FORT WORTH - The Second Court of Appeals recently reversed in part a ruling denying the Texas Department of Transportation’s plea to the jurisdiction in a lawsuit brought over tree removal.
The lawsuit was brought by Mark and Birgit Self, who claim a contractor employed by TxDOT removed a number of trees on their property.
According to the Second Court’s Feb. 10 opinion, the contractor was hired to clear brush and trees from a farm-to-market road’s right-of-way. The Selfs sued TXDOT and the contractor claiming the contractor removed trees outside of the right-of-way.
To avoid the bar of governmental immunity, the Selfs claimed immunity was waived under the Texas Tort Claims Act because TxDOT exercised such control over the motor-driven equipment used by the contractor that, in essence, TxDOT employees were operating or using that equipment and because that use was a proximate cause of their damages, the opinion states.
The Selfs also claimed that immunity was waived under the Act because TxDOT exercised such control over the contractor that it was no longer an independent contractor but instead was TxDOT’s employee. The Selfs finally alleged that the destruction of their trees was an intentional taking of their property for a public use and thus constituted an inverse condemnation, the opinion states.
In response, TxDOT filed a plea to the jurisdiction, asserting immunity was not waived because there was no valid waiver under the TTCA and because the Selfs did not have a viable inverse-condemnation claim.
The trial court denied TxDOT’s plea to the jurisdiction, court records show.
On appeal, TxDOT argued the trial court erred because TxDOT is protected by sovereign immunity from the Selfs’ negligence claim and from the Selfs’ inverse condemnation claim.
The Second Court found that the trial court erred to the extent that it found a fact issue existed regarding whether TxDOT was exercising such control over the motor-driven equipment used by the contractor to mean that TxDOT was operating or using that equipment, and 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 TxDOT’s employee.
“We sustain TxDOT’s second issue because the act that the Selfs rely on to support their inverse-condemnation claim was not intentional in the sense required to support such a claim,” the opinion states. “We therefore affirm in part as to the denial of the plea to the jurisdiction on the independent-contractor claim and reverse and render in part solely as to the Selfs’ claims for negligence and inverse condemnation.”
Case No. 02-21-00240