Court of Appeals of Texas, Twelfth District, Tyler
FROM THE 3RD JUDICIAL DISTRICT COURT HOUSTON COUNTY, TEXAS
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Cooper appeals from the trial court's summary judgment by
which it dismissed Cooper's personal injury suit against
the Texas Department of Criminal Justice Correctional
Institutions Division (TDCJ). In two issues, Cooper asserts
the trial court erred in determining that TDCJ is immune from
suit. We affirm.
an inmate in TDCJ's Eastham Unit, Cooper, a trustee
working on a maintenance crew, was injured when he fell off a
ladder. Cooper sued TDCJ, asserting that TDCJ provided an
unsafe and faulty ladder, breaching duties owed to him, and
proximately causing his injuries.
filed a motion for summary judgment claiming that the
evidence does not meet the heightened standard for gross
negligence required by Texas Government Code Section 497.096,
resulting in TDCJ's immunity, and it is
entitled to sovereign immunity via the official immunity of
its employee. The motion is supported by excerpts from
Cooper's deposition testimony, excerpts from deposition
testimony of TDCJ's risk manager, Thomas Warren, and the
affidavit of TDCJ Maintenance Supervisor Kevin Shafer.
Arguing that the trial court lacked jurisdiction, TDCJ
requested dismissal of Cooper's lawsuit.
response to the motion for summary judgment, Cooper contended
that government code Section 497.096 does not apply, or if it
does, there is sufficient evidence to overcome the motion,
and TDCJ did not raise official immunity or prove that its
employees were entitled to official immunity. The trial court
granted the motion for summary judgment and dismissed
Cooper's claims with prejudice.
first issue, Cooper contends the trial court erred "by
determining [TDCJ] was immune from liability under Texas
Government Code § 497.096 . . . ." He contends the
court erred in granting the motion for summary judgment
because it erroneously concluded that TDCJ was not grossly
negligent. He argues that two TDCJ employees, the "tool
crib attendant" and Shafer, Cooper's supervisor,
were required to inspect the ladder prior to giving it to
Cooper for his use. He asserts that TDCJ failed to prove that
both employees acted without gross negligence. He further
complains that, because TDCJ destroyed documentation that
would have identified the attendant, it is "purportedly
impossible for TDCJ to meet its burden."
moving for traditional summary judgment bears the burden of
showing that no genuine issue of material fact exists and
that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c). A defendant who conclusively negates at
least one of the essential elements of the cause of action or
conclusively establishes an affirmative defense is entitled
to summary judgment. Frost Nat'l Bank v.
Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Once the
defendant establishes its right to summary judgment as a
matter of law, the burden shifts to the plaintiff to present
evidence raising a genuine issue of material fact.
Simulis, L.L.C. v. Gen. Elec. Capital Corp., 439
S.W.3d 571, 575 (Tex. App.-Houston [14th Dist.] 2014, no
pet.). To determine if there is a fact issue, we review the
evidence in the light most favorable to the nonmovant,
crediting evidence favorable to the nonmovant if reasonable
jurors could do so, and disregarding contrary evidence unless
reasonable jurors could not. Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). The evidence raises a genuine issue of fact if
reasonable and fair minded jurors could differ in their
conclusions in light of all the summary judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d
754, 755 (Tex. 2007) (per curiam).
to the doctrine of sovereign immunity, the State of Texas
cannot be sued in her own courts without her consent and then
only in the manner indicated by that consent. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 (Tex.
2003). Absent the State's consent to suit, a trial court
lacks subject matter jurisdiction. Jones, 8 S.W.3d
at 638. The Texas Tort Claims Act provides a limited waiver
of immunity, allowing suits against governmental units under
certain, narrowly defined circumstances. Tex. Dep't
of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.
2001). The Act provides that a governmental unit is liable
for personal injuries caused by a condition or use of
tangible personal 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(2) (West 2011).
the governmental unit's liability under Section
101.021(2) is based on respondeat superior for an
employee's negligence, the liability is derivative.
DeWitt v. Harris Cty., 904 S.W.2d 650, 654 (Tex.
1995). An employee of a political subdivision is not liable
for damages arising from an act or failure to act in
connection with an inmate activity if the act or failure to
act was not intentional, wilfully or wantonly negligent, or
performed with conscious indifference or reckless disregard
for the safety of others. Tex. Gov't Code Ann. §
497.096. Recklessness requires a subjective awareness of, and
indifference to, the risk posed by the defendant's
conduct. Moncada v. Brown, 202 S.W.3d 794, 802 ...