While a lower court denied the City of Houston’s plea to the jurisdiction in Bobby Terry’s case against it, an appeals court reversed that ruling and dismissed the case altogether.
The Court of Appeals for the First District of Texas ruled on the case on Jan. 23. Justice Gordon Goodman wrote the opinion and Justices Sarah Beth Landau and Russell Lloyd affirmed. (Justice Landau concurred in a separate opinion)
Terry filed the complaint after he was electrocuted when doing work on city-owned communication tower. He sued for negligence, among other things, and the lower court ruled that the city wasn’t immune for the premises defect claim, but that it was for the negligence claim. Now, the appeals court has reversed that order for the latter.
City worker Onterrion Hunter was on site to unlock the gate on the property, as well as the box that kept the control panel, and turn off the electricity for the tower. In this case, Terry doesn’t claim that Hunter’s behavior was grossly negligent.
“We reject Terry’s implicit contention that Hunter’s alleged failure to turn off the electricity, or to do so correctly, is a premises defect claim,” wrote Justice Goodman. “Terry’s allegation that Hunter did not turn off the power but nevertheless assured Terry that he had done so likewise is a complaint about affirmative, contemporaneous conduct that allegedly caused the injury and therefore constitutes a general negligence claim.”
The judges determined that a general negligence claim isn’t enough grounds to waive governmental immunity under the Tort Claims Act.
They also pointed out that Hunter didn’t know the capacitators on site were dangerous, and Terry doesn’t even claim that Hunter’s conduct impacted their ability to operate properly. Ultimately, Hunter turning off the power on the tower didn’t electrocute Terry, and it’s “not analogous to mopping the floor and leaving it wet,” according to the lawsuit.