Roxanna Mayo lawsuit

CAUSE NO.

ROXANNA MAYO,

Plaintiff,

v.

CITY OF DALLAS,

Defendant.

IN THE DISTRICT COURT

JUDICIAL DISTRICT

DALLAS COUNTY, TEXAS

JURY TRIAL DEMANDED

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

Plaintiff, ROXANNA MAYO ("Plaintiff'), complains of Defendant, CITY OF

DALLAS, a municipal corporation ("Defendant" or "City of Dallas" or "City"). For causes

of action Plaintiff shows the Court as follows:

I.

CASE LEVEL

1.01 Discovery is intended to be conducted under Level 2 of T.R.C.P. 190.

II.

PARTIES

2.01 Plaintiff ROXANNA MAYO is an individual who can be contacted in care of

her undersigned counsel. The last three numbers of the Plaintiffs social security

number are: 197, and the last three numbers of the Plaintiffs driver's license number

are: 250.

2.02 Defendant CITY OF DALLAS, is a Texas municipal corporation. Defendant

may be served by delivery of process to its city attorney, Warren Ernst, 1500 MariIla

PLAINTIFF'S ORIGINAL PETITION - PAGE 1

DC-15-03908 Christi Underwood

1 CIT-ATTYFILED

DALLAS COUNTY4/6/2015 3:50:27 PM

FELICIA PITREDISTRICT CLERK

Street, Dallas, Texas 75201.

RELIEF AND JURISDICTION

3.01 Pursuant to T.R.C.P. 47 Plaintiff states that Plaintiff seeks monetary relief

over $1,000,000. The damages sought are within the jurisdictional limits of this Court.

The maximum amount claimed by Plaintiff is $5,000,000.

IV.

BACKGROUND FACTS

4.01 On January 19, 2015, which was the Martin Luther King holiday, Plaintiff

was in her apartment located at Skillman, Dallas, Texas. Also present at about 4pm on

January 19, 2015, in the apartment were Plaintiffs daughter, Mackenzie, who was 12

years old, Plaintiffs 19 year old son Cody, Plaintiffs mother Diane Davis and Plaintiffs

ex-boyfriend, Quartiq Anthony Sharper.

4.02 Plaintiff and her ex-boyfriend had leased the apartment for about 2

months. By January 19, 2015 Plaintiff had been together with her ex-boyfriend for

about 6 months.

4.03 During the morning of January 19 the ex-boyfriend had threatened Plaintiff

and her daughter in the apartment. Plaintiff had placed a call to the Dallas Police

Department on 911, but the police never came. The police had a history of not

responding to 911 calls from the area in which Plaintiff's apartment was located.

4.04 During the afternoon of January 19 an argument arose over whether

Plaintiff would go out to buy food for Plaintiffs dog. The argument became heated and


the ex-boyfriend threw a bottle at Roxanna's head. It was evident that Plaintiffs ex-

boyfriend, who had been drinking, was a clear and present danger to Plaintiff and her

family. The ex-boyfriend threatened Plaintiffs daughter Mackenzie for the first time ever

and Plaintiff became very concerned.

4.05 At this point, Plaintiff, her daughter and her mother left the apartment, and

went outside, where Mackenzie placed a 911 call to the Dallas Police Department on

her cell phone at 4:39pm which was not answered, nor redialed by the operator.

4.06 After Plaintiff, her daughter and mother left the apartment following the

bottle throwing incident Plaintiffs daughter Mackenzie placed a 4:39pm 911 call which

was not connected. Plaintiffs daughter then placed a series of three 911 calls to the

Dallas Police Department: at 4:40pm for 2 minutes, 16 seconds, at 4:49 for 6 minutes

51 seconds, and at 5:06 pm for 4 minutes 17 seconds, asking for police assistance.

4.07 After the calls were placed Plaintiff, her daughter and mother wanted to

leave the area due to imminent danger, but the 911 operator told Plaintiffs daughter

during one of the phone calls that since the incident involved domestic violence they

would all have to stay in the area until the police arrived, which would be soon since the

police were on the way.

4.08 After waiting about 60 minutes for the police, who never arrived, Plaintiff,

her daughter and mother went back into the apartment. The arguments resumed and

the boyfriend shot Plaintiff with Plaintiffs own 9mm target pistol. Plaintiff only used the

target pistol at firing ranges. The bullet shattered Plaintiffs shoulder, passed through


Plaintiffs lungs, which collapsed, and lodged in Plaintiffs spinal cord. As a result,

Plaintiff has lost motion entirely in her left arm and below her chest.

4.09 As soon as Plaintiff was shot Plaintiffs neighbors called 911 and the

police arrived shortly thereafter. Plaintiff told the police officers that she thought she

was paralyzed but the officers just mocked her and laughed. The officers may have

seen that the bullet entered at Plaintiffs arm, and thought that she could not be

paralyzed from that, but obviously the bullet ricocheted inside Plaintiff s body to cause

all the injuries it did. The police even kicked plaintiffs leg and asked "can you feel

that?" to test whether Plaintiff was paralyzed.

4.10 Plaintiffs doctors have told Plaintiff that it is not medically possible to

remove the bullet from Plaintiffs spinal cord so that she will be disabled for the rest of

her life.

4.11 Prior to the incident, Plaintiff owned and operated a beauty salon known

as The Lash Lab which had just moved to the Knox-Henderson area in North Dallas.

Plaintiffs salon was on the 6th floor of a prestigious high rise building in Highland Park.

Plaintiff had numerous well known clients, including the wives of NFL players. Plaintiff

had clients who flew into Dallas just to have their lashes done at Plaintiffs salon.

Plaintiffs salon was highly rated on the internet and won an award as the best eye lash

salon in the DFW area for 2013. Plaintiff had earned in excess of $100,000 per year,

but now can no longer pursue her profession due to the injuries she sustained.


V.

FIRST COUNT

MALFUNCTION OF TANGIBLE PERSONAL PROPERTY

5.01 The foregoing paragraphs of this Petition are incorporated in this Count by

reference as fully as if set forth at length herein.

5.02 The City of Dallas is liable under the Tort Claims Act for malfunctions of its

911 emergency call computer system and phone system.

Section 101.021(2) of the Texas Tort Claims Act specifically provides that a governmental unit is liable for

(2) personal injury and death so caused by a condition or use of tangible personal or real 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)

See City of Dallas v. Sanchez, 449 SW3d 645 (Tex. Civ. App. — Dallas 2014)

reh'g overruled (Dec 29, 2014), a copy of which is attached is Exhibit A hereto. A copy

of the record of the 4 calls made by Plaintiffs daughter, Mackenzie, to the 911 number

on January 19, 2015, is attached as Exhibit B hereto.

5.04 The first call at 4:39 failed to connect, and was not redialed by the 911

operator. Plaintiff has made request for records of the other 3 calls shown on Exhibit B

but the City has failed to produce such records, reflecting a further malfunction by the

city computer and phone systems as to both log-ins and dispatches. The malfunctions

of the 911 computer and phone systems were proximate causes of the failure of police

to arrive at the scene of the incident and prevent the injuries to Plaintiff.


5.05 The 911 employees violated city ordinances related to safety on the job,

including but not limited to, two specific sections of the Dallas City Code setting forth

employee standards of conduct. See Dallas, Tex., City Code §34-36(b)(5)(A) (1997

through Jan. 2014) (unacceptable conduct by employees includes carelessness or

negligence); (b)(7)(A) (safety violations). As the proximate cause of such violations the

police never arrived at the scene of the incident, causing the injuries to Plaintiff.

5.06 As a direct proximate result of the negligence of Defendant, Plaintiff

suffered severe injuries, including the injuries set forth above. Plaintiff was compelled to

seek medical treatment following her injuries, and will be compelled to do so in the

future.

5.07 As a result of Plaintiffs injuries made the basis of this action and the

injuries sustained by Plaintiff, Plaintiff has suffered past and will suffer future, physical

injury and severe physical and mental pain and anguish, for which Plaintiff sues. As a

further result Plaintiff has suffered in the past and will suffer in the future physical

impairment and disfigurement, for which Plaintiff sues. Plaintiff has been compelled to

consult physicians, surgeons and physical therapists for treatment, and will need such

treatment for the foreseeable future. In all reasonable probability, Plaintiff will continue

to suffer such physical impairment, disfigurement, mental and physical pain and anguish

for a long time in to the future, if not for the balance of her natural life, for which Plaintiff

sues. Plaintiff has incurred reasonable and necessary medical, counseling and

medication expenses in an amount in excess of the minimum jurisdictional limit of this

Court, for which Plaintiff sues.


5.08 As a result of her injuries Plaintiff is unable to work in her business and has

therefore suffered past and future lost earnings and past and future damages to

earnings capacity.

VI.

JURY TRIAL DEMANDED

6.01 PLAINTIFF DEMANDS A TRIAL BY JURY.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant City of

Dallas be cited to appear and answer herein, and that on final trial, Plaintiff have and

recover the following relief against Defendant:

1. Judgment is for past and future physical injury, impairment, disfigurement

and past and future physical pain and suffering;

2. Judgment for actual damages in the amount of past and future lost

earnings and benefits and damages to past and future earnings capacity;

3. Damages for past and future mental anguish and emotional distress;

4. Past and future medical and hospital care and expenses;

5. Prejudgment and post-judgment interest at the maximum legal rate;

6. All costs of Court; and

7. Such other and further relief to which Plaintiff may be justly entitled.


rti 4C; Dated: This t.R day ofy.tafc1172015.

Respectfully submitted,

KILGORE & KILGORE, PLLC

By: /s/ W.D. Masterson W.D. MASTERSON State Bar No. 13184000

3109 Carlisle Dallas, TX 75204-2471 (214) 969-9099 - Telephone (214) 953-0133 - Fax wdmakiloorelaw.com

ATTORNEYS FOR PLAINTIFF ROXANNA MAYO


EXHIBIT A

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

449 S•W.3d 645 Court of Appeals of Texas,

Dallas.

City of Dallas, Appellant and Cross—Appellee v.

Diane Sanchez, individually and as representative of the Estate of Matthew Sanchez, Deceased, and Arnold Sanchez, Appellees and Cross—Appellants

No. 05-13-01651—CV I Opinion Filed October 27, 2014 I Rehearing Overruled December 29, 2014

Synopsis Background: Parents of child who died from drug overdose filed suit against city based on alleged negligent use or misuse by 911 operators of 911 computer and telephone system in responding to two calls from separate locations within same apartment complex, and for defective condition of 911 telephone system. The 191st Judicial District Court, Dallas County, granted city's motion to dismiss petition in part and denied it in part. Both parties appealed.

Holdings: The Court of Appeals, O'Neill, J., held that:

Eli gravamen of parents' allegations regarding 911 operators' failure to distinguish two calls and respond accordingly sounded in complaint for non-use of city's 911 telephone and computer systems, for which city did not waive immunity from suit;

[2]gravamen of allegations based on disconnection of 911 call due to malfunction of computer and telephone system prior to arrival of emergency personnel was complaint for defective condition of equipment for which city waived immunity from suit;

[3] parents adequately alleged that malfunction of equipment was proximate cause of child's death; and

[4]parents' allegations stated claim for violation of statute or ordinance applicable to provision of 911 emergency services for which city waived immunity from suit.

Affirmed.

*647 On Appeal from the 191st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-13-08320—J; The Honorable Gena Slaughter, Judge

Attorneys and Law Firms

Barbara Rosenberg, Warren M. Ernst, Patricia M. DeLa Garza, James B. Pinson, Dallas, TX, for appellants.

Charles "Chad" Baruch, Rowlett, TX, Michael Brett Anthony, Corpus Christi, TX, for appellees. Before Justices O'Neill, Lang—Miers, and Brown'

OPINION

Opinion by Justice O'Neill

Appellees/cross-appellants Diane and Arnold Sanchez sued the City of Dallas for negligence connected with the death of their son, Matthew. The City filed a motion to dismiss under Rule 91a, Texas Rules of Civil Procedure. The trial court granted the motion in part and denied it in part. Both parties filed an interlocutory appeal. We affirm the trial court's order.

BACKGROUND

A. Rule 91a Rule 91a permits a party to move to dismiss a cause of action "on the grounds that it has no basis in law or fact." The rule provides that "fa] cause of action has *648 no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." TEX.R. CIV. P. 91a. 1. The trial court may conduct an oral hearing on the motion, but "may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action...." TEX.R. CIV. P. 91a.6.

B. Facts Under Rule 91a, we accept the factual allegations in the plaintiffs' operative petition as true. The Sanchezes allege

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that on November 16, 2012, Dallas 911 received two telephone calls from two different cell phone numbers seeking emergency assistance for drug overdoses in two different apartments in the same complex. The calls were made within ten minutes of each other. The second call sought assistance for Matthew. The dispatcher received the address and confirmed that responders were on their way. Then "the call was somehow disconnected." Emergency responders went to the apartment associated with the first call, but not the second. Matthew did not receive emergency treatment. He died six hours after the call and less than an hour before his parents discovered him.

C. The Sanchezes' pleading In their third amended original petition, the Sanchezes alleged:2

5.1 The city of Dallas is liable under the Tort Claims rat for negligent use and negligent misuse of their computer system and phone system. The City of Dallas 911 personnel's negligent use or negligent misuse of their computer system hardware and software property and misuse of their phone system property both of which should been used in a manner to have ensured their ability to determine that the calls were two separate incidents coming from two different locations was another proximate cause of Matthew Sanchez not being discovered by emergency responders. Based upon current information and belief it appears that, the 911 employee negligently misused the phone property in question by hanging up on a pending 911 prior to the arrival of 911 responders and/or a malfunction of the phone system in question caused the caller and the 911 operator to become disconnected.

5.2 The 911 employees violated city ordinances related to safety on the job, including but not limited to City of Dallas Personnel Rule 34-36(b)(5)(A) & 34-36(b)(7)(A). Further, Plaintiffs believe that Defendant's dispatcher violated local, state and federal regulations, statutes, and/or ordinances regarding training and accreditation of the employee, and specifically in determining the location of two similar but distinct calls and also in misusing the phone by either intentionally hanging up on the 911 caller or failing to redial a call that had become disconnected due to a phone system malfunction prior to the arrival of emergency personnel. See e.g. TEX. OCC.CODE § 1701.405 (requiring 40 hours of training of 911 training for telecommunicators); NENA 56-001 (requiring call backs if disconnected before personnel can determine if

assistance is still needed) & NENA 56-005 (sec. 3.6.1 requiring address verification with ALI display and sec. 3.14 requiring making sure the two 911 calls were not redundant).

5.3 Due to the dispatcher's negligent use and negligent misuse of the computer and phone system property and/or the malfunction of the phone system in question and/or subsequent *649 failures in appropriate procedures no responders ever arrived at Matthew Sanchez's apartment and he was found dead in his apartment by his parents Diane Sanchez and Arnold Sanchez at approximately 9:20 a.m. on November 16, 2012. The autopsy of Mathew Sanchez reveals the time of death as approximately 8:40 a.m.

5.4 Upon information and belief, the city of Dallas 911 personnel in question negligently used or misused their computer system and failed to recognize that the two phone calls were coming in from two different locations at the same apartment complex or alternatively negligently used their computer system in a way that failed to adequately alert other 911 personnel that the phone calls were coming in from two different locations at the same apartment complex—all of which collectively resulted in the emergency responder failing to recognize That two separate 911 calls had been made and failing to recognize that the overdosed individual he was assisting was not in the same location as where Mathew Sanchez 911 call had been placed and where his Apple iphone still remained.

D. The trial court's order The trial court granted the City's motion to dismiss in part and denied it in part. The order provides that the motion is granted "as to all claims of use/misuse of equipment, failure to follow procedures, failure to train," and denied "as to allegations that the equipment failed or malfunctioned."

ISSUES

The City contends the trial court erred by partially denying the motion to dismiss because the court does not have subject matter jurisdiction over a negligence claim against a city based upon its malfunctioning telephone equipment. In their cross-issues, the Sanchezes contend that the trial court erred by granting the City's motion to dismiss their claims relating to use or non-use of equipment. They also contend the trial court's partial

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denial of the City's motion was correct.

STANDARD OF REVIEW

In its motion to dismiss, the City challenged the trial court's subject matter jurisdiction over the Sanchezes' claims. The parties agree that we review the trial court's ruling on this question of law de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-27 (Tex.2004)?

111121Although rule 9Ia is new,* in this appeal our review is similar to a challenge to the pleadings through a plea to the jurisdiction as described in Miranda. See id; see also Austin State Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex.2011) (appeal may be taken from orders denying *650 assertion of immunity, regardless of procedural vehicle used); City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 822 n. 1 (Tex.App.--Austin 2014, no pet.) (reviewing trial court's order on Rule 9Ia motion "using the standard of review for pleas to the jurisdiction that challenge only the pleadings"); Wooley, 447 S.W.3d at 75 (fmding Rule 91a motions "unique," but "analogous to pleas to the jurisdiction"). To determine if subject matter jurisdiction exists, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Id

APPLICABLE LAW

131The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity from suit and from liability for negligence for municipalities engaged in certain governmental functions. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a) (West Supp.2014) (liability of municipality). Operation of an emergency ambulance service is a governmental function. TEX. CIV. PRAC. & REM.CODE ANN. § 101.021508). The waiver is limited and entirely dependent upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341-42 (Tex.1998); see also TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001-101.109 (West 2011 & Supp.2014).

Section 101.021(2) of the TTCA specifically provides that a governmental unit is liable for:

(2) personal injury and death so caused by a condition or use of tangible personal or real 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).

141 151 161 171For immunity to be waived, personal injury or death must be proximately caused by a condition or use of tangible personal property. Bossley, 968 S.W.2d at 343; Dallas Cnty. v. Posey, 290 S.W.3d 869, 872 (Tex.2009). Property does not cause injury if it does no more than furnish the condition that makes the injury possible. Bossley, 968 S.W.2d at 343. If the injury is "distant geographically, temporally, and causally" from the use or condition of tangible personal property, there is no waiver of immunity. See id. There must be a nexus between the condition or use of the property and the injury, requiring more than "mere involvement of property." Posey, 290 S.W.3d at 872. The condition "must actually have caused the injury." Id.

DISCUSSION

A. Claims arising from use or non-use of equipment 181181The trial court granted the City's motion to dismiss the Sanchezes' "claims of use/misuse of equipment, failure to follow procedures, [and] failure to train.' Claims for misuse of equipment are actionable under the TTCA, but claims for misuse of information are not. See Univ. of Tex. Med. Branch at Galveston v. York, 871 S.W.2d 175, 178-79 (Tex.1994) (information is not tangible property). And claims for non-use or failure to use property are not actionable. See Tex. Dep 't of

Criminal Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex.2001) (legislature has drawn *651 line between "use" and "non-use" of tangible personal property under TTCA).

1101If the gravamen of a claim for misuse of property is actually misuse of information or non-use of property, there is no waiver of immunity. In City of El Paso v. Hernandez, 16 S.W.3d 409, 411 (Tex.App.—E1 Paso 2000, pet. denied), appellees alleged that the delay in dispatching an ambulance from one El Paso hospital to another resulted in the death of Andrea Hernandez. Although the applicable policy was to transport patients with life-threatening emergencies to the nearest hospital, Hernandez initially was transported to a more distant

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hospital that did not have the equipment necessary to save her life. Id. at 411-13. Although appellees' petition alleged the negligent use of an emergency vehicle, the court concluded that "the gravamen of Appellees' complaint is that EMS personnel made an incorrect medical decision" about whether Hernandez had a life-threatening emergency. Id. at 416. This complaint "about a non-use of the vehicle" did not fall within section 101.021's waiver of immunity. Id Similarly, delay in dispatching a second ambulance was a non-actionable claim for non-use of a vehicle. Id at 416-17. And the claim that a dispatcher used or misused a telephone or other equipment by failing to timely dispatch an ambulance and by discussing personal matters with his supervisor instead of dispatching the ambulance were non-actionable claims for "non-use of the equipment and misuse or non-use of intangible information." Id at 417.

In Martinez v. City of Abilene, 963 S.W.2d 559, 560 (Tex.App.—Eastland 1998, no pet.), cited by the City in oral argument, the court cited numerous cases holding that the use of computers, telephones, or records to collect and communicate information is not a use of tangible personal property under the TTCA. In Martinez, a police officer input an incorrect vehicle identification number into the City's computer system when recording a missing person report. Id. The plaintiff alleged the incorrect entry caused a delay in identifying the car and locating her missing son, causing his death. Id The court concluded the identification number was "information" put "in the wrong category in the computer," and explained, "[t]his is a case of misuse of information, not a case of misuse of tangible property." Id at 560. The trial court's dismissal of the plaintiff's suit was affirmed. Id. The City contends that the Sanchezes' complaints are non-actionable claims for misuse of information.

"The Sanchezes complain of "negligent use and negligent misuse" of the City's phone and computer systems in paragraphs 5.1 through 5.4 of their petition. These complaints arise from (1) the City's failure to determine that there were two separate 911 calls from two separate locations; (2) the 911 employee's hanging up the phone before the arrival of the responders; and (3) the 911 employee's failure to redial the caller. We conclude that the gravamen of each of these complaints is the non-use of tangible property. The telephone system and computer system were not used to determine and track the locations of the two calls received by the 911 operator, or to determine that the two calls were not redundant. And the 911 employee failed to use the telephone system to ensure that the responders had arrived at the correct location. Non-use of tangible property does not waive immunity. See Miller, 51 S.W.3d at 587-88; City of N. Richland

Hills v. Friend, 370 S.W.3d 369, 372 (Tex.2012) (claim that City failed to retrieve and use automatic external defibrillator device to revive swimmer at water park was non-use claim, not sufficient to waive City's immunity).

*652 The Sanchezes also argue that the City's failure to determine there were two separate 911 calls from two separate locations was a "failure to acquire information," not a non-actionable misuse of information. See Martinez, 963 S.W.2d at 560. The Sanchezes contend that failing to acquire information at all is different from misusing information. If no information is acquired, they argue, then there is no information to misuse. Instead, they contend the misuse was of tangible equipment—the telephone system—by failing to verify that the two emergency calls were not redundant. The Sanchezes distinguish Hernandez and other cases cited by the City on this ground, noting in those cases the lack of "any allegation of misused equipment causing the failure to acquire information necessary for dispatch." See, e.g., id. at 413 (summarizing allegations made in petition). We have concluded, however, that the gravamen of the Sanchezes' "negligent use and negligent misuse" allegations is non-use of property; that is, the failure to use the telephone and computer systems to determine that the two calls were not redundant. The trial court correctly concluded that there was no waiver of immunity for these claims. See id at 416-17. Because the Sanchezes' pleadings were not sufficient to allege a claim for "negligent use and negligent misuse of property," the trial court's dismissal of that claim was proper. See TEX.R. CIV. P. 91a.l.

B. Claims arising from malfunctioning equipment 112IWe also conclude the trial court correctly denied the City's motion to dismiss the Sanchezes' claims asserting that equipment failed or malfunctioned. The Sanchezes pleaded in the alternative that Matthew died when the emergency call seeking assistance for him was disconnected by malfunction of the phone system. They specifically alleged that the emergency call was disconnected "due to a phone system malfunction prior to the arrival of emergency personnel." They alleged that due to the malfunction of the phone system, "no responders ever arrived at Matthew Sanchez's apartment and he was found dead in his apartment by his parents...."

The Sanchezes' pleadings alleged that the condition of tangible personal property—the City's emergency phone system—caused Matthew's death. The City argues again that the Sanchezes' claim is actually for misuse of information. Citing City of El Paso v. Wilkins, 281 S.W.3d 73, 75 (Tex.App.—El Paso 2008, no pet.), the

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City argues that the failure to dispatch emergency personnel is a claim for the alleged misuse of intangible information which is insufficient to invoke a waiver of immunity. In Wilkins, a police unit did not respond to a 911 emergency call until two and one-half hours after the call was made. Id. at 74. During the interim, the caller committed suicide. Although the appellees argued that the inadequate condition of the emergency communications system contributed to the delay, there were "no facts or evidence alleged that there was a problem with the telephones or computer systems used." Id. at 75. The court explained that the appellees' claims were "based on the failure to timely dispatch a police unit in response to the call." Id at 76. The court continued, "[t]his failure to dispatch involved the conveyance of information, which is not tangible personal or real property." Id. Although the telephones and computers used were "tangible," there were no allegations that they were "in any defective or inadequate condition" or were misused. Id. Without any such allegations, the appellees' complaint did not fall within the statutory waiver of immunity. /d

*653 In Hernandez, appellees alleged "that the inadequate condition of the communications system contributed to the delay which caused the death of Mrs. Hernandez." Hernandez, 16 S.W.3d at 417. When the telephone system became busy, calls "rolled over" to the fire department, which "could not have been of assistance." Id. But because there were no allegations that any calls relating to Hernandez "rolled over" to the fire department "or that this condition of the system contributed to the delay," there was no waiver of immunity. Id.

Here, in contrast, the Sanchezes made specific allegations of a malfunction of the telephone system in its use by the 911 operator. A failure or malfunction of the equipment allegedly cut off the caller before the call was completed and contributed to the City's failure to provide emergency medical attention to Matthew. These allegations were sufficient to allege that a condition of tangible personal property caused injury. See Michael v. Travis Cnty. Hous. Auth., 995 S.W.2d 909, 913-14 (Tex.App.—Austin 1999, no pet.) (allegation that two pit bulls escaped through defective fence and attacked two children sufficiently alleged that condition or use of tangible personal property proximately caused injuries, as required by TTCA section 101.021(2)).

C. Causation "31 "The City argues that even if the Sanchezes' allegations of an equipment malfunction are sufficient, their allegations of proximate cause are not. The City contends that the cause of Matthew's death was a drug

overdose, not lack of emergency medical attention. "To fmd proximate cause, there must be a nexus between the condition of the property and the injury." Posey, 290 S.W.3d at 872. The Posey court explained that "[for a defective condition to be the basis for complaint, the defect must pose a hazard in the intended and ordinary use of the property." Id In Posey, because exposed wires in a telephone cord did not cause Posey's injury (death by suicide using the telephone cord), "the requisite nexus between the condition complained of and the harm was thus not established." Id.

In addition, property does not cause injury if it does no more than furnish the condition that makes the injury possible. Bossley, 968 S.W.2d at 343. In Bossley, an employee left a door unlocked, and a patient escaped from a treatment facility, leaped into the path of a truck on a nearby highway, and was killed. Id at 341-42. The court explained that the patient's death was not caused by the unlocked door: "[a]lthough Roger's escape through the unlocked doors was part of a sequence of events that ended in his suicide, the use and condition of the doors were too attenuated from Roger's death to be said to have caused it." Id at 343. The court concluded, "[t]he real substance of plaintiffs' complaint is that Roger's death was caused, not by the condition or use of property, but by the failure of [the facility's] staff to restrain him once they learned he was still suicidal." Id. Because Roger's death was "distant geographically, temporally, and causally from the open doors" at the facility, id. at 343, proximate cause was lacking.

Here, in contrast, the Sanchezes pleaded that a malfunction of the telephone system, prematurely disconnecting the call between the 911 operator and the caller, was a cause of Matthew's death. The connection, and disconnection, of the call was "in the intended and ordinary use" of the telephone system. See Posey, 290 S.W.3d at 872. The Sanchezes pleaded that Matthew survived for six hours after the call was made for emergency medical assistance. They pleaded that had the emergency responders found Matthew before they left *654 the premises, they "would have most likely saved Matthew's life." We cannot say as a matter of law that there was no nexus between the alleged malfunction of the telephone system and Matthew's death. See also Borrego v. City of El Paso, 964 S.W.2d 954, 959 (Tex.App.—El Paso 1998, pet. denied) (question of fact existed on proximate cause of injury; although plaintiff was struck by car, he was first immobilized and abandoned by emergency responders in backboard on roadway).

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D. Exceptions to waiver for emergency response 1151The City next contends that even if a waiver is pleaded under section 101.021(2), the City retains its immunity under TTCA section 101.062 governing the provision of 911 emergency services. Under section 101.062, when providing emergency services, the City waives immunity only for an "action that violates a statute or ordinance applicable to the action." TEX. CIV. PRAC. & REM.CODE ANN. § 101.062(b) (West 2011). The City contends the Sanchezes failed to plead a violation of a statute or ordinance applicable to the action.

The Sanchezes respond that in paragraph 5.2 of their petition, they alleged violations of numerous statutes and ordinances. But the City replies that the provisions cited by the Sanchezes are not statutes or ordinances within the meaning of section 101.062, citing Guillen v. City of San Antonio, 13 S.W.3d 428, 434 (Tex.App.—San Antonio 2000, pet. denied), and Fernandez v. City of El Paso, 876 S.W.2d 370, 376 (Tex.App.—El Paso 1993, writ denied). In Guillen, the court concluded that the standard medical operating procedures of the San Antonio fire department were "guidelines" rather than a statute or ordinance to which section 101.062 applied. See Guillen, 13 S.W.3d at 433-34. In both Guillen and Fernandez, the courts concluded that the statutes and ordinances pleaded did not impose affirmative duties on the emergency responders that were violated. See Guillen, 13 S.W.3d at 433-34 (Medical Practice Act does not affirmatively impose duty on paramedics to yield authority to physician as alleged by plaintiffs); Fernandez, 876 S.W.2d at 376 (provisions of Health and Safety Code and City of El Paso municipal code pleaded by appellants did not impose affirmative duty on appellee to respond to emergency situation within certain period of time).

Neither Guillen nor Fernandez holds that a municipal ordinance is not an "ordinance" within the meaning of section 101.062. The Sanchezes pleaded that "[t]he 911 employees violated city ordinances related to safety on the job, including but not limited to" two specific sections of the Dallas City Code setting forth employee standards of conduct. See Dallas, Tex., City Code § 34-36(b)(5)(A) (1997 through Jan. 2014) (unacceptable conduct by employees includes carelessness or negligence); (b)(7)(A) (safety violations). The Sanchezes also pleaded that the

Footnotes

City's employees "violated local, state and federal regulations, statutes, and/or ordinances regarding ... determining the location of two similar but distinct calls" by intentionally hanging up or "failing to redial a call that had become disconnected due to a phone system malfunction prior to the arrival of emergency personnel." Although the City ultimately may establish that no applicable statute or ordinance was violated, the Sanchezes' pleading provides a basis for their claim that section 101.062 does not apply. TEX.R. CIV. P. 91a.6 (trial court must decide motion "based solely on the pleading of the cause of action"); see also Dailey, 445 S.W.3d at 790 (Rule 91a expressly prohibits trial courts from considering evidence).

E. Dismissal under Rule 9Ia *655 Under Rule 91a.1, dismissal is proper if the Sanchezes' claims have "no basis in law," that is, if their allegations taken as true, together with the inferences reasonably drawn from them, do not entitle them to the relief sought. See TEX.R. CIV. P. 91.a.1. The waiver of immunity under section 101.021(2) is far from clear. See, e.g., Miller, 51 S.W.3d at 589-91 (Hecht, J., concurring) ("After thirty-two years and hundreds of cases, I am now convinced that it is simply impossible for the courts to meaningfully construe and consistently apply the use-of-property standard in the Tort Claims Act."). Under the standard of Rule 91a.1, we cannot say the Sanchezes' claim "that the equipment failed or malfunctioned" is a "baseless" cause of action. See TEX.R. CIV. P. 91a.1; see also Wooley, 447 S.W.3d at 75, and GoDaddy.com, LLC, 429 S.W.3d at 754 (both fmding Rule 91a similar to federal standard requiring "enough facts to state a claim to relief that is plausible on its face").

CONCLUSION

We overrule all issues raised in the appeal and cross-appeal. We affirm the trial court's order.

We thank the parties and their counsel for their participation in the "Appealing to the Public" program of the Dallas Bar Association, the Dallas Independent School District, and this Court in the submission of this case.

2 All emphasis is added.

West.tawNe CO 2015 Thomson Reuters_ No I to original U.S. Government Works. 6


3 Several of our sister courts have also applied a de novo standard of review to rulings by trial courts under Rule 91a. See Dailey v. Thorpe, 445 S.W.3d 785, 788-89 (Tex.App.—Houston [1st Dist.] 2014, no pet. h.); Wooley v. Schaffer, 447 S.W.3d 71, 74-76 (Tex.App.—Houston [14th Dist.] 2014, no pet. h.); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.App.—Heaumont 2014, pet. filed).

4 In 2011, section 22.004(g) was added to the Texas Government Code, and provides in part that "[t]he Supreme Court shall adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence." See TEX. GOV'T CODE ANN. § 22.004(g) (West Supp.2014). Rule 91a "is a new rule implementing section 22.004 of the Texas Government Code," adopted effective March 1, 2013, and applicable to all pending cases. See TEX.R. CIV. P. 91a cmt. & ed. note (citing Tex. Sup.Ct. Order, Misc. Docket No. 13-9022, Feb. 12, 2013).

5

In a footnote of their reply brief, the Sanchezes state that they "do not waive their claims concerning training" but "do not appeal those portions of the trial court's order." We therefore do not address those claims.

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

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