A recent Texas wrongful death decision arose when a college freshman was shot and killed on a university campus. He was on his way to class when he was shot and killed. On the prior evening, another shooting happened in the parking lot of the same dorm. His mother sued the university for negligence and gross negligence.
She claimed that the university’s employees, representatives, and agents failed to use reasonable care in warning parents and students about the risk of harm on campus and in providing adequate security and taking steps to stop criminal activity.
The university filed a plea to the jurisdiction and a motion to dismiss the mother’s claims on the basis of governmental immunity. The mother argued that immunity was waived by the Texas Tort Claims Act, since the death was caused by a condition or use of real property or personal property. The trial court denied the motion and allowed the plaintiff a month to amend her complaint. The university filed an interlocutory appeal, arguing that her petition affirmatively negated jurisdiction.
Specifically, the university reasoned that its immunity from suit defeated the lower court’s subject matter jurisdiction and was thus properly asserted in a plea to the jurisdiction. The university was a governmental unity under the law and would be immune from suit unless the State agreed this immunity was waived. A plaintiff needs to affirmatively show that there has been a valid waiver of immunity.
The appellate court explained that unless the petition affirmatively shows there’s no cause of action, or the plaintiff’s recovery is barred, the lower court must give the plaintiff a chance to amend before granting a motion to dismiss. The university argued that the plaintiff hadn’t put forward facts that if shown constituted a valid claim over which it had jurisdiction.
The appellate court reviewed the pleadings to decide whether the plaintiff’s claims were within the immunity waiver. Under Section 101.021(2), a state governmental unit could only be accountable for a personal injury or death caused by real property or personal property if the governmental unit would be liable to the claimant under Texas law.
The university argued that the allegations didn’t show a nexus between the decedent’s injuries and the use of university property. The mother argued she had alleged that the university’s security equipment and systems were used, were misused, or lacked an important safety feature, thereby causing her son’s death. The appellate court concluded that she hadn’t alleged enough facts to show her son’s injuries were legally caused by that use or condition. There had to be more than the mere involvement of property in creating conditions that make an injury possible. The use or condition had to cause the injury.
The mother claimed that the university had chosen an inadequate amount of security, failed to warn parents in connection with past violent acts, failed to inform them about the potential threat presented by criminals on the premises, failed to lock down the campus after a shooting occurred earlier that morning before her son was shot, failed to maintain a security staff, and failed to prevent a crime against him.
The appellate court noted that the allegations were in three categories, including the provision of inadequate security, the failure to warn of campus dangers, and the failure to make campus safer after prior violent acts. The appellate court noted that a failure to supervise was a failure to act, rather than a condition or use of property. It reasoned that a failure to put in adequate security only related to the conditions that made the decedent’s death possible rather than proximate causation. It found that the failure to warn of prior acts was a premises defect theory. However, the mother hadn’t pointed to anything more than the fact that the university failed to warn him and his parents of prior events, but this was a backdrop to what happened, since the death was caused by the assailant. It reversed the denial of the university’s plea to the jurisdiction.
If a loved one dies as a result of negligence, the San Antonio wrongful death attorneys at Carabin Shaw may be able to represent you and develop a sound strategy for handling your case. Call our office for more information at 1-800-862-1260.
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