Preview
FILED
9/1/2023 9:32 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Jenifer Trujillo DEPUTY
CAUSE NO. DC-23-09816
JOSHUA J. DAVIS § IN THE DISTRICT COURT
Plaintiff, §
§
v. § 162ND JUDICAL DISTRICT
§
JUSTIN W. HARDWICK, and DALLAS §
AREA RAPID TRANSIT D/B/A DALLAS §
AREA RAPID TRANSIT RAIL LINES §
Defendant. § DALLAS COUNTY, TEXAS
DEFENDANT DALLAS AREA RAPID TRANSIT AND DEFENDANT JUSTIN
HARDWICK’S ORIGINAL ANSWER, PLEA TO THE JURISDICTION, MOTION FOR
PARTIAL DISMISSAL & DEMAND FOR JURY TRIAL
TO THE HONORABLE JUDGE OF SAID COURT:
Defendant Dallas Area Rapid Transit (DART) incorrectly named and sued as Dallas Area
Rapid Transit D/B/A Dallas Area Rapid Transit Rail Lines and Defendant Justin Hardwick,
(hereafter “Defendants”), file their Original Answer, DART’s Plea to the Jurisdiction, DART’s
Motion for Partial Dismissal and jury trial demand in the above-styled and numbered cause and
would respectfully show unto the Court the following:
I. General Denial
As is authorized by Rule 92, Texas Rules of Civil Procedure, Defendants deny each and
every, all and singular, the allegations contained in Plaintiff’s Original Petition and demands
strict proof thereof by a preponderance of the credible evidence.
II. Immunity
For further answer, Defendants would show that at the time and on the occasion of the
incident in question, they were lawfully engaged in the performance of governmental functions.
Defendant DART would show that by legislative declaration, Tex. Trans. Code, Chapter 452
(formerly Article 1118y, Texas Revised Civil Statutes), the activities of the Dallas Area Rapid
Transit constitute a public and essential governmental function and are not proprietary for any
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 1 of 7
reason. DART hereby invokes the defense of governmental immunity. Accordingly, DART is
immune from suit and liability for personal injury and property damage unless expressly waived
by statute.
In the alternative, should plaintiff plead and prove a valid waiver of immunity, DART
further pleads a defense of liability limitations for bodily injury under the Tort Claims Act
§101.023(b) as a unit of local government. DART further asserts all limitations, exclusions and
other protections provided by statute under the Tort Claims Act.
III. Pre-existing conditions
Pleading further, if same be necessary, without waiving the foregoing, Defendants are not
liable to Plaintiff for any injuries, medical conditions, disabilities or incapacities, which were
solely the result of injuries received at times and places other than the injury and place alleged
herein, and/or were the result of conditions that existed prior to the time or arose after the time
and the place alleged herein, or as a result of diseases, or congenital conditions or from natural
causes.
IV. Medical or Healthcare Expenses Limited
Pleading further, Defendants would show that Plaintiff’s recovery of medical and/or
healthcare expenses or costs, if any, are limited to the amount actually paid or incurred by or on
behalf of the Plaintiff as provided by §41.0105 of the Texas Civil Practice & Remedies Code.
V. Loss of Earning Capacity
Pleading further and in the strict alternative, Defendant would show that the Plaintiff’s
claim for loss of earnings and loss of earning capacity is governed by Texas Civil Practice and
Remedies Code § 18.091, which requires the Plaintiff, to provide evidence of such claims in the
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 2 of 7
form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to
federal income tax law.
VI. DEFENDANT DART’S MOTION FOR DISMISSAL
OF GOVERNMENT EMPLOYEE
Pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(e), Defendant DART files this
Motion to Dismiss its Employee, Defendant Justin Hardwick. DART asks the Court to take
judicial notice of its status as a governmental entity.
Election of Remedies Motion to Dismiss Governmental Employee
Defendant, Dallas Area Rapid Transit asks this court to dismiss all claims against its
employee Justin Hardwick pursuant to statute because Plaintiff has sued both DART, a
governmental unit and its employee regarding the same subject matter. Texas Civil Practice and
Remedies Code § 101.106(a).
Plaintiff alleges in his Original Petition Section VI, paragraph 14 that Defendant Justin
W. Hardwick, was acting in the course and scope of his employment with Defendant Dallas Area
Rapid Transit at the time of the accident in question. Plaintiff further alleges causes of action
against both DART and Defendant Hardwick regarding the same subject matter. Accordingly,
DART asks this Court to dismiss all claims against its employee Justin Hardwick without delay
as is required by Texas Civil Practice and Remedies Code § 101.106(e) which provides:
“If a suit is filed under this chapter against both a governmental unit and any of its
employees, the employees shall immediately be dismissed on the filing of a
motion by the governmental unit.”
Dismissal with prejudice is required since Plaintiff has sued DART thereby making his
irrevocable election of remedies barring his suit against DART’s employee Justin Hardwick.
Tex. Civ. Prac. & Rem. Code 101.106. Defendant prays that the court would grant this motion
and dismiss with prejudice all claims against Justin W. Hardwick.
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 3 of 7
VII. DEFENDANT DART’S PLEA TO THE JURISDICTION
Defendant DART is a governmental entity and may only be sued with consent. In a suit
against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction
by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540
(Tex. 2003). Any waiver of immunity must be clear and unambiguous, and any ambiguity is
generally resolved in favor of preserving immunity. Southwestern Bell Telephone, L.P. v.
Harris County Toll Road Authority, 282 S.W.3d 59, 68 (Tex. 2009); Tooke v. City of Mexia,
197 S.W.3d 325, 328-29 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692,
697 (Tex. 2003). When suit is barred by governmental immunity, dismissal with prejudice is
proper. Liberty Mutual Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.– Austin 1994, writ
denied).
The Tort Claims Act (The Act) provides only a limited waiver of DART’s immunity for
personal injury and property damage resulting from the use or operation of a motor vehicle. Tex.
Civ. Prac. & Rem. Code § 101.021.
Under the Act, 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
his 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 § 101.021
This is a personal injury lawsuit that arises from a motor vehicle accident. Plaintiff’s
Original Petition, Section IV, para. 8. However, Plaintiff alleges several causes of action against
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 4 of 7
DART that are not within the limited waiver of immunity under the Act. Specifically, Plaintiff
alleges a cause of action based on DART’s alleged negligent entrustment of the vehicle involved
in the accident. Plaintiff’s Original Petition, Section VI, paragraphs 14-17. However, the
legislature has not waived DART’s immunity for negligent entrustment. This claim does not fall
within the limited waiver of immunity under the Tort Claims Act. Waldon v. City of Longview,
855 S.W.2d 875, 880 (Tex. App. – Tyler 1993) (governmental immunity not waived for claim
based on city’s entrustment of vehicle to city police officer).
Likewise, Defendant DART’s immunity is not waived for negligent hiring, supervision,
training or retention because these claims do not fall within the limited waiver of immunity
under the statue. Tex. Civ. Prac. & Rem. Code, Chapter 101 et. seq. Therefore, Plaintiff’s alleged
cause of action against DART based on these claims must be dismissed with prejudice as the
court lacks subject matter jurisdiction over them. Dallas Area Rapid Transit v. Edwards, 171
S.W.3d 584 (Tex. App. - Dallas 2005) (governmental immunity not waived for failure to train or
supervise bus driver); Texas Department of Public Safety v. Petta, 44 S.W.3d 575, 580-81(Tex.
2001) (governmental immunity not waived for negligent training, use, misuse, or non-use of
information because such claims do not fall under the Tort Claims Act). Therefore, Defendant
prays that the court dismiss Plaintiff’s claims and causes of action for negligent entrustment,
training, supervision, hiring, retention, lack of documentation, attendance and discipline with
prejudice, because all of these claims are outside of the limited waiver of immunity for bodily
injury caused by negligent operation or use of a motor vehicle. Tex. Civ. Prac. & Rem. Code §
101.021.
Defendant DART asks the Court to take judicial notice of the contents of the pleadings on
file in this cause and the status of DART as a governmental entity.
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 5 of 7
VIII. NOTICE OF INTENT TO USE PRODUCED DOCUMENTS
Pursuant to Texas Rule of Civil Procedure 193.7, Defendant gives notice of intent to use
documents produced in response to written discovery requests in any pretrial proceeding or at
trial.
IX. JURY DEMAND
Defendant DART hereby demands a trial by jury.
Prayer
WHEREFORE, Defendants request that they have judgment of the Court that Plaintiff
takes nothing by this suit, that Defendants go hence with each party bearing its own costs
without delay, that the Court would grant DART’s motion to dismiss all claims against its
employee Justin Hardwick with prejudice, and grant DART’s Plea to the jurisdiction upon
hearing and for such other and further relief, general or special, at law or in equity, as to which
Defendants may be entitled.
Respectfully submitted,
/s/Joycell Hollins
Joycell Hollins
Deputy General Counsel - Litigation
State Bar No. 24004493
LEGAL DEPARTMENT
DALLAS AREA RAPID TRANSIT
1401 Pacific Avenue, 1st Floor
Mailing Address: P. O. Box 660163
Dallas, Texas 75266-7255
Phone (214) 749-3088; Fax (214) 749-0281
jhollins@dart.org
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 6 of 7
CERTIFICATE OF SERVICE
On the 1st day of September 2023, a copy of the foregoing was served electronically to all
counsel:
William E. Hymes
LONCAR LYON JENKINS
424 S. Cesar Chavez Blvd.
Dallas, Texas 75201
wehymes@loncarlyonjenkins.com
/s/ Joycell Hollins
Attorney for Defendant
Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand
Page 7 of 7
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Crystal Leal on behalf of Joycell Hollins
Bar No. 24004493
cleal@dart.org
Envelope ID: 79146450
Filing Code Description: Original Answer - General Denial
Filing Description: JURY/ PLEA TO THE JURISDICTION & MOTION FOR
PARTIAL DISMISSAL
Status as of 9/3/2023 4:14 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
WILLIAM HYMES WEHYMES@LONCARLYONJENKINS.COM 9/1/2023 9:32:24 AM SENT
Associated Case Party: DALLAS AREA RAPID TRANSIT
Name BarNumber Email TimestampSubmitted Status
Joycell Hollins jhollins@dart.org 9/1/2023 9:32:24 AM SENT
Arlisa Moton amoton@dart.org 9/1/2023 9:32:24 AM SENT
Crystal Leal cleal@dart.org 9/1/2023 9:32:24 AM SENT
Preview
FILED 9/1/2023 9:32 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Jenifer Trujillo DEPUTY CAUSE NO. DC-23-09816 JOSHUA J. DAVIS § IN THE DISTRICT COURT Plaintiff, § § v. § 162ND JUDICAL DISTRICT § JUSTIN W. HARDWICK, and DALLAS § AREA RAPID TRANSIT D/B/A DALLAS § AREA RAPID TRANSIT RAIL LINES § Defendant. § DALLAS COUNTY, TEXAS DEFENDANT DALLAS AREA RAPID TRANSIT AND DEFENDANT JUSTIN HARDWICK’S ORIGINAL ANSWER, PLEA TO THE JURISDICTION, MOTION FOR PARTIAL DISMISSAL & DEMAND FOR JURY TRIAL TO THE HONORABLE JUDGE OF SAID COURT: Defendant Dallas Area Rapid Transit (DART) incorrectly named and sued as Dallas Area Rapid Transit D/B/A Dallas Area Rapid Transit Rail Lines and Defendant Justin Hardwick, (hereafter “Defendants”), file their Original Answer, DART’s Plea to the Jurisdiction, DART’s Motion for Partial Dismissal and jury trial demand in the above-styled and numbered cause and would respectfully show unto the Court the following: I. General Denial As is authorized by Rule 92, Texas Rules of Civil Procedure, Defendants deny each and every, all and singular, the allegations contained in Plaintiff’s Original Petition and demands strict proof thereof by a preponderance of the credible evidence. II. Immunity For further answer, Defendants would show that at the time and on the occasion of the incident in question, they were lawfully engaged in the performance of governmental functions. Defendant DART would show that by legislative declaration, Tex. Trans. Code, Chapter 452 (formerly Article 1118y, Texas Revised Civil Statutes), the activities of the Dallas Area Rapid Transit constitute a public and essential governmental function and are not proprietary for any Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 1 of 7 reason. DART hereby invokes the defense of governmental immunity. Accordingly, DART is immune from suit and liability for personal injury and property damage unless expressly waived by statute. In the alternative, should plaintiff plead and prove a valid waiver of immunity, DART further pleads a defense of liability limitations for bodily injury under the Tort Claims Act §101.023(b) as a unit of local government. DART further asserts all limitations, exclusions and other protections provided by statute under the Tort Claims Act. III. Pre-existing conditions Pleading further, if same be necessary, without waiving the foregoing, Defendants are not liable to Plaintiff for any injuries, medical conditions, disabilities or incapacities, which were solely the result of injuries received at times and places other than the injury and place alleged herein, and/or were the result of conditions that existed prior to the time or arose after the time and the place alleged herein, or as a result of diseases, or congenital conditions or from natural causes. IV. Medical or Healthcare Expenses Limited Pleading further, Defendants would show that Plaintiff’s recovery of medical and/or healthcare expenses or costs, if any, are limited to the amount actually paid or incurred by or on behalf of the Plaintiff as provided by §41.0105 of the Texas Civil Practice & Remedies Code. V. Loss of Earning Capacity Pleading further and in the strict alternative, Defendant would show that the Plaintiff’s claim for loss of earnings and loss of earning capacity is governed by Texas Civil Practice and Remedies Code § 18.091, which requires the Plaintiff, to provide evidence of such claims in the Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 2 of 7 form of a net loss after reduction for income tax payments or unpaid tax liability pursuant to federal income tax law. VI. DEFENDANT DART’S MOTION FOR DISMISSAL OF GOVERNMENT EMPLOYEE Pursuant to Tex. Civ. Prac. & Rem. Code § 101.106(e), Defendant DART files this Motion to Dismiss its Employee, Defendant Justin Hardwick. DART asks the Court to take judicial notice of its status as a governmental entity. Election of Remedies Motion to Dismiss Governmental Employee Defendant, Dallas Area Rapid Transit asks this court to dismiss all claims against its employee Justin Hardwick pursuant to statute because Plaintiff has sued both DART, a governmental unit and its employee regarding the same subject matter. Texas Civil Practice and Remedies Code § 101.106(a). Plaintiff alleges in his Original Petition Section VI, paragraph 14 that Defendant Justin W. Hardwick, was acting in the course and scope of his employment with Defendant Dallas Area Rapid Transit at the time of the accident in question. Plaintiff further alleges causes of action against both DART and Defendant Hardwick regarding the same subject matter. Accordingly, DART asks this Court to dismiss all claims against its employee Justin Hardwick without delay as is required by Texas Civil Practice and Remedies Code § 101.106(e) which provides: “If a suit is filed under this chapter against both a governmental unit and any of its employees, the employees shall immediately be dismissed on the filing of a motion by the governmental unit.” Dismissal with prejudice is required since Plaintiff has sued DART thereby making his irrevocable election of remedies barring his suit against DART’s employee Justin Hardwick. Tex. Civ. Prac. & Rem. Code 101.106. Defendant prays that the court would grant this motion and dismiss with prejudice all claims against Justin W. Hardwick. Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 3 of 7 VII. DEFENDANT DART’S PLEA TO THE JURISDICTION Defendant DART is a governmental entity and may only be sued with consent. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. 2003). Any waiver of immunity must be clear and unambiguous, and any ambiguity is generally resolved in favor of preserving immunity. Southwestern Bell Telephone, L.P. v. Harris County Toll Road Authority, 282 S.W.3d 59, 68 (Tex. 2009); Tooke v. City of Mexia, 197 S.W.3d 325, 328-29 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003). When suit is barred by governmental immunity, dismissal with prejudice is proper. Liberty Mutual Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.– Austin 1994, writ denied). The Tort Claims Act (The Act) provides only a limited waiver of DART’s immunity for personal injury and property damage resulting from the use or operation of a motor vehicle. Tex. Civ. Prac. & Rem. Code § 101.021. Under the Act, 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 his 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 § 101.021 This is a personal injury lawsuit that arises from a motor vehicle accident. Plaintiff’s Original Petition, Section IV, para. 8. However, Plaintiff alleges several causes of action against Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 4 of 7 DART that are not within the limited waiver of immunity under the Act. Specifically, Plaintiff alleges a cause of action based on DART’s alleged negligent entrustment of the vehicle involved in the accident. Plaintiff’s Original Petition, Section VI, paragraphs 14-17. However, the legislature has not waived DART’s immunity for negligent entrustment. This claim does not fall within the limited waiver of immunity under the Tort Claims Act. Waldon v. City of Longview, 855 S.W.2d 875, 880 (Tex. App. – Tyler 1993) (governmental immunity not waived for claim based on city’s entrustment of vehicle to city police officer). Likewise, Defendant DART’s immunity is not waived for negligent hiring, supervision, training or retention because these claims do not fall within the limited waiver of immunity under the statue. Tex. Civ. Prac. & Rem. Code, Chapter 101 et. seq. Therefore, Plaintiff’s alleged cause of action against DART based on these claims must be dismissed with prejudice as the court lacks subject matter jurisdiction over them. Dallas Area Rapid Transit v. Edwards, 171 S.W.3d 584 (Tex. App. - Dallas 2005) (governmental immunity not waived for failure to train or supervise bus driver); Texas Department of Public Safety v. Petta, 44 S.W.3d 575, 580-81(Tex. 2001) (governmental immunity not waived for negligent training, use, misuse, or non-use of information because such claims do not fall under the Tort Claims Act). Therefore, Defendant prays that the court dismiss Plaintiff’s claims and causes of action for negligent entrustment, training, supervision, hiring, retention, lack of documentation, attendance and discipline with prejudice, because all of these claims are outside of the limited waiver of immunity for bodily injury caused by negligent operation or use of a motor vehicle. Tex. Civ. Prac. & Rem. Code § 101.021. Defendant DART asks the Court to take judicial notice of the contents of the pleadings on file in this cause and the status of DART as a governmental entity. Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 5 of 7 VIII. NOTICE OF INTENT TO USE PRODUCED DOCUMENTS Pursuant to Texas Rule of Civil Procedure 193.7, Defendant gives notice of intent to use documents produced in response to written discovery requests in any pretrial proceeding or at trial. IX. JURY DEMAND Defendant DART hereby demands a trial by jury. Prayer WHEREFORE, Defendants request that they have judgment of the Court that Plaintiff takes nothing by this suit, that Defendants go hence with each party bearing its own costs without delay, that the Court would grant DART’s motion to dismiss all claims against its employee Justin Hardwick with prejudice, and grant DART’s Plea to the jurisdiction upon hearing and for such other and further relief, general or special, at law or in equity, as to which Defendants may be entitled. Respectfully submitted, /s/Joycell Hollins Joycell Hollins Deputy General Counsel - Litigation State Bar No. 24004493 LEGAL DEPARTMENT DALLAS AREA RAPID TRANSIT 1401 Pacific Avenue, 1st Floor Mailing Address: P. O. Box 660163 Dallas, Texas 75266-7255 Phone (214) 749-3088; Fax (214) 749-0281 jhollins@dart.org Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 6 of 7 CERTIFICATE OF SERVICE On the 1st day of September 2023, a copy of the foregoing was served electronically to all counsel: William E. Hymes LONCAR LYON JENKINS 424 S. Cesar Chavez Blvd. Dallas, Texas 75201 wehymes@loncarlyonjenkins.com /s/ Joycell Hollins Attorney for Defendant Defendants’ Original Answer, Plea to the Jurisdiction, Partial Dismissal & Jury Demand Page 7 of 7 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Crystal Leal on behalf of Joycell Hollins Bar No. 24004493 cleal@dart.org Envelope ID: 79146450 Filing Code Description: Original Answer - General Denial Filing Description: JURY/ PLEA TO THE JURISDICTION & MOTION FOR PARTIAL DISMISSAL Status as of 9/3/2023 4:14 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status WILLIAM HYMES WEHYMES@LONCARLYONJENKINS.COM 9/1/2023 9:32:24 AM SENT Associated Case Party: DALLAS AREA RAPID TRANSIT Name BarNumber Email TimestampSubmitted Status Joycell Hollins jhollins@dart.org 9/1/2023 9:32:24 AM SENT Arlisa Moton amoton@dart.org 9/1/2023 9:32:24 AM SENT Crystal Leal cleal@dart.org 9/1/2023 9:32:24 AM SENT