The opinion
Supreme Court of Texas
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No. 24-0428
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City of Houston, Texas,
Petitioner,
v.
Chelsea Manning, Individually and as Next Friend of T.N.,
Aaliyah Mitchell, and Cierra Williams,
Respondents
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On Petition for Review from the
Court of Appeals for the Fourteenth District of Texas
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PER CURIAM
When certain statutory conditions are satisfied, the Texas Tort
Claims Act waives governmental immunity from suit for injuries caused
by “negligence.” We are asked to decide whether that waiver includes
injuries caused by negligence per se. We hold that it does in this case
because the statutory standards of care used to measure negligence
per se “merely [] define more precisely what conduct breaches” the
“common law duty,” so that “violating the statutory standard[s] . . .
would usually also be negligence under [the] common law.” Perry v.
S.N., 973 S.W.2d 301, 306 (Tex. 1998).
I
After the Houston Fire Department received a 9-1-1 dispatch call
about an ongoing dumpster fire at an apartment complex, Fire
Engine 82 was dispatched to the scene. The fire truck’s operator,
William Schmidt, drove the engine southbound on Fondren Road. Near
that same time, Chelsea Manning was driving three passengers
westbound on Ludington Drive, which intersects Fondren Road.
Approaching the Fondren–Ludington intersection, Manning slowed and
stopped at a red traffic light. When the light turned green, Manning
proceeded into the intersection.
Meanwhile on Fondren Road, which has a posted speed limit of
35 mph, Schmidt drove the fire truck at about 45 mph. Schmidt had
activated the fire truck’s siren, emergency lights, and Opticom
transmitter, which turns oncoming traffic lights green.1 As the fire
truck entered the Fondren–Ludington intersection, it began changing
lanes and struck Manning’s car.2 The Houston Police Department’s
investigation concluded that Schmidt “failed to proceed with duty and
care through the intersection.”
Manning sued the City of Houston, asserting various claims
including negligence and negligence per se and invoking the waiver of
1 Schmidt and his captain told the investigating police officer that they
did not see or did not recall the color of the light before the truck entered the
intersection, but the captain testified in a later affidavit that the transmitter
had turned their light green.
2Manning claimed she did not see the truck. One of Manning’s
passengers testified to the contrary, claiming to have warned Manning of the
approaching fire truck just before the collision.
2
immunity in the Texas Tort Claims Act (TTCA). Manning based her
allegations of negligence per se on Schmidt’s violation of three sections
of the Transportation Code. See TEX. TRANSP. CODE §§ 545.401, 546.001,
546.005. After the City’s first effort to obtain summary judgment based
on governmental immunity failed,3 the City introduced new evidence
and again moved for summary judgment. The trial court denied the
City’s motion, and the City filed an interlocutory appeal. See TEX. GOV’T
CODE § 51.014(a)(5).
The court of appeals affirmed in relevant part.4 See ___ S.W.3d
___, 2024 WL 973806, at *1 (Tex. App.—Houston [14th Dist.] Mar. 7,
2024). The court concluded that the TTCA waives governmental
immunity for claims based on a government employee’s negligence
per se. Id. at *8. In rejecting the City’s contrary argument, the court
reasoned that “negligence per se is one method of proving a breach of
duty, which is a necessary element in any negligence cause of action.”
Id. at *7. In addition, the court of appeals held that the City had not
proven its entitlement to governmental immunity because there were
genuine issues of material fact regarding whether Schmidt acted in good
faith for purposes of official immunity and whether Schmidt acted with
3 The trial court denied the City’s first motion for summary judgment,
and the City filed an interlocutory appeal. The court of appeals affirmed as to
Manning’s claims of negligence and negligence per se, allowing those claims to
proceed. City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295,
at *8 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied).
4 The court of appeals reversed the portion of the trial court’s order
allowing two of the passengers’ parents to join and seek recovery of past
medical expenses, but that is not at issue in this appeal.
3
reckless disregard for purposes of the emergency exception and the 9-1-1
exception. Id. at *5-7. The City petitioned for review.
II
The City’s first issue asks whether the TTCA waives
governmental immunity for claims of negligence per se. As always, we
begin with the statutory text, which reads: “A governmental unit in the
state is liable for . . . 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,” as relevant here,
the injury “arises from the operation or use of a motor-driven vehicle”
and “the employee would be personally liable to the claimant according
to Texas law.” TEX. CIV. PRAC. & REM. CODE § 101.021(1). When
interpreting a statutory waiver of immunity like the TTCA, courts are
bound by the Legislature’s chosen text: we construe the waiver
narrowly, favoring the government’s retention of immunity where
possible. TEX. GOV’T CODE § 311.034; see also City of Galveston v. State,
217 S.W.3d 466, 469 (Tex. 2007).
As a textual matter, the City argues that the TTCA’s language is
plain: it includes only negligence, not negligence per se. If the
Legislature wanted to waive governmental immunity for harm resulting
from negligence per se, it could have done so expressly. It did not, the
City argues, so a narrow construction of the TTCA favoring the retention
of immunity demands the dismissal of Manning’s claim of negligence
per se. This issue has divided some of our courts of appeals. Like the
court in this case, some courts reason that negligence per se falls within
the waiver because it is just another method of proving breach of duty,
4
a necessary element in every negligence cause of action.5 One court of
appeals has disagreed, declining to include negligence per se claims
within the TTCA’s waiver.6
Under the plain language of the statute and our precedent, we
conclude that the negligence per se claim in this case falls within the
scope of the waiver. As noted above, the statutory waiver is for the
“wrongful act or omission or the negligence of an employee acting within
his scope of employment.” TEX. CIV. PRAC. & REM. CODE § 101.021(1)
(emphases added). We need not venture a comprehensive definition of
“wrongful act or omission” to decide this case, as it is enough to observe
that negligence per se claims will often involve such an act or omission.7
“Negligence per se is a common-law doctrine that allows courts to rely
on a penal statute to define a reasonably prudent person’s standard of
care.” Reeder v. Daniel, 61 S.W.3d 359, 361-62 (Tex. 2001).
In addition, we have defined “negligence” for purposes of the
waiver to encompass “three degrees or grades of negligence, including
gross negligence, ordinary negligence, and slight negligence” or “high
degree of care.” VIA Metro. Transit v. Meck, 620 S.W.3d 356, 370 (Tex.
5 See City of Houston v. Cruz, No. 01-22-00647-CV, 2023 WL 8938408,
at *11 (Tex. App.—Houston [14th Dist.] Dec. 28, 2023, no pet.); McDonald v.
City of the Colony, No. 02-08-00263-CV, 2009 WL 1815648, at *7 & n.11 (Tex.
App.—Fort Worth June 25, 2009, no pet.).
6 See Thoele v. Tex. Dep’t of Crim. Just., No. 10-18-00249-CV, 2020 WL
7687864, at *5-6 (Tex. App.—Waco Dec. 22, 2020, no pet.); Tex. Dep’t of Crim.
Just. v. Parker, No. 10-18-00024-CV, 2020 WL 5833869, at *5-6 (Tex. App.—
Waco Sept. 30, 2020, no pet.).
7 The statute does list some wrongful acts and omissions that do not
qualify, many of which involve intentional torts. See TEX. CIV. PRAC. & REM.
CODE § 101.057.
5
2020) (internal quotation marks omitted). In many cases, the penal
statute that provides the basis for a negligence per se claim does not
clearly abrogate the grade of negligence that applies under the common
law;8 it functions “merely to define more precisely what conduct
breaches” the “common law duty.” Perry, 973 S.W.2d at 306.9 In other
words, negligence per se is generally “a species of negligence, in which
the breach of duty element is established by showing the violation of a
statute or regulation.” Tenaris Bay City Inc. v. Ellisor, No. 23-0808,
___ S.W.3d ___, slip op. at 10 (Tex. May 23, 2025) (citing Mo. Pac. R.R.
v. Am. Statesman, 552 S.W.2d 99, 102 (Tex. 1977)). In such cases, the
claim remains one for negligence and falls within the scope of the
waiver.
“For example, the overwhelming majority of this Court’s
negligence per se cases have involved violations of traffic statutes by
drivers and train operators—actors who already owed a common law
duty to exercise reasonable care toward others on the road or track.”
Perry, 973 S.W.2d at 306 (collecting cases). “When a statute criminalizes
conduct that is also governed by a common law duty, as in the case of a
8 “Abrogating common-law claims is disfavored and requires a clear
repugnance between the common law and statutory causes of action.” Cash
Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 16 (Tex. 2000) (internal quotation
marks omitted). In other words, “statutes purporting to abrogate common-law
principles must do so either expressly or by necessary implication.” Taylor v.
Tolbert, 644 S.W.3d 637, 649 (Tex. 2022).
9 See RESTATEMENT (SECOND) OF TORTS § 288B cmt. a (AM. L. INST.
1965) (“Where a statute . . . is adopted . . . as defining the standard of conduct
of a reasonable man[,] . . . the unexcused violation of the provision is a clear
departure from that standard [] and is conclusive on the issue of an actor’s
negligence.”), cited with approval in Perry, 973 S.W.2d at 304 n.4.
6
traffic regulation, applying negligence per se causes no great change in
the law because violating the statutory standard of conduct would
usually also be negligence under a common law reasonableness
standard.” Id.
Those are the kinds of statutes at issue here. Manning alleges
that Schmidt was negligent per se because he violated various statutory
standards:
TEX. TRANSP. CODE § 546.001(2): “In operating an
authorized emergency vehicle the operator may,”
among other things, “proceed past a red or stop signal
or stop sign, after slowing as necessary for safe
operation . . . .”
TEX. TRANSP. CODE § 546.005(1): “This chapter does not
relieve the operator of an authorized emergency vehicle
from . . . the duty to operate the vehicle with appropriate
regard for the safety of all persons . . . .”
Section 546.001(2)’s standard of “as necessary for safe operation”
and Section 546.005(1)’s standard of “appropriate regard for the safety
of all persons” are simply “more precise[]” articulations of what conduct
breaches the common-law standard of reasonable care in a particular
factual context. Perry, 973 S.W.2d at 306. “Statutes and regulations
generally requiring a party to act safely or reasonably do not substitute
a legislatively imposed standard of conduct for the reasonable-person
standard of common-law negligence.” In re CenterPoint Energy Houston
Elec., LLC, 629 S.W.3d 149, 163 (Tex. 2021).10
10 In her live pleading, Manning also alleges that Schmidt was negligent
per se because he violated Section 545.401(a) of the Transportation Code. See
___ S.W.3d ___, 2024 WL 973806, at *7; see also TEX. TRANSP. CODE
7
For these reasons, we conclude the court of appeals correctly
rejected the City’s argument that Manning’s claims of negligence per se
are outside the scope of the waiver statute. We disapprove those cases
holding otherwise.11
III
The City’s other issues concern the court of appeals’ holdings on
official immunity, the emergency exception, and the 9-1-1 exception.
The trial court denied the City’s motion for summary judgment, and the
court of appeals affirmed, concluding there were genuine issues of
material fact regarding these exceptions to the waiver of immunity. We
recently clarified the correct approach to those issues in City of Houston
v. Rodriguez, 704 S.W.3d 462 (Tex. 2024), City of Austin v. Powell, 704
S.W.3d 437 (Tex. 2024), and City of Killeen–Killeen Police Dep’t v. Terry,
___ S.W.3d ___, 2025 WL 1196743, at *1 (Tex. Apr. 25, 2025).
Accordingly, without hearing oral argument, we grant the
petition for review, vacate the court of appeals’ judgment in part, and
remand this case to that court to reconsider these issues in light of our
§ 545.401(a) (“A person commits an offense [of reckless driving] if the person
drives a vehicle in wilful or wanton disregard for the safety of persons or
property.”). We have said that Section 545.401(a) adopts a common-law
recklessness standard. See City of San Antonio v. Maspero, 640 S.W.3d 523,
531 (Tex. 2022); City of Houston v. Green, 672 S.W.3d 27, 30 (Tex. 2023); City
of Austin v. Powell, 704 S.W.3d 437, 456 (Tex. 2024). If Manning pursues this
section as a predicate for her negligence per se claims, its standard subsumes
the meaning of the term “negligence” used in the waiver statute, see VIA Metro.
Transit, 620 S.W.3d at 370, meaning she must necessarily meet that standard
for liability to attach.
11 See cases cited supra note 6.
8
recent decisions. See TEX. R. APP. P. 59.1, 60.2(f). We do not disturb the
portion of the court of appeals’ judgment regarding medical expenses.
OPINION DELIVERED: May 23, 2025
9