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Cooper v. Texas Department of Criminal Justice Correctional Institutions Division

Court of Appeals of Texas, Twelfth District, Tyler

April 25, 2018



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.



         Ronald 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.


         While 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.

         TDCJ 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, [1]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.

         In his 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.


         In his first issue, Cooper contends the trial court erred "by determining [TDCJ] was immune from liability under Texas Government Code § 497.096 . . . ."[2] 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."

         Standard of Review

         A party 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).

         Applicable Law

         Pursuant 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).

         When 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 ...

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