City of Houston v. Jose Torres

Opinion issued December 31, 2025

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-23-00905-CV
———————————
CITY OF HOUSTON, Appellant
V.
JOSE TORRES, Appellee

On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2022-24041

MEMORANDUM OPINION

At the heart of this case is the trial court’s subject-matter jurisdiction and

whether the City of Houston’s immunity from suit here was waived under the Texas

Tort Claims Act (TTCA).1 We hold it was not and reverse and render.

1
See TEX. CIV. PRAC. & REM. CODE § 101.021.
Background

Jose Torres, a painter employed by Arredondo’s Real Drywall, Inc., was

working at Houston Fire Department (HFD) Station #34. When he arrived on the

morning of this incident, around 8:30 a.m., there were no emergency vehicles inside

the fire station, although some were parked outside.

Torres began setting up his equipment, including a scissor lift, in one of the

bays of the fire station so he could paint the station’s ceiling. Because the station’s

large bay doors were open, and he needed them closed to paint the ceiling, Torres

asked one of the firefighters on duty how to close the doors. Torres closed the bay

doors by pushing a red button located inside the station. He then positioned the

scissor lift directly behind one of the closed bay doors, elevated himself on it, and

began painting the ceiling of the station.

Adam Ricci, a firefighter employed by HFD at Fire Station #34, arrived at the

fire station that morning at 6:30 a.m.—two hours before Torres—to begin his 24-

hour shift. Around 8:00 a.m.—about 30 minutes before Torres arrived—Ricci left

the station in one of the emergency vehicles to respond to a call. Before he left,

Ricci did not see anyone painting inside the fire station. And before returning to the

station, Ricci had not seen or spoken to Torres and did not know that he (or anyone)

was inside the station painting.

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When Ricci returned to the fire station, he pushed a remote control inside his

vehicle to open one of the bay doors. Unbeknownst to Ricci, Torres was standing

on top of the scissor lift directly behind that door. When the door opened, it knocked

over the scissor lift, injuring Torres.

The record shows that the bay door could have been deactivated. And,

according to the City, District Chief Troy Koteras was the highest-ranking person

on site that day—and he had the authority to do that.

Following a bench trial, the trial court found2 that the City “did not act

reasonably and its actions proximately causes [Torres’s] injuries.” It concluded that

the City was negligent3 and awarded Torres damages.

Governmental Immunity under the Texas Tort Claims Act

In three issues,4 the City challenges the trial court’s subject-matter jurisdiction

over Torres’s negligence claim. According to the City, the trial court lacked subject-

2
The trial court made this finding in its finding of fact no. 6.
3
Specifically, in conclusion of law no. 8, the trial court concluded: “Defendant City
of Houston breached that duty when it activated the mechanically operated bay door
while Mr. Torres was painting the interior of the fire department. The City of
Houston’s actions proximately caused the accident and the injuries sustained by Mr.
Torres.”
4
The City’s first two issues challenge (1) the trial court’s denial of the City’s motion
for judgment because Torres presented no evidence to show that his injuries resulted
from conduct that fell within the TTCA’s waiver of immunity and (2) the sufficiency
of the evidence to support the trial court’s finding of fact no. 6 and its conclusion of
law no. 8. For the reasons discussed below, we address those issues together.
Additionally, because of our disposition of these two issues, we do not reach the
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matter jurisdiction because Torres presented no evidence that a City employee

breached a legal duty in the operation or use of motor-driven equipment.5

A. Standard of Review

Governmental immunity from suit defeats a trial court’s subject-matter

jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–

26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Whether a trial court has subject-matter jurisdiction is ordinarily a question of law,

which we review de novo. See Miranda, 133 S.W.3d at 226.

But when, as here, a jurisdictional challenge under the TTCA is raised after a

trial on the merits, the standard of review stated in Miranda does not apply. See City

of Houston v. Sw. Bell Tel. Co., No. 01-16-00734-CV, 2017 WL 3262131, at *2–3

(Tex. App.—Houston [1st Dist.] Aug. 1, 2017, no pet.) (mem. op.); Prairie View

A&M Univ. v. Brooks, 180 S.W.3d 694, 704 (Tex. App.—Houston [14th Dist.] 2005,

City’s third issue—that the trial court erred in awarding Torres an amount of
damages above the City’s limit of liability. See TEX. R. APP. P. 47.1.
5
Torres contends that the City’s first two issues are waived. We disagree. As this is
an appeal from a bench trial, complaints “regarding the legal or factual insufficiency
of the evidence . . . may be made for the first time on appeal in the complaining
party’s brief.” See TEX. R. APP. P. 33.1(d). Furthermore, the City raised these same
issues, including its immunity, throughout the bench trial, moved for entry of
judgment at the close of Torres’s case, and filed a post-trial brief in support of its
motion for entry of judgment addressing these issues.

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no pet.).6 Instead, when the factfinder’s findings bear on a determination of the trial

court’s subject-matter jurisdiction, the appropriate standard of review is whether the

evidence is legally sufficient to support the factfinder’s determination of immunity.

Sw. Bell Tel. Co., 2017 WL 3262131, at *2.

Additionally, as part of its issues on appeal, the City also challenges the legal

and factual sufficiency of the trial court’s determination that it was negligent. When

a party appeals from a judgment rendered after a bench trial, the trial court’s findings

of fact have the same weight as a jury’s verdict, and we review the sufficiency of the

evidence supporting those findings with the same standards that we use to review

jury verdicts. See Tex. Outfitters Ltd., LLC v. Nicholson, 572 S.W.3d 647, 653 (Tex.

2019). Because the trial court’s determination of negligence implicates the issue of

immunity, Miranda, 133 S.W.3d at 228, we consider the legal sufficiency of the trial

court’s determination of the City’s immunity together with the legal and factual

sufficiency of its determination of negligence. See Sw. Bell Tel. Co., 2017 WL

3262131, at *3.

Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802,

6
Cf. San Antonio Water Sys. v. Nicholas, 461 S.W.3d 131, 136 (Tex. 2015)
(explaining that when jurisdictional challenges under the Texas Commission on
Human Rights Act, which waives sovereign immunity for certain claims against
governmental entities, are raised after trial on merits, inquiry is whether there is
legally sufficient evidence to support jury’s ultimate finding).
5
827 (Tex. 2005). Evidence is legally insufficient to support a finding if (a) there is

a complete absence of evidence of a vital fact, (b) the court is barred by rules of law

or evidence from giving weight to the only evidence offered to prove a vital fact, (c)

the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of the vital fact. Id. at 810. When

reviewing the legal sufficiency of evidence, we consider the evidence in a light most

favorable to the verdict and indulge every reasonable inference to support it. Id. at

822. We also credit favorable evidence if a reasonable juror could and disregard

contrary evidence unless a reasonable juror could not. Id. at 827.

In conducting a factual-sufficiency review, we consider and weigh all of the

evidence. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When the appellant

challenges an adverse finding on an issue on which it did not have the burden of

proof at trial, we set aside the verdict only if the evidence supporting the finding is

so weak as to make the verdict clearly wrong and manifestly unjust. Id.

B. Applicable Law

The state and certain governmental units are entitled to sovereign or

governmental immunity, which deprives a trial court of subject-matter jurisdiction,

unless the state waives immunity by consenting to suit. See TEX. GOV’T CODE

§ 311.034; Miranda, 133 S.W.3d at 224. The TTCA provides for a limited waiver

6
of this immunity. See TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109; see also

Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008).

Section 101.021(1) of the TTCA provides:

A governmental unit in the state is liable for . . . personal injury . . .
proximately caused by . . . the negligence of an employee acting within
his scope of employment if:

(A) the . . . personal injury . . . arises from the operation or use
of . . . motor-driven equipment; and
(B) the employee would be personally liable to the claimant
according to the Texas law[.]

TEX. CIV. PRAC. & REM. CODE § 101.021(1) (emphasis added).

The TTCA does not create new duties but simply waives immunity for the

instances specified in the statute. City of Houston v. Gonzales, No. 14-20-00165-

CV, 2021 WL 2154155, at *5 (Tex. App.—Houston [14th Dist.] May 27, 2021, no

pet.) (mem. op.) (citing City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986)).

Accordingly, the City is immune from suit here unless the evidence demonstrates

that the City owed Torres a legal duty and breached that duty under circumstances

falling within the TTCA’s waiver of immunity. See id.

Thus, to prove negligence, as required by section 101.021(1), Torres was

required to show the existence of a legal duty, a breach of that duty, and damages

proximately caused by the breach. Nabors Drilling, U.S.A., Inc. v. Escoto, 288

S.W.3d 401, 404 (Tex. 2009). To determine whether a duty exists, and its

parameters, we are required to “weigh[ ] the risk, foreseeability, and likelihood of
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injury against the social utility of the actor’s conduct, the magnitude of the burden

of guarding against the injury, and the consequences of placing the burden on the

defendant.” Elephant Ins. Co., LLC v. Kenyon, 644 S.W.3d 137, 149 (Tex. 2022)

(quoting Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 182 (Tex. 2004)).

“[F]oreseeability of the risk of harm is the foremost and dominant consideration in

the duty analysis because there is neither a legal nor moral obligation to guard

against that which cannot be foreseen.” Id. (quotations omitted).

To establish a breach of a legal duty, a plaintiff ordinarily must show that

either: (1) the defendant did something which an ordinarily prudent person

exercising ordinary care would not have done under the particular circumstances; or

(2) the defendant failed to do something which an ordinarily prudent person would

have done while exercising ordinary care. City of Houston v. Cruz, No. 01-22-00647-

CV, 2023 WL 8938408, at *6 (Tex. App.—Houston [1st Dist.] Dec. 28, 2023, no

pet.) (mem. op.).

“Proximate cause has two elements: cause in fact and foreseeability.” Rattray

v. City of Brownsville, 662 S.W.3d 860, 874 (Tex. 2023) (quoting W. Invs., Inc. v.

Urena, 162 S.W.3d 547, 551 (Tex. 2005)). Cause in fact is established when “the

act or omission was a substantial factor in bringing about the injury” and, without it,

the harm would not have occurred. Id. (quoting Nixon v. Mr. Prop. Mgmt. Co., 690

S.W.2d 546, 549 (Tex. 1985)). Foreseeability, on the other hand, requires “the actor

8
[to] have reasonably anticipated the dangers that his negligent conduct created for

others.” Id. (quoting Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578

S.W.3d 506, 519 (Tex. 2019)).

Additionally, to assert a claim under section 101.021(1)(A) of the TTCA,

Torres was required to show that his damages arose from the City’s negligent

operation of motor-driven equipment—here, the motorized bay door. See TEX. CIV.

PRAC. & REM. CODE § 101.021(1)(A). “[A]rises from the operation or use” means

that there must be “a nexus between the injury negligently caused by a governmental

employee and the operation or use of a motor-driven [equipment].” PHI, Inc. v. Tex.

Juv. Just. Dep’t, 593 S.W.3d 296, 302 (Tex. 2019). And “use” means “to put or

bring into action or service; to employ for or apply to a given purpose,” and

“operation” means “a doing or performing of a practical work.” Rattray, 662 S.W.3d

at 871 (citations omitted).

Therefore, in order for the City’s governmental immunity to be waived under

the TTCA, Torres had to present legally sufficient evidence of all the elements of

common law negligence and that his damages arose from the City’s operation or use

of the bay door. See Sw. Bell Tel. Co., 2017 WL 3262131, at *3; Prairie View, 180

S.W.3d at 704. If the evidence is legally insufficient, immunity is not waived and

the trial court lacked subject-matter jurisdiction to hear the case. Sw. Bell Tel. Co.,

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2017 WL 3262131, at *3; Prairie View, 180 S.W.3d at 704; see also Miranda, 133

S.W.3d at 225–26.

C. Analysis

Here, the parties do not dispute that the bay door at the fire station has a

motor.7 Nor do they dispute that Ricci activated the bay door by pushing a remote-

control button in his emergency vehicle—and that, as the door opened, it knocked

over the scissor lift that Torres was on and injured him.

Instead, the City argues that Torres failed to offer sufficient evidence that

Ricci was negligent—specifically, that he owed a legal duty to Torres that he

breached in his operation or use of the motorized bay door. Thus, the City argues

that Torres failed to establish a waiver of the City’s governmental immunity. We

agree.

To begin with, for a waiver to exist under section 101.021(1), “a governmental

employee must be the one operating or using the motor-driven equipment.” City of

Houston v. Ranjel, 407 S.W.3d 880, 888 (Tex. App.—Houston [14th Dist.] 2013, no

7
See Tex. Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001)
(interpreting section 101.021(1)(A) and defining “equipment” generally as “[t]he
articles or implements used for a specific purpose or activity,” and “[m]otor-driven”
as “driven by a motor”).
10
pet.).8 Here, the undisputed evidence established that Ricci was the only

governmental employee who “put [the bay door] into action.”9

The undisputed evidence also established that Ricci did not know that Torres

was on the scissor lift behind the bay door when he opened it. Ricci testified that,

before he left the station on the morning of this incident, he did not see Torres, did

not speak to Torres, and did not see anyone painting. In fact, Ricci’s testimony—

that he left the station to respond to a call around 8:00 a.m.—establishes that he had

already left the station by the time Torres arrived around 8:30 a.m. Ricci further

testified that no one told him while he was gone that anyone was at the fire station

8
See also LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex.
1992) (“While [section 101.021] 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
employee. This requirement is consistent with the clear intent of the Act that the
waiver of sovereign immunity be limited.”).
9
But even assuming another City employee’s actions could be considered for the
purposes of determining waiver under section 101.021(1), the evidence of the
required elements of negligence is similarly lacking. For instance, there was some
evidence introduced at trial that the bay door could have been deactivated. But the
evidence also demonstrated that Koteras was the only City employee with the
authority to deactivate the bay door. Assuming without deciding that this failure to
deactivate the bay door could potentially qualify as “operation or use” of motor-
driven equipment, there is no evidence that Koteras knew that Torres was at the fire
station or that he was painting on a scissor lift positioned directly behind the closed
bay door. Without this type of evidence, any potential claim of negligence based
on a failure to deactivate the door fails due to lack of foreseeability of the risk of
harm.
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painting, and he “had no idea that someone was standing behind the bay door on a

scissor lift” at the time.

And although Torres testified that he believed “people” in the fire station

knew that he was there painting—and that he saw an unidentified number of people

in the station that day—he also testified that he did not tell anyone that he was going

to be painting on a scissor lift directly behind the closed door, nor did he set out any

cones in front of the closed door as a precaution. Torres further testified that he

never saw or spoke to Ricci before his fall. In fact, Torres had “no interaction” with

Ricci at all.

As explained above, in determining whether a duty exists, the dominant

consideration is foreseeability. See Elephant Ins. Co., 644 S.W.3d at 149. As our

supreme court has explained, “[b]efore imposing a duty of care . . . the risk of harm

must be foreseeable.” See Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex.

2002). Because the evidence here demonstrates that Ricci had no knowledge of

Torres’s presence at the fire station, let alone his specific presence on the scissor lift

directly behind the closed bay door, Ricci could not have reasonably anticipated a

danger of injury to anyone when he used the remote control in his emergency vehicle

to open the door.

Accordingly, based on this record, we conclude that the risk of harm to Torres

was not foreseeable and that Ricci owed no duty to him. See id. (“[T]here is neither

12
a legal nor moral obligation to guard against that which cannot be foreseen.”

(quotation omitted)). Because the evidence establishes that Ricci owed no duty to

Torres—a required element of negligence—the City retained its governmental

immunity from suit. See Sw. Bell Tel. Co., 2017 WL 3262131, at *3; Prairie View,

180 S.W.3d at 704.10

10
We note that the City characterizes the true nature of Torres’s claim as the non-use
of information, for which there is no waiver of immunity. According to the City,
although Torres presented some evidence that personnel at the fire station were
aware of his presence, the failure to communicate his presence to Ricci so that he
would not open the bay door when returning from his run amounts to non-use of
information. Torres disagrees and argues that this is a mischaracterization of his
claim and the evidence presented at trial—i.e., that Ricci was “negligent in the
operation and use of motor-driven equipment by activating the remote controlled,
motor driven equipment that opened the bay door, knocked over the scissor lift, and
caused [] Torres’s injuries.” Regardless, to the extent that the trial court’s finding
of negligence was based on the failure of City employees to communicate Torres’s
presence to Ricci, we agree with the City that any failure to communicate does not
amount to the “operation or use” of motor-driven equipment as required by the
statute. See, e.g., City of Colony v. Rygh, No. 02-17-00080-CV, 2017 WL 6377435,
at *5 (Tex. App.—Fort Worth Dec. 14, 2017, no pet.) (mem. op.) (concluding that
city’s alleged negligent failure to notify plaintiffs that their residence could flood
with sewage, either before or after city employees used a “Vac” truck to clear
blockage in sewer main “had nothing to do with operating or using the Vac truck; it
merely implicated human communications (or lack thereof)”); Tex. Dep’t of Transp.
v. City of Floresville Elec. Power & Light Sys., 53 S.W.3d 447, 455 (Tex. App.—
San Antonio 2001, no pet.) (“[T]he basis of [Appellees’] claim is TxDOT’s failure
to notify [Appellees], which does not involve . . . the operation or use of a motor-
driven vehicle.”).
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Conclusion

Accordingly, for all of the foregoing reasons, we hold that the evidence

establishes that the City owed no duty to Torres, a required element of negligence.

Absent proof of the common-law elements of negligence, the City was entitled to

governmental immunity under the TTCA. We therefore reverse the trial court’s

judgment and render judgment dismissing Torres’s claims against the City for lack

of subject-matter jurisdiction.

Terry Adams
Chief Justice

Panel consists of Chief Justice Adams and Justices Morgan and Dokupil.

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