Opinion

Schronk v. City of Burleson

  • 387 S.W.3d 692
  • 2009 Tex. App. LEXIS 5654
  • 2009 WL 2215081
Court
Court of Appeals of Texas
Filed
Jul 22, 2009
Status
Published
Author
Gray
On the bench
Davis, Gray, Reyna
Cited by
27 cases

holding that witnesses should have been allowed to testify that city violated manufacturer’s guidelines, but not that conduct violated a provision of the Health and Safety Code

How later courts described this case

  • holding that witnesses should have been allowed to testify that city violated manufacturer’s guidelines, but not that conduct violated a provision of the Health and Safety Code
  • holding that a testifying expert need not have personally inspected an object before offering testimony about the object
  • noting that the supreme court "has expressly rejected the application of the summary-judgment procedures required by Rule 166a in the context of a plea to the jurisdiction"
  • allowing a claim that a medical device was “defectively manufactured, designed, supplied, sold, or marketed to the City” to go forward

Written by the judges who cited it.

The opinion

Chief Justice GRAY

dissents in part and concurs in part with the judgment of the Court.

A separate opinion will not issue. He notes, however, that the claims against the City of Burleson were properly dismissed. The claim is based entirely on the fact that the AED the fire department first attempted to use did not work properly. As such, it is either a suit for the failure to use a working AED device — in essence non-use of tangible personal property which is not actionable. In the alternative, it was for the use of an AED that did not work. But it is undisputed that the AED device did not cause her death. The Court gets around this problem by finding the Fire Department violated the law in an emergency by failing to properly check or test the AED batteries. But that negligence, if any, was not part of the emergency, and the waiver of immunity for such activity is not implicated — if anything, it was simple negligence of a governmental employee for which sovereign immunity is not waived. For these and other reasons, I join no part of the Court’s opinion and respectfully dissent to that portion of the judgment which reverses the judgment in *721 favor of the City of Burleson. And though-I join no part or portion of the opinion, I concur in the reversal of the judgment to the extent it reverses and remands the judgment in favor of Laerdal for further proceedings.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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