Michael Anthony Evans v. Texas Department of Criminal Justice-Institutional Division

Opinion Issued June 26, 2008

Opinion Issued

June 26, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-00847-CV

MICHAEL ANTHONY EVANS, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE—INSTITUTIONAL

DIVISION, Appellee

On Appeal from the 405th District Court

Galveston County , Texas

Trial Court Cause No. 06CV0574

MEMORANDUM OPINION

Appellant, Michael Anthony

Evans, sued the Texas Department of Criminal Justice—Institutional Division

(“TDCJ”) for injuries he sustained while on board a prison bus. The trial

court granted summary judgment in favor of TDCJ, who pleaded sovereign

immunity. Evans contends that the trial court erred in (1) granting summary

judgment; (2) denying his motion for summary judgment; and (3) denying his

motion for new trial. We affirm.

Background

In February 2006, TDCJ was

transporting Evans, an inmate, by bus to the hospital for medical treatment.

When the driver stopped the bus at the hospital’s front gate, Evans got up to

use the restroom at the back of the bus. While Evans was in the restroom, the

bus moved forward. As the bus crossed the entrance, an officer lowered the

security gate, which struck the top of the bus and damaged the clearance

lights. Evans alleges that the collision threw him from side to side and, as a

result, he sustained injuries to his neck, lower back, and groin.

According to the

Administrative Incident Review report, the accident occurred when the bus

driver drove into the sally port without leave to do so, and the officer

activated the mesh gate without a clear signal from the ground. According to

the report, both the driver and the officer erred in not allowing someone on

the ground to signal them before taking action—either to drive forward or to

lower the gate.

In response to Evans’s

suit, TDCJ moved for summary judgment, claiming sovereign immunity. In its

summary judgment motion, TDCJ asserted that it was immune from suit as a matter

of law because its liability derives from the TDCJ employees’ liability, and

the employees were immune because Evans has failed to file any evidence in

support of a finding of gross negligence.

Summary Judgment

We review de novo the trial court’s

grant of summary judgment. Provident Life & Accid. Ins. Co. v. Knott ,

128 S.W.3d 211, 215 (Tex. 2003). We must make inferences, resolve doubts, and

view the evidence in the light most favorable to the non-movant. Rhône-Poulenc,

Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999). TDCJ’s motion for summary

judgment contained both traditional and no-evidence grounds for summary

judgment. See Tex. R. Civ. P.

166a(c), (i).

Under Rule of Civil

Procedure 166a(c), summary judgment is properly granted only when the movant

establishes that there are no genuine issues of material fact and that it is

entitled to judgment as a matter of law. Tex.

R. Civ. P. 166a(c); Knott , 128 S.W.3d at 215–16. The movant must

establish that it is entitled to summary judgment as a matter of law on each

element of its cause of action. Rhône-Poulenc , 997 S.W.2d at 223 . Only

if the movant conclusively establishes its cause of action does the burden

shift to the non-movant to respond with evidence raising a genuine issue of

material fact that would preclude summary judgment. Id. at 222–23. In

deciding whether there is a disputed material fact precluding summary judgment,

evidence favorable to the non-movant will be taken as true, every reasonable

inference must be indulged in favor of the non-movant, and any doubts must be

resolved in favor of the non-movant. Knott , 128 S.W.3d at 215 .

A no-evidence summary

judgment motion asserts that no evidence exists as to at least one essential

element of the non-movant’s claims on which the non-movant would have the

burden of proof at trial. Bendigo v. City of Houston , 178 S.W.3d

112, 114 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Jackson v.

Fiesta Mart, Inc. , 979 S.W.2d 68 , 70–71 (Tex. App.—Austin 1998, no

pet.)). The trial court must grant the motion unless the non-movant produces

summary judgment evidence that raises a genuine issue of material fact. Tex. R. Civ. P. 166a(i); see Sw.

Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002). We must

ascertain whether the non-movant produced more than a scintilla of probative

evidence to raise a genuine issue of material fact. Bendigo , 178 S.W.3d

at 114 .

When, as here, “a trial

court’s order granting summary judgment does not specify the grounds relied

upon, [we] affirm the summary judgment if any of the summary judgment grounds are

meritorious.” FM Props. Operating Co. v. City of Austin , 22 S.W.3d 868 ,

872–73 (Tex. 2000). An appellant must negate all possible grounds. Star-Telegram,

Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995); Ellis v. Precision Engine

Rebuilders, Inc. , 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002,

no pet.). If the appellant fails to negate each possible ground upon which the

judgment may have been granted, an appellate court must uphold the summary

judgment. See Ellis , 68 S.W.3d at 898 .

TDCJ’s Motion for Summary Judgment

In his first three issues, Evans contends that the

trial court erred in granting summary judgment for TDCJ on the grounds of

sovereign immunity because a genuine issue of material fact exists as to

whether TDCJ’s alleged negligence overcomes the heightened liability standard

of section 497.096 of the Texas Government Code.

Sovereign Immunity

A governmental entity’s limited waiver of

sovereign immunity is set out in Texas Civil Practice and Remedies Code section

101.021, which provides as follows:

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 the 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

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

(2) personal injury and death so caused by

a condition or use of tangible personal or real property if the governmental

unit would, were it a private person, be liable to the claimant according to

Texas law.

Tex. Civ. Prac. & Rem. Code

Ann. §

101.021 (Vernon 2005). When the governmental unit’s liability under section

101.021(2) is based on respondeat superior for an employee’s negligence arising

from the misuse of tangible personal property, the liability is derivative or

indirect. Gill v. Tex. Dep’t of Crim. Justice , 3 S.W.3d 576, 581 (Tex. App.—Houston

[1st Dist.] 1999, no pet.). Respondeat superior imposes liability on the

employer that is responsible for the acts of its employee, acting in the scope

of his employment, when the negligence of the employee is shown to have been

the proximate cause of injury. Id.

In support of its sovereign immunity claim, TDCJ

relies on the following provision of the Texas Government Code:

An employee of the Texas Department of

Criminal Justice ,

sheriff, employee of a sheriff’s department, county commissioner, county

employee, county judge, employee of a community corrections and supervision

department, restitution center, or officer or employee of a political

subdivision other than a county is not liable for damages arising from an

act or failure to act in connection with community service performed by an

inmate imprisoned in a facility operated by the department or in connection

with an inmate or offender programmatic or nonprogrammatic activity ,

including work, community service, educational, and treatment activities, if

the act or failure to act was not intentional, willfully or wantonly negligent,

or performed with conscious indifference or reckless disregard for the safety

of others.

Tex. Gov’t Code Ann. § 497.096 (Vernon 2004)

(emphasis added). TDCJ thus claims it retains its sovereign immunity because the

bus driver and the officer are immune under section 497.096 if they did not act

with intentional, willful, or wanton negligence or reckless disregard for the

plaintiff’s safety, and the summary judgment record fails to raise a fact issue

under this liability standard. See Cobb v. Tex. Dep’t of Criminal

Justice , 965 S.W.2d 59, 63 (Tex. App.—Houston [1st Dist.] 1998, no pet.).

The Texas Supreme Court, this court, and other courts of appeals have equated section

497.096’s liability standard with gross negligence. See, e.g., Burk Royalty

Co. v. Walls , 616 S.W.2d 911 , 916–20 (Tex. 1981) (equating willful

negligence, conscious indifference to the welfare of others, and reckless

disregard for the rights of others with gross negligence); Wheeler v. Yettie

Kersting Mem’l Hosp. , 866 S.W.2d 32 , 50 & n.25 (Tex. App.—Houston [1st

Dist.] 1993, no writ) (equating willful negligence and reckless disregard with

gross negligence); Morrone v. Prestonwood Christian Acad. , 215 S.W.3d

575, 582 (Tex. App.—Eastland 2007, pet. denied) (equating extreme degree of

risk indicating conscious indifference with gross negligence). We conclude,

therefore, that, to fall within the exception to section 497.096, the TDCJ’s employee’s

act or omissions must constitute “gross negligence.” Gross negligence is “more than momentary thoughtlessness, inadvertence or error

of judgment. It means such an entire want of care as to establish that the act

or omission was the result of actual conscious indifference to the rights,

safety, or welfare of the person affected.” Transp. Ins. Co. v. Moriel , 879

S.W.2d 10, 20 (Tex. 1994) (italics omitted); see also Cobb , 965

S.W.2d at 63 (stating ordinary negligence rises to the level of gross

negligence if defendant’s act or omission shows he was aware of danger and did

not care enough to avoid it).

G ross negligence includes two

elements: (1) viewed objectively from the actor’s standpoint, the act or

omission must involve an extreme degree of risk, considering the probability

and magnitude of the potential harm to others, and (2) the actor must have

actual, subjective awareness of the risk involved, but nevertheless proceed in

conscious indifference to the rights, safety, or welfare of others.

Mobil Oil Corp. v. Ellender , 968 S.W.2d 917, 921 (Tex. 1998).

Analysis

TDCJ moved for summary judgment on the ground that

Evans had produced no evidence to support a finding that the TDCJ employees

“caused the bus and gate to hit either willfully or wantonly negligently, or

with conscious indifference or reckless disregard to the Plaintiff’s safety.”

Evans contends that TDCJ has waived this ground because TDCJ did not amend its

motion for summary judgment after Evans amended his original petition to

include an allegation of gross negligence. TDCJ, however, asserted that Evans

produced no-evidence of gross negligence, an assertion that tracked the

allegations in Evans’s third amended petition, the live pleading in this case.

TDCJ therefore properly raised this ground in its summary judgment motion.

In his response to TDCJ’s motion, Evans did not

produce any evidence to support a gross negligence claim. Evans instead

attached evidence in support of his own summary judgment motion. This evidence

includes TDCJ’s answers to Evans’s interrogatories, the administrative incident

review report, a post order specifying the duties of the mezzanine picket

officer, and Evans’s offender grievance forms. We review this evidence to

determine whether it raises a fact issue.

None of the evidence Evans produced creates a

fact issue that TDCJ’s acts or omissions, when viewed objectively from the

officers’ standpoints at the time of the incident, involved an extreme degree

of risk, considering the probability and magnitude of the potential harm to

others. Moreover, Evans has not cited any evidence showing that the officers

had an actual, subjective awareness of such a risk, but nonetheless proceeded

with conscious indifference to the rights, safety, or welfare of others. See

Diamond Shamrock Ref. Co. v. Hall , 168 S.W.3d 164, 171-73 (Tex. 2005)

(concluding there was no evidence of gross negligence where defendant knew that

certain valves were leaking, but did not know that leakage presented any danger

of compressor explosion); see also Wal-Mart Stores, Inc. v. Alexander ,

868 S.W.2d 322, 327 (Tex. 1993) (holding that no evidence of gross negligence existed

for failing to warn and repair defect in sidewalk ramp where defect did not

pose extreme risk of injury and when no other persons had fallen because of

it). The record does not contain any evidence to show that either officer was

aware of the other’s actions and thus, would have been aware of a substantial

risk of harm to others. In addition, the administrative review report that

Evans attached as evidence stated that the driver of the bus assumed that he

could pull into the sally port without being signaled because it was empty.

This does not support a finding that the bus driver was aware of the risk of

his actions. Allegations are not sufficient to overcome summary judgment; the

non-movant must have actual proof. Because Evans did not produce any evidence

that the TDCJ officers were grossly negligent, he does not overcome the

heightened liability standard applicable to his claim. See Tex. Gov’t Code Ann. § 497.096.

Because the officers cannot be held personally liable under section 497.096,

TDCJ is immune from suit. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.021. We therefore hold that the

trial court did not err in granting TDCJ’s summary judgment.

Evans’s Motions for Summary Judgment

and New Trial

In his fourth and fifth issues, Evans contends that

the trial court erred in denying his motion for summary judgment. He claims that

the evidence on file and attached to his motion for summary judgment

establishes that TDCJ was grossly negligent as a matter of law. The summary

judgment evidence Evans attaches merely raises the issue of the defendant’s

negligence; as we have discussed, it does not raise a fact issue as to gross

negligence and thus, it cannot establish TDCJ’s gross negligence as a matter of

law. We thus overrule Evans’s fourth and fifth issues.

In his final issue, Evans contends that the trial

court erred in denying his motion for new trial. Evans’s motion reurges that

the trial court deny TDCJ’s motion but does not raise any new argument or

attach any new evidence. Having concluded that the trial court properly

granted summary judgment for TDCJ, we hold that the trial court likewise did

not err in denying Evans’s motion for new trial.

Conclusion

We affirm the judgment of the trial court.

Jane Bland

Justice

Panel consists of Justices Taft, Jennings, and Bland.