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CAUSE NO. 09-17355
JAMES EDWARD DANIELS
Plaintiff,
ve
DALLAS AREA RAPID TRANSIT
JERRY LANE EDGAR,
NATIONWIDE INSURANCE CO.,
§
§
§
§
§
§
§
g
BRIAN LONCAR AND JASON FOX = §
§
§
DALLAS COUNTY, TEXAS
Defendants.
DALLAS AREA RAPID TRANSIT’S PLEA TO JURISDICTION
COMES NOW Defendant Dallas Area Rapid Transit (DART) and files this Plea to the
Jurisdiction. In support of its motion, said defendant would show the Court as follows:
INTRODUCTION
Plaintiff has filed suit against DART for damages based on: 1) failure to provide medical
assistance, and 2) failure to properly investigate an accident. Plaintiff was a passenger on a
DART bus involved in a collision with a vehicle operated by Co-Defendant Jerry Lane Edgar.
At hearing on June 28, 2010, Judge M.K. Sims sitting for the court issued an Order granting
DART’s Special Exceptions to Plaintiff's Original Petition. Plaintiff has failed to replead or cure
the defects in accord with the court’s order.
GROUNDS FOR SUSTAINING
THE PLEA TO THE JURISDICTION
This Plea to the Jurisdiction is supported and established by the pleadings on file
including, Plaintiff's complaint against DART in his Original Petition for failure to, provide
_ ee e———e——————————— re
DART’s Plea to Jurisdiction
Pagmedical assistance and failure to properly investigate an accident, DART’s Answer’, as well as
by Exhibit 1 - Court Order dated June 28, 2010, applicable case law and statutes.
1. STANDARD
A plea to the jurisdiction challenges the trial court’s authority to determine the subject
matter of the action. Texas Dep't Transp. v. Jones, 8 S. W.3d 636, 638 (Tex. 1999). Whether
the trial court has subject matter jurisdiction is a question of law. Texas Natural Resource
Conservation Comm'n v. 1T-Davy, 74 S. W.3d 849, 855 (Tex. 2002). The Plaintiff has the
burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction.
Texas Ass'n Bus. v. Texas Air Control Bd., 852 S. W.2d 440, 446 (Tex. 1993). The plaintiff
bears the burden of alleging facts affirmatively showing that the trial court has subject matter
jurisdiction. /d. at 446. Ina suit against a Texas governmental entity, it is the plaintiffs’ burden
to plead and prove that governmental immunity from suit has been waived. Walsh v. University
of Texas, 169 S.W. 2d 993, 993-994 (Tex. Civ. App.-El Paso 1942, writ refd).
When suit is barred by governmental immunity, dismissal with prejudice for want of
jurisdiction is proper. Liberty Mutual Insurance Co. v. Sharp, 874 8. W.2d 736,739. In the
instant case, DART is a governmental entity entitled to governmental immunity unless waived
by statute. See Davis v. Mathis, 846 S.W. 2d 84, 88 (Tex. App. - Dallas 1992, no writ);
Rosenzweig v. Dallas Area Rapid Transit, 841 S.W. 2d 897 (Tex. App.--Dallas 1992, error
denied, rehearing on writ of error overruled). Dallas Area Rapid Transit v. Whitley, 104 S.
W.3d 540, 542 (Tex. 2003). Plaintiff's Petition, does not allege adequate grounds to confer
jurisdiction, and should be dismissed.
2. NO WAIVER OF SOVEREIGN IMMUNITY
it is a fundamental rule of Texas jurisprudence that the State of Texas and its political
subdivisions may not be sued without the consent of the Texas legislature. Hosner v. DeYoung.
| TEX. 764 (1847); Griffin v. Hawn, 341 S. W.2d 151 (Tex. 1960). The State of Texas is
" Defendant requests this Court to take Judicial Notice of this file.
eee e eee eee reer nee nce
DART'’s Plea to Jurisdiction
Pagimmune from suit unless it gives its consent to be sued. Missouri Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). As with the State of Texas, political
subdivisions such as Dallas Area Rapid Transit, a regional transportation authority, come under
the protection afforded by the Doctrine of Sovereign Immunity. See Dillard v. Austin
Independent School Dist., 806 S. W.2d 589 (Tex. App.-Austin 1992). See also Mathis, 846
S.W.2d at 84, 88, Rosenzweig, 841 S. W.2d at 897. Unless a governmental entity has consented
to suit, a court lacks subject matter jurisdiction to consider a claim against a governmental unit’.
Wichita Falls State Hospital v. Taylor, 106 S. W.3d 692, 696 (Tex. 2003).
3. ALLEGATIONS AND PLEADINGS FAIL TO CONFER JURISDICTION
Plaintiff's petition fails to state any cause of action that waives DART’s immunity.
Plaintiff's allegations against DART are that his damages arose out of failure to provide medical
assistance and failure to properly investigate an accident. Neither of these allegations can
support a suit against DART under the Texas Tort Claims Act. Under §101.055 and §101.056,
Tex. Civ. Prac. & Rem. Code, there is no waiver of governmental immunity for failure to
provide or the method of providing police protection. The DART Police Department was
established pursuant to Texas Transportation Code §452.110 and DART police officers have
been judicially recognized as peace officers pursuant to Texas Code of Criminal Procedure, Art.
2.12 (22). Howard v. State, 227 S.W.3d 794, 798-99 (Tex.App. — Dallas 2006, pet. denied).
? For a governmental entity or its employee to be held liable for the acts of its employees under the Texas Tort
Claims Act, a claimant must prove: (1) the claim for property damage, personal injury or death must arise from the
operation or use of a motor driven vehicle or motor driven equipment and (2) the claim must not fall within an
exception to the waiver of sovereign immunity. Tex. Civ. Prac. & Rem. Code §101.021 (Vernon 2004). The
exceptions include the failure to provide or the method of providing police protection; discretionary conduct; and
intentional torts. /d. $101.055(3), §101.056, and §101.057(2).
ES
DART’s Plea to Jurisdiction
PagPlaintiff's complaint against DART is based on how DART police responded to and investigated
the accident and therefore must be dismissed.
Moreover, Tex. Civ. Prac.& Rem. Code § 101.021(1)(A) provides that "a governmental
unit in this State is liable for ... personal injury ... proximately caused by the wrongful act or
omission or the negligence of an employee acting within his scope of employment if [the injury]
arises from the operation or use of a motor-driven vehicle or motor-driven equipment." The
phrase “arises from,” requires a nexus between the injury and the employee's operation or use of
the motor vehicle. LeLeaux v. Hamshire Fannett Indep. Sch. Dist, 835 S.W.2d 49, 51
(Tex.1992). If the use or operation of the motor vehicle only provides the setting for the injury to
occur, immunity is not waived. /d. at 52. Therefore, this case must be dismissed since the DART
bus involved in this incident did nothing more than furnish the location for the possible injury.
CONCLUSION
Plaintiff has failed to establish waiver of immunity and has failed to invoke this Court’s
jurisdiction. Plaintiff has failed to comply with the court’s order that required Plaintiff to
replead and cure defects identified in the Special Exceptions by July 16, 2010. Plaintiff's
Petition has incurable defects and therefore this case should be dismissed against DART.
PRAYER
WHEREFORE, Plaintiff has not plead a cause of action against DART which the court
has jurisdiction DART respectfully requests that Plaintifi’s claims against it be dismissed with
prejudice and that the court enter an order granting dismissal and any further relief to which
Defendant may be entitied.
EE ——=E——————————————
DART’s Plea to Jurisdiction
PagRespectfully submitted,
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
1401 Pacific Avenue, Ist Floor
Mailing Address: P. O. Box 660163
Dallas, Texas 75266-7255
(214) 749- 3043
Hyattye O. Simmons
General Counsel
State Bar No. 18377500
Attorneys for Defendant DART
CERTIFICATE OF SERVICE
{ hereby certify that on the BF aay of July 2010, caused a copy of the foregoing to be
sent via certified mail to Pro Se Plaintiff Jame: ard Daniels, 3931 Waterhouse Drive, Dallas,
Texas 75241.
fy for Defendant
alfas Area Rapid Transit
FIAT
A hearing on the foregoing Plea to Jurisdiction has been set forthe __ day of
2010, at .m. in the 44th District Couft, 600 Commerce St. Dallas, Texas 75202.
Signed:
JUDGE PRESIDING
Se eee
DART’s Plea to Jurisdiction PagDallas Area Rapid Transit
P.O. Box 660163
Dallas, Texas 75266-0163
214/749-3278
Batch #: 476 93021
Article #: 719690028877000
tune 28, 2010 Date/Time: 6/28/2010 3:51:52 PM
Code: Daniels pro se
Via Certified Mail and Regular Mail Code2: JHiaj
James Edward Daniels File #; Daniels: Order on Spec Excep
Internal File #:
3931 Waterhouse Drive
Internal Cade #:
Dallas, Texas 75241 .
Re: James Edward Daniels v. DART, et al; Cause No. 09-17355; In the 44" pistrict Court of
Dallas County, Texas.
Dear Mr. Daniels:
With respect to the above-referenced matter, please find enclosed a file-marked copy of the
Order on Defendant DART’s Special Exceptions granted on June 28, 2010.
Sincerely,
bee he
oveta A. Jones
Legal Secretary to Joycell Hollins
Direct Dial (214) 749-3071
Encls.
TM eco Teta ikon ane
CERTIFIED even ae
EXHIBIT se Batch # Mr. James Daniels
4 se Drive
‘Sweet, Apt. Ou!
"PO Bax NO. 4931 Waterh
1 \ Gay, Sate, Zot Datitas, Texas 75241
aniets pro S&
Code2: JHMA) |. enec Exceptions
1 Code: 0%CAUSE NO. 09-17355
BRIAN LONCAR AND JASON FOX
JAMES EDWARD DANIELS § INTHE DISTRICT COURT
Plaintiff, §
§
v. § 44™ JUDICIAL DISTRICT
§
DALLAS AREA RAPIDTRANSIT = §
JERRY LANE EDGAR, §
NATIONWIDE INSURANCECO.,, = §
§
§
§
Defendants. DALLAS COUNTY, TEXAS
ORD IN DEFE! DART’S SPE XCEPTIO)
CAME ON FOR CONSIDERATION, Defendant DART’s Special Exceptions to
Plaintiff's Original Petition. Upon consideration of the pleadings and argument of the
parties, the Court makes the following rulings on exceptions:
It is ORDERED, ADJUDGED AND DECREED that Defendant DART’s Special
Exception number one, to wit: ,
DART specially excepts to Paragraph I] and the Prayer of Plaintiff's Original
Petition wherein Plaintiff alleges the following prohibited causes of action
against DART: 1) failure to provide medical assistance; and 2) failure to
properly make an investigation. Such causes of action are barred against
DART pursuant to the Texas Tort Claims Act (TTCA) because they do not
involve the operation or use of a motor driven vehicle. In addition, such
claims by Plaintiff involve discretionary conduct, intentional torts, response or
reaction to emergency or the method of providing police protection which are
excluded from the TTCA’s waiver of immunity.
Special Exceptions Order 1is hereby;
OVERRULLED Vi. Lf SUSTAINED; and
It is ORDERED, ADJUDGED AND DECREED that Defendant DART’s Special
Exception, number 2, to wit:
DART specially excepts to Paragraph I and I and of Plaintiff's Original Petition
wherein he seems to allege a cause of action against DART based on falsifying a
police report and/or filing a false police report. Such causes of action are barred
against DART pursuant to the Texas Tort Claims Act (TTCA) because they do
not involve the operation or use of a motor driven vehicle. In addition, such
claims by Plaintiff involve discretionary conduct, intentional torts, response or
reaction to emergency, or the method of providing police protection which are
excluded from the TTCA’s waiver of immunity
is hereby;
OVERRULLED SUSTAINED; and
IT IS FURTHER ORDERED that the Plaintiff shall replead and cure the defects
identified by the special exceptions that were sustained. Lf Plaintiff fails to replead and
cure the defects by Lely Lhe , 2010 the court will strike each defective
paragraph. .
All other relief sought at law or in equity that is not expressly granted is denied.
-
SIGNED on this a £ day of gue 2010. j
4
JUDGE PRESIDIN!
Retired Judge—_—_2.1__, udicial District
aurt Sitting for Tage TE a
ngwiet Court Sitting for Judge-_4 2
udicial District Court Dallas County, Texas
Special Exceptions Order 2
Preview
“onGN, nen CAUSE NO. 09-17355 JAMES EDWARD DANIELS Plaintiff, ve DALLAS AREA RAPID TRANSIT JERRY LANE EDGAR, NATIONWIDE INSURANCE CO., § § § § § § § g BRIAN LONCAR AND JASON FOX = § § § DALLAS COUNTY, TEXAS Defendants. DALLAS AREA RAPID TRANSIT’S PLEA TO JURISDICTION COMES NOW Defendant Dallas Area Rapid Transit (DART) and files this Plea to the Jurisdiction. In support of its motion, said defendant would show the Court as follows: INTRODUCTION Plaintiff has filed suit against DART for damages based on: 1) failure to provide medical assistance, and 2) failure to properly investigate an accident. Plaintiff was a passenger on a DART bus involved in a collision with a vehicle operated by Co-Defendant Jerry Lane Edgar. At hearing on June 28, 2010, Judge M.K. Sims sitting for the court issued an Order granting DART’s Special Exceptions to Plaintiff's Original Petition. Plaintiff has failed to replead or cure the defects in accord with the court’s order. GROUNDS FOR SUSTAINING THE PLEA TO THE JURISDICTION This Plea to the Jurisdiction is supported and established by the pleadings on file including, Plaintiff's complaint against DART in his Original Petition for failure to, provide _ ee e———e——————————— re DART’s Plea to Jurisdiction Pagmedical assistance and failure to properly investigate an accident, DART’s Answer’, as well as by Exhibit 1 - Court Order dated June 28, 2010, applicable case law and statutes. 1. STANDARD A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. Texas Dep't Transp. v. Jones, 8 S. W.3d 636, 638 (Tex. 1999). Whether the trial court has subject matter jurisdiction is a question of law. Texas Natural Resource Conservation Comm'n v. 1T-Davy, 74 S. W.3d 849, 855 (Tex. 2002). The Plaintiff has the burden of alleging facts that affirmatively establish the trial court’s subject matter jurisdiction. Texas Ass'n Bus. v. Texas Air Control Bd., 852 S. W.2d 440, 446 (Tex. 1993). The plaintiff bears the burden of alleging facts affirmatively showing that the trial court has subject matter jurisdiction. /d. at 446. Ina suit against a Texas governmental entity, it is the plaintiffs’ burden to plead and prove that governmental immunity from suit has been waived. Walsh v. University of Texas, 169 S.W. 2d 993, 993-994 (Tex. Civ. App.-El Paso 1942, writ refd). When suit is barred by governmental immunity, dismissal with prejudice for want of jurisdiction is proper. Liberty Mutual Insurance Co. v. Sharp, 874 8. W.2d 736,739. In the instant case, DART is a governmental entity entitled to governmental immunity unless waived by statute. See Davis v. Mathis, 846 S.W. 2d 84, 88 (Tex. App. - Dallas 1992, no writ); Rosenzweig v. Dallas Area Rapid Transit, 841 S.W. 2d 897 (Tex. App.--Dallas 1992, error denied, rehearing on writ of error overruled). Dallas Area Rapid Transit v. Whitley, 104 S. W.3d 540, 542 (Tex. 2003). Plaintiff's Petition, does not allege adequate grounds to confer jurisdiction, and should be dismissed. 2. NO WAIVER OF SOVEREIGN IMMUNITY it is a fundamental rule of Texas jurisprudence that the State of Texas and its political subdivisions may not be sued without the consent of the Texas legislature. Hosner v. DeYoung. | TEX. 764 (1847); Griffin v. Hawn, 341 S. W.2d 151 (Tex. 1960). The State of Texas is " Defendant requests this Court to take Judicial Notice of this file. eee e eee eee reer nee nce DART'’s Plea to Jurisdiction Pagimmune from suit unless it gives its consent to be sued. Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970). As with the State of Texas, political subdivisions such as Dallas Area Rapid Transit, a regional transportation authority, come under the protection afforded by the Doctrine of Sovereign Immunity. See Dillard v. Austin Independent School Dist., 806 S. W.2d 589 (Tex. App.-Austin 1992). See also Mathis, 846 S.W.2d at 84, 88, Rosenzweig, 841 S. W.2d at 897. Unless a governmental entity has consented to suit, a court lacks subject matter jurisdiction to consider a claim against a governmental unit’. Wichita Falls State Hospital v. Taylor, 106 S. W.3d 692, 696 (Tex. 2003). 3. ALLEGATIONS AND PLEADINGS FAIL TO CONFER JURISDICTION Plaintiff's petition fails to state any cause of action that waives DART’s immunity. Plaintiff's allegations against DART are that his damages arose out of failure to provide medical assistance and failure to properly investigate an accident. Neither of these allegations can support a suit against DART under the Texas Tort Claims Act. Under §101.055 and §101.056, Tex. Civ. Prac. & Rem. Code, there is no waiver of governmental immunity for failure to provide or the method of providing police protection. The DART Police Department was established pursuant to Texas Transportation Code §452.110 and DART police officers have been judicially recognized as peace officers pursuant to Texas Code of Criminal Procedure, Art. 2.12 (22). Howard v. State, 227 S.W.3d 794, 798-99 (Tex.App. — Dallas 2006, pet. denied). ? For a governmental entity or its employee to be held liable for the acts of its employees under the Texas Tort Claims Act, a claimant must prove: (1) the claim for property damage, personal injury or death must arise from the operation or use of a motor driven vehicle or motor driven equipment and (2) the claim must not fall within an exception to the waiver of sovereign immunity. Tex. Civ. Prac. & Rem. Code §101.021 (Vernon 2004). The exceptions include the failure to provide or the method of providing police protection; discretionary conduct; and intentional torts. /d. $101.055(3), §101.056, and §101.057(2). ES DART’s Plea to Jurisdiction PagPlaintiff's complaint against DART is based on how DART police responded to and investigated the accident and therefore must be dismissed. Moreover, Tex. Civ. Prac.& Rem. Code § 101.021(1)(A) provides that "a governmental unit in this State is liable for ... personal injury ... proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if [the injury] arises from the operation or use of a motor-driven vehicle or motor-driven equipment." The phrase “arises from,” requires a nexus between the injury and the employee's operation or use of the motor vehicle. LeLeaux v. Hamshire Fannett Indep. Sch. Dist, 835 S.W.2d 49, 51 (Tex.1992). If the use or operation of the motor vehicle only provides the setting for the injury to occur, immunity is not waived. /d. at 52. Therefore, this case must be dismissed since the DART bus involved in this incident did nothing more than furnish the location for the possible injury. CONCLUSION Plaintiff has failed to establish waiver of immunity and has failed to invoke this Court’s jurisdiction. Plaintiff has failed to comply with the court’s order that required Plaintiff to replead and cure defects identified in the Special Exceptions by July 16, 2010. Plaintiff's Petition has incurable defects and therefore this case should be dismissed against DART. PRAYER WHEREFORE, Plaintiff has not plead a cause of action against DART which the court has jurisdiction DART respectfully requests that Plaintifi’s claims against it be dismissed with prejudice and that the court enter an order granting dismissal and any further relief to which Defendant may be entitied. EE ——=E—————————————— DART’s Plea to Jurisdiction PagRespectfully submitted, LEGAL DEPARTMENT DALLAS AREA RAPID TRANSIT 1401 Pacific Avenue, Ist Floor Mailing Address: P. O. Box 660163 Dallas, Texas 75266-7255 (214) 749- 3043 Hyattye O. Simmons General Counsel State Bar No. 18377500 Attorneys for Defendant DART CERTIFICATE OF SERVICE { hereby certify that on the BF aay of July 2010, caused a copy of the foregoing to be sent via certified mail to Pro Se Plaintiff Jame: ard Daniels, 3931 Waterhouse Drive, Dallas, Texas 75241. fy for Defendant alfas Area Rapid Transit FIAT A hearing on the foregoing Plea to Jurisdiction has been set forthe __ day of 2010, at .m. in the 44th District Couft, 600 Commerce St. Dallas, Texas 75202. Signed: JUDGE PRESIDING Se eee DART’s Plea to Jurisdiction PagDallas Area Rapid Transit P.O. Box 660163 Dallas, Texas 75266-0163 214/749-3278 Batch #: 476 93021 Article #: 719690028877000 tune 28, 2010 Date/Time: 6/28/2010 3:51:52 PM Code: Daniels pro se Via Certified Mail and Regular Mail Code2: JHiaj James Edward Daniels File #; Daniels: Order on Spec Excep Internal File #: 3931 Waterhouse Drive Internal Cade #: Dallas, Texas 75241 . Re: James Edward Daniels v. DART, et al; Cause No. 09-17355; In the 44" pistrict Court of Dallas County, Texas. Dear Mr. Daniels: With respect to the above-referenced matter, please find enclosed a file-marked copy of the Order on Defendant DART’s Special Exceptions granted on June 28, 2010. Sincerely, bee he oveta A. Jones Legal Secretary to Joycell Hollins Direct Dial (214) 749-3071 Encls. TM eco Teta ikon ane CERTIFIED even ae EXHIBIT se Batch # Mr. James Daniels 4 se Drive ‘Sweet, Apt. Ou! "PO Bax NO. 4931 Waterh 1 \ Gay, Sate, Zot Datitas, Texas 75241 aniets pro S& Code2: JHMA) |. enec Exceptions 1 Code: 0%CAUSE NO. 09-17355 BRIAN LONCAR AND JASON FOX JAMES EDWARD DANIELS § INTHE DISTRICT COURT Plaintiff, § § v. § 44™ JUDICIAL DISTRICT § DALLAS AREA RAPIDTRANSIT = § JERRY LANE EDGAR, § NATIONWIDE INSURANCECO.,, = § § § § Defendants. DALLAS COUNTY, TEXAS ORD IN DEFE! DART’S SPE XCEPTIO) CAME ON FOR CONSIDERATION, Defendant DART’s Special Exceptions to Plaintiff's Original Petition. Upon consideration of the pleadings and argument of the parties, the Court makes the following rulings on exceptions: It is ORDERED, ADJUDGED AND DECREED that Defendant DART’s Special Exception number one, to wit: , DART specially excepts to Paragraph I] and the Prayer of Plaintiff's Original Petition wherein Plaintiff alleges the following prohibited causes of action against DART: 1) failure to provide medical assistance; and 2) failure to properly make an investigation. Such causes of action are barred against DART pursuant to the Texas Tort Claims Act (TTCA) because they do not involve the operation or use of a motor driven vehicle. In addition, such claims by Plaintiff involve discretionary conduct, intentional torts, response or reaction to emergency or the method of providing police protection which are excluded from the TTCA’s waiver of immunity. Special Exceptions Order 1is hereby; OVERRULLED Vi. Lf SUSTAINED; and It is ORDERED, ADJUDGED AND DECREED that Defendant DART’s Special Exception, number 2, to wit: DART specially excepts to Paragraph I and I and of Plaintiff's Original Petition wherein he seems to allege a cause of action against DART based on falsifying a police report and/or filing a false police report. Such causes of action are barred against DART pursuant to the Texas Tort Claims Act (TTCA) because they do not involve the operation or use of a motor driven vehicle. In addition, such claims by Plaintiff involve discretionary conduct, intentional torts, response or reaction to emergency, or the method of providing police protection which are excluded from the TTCA’s waiver of immunity is hereby; OVERRULLED SUSTAINED; and IT IS FURTHER ORDERED that the Plaintiff shall replead and cure the defects identified by the special exceptions that were sustained. Lf Plaintiff fails to replead and cure the defects by Lely Lhe , 2010 the court will strike each defective paragraph. . All other relief sought at law or in equity that is not expressly granted is denied. - SIGNED on this a £ day of gue 2010. j 4 JUDGE PRESIDIN! Retired Judge—_—_2.1__, udicial District aurt Sitting for Tage TE a ngwiet Court Sitting for Judge-_4 2 udicial District Court Dallas County, Texas Special Exceptions Order 2