## IN THE SUPREME COURT O F TEX AS

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### R Y D E R 

### I N T E G R A T E D 

### L O G IS T IC S 

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### . , P E T IT IO N E R 

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### F A Y E T T E 

### C O U N T Y 

### , T E X A S 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 P ER CURIAM This sovere ign- immunit y dispute re lates to the deadly collision of two eig hteen- whee led

commerc ial trucks. Petitioner Ry der I nteg rate d L og istics, I nc., alleg es the collision was cause d by

a Fa y ette County deputy sheriff and seeks redr ess pursuant to section 101.021 of the Civil Practice and Remedies Code. The s ec tion provides a waiver of g overnme ntal immunit y when an injury “ar ises from the opera tion or use” of a vehicle by a g overnme nt employ ee. T E X . C I V . P R A C . & R E M . C O D E § 101.021(1)( A). Fa y ette County maintains that the alleg ed harm did not arise fr o m a g overnme nt employ ee’ s vehicle use, and thus that the County rema ins immune from suit. The trial
court sustained the Co u n t y ’s plea to the jurisdiction, and the court of appea ls aff irmed. After revie wing the pleading s, we conclude Ry der has alleg ed an injury arising from the deputy sheriff ’s vehicle use . Acc ording ly , we rever se t he judgment of the court of appeals and rema nd to the trial court for further proce eding s.I

The rele vant fac ts are larg ely u n d i sputed. The collision occur red during the course of an

o t h erwise routine traff

ic stop on I nterstate 10 in rura l Fa y ette County

. Deputy Sheriff Rand y Thumann stopped Ralph Molina for a minor traff ic violation at around 3:00 in the morning

. Molina parke d his eig hteen- whee ler on the shoulder just rig ht of the eastbound lanes, and Thumann pulled up behind him. When Molina’s truck beg an rolling backw ard toward Thumann’s cruiser , Thumann repositioned his vehicle. He drove up the g rassy berm to his rig ht and then turned his cruiser so that it fac ed eastbound traff

ic, though it rema ined in the g rass to the rig ht of the shoulder. The cruiser ’s headlig hts and hig h-bea

m spotli g ht were illumi nated, a s were its emerg ency lights. Wit hin seconds of the cruiser turning to fac e oncoming traff ic, and while Thumann was still repositioning it, an eastbound Ry der eig hteen- whee ler driven by Roberto Solis , Sr., veer ed rig ht and clipped the back of Molina’s trailer. The collision cause d Solis ’s truck to overturn and ignite. Solis did not survive the fire

. Molina subsequently sued Ry der and Solis ’s estate, alleg ing that Molina sustained persona l injury , emotional distress, and los t wag es as a re s u l t o f t h e n eg lige nce of Ry der and Solis

. Ry der then filed this third-par

ty claim ag ainst Fa

y ette County , alleg ing that Thumann’s neg lige nce cause d
t he acc ident. Specifica lly , Ry der alleg es that Solis was blinded or distracted by the cruis er ’s headlig hts, which the Count y conce des wer e direc ted at oncoming traff ic. Ry der seeks its own damag es in addition to reimbursement f rom the County

for a ny rec overy by Molina. After answe ring Ry der’ s petition, the County raised a plea to the jurisdi ct i o n, arg uing the

acc ident had not ar isen from the use of a ve hicle such that jurisdiction might be established under
2section 101.021. The trial court sustained the plea. The court of appea ls aff irmed, holding that “the claim of distraction [by the headlig hts] seems to be more proper ly classified as a condition that made the acc ident possible than as the actua l cause of the acc ident itself.” Ryde r Integrated Logist ics, Inc. v. Fay ette Cnty ., 414 S.W .3d 864, 869 (Tex. App.—San Antonio 2013). I I “A unit of state g overnme nt is immune from suit and liability unless the st at e co n s en ts.” Dall. Area Rapid Transit v. W hitley , 104 S.W .3d 540, 542 (Tex. 2003) (citing Tex. Dep’ t of Transp.

v. Jones , 8 S.W .3d 636, 638 (Tex. 1999)). Gover nmental immunit y defe ats a court’s jurisdiction. Id. Where a g overnme nt entity challeng es jurisdiction on the basis of immunit y , “the plaintiff must aff irmatively demonstrate the court’s jurisdiction by alleg ing a valid waiver o f im mu n it y .” Id. (citing Tex. Dep’ t of Criminal Justice v. Miller , 51 S.W .3d 583, 587 (Tex. 2001)) (other citations omitted). “When a plea to the jurisdiction challeng es the pleading s, we deter mine if the pleade r has alleg ed fa cts that aff

irmatively demonstrate the court’s jurisdiction to hear the ca use.” Tex. De

p’t of Parks & W

ildlif e v. Miranda , 133 S.W .3d 217, 226 (Tex. 2004) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd. , 852 S.W .2d 440, 446 (Tex. 1993)). I n doing so , “[ w] e co n s t rue the pleading s liberally in favor of t he plainti ff[] an d l o o k t o t h e pleade r[’s] intent.” Id. (citing Tex. Air Control Bd. , 852 S.W .2d at 446). Where the pleading s g ener ate a “fa ct question reg arding the jurisdictional issue,” a c ourt ca

nnot sustain the plea to the jurisdiction. Id. at 228. The asser ted source of waiver is the Texas Tort Claims Act (“TT CA”). “The TTCA provides

a limit ed waiver of g overnme ntal immunit y .” Alexande r v. W alker , 435 S.W .3d 789, 790 (Tex. 2014) (c iting T E X . C I V . P R A C . & R E M . C O D E § 101.023). I n rele vant par t, the statute indicates:
3A g overnme ntal unit in the state is liable for:

(1) proper ty damag e, persona l injury , and death proxi mately cause d by the wrong ful ac t or omission or the neg lige nce of an employ ee acting within his scope o f employ ment if: (A) the proper

ty damag e, persona l injury , or death arises from the oper ati on or use of a motor-driven vehicle or motor-driven equipment; and (B ) the employ ee would be persona lly liable to the clai ma n t acc ording to Texas law; and (2) persona l injury and death so cause d by a condition or use of tang ible persona l or rea l proper

ty if the g overnme ntal unit would, wer e it a private person, be liable to the claimant ac cording to Texas law. T E X . C I V . P R A C . & R E M . C O D E § 101.021. The issue befor e this Court is whether Ry der has alleg ed harm ar i s i n g fr om the use of Thumann’s vehicle such that immunit y might be waived under subsection (1)( A). The courts below conclude d Ry der has not done so. We revie w jurisdiction and pleading sufficie ncy

de novo. Miranda , 133 S.W .3d at 226. A We first consider Ry der’ s alleg ations reg arding use of the vehicle. Given the L eg islature’s pref ere nce for a limit ed immunit y waiver , we strictly construe s ec t i o n 101.021’s vehicle- use require ment. See LeLeaux v. Hamshire–Fanne tt Indep. Sch. Dist. , 835 S.W .2d 49, 51 (Tex. 1992) (empha siz ing the limit ed nature of TTCA wa i v er). To beg in with, a g overnme nt employ ee must have been actively opera ting the vehicle at the time of the incident. See id. at 52 (finding no waiver wher e no g overnme nt employ ee was prese n t wh en student sustained injury in school bus). Moreove r, the vehicle must ha ve been used as a vehic le, and not, e .g ., as a waiting are a or holding cell. See, respec tively , id. (explainin g t h at u n supervised students wer e not using parke d bus as a vehicle when they chose to meet there t o t alk); City of Kemah v. Vela , 149 S.W .3d 199 (Tex.
4Ap p . — Ho u s ton [14t h Dist.] 2004, pet. denied) (finding no use wher e plaintiff was injured whi l e

sitti ng in parke d police cr uiser). I n addition, the tort i o u s act alleg ed must rela te to the defe ndant’s opera tion of the vehicle rathe r than to some other aspec t of the defe ndant’s conduct. I n other words, even wher e the plaintiff has alleg ed a tort on the par t o f a g overnme nt driver, there is no immunit y waiver absent the neg lige nt or ot herw ise improper u s e o f a mot or-dr iven vehicle. For example, a driver’s failure to super v i s e children at a bus stop may rise to the level of neg lige nce, but that shortcoming cannot

acc urate ly be char acte rized as neg lige nt opera tion of the bus. See generally Mount Pleasant Indep. Sch. Di s t

. v. Estate of Lindburg , 766 S.W .2d 208 (Tex. 1989). Simi larly , a police office r may commit assault in his cruiser , and that assault m ay constitute a tort, but it is not tortious use of a vehicle. See generally Hernande z v. City of

Lubbock , 253 S.W .3d 750 (Tex. App.—Amar illo 2007,

no pet.). Where the vehicle itse l f “is only the setting” for the defe ndant’s wrong ful conduct, any resulting harm will not g ive rise to a claim for which immunit y is waived under section 101.021. LeLeaux , 835 S.W .2d at 52. I n light of these principles, the rec ord reve als that Ry der has indeed challeng ed a g overnme nt employ ee’ s vehicle use. There is no g enuine dispute that Thumann was opera ting the cruiser at the time of t he alleg ed injury . The County does not deny that the vehicle was approac hing eastbound traff ic as the t wo t rucks collided. The Count y even conce des t hat Thum ann wa s in the process of “re locating ” hi s cruiser

. The County appea rs to arg ue that the use of headlig hts alone cannot constitute the opera tion or use of a vehicle. But Thumann was not just opera ting the headlig hts—he was driving the ca

r.
5Ry der has also adequately alleg ed neg lige nce. Neg lige nce is the brea ch of a leg al d uty

.

Nabors Drilling, U.S.A., Inc. v. Escoto , 288 S.W .3d 401, 404 (Tex. 2009). Ry der contends Thumann brea ched a leg al duty when he “fa iled to f ollow pr oper . . . protocols and proce dures in moving his
motor vehicle,” and then “blinded and distracted Mr. Solis , [d] ece ased, causing him to strike the rea r of the Molina 18-whe eler .” Ry der makes seve ral other arg uments, as well, but this alleg ation is sufficie nt for prese nt purposes. I t is well established that a peac e office r’s flawe d execution of policy g ives rise to a colorable neg lige nce claim. See State v. T errell , 588 S.W .2d 784, 788 (Tex. 1979) (“[I ]f

. . . an office r or employ ee acts neg lige ntly in car ry ing out that policy , g overnme nt liability may exis t . . . .”). This is prec isely what Ry der ha s alleg ed her e. We express no opinion as to Thumann’s actua l culpability , and we reje ct the County ’s reque st that we hold Thumann’s actions non-neg lige nt as a mat t er o f l aw . We do not require the plaintiff t o “put on [i ts] case simply to establish jurisdiction.” Bland Indep. Sch. Dist. v. Blue , 34 S.W .3d 547, 554 (Tex. 2000). For that rea son, proper jurisdictional analy sis should “not involve a signific an t inquiry into the substance of the claims.” Id

. Yet the County implicitl y asks us to underta ke as much, and to assume a role the L eg islature has expressly rese rved for the finder of fac t. See T E X . C I V . P R A C . & R E M . C O D E § 33.003 (establishing fac t-finder ’s role). We decline to do so. B The question, then, is whether the alleg ed harm arose from Deput y Thumann’s arg uably neg lige nt use of the cruiser

. The statute itself does not define “ar ises from.” We have define d this standard as a “ nexus between the ope ration or use of the motor-dr iven vehicle or equipment and a plaintiff’s injuries.” W

hitley , 104 S.W .3d at 543 (citations omitted). We hav e also descr ibed the
6threshold as something more than actua l c ause but le ss tha n proxi mate cause . See Utica Nat’l Ins. Co. of Tex. v. Am. Indem

. Co. , 141 S.W .3d 198, 203 (Tex. 2004) (“‘ [A] rise out of’ means . . . there is but[ -]for causa tion, though not nece ssarily direct or proxi mate causa tion.”). Acc ording ly , a plai n t i ff can satisfy the “ar ising from” standard by demonstrating proxi mate cause . This is particula rly appropr iate in the context o f th e TTCA, which only rea ches injuries “proximately cause d by the wrong ful act or omission or the neg lige nce of an employ ee.” T E X . C I V . P R A C . & R E M . C O D E § 101.021(1). The comp o n en t s o f proxi mate cause are cause in fac t and fore seea bility

. W

. Invs., Inc. v. Urena , 162 S.W .3d 547, 551 (Tex. 2005). Be cause proxi mate ca use i s ultim ately

a question for

a fac t-finder , we need only deter mine whether the petition “cr eate s a fact question” reg arding the

causa l rela tionship betwe en Thumann’s conduct and the alleg ed injuries. Miranda , 133 S.W .3d at 228; see also Ark. Fuel Oil Co. v. State , 280 S.W .2d 723, 729 (Tex. 1955) (“Q uestion[s ] of causa tion such as prox i m at e ca u s e are normally trea ted as questions of fact unl ess reasonable minds cannot differ .”). We can rea dily dispense with the first component of proxi mat e ca use. Ry der alleg es that Thumann’s vehicle serve d as a cause in fac t of the collision. Cause in fac t is essenti all y but-for

causa tion. I n other words, a tortious act is a cause in fac t if serve s as “a substantial fac tor in causing the injury and without which the injury would not have occur red.” Del Lago Partners, Inc. v. Smith , 307 S.W .3d 762, 774 (Tex. 2010) (citation omitted). The alleg ations easily satisfy the standard. Ry der pleads that by direc ting the cruiser ’s lights toward eastbound traff ic, Thumann cause d Solis ’s

7err ant driving

. Ry der thus c ontends that the collision—and any associate d harm—would not ha ve

occur red a bsent Thumann’s de cision to drive his car toward onc oming tra ffic. T h e alleg ations are also sufficie nt to g ener ate a fac t issue reg arding the second prong o f proxi mate cause . For esee ability require s only “that the injury be of such a g ener al char acte r as might

rea sonably have been anticipated; and that the injured party should be so situated with rela tion to the wrong ful act that injury to him or to one simil arly situated might rea sonably have been fore seen.” Nixon v. Mr. Prop. Mgmt. C o. , 690 S

. W.2d 546, 551 (Tex. 1985) (quoting Carey v. Pure Dist rib. Corp. , 124 S.W .2d 847, 849 (Tex. 1939)) (emphasis an d ci t ati ons omitted). Acc ording to Ry der,

a rea sonable peac e office r could have fore seen that driving westbound near an eastbound shoulder
at night—with headlig hts and emer g ency lights illumi nated—mig ht confuse drivers, disrupt traff ic,

an d lead to a collis ion much l ike t he one that ultimately occur red. And t he allege d harm is o f t h e very char acte r that might rea sonably have been anticipated. Upon consideration of these alleg ations,

a rea sonab l e j u ro r might find the requisite nexus betwee n the use of Thumann’s vehicle and any injuries suffe red by

Molina and Ry der. The court of appeals held o t h er wi se, concluding that “Thumann’ s use of his vehicle when turning around mere ly furnished the condition that made Solis ’s death possible.” Ryde r , 414 S.W .3d
at 871. We have indeed held that “the opera tion or use of a motor vehicle ‘does not cause injury if it does no more than furnish the condition that makes the injury possible.’” W hitley , 104 S.W .3d at 543 (quoting Dall. C

n t y. Me n tal Health & Mental Retardation v. Bossley , 968 S.W .2d 339, 343 (Tex. 1998)). “When an alleg ed cause is g eog raphic ally , temporally , or causa lly attenuate d from the alleg ed eff

ect, that attenuation will tend to show that the alleg ed cause did no more than furnish the
8condition that made the eff ect possible.” City of Dall. v. Hillis , 308 S.W .3d 526, 532 (Tex. App.—Dallas 2010, pet. denied) (citing Bossley , 968 S.W .2d at 343). But as we have explained, the alleg ations sug g est that Thumann’s opera tion of his cruiser might not have been attenuate d from the alleg ed injuries. I n holding that Thumann’s use of the cruiser “mer ely furnished [a] condition,” the court of appe al s relied on Texas Departme nt of Public Safety v. Grisham , 232 S.W .3d 822 (Tex. App.—Houston [14t h Dist.] 2007, no pet.). The plaintiff in that case had been injured while driving when he moved into the left lane of an interstate highwa y , striking a

vehicle stra

nded ther e. Id. at 824. He appar ently chang ed lanes only becau s e a police car was parke d, with emer g ency lights activate d, on the rig ht shoulder. Id. The plaintiff arg ued that the office r should have known drivers would chang e lanes, and that his alleg ed neg lige nce cause d the collision and associate d injuries. Id. at 825. The court of appeals rejected the arg ument, holding that a parked vehicle i s not in use for the purpose of the TTCA, and explaining that the “cr uiser p ar k ed o n t he rig ht shoulder with the lights activate d mere ly furnished the condition” that made the plaintiff’s injury possible. Id. at 827. Al t h oug h we express no opinion as to the substance of the Grisham panel’ s analy sis, we decline to follow its rea soning here

. The critica l questio n i n Grisham was whether the use of

emer g ency lights alone rende rs a parke d cruiser in “ opera tion or use” for the purpose of the TTCA waiver . We need not re solve that issue today , as it is undisput ed that Thumann w as driving —and thus opera

ting—his vehicle at the time the acc ident occur red. As a conseque nce, Ry der has alleg ed an injury arising from the tortious oper ation or use of a vehic le.

9C

Finally , the County insists that Solis ’s ostensibly “illeg al actions” prec lude any liability and require dismiss al of Ry der’ s tort claims. More specific ally , the County complains that Solis failed
to comply with the state’s “Move Over Act,” which require s drivers to chang e lanes or reduc e speed when approa ching an emer g ency response vehicle. See T E X . T R A N S P . C O D E § 545.157. We are not persua ded. The s t at u t o ry provision applies only wher e a driver is approa ching a “stationary authorized emer g ency

vehicle.” Id. § 545.157(a) (1). Ye t the emer g ency vehicle at issue here was not stationary

. Even the County does not deny that the cruiser was moving toward eastbound traff ic when Solis approac hed the sc ene. Conseque ntly , the Move Ove r Ac t does not apply

. More importantly , the County misrepre sents the g overning standard. Th e Co u n ty ’ s a r g u me nt presumes that Ry der’ s rec overy is barr ed by its ag ent’s own wrong ful conduct. This mig ht be true in a p u re contribut ory -neg lige nce reg ime. See R E S T A T E M E N T (S E C O N D ) O F T O R T S § 467 (1965). Yet Texas abandone d this “all-or -nothing sy stem” in 1973. Dugger v. Arredondo , 408 S.W .3d 825, 830 (Tex. 2013). Wit h our curr ent proportionate- liabilit y sy stem, the state “abr og ated former common law doctr ines that barr ed a pla intiff’s re cover y beca use of the plaintiff’ s conduct.” Id. at 832. A fac t-finder m u s t i n s tead “dete rmine the perc entag e of responsibility , stated in whole numbers” of eac h party

. See T E X . C I V . P R A C . & R E M . C O D E § 33.003. Ba sed on this deter mination,

rec overy is prec luded only “if [t he plaintif f ’ s ] p e r c e n ta g e o f r e s p o n s ibilit y is g rea ter than 50 perc ent.” Id. § 33.001. I f his contribution to the alleg ed harm is 50% or less, he is entitled to fra ctional

rec overy . Id. § 33.012. This is true even wher e the plaintiff violates the law. Dugger , 408 S.W .3d at 832. Acc ording ly , the alleg ed infra ction does not prec lude this action.
1 0* * *

For the rea sons stated here in, we conclude Ry der has alleg ed an injury arising from the use of a vehicle for the purpose of section 101.021 of the Civil Practice and Remedies Code. There fore , and without hear ing oral arg ument, we reve rse the judgme nt of the court of appea ls and rema nd the

case to the trial court f

or fur ther proc eeding s. T E X . R. A P P . P. 59.1.

OP INION DELIVERED: Fe bruar y 6, 2015

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