Summary
In Gaytan, the officers who directed the driver were present when the accident occurred, but the driver acted independently in pausing the vehicle rather than proceeding to turn as the officers directed.
Summary of this case from Galveston Cnty. v. LeachOpinion
NO. 01-18-01083-CV
04-28-2020
CITY OF SUGAR LAND, Appellant v. AGAPITO GAYTAN, Appellee
On Appeal from the 458th District Court Fort Bend County, Texas
Trial Court Case No. 16-DCV-236359
MEMORANDUM OPINION
In this interlocutory appeal, appellant, City of Sugar Land (the "City"), challenges the trial court's order denying its plea to the jurisdiction filed in the suit brought against it by appellee, Agapito Gaytan, for negligence. In its sole issue, the City contends that the trial court lacks subject-matter jurisdiction over Gaytan's suit.
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
We reverse and render.
Background
In his second amended petition, Gaytan alleges that on May 22, 2016, he was participating in the Tejas Triathlon (the "triathlon"). At around 8:00 a.m., during the biking portion of the triathlon, Gaytan biked down New Territory Boulevard in the right traffic lane. As Gaytan approached the intersection of New Territory Boulevard and Chatham Avenue, a third party, Daksha Shah, who was driving her car on Chatham Avenue, sought to make a left hand turn onto New Territory Boulevard. At the intersection of New Territory Boulevard and Chatham Avenue, two law enforcement officers employed by the City were directing traffic related to the triathlon. Before Gaytan reached the intersection, at least one of the law enforcement officers "signaled Shah to proceed through the intersection to make her left hand turn." But, after entering the intersection on the instruction of the officers, Shah then "paused momentarily in the [traffic] lane" in which Gaytan was biking. Because of this, Gaytan impacted Shah's car, causing him to "fall forward and suffer serious debilitating injuries."
Gaytan further alleges that, at the time of his collision with Shah's car, the law enforcement officers, as employees of the City, were negligent in performing a governmental function: "directing traffic." According to Gaytan, "the officers were charged and entrusted with controlling traffic at the intersection while the [triathlon] was going on"; "they had a duty to perform th[at] function[] in such a way as to keep the participants and [the] general public traversing th[e] streets safe from danger"; the officers were "negligent in instructing [Shah] to enter the [intersection] without sufficient time to pass through the intersection and avoid the oncoming [triathlon] participants"; and the officers' conduct was the proximate cause of Gaytan's injuries. Thus, Gaytan asserted that the City was liable to him under the Texas Tort Claims Act ("TTCA").
See id. §§ 101.001-.109; see also id. § 101.0215(a)(1), (21) ("Liability of a Municipality"; liability provision pleaded by Gaytan); see also City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (although TTCA, as set out in Texas Civil Practice and Remedies Code section 101.0215, "provides that a municipality may be held liable for certain governmental functions," section 101.0215 does not provide independent basis for waiver of governmental immunity; waiver of immunity must still be established).
The City answered, generally denying the allegations in Gaytan's second amended petition. The City then filed a plea to the jurisdiction, asserting that the trial court lacks subject-matter jurisdiction over Gaytan's suit against it. According to the City, it is a governmental entity under the TTCA and is entitled to governmental immunity. And Gaytan had failed to show that his suit against the City fell under the limited waiver of governmental immunity provided for by the TTCA. The City, in its plea to the jurisdiction, asserted that Gaytan failed to plead facts showing that he had "sustained a personal injury which arose from the City's operation or use of its own motor-driven vehicle" and "the act or failure to act by [the City's law enforcement] officer[s] in directing traffic does not in any way arise from the government's operation or use of a motor[-driven] vehicle." (Emphasis omitted.) Instead, Gaytan, in his second amended petition, "clearly admits [that] a private citizen," i.e., Shah, was "operating the [motor-driven] vehicle" with which he collided. Thus, because Gaytan's purported injuries were not caused by the City's law enforcement officers' operation or use of a motor-driven vehicle, the City's governmental immunity is not waived and the trial court lacks subject-matter jurisdiction over Gaytan's suit.
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 ("Governmental Liability").
See id. § 101.021(1).
In response, Gaytan asserted that he, in his second amended petition, had plead facts to show waiver of governmental immunity under the TTCA. Specifically, Gaytan explained that his suit arose from an "auto-bicycle collision." The collision happened at the intersection of New Territory Boulevard and Chatham Avenue during the triathlon. At that intersection, the City's two law enforcement officers were "directing traffic." And at least one of the law enforcement officers "signaled [Shah's] car to proceed through the intersection to make a left hand turn." That said, after entering the intersection on the instruction of the officers, Shah then "paused momentarily in the [traffic] lane" in which Gaytan was biking. This caused Gaytan to collide with Shah's car, "to fall forward," and to "suffer serious debilitating injuries." According to Gaytan, the City's law enforcement officers were "charged and entrusted with controlling traffic at the intersection"; "[t]hey had a duty to perform th[at] function[] in such a way as to keep the participants [of the triathlon] and [the] general public traversing th[e] streets safe from danger"; the officers "were negligent in instructing [Shah] to enter the [intersection] without sufficient time to pass through the intersection and avoid the oncoming [triathlon] participants," like Gaytan; and the officers' negligence proximately caused the collision and Gaytan's injuries. Based on the above, Gaytan asserted that the City's governmental immunity was waived under Texas Civil Practice Code section 101.021(1) because the City's law enforcement officers were "controlling the actions of [a third party], as the operator of the car, by negligently directing her actions and consequentially causing serious injuries to . . . Gaytan." In other words, because the officers were "instructing cars to pass through the intersection at their sole discretion," the officers were "operat[ing]" or "us[ing]" a motor-driven vehicle: Shah's car, and it was Shah's car with which Gaytan collided.
See id.
See id.
The trial court, in an interlocutory order, denied the City's plea to the jurisdiction.
Standard of Review
We review de novo a trial court's ruling on a jurisdictional plea. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Houston v. Vallejo, 371 S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004); Villarreal v. Harris Cty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.). A plea to the jurisdiction is used to challenge whether the plaintiff has met his burden of alleging jurisdictional facts or to challenge the existence of jurisdictional facts. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004).
When a plea to the jurisdiction challenges the pleadings, we determine whether the pleader has alleged facts that demonstrate the trial court's jurisdiction. Id. at 226. We construe the pleadings liberally in favor of the pleader, accept all factual allegations as true, and look to the pleader's intent. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). If the pleadings are insufficient, the court should afford a chance to replead if the defects are potentially curable but may dismiss if the pleadings affirmatively negate the existence of jurisdiction. City of Houston v. Guthrie, 332 S.W.3d 578, 586-87 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
Plea to the Jurisdiction
In its sole issue, the City argues that the trial court erred in denying its plea to the jurisdiction because the TTCA does not waive governmental immunity in this case. The City asserts that Gaytan "cannot demonstrate [that] his alleged personal injuries arose from a governmental employee's operation or use of a motor[-driven] vehicle" or that a governmental employee's "operation" or "use" of a motor-driven vehicle proximately caused Gaytan's alleged personal injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1).
Due to our disposition below, see infra, we need not address any of the City's remaining arguments. See TEX. R. APP. P. 47.1.
Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Garcia, 253 S.W.3d at 655; Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Although the terms "sovereign immunity" and "governmental immunity" are often used interchangeably, sovereign immunity "extends to various divisions of state government, including agencies, boards, hospitals, and universities," while governmental immunity "protects political subdivisions of the State, including counties, cities, and school districts." See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist., 212 S.W.3d at 324; see also Odutayo v. City of Houston, No. 01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.); City of Dallas v. Hillis, 308 S.W.3d 526, 530 (Tex. App.—Dallas 2010, pet. denied) ("A municipality enjoys governmental immunity from suit and from liability for its governmental functions."). We interpret statutory waivers of governmental immunity narrowly, as the Legislature's intent to waive immunity must be clear and unambiguous. Garcia, 253 S.W.3d at 655; see also TEX. GOV'T CODE ANN. § 311.034. Without an express waiver of sovereign immunity or governmental immunity, courts do not have subject-matter jurisdiction over suits against the State or its political subdivisions. State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006); Miranda, 133 S.W.3d at 224-25.
The TTCA provides a limited waiver of immunity for certain suits against governmental entities. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109; Garcia, 253 S.W.3d at 655; City of Houston v. Garza, No. 01-18-01069-CV, 2019 WL 2932851, at *4 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.); Hillis, 308 S.W.3d at 530. The City is a governmental entity protected by immunity, absent waiver. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(b). Relevant here, the TTCA waives immunity for personal injuries proximately caused by the negligence of a government employee acting in the scope of his employment if the injury "arises from the operation or use of a motor-driven vehicle." TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); see also Hinojosa v. Metro. Transit Auth. of Harris Cty., No. 01-17-00824-CV, 2018 WL 4131890, at *2 (Tex. App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.).
The City argues that Gaytan did not sufficiently allege a waiver of governmental immunity under the TTCA because the direction or control of traffic or a third-party's car by the City's law enforcement officers or any governmental employee, without the actual operation or use of the third-party's car by the officers or the employee, does not meet the statutory requirement for waiver of governmental immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). And Gaytan's own allegations "admit [a] lack of operation or use of any vehicle by a[] City employee," including the City's law enforcement officers located at the intersection of New Territory Boulevard and Chatham Avenue during the triathlon. (Emphasis omitted.) In fact, according to Gaytan, Shah's disregard of the instructions provided to her by the City's law enforcement officers caused Gaytan's collision with Shah's car.
Texas Civil Practice and Remedies Code section 101.021(1) provides:
A governmental unit in the state is liable for:
(1) . . . personal injury . . . proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:
Id. (emphasis added). Given the Legislature's preference for a limited waiver of immunity, we strictly construe this section. Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 927 (Tex. 2015). Here, we focus on whether Gaytan, in his second amended petition, alleged personal injuries "aris[ing] from the operation or use of a motor-driven vehicle" by a City employee: the City's law enforcement officers located at the intersection of New Territory Boulevard and Chatham Avenue during the triathlon.(A) the . . . personal injury . . . arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to Texas law.
"[O]peration" means "a doing or performing of a practical work," and "use" means "to put or bring into action or service; to employ for or apply to a given purpose." LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (internal quotations omitted). "[A]rises from" requires "a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle" by the governmental employee. Id. (internal quotations omitted). The Texas Supreme Court has specifically explained that, for the operation or use of a motor-driven vehicle, the government employee must have been "actively operating the vehicle at the time of the incident." Ryder, 453 S.W.3d at 927; see also LeLeaux, 835 S.W.2d at 51 ("operation or use" in question must be operation or use by governmental employee); San Antonio Indep. Sch. Dist. v. Hale, No. 04-18-00102-CV, 2018 WL 3129436, at *2 (Tex. App.—San Antonio June 27, 2018, no pet.) (mem. op.) ("[T]he alleged tortious act must relate to a government employee's actual operation of a vehicle, rather than to some other aspect of the employee's conduct."); Montoya v. Hous. Indep. Sch. Dist., 177 S.W.3d 332, 337 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (plaintiffs did not show injuries "actually arose from the [governmental employee's] operation or use of the bus" (emphasis added)); Luna v. Harlingen Consol. Indep. Sch. Dist., 821 S.W.2d 442, 445-46 (Tex. App.—Corpus Christi-Edinburg 1991, writ denied) (no allegations of operation or use of motor-driven vehicle by governmental employee).
Shah, a third party, was driving the car with which Gaytan ultimately collided as he biked down New Territory Boulevard during the triathlon. Gaytan, himself, in his second amended petition, alleges that his suit against the City "stem[s] from an auto-bicycle collision between [himself] and . . . Shah." According to Gaytan, while he was participating in the triathlon, he biked down New Territory Boulevard "in the right [traffic] lane." As he approached the intersection at New Territory Boulevard and Chatham Avenue, Shah, while driving her car on Chatham Avenue, sought to make a left hand turn onto New Territory Boulevard. Before Gaytan reached the intersection, at least one of the City's two law enforcement officers "signaled Shah to proceed through the intersection to make her left hand turn." Yet, after entering the intersection on the instruction of the officers, Shah then "paused momentarily in the [traffic] lane" in which Gaytan was biking. Because of this, Gaytan impacted Shah's car, causing him to "fall forward and suffer serious debilitating injuries."
Gaytan does not allege that either of the City's law enforcement officers, or any other governmental employee, drove the car with which he ultimately collided. And Gaytan does not allege that the City's law enforcement officers or any governmental vehicle were involved in the ultimate collision in which he was injured. See LeLeaux, 835 S.W.2d at 51 ("While the statute does not specify whose operation or use is necessary—the employee's, the person who suffers injury, or some third party—we think the more plausible reading is that the required operation or use is that of the [governmental] employee."); Clegg v. City of Fort Worth, No. 02-17-00040-CV, 2017 WL 6377433, at *5 (Tex. App.—Fort Worth Dec. 14, 2017, no pet.) (mem. op.) (plaintiff's petition did not allege "a negligent act in the operation or use of a motor[-driven] vehicle by a City employee"); Williams v. City of Baytown, 467 S.W.3d 566, 573-77 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (holding no waiver of immunity where law enforcement officers not involved in collision and "governmental vehicle was not involved in causing the injuries made the basis of the suit"); Tarkington Indep. Sch. Dist. v. Aiken, 67 S.W.3d 319, 325 (Tex. App.—Beaumont 2002, no pet.) (no allegation or evidence in record that government employee was operating or using motor-drive vehicle); City of Columbus v. Barnstone, 921 S.W.2d 268, 272 (Tex. App.—Houston [1st Dist.] 1995, no writ) ("In this case, it is undisputed that although the [plaintiff's] injury was caused by the use of a motor[-driven] vehicle, the vehicle was operated by a third [party] . . . and not the police officers."); Bellnoa v. City of Austin, 894 S.W.2d 821, 826-27 (Tex. App.—Austin 1995, no writ) ("This case does not involve the operation or use of a motor[-driven] vehicle under section 101.021(1) because the vehicle involved was not used or operated by an employee of the City."); cf. Ryder, 453 S.W.3d at 927-28 (law enforcement officer actually driving patrol car). Even so, Gaytan, on appeal, as he did in the trial court, argues that the City's law enforcement officers still engaged in the "operat[ion] or use[] [of] a motor[-]driven vehicle" because the officers "controll[ed] the actions of Shah . . . by directing her actions at the intersection." In other words, by "directing traffic at the intersection where the [ultimate collision] occurred," the City's law enforcement officers were "in complete control of the use or operation of the vehicles[, including Shah's car,] at the intersection."
In essence, the question before us is whether the conduct of the City's law enforcement officers in directing traffic at the intersection of New Territory Boulevard and Chatham Avenue during the triathlon, constituted "operation" or "use" of a third party's motor-driven vehicle. Gaytan alleges that at least one of the officers "signaled Shah to proceed through the intersection to make [a] left hand turn" and the officers "were negligent in instructing [Shah] to enter the [intersection] without sufficient time to pass through the intersection and avoid the oncoming [triathlon] participants."
We note that the Corpus Christi Court of Appeals has discussed the direction or control of traffic as it relates to the "operation" and "use" of a motor-driven vehicle. See Jackson v. City of Corpus Christi, 484 S.W.2d 806, 808-10 (Tex. App.—Corpus Christi-Edinburg 1972, writ ref'd n.r.e.). And that court clearly stated that "allegations of negligence relate[d] directly to the control of traffic . . . do not in any way arise from the operation or use of a motor[-driven] vehicle." Id. at 809.
In Jackson, the plaintiffs sued the City of Corpus Christi alleging that two law enforcement officers were negligent in not properly directing traffic around a car stalled in the middle of the street. Id. at 807-09. Ultimately, the court held that the plaintiffs' pleading did not allege "operation" or "use" of a motor-driven vehicle by a governmental employee because the common and ordinary meaning of the words "operation" and "use" did not include the direction and control of traffic by law enforcement officers. Id. at 809; see also City of Houston v. Rushing, 7 S.W.3d 909, 914 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (relying on Jackson in determining allegations did not involve "operation" or "use" of motor-driven vehicle).
Similarly, in Heyer v. North East Independent School District, the San Antonio Court of Appeals held that the TTCA did not waive immunity for claims of negligence against a school district, where the allegations of negligence related to the control and supervision of traffic. 730 S.W.2d 130, 131-32 (Tex. App.—San Antonio 1987, writ ref'd n.r.e.). In that case, a student was injured in a parking lot owned and controlled by the school district after a third party hit the student with third party's car. Id. at 130-31. Relying on Jackson, the San Antonio court reiterated that "allegations of negligence related directly to the control of traffic" do not constitute "acts or omissions which in any way arise from the operation or use of a motor[-driven] vehicle." Id. at 132 (internal quotations omitted) (holding because allegations of negligence related to control of parking lot and traffic, vehicle driven by third party not operated or used by any governmental employee); see also Lopez v. Escobar, No. 04-13-00151-CV, 2013 WL 4679062, at *5-6 (Tex. App.—San Antonio Aug. 28, 2013, no pet.) (mem. op.) (holding collision did not arise from law enforcement officer's operation or use of motor-driven vehicle where officer signaled truck to stop in highway median, but driver instead darted into oncoming traffic).
Our sister appellate court has addressed whether a law enforcement officer "used or operated a [motor-driven] vehicle in such a manner as to waive governmental immunity" under the TTCA where a law enforcement officer, after stopping an unlicensed, untrained, and uninsured driver, instructed that driver to "drive straight home." See Townsend v. City of Alvin, No. 14-05-00915-CV, 2006 WL 2345922, at *1-2 (Tex. App.—Houston [14th Dist.] Aug. 15, 2006, no pet.) (mem. op.) (internal quotations omitted). In that case, after the law enforcement officer "command[ed]" the driver to "drive straight home," the driver "ran a red light and broadsided another car, killing its driver." Id. at *1-2 (internal quotations omitted). Ultimately, the court held that law enforcement officer's conduct, i.e., instructing the driver to "drive straight home," did not amount to "operation" or "use" of a motor-driven vehicle. Id. at *1-4 (internal quotations omitted).
In this case, we conclude that Gaytan has not alleged facts that demonstrate that the City's law enforcement officers' conduct in directing or controlling traffic at the intersection of New Territory Boulevard and Chatham Avenue during the triathlon constitutes the "operation" or "use" of a motor-driven vehicle as required for a waiver of immunity under the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (TTCA waives immunity for personal injuries proximately caused by negligence of government employee acting in scope of his employment if injury "arises from the operation or use of a motor-driven vehicle" (emphasis added)). That said, in reaching this conclusion, we in no way suggest a bright-line rule that a governmental employee must always be personally driving a motor-driven vehicle in order to meet the "operation" or "use" of a motor-driven vehicle requirement necessary for a waiver of immunity under the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); cf. City of Socorro v. Hernandez, 508 S.W.3d 1, 8-11 (Tex. App.—El Paso 2015, pet. denied) ("The Supreme Court [has not held] . . . that the vehicle had to be driven by a governmental employee; it [has] held only that a governmental employee [must] use or operate the vehicle." (internal quotations omitted)); Townsend, 2006 WL 2345922, at *2 & n.5 (collecting cases showing that sometimes it is possible for "a governmental employee [to] use or operate a vehicle" without being driver (internal quotations omitted)); City of El Campo v. Rubio, 980 S.W.2d 943, 946 (Tex. App.—Corpus Christi-Edinburgh 1998, pet. dism'd w.o.j.) ("[The Texas Supreme Court] did not hold that the vehicle in question had to be driven by a governmental employee, only that a governmental employee [must] use or operate the vehicle." (internal quotations omitted)). Instead, we note that determining whether a plaintiff's alleged personal injuries "ar[ose] from the operation or use of a motor-driven vehicle" by a governmental employee is inherently fact specific. See Diaz v. Canutillo Indep. Sch. Dist., 311 S.W.3d 588, 594 (Tex. App.—El Paso 2010, no pet.). And, here, Gaytan has not alleged facts that demonstrate that the City's law enforcement officers' direction or control of traffic constituted "operation" or "use" of a motor-driven vehicle.
Still yet, even if the City's law enforcement officers' conduct did constitute "operation" or "use" of a motor-driven vehicle, Gaytan would still have to allege facts demonstrating that his alleged personal injuries "ar[ose] from" the law enforcement officers' "operation" or "use" of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1); LeLeaux, 835 S.W.2d at 51 ("arises from" language requires "a nexus between injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle" by governmental employee (internal quotations omitted)); City of Sugarland v. Ballard, 174 S.W.3d 259, 265-66 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("For the motor-vehicle waiver to apply, [the plaintiff's injuries] had to arise [] from the operation or use of the [motor-driven vehicle]. For the waiver to apply, a nexus must exist between the operation or use of the motor-driven vehicle and the plaintiff's injuries." (second alteration in original) (internal citations and quotations omitted)). This is because when an injury does not arise out of the "operation" or "use" of a motor-driven vehicle, governmental immunity is not waived. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (TTCA waives immunity for personal injury proximately caused by negligence of government employee acting in scope of his employment if injury "arises from the operation or use of a motor-driven vehicle" (emphasis added)); City of Kemah v. Vela, 149 S.W.3d 199, 204-05 (Tex. App.—Houston [14th Dist.] 2004, pet. denied).
Gaytan alleges that he collided with Shah's car after she entered the intersection at New Territory Boulevard and Chatham Avenue "per the officer[s'] instruction." Significantly, although Gaytan alleges that Shah drove into the intersection after being "signaled . . . to proceed" by at least one of the City's law enforcement officers, he also asserts that Shah then "paused momentarily in the [traffic] lane" in which Gaytan was biking. And it was this "pause[]" that caused him to impact Shah's car, "to fall forward," and to "suffer serious debilitating injuries." Gaytan does not allege that the City's law enforcement officers directed Shah to "pause[]" her car in the traffic lane where he was biking. At most, the law enforcement officers' "signal[] [to] Shah to proceed through the intersection to make her left hand turn," furnished the condition that made Gaytan's ultimate injuries possible. See Dall. Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) ("[T]he operation or use of a motor[-driven] vehicle does not cause injury if it does no more than furnish the condition that makes the injury possible." (internal quotations omitted)); Ballard, 174 S.W.3d at 265-67; Vela, 149 S.W.3d at 204-05 (holding injury to plaintiff—detained in negligently parked patrol car struck by third-party's vehicle—did not arise out of "operation" or "use" of patrol car within meaning of TTCA's motor-vehicle waiver; patrol car merely furnished condition that made injury possible). Gaytan's own allegations state that the officers' direction to Shah did not cause Gaytan's injuries; Shah's later independent "pause[]" did. Cf. City of Pharr v. Herrera, No. 13-15-00133-CV, 2017 WL 929483, at *2-3 (Tex. App.—Corpus Christi-Edinburg Mar. 9, 2017, no pet.) (mem. op.) (no causal nexus between law enforcement officer's "operation" or "use" of motor-driven vehicle, where officer ceased operating or using vehicle and then collision occurred); Barnstone, 921 S.W.2d at 272 (plaintiff's injury caused while vehicle operated by third party, not by law enforcement officers); Garza's Estate v. McAllen Indep. Sch. Dist., 613 S.W.2d 526, 527-28 (Tex. App.—Beaumont 1981, writ ref'd n.r.e.) (although plaintiff riding on school bus at time of death, act of third party caused death, not operation or use of bus); see also Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 861, 866-67 (Tex. App.—Austin 2001, pet. denied) (bus driver's affirmative direction or instruction while operating or using bus caused plaintiff's personal injuries).
For these reasons, even if the City's law enforcement officers' conduct in directing or controlling traffic at the intersection of New Territory Boulevard and Chatham Avenue constituted the "operation" or "use" of a motor-driven vehicle as required for waiver of immunity under the TTCA, we conclude that Gaytan has not alleged facts demonstrating that his alleged personal injuries "ar[ose] from" the law enforcement officers' "operation" or "use" of a motor-driven vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1) (TTCA waives immunity for personal injury proximately caused by negligence of government employee acting in scope of his employment if injury "arises from the operation or use of a motor-driven vehicle" (emphasis added)); LeLeaux, 835 S.W.2d at 51.
Because we have concluded that Gaytan has not alleged facts that demonstrate that the City's law enforcement officers' conduct constituted the "operation" or "use" of a motor-driven vehicle or that his alleged personal injuries "ar[ose] from" the law enforcement officers' "operation" or "use" of a motor-driven vehicle, we hold that the City's governmental immunity has not been waived. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1). We further hold that the trial court lacks subject-matter jurisdiction over Gaytan's suit against the City and the trial court erred in denying the City's plea to the jurisdiction.
Gaytan does not argue that he should be given an opportunity to replead his negligence suit against the City. See City of Houston v. Guthrie, 332 S.W.3d 578, 586-87 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (if pleadings insufficient, court should afford opportunity to replead if defects potentially curable, but court may dismiss if pleadings affirmatively negate the existence of jurisdiction). Nevertheless, we note that Gaytan's pleadings affirmatively negate the existence of the trial court's jurisdiction; thus, allowing repleading, even if requested, would be futile. See Schoffstall v. City of Corpus Christi, No. 13-13-00531-CV, 2014 WL 4249801, at *7 (Tex. App.—Corpus Christi-Edinburg Aug. 25, 2014, no pet.) (mem. op.) (allowing repleading would be futile in suit barred by governmental immunity); Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.—Austin 1994, writ denied) ("Because we have held that this suit is barred by governmental immunity, there is nothing the plaintiff could have included in its petition that would have conferred jurisdiction on the trial court."); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) ("If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.").
We sustain the City's sole issue.
Conclusion
We reverse the trial court's order denying the City's plea to the jurisdiction and render judgment dismissing Gaytan's suit against the City for lack of jurisdiction.
Julie Countiss
Justice Panel consists of Chief Justice Radack and Justices Hightower and Countiss.