MICHAEL KELLY, INDIVIDUALLY AND AS NEXT FRIEND OF TRAVIS KELLY AND MIKAYLA KELLY, AND AS A REPRESENTATIVE OF THE ESTATE OF CHRISTY KELLY, Appellant
PERMIAN BASIN COMMUNITY CENTERS FOR MHMR, TURNING POINT, Appellee
Appeal from the 70th District Court Ector County, Texas Trial
Court Cause No. A-139, 994
consists of: Wright, C.J., Willson, J., and Bailey, J.
WRIGHT CHIEF JUSTICE.
Kelly was a patient of Permian Basin Community Centers for
MHMR, Turning Point. When she became Appellee's patient,
Appellee was told that Christy had previously attempted to
commit suicide. As a part of the intake process, Appellee had
new patients evaluated by a doctor. Appellee's personnel
used a van to take clients to the doctor and to the pharmacy
to obtain any required prescriptions. On the day of
Christy's death, as Appellee's employee drove Christy
and one other client back to the facility from such an
evaluation, Christy, who was seated alone in the backseat of
the van, opened the door and jumped out of the van; she died
from the fall.
Appellant's subsequent lawsuit against Appellee and
others, Appellee filed a plea to the jurisdiction and claimed
that it was protected by governmental immunity. The trial
court granted Appellee's plea to the jurisdiction. In a
single issue on appeal, Appellant claims that the trial court
erred when it held that his lawsuit was barred by
governmental immunity. Appellee counters that immunity has
not been waived because there were no pleadings that Christy
Kelly's death arose from the operation or use of a
motor-driven vehicle or motor-driven equipment. We affirm.
immunity protects the State from lawsuits for money
damages." Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006) (quoting
Tex. Nat. Res. Conservation Comm'n v. IT-Davy,
74 S.W.3d 849, 853 (Tex. 2002)). Governmental immunity
provides this same protection to political subdivisions of
the State, such as Appellee, and it is derived from the
State's sovereign immunity. City of Houston v.
Williams, 353 S.W.3d 128, 134 (Tex. 2011); see
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3)(B)
(West Supp. 2016).
subject-matter jurisdiction exists is a question of law that
we review de novo. Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to
the jurisdiction can be based on the pleadings or on
evidence. Id. When a plea to the jurisdiction
challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the court's
jurisdiction to hear the case. Id. We must look to
the allegations in the pleadings, construe them in the
plaintiff's favor, and look to the pleader's intent.
See Cty. of Cameron v. Brown, 80 S.W.3d 549, 555
(Tex. 2002); Peek v. Equip. Serv. Co. of San
Antonio, 779 S.W.2d 802, 804 (Tex. 1989). The plaintiff
bears the burden to allege facts that affirmatively
demonstrate the trial court's jurisdiction. Tex.
Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d
440, 446 (Tex. 1993). When a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties to determine if a
fact issue exists. Miranda, 133 S.W.3d at 227. The
existence of subject-matter jurisdiction is a question of
law, and we review the trial court's ruling on a plea to
the jurisdiction de novo. Miranda, 133 S.W.3d at
226. Neither party presented any evidence at the hearing on
Appellee's plea. Therefore, it was Appellant's burden
to plead facts to show that the trial court had
Texas Tort Claims Act (TTCA) provides a limited waiver of
governmental immunity. Mission Consol. Indep. Sch. Dist.
v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008); Miranda,
133 S.W.3d at 224. Section 101.021(1)(A) of the TTCA waives
governmental immunity when, among other things not relevant
here, "death [is] proximately caused by the wrongful act
or omission or the negligence of an employee acting within
his scope of employment if: (A) the . . . death arises from
the operation or use of a motor-driven vehicle or
motor-driven equipment." Civ. Prac. & Rem. §
101.021(1)(A) (West 2011).
does not cause an injury if it does no more than furnish the
condition that makes the injury possible. Dallas Cty.
Mental Health & Mental Retardation v. Bossley, 968
S.W.2d 339, 343 (Tex. 1998) (citing Union Pump Co. v.
Allbritton, 898 S.W.2d 773, 776 (Tex. 1995)). In
Bossley, the decedent was being treated for
depression and had displayed suicidal tendencies. While
personnel prepared to transfer him from one facility to
another, the decedent ran out through an unlocked door and
escaped. As hospital personnel pursued him, he jumped in
front of a truck and was killed.
decedent's parents sued Dallas County MHMR and others. A
majority of the Supreme Court of Texas held that there had
been no waiver of immunity because the substance of the
parents' pleading was that the decedent's "death
was caused, not by the condition or use of property, but by
the failure of . . . staff to restrain him once they learned
he was still suicidal. The Tort Claims Act did not waive . .
. immunity from such a complaint." Bossley, 968
S.W.2d at 343; accord Dallas Area Rapid Transit v.
Whitley, 104 S.W.3d 540, 542-43 (Tex. 2003); City of
Sugarland v. Ballard, 174 S.W.3d 259, 266-67 (Tex.
App.-Houston [1st Dist] 2005, no pet.).
cases relied upon by Appellant are distinguishable from
Bossley, Ballard, and Whitley and
from the case before us. In those cases relied upon by
Appellant, there was a nexus between the actual use of a
motor vehicle and the injury suffered. The vehicle was more
than merely involved. In Finnigan v. Blanco County,
a deputy sheriff left his cruiser running while he went
inside the office to obtain some paperwork. 670 S.W.2d 313,
314 (Tex. App.-Austin 1984, no writ). An inmate stole the
cruiser and collided with another vehicle; a death resulted.
Id. Ryder Integrated Logistics v. Fayette County
involved a nighttime situation in which a deputy parked his
cruiser facing oncoming traffic. 453 S.W.3d 922, 926 (Tex.
2015). He had turned on the headlights, high-beam spotlight,
and the emergency lights on the vehicle. The lights
interfered with the sight of the drivers of oncoming vehicles
and resulted in a fatal accident. Id. In both of
those cases, the vehicles were more than merely involved; the
use of the vehicles was the actual cause of the deaths.
same is not true here according to the pleadings. For the
Section 101.021(1)(A) waiver to apply, there must be a nexus
between the operation or use of the vehicle and the
plaintiff's injuries. Whitley, 104 S.W.3d at
543; LeLeaux v. Hamshire-Fannett Indep. Sch. Dist.,835 S.W.2d 49, 51 (Tex. 1992). More than mere involvement of
property is required. "[T]he [vehicle]'s use must
have actually caused the injury." Whitley, 104
S.W.3d at 543 (second alteration in original) (emphasis
added) (quoting Tex. Nat. Res. Conservation Comm'n v.
White,46 S.W.3d 864, 869 (Tex. 2001)). "Thus, as
with the condition or use of property, the operation or use
of a motor vehicle 'does not cause injury if it does no
more than furnish the condition that makes the injury
possible.'" Id. (quoting Bossley, 968
S.W.2d at 343). We believe that Bossley is determinative of
this appeal. As in Bossley, Appellant's pleadings show
that the deceased's tragic death was not caused by the
operation or use of a motor-driven vehicle. Any negligence
alleged by Appellant was separate and apart ...