Koby Rezac v. Navarro College

IN THE
TENTH COURT OF APPEALS

No. 10-21-00070-CV

KOBY REZAC,
Appellant
v.

NAVARRO COLLEGE,
Appellee

From the 40th District Court
Ellis County, Texas
Trial Court No. 103880

OPINION

Koby Rezac appeals from a judgment that granted Navarro College’s plea to the

jurisdiction and dismissed his claims against the college with prejudice. Rezac complains

that the trial court erred by granting the plea to the jurisdiction and dismissing his claims

with prejudice because: (1) Rezac’s injury was caused by the negligent use or operation

of a fire truck by an employee of Navarro College; (2) Rezac had not been allowed to
conduct discovery and the issue in question was a fact issue, the plea was determined

solely on the affidavits of interested witnesses, and Rezac provided sufficient evidence to

create a fact issue; (3) Rezac should have been allowed to replead to include an additional

theory of liability prior to the ruling on the plea; and (4) the objections to Rezac’s affidavit

were improperly sustained by the trial court. Because we find no reversible error, we

affirm the judgment of the trial court.

BACKGROUND FACTS

Rezac was a student at the college’s fire academy. The college conducted a family

night for students to demonstrate firefighting techniques they had learned. A fire truck

was used during the demonstration. After the demonstration, the students posed for a

photograph. Rezac was on the end of the row of students. An employee of the college

sprayed the students with water from a hose connected to the fire truck. Rezac was hit

directly in the side of the head with the water spray, knocking him over. Rezac began

having trouble hearing and seeing, and later that night was bleeding from his ear. Rezac

went to the emergency room suffering from concussion-like symptoms and was

diagnosed with a ruptured eardrum, which required surgery to repair.

Rezac filed this action against Navarro College alleging that the use of the fire hose

as a component of a motor-driven vehicle resulted in his injuries. The college filed a plea

to the jurisdiction. The college attached affidavits to its plea from three instructors at the

fire academy, including the instructor that had sprayed the water that caused the injury.

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The affidavits explained the operation of the fire truck and the hoses, and denied Rezac’s

allegations that the fire truck’s engine, which also runs the water pump, was on when the

water was sprayed from the hose.

Rezac filed a response to the plea to the jurisdiction and attached an affidavit by

him that alleged that one of the instructors had “knelt down on a fully charged 2 ½ inch

hose line” to Rezac’s left, and that the instructor hit Rezac with water from the hose

directly on the left side of his head with such force that it knocked Rezac to the ground.

Rezac further alleged that the same hose and highly pressurized water was used by Rezac

within 30 minutes before the incident during the demonstration and that “[t]he force of

the pumped water that hit me was the same force of pumped water from my

demonstration.” Rezac stated that he asked the instructor why he did that and alleged

that the instructor said, “Sorry, I didn’t know the pressure was up that high.” 1 Lastly,

Rezac stated that “To my knowledge, the only water pump at this location was the pump

operated via the fire truck engine.” In the response, Rezac alternatively requested that

the plea to the jurisdiction be stayed pending certain discovery relating to jurisdictional

facts and sought leave to replead in the event the trial court determined that the alleged

facts were insufficient.

The college filed objections to the three statements of Rezac quoted above, arguing

1
The instructor who Rezac contended made this statement denied that he made the statement in his
affidavit in support of the plea to the jurisdiction.
Rezac v. Navarro College Page 3
that each of them lacked personal knowledge of Rezac and were conclusory. The college

did not object to the alleged statement by the instructor that he did not know the pressure

was that high. The college also filed a reply to Rezac's response to the plea, arguing that

discovery was not necessary and that their plea conclusively established that the

instructor’s use of the hose that was connected to a fire truck whose engine and pump

were off did not constitute the use or operation of a motor vehicle.

PLEA TO THE JURISDICTION STANDARD OF REVIEW

Because Rezac asserted a tort claim against Navarro College, a Texas junior college

district, Rezac must overcome the presumption of governmental immunity of the college.

Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57-58 (Tex. 2011). Rezac can do so

only by demonstrating that the legislature, as the branch of government constitutionally

empowered to manage the State's financial affairs, has waived immunity by statute. Fed.

Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997). Without a waiver of immunity, the

court lacks jurisdiction to proceed. Accordingly, if a Texas Tort Claims Act (TTCA)

plaintiff cannot satisfy "the burden to affirmatively demonstrate the trial court's

jurisdiction" by showing that the claim falls within a statutory waiver of immunity, the

court must dismiss the suit. Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex.

2019); see also Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

Waivers of governmental immunity "must be clear and unambiguous" and any purported

waiver of immunity must be strictly construed in favor of retaining immunity. PHI, Inc.

Rezac v. Navarro College Page 4
v. Tex. Juv. Just. Dep't, 593 S.W.3d 296, 303 (Tex. 2019).

Immunity from suit defeats a trial court's subject matter jurisdiction and thus is

properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks and Wildlife v. Miranda,

133 S.W.3d 217, 225-26 (Tex. 2004). Whether a court has subject matter jurisdiction and

whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject

matter jurisdiction are questions of law. Id. at 226. Therefore, we review de novo a trial

court's ruling on a jurisdictional plea. Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court's jurisdiction. Id. We

construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent.

Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial

court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction,

the issue is one of pleading sufficiency and the plaintiff should be afforded the

opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the existence

of jurisdiction, then a plea to the jurisdiction may be granted without allowing the

plaintiff an opportunity to amend. Id. at 227.

However, if a plea to the jurisdiction challenges the existence of jurisdictional facts,

we consider, as the trial court is required to do, relevant evidence submitted by the parties

when necessary to resolve the jurisdictional issues raised. Id. When the consideration of

a trial court's subject matter jurisdiction requires the examination of evidence, the trial

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court exercises its discretion in deciding whether the jurisdictional determination should

be made at a preliminary hearing or await a fuller development of the case, mindful that

this determination must be made as soon as practicable. Id. Then, in a case in which the

jurisdictional challenge implicates the merits of the plaintiff's cause of action and the plea

to the jurisdiction includes evidence, the trial court reviews the relevant evidence to

determine if a fact issue exists. Id. If the evidence creates a fact question regarding the

jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the

fact issue will be resolved by the fact finder. Id. at 227-28. However, if the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial

court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

This standard generally mirrors that of a summary judgment under Texas Rule of

Civil Procedure 166a(c). Id. The standard allows the state in a timely manner to extricate

itself from litigation if it is truly immune. Id. After the state asserts and supports with

evidence that the trial court lacks subject matter jurisdiction, the plaintiff is required,

when the facts underlying the merits and subject matter jurisdiction are intertwined, to

show that there is a disputed material fact regarding the jurisdictional issue. Id. Like a

summary judgment, a plea to the jurisdiction may be based on uncontroverted

testimonial evidence of an interested witness if the evidence is clear, positive and direct,

otherwise credible and free from contradiction, and could have been readily

controverted. TEX. R. CIV. P. 166a(c); City of San Angelo Fire Dep't v. Hudson, 179 S.W.3d

Rezac v. Navarro College Page 6
695, 698 (Tex. App.—Austin 2005, no pet.).

When reviewing a plea to the jurisdiction in which the pleading requirement has

been met and evidence has been submitted to support the plea that implicates the merits

of the case, we take as true all evidence favorable to the nonmovant. Miranda, 133 S.W.3d

at 228. We indulge every reasonable inference and resolve any doubts in the nonmovant's

favor. Id.

WAIVER

The starting point under the Tort Claims Act is always the same: a presumption

against any waiver until the plaintiff establishes otherwise. Rattray v. City of Brownsville,

662 S.W.3d 860, 865 (Tex. 2023). To do so, a plaintiff may invoke various provisions in

Subchapter B of the Act that affirmatively describe when immunity is waived. Without

such a provision, no court is empowered to hear tort cases against and impose liability

on "governmental unit[s]." The Act's detailed descriptions of the contours of the waiver

of immunity delineate the extent of the judicial authority. A plaintiff must begin,

therefore, by alleging facts in the pleadings that fit within a provision of the Act that

authorize a waiver. Rattray, 662 S.W.3d at 866.

The Act also provides various exceptions or caveats that function as a withdrawal

of the waiver, and thus of the court's jurisdiction to proceed, under certain conditions.

Rattray, 662 S.W.3d at 866. By way of example, some exceptions turn on the kind of

defendant who is named, the legal theory that a plaintiff deploys, or certain kinds of legal

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actions. See, e.g., TEX. CIV. PRAC. & REM. CODE § 101.054; §§ 101.052-.053; § 101.0211, §

101.055(2); see also Rattray, 662 S.W.3d at 866. A plaintiff also has the burden to negate

any potential exceptions to the waiver, and generally does so initially by alleging facts

that bring a claim within the waiver. Rattray, 662 S.W.3d at 867. However, being "within"

the waiver entails that a plaintiff satisfy the provisions that clearly and affirmatively

waive immunity and also negate any provisions that create exceptions to, and thus

withdraw, that waiver. See id.

The fundamental rule is that the court may not reach the merits if it finds a single

valid basis to defeat jurisdiction. When one such ground exists, it is not necessary that

every other potential jurisdictional defect be raised, fleshed out, or resolved at the outset.

Rattray, 662 S.W.3d at 868-69.

USE OR OPERATION OF MOTOR VEHICLE

Rezac complains that the trial court erred by granting the plea to the jurisdiction

because his pleadings and jurisdictional evidence properly raised an issue as to his injury

being the result of water being sprayed from a hose attached to a fire truck by an

employee of the college. Rezac argues that this demonstrates a waiver of immunity.

The college argues that, generally, the spraying of water through the hose did not

constitute the "use" or "operation" of a motor vehicle for purposes of immunity. The

college also argues that there was no evidence that Rezac's injury arose from the use or

operation of a motor vehicle because the uncontroverted evidence established that the

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water sprayed at Rezac flowed through the hose at hydrant pressure unaided by the

pump's mechanism that was part of the fire truck.

The Tort Claims Act generally waives governmental immunity to the extent that

liability "arises from the operation or use of a motor-driven vehicle or motor-driven

equipment" or from "a condition or use of tangible personal or real property." TEX. CIV.

PRAC. & REM. CODE § 101.021. The Act's waiver, however, is narrower for junior college

districts, encompassing only tort claims involving the use or operation of motor vehicles

and excluding the use or operation of motor-driven equipment. Id. § 101.051.

To satisfy Section 101.051(1) as it relates to this proceeding, the government

employee must be actively engaged in "the operation or use of a motor-driven vehicle."

Id. § 101.021(1)(A). The Supreme Court of Texas has said that courts must "strictly

construe" the vehicle-use requirement, Ryder Integrated Logistics, Inc. v. Fayette County, 453

S.W.3d 922, 927 (Tex. 2015) (per curiam), but has also cautioned that courts should not

engage in overly technical constructions of "operation" or "use" that are contrary to "the

everyday experience of driving." PHI, Inc., 593 S.W.3d at 303. For a plaintiff to satisfy the

vehicle-use requirement, "the government employee must have been actively operating

the vehicle at the time of the accident," "the vehicle must have been used as a vehicle" and

not for some other purpose, and "the tortious act alleged must relate to the defendant's

operation of the vehicle rather than some other aspect of the defendant's conduct." Ryder,

453 S.W.3d at 927-28. In other words, the vehicle must be more than the mere setting for

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the defendant's allegedly wrongful conduct. Id.

A fire truck is unquestionably a motor vehicle when it is being used as designed

to transport equipment and firefighters to fires. This particular fire truck also has a pump

housed within it to increase water pressure to assist with putting out a fire more quickly

and efficiently. As used for the events of this day, the fire truck, after being driven to the

event location, was parked and a hose was attached between the fire truck and a water

hydrant. The fire truck's engine powers the pump by way of a device known as a power

take-off, or PTO, which can either be engaged or turned on, thus running the pump to

increase the water pressure, or remain turned off, which results in water flowing through

the hoses connected to the truck at the same pressure as if the hose was connected directly

to the hydrant, in essence hydrant pressure. The fire truck engine is very loud when in

operation.

On the date in question, the PTO for the fire truck's pump was engaged, or turned

on, by an employee of the college for a demonstration of firefighting techniques and

turned off after the completion of the demonstration by that same employee. A different

employee, standing a significant distance away from the fire truck, who had not operated

the fire truck's engine or pump during the demonstration, sprayed the water from a hose

connected to the fire truck during the taking of photographs which was part of the

graduation proceeding. Rezac alleged that the second employee's use of the hose

constituted the negligent use or operation of a motor vehicle.

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Case law does not provide a clear answer to the question of whether or not Rezac's

injury arose from the use or operation of a motor-driven vehicle. Some courts have found

that waiver occurred in instances involving tools or instrumentalities attached to a motor

vehicle. Examples include use of a lift for a wheelchair on a school bus (El Paso v. Apodaca,

346 S.W.3d 593 (Tex. App.—El Paso 2009, no pet.)), a rope attached to a truck to move a

table tied to it (Vidor Indep. Sch. Dist. v. Bentsen, No. 09-04-401-CV, 2005 WL 1653873, 2005

Tex. App. LEXIS 5521 (Tex. App.—Beaumont July 14, 2005, no pet.)), an augur connected

to a tractor for digging a post hole (Lipan ISD v. Bigler, 187 S.W.3d 747 (Tex. App.—Fort

Worth 2006, pet. denied)), a fan under a seat on a bus (Grand Prairie Indep. Sch. Dist. v.

Castro, No. 05-18-01415-CV, 2019 WL 2521724, 2019 Tex. App. LEXIS 5102 (Tex. App.—

Dallas June 19, 2019, no pet.)), the failure to use a parking brake which allowed a van to

roll into a helicopter (PHI, Inc. v. Tex. Juvenile Justice Dep't, 593 S.W.3d 296 (Tex. 2019)),

and the use of a horn on a stopped bus (Austin ISD v. Gutierrez, 54 S.W.3d 860 (Tex. App.—

Austin 2001, pet. denied)).

Conversely, waiver was not found to be established when a student hit her head

on the frame of the rear door exit of a school bus (LeLeaux v. Hamshire-Fannett ISD, 835

S.W.2d 49 (Tex. 1992), and when passengers were injured while seated in a parked van

on the side of the road while the driver left to get them lunch (Tex. Dep't of Criminal Justice

v. Mendoza, No. 14-17-00117-CV, 2017 Tex. App. LEXIS 9015 (Tex. App.—Houston [14th

Dist.] Sep. 26, 2017, no pet.). In these cases, the courts held that although a vehicle was

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involved, the use or operation of the vehicle was not the cause of the injury.

APPLICATION

Thus, the resolution of the issue is not as easy as it first appears. The factual

question the parties focused their attention upon was whether the fire truck's motor was

running. The college argues they conclusively proved it was not. Rezac argues that he

presented evidence that created a question of fact as to whether the motor was running

or not.

On one end of the spectrum we have a pump. A pump has been determined to be

motor-driven equipment. See Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864,

868 (Tex. 2001). On the other end of the spectrum we have a vehicle for passenger

transportation. No one disputes that when a fire truck is being driven down the street

under its own power moving firefighters and equipment to a fire, that it is a motor-driven

vehicle. The question for this appeal is whether something is always properly

characterized as one or the other. We hold that it is not—the character of an item can,

indeed it must, change based on how it is being used at the time the injury was caused.

In this case, considering all the facts and allegations in the light most favorable to Rezac,

the nonmovant, the fire truck was being used as nothing more than a pump at the time

of the actions which resulted in Rezac's injury.

In this instance, because the fire truck was parked and attached to the hydrant,

under the facts as alleged by Rezac, whatever use of the fire truck that then occurred was

Rezac v. Navarro College Page 12
not the use or operation of a motor-driven vehicle. At most, it was the use or operation

of a pump, which under these facts would only potentially involve the use or operation

of motor-driven equipment, for which immunity has not been waived because the college

is a junior college district. See Ryder, 453 S.W.3d at 927 ("[T]he vehicle must have been

used as a vehicle…"). We find that Rezac has not established a clear and unequivocal

waiver of the college's governmental immunity under the Tort Claims Act. We overrule

issue one.

OTHER ISSUES

In Rezac's second issue, he complains that the trial court abused its discretion by

failing to allow him to conduct discovery targeted at the jurisdictional issue, erroneously

granted the plea to the jurisdiction solely on the evidence of interested witnesses who

were employees of the college, and that Rezac's affidavit in response to the college’s plea

raised a genuine issue of material fact. In his third issue, Rezac complains that the trial

court erred by refusing to allow him to replead to include an additional theory of

liability. 2 In his fourth issue, Rezac complains that the trial court erred by sustaining the

college's objections to Rezac's affidavit submitted with his response to the plea to the

jurisdiction. Each of these issues becomes relevant only if the trial court erred by granting

the plea to the jurisdiction as to whether Rezac established a waiver of governmental

2
Rezac amended his petition once prior to the hearing on the plea to the jurisdiction to add an additional
theory of recovery.
Rezac v. Navarro College Page 13
immunity or if, under the facts, he could assert facts or a basis under which it would be

error to grant the plea to the jurisdiction. We find that, even by amending his pleadings

as Rezac has requested, or by allowing him to conduct discovery as described in his brief

to this Court, or by viewing his affidavit in its entirety even with the objected-to

averments, Rezac would not be able to establish the use or operation of a motor vehicle

sufficient to establish a waiver of governmental immunity as to the college. Additionally,

amending his pleadings for a second time to add a claim that there was residual energy

in the hose from the previous operation of a pump would not establish a waiver, because

we have found that the operation of the pump of the fire truck did not constitute the use

or operation of a motor vehicle, whether during the demonstration previously or at the

time the water was sprayed into the side of Rezac's head. Therefore, the trial court did

not abuse its discretion and each of these issues is overruled.

CONCLUSION

Having overruled each of Rezac's issues, we affirm the judgment of the trial court.

TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Johnson,* and
Justice Smith
(Justice Johnson concurs in the judgment only)
Affirmed
Opinion delivered and filed September 21, 2023
[CV06]

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