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Estate of Alex v. T-Mobile U.S. Inc.

United States District Court, N.D. Texas, Dallas Division

March 1, 2018

ESTATE OF BRANDON ALEX, through personal representative Detreasure Coker, and DETREASURE COKER, individually and as surviving mother of Brandon Alex, deceased, Plaintiffs,



         Before the Court is Defendants' Motion to Dismiss, (ECF No. 13), and Motion for Leave to File Second Amended Complaint, (ECF No. 30). For the reasons stated below, the Motion to Dismiss is GRANTED IN PART and DENIED IN PART, and the Motion for Leave is GRANTED.

         I. Factual and Procedural Background

         On March 11, 2017, Brandon Alex was injured when he “fell from a daybed.” (Am. Compl. ¶ 12, ECF No. 10). His babysitter found him “breathing too faintly.” (Id.) The babysitter repeatedly dialed 9-1-1 from her cellphone, but was placed on hold each time. (Id. ¶ 13). Collectively, the babysitter was placed on hold for more than forty minutes. (Id.) Unable to connect to the 9-1-1 dispatcher, the babysitter contacted Brandon Alex's grandmother, Bridget Alex, who later drove him to an emergency room. (Id. ¶¶ 13-14). Unfortunately, Brandon Alex was pronounced dead soon after arriving at the hospital. (Id. ¶ 14).

         Plaintiffs instituted this action in the 95th Judicial District Court of Dallas County, Texas, for claims arising from Brandon Alex's death. Their claims include negligence, gross negligence, products liability, violation of the Texas Civil Wiretap Act, (“CWA”), and violation of the Texas Deceptive Trade Practices Act (“DTPA”). (Id. ¶¶ 38-45, 51-64). Detreasure Coker, alleged to be Brandon Alex's biological mother, also alleges wrongful death and survival claims. (Id. ¶¶ 66-72). Defendants removed the case to this Court, but the case has been stayed pending the Court's resolution of Defendants' Motion to Dismiss. (ECF No. 22).

         II. Motion to Dismiss

         a. Legal Standard

         A pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The pleading standard Rule 8 announces does not require “detailed factual allegations, ” but it does demand more than an unadorned accusation devoid of factual support. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must contain sufficient factual matter to state a claim for relief that is plausible on its face. Twombly, 550 U.S. at 570. The court must accept all of the plaintiff's factual allegations as true, but it is not bound to accept as true “a legal conclusion couched as a factual allegation.” Id. at 555. Where the factual allegations do not permit the court to infer more than the mere possibility of misconduct, the complaint has stopped short of showing that the pleader is plausibly entitled to relief. Iqbal, 556 U.S. at 678.

         b. Analysis

         i. Statutory Immunity

         Under Texas law, wireless service providers and manufacturers have some statutory immunity from claims arising out of their provision of 9-1-1 services under Section 771.053(a) of the Texas Health and Safety Code, [1] which states:

A service provider of communications service involved in providing 9-1-1 service, a manufacturer of equipment used in providing 9-1-1 service, [or] a developer of software used in providing 9-1-1 service . . . is not liable for any claim, damage, or loss arising from the provision of 9-1-1 service unless the act or omission proximately causing the claim, damage, or loss constitutes gross negligence, recklessness, or intentional misconduct.

         Accordingly, to qualify for statutory immunity, a defendant must be one of the covered entities involved in providing 9-1-1 services, and the claims against it must arise from the provision of 9-1-1 services.

         Defendants meet both conditions. Plaintiffs allege that Defendants operate 9-1-1 communications services, (id. ¶¶ 17-18), create software used in providing 9-1-1 services, (id. ¶¶ 57-58), or provide 9-1-1 capable cellphones, (id. ¶ 12-13), and that their claims arise from the provision of 9-1-1 services. (See Id. ¶ 59 (“The harm to Plaintiffs resulted directly from the software modifications that prevented Brandon's babysitter from reaching 9-1-1 in time to save his life.”); id. ¶¶ 21-22, 38-45).[2]

         However, the statutory immunity provided by Section 771.053(a) is not absolute. To overcome Defendants' claim of immunity, Plaintiffs must plausibly allege that Defendants proximately caused Brandon Alex's death and that Defendants' acts or omissions constituted gross negligence, recklessness, or intentional misconduct. Cook, 683 Fed.Appx. at 319 (citing Tex. Health & Safety Code § 771.053(a)). Because Plaintiffs have plausibly alleged proximate cause and gross negligence, for the reasons discussed below, the Court declines to dismiss their claims on immunity grounds.

         1. Proximate Cause

         The components of proximate cause are cause-in-fact and foreseeability. See Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 929 (Tex. 2015) (citation omitted). A tortious act or omission is a cause-in-fact if it serves as “a substantial factor in causing the injury and without which the injury would not have occurred.” Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010). An injury is foreseeable “if, in light of all the circumstances, a reasonably prudent man would have anticipated that the injury would be a consequence of the act or omission in question.” Hall v. Atchison, T. & S. F. Ry. Co., 504 F.2d 380, 385 (5th Cir. 1974). Proximate cause cannot be established by “mere conjecture, guess, or speculation.” HMC Hotel Props. II Ltd. P'ship v. Keystone-Texas Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014).

         The case of City of Dallas v. Sanchez is instructive on what constitutes proximate cause in a circumstance similar to the one presented here. 494 S.W.3d 722 (Tex. 2016). In Sanchez, 9-1-1 dispatchers received two calls within ten minutes of each other. Id. at 725. Both calls-from two different callers-originated from the same apartment complex, and both requested assistance with a drug overdose victim. Id. After the dispatcher informed the person calling on behalf of Matthew Sanchez that emergency responders were on route, the call was disconnected. Id. Once responders arrived at the apartment complex, “they erroneously concluded that the two 9-1-1 calls were redundant and that a single individual was the subject of both calls.” Id. Responders ultimately never went to the apartment of Sanchez, who died six hours later. Id. Sanchez's parents sued the City of Dallas, alleging that the 9-1-1 call was disconnected as a result of a defect in the City's phone system. Id. They alleged that their son would have received life-saving medical care but for this defect, which prevented responders from having sufficient information to correctly differentiate the two calls. Id.

         The key issue before the Texas Supreme Court was whether the plaintiffs had sufficiently alleged, to survive a motion to dismiss, that a defective 9-1-1 system proximately caused Sanchez's death.[3]Sanchez, 494 S.W.3d at 726. The court held that due to intervening factors, Plaintiffs could not establish proximate cause. See Id. at 728 (The death was caused by “drugs, the passage of time, and misinterpretation of information [by the emergency responders], ” and the alleged malfunction was merely one of a “series of factors that contributed to Sanchez not receiving timely medical assistance.”); id. at 727-28 (“Between the alleged malfunction and Sanchez's death, emergency responders erroneously concluded separate 9-1-1 ...

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