire that blew out. The police report listed "equipment failure" as a cause of the collision and "defective or slick tires" as a possible contribution to the collision.
After a hearing, the trial court denied Smithville's plea to the jurisdiction. Smithville then brought this interlocutory appeal.
Smithville raises seven issues on appeal. In its first five issues, Smithville contends that the trial court erred in denying its plea because Watts failed to affirmatively establish that Smithville's governmental immunity had been waived. Smithville argues that section 101.0215 of the TCA does not provide an independent waiver of immunity and that section 101.021(1)(A) does not apply. See Tex. Civ. Prac. & Rem. Code §§ 101.021(1)(A), .0215. In its sixth issue, Smithville contends that section 101.021 does not provide a waiver of immunity as to Watts's causes of actions for breach of express and implied warranties of merchantability. See id. ...