"All courts shall be open, and every person for injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, §13.
The parameters of governmental immunity are statutorily controlled by the Texas Tort Claims Act ("TTCA") as found in Chapter 101.002 et.al. of the Texas Civil Practice and Remedies Code. However, this statutory framework was not always the case. This paper will briefly educate you as to how we got to the current framework. If nothing else, you may obtain some trivia to throw around at appropriate moments.
The Former System: No Legislative Involvement as to Issues of Liability
A visit to the "good ole days" of pre-TTCA common law governmental immunity necessarily involves a suspension of acceptance of the status quo. The origins of common law governmental immunity can be likened to the origins of man - at some point man/common law governmental immunity shows up and everyone argues as to whether he/it evolved to its then-current recognizable form or, alternatively, man/common law governmental immunity arrived via spontaneous, divine creation.
Darwinism As Applied To Common Law Governmental Immunity
The idea of the government being immune from suit harkens back to long ago days of absolute monarchs ruling absolutely. "Hence it is, that no suit or action can be brought against the king because no court can have jurisdiction over him. For all jurisdiction implies superiority of power; authority to try would be vain and idle, without any authority of redress; and the sentence of the court would be contemptible, unless the court had the power to command the execution of it; but who shall command the king?" [Blackstone, Commentaries, 242.]
This idea of sovereign immunity was logical since, as Blackstone noted, the court's judgment would be unenforceable as to the sovereign or his minions. Sovereign immunity was never a statutory concept in England. It was a part of the common law, i.e., the law created by the courts. It applied to the central as well as regional or district governments. It was over time that the various aspects of sovereign immunity were fleshed out.
It was not until 1788 that an English court extended such immunity to a municipality. In Russell v. Men of Devon, 100 Eng. Rep. 359 (1788), the court held that municipalities would not be liable for tort claims resulting from the municipalities' negligence. Thus, twelve years after the signing of the Declaration of Independence, all types of governmental entities in England fall within the protection of common law governmental immunity.
Massachusetts was the first state to recognize the existence of common law governmental immunity applying to a insulate a county government from tort liability. In Riddle v. The Proprietors of the Locks & Canals on the Merrimack River, 7 Mass. Rep. 169 (1810). Similar protection from tort liability was extended to municipalities in Mower v. In habitants of Leicester, 9 Mass. Rep. 247 (1812). In neither case did the court explain the evolution of the American common law to embrace this principle since it was unaddressed by English law at the time the United States gained its independence. Instead, both decisions relied on Russell as authority for theproposition that Massachusetts common law embraced such governmental protection. In other words, a state court looked to another country's existing law for guidance concerning the limitations of tort immunity as to municipalities.
Adam's Rib And The Creation Of Common Law Governmental Immunity in Texas
". . . the Lord formed the man from the dust of the ground and breathed into his nostrils the breath of life, and the man became a living being." Genesis 2:7 (NIV).
". . . that no State can be sued in her own courts without her consent, and then only in the manner indicated by that consent." Hosner v. De Young, 1 Tex. 764, 769 (1847).
The Texas Supreme Court in Hosner wrapped Texas governmental entities in protection from their tortuous conduct without citation to authorities or discussion of why it was so. The Massachusetts court could be criticized for relying on another country's law for authority to support that state's position on a principle of the law. However, at least it explained itself. Compared to Riddle or Mower, Hosner states the law much as a parent who says, "Why? Because I say so, that's why!"
The fact that governmental immunity exists goes unquestioned by the courts. The author is unable to find an opinion critical of the Hosner's lack of basis to justify the existence of immunity in Texas. It just is accepted as so.
Another aspect of sovereign immunity that became part of Texas law was that a potential claimant had to petition the legislature by the use of a private bill for permission to sue the state. Suit could be brought after such permission was granted. Courts reviewed cases brought after such private bills were granted by the legislature without considering the private bills constitutionality. State v. Hale, 136 Tex. 29, 34, 146 S.W.2d 731, 735 (1941).
The fact that the legislature granted the right to sue the state did not change the fact that common law governmental immunity negated the doctrine of respondeat superior as to the state.
For example, in Texas Highway Dept. v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949), Texas Highway Department employees were burning grass along a highway adjoining a field Weber had leased for hay production. The hay was almost ready for harvest when the fire got out of control as a result of the workers' negligence and destroyed Weber's crop.
Weber petitioned the legislature for permission to sue to recover his damages. The legislature granted permission to sue and Weber brought suit against the Texas Highway Department. The trial court, in a bench trial, found that Weber had suffered $6,500.00 as damages and that the damages had been caused by the negligent acts of a state employee. The trial court also found that there had been no taking of property within the meaning of article I, section 17 of the Texas Constitution. The trial court rendered judgment for the state since the damages were caused by negligence. Weber appealed to the Galveston Court of Appeals which reversed and rendered judgment in Weber's favor for the $6,500.00.
The Texas Supreme Court reversed the court of appeals and affirmed the trial court. The Court stated:
Under the facts of this case, the cause of action is simply one sounding in tort. The Highway Department employees were engaged in the maintenance of the highway at the time they set the fire that caused the damage to (Weber's) hay crop. They were engaged in the discharge of a mandatory, governmental duty. . . . It is true, and unfortunately so, that the respondent has suffered damage to his property. One's normal reaction is that he should be compensated therefor. On the other hand, the doctrine of non-suability of the state is grounded upon sound public policy. If the state were suable and liable for every tortuous act of its agents, servants, and employees committed in the performance of their official duties, there wold result a serious impairment of the public service and the necessary administrative functions of government would be hampered. Id., at pages 72-71.
Here, the court noted the unfairness of the situation but justified the act (failure to abrogate or modify the immunity) with verbiage reminiscent of present- day language used to argue for tort reform.
Whether Hosner was well reasoned does not change the fact that governmental immunity became part of Texas law.
The Importance Of The Distinction Between Proprietary Activities And Governmental Functions
An examination of the history of governmental immunity in this state and country reveals that a distinction has been made in allowing immunity for negligent acts arising out of the performance of a proprietary or business activity as opposed to negligent acts arising out of the performance of a purely governmental function. For example, the court's decision in Weber turned on the fact that:
- the employees' negligence occurred while performing a governmental function; and
- the state could not be liable for negligence in the performance of its governmental functions. Weber, 147 Tex. 628, 219 S.W.2d at 71-72.
Such types of distinctions routinely arise in cases involving municipalities. However, does the distinction really matter?
Governmental versus proprietary distinctions and state/county governmental immunity.
Actually, any discussion concerning governmental versus proprietary distinctions ends quickly if the governmental entity is a non-municipality. It would seem that the Texas Supreme Court in Weber is saying that there is the possibility that the state could be liable for proprietary activities. However, it had been established nine years earlier in State v. Brannan, 111 S.W.2d 347 (Tex. Civ. App.--Waco 1937, writ ref'd), that any activities that the state engages in, as a matter of law, is governmental in nature.
Brannan dealt with a drowning death in Jefferson Davis State Park. The trial court awarded $3,274.15. The state appealed on the ground that sovereign immunity prevented it from being liable for the tortuous acts of its employees. The question before the court of appeals was whether operating a park was a proprietary activity that could allow the state to be liable. There was no question that a city could be liable in such a situation. For example, in City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (Tex. Comm'n App. 1928, opinion adopted), the court held that a city's operation of a park was a proprietary activity. Id. at 499. The plaintiffs/appellees' position in Brannan was that operation of a park was a proprietary activity regardless of which level of government operated the park.
The Waco court of appeals held that the state could not be liable because its operation of the park was a governmental, not proprietary, function. Brannan, 111 S.W.2d at 348. In fact, any activity that the state engaged in was a governmental function by definition. Id. The court explained its rational to classify the same activity as governmental for the state but proprietary for a city. Its basis for the distinction was:
(The state) is inherently and exclusively sovereign and must necessarily act as such at all times and in all capacities. . . . On the other hand, a municipal corporation may act in a dual capacity. It may carry on governmental functions as an agency of the state, in which event it share's the state's immunity . . . or it may engage in proprietary or business activities of peculiar interest to itself and its inhabitants and not as an agent of the state . . . and is not immune. Id.
As in may cases, the court in Brannan acknowledges an unfairness to the individual in such a situation. However, the court does not mention that there might be an unfairness to the distinction as to the city. While this was an opinion of the Waco Court of Appeals, writ of error was refused.
Governmental Versus Proprietary Distinctions and Municipality Governmental Immunity
As noted earlier in Branch and Brannan, cities could be liable for activities that other governmental entities could not. This was not unique to Texas. Virtually all other states had the same distinction applying to municipalities. The problem was that the court's were still required to decide which activities were governmental and which were proprietary. The results in some states were sometimes different from other states. For example, while operating a park is a proprietary activity for a city in Texas, it was a governmental function in Alabama. Jones v. City of Birmingham, 284 Ala. 276, 224 So.2d 632 (1969).
The following are some activities that are governmental in nature:
- operation of police departments;
- operation of fire departments;
- operation of hospitals;
- operation of sanitation, including sewer systems; and
- operation of traffic controls (traffic lights, stop signs, etc...);
The following are some activities that are proprietary in nature:
- construction and maintenance of city streets, including warning devices at road construction sites; Lebohm v. Galveston, 154 Tex. 192, 275 S.W.2d 951 (1955); City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (Tex. Comm'n App. 1928, opinion adopted);
- operation of park; City of Waco v. Branch, 117 Tex. 394, 5 S.W.2d 498 (Tex. Comm'n App. 1928, opinion adopted);
- operation of public utilities; Crosbyton v. Texas-New Mexico Utils. Co., 157 S.W.2d 418 (Tex. Civ. App.--Amarillo 1941, writ ref'd w.o.m.);
- operation of municipal cemeteries; Gladewater v. Pike, 708 S.W.2d 524 (Tex. App.--Texarkana 1986), aff'd in part, rev'd in part, City of Gladewater v. Pike, 727 S.W.2d 514 (Tex. 1987)(reversed as to the amount of exemplary damages, not as to whether it was a proprietary function);
- storm sewers; Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992 (1949); Pontarelli Trust v. City of McAllen, 465 S.W.2d 804 (Tex. Civ. App.--Corpus Christi 1971, no writ); and
- operation of port facilities; Guillory v. Port of Houston Auth., 845 S.W.2d 812 (Tex. 1993).
What is clear is that this common law doctrine has been modified by the courts over time.
Comes Into Being the Texas Tort Claims Act
It was in 1969 that man first walked on the moon. It was also this year that the TTCA finally passed and was signed into law. Governmental immunity, albeit in a limited form, did not "go quietly into the night." Articles argued whether it was the courts or the legislature who should pierce this doctrine. Joe Greenhill, Should Governmental Immunity for Torts Be Re-examined, and, If So, by Whom?, Tex. Bar J., Dec. 1968, at 1036; Jack Banner, Governmental Immunity, Trial Lawyers Forum, Nov.-Dec. 1968, at 12. Organizations such as the Texas Municipal League argued for no changes, unless it was to lessen municipalities' exposure. The State Police and Firemen's Association argued for a modification so as to eliminate law enforcement officers and firemen from having to carry insurance to provide liability coverage.
The arguments against relaxing the standards were primarily:
- opening a floodgate of litigation; and
- increased costs to governmental entities.
The rejoinder to the "flood" arguments was that such a flood did not occur when the Federal Tort Claims Act was enacted. The costs aspect has been shown to be overblown in light of the availability of liability insurance.
The continuing argument for abrogating the doctrine was the unfairness of the result. The state would have to compensate you for taking your land but would not have to compensate you for taking your living or your life.
Trial Runs At Legislative Action
The Sixtieth Legislature
In 1967, the Sixtieth Legislature considered House Bill 728, a Texas Tort Claims Act. It was introduced by Temple Dickson of Sweetwater and DeWitt Hale of Corpus Christi. Its key components were:
- all governmental entities would be liable for tort liability as would apply to a private individual in like circumstances;
- the provision would apply to cities, counties, school districts, junior college districts, and hospital districts for motor vehicle accidents;
- the abolishment of the distinction between governmental functions and proprietary activities;
- no liability for emergency vehicles operating within appropriate laws;
- limitations of damages to $1000,000 per person, $300,000 per occurrence;
- preservation of liability for certain officials carrying out their discretionary duties; and
- if a unit of government carried liability insurance, the plaintiffs could proceed directly against the insurance company instead of the unit of government.
This bill was passed by the House but did not get out of the Senate committee. However, it set the stage for consideration of a same or similar bill by the Sixty-first Legislature.
The Years Between the Sixtieth and Sixty-First Legislatures
The Senate of the Sixtieth Legislature authorized an interim committee to study the question of legislative action in this area. The chairman was Senator Oscar Mauzy. Other members of the committee were Senators Jim Bates, Doc Blanchard, Tom Creighton, and Murray Watson. Their task was to hold hearings and report back to the next legislative session.
Then Speaker of the House appointed a House committee to conduct hearings similar to the Senate hearings. The chairman was Temple Dickson. The other members were Representatives William Braecklein, Bill Finck, C.L. Ray, Bill Swanson, as well as Jim Kronzer (representing plaintiffs' attorneys), Jim Watson (representing defendants' attorneys), William Olson (City Attorney of Houston), and Claude Webster (representing insurance companies).
Both the Texas Trial Lawyers Association and the Texas Association of Defense Council testified to the committees in support of some type of modification of the doctrine. The State Association of Police and Fireman also favored modification as mentioned earlier. The Houston Post, The Dallas News, Austin American, and Corpus Christi Caller-Times editorialized in favor of the earlier bill as well as the continued efforts to relax the doctrine.
Opposition came from school districts, counties, and cities. The cities' view was well presented by the Texas Municipal League as well as certain city attorneys who testified to the committees. Joe Reynolds testified in behalf of Houston area school districts against relaxing the doctrine. There was some consensus among the opposition that any relaxation should be as to motor vehicles only.
The Sixty-First Legislature
The Sixty-first Legislature first considered House Bill 117. It was introduced by Temple Dickson. This was a bill that was destined to be passed. Both former Speaker of the House, now Lieutenant Governor/President of the Senate Ben Barnes and Speaker of the House Gus Mutscher were supportive of legislation modifying the doctrine.
House Bill 117 was passed by the legislature in April, 1969. Its passage had been preceded by intense negotiations between legislators and representatives of various governmental and industry groups. A trophy acquired during these negotiations is attached to this paper in the appendix.
House Bill 117 was vetoed by Governor Preston Smith.
The Texas Tort Claims Act Becomes Law
As noted, House Bill 117 was vetoed by Governor Smith. Temple Dickson immediately introduced House Bill 456. The House passed it on May 13, 1969. the Senate passed it on May 14, 1969. Governor Smith signed it on May 22, 1969. the effective date of the TTCA was January 1, 1970.
House Bill 456 was fairly comprehensive as to its provisions. House Bill 456:
- preserved proprietary activity/governmental function distinctions;
- allowed for liability for negligence resulting from the use of motor driven equipment (with some exceptions);
- allowed for liability for death or personal injuries resulting from the use or some condition of tangible property if a private person would be liable for the same type of use or condition of the property;
- did away with securing legislative permission to bring suit;
- establishing venue in the county in which the cause of action arose or a part thereof arose;
- exempting certain areas of potential liability such as National Guard activities, failure to perform an act not required by law, and act or omission in carrying out a lawful court order;
- establishing notice provisions to the governmental entity;
- establishing limits of liability - $100,000 per person, $300,000 per occurrence;
- preventing governmental entities from requiring employees to purchase liability insurance if the entity already has liability insurance;
- making the existence of liability insurance non-discoverable.
House Bill 456 became article 6252-19 of the Texas Civil Statutes. Article 6252-19 was repealed in 1985 and enacted as Chapter 101 of the Texas Civil Practice and Remedies Code.
Changes Since Original Enactment of the Texas Tort Claims Act
While it has been twenty-seven years since the enactment of the TTCA, the terrain in this area has not been completely plowed. One thing must be remembered, COMMON LAW GOVERNMENTAL IMMUNITY STILL EXISTS! If its not covered by the TTCA, its still falls within common law protection. Guillory, 845 S.W.2d at 814.
Texas Constitution article XI, section 13
In 1987, the Texas Constitution was amended by the voters of Texas in the area of classification of municipal functions. The Texas Constitution now states:
- Notwithstanding any other provision of this constitution, the legislature may by law define for all purposes those functions of a municipality that are to be considered governmental and those that are proprietary, including reclassifying a function's classification assigned under prior statute or common law.
- This section applies to laws enacted by the 70th Legislature, Regular Session, 1987, and to all subsequent regular or special sessions of the legislature.
Tex. Const. art. XI, § 13. The amendment has profound effects that will be discussed shortly.
Changes to the TTCA
The TTCA has been amended on several occasions. Some of the significant changes are detailed.
Reclassification of municipalities activities (Tex. Civ. Prac. & Rem. Code §101.0215)
In 1987, the legislature added section 101.0215 to the TTCA. This section sets out which activities were considered governmental functions for purposes of establishing governmental activities subject to the TTCA. There are thirty-three functions delineated as well as three specifically delineated as proprietary activities. Several activities that had been court-defined as proprietary were reclassified by the legislature as governmental. Specifically:
- street construction and design;
- bridge construction and maintenance and street maintenance;
- cemeteries and cemetery care;
- storm sewers;
- parks and zoos;
- transportation systems;
- recreational facilities;
- vehicle maintenance. Tex. Civ. Prac. & Rem. Code § 101.0215 (Vernon Supp.1996).
Limitations on Amounts of Liability
The dollar limits on liability have changed since the TTCA was originally enacted as follows:
- state governments - $250,00 per person, $500,000 per occurrence for personal injuries and $100,000 for injury or destruction of property;
- local governments (counties, school districts, etc...) - $100,00 per person, $300,000 per occurrence for personal injuries and $100,000 for injury or destruction of property;
- municipalities - $250,00 per person, $500,000 per occurrence for personal injuries and $100,000 for injury or destruction of property; and
- volunteer fire departments - $100,00 per person, $300,000 per occurrence for personal injuries and $100,000 for injury or destruction of property; (Tex. Civ. Prac. & Rem. Code §101.023)
Type of Court to Hear Case
The TTCA now requires suit to be brought in state court in the county in which the cause of action or part of the cause of action arises. The TTCA had previously put venue in the county without specifying which type of court should hear the case. (Tex. Civ. Prac. & Rem. Code §101.102)
The Interplay Between the Amended Texas Constitution and the TTCA
The impact of the constitutional amendment has already been seen. For example, in City of San Antonio v. Winkenhower, 875 S.W.2d 388 (Tex. App.--San Antonio 1994, writ denied), the plaintiff was injured as a result of his vehicle striking a pothole in a city street. Unquestionably, street maintenance had been considered a proprietary activity prior to the legislature reclassifying street maintenance as a governmental function. Id. at 391.
However, the change in the TTCA, couple with the change to the constitution rendered street maintenance a governmental function. Consequently, the plaintiff was limited towhat the TTCA would allow (i.e., limited waiver of immunity) as opposed to no immunity from suit for conducting a proprietary activity.
The result of the reclassification of activities is that the common law has been drastically changed by the legislature. However, there would be no "open courts" argument since such reclassification is allowed by the constitution.
In Which Types of Cases has Immunity Been Waived?
The practitioner is left with the fact that certain types of cases can be maintained under the TTCA. One area, is relatively straight-forward. The other area, use of tangible property, can be a bit nebulous at times.
Motor Driven-Equipment Or Vehicle
The TTCA waives governmental immunity for damages arising from personal injuries or property damages caused by negligence in the use of motor-driven equipment. or vehicles. Tex. Civ. Prac. & Rem. Code § 101.021 (Vernon 1986). This is fairly obvious as to what is allowed. The two main points to remember are:
- The governmental employee must be using the equipment or vehicle; City of San Antonio v. Winkenhower, 875 S.W.2d 388 (Tex. App.--San Antonio 1994, writ denied); and
- the equipment or vehicle must be the instrument used to cause the injury, not simply the site where an act occurs; Pierson v. Houston Indep. School Dist., 698 S.W.2d 377 (Tex. App.--Houston [14th Dist.] 1985, ).
In Winkenhower, it was the plaintiff who was injured as a result of the vehicle he was driving striking a pothole in a city street. His argument was that the TTCA did not require the governmental employee to be using the vehicle. Instead, the TTCA waived immunity if a vehicle was involved regardless of who was using the vehicle. The court of appeals had little problem rejecting this argument in light of the history of immunity in Texas. Winkenhower. 875 S.W.2d at 391.
In Pierson, the plaintiff was injured from an explosion on a homecoming float. The explosion was caused when a smoke device was ignited. The explosion was not caused by a school district employee. The court of appeals held that the school district was immune from liability because the accident did not fall within the waivers of the TTCA. The court stated, "The accident was caused when appellant Pierson ignited the smoke device with a cigarette lighter. Thus the trailer was merely the site, not the cause of the accident." Pierson, 698 S.W.2d at 380.
Injury Or Death Caused By The Condition Or Use Of Tangible Property
The TTCA also waives immunity if a personal injury or death is caused by a condition or use of tangible property. Both areas could be the subject of their own papers. Tex. Civ. Prac. & Rem. Code § 101.021 (Vernon 1986). Consequently, this paper will give the high points to guide the practitioner along.
The primary point to remember about governmental entities and property defects is that the TTCA delineates the duty owed. As to the duty owed for a premise defect, "the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private, property, unless the claimant pays for the use of the premises." Tex. Civ. Prac. & Rem. Code § 101.022(a) (Vernon 1986).To establish liability a licensee must prove that:
- a condition of the premises created an unreasonable risk of harm to the licensee;
- the owner actually knew of the condition;
- the licensee did not actually know of the condition;
- the owner failed to exercise ordinary care to protect the licensee from danger; and
- the owner's failure was a proximate cause of injury to the licensee. State Dept. of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
This is the test to apply. The plaintiff has the burden of proof on all elements, including showing that he did not have knowledge of the condition. Id. at 239.
The duty owed in situations is not limited if the defect is a special defect. Tex. Civ. Prac. & Rem. Code § 101.022(b) (Vernon 1986). A special defect "present an unexpected and unusual danger to ordinary users of roadways." Payne. 838 S.W.2d at 238. In other words, construction, excavations, et cetera. The governmental unit has a duty to warn of these dangers. Id.
Is There Anything Left to Argue About?
It would seem that there is nothing left to talk about concerning common law governmental immunity. However, could the Texas Supreme Court decide to eliminate governmental immunity altogether?
The Texas Supreme Court continues to state that "we have repeatedly held that 'the waiver of governmental immunity is a matter addressed to the Legislature.'" Guillory, 845 S.W.2d at 813 (quoting Lowe v. Texas Tech. Univ., 540 S.W.2d 297, 298 (Tex. 1976)). The argument is that there are conflicting policies that make the legislature better suited to accommodate the policies. Guillory, 845 S.W.2d at 813-14.
This pattern of non-activity is in conflict with the concept of the common law. The concept of the common law is that it is constantly evolving. "Indeed, the genius of the common law rests in its ability to change, to recognize when a timeworn rule no longer serves the needs of society, and to modify the rule accordingly." Gutierrez v. Collins, 589 S.W.2d 312, 317 (Tex. 1979). Does a timeworn rule become less timeworn because the legislature addresses it in part? Does a timeworn rule become less timeworn because it is slightly unfair as opposed to wholly unfair?
Other states have faced the issue of waiting for legislative action. Common law governmental immunity existed in South Carolina until 1984. With historic roots and distinctions much like Texas, the South Carolina Supreme Court wrote about waiting for legislative action, "'If the law is to be changed, such change should come from the legislature.'. . . This reasoning is curious in light of the unchallenged fact that the doctrine of sovereign immunity is court-created. It places upon the legislature, exclusively, the burden to correct an injustice not of legislative making." Andrews v. Batson, 285 S.C. 243, 256, 329 S.E.2d 741, 747 (1985) ( Chandler, Justice, concurring).
Unquestionably, the Texas legislature has acted to relax the doctrine of governmental immunity. However, the basic unfairness written about in so many opinions remains, albeit less stringent.
The doctrine of common law governmental immunity still exists regardless of the existence of the Texas Tort Claims Act. The doctrine retains much of the vestiges it has always had without any indications that it will change in the future.