FILED

DALLAS COUNTY
4/6/2015 3:50:27 PM
FELICIA PITRE
DISTRICT CLERK

1 CIT-ATTY

Christi Underwood

DC-15-03908
CAUSE NO.

ROXANNA MAYO,

IN THE DISTRICT COURT

Plaintiff,
JUDICIAL DISTRICT

v.

DALLAS COUNTY, TEXAS

CITY OF DALLAS,
Defendant.

JURY TRIAL DEMANDED

PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff, ROXANNA MAYO ("Plaintiff'), complains of Defendant, CITY OF
DALLAS, a municipal corporation ("Defendant" or "City of Dallas" or "City"). For causes
of action Plaintiff shows the Court as follows:
I.
CASE LEVEL
1.01 Discovery is intended to be conducted under Level 2 of T.R.C.P. 190.
II.
PARTIES
2.01 Plaintiff ROXANNA MAYO is an individual who can be contacted in care of
her undersigned counsel. The last three numbers of the Plaintiffs social security
number are: 197, and the last three numbers of the Plaintiffs driver's license number
are: 250.
2.02 Defendant CITY OF DALLAS, is a Texas municipal corporation. Defendant
may be served by delivery of process to its city attorney, Warren Ernst, 1500 MariIla
PLAINTIFF'S ORIGINAL PETITION - PAGE 1

Street, Dallas, Texas 75201.

RELIEF AND JURISDICTION

3.01 Pursuant to T.R.C.P. 47 Plaintiff states that Plaintiff seeks monetary relief
over $1,000,000. The damages sought are within the jurisdictional limits of this Court.
The maximum amount claimed by Plaintiff is $5,000,000.
IV.
BACKGROUND FACTS
4.01 On January 19, 2015, which was the Martin Luther King holiday, Plaintiff
was in her apartment located at Skillman, Dallas, Texas. Also present at about 4pm on
January 19, 2015, in the apartment were Plaintiffs daughter, Mackenzie, who was 12
years old, Plaintiffs 19 year old son Cody, Plaintiffs mother Diane Davis and Plaintiffs
ex-boyfriend, Quartiq Anthony Sharper.
4.02 Plaintiff and her ex-boyfriend had leased the apartment for about 2
months. By January 19, 2015 Plaintiff had been together with her ex-boyfriend for
about 6 months.
4.03 During the morning of January 19 the ex-boyfriend had threatened Plaintiff
and her daughter in the apartment. Plaintiff had placed a call to the Dallas Police
Department on 911, but the police never came. The police had a history of not
responding to 911 calls from the area in which Plaintiff's apartment was located.
4.04 During the afternoon of January 19 an argument arose over whether
Plaintiff would go out to buy food for Plaintiffs dog. The argument became heated and

PLAINTIFF'S ORIGINAL PETITION - PAGE 2

the ex-boyfriend threw a bottle at Roxanna's head. It was evident that Plaintiffs exboyfriend, who had been drinking, was a clear and present danger to Plaintiff and her
family. The ex-boyfriend threatened Plaintiffs daughter Mackenzie for the first time ever
and Plaintiff became very concerned.
4.05 At this point, Plaintiff, her daughter and her mother left the apartment, and
went outside, where Mackenzie placed a 911 call to the Dallas Police Department on
her cell phone at 4:39pm which was not answered, nor redialed by the operator.
4.06 After Plaintiff, her daughter and mother left the apartment following the
bottle throwing incident Plaintiffs daughter Mackenzie placed a 4:39pm 911 call which
was not connected. Plaintiffs daughter then placed a series of three 911 calls to the
Dallas Police Department: at 4:40pm for 2 minutes, 16 seconds, at 4:49 for 6 minutes
51 seconds, and at 5:06 pm for 4 minutes 17 seconds, asking for police assistance.
4.07 After the calls were placed Plaintiff, her daughter and mother wanted to
leave the area due to imminent danger, but the 911 operator told Plaintiffs daughter
during one of the phone calls that since the incident involved domestic violence they
would all have to stay in the area until the police arrived, which would be soon since the
police were on the way.
4.08 After waiting about 60 minutes for the police, who never arrived, Plaintiff,
her daughter and mother went back into the apartment. The arguments resumed and
the boyfriend shot Plaintiff with Plaintiffs own 9mm target pistol. Plaintiff only used the
target pistol at firing ranges. The bullet shattered Plaintiffs shoulder, passed through

PLAINTIFF'S ORIGINAL PETITION - PAGE 3

Plaintiffs lungs, which collapsed, and lodged in Plaintiffs spinal cord. As a result,
Plaintiff has lost motion entirely in her left arm and below her chest.
4.09 As soon as Plaintiff was shot Plaintiffs neighbors called 911 and the
police arrived shortly thereafter. Plaintiff told the police officers that she thought she
was paralyzed but the officers just mocked her and laughed. The officers may have
seen that the bullet entered at Plaintiffs arm, and thought that she could not be
paralyzed from that, but obviously the bullet ricocheted inside Plaintiff s body to cause
all the injuries it did. The police even kicked plaintiffs leg and asked "can you feel
that?" to test whether Plaintiff was paralyzed.
4.10 Plaintiffs doctors have told Plaintiff that it is not medically possible to
remove the bullet from Plaintiffs spinal cord so that she will be disabled for the rest of
her life.
4.11 Prior to the incident, Plaintiff owned and operated a beauty salon known
as The Lash Lab which had just moved to the Knox-Henderson area in North Dallas.
Plaintiffs salon was on the 6th floor of a prestigious high rise building in Highland Park.
Plaintiff had numerous well known clients, including the wives of NFL players. Plaintiff
had clients who flew into Dallas just to have their lashes done at Plaintiffs salon.
Plaintiffs salon was highly rated on the internet and won an award as the best eye lash
salon in the DFW area for 2013. Plaintiff had earned in excess of $100,000 per year,
but now can no longer pursue her profession due to the injuries she sustained.

PLAINTIFF'S ORIGINAL PETITION - PAGE 4

V.
FIRST COUNT
MALFUNCTION OF TANGIBLE PERSONAL PROPERTY
5.01 The foregoing paragraphs of this Petition are incorporated in this Count by
reference as fully as if set forth at length herein.
5.02 The City of Dallas is liable under the Tort Claims Act for malfunctions of its
911 emergency call computer system and phone system.
Section 101.021(2) of the Texas Tort Claims Act specifically provides that
a governmental unit is liable for
(2) personal injury and death so caused by a condition or
use of tangible personal or real property if the governmental
unit would, were it a private person, be liable to the claimant
according to Texas law.
TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2)
See City of Dallas v. Sanchez, 449 SW3d 645 (Tex. Civ. App. Dallas 2014)
reh'g overruled (Dec 29, 2014), a copy of which is attached is Exhibit A hereto. A copy
of the record of the 4 calls made by Plaintiffs daughter, Mackenzie, to the 911 number
on January 19, 2015, is attached as Exhibit B hereto.
5.04 The first call at 4:39 failed to connect, and was not redialed by the 911
operator. Plaintiff has made request for records of the other 3 calls shown on Exhibit B
but the City has failed to produce such records, reflecting a further malfunction by the
city computer and phone systems as to both log-ins and dispatches. The malfunctions
of the 911 computer and phone systems were proximate causes of the failure of police
to arrive at the scene of the incident and prevent the injuries to Plaintiff.

PLAINTIFF'S ORIGINAL PETITION - PAGE 5

5.05 The 911 employees violated city ordinances related to safety on the job,
including but not limited to, two specific sections of the Dallas City Code setting forth
employee standards of conduct.

See Dallas, Tex., City Code 34-36(b)(5)(A) (1997

through Jan. 2014) (unacceptable conduct by employees includes carelessness or

negligence); (b)(7)(A) (safety violations). As the proximate cause of such violations the
police never arrived at the scene of the incident, causing the injuries to Plaintiff.
5.06 As a direct proximate result of the negligence of Defendant, Plaintiff
suffered severe injuries, including the injuries set forth above. Plaintiff was compelled to
seek medical treatment following her injuries, and will be compelled to do so in the
future.
5.07 As a result of Plaintiffs injuries made the basis of this action and the
injuries sustained by Plaintiff, Plaintiff has suffered past and will suffer future, physical
injury and severe physical and mental pain and anguish, for which Plaintiff sues. As a
further result Plaintiff has suffered in the past and will suffer in the future physical
impairment and disfigurement, for which Plaintiff sues. Plaintiff has been compelled to
consult physicians, surgeons and physical therapists for treatment, and will need such
treatment for the foreseeable future. In all reasonable probability, Plaintiff will continue
to suffer such physical impairment, disfigurement, mental and physical pain and anguish
for a long time in to the future, if not for the balance of her natural life, for which Plaintiff
sues. Plaintiff has incurred reasonable and necessary medical, counseling and
medication expenses in an amount in excess of the minimum jurisdictional limit of this
Court, for which Plaintiff sues.

PLAINTIFF'S ORIGINAL PETITION - PAGE 6

5.08 As a result of her injuries Plaintiff is unable to work in her business and has
therefore suffered past and future lost earnings and past and future damages to
earnings capacity.

VI.
JURY TRIAL DEMANDED
6.01 PLAINTIFF DEMANDS A TRIAL BY JURY.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant City of
Dallas be cited to appear and answer herein, and that on final trial, Plaintiff have and
recover the following relief against Defendant:
1.

Judgment is for past and future physical injury, impairment, disfigurement

and past and future physical pain and suffering;

2.

Judgment for actual damages in the amount of past and future lost
earnings and benefits and damages to past and future earnings capacity;

3.

Damages for past and future mental anguish and emotional distress;

4.

Past and future medical and hospital care and expenses;

5.

Prejudgment and post-judgment interest at the maximum legal rate;

6.

All costs of Court; and

7.

Such other and further relief to which Plaintiff may be justly entitled.

PLAINTIFF'S ORIGINAL PETITION - PAGE 7

rti 4C;
day ofy.tafc1172015.
Dated: This t.R
Respectfully submitted,
KILGORE & KILGORE, PLLC

By: /s/ W.D. Masterson

W.D. MASTERSON
State Bar No. 13184000
3109 Carlisle
Dallas, TX 75204-2471
(214) 969-9099 - Telephone
(214) 953-0133 - Fax
wdmakiloorelaw.com
ATTORNEYS FOR PLAINTIFF
ROXANNA MAYO

PLAINTIFF'S ORIGINAL PETITION - PAGE 8

EXHIBIT A

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

449 SW.3d 645

Court of Appeals of Texas,
Dallas.
City of Dallas, Appellant and CrossAppellee
v.
Diane Sanchez, individually and as representative
of the Estate of Matthew Sanchez, Deceased, and
Arnold Sanchez, Appellees and CrossAppellants
No. 05-13-01651CV I Opinion Filed October 27,
2014 I Rehearing Overruled December 29, 2014

Synopsis
Background: Parents of child who died from drug
overdose filed suit against city based on alleged negligent
use or misuse by 911 operators of 911 computer and
telephone system in responding to two calls from separate
locations within same apartment complex, and for
defective condition of 911 telephone system. The 191st
Judicial District Court, Dallas County, granted city's
motion to dismiss petition in part and denied it in part.
Both parties appealed.

Holdings: The Court of Appeals, O'Neill, J., held that:

*647 On Appeal from the 191st Judicial District Court,

Dallas County, Texas, Trial Court Cause No.
DC-13-08320J; The Honorable Gena Slaughter, Judge
Attorneys and Law Firms
Barbara Rosenberg, Warren M. Ernst, Patricia M. DeLa
Garza, James B. Pinson, Dallas, TX, for appellants.
Charles "Chad" Baruch, Rowlett, TX, Michael Brett
Anthony, Corpus Christi, TX, for appellees.
Before Justices O'Neill, LangMiers, and Brown'

OPINION

Opinion by Justice O'Neill

Appellees/cross-appellants Diane and Arnold Sanchez
sued the City of Dallas for negligence connected with the
death of their son, Matthew. The City filed a motion to
dismiss under Rule 91a, Texas Rules of Civil Procedure.
The trial court granted the motion in part and denied it in
part. Both parties filed an interlocutory appeal. We affirm
the trial court's order.

Eli gravamen of parents' allegations regarding 911

operators' failure to distinguish two calls and respond
accordingly sounded in complaint for non-use of city's
911 telephone and computer systems, for which city did
not waive immunity from suit;
[2]gravamen of allegations based on disconnection of 911
call due to malfunction of computer and telephone system
prior to arrival of emergency personnel was complaint for
defective condition of equipment for which city waived
immunity from suit;
[3] parents adequately alleged that malfunction of
equipment was proximate cause of child's death; and
[4]parents' allegations stated claim for violation of statute
or ordinance applicable to provision of 911 emergency
services for which city waived immunity from suit.
Affirmed.

Wes

BACKGROUND

A. Rule 91a
Rule 91a permits a party to move to dismiss a cause of
action "on the grounds that it has no basis in law or fact."
The rule provides that "fa] cause of action has *648 no
basis in law if the allegations, taken as true, together with
inferences reasonably drawn from them, do not entitle the
claimant to the relief sought." TEX.R. CIV. P. 91a. 1. The
trial court may conduct an oral hearing on the motion, but
"may not consider evidence in ruling on the motion and
must decide the motion based solely on the pleading of
the cause of action...." TEX.R. CIV. P. 91a.6.

B. Facts

Under Rule 91a, we accept the factual allegations in the

plaintiffs' operative petition as true. The Sanchezes allege
2015 Thomson Reuters. No claim to original U.S. Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

that on November 16, 2012, Dallas 911 received two

telephone calls from two different cell phone numbers
seeking emergency assistance for drug overdoses in two
different apartments in the same complex. The calls were
made within ten minutes of each other. The second call
sought assistance for Matthew. The dispatcher received
the address and confirmed that responders were on their
way. Then "the call was somehow disconnected."
Emergency responders went to the apartment associated
with the first call, but not the second. Matthew did not
receive emergency treatment. He died six hours after the
call and less than an hour before his parents discovered
him.

C. The Sanchezes' pleading

In their third amended original petition, the Sanchezes
alleged:2
5.1 The city of Dallas is liable under the Tort Claims
rat for negligent use and negligent misuse of their
computer system and phone system. The City of
Dallas 911 personnel's negligent use or negligent
misuse of their computer system hardware and software
property and misuse of their phone system property
both of which should been used in a manner to have
ensured their ability to determine that the calls were
two separate incidents coming from two different
locations was another proximate cause of Matthew
Sanchez not being discovered by emergency
responders. Based upon current information and belief
it appears that, the 911 employee negligently misused
the phone property in question by hanging up on a
pending 911 prior to the arrival of 911 responders
and/or a malfunction of the phone system in
question caused the caller and the 911 operator to
become disconnected.
5.2 The 911 employees violated city ordinances
related to safety on the job, including but not limited to
City of Dallas Personnel Rule 34-36(b)(5)(A) &
34-36(b)(7)(A). Further, Plaintiffs believe that
Defendant's dispatcher violated local, state and
federal regulations, statutes, and/or ordinances
regarding training and accreditation of the employee,
and specifically in determining the location of two
similar but distinct calls and also in misusing the phone
by either intentionally hanging up on the 911 caller or
failing to redial a call that had become disconnected
due to a phone system malfunction prior to the arrival
of emergency personnel. See e.g. TEX. OCC.CODE
1701.405 (requiring 40 hours of training of 911 training
for telecommunicators); NENA 56-001 (requiring call
backs if disconnected before personnel can determine if

assistance is still needed) & NENA 56-005 (sec. 3.6.1

requiring address verification with ALI display and sec.
3.14 requiring making sure the two 911 calls were not
redundant).
5.3 Due to the dispatcher's negligent use and
negligent misuse of the computer and phone system
property and/or the malfunction of the phone
system in question and/or subsequent *649 failures in
appropriate procedures no responders ever arrived at
Matthew Sanchez's apartment and he was found dead
in his apartment by his parents Diane Sanchez and
Arnold Sanchez at approximately 9:20 a.m. on
November 16, 2012. The autopsy of Mathew Sanchez
reveals the time of death as approximately 8:40 a.m.
5.4 Upon information and belief, the city of Dallas 911
personnel in question negligently used or misused
their computer system and failed to recognize that the
two phone calls were coming in from two different
locations at the same apartment complex or
alternatively negligently used their computer system in
a way that failed to adequately alert other 911
personnel that the phone calls were coming in from two
different locations at the same apartment complexall
of which collectively resulted in the emergency
responder failing to recognize That two separate 911
calls had been made and failing to recognize that the
overdosed individual he was assisting was not in the
same location as where Mathew Sanchez 911 call had
been placed and where his Apple iphone still remained.

D. The trial court's order

The trial court granted the City's motion to dismiss in part
and denied it in part. The order provides that the motion is
granted "as to all claims of use/misuse of equipment,
failure to follow procedures, failure to train," and denied
"as to allegations that the equipment failed or
malfunctioned."

ISSUES
The City contends the trial court erred by partially
denying the motion to dismiss because the court does not
have subject matter jurisdiction over a negligence claim
against a city based upon its malfunctioning telephone
equipment. In their cross-issues, the Sanchezes contend
that the trial court erred by granting the City's motion to
dismiss their claims relating to use or non-use of
equipment. They also contend the trial court's partial

WestlawNext @ 2015 Thomson Reuters. No claim to original U.S. Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

denial of the City's motion was correct.

(2) personal injury and death so

caused by a condition or use of
tangible personal or real property if
the governmental unit would, were
it a private person, be liable to the
claimant according to Texas law.

STANDARD OF REVIEW
In its motion to dismiss, the City challenged the trial
court's subject matter jurisdiction over the Sanchezes'
claims. The parties agree that we review the trial court's
ruling on this question of law de novo. See Tex. Dep't of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-27
(Tex.2004)?
111121Although rule 9Ia is new,* in this appeal our review
is similar to a challenge to the pleadings through a plea to
the jurisdiction as described in Miranda. See id; see also
Austin State Hosp. v. Graham, 347 S.W.3d 298, 301
(Tex.2011) (appeal may be taken from orders denying
*650 assertion of immunity, regardless of procedural
vehicle used); City of Austin v. Liberty Mut. Ins., 431
S.W.3d 817, 822 n. 1 (Tex.App.--Austin 2014, no pet.)
(reviewing trial court's order on Rule 9Ia motion "using
the standard of review for pleas to the jurisdiction that
challenge only the pleadings"); Wooley, 447 S.W.3d at 75
(fmding Rule 91a motions "unique," but "analogous to
pleas to the jurisdiction"). To determine if subject matter
jurisdiction exists, we determine if the pleader has alleged
facts that affirmatively demonstrate the court's
jurisdiction to hear the case. Miranda, 133 S.W.3d at 226.
We construe the pleadings liberally in favor of the
plaintiff and look to the pleader's intent. Id

APPLICABLE LAW
131The Texas Tort Claims Act (TTCA) provides a limited
waiver of immunity from suit and from liability for
negligence for municipalities engaged in certain
governmental functions. See TEX. CIV. PRAC. &
REM.CODE ANN. 101.0215(a) (West Supp.2014)
(liability of municipality). Operation of an emergency
ambulance service is a governmental function. TEX. CIV.
PRAC. & REM.CODE ANN. 101.021508). The waiver
is limited and entirely dependent upon statute. Dallas
Cnty. Mental Health & Mental Retardation v. Bossley,
968 S.W.2d 339, 341-42 (Tex.1998); see also TEX. CIV.
PRAC. & REM.CODE ANN. 101.001-101.109 (West
2011 & Supp.2014).
Section 101.021(2) of the TTCA specifically provides that
a governmental unit is liable for:

WestlawNext" 0 2015 Thomson Reuters. No cl

TEX. CIV. PRAC. & REM.CODE ANN. 101.021(2).

141 151 161 171For immunity to be waived, personal injury or
death must be proximately caused by a condition or use of
tangible personal property. Bossley, 968 S.W.2d at 343;
Dallas Cnty. v. Posey, 290 S.W.3d 869, 872 (Tex.2009).
Property does not cause injury if it does no more than
furnish the condition that makes the injury possible.
Bossley, 968 S.W.2d at 343. If the injury is "distant
geographically, temporally, and causally" from the use or
condition of tangible personal property, there is no waiver
of immunity. See id. There must be a nexus between the
condition or use of the property and the injury, requiring
more than "mere involvement of property." Posey, 290
S.W.3d at 872. The condition "must actually have caused
the injury." Id.

DISCUSSION
A. Claims arising from use or non-use of equipment
181181The trial court granted the City's motion to dismiss
the Sanchezes' "claims of use/misuse of equipment,
failure to follow procedures, [and] failure to train.'
Claims for misuse of equipment are actionable under the
TTCA, but claims for misuse of information are not. See
Univ. of Tex. Med. Branch at Galveston v. York, 871
S.W.2d 175, 178-79 (Tex.1994) (information is not
tangible property). And claims for non-use or failure to
use property are not actionable. See Tex. Dep 't of
Criminal Justice v. Miller, 51 S.W.3d 583, 587-88
(Tex.2001) (legislature has drawn *651 line between
"use" and "non-use" of tangible personal property under
TTCA).
1101If the gravamen of a claim for misuse of property is
actually misuse of information or non-use of property,
there is no waiver of immunity. In City of El Paso v.
Hernandez, 16 S.W.3d 409, 411 (Tex.App.E1 Paso
2000, pet. denied), appellees alleged that the delay in
dispatching an ambulance from one El Paso hospital to
another resulted in the death of Andrea Hernandez.
Although the applicable policy was to transport patients
with life-threatening emergencies to the nearest hospital,
Hernandez initially was transported to a more distant

to original U.S. Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

hospital that did not have the equipment necessary to save

her life. Id. at 411-13. Although appellees' petition
alleged the negligent use of an emergency vehicle, the
court concluded that "the gravamen of Appellees'
complaint is that EMS personnel made an incorrect
medical decision" about whether Hernandez had a
life-threatening emergency. Id. at 416. This complaint
"about a non-use of the vehicle" did not fall within
section 101.021's waiver of immunity. Id Similarly,
delay in dispatching a second ambulance was a
non-actionable claim for non-use of a vehicle. Id at
416-17. And the claim that a dispatcher used or misused a
telephone or other equipment by failing to timely dispatch
an ambulance and by discussing personal matters with his
supervisor instead of dispatching the ambulance were
non-actionable claims for "non-use of the equipment and
misuse or non-use of intangible information." Id at 417.
In Martinez v. City of Abilene, 963 S.W.2d 559, 560
(Tex.App.Eastland 1998, no pet.), cited by the City in
oral argument, the court cited numerous cases holding
that the use of computers, telephones, or records to collect
and communicate information is not a use of tangible
personal property under the TTCA. In Martinez, a police
officer input an incorrect vehicle identification number
into the City's computer system when recording a missing
person report. Id. The plaintiff alleged the incorrect entry
caused a delay in identifying the car and locating her
missing son, causing his death. Id The court concluded
the identification number was "information" put "in the
wrong category in the computer," and explained, "[t]his is
a case of misuse of information, not a case of misuse of
tangible property." Id at 560. The trial court's dismissal
of the plaintiff's suit was affirmed. Id. The City contends
that the Sanchezes' complaints are non-actionable claims
for misuse of information.
"The Sanchezes complain of "negligent use and
negligent misuse" of the City's phone and computer
systems in paragraphs 5.1 through 5.4 of their petition.
These complaints arise from (1) the City's failure to
determine that there were two separate 911 calls from two
separate locations; (2) the 911 employee's hanging up the
phone before the arrival of the responders; and (3) the 911
employee's failure to redial the caller. We conclude that
the gravamen of each of these complaints is the non-use
of tangible property. The telephone system and computer
system were not used to determine and track the locations
of the two calls received by the 911 operator, or to
determine that the two calls were not redundant. And the
911 employee failed to use the telephone system to ensure
that the responders had arrived at the correct location.
Non-use of tangible property does not waive immunity.
See Miller, 51 S.W.3d at 587-88; City of N. Richland
N

Hills v. Friend, 370 S.W.3d 369, 372 (Tex.2012) (claim

that City failed to retrieve and use automatic external
defibrillator device to revive swimmer at water park was
non-use claim, not sufficient to waive City's immunity).
*652 The Sanchezes also argue that the City's failure to
determine there were two separate 911 calls from two
separate locations was a "failure to acquire information,"
not a non-actionable misuse of information. See Martinez,
963 S.W.2d at 560. The Sanchezes contend that failing to
acquire information at all is different from misusing
information. If no information is acquired, they argue,
then there is no information to misuse. Instead, they
contend the misuse was of tangible equipmentthe
telephone systemby failing to verify that the two
emergency calls were not redundant. The Sanchezes
distinguish Hernandez and other cases cited by the City
on this ground, noting in those cases the lack of "any
allegation of misused equipment causing the failure to
acquire information necessary for dispatch." See, e.g., id.
at 413 (summarizing allegations made in petition). We
have concluded, however, that the gravamen of the
Sanchezes' "negligent use and negligent misuse"
allegations is non-use of property; that is, the failure to
use the telephone and computer systems to determine that
the two calls were not redundant. The trial court correctly
concluded that there was no waiver of immunity for these
claims. See id at 416-17. Because the Sanchezes'
pleadings were not sufficient to allege a claim for
"negligent use and negligent misuse of property," the trial
court's dismissal of that claim was proper. See TEX.R.
CIV. P. 91a.l.

B. Claims arising from malfunctioning equipment

112IWe also conclude the trial court correctly denied the
City's motion to dismiss the Sanchezes' claims asserting
that equipment failed or malfunctioned. The Sanchezes
pleaded in the alternative that Matthew died when the
emergency call seeking assistance for him was
disconnected by malfunction of the phone system. They
specifically alleged that the emergency call was
disconnected "due to a phone system malfunction prior to
the arrival of emergency personnel." They alleged that
due to the malfunction of the phone system, "no
responders ever arrived at Matthew Sanchez's apartment
and he was found dead in his apartment by his parents...."
The Sanchezes' pleadings alleged that the condition of
tangible personal propertythe City's emergency phone
systemcaused Matthew's death. The City argues again
that the Sanchezes' claim is actually for misuse of
information. Citing City of El Paso v. Wilkins, 281
S.W.3d 73, 75 (Tex.App.El Paso 2008, no pet.), the

2015 Thomson Reuters. No claim to origin I U.S. Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

City argues that the failure to dispatch emergency

personnel is a claim for the alleged misuse of intangible
information which is insufficient to invoke a waiver of
immunity. In Wilkins, a police unit did not respond to a
911 emergency call until two and one-half hours after the
call was made. Id. at 74. During the interim, the caller
committed suicide. Although the appellees argued that the
inadequate condition of the emergency communications
system contributed to the delay, there were "no facts or
evidence alleged that there was a problem with the
telephones or computer systems used." Id. at 75. The
court explained that the appellees' claims were "based on
the failure to timely dispatch a police unit in response to
the call." Id at 76. The court continued, "[t]his failure to
dispatch involved the conveyance of information, which
is not tangible personal or real property." Id. Although the
telephones and computers used were "tangible," there
were no allegations that they were "in any defective or
inadequate condition" or were misused. Id. Without any
such allegations, the appellees' complaint did not fall
within the statutory waiver of immunity. /d
*653 In Hernandez, appellees alleged "that the inadequate
condition of the communications system contributed to
the delay which caused the death of Mrs. Hernandez."
Hernandez, 16 S.W.3d at 417. When the telephone system
became busy, calls "rolled over" to the fire department,
which "could not have been of assistance." Id. But
because there were no allegations that any calls relating to
Hernandez "rolled over" to the fire department "or that
this condition of the system contributed to the delay,"
there was no waiver of immunity. Id.
Here, in contrast, the Sanchezes made specific allegations
of a malfunction of the telephone system in its use by the
911 operator. A failure or malfunction of the equipment
allegedly cut off the caller before the call was completed
and contributed to the City's failure to provide emergency
medical attention to Matthew. These allegations were
sufficient to allege that a condition of tangible personal
property caused injury. See Michael v. Travis Cnty. Hous.
Auth., 995 S.W.2d 909, 913-14 (Tex.App.Austin 1999,
no pet.) (allegation that two pit bulls escaped through
defective fence and attacked two children sufficiently
alleged that condition or use of tangible personal property
proximately caused injuries, as required by TTCA section
101.021(2)).

C. Causation
"31 "The City argues that even if the Sanchezes'
allegations of an equipment malfunction are sufficient,
their allegations of proximate cause are not. The City
contends that the cause of Matthew's death was a drug
l'AiestlawNexf 0 2015 Thomson Reuters. No claim to original

overdose, not lack of emergency medical attention. "To

fmd proximate cause, there must be a nexus between the
condition of the property and the injury." Posey, 290
S.W.3d at 872. The Posey court explained that "[for a
defective condition to be the basis for complaint, the
defect must pose a hazard in the intended and ordinary
use of the property." Id In Posey, because exposed wires
in a telephone cord did not cause Posey's injury (death by
suicide using the telephone cord), "the requisite nexus
between the condition complained of and the harm was
thus not established." Id.
In addition, property does not cause injury if it does no
more than furnish the condition that makes the injury
possible. Bossley, 968 S.W.2d at 343. In Bossley, an
employee left a door unlocked, and a patient escaped from
a treatment facility, leaped into the path of a truck on a
nearby highway, and was killed. Id at 341-42. The court
explained that the patient's death was not caused by the
unlocked door: "[a]lthough Roger's escape through the
unlocked doors was part of a sequence of events that
ended in his suicide, the use and condition of the doors
were too attenuated from Roger's death to be said to have
caused it." Id at 343. The court concluded, "[t]he real
substance of plaintiffs' complaint is that Roger's death
was caused, not by the condition or use of property, but
by the failure of [the facility's] staff to restrain him once
they learned he was still suicidal." Id. Because Roger's
death was "distant geographically, temporally, and
causally from the open doors" at the facility, id. at 343,
proximate cause was lacking.
Here, in contrast, the Sanchezes pleaded that a
malfunction of the telephone system, prematurely
disconnecting the call between the 911 operator and the
caller, was a cause of Matthew's death. The connection,
and disconnection, of the call was "in the intended and
ordinary use" of the telephone system. See Posey, 290
S.W.3d at 872. The Sanchezes pleaded that Matthew
survived for six hours after the call was made for
emergency medical assistance. They pleaded that had the
emergency responders found Matthew before they left
*654 the premises, they "would have most likely saved
Matthew's life." We cannot say as a matter of law that
there was no nexus between the alleged malfunction of
the telephone system and Matthew's death. See also
Borrego v. City of El Paso, 964 S.W.2d 954, 959
(Tex.App.El Paso 1998, pet. denied) (question of fact
existed on proximate cause of injury; although plaintiff
was struck by car, he was first immobilized and
abandoned by emergency responders in backboard on
roadway).

Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

D. Exceptions to waiver for emergency response

1151The City next contends that even if a waiver is pleaded
under section 101.021(2), the City retains its immunity
under TTCA section 101.062 governing the provision of
911 emergency services. Under section 101.062, when
providing emergency services, the City waives immunity
only for an "action that violates a statute or ordinance
applicable to the action." TEX. CIV. PRAC. &
REM.CODE ANN. 101.062(b) (West 2011). The City
contends the Sanchezes failed to plead a violation of a
statute or ordinance applicable to the action.
The Sanchezes respond that in paragraph 5.2 of their
petition, they alleged violations of numerous statutes and
ordinances. But the City replies that the provisions cited
by the Sanchezes are not statutes or ordinances within the
meaning of section 101.062, citing Guillen v. City of San
Antonio, 13 S.W.3d 428, 434 (Tex.App.San Antonio
2000, pet. denied), and Fernandez v. City of El Paso, 876
S.W.2d 370, 376 (Tex.App.El Paso 1993, writ denied).
In Guillen, the court concluded that the standard medical
operating procedures of the San Antonio fire department
were "guidelines" rather than a statute or ordinance to
which section 101.062 applied. See Guillen, 13 S.W.3d at
433-34. In both Guillen and Fernandez, the courts
concluded that the statutes and ordinances pleaded did not
impose affirmative duties on the emergency responders
that were violated. See Guillen, 13 S.W.3d at 433-34
(Medical Practice Act does not affirmatively impose duty
on paramedics to yield authority to physician as alleged
by plaintiffs); Fernandez, 876 S.W.2d at 376 (provisions
of Health and Safety Code and City of El Paso municipal
code pleaded by appellants did not impose affirmative
duty on appellee to respond to emergency situation within
certain period of time).
Neither Guillen nor Fernandez holds that a municipal
ordinance is not an "ordinance" within the meaning of
section 101.062. The Sanchezes pleaded that "[t]he 911
employees violated city ordinances related to safety on
the job, including but not limited to" two specific sections
of the Dallas City Code setting forth employee standards
of conduct. See Dallas, Tex., City Code 34-36(b)(5)(A)
(1997 through Jan. 2014) (unacceptable conduct by
employees includes carelessness or negligence); (b)(7)(A)
(safety violations). The Sanchezes also pleaded that the

City's employees "violated local, state and federal

regulations, statutes, and/or ordinances regarding ...
determining the location of two similar but distinct calls"
by intentionally hanging up or "failing to redial a call that
had become disconnected due to a phone system
malfunction prior to the arrival of emergency personnel."
Although the City ultimately may establish that no
applicable statute or ordinance was violated, the
Sanchezes' pleading provides a basis for their claim that
section 101.062 does not apply. TEX.R. CIV. P. 91a.6
(trial court must decide motion "based solely on the
pleading of the cause of action"); see also Dailey, 445
S.W.3d at 790 (Rule 91a expressly prohibits trial courts
from considering evidence).

E. Dismissal under Rule 9Ia

*655 Under Rule 91a.1, dismissal is proper if the
Sanchezes' claims have "no basis in law," that is, if their
allegations taken as true, together with the inferences
reasonably drawn from them, do not entitle them to the
relief sought. See TEX.R. CIV. P. 91.a.1. The waiver of
immunity under section 101.021(2) is far from clear. See,
e.g., Miller, 51 S.W.3d at 589-91 (Hecht, J., concurring)
("After thirty-two years and hundreds of cases, I am now
convinced that it is simply impossible for the courts to
meaningfully construe and consistently apply the
use-of-property standard in the Tort Claims Act."). Under
the standard of Rule 91a.1, we cannot say the Sanchezes'
claim "that the equipment failed or malfunctioned" is a
"baseless" cause of action. See TEX.R. CIV. P. 91a.1; see
also Wooley, 447 S.W.3d at 75, and GoDaddy.com, LLC,
429 S.W.3d at 754 (both fmding Rule 91a similar to
federal standard requiring "enough facts to state a claim
to relief that is plausible on its face").

CONCLUSION
We overrule all issues raised in the appeal and
cross-appeal. We affirm the trial court's order.

Footnotes
We thank the parties and their counsel for their participation in the "Appealing to the Public" program of the Dallas Bar
Association, the Dallas Independent School District, and this Court in the submission of this case.
2

All emphasis is added.

West.tawNe CO 2015 Thomson Reuters_ No I

to original U.S. Government Works.

City of Dallas v. Sanchez, 449 S.W.3d 645 (2014)

3 Several of our sister courts have also applied a de novo standard of review to rulings by trial courts under Rule 91a. See Dailey v.
Thorpe, 445 S.W.3d 785, 788-89 (Tex.App.Houston [1st Dist.] 2014, no pet. h.); Wooley v. Schaffer, 447 S.W.3d 71, 74-76
(Tex.App.Houston [14th Dist.] 2014, no pet. h.); GoDaddy.com, LLC v. Toups, 429 S.W.3d 752, 754 (Tex.App.Heaumont
2014, pet. filed).
4 In 2011, section 22.004(g) was added to the Texas Government Code, and provides in part that "[t]he Supreme Court shall adopt
rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence." See TEX.
GOV'T CODE ANN. 22.004(g) (West Supp.2014). Rule 91a "is a new rule implementing section 22.004 of the Texas
Government Code," adopted effective March 1, 2013, and applicable to all pending cases. See TEX.R. CIV. P. 91a cmt. & ed. note
(citing Tex. Sup.Ct. Order, Misc. Docket No. 13-9022, Feb. 12, 2013).
5

In a footnote of their reply brief, the Sanchezes state that they "do not waive their claims concerning training" but "do not appeal
those portions of the trial court's order." We therefore do not address those claims.

End of Document

2015

Thomson Reuters. No claim to original U.S. Government Works.

Wes t vNexf 0 2015 Thomson Reuters. No claim o original U.S. Government Works,

EXHIBIT B

Outgoing cal!
Monday, January 19, 2015, 4139 PNA
0 mins 0 secs

Add to contacts

Outgoing call
Monday, January 19,
6 mins 51 sons
- Outgoing call
Monday, January 19, 2015, 4:40 PM
2 mins 16 secs

 Outgoing call
Monday, January 19, 2015, 5:06 PM
4 mins 17 secs