Carlos Green and Pamela Green v. City of DeSoto

AFFIRMED and Opinion Filed July 9, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00740-CV

CARLOS GREEN AND PAMELA GREEN, Appellants
V.
CITY OF DESOTO, Appellee

On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-21-16541

MEMORANDUM OPINION
Before Justices Reichek, Carlyle, and Miskel
Opinion by Justice Reichek
Appellants Carlos Green and Pamela Green sued the City of DeSoto alleging

the City’s negligent use or operation of motor-driven equipment caused flood

damage to their home. They appeal the trial court’s order granting the City’s plea to

the jurisdiction. Because the motorized equipment did no more than furnish the

condition that caused the flooding, we affirm.

Background

The Greens live in a hilly subdivision in the City. Their home sits lower than

houses to the East and South of them. To prevent flooding, the subdivision had a
drainage system in which surface water flowed to an alleyway “built with a channel

in the middle.” Water flowed down the channel and eventually exited onto the

Greens’ street and safely into the City storm sewer. The Greens alleged that on June

2, 2021, the City’s water department used motor-driven equipment—“a dump truck,

tractor, backhoe and trackhoe”—to dig a deep hole in the alleyway behind their

house to repair a sewer line. The City placed the dirt and debris removed to form

the hole across the alleyway, where it formed a “dirt dam” several feet high that

blocked the drainage channel. The first week of June 2021 was exceptionally rainy.

On June 4, 2021, when rainwater reached the dirt dam, the drainage plan did not

operate as intended and surface water from the subdivision was diverted onto the

Greens’ driveway and into their home. Their home flooded, causing severe property

damage, anguish, inconvenience, and over $100,000 in repair and remediation costs.

The Greens alleged the City’s governmental immunity was waived and the

City was liable for their damages under section 101.021 of the Texas Tort Claims

Act (“the Act”). Section 101.021 provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately
caused by the wrongful act or omission or the negligence of
an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises
from the operation or use of a motor-driven vehicle or
motor-driven equipment; and

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(B) the employee would be personally liable to the
claimant according to Texas law . . . .

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. The Greens alleged the City, using

motor-driven equipment, negligently placed the dirt and debris on the channel in the

middle of the alleyway.

After filing an answer, the City filed a plea to the jurisdiction, arguing the

Greens failed to establish a waiver of immunity under section 101.021 because the

flooding had not arisen from the use of motor-driven equipment. Citing Dallas,

Garland & Northeastern Railroad v. Hunt County, 195 S.W.3d 818 (Tex. App.—

Dallas 2006, no pet.) (“Dallas, Garland”), the City asserted the Greens did not show

the required nexus between the operation or use of the motor-driven equipment and

their injuries because the equipment did not actually cause the injury. The Greens

responded that the City’s construction of a dam with motorized equipment caused

the flooding in their home and the two-day delay between City’s use of equipment

and the flooding did not mean their damages did not arise from the equipment’s use.

The trial court granted the City’s plea to the jurisdiction and dismissed the

Greens’ claims with prejudice. The Greens filed a motion for new trial which was

denied by a visiting judge. This appeal followed.

Analysis

Our opinion in Dallas, Garland is at the center of this appeal. The Greens

concede the decision is “an impediment to their recovery.” In two issues they argue

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together, the Greens contend the trial court erred in granting the City’s plea and argue

Dallas, Garland was wrongly decided. We review the trial court’s ruling de novo.

Paxton v. Simmons, 640 S.W.3d 588, 598 (Tex. App.—Dallas 2022, no pet.).

In Dallas, Garland, a Hunt County road-maintenance crew performed work

on a county road one morning. 195 S.W.3d at 819.1 The road intersected Dallas,

Garland & Northeastern Railroad’s tracks. The crew used motorized equipment to

fill in thinning areas of the road with surface rock and left four inches of road-base

material on the Railroad’s tracks. Id. Later that day, the Railroad’s train derailed

when it encountered the material. Id. The Railroad sued the County alleging a claim

for negligence for damages arising from the use of a motor vehicle under the Act.

Id. at 822. The trial court denied the County’s plea to the jurisdiction. On appeal,

this Court determined that damages caused by the derailment were not within the

Act’s waiver of immunity because motor-driven equipment did no more than furnish

the condition that made the injury possible. Id. at 823. But because the Railroad’s

pleadings were broad enough to include a claim for damages actually caused by the

use of the motor-driven equipment, including damages to rails or the crossing, we

affirmed the denial of the plea “insofar as the Railroad alleges property damage that

arises from the County’s operation or use of a motor-driven vehicle or motor-driven

1
The 2006 Dallas, Garland decision was our second opinion in that case. A few factual details
referenced here are from our first opinion. See Hunt Cnty. v. Dallas, Garland & Ne. R.R., No. 05-03-01587-
CV, 2004 WL 1178609 (Tex. App.—Dallas May 28, 2004, no pet.) (mem. op.).
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equipment.” Id. at 819. On remand, the trial court granted summary judgment for

Hunt County on the Railroad’s negligence claim. Id. at 820.

On appeal a second time, the Railroad argued its damages included damages

to its tracks that arose from the use of a motor vehicle. We reiterated our previous

conclusion that the damages actually caused by the derailment were not within the

Act’s waiver of immunity. Id. at 823. We upheld the summary judgment because

the evidence showed the damage to the tracks was caused by the derailment, not

directly by the vehicles while placing the road-base material on the tracks. Id. In

reaching this decision, we relied on the following language from the Texas Supreme

Court:

We have consistently required a nexus between the operation or use of
the motor-driven vehicle or equipment and a plaintiff’s injuries. This
nexus requires more than mere involvement of property. Rather, “the
[vehicle]’s use must have actually caused the injury.” Thus, as with the
condition or use of property, the operation or use of a motor vehicle
“does not cause injury if it does no more than furnish the condition that
makes the injury possible.”

Id. at 822–23 (citing Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543

(Tex. 2003) (internal citations omitted)).

This case is materially indistinguishable from Dallas, Garland, and the

Greens do not argue otherwise. In Dallas, Garland, the motorized equipment

created the condition, road-base material on railroad tracks, that led to the derailment

and the Railroad’s damages. Id. Likewise, in this case, the Greens’ damages were

not caused directly by the motorized equipment. The City’s equipment created the

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condition, the dirt dam, that led to the flooding of the Greens’ property and the

Greens’ damages. This is insufficient to create the required nexus between the City’s

use of motor-driven equipment and the Greens’ damages.

The Greens argue Dallas, Garland was wrongly decided. They contend the

decision engrafted extra-statutory requirements into the text of section 101.021. We,

as a three-judge panel of this Court, are bound by the concept of horizontal stare

decisis to follow materially indistinguishable decisions of earlier panels of this Court

unless a higher authority has superseded that prior decision. Mitschke v. Borromeo,

645 S.W.3d 251, 256 (Tex. 2022); see Chase Home Fin., L.L.C. v. Cal W.

Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2010,

no pet.). Higher authority includes a decision from the United States Supreme Court,

the Texas Supreme Court, the Texas Court of Criminal Appeals, an en banc decision

of this Court, or an applicable legislative or constitutional provision. Mitschke, 645

S.W.3d at 256–57.

The Greens make one argument that could be considered a claim that a higher

authority has superseded our decision in Dallas, Garland. They assert the 2019

Texas Supreme Court case of PHI, Inc. v. Texas Juvenile Justice Department, 593

S.W.3d 296 (Tex. 2019), mandates a different result in this case. In PHI, an

employee of the Texas Juvenile Justice Department, a State agency, drove a van

owned by the State to a hospital. Id. at 300. After dropping off passengers, the

employee parked the van on an incline and exited the vehicle without setting the

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emergency brake. Id. As he walked away, the van began rolling and crashed into a

medical transport helicopter owned by PHI that was on the ground preparing for

takeoff. Id. PHI sued the Department, alleging the Department was negligent in

failing to engage the emergency brake. The parties’ principal dispute was whether

the damage to the helicopter arose from operation or use of the van. Id. at 302. The

trial court denied the Department’s combined plea to the jurisdiction and motion for

summary judgment, and the court of appeals agreed the Act’s waiver of immunity

for operation or use of a motor vehicle did not apply because the vehicle was not in

active operation or use at the time of the collision. Id. at 301. The supreme court

reversed and remanded to the trial court because “ensuring that your car will not roll

away after you leave it, including engagement of the emergency brake when

necessary, is an integral part of the ‘operation or use’ of a vehicle.” Id. at 303–04.

PHI’s allegation that the State employee negligently performed this essential and

final aspect of driving the van fit within the parameters of section 101.021(1)(A). Id.

at 304.

The Greens argue that like the trial judge in PHI, the trial court mistakenly

required active operation of the motor-driven equipment. They assert PHI

demonstrates that “just because damage occurs after the City’s equipment is no

longer in use does not mean that the damage didn’t arise from its use.” PHI is

distinguishable and, if anything, supports the trial court’s ruling in this case.

Significantly, in PHI, the government vehicle actually collided with the plaintiff’s

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property. While the driver of the van was not in it when the collision occurred, he

had just exited the vehicle and PHI alleged his use or operation of the van actually

caused the injury. The PHI opinion reiterated that any purported statutory waiver of

immunity should be strictly construed in favor of retention of immunity. Id. at 303.

Nothing in PHI changes the fact that in this case the City’s use of motorized

equipment did no more than furnish the condition that led to the Greens’ damages.

The Greens have not demonstrated a waiver of governmental immunity. We

overrule their two issues in this appeal.

We affirm the trial court’s order granting the plea to the jurisdiction.

/Amanda L. Reichek/
AMANDA L. REICHEK
230740F.P05 JUSTICE

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CARLOS GREEN AND PAMELA On Appeal from the 162nd Judicial
GREEN, Appellants District Court, Dallas County, Texas
Trial Court Cause No. DC-21-16541.
No. 05-23-00740-CV V. Opinion delivered by Justice
Reichek. Justices Carlyle and Miskel
CITY OF DESOTO, Appellee participating.

In accordance with this Court’s opinion of this date, the trial court’s order
granting the City of DeSoto’s plea to the jurisdiction is AFFIRMED.

It is ORDERED that appellee the City of DeSoto recover its costs of this
appeal from appellants Carlos Green and Pamela Green.

Judgment entered this 9th day of July 2024.

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