LIABILITY UNDER THE TEXAS TORT CLAIMS ACT UNDER THE TEXAS TORT CLAIMS ACT By: Richard Evans Staff Attorney Texas Municipal League ... Community, neighborhood, or senior citizen centers;

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LIABILITY UNDER THE TEXAS TORT CLAIMS ACT

By:By:Richard EvansRichard EvansStaff AttorneyStaff Attorney

Texas Municipal League Texas Municipal League Intergovernmental Risk PoolIntergovernmental Risk Pool

The King Can Do No WrongThe King Can Do No Wrong

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Sovereign Immunity

Under common law, state and political Under common law, state and political subdivisions are not liable for subdivisions are not liable for tortstorts or their or their agents or officers involved in a agents or officers involved in a governmental functiongovernmental function..

Official Immunity

Under common law, public officials and public Under common law, public officials and public servants are immune from liability if:servants are immune from liability if:

1.1. They are performing a duty within the scope They are performing a duty within the scope of their duties;of their duties;

2.2. They are performing a discretionary duty; They are performing a discretionary duty; and,and,

3.3. They act in good faith.They act in good faith.

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NO IMMUNITY

TORTSSOVEREIGN IMMUNITY

General Rule: The State and its agencies, departments and

political subdivisions are not liable for the tortuous conduct of

their employees.

Breach of Contract

Federal Claims

Injunctions

Declaratory Judgments

Eminent Domain(Art. I, Sec. 17 of Tx. Const.)

Inverse Condemnation

Individuals

Election Contests

Annexation Proceedings

$

$

$Proprietary Functions

Proprietary GovernmentalNo Sovereign

Immunity Immune

Eminent Domain(Art. I, Sec. 17 of Tx. Const.)

TORTS

Breach of Contract

Federal Claims

Injunctions

$Declaratory Judgments

Property Functions

Annexation Proceedings

Election Contests

$

Individuals

Inverse Condemnation

$

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Tort Claims Act

Passed in 1969 by the Texas Legislature.Passed in 1969 by the Texas Legislature.Waives sovereign immunity for certain acts.Waives sovereign immunity for certain acts.Limits the amount of damages that can be Limits the amount of damages that can be recovered where immunity is waived.recovered where immunity is waived.

Proprietary(City’s Only)

Governmental

Immune

No Immunity

Tx. TORTClaims ActSec. 101.0211. Motor driven equipment2. Negligent use of tangible

property3. Condition of property

(Premise defect; BI)

$

$

$

TORTS

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Proprietary(City’s Only)

No Immunity

ExceptionTo Waiver by Sec. 101.021

See II COf Paper

Immunity

$

$

$Immunity

Plaintiff Loses

AlteredStandardsof CareAndLimitations:250/500/100

$

Proprietary(City’s Only)

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GOVERNMENTAL GOVERNMENTAL FUNCTIONSFUNCTIONS

Cont’d

§§ 101.0215. Liability of a Municipality101.0215. Liability of a Municipality

a)a) A municipality is liable A municipality is liable under this chapterunder this chapter for for damages arising from its governmental damages arising from its governmental functions, which are functions, which are those functions that are those functions that are enjoined on a municipality by law and are enjoined on a municipality by law and are given it by the state as part of the stategiven it by the state as part of the state’’s s sovereignty, to be exercised by the municipality sovereignty, to be exercised by the municipality in the interest of the general publicin the interest of the general public, including , including but not limited to:but not limited to:

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Cont’d.

1)1) Police and fire protection and control;Police and fire protection and control;2)2) Health and sanitation services;Health and sanitation services;3)3) Street construction and design;Street construction and design;4)4) Bridge construction and maintenance and street Bridge construction and maintenance and street

maintenance;maintenance;5)5) Cemeteries and cemetery care;Cemeteries and cemetery care;6)6) Garbage and solid waste removal, collection, Garbage and solid waste removal, collection,

and disposal;and disposal;7)7) Establishment and maintenance of jails;Establishment and maintenance of jails;

Cont’d.

8)8) Hospitals;Hospitals;9)9) Sanitary and storm sewers;Sanitary and storm sewers;10)10) Airports;Airports;11)11) Waterworks;Waterworks;12)12) Repair garages;Repair garages;13)13) Parks and zoos;Parks and zoos;14)14) Museums;Museums;15)15) Libraries and library maintenance;Libraries and library maintenance;16)16) Civic, convention centers, or coliseums;Civic, convention centers, or coliseums;

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Cont’d.

17)17) Community, neighborhood, or senior citizen Community, neighborhood, or senior citizen centers;centers;

18)18) Operation of emergency ambulance service;Operation of emergency ambulance service;19)19) Dams and reservoirs;Dams and reservoirs;20)20) Warning signals;Warning signals;21)21) Regulation of traffic;Regulation of traffic;22)22) Transportation systems;Transportation systems;23)23) Recreational facilities, including but not limited Recreational facilities, including but not limited

to swimming pools, beaches, and marinas;to swimming pools, beaches, and marinas;

Cont’d.

24)24) Vehicle and motor driven equipment maintenance;Vehicle and motor driven equipment maintenance;25)25) Parking facilities;Parking facilities;26)26) Tax collection;Tax collection;27)27) Firework displays;Firework displays;28)28) Building codes and inspection;Building codes and inspection;29)29) Zoning, planning, and plat approval;Zoning, planning, and plat approval;30)30) Engineering functions;Engineering functions;31)31) Maintenance of traffic signals, signs, and hazardsMaintenance of traffic signals, signs, and hazards32)32) Water and sewer service; Water and sewer service; 33)33) Animal control;Animal control;

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Cont’d.

34)34) Community development or urban Community development or urban renewal activities;renewal activities;

35)35) Latchkey programs conducted exclusively Latchkey programs conducted exclusively on a school campus; andon a school campus; and

36)36) Enforcement of land use restrictions.Enforcement of land use restrictions.

PROPRIETARY FUNCTIONSPROPRIETARY FUNCTIONS(City(City’’s Only)s Only)

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Cont’d.

b.b. This chapter does not applyThis chapter does not apply to the liability of to the liability of a municipality for damages arising from is a municipality for damages arising from is proprietary functionsproprietary functions, which are , which are those those functions that a municipality functions that a municipality may, in its may, in its discretion, perform indiscretion, perform in the interest of the the interest of the inhabitants of the municipalityinhabitants of the municipality, including but , including but not limited to:not limited to:

1)1) The operation and maintenance of a public The operation and maintenance of a public utility;utility;

Cont’d.

2)2) Amusements owned and operated by the Amusements owned and operated by the municipality; andmunicipality; and

3)3) Any activity that is abnormally dangerous or Any activity that is abnormally dangerous or ultrahazardous.ultrahazardous.

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THE WAIVER OF THE WAIVER OF IMMUNITYIMMUNITY

Waiver of Sovereign Immunity for Governmental Functions

§101.021 of the ActOperation or use of a motor-driven vehicle or motor-driven equipmentCondition or use of a tangible personal property

Condition or use of real propertyOnly if employee personally liable under Texas law

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Damages Recoverable

MotorMotor--driven vehicle or equipment:driven vehicle or equipment:1.1. property damagesproperty damages2.2. personal injurypersonal injury3.3. deathdeath

Tangible personal property or real property

1. personal injury2. death

EXCEPTIONS TO THE EXCEPTIONS TO THE WAIVER OF IMMUNITYWAIVER OF IMMUNITY

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Cont’d

§§ 101.052. Legislative101.052. Legislative

This chapter does not apply to a claim based on an This chapter does not apply to a claim based on an act or omission of the legislature or a member of act or omission of the legislature or a member of the legislature acting in his official capacity or to the legislature acting in his official capacity or to the legislative functions of a governmental unit.the legislative functions of a governmental unit.

Cont’d

§§ 101.053. Judicial101.053. Judicial

(a)(a) This chapter does not apply to a claim based on an This chapter does not apply to a claim based on an act or omission of a court of this state or any act or omission of a court of this state or any member of a court of this state acting in his official member of a court of this state acting in his official capacity.capacity.

(b)(b) This chapter does not apply to a claim based on an This chapter does not apply to a claim based on an act or omission of an employee in the execution of a act or omission of an employee in the execution of a lawful order of any court.lawful order of any court.

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Cont’d

§§ 101.055. Certain Governmental Functions101.055. Certain Governmental Functions

This chapter does not apply to a claim arising:This chapter does not apply to a claim arising:

1)1) in connection with the in connection with the assessment or collection of assessment or collection of taxestaxes by a governmental unit;by a governmental unit;

2)2) from the action of an employee while from the action of an employee while responding to an responding to an emergencyemergency call or reacting to an emergency situation call or reacting to an emergency situation if the action is in compliance with the laws and if the action is in compliance with the laws and ordinance applicable to emergency action, or in the ordinance applicable to emergency action, or in the absence of such a law or ordinance, absence of such a law or ordinance, if the action is not if the action is not taken with conscious indifference or reckless taken with conscious indifference or reckless disregarddisregard of the safety of others; orof the safety of others; or

Cont’d.

3)3) from the failure to provide or thefrom the failure to provide or the method method of providing police or fire protection.of providing police or fire protection.

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Cont’d

§§ 101.056. Discretionary Powers101.056. Discretionary Powers

This chapter does not apply to a claim based on:This chapter does not apply to a claim based on:

1)1) the failure of a governmental unit to perform an act that the failure of a governmental unit to perform an act that the unit is not required by law to perform; orthe unit is not required by law to perform; or

2)2) a governmental unita governmental unit’’s decision not to perform an act or s decision not to perform an act or on its failure to make a decision on the performance or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the nonperformance of an act if the law leaves the performance or nonperformance of the act to the performance or nonperformance of the act to the discretion of the governmental unit.discretion of the governmental unit.

Cont’d

§§ 101.057.101.057. Civil Disobedience and Certain Civil Disobedience and Certain Intentional TortsIntentional Torts

This chapter does not apply to a claim:This chapter does not apply to a claim:

1)1) based on an injury or death connected with any act or based on an injury or death connected with any act or omission arising out of civil disobedience, riot, omission arising out of civil disobedience, riot, insurrection, or rebellion; orinsurrection, or rebellion; or

2)2) arising out of assault, batter, false imprisonment, or arising out of assault, batter, false imprisonment, or anyany other other intentional tortintentional tort, including a tort involving , including a tort involving disciplinary action by school authorities. disciplinary action by school authorities.

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Cont’d

§§ 101.059. Attractive Nuisances101.059. Attractive Nuisances

This chapter does not apply to a claim based on This chapter does not apply to a claim based on the theory of attractive nuisance.the theory of attractive nuisance.

Cont’d

§§ 101.060. Traffic and Road Control Devices101.060. Traffic and Road Control Devices

(a)(a) This chapter does not apply to a claim arising from:This chapter does not apply to a claim arising from:

1)1) the failure of a governmental unit initially to place a the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device;traffic or road sign, signal, or warning device;

2)2) the absence, condition, or malfunction of a traffic or road the absence, condition, or malfunction of a traffic or road sign, signal, or warning device if within a reasonable sign, signal, or warning device if within a reasonable time after notice; ortime after notice; or

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Cont’d.

3)3) the removal or destruction of a traffic or the removal or destruction of a traffic or road sign, signal, or warning device by a road sign, signal, or warning device by a third person unless the governmental unit third person unless the governmental unit fails to correct the removal or destruction fails to correct the removal or destruction within a reasonable time after actual within a reasonable time after actual notice.notice.

Cont’d

§§ 101.062. 9101.062. 9--11--1 Emergency Service1 Emergency Service

b)b) This chapter applies to a claim against This chapter applies to a claim against apublicapublicagency that arises from an action of an agency that arises from an action of an employee of the public agency or a volunteer employee of the public agency or a volunteer under direction of the public agency and that under direction of the public agency and that involves providing 9involves providing 9--11--1 service or 1 service or responding to a 9responding to a 9--11--1 emergency call 1 emergency call only if only if the action violates a statute or ordinancethe action violates a statute or ordinanceapplicable to the action.applicable to the action.

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Cont’d

§§ 101.066. Computer Date Failure101.066. Computer Date Failure

This chapter does not apply to a claim for property This chapter does not apply to a claim for property damage caused by a computer date failure as damage caused by a computer date failure as described by Section 147.003.described by Section 147.003.

ALTERED STANDARDS AND ALTERED STANDARDS AND OTHER LIMITATIONSOTHER LIMITATIONS

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Cont’d

§§ 101.101. Notice101.101. Notice

a)a) A governmental unit is entitled to receive noticeA governmental unit is entitled to receive notice of a of a claim against it under this chapter not claim against it under this chapter not later than six later than six monthsmonths after the day that the incident giving rise to the after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:claim occurred. The notice must reasonably describe:

(1)(1) the damage or injury claimed;the damage or injury claimed;(2)(2) the time and place of the incident; andthe time and place of the incident; and(3)(3) the incident.the incident.

Cont’d

§§ 101.022.101.022. Duty Owed: Premise and Special Duty Owed: Premise and Special DefectsDefects

a)a) If a claim arises from a If a claim arises from a premise defectpremise defect, the , the governmental unit owes to the claimant only the governmental unit owes to the claimant only the duty that a private person owes to a licenseduty that a private person owes to a license on on private property, unless the claimant pays for the private property, unless the claimant pays for the use of the premises.use of the premises.

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Cont’d.

b)b) The The limitation of dutylimitation of duty in this section in this section does does not applynot apply to the duty to warn of special to the duty to warn of special defects such as excavations or obstructions defects such as excavations or obstructions on highways, roads or streets.on highways, roads or streets.

Cont’d

Invitee:Invitee: The landowner has a duty to keep the The landowner has a duty to keep the premises in reasonably safe condition and to premises in reasonably safe condition and to inspect the premises to discover any latent inspect the premises to discover any latent (hidden) defects and to make safe any (hidden) defects and to make safe any defects or give adequate warning.defects or give adequate warning.

Licensee:Licensee: The landowner owes a duty not to injure The landowner owes a duty not to injure him/her willfully, wantonly, or through gross him/her willfully, wantonly, or through gross negligence; or to warn of or to make safe negligence; or to warn of or to make safe dangerous latent (hidden) conditions of which dangerous latent (hidden) conditions of which the landowner has actual knowledge.the landowner has actual knowledge.

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Cont’d

Trespasser:Trespasser:A trespasser takes the property as he finds it, and A trespasser takes the property as he finds it, and the ownerthe owner’’s duty is only to refrain from injuring s duty is only to refrain from injuring the visitor through willful, wanton, or grossly the visitor through willful, wanton, or grossly negligent conduct.negligent conduct.

Limits of Damages

Cities and State:Cities and State:1. $250,000 for each person and $500,000 for each

single occurrence for bodily injury or death2. $100,000 for each single occurrence for property

All other Governmental Entities:1. $100,000 for each person and $300,000 for each single

occurrence for bodily injury or death2. $100,000 for each single occurrence for property

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Cont’d

§§ 101.024. Exemplary Damages101.024. Exemplary Damages

This chapter does not authorize exemplary This chapter does not authorize exemplary damages.damages.