The Texas Supreme Court will hear a case brought by landowners against TxDOT for damages resulting from the removal of trees and brush from their property.

Texas Department of Transportation v. Mark Self and Birgit Self (No. 22-0585; 02-21-00240-CV; delivered April 28, 2022) arose from plaintiffs’ claims that TxDOT and its contractor were negligent and committed a trespass when the contractor removed trees on their property outside the right-of-way. They further asserted an inverse condemnation claim. TxDOT filed a plea to the jurisdiction, arguing that plaintiffs had failed to establish a waiver of governmental immunity under the Texas Tort Claims Act (TTCA) and that their inverse condemnation claim likewise failed. The trial court denied the plea.

The Fort Worth Court of Appeals sustained TxDOT’s plea in part and denied it in part. First, the court determined that the trial court erred in finding that TxDOT exercised sufficient control over the motor-drive equipment the contractor used to remove the trees (the use of a motor-driven vehicle or motor-driven equipment necessary to a waiver of immunity under the TTCA) “to mean that TxDOT was operating or using that equipment.” However, the court concluded that the trial court “did not err by finding that a fact issue existed regarding whether the contractor was not an independent contractor but instead was a TxDOT employee.” As to plaintiffs’ inverse condemnation claim, the court sustained TxDOT’s plea on the basis that “the act that the [plaintiffs] relay on to support their inverse-condemnation claim was not intentional in the sense required to support such a claim.”

The issue before SCOTX, of course, is the court of appeals determination that a fact question existed as to whether the contractor’s employees were employees of TxDOT for purposes of the TTCA. For purposes of the TTCA, an employee means “a person, including an officer or agent, who is in the paid service of a governmental unit by competent authority.” § 101.001(2), CPRC. The definition excludes “an independent contractor, an agent or employee of an independent contractor, or a person who performs tasks the details of which the governmental unit does not have the legal right to control.” Id. As the court of appeals summarized, “[t]o qualify as an employee, the State must pay the person and exercise control over him” (citation omitted). The analysis then turns to the party who “has the right to control the progress, details, and methods of operations of the work” (citation omitted). The court looks to contractual agreements that assign control of the work or, in the absence of that, “evidence of actual control over the manner in which the work was performer” (citations omitted).

As the court of appeals pointed out, the TTCA’s “definition of ‘employee’ does not require that a governmental unit control every detail of a person’s work” (citations omitted). Citing a series of SCOTX and court of appeals’ precedents that analyzed the “control” issue in the premises liability context, the court of appeals honed in on a Houston [1st] Court of Appeals decision holding that “directing a contractor to clear a particular tract of land is sufficient control of the details of the contractor’s work to obviate the independent-contractor defense.” Rosenthal v. Grocers Supply Co., 981 S.W.2d 220, 222 (Tex. App.—Houston [Ist Dist.] 1998, no pet.). The court then pivoted to a federal court decision that distinguished between personal injury and property damage claims to impute a duty of control to a city that contracted with a demolition contractor when the subcontractor demolished a property owner’s home. Applying these precedents, the court of appeals held that the independent-contractor defense did not apply that that TxDOT assumed control of the work when its contract with the subcontractor specified certain details of which trees to be removed and the area from which the removal should occur.

TxDOT’s petition for review argues two points: (1) the court of appeals “improperly applied the duty of care owed by a general contractor that employs independent contractors for common law negligence and the Restatement (Second) of Torts to the definition of employee under 101.001(2),” and (2) “it failed to consider how section 5.001 of the Texas Civil Practice and Remedies Code precludes reliance on common law negligence cases and restatements of law when determining TTCA liability.” As to point 1, TxDOT argues that the common law and Restatement § 414 (1977) refer only “to a duty of care of a general contractor who hires an independent contractor in establishing liability under a claim for common law negligence” and simply don’t apply to the TTCA. The TTCA definition of “employee,” rather, must be met here, not whether TxDOT may be held liable for damages caused by its contractor’s employees. Additionally, TxDOT asserts, the court of appeals’ expansion of the TTCA definition of “employee” violates the black letter rule that “the extent of waiver of governmental immunity is a matter for the Legislature to determine” (citations omitted). The only immunity waived by the TTCA is for the negligence of a paid employee of the governmental entity in the operation or use of a motor-drive vehicle or motor-driven equipment.

TxDOT argues further that the court of appeals decision runs afoul of § 5.001, CPRC, which bars Texas courts from applying a rule of decision “inconsistent with the constitution or the laws of this state” or derived from the ALI’s Restatement of the Law. First, the court treated the case as governed by the common law of negligence, not the TTCA. Second, the court “erroneously relief on section 414” to enlarge the TTCA’s definition of a governmental employee.

The court of appeals’ decision seems ripe for reversal, in our view. Under its ruling, at least in the context of right-of-way maintenance, it allows every case in which a governmental entity contracts for tree and brush removal and tells the contractor where to cut or clear to defeat summary judgment. Put another way, the TTCA’s definition of “employee” will in many cases no longer be a question of law for the court decide by way of statutory construction, but a fact issue for the jury. This will draw governmental entities, funded of course by taxpayer dollars, far more deeply into litigation in precisely the way the TTCA is designed to avoid. We applaud SCOTX for accepting review and considering the potential ramifications of this decision.

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