Acting en banc, the Houston [1st] Court of Appeals has held that the City of Houston does not have immunity from a lawsuit brought by a citizen who was injured when a city councilmember riding in a golf cart accidentally hit the gas pedal and ran into him.
City of Houston v. John Anthony Branch (No. 01-21-00255-CV; issued January 30, 2024) has a bit of a weird fact pattern that begins at a parade (not city-sponsored) to celebrate the 125th anniversary of Booker T. Washington High School in Houston. The chair of the school’s alumni association, Gibbs, who also worked for City Councilmember Michael Kubosh, arranged to drive Kubosh in the parade in Gibbs’s privately-owned golf cart. Although there is some disagreement about the facts, Gibbs testified that he drove the cart to the correct position in the parade lineup, set the parking brake, and got out. Plaintiff Branch then walked over to the front of the cart and leaned over the windshield, with both feet under the cart. As Branch was standing there, Kubosh, who was sitting on the passenger side, moved to the driver’s side, at which point the cart lurched forward. Though at the scene plaintiff indicated that he was “OK,” he subsequently sued the city, alleging negligence. The city filed a motion for summary judgment, asserting that it was immune under the Texas Tort Claims Act (Ch. 101, CPRC). The trial court denied the motion. The city appealed.
A split court of appeals affirmed. At issue was whether the the TCA’s waiver of governmental immunity “from claims involving personal injury by the negligent operation or use of a motor-driven vehicle by [the city’s] employee, if the employee would be liable to [plaintiff] under Texas law” (citing § 101.021(1), CPRC). The city argued that the waiver did not apply because the golf cart was privately owned, Councilmember Kubosh was not operating the golf cart when the accident occurred, and the golf cart was sitting in a “holding area” and not in operation when the accident occurred. Plaintiff countered that it didn’t matter who owned the golf cart but that Kubosh hit the gas pedal when he shifted to the driver’s side, releasing the parking break and causing the cart to “run over him.” He asserted that the evidence thus raised a fact issue that defeated the city’s summary judgment motion.
The majority agreed. It relief on SCOTX’s decision in PHI, Inc. v. Tex. Juv. Just. Dep’t, 593 S.W.3d 296 (Tex. 2019), which held that a government employee’s failure to set an emergency brake on an unoccupied passenger van, which then rolled downhill and crashed into PHI’s helicopter, qualified as the operation or use of a vehicle under the TCA. Whereas in PHI the “final act” of operating the van was setting the parking brake, the majority reasoned, the councilmember hitting the gas pedal was the “first act” of driving the cart in this case, thus “fit[ing] within the definition of ‘use’ as meaning ‘to put or bring’ the motor vehicle ‘into action or service’” (citation omitted). Whether the councilmember intended to hit the pedal or not (there was no evidence that he intended anything, only that he may have hit it when he moved) is irrelevant to the statute, which contains no intent requirement. Similarly, the majority held that whether the golf cart was privately or publicly owned was irrelevant because the statute doesn’t specify one way or the other.
Justice Rivas-Molloy, joined by Justice Goodman, dissented. She argued that plaintiff presented no evidence that the councilmember was operating the vehicle when the accident occurred. Disagreeing with the majority’s reliance on PHI, the dissent argued that PHI was distinguishable because neither party contested whether the government employee who did not set the parking brake had in fact been operating the vehicle. Here, she asserts, the evidence shows that Gibbs had parked the vehicle, set the brake, and left it in a holding area. The councilmember, who was sitting in the vehicle as a holding area prior to the start of the parade, merely leaned over to talk to someone, which does not rise to the level of “operation or use.” In short, PHI involved an employee driver who negligently parked a vehicle the employee had driven. This case involves nothing of the sort. Moreover, plaintiff’s claim that the councilmember “hit the pedal” is a far cry from evidence that the councilmember pressed the pedal and started the vehicle in motion. Consequently, there is no evidence that the councilmember “initiated the act of driving” in the first place. The dissent goes on to discuss the plaintiff’s alternative claim that the city waived immunity under the “tangible property” waiver, which it argued does not apply because the city did not use the tangible property.
This seems to us to be a very close case, indeed. A private golf cart, a private parade, a passenger who doesn’t appear to operated the golf cart in anything close to the sense in which a person drives a vehicle, do not add up to a compelling fact pattern. Perhaps the majority is right that a fact issue exists about whether the councilmember “hit” the pedal, but that doesn’t really seem to neatly square with PHI, as the dissent argued. We’ll see if the city takes this any further.
