## IN THE SUPREME COURT O F TEX AS

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### C IT Y O F 

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### R E P R E S E N T A T IV E O F T H E 

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### M A T T H E W 

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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 I F 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 Hours bef ore Ma tthew Sanche z died from a drug overdose , a 9-1- 1 opera tor dispatched a n ambu l an ce to his apar

tment complex. Once on scene , howeve r, emer g ency personne l provided assistance to a differ ent drug -over dose victim at the same complex and then left the premises without ai d i n g S anchez, err oneously concluding that two closely timed 9-1-1 calls conce rning overdose victims at the same locale wer e redunda nt. I n a wrong ful-death suit ag ainst the City of Dallas, Sanchez’s pare nts alleg e the 9-1-1 telephone sy stem malfunctioned and disconnec ted Sanchez’s call befor e the r esponder s could establish the over dose re ports wer e not duplicative. The issue in this Rule 91a dismiss al proce eding is whether the Texas Tort Claims Act waives the City ’s immunit y from suit based on alleg ations in the wrong ful-death suit that a condition of the City ’s telephone sy stem proxi mately cause d Sanchez’s death by pre v en ting him from rec eiving potentially life-sa ving medical car e. See T E X . C I V . P R A C . & R E M . C O D E § 101.021(2) (providing alimit ed waiver of g overnme ntal immunit y arising from the “ condition or use” of tang ible persona l proper ty ); T E X . R. C I V . P. 91a (authorizing dismiss al of a cause of action that has no basis in law or fac t). We hold g overnme ntal immunit y is not waived and dismiss al is require d beca use the requisite

causa l ne x us betwee n the alleg ed condition and Sanc hez’s injury is la cking

. See Dallas County v. Posey , 290 S.W .3d 869, 872 (Tex. 2009) (the alleg ed condition must actua lly have cause d the injury to invoke the Tort Claims Act’s immunit y waiver ; mere involvement of proper ty is not sufficie nt). We theref ore r ever se the c ourt of appe als’ judg ment and re nder judg ment dismiss ing the case . Dismissal is appropr iate under Rule 91a “if the alleg ations, taken as true, toge ther with infere nces r easona

bly draw n from them, do not entitle the claimant to the relief soug ht . . . [ or] no

rea sonable pe rson could believe the fa cts pleade d.” T E X . R. C I V . P. 91a.1. Whether the dismiss al standard is satisfied depends “solely on the pleading of the cause of action.” T E X . R. C I V . P. 91a.6. We r eview the merits of a Rule 91a motion de novo beca use the availability of a reme dy under the fac ts alleged i s a question of law and the rule’s fac tual-plausibility standard is akin to a leg al-suff iciency revie w. See W

ooley v. Shaffer , 447 S.W .3d 71, 75-76 (Tex. App.—Houston [14t h Dist.] 2014, pet. denied) ; cf. Marsh USA Inc. v. Cook , 354 S.W .3d 764, 768 (Tex. 2011) (applica tion of the law to undisputed fac ts is revie wed de novo ); City of Keller v. W ilson , 168 S.W .3d 802, 827 (Tex. 2005) (“ [ L ]ega l-sufficie ncy revie w in the proper light must cre dit favor able evidenc e if

rea sonable juror s could, and disre g ard c ontrary evidenc e unless re asonable jurors could not.”)

. The dismiss al g rounds under Rule 91 a h av e been analog ized to a plea to the jurisdiction, which require s a court to de termine whether the pleading s alleg e fac ts demonstrating jurisdiction. See W ooley , 447 S.W .3d at 75. I n this c ase, the analog y is pa rticularly apt beca

use the City ’s Rule 291a motion challeng es the trial court’s subject-matter jurisdiction on the pleade d fac ts. Whether a

pleade r has alleg ed fac ts aff irmatively demonstrating the exis tence of subject-matter jurisdiction is

a q u es t i o n o f law reviewe d de novo

. See Tex. Dep’t of Parks & W ildlif e v. Miranda , 133 S.W .3 d 217, 226 (Tex. 2004); see also Ryde r Integrated Logist ics, Inc. v. Faye tte County , 453 S.W .3d 922, 9 2 7 (Tex. 2015) (per curia m) (“We revie w jurisdiction and pleading sufficie ncy de novo .”). To deter mine whether dismiss al under Rule 91a is r equire d in this ca se, we thus consider whe ther the pleading s, liberally construed, alleg e sufficie nt fac ts to invoke a waiver of g overnme ntal immunit y under the Tort Claims Act. Miranda , 133 S.W .3d at 226; see also Ryde r Integrated , 453 S.W .3d at 926. I n the ear ly hours of November 16, 2012, City of Dallas 9-1-1 dispatcher s rec eived two 9-1-1 calls within approximately ten minutes of o n e another. Both calls orig inated from the same apar tment complex and both reque sted assistance for a d rug -over dose victim; howeve r, the calls

wer e plac ed fr om differ ent phone number s and conc erne d differ ent re sidents. This wrong ful-dea

th and survival action arises from the second 9-1-1 call, which was place d at 2:55 a.m. on Matthew Sanchez’s behalf

. The 9-1-1 dispatcher acquir ed information reg arding the nature of the emer g ency and Sanchez’s addre ss, including the apar tment number, and informed the caller that emer g ency responde rs wer e en route. Th e call was subsequently disconnec ted and not

ree stablished. After emer g ency responde rs arr ived at the apar tment complex to assist the subject of th e first 9-1-1 call, they err oneously conclude d that the two 9-1-1 calls wer e redunda nt and that a single individual was the subject of both calls. Consequently , the emer g ency responde rs never went to Sanchez’s apa

rtment to provide aid. Sanc hez died at appr ox imately 8:40 a.m. 3Sanchez’s pare nts sued the City of Dallas for neg lige nce alleg ing: (1) the City ’s 9-1-1

dispatcher misused the phone sy stem by hang ing up befor e emer g ency responde rs arr ived to assist Sanchez, or in the alterna tive, the 9-1-1 phone sy stem malfunctioned, causing the call to disconnec t prema turely ; (2) the 9-1-1 dispatcher failed to follow proper proce dure and violated various fede ral, state, and local laws and reg ulations by either disconnec ting the call or failing to redia l afte r the call disconnec ted; and (3) if the emer g ency responde rs had located Sanchez befor e leaving the premises, they “would have most li kely saved [his] life.” I n a Rule 91a motion to dismiss asser ting g overnme ntal immunit y from suit, the City arg ued the alleg ations in the lawsuit did not invoke a waiver of immunit y under the Tort Claims Act beca use (1) the alleg ations complained about communication of information and the fa ilure to dispatch an ambulance , not a condition or misuse of tang ible proper ty , and (2) Sanchez’s death was cause d by

a drug overdose , not the 9-1-1 telephone sy stem. See T E X . C I V . P R A C . & R E M . C O D E § 101.021(2). Alterna tively , to the extent immunit y might otherwise be waived under the Tort Claims Act, the City

asser ted the pleading s failed to overc ome a statutory exception making the Act inapplicable to 9-1-1

emer g ency service s, except for actions that “violate[] a statute or o r dinance applicable to the action.” Id. § 101.062(b). The trial court g rante d the City ’s motion to dismiss as to all claims except the alleg ation that the 9-1-1 phone sy stem failed or malfunctioned. On interlocut o ry ap p ea l , the court of appea ls aff irmed, holding Sanchez’s pare nts (1) sufficie ntly alleg ed a defe ct in the phone sy s te m proxi mately

cause d his death and (2) adequately pleade d a violation of a statute or ordinanc e as an exception to

4section 101.062’s wa iver e x clusion. 499 S.W .3d 645, 653-54. 1 We have jurisdiction over t h e City ’s petition for revie w beca use the court of appea ls’ decision is inconsistent with our decisions in Dallas County v. Posey , 290 S.W .3d 869 (Tex. 2009), and Texas Departme nt of Criminal Justice v. Miller , 51 S.W .3d 583 (Tex. 2001). See T E X . G O V ’ T C O D E §§ 22.001(a) (2), (e) , 22.225(b), (c) , (e) , 51.014(a) (8); see also Austin State Hosp. v. Graham , 347 S.W .3d 298, 300 (Tex. 2011). The Tex as Tort Claims Act waives g ov er n m en t al immunit y from sui t for “persona l injury and death so cause d by a condition or use of tang ible persona l or rea l pr operty if the g overnme ntal unit would, wer e it a private person, be liable t o the claimant acc ording to Texas law.” T E X . C I V . P R A C . & R E M . C O D E § 101.021(2). For immunit y to be waived under section 101.021(2), “per sonal injury or death must be proxi mately cause d by a co n d i t i on or use of tang ible persona l or rea l propert y .” Dallas Cty. Mental Health & Mental Retardati on v. Bossl ey , 968 S.W .2d 339, 342-43 (Tex. 1998). T o establish a waiver of the City ’s immunit y under section 102.021(2), we must there fore deter

mine whether

the phone’ s condition was a pr ox imate ca use of Sanc hez’s death. Prox imate cause require s both “ca use in fac t and fore seea

bility .” Ryde r , 453 S.W .3d at 929. For a condition of proper

ty to be a cause in fac t, the condition must “ser ve[] as ‘a substantial fac tor in causing the injury and without which the injury would not have occur red.’ ” Id. (quoting Del Lago Pa r t n er s , In c. v. Smith , 307 S.W .3d 762, 774 (Tex. 2010)). When a condition or use of proper ty

mere ly furnishes a circ umstance “that makes the i n j u ry possible,” the condition or use is not a

T h e c o u r t o f

a p p e a l s a l s o a f

f i r m e d d i s m i s s a l o f

t h e S a n c h e z e s ’ n e g l i g e n t u s e / m i s u s e c l a i m , b u t t h e y h a v e n o t 1 a p p e a l e d t h a t r u l i n g . 5substantial fac tor in causing the injury

. Bossley , 968 S.W .2d at 343. To be a substantial fac tor, the

condition or use of the proper ty “must actua lly have cause d the injury .” Posey , 290 S.W .3d at 872 (“This nexus require s more than mere involvement of proper ty ; r ather , the condition must actua lly have cause d the injury .”). Thus, the use of proper ty that simply hinders or delay s trea tment does not “ac tually cause [] the injury ” and does not constitute a proxi mate cause of an injury

. See Miller , 51 S.W .3d at 588. I n Miller , prison s t aff misdiagnose d a prisoner’ s mening itis and provided trea tment—including pain-re lievers, anti-nause a medicine, and fluids—that masked the sy mptoms and made it more difficult to corr ectly diag nose the mening itis. Id. We conclude d the trea tment was

n o t a proxi mate cause of the prisoner’ s death beca use it “did not actua lly cause his death.” Id

. I nstead, the prisoner’ s death was cause d by mening itis, “the passag e of time[ ,] and an alleg ed err or in medical judg ment.” Id. Even construing the pleading s liberally , see Miranda , 133 S

. W.3d at 226, the alleg ed telephone- sy stem malfunction was not a proxi mate cause of Sanchez’s death. Be tween the alleg ed malfunction and Sanchez’s death, emer g ency responde rs err oneously conclude d separ ate 9-1-1 calls

wer e redunda

nt and left the apar

tment complex without chec k ing the specific apar tment unit the dispatcher had provided to them. M oreove r, approximately six hours passed betwee n the phone malfunction and Sanchez’s death, further attenuating the causa l c o nn e c ti o n . A lt h o u g h disconnec tion of the telephone call may have contributed to circ umstances that delay ed potentiall y l ife-sa ving assistance , the malfunction was too attenuate d from the cause of Sanchez’s d ea t h

— a d ru g overdose —to be a proxi mate cause . S ee B o s s l ey , 968 S.W .2d at 343 (use of proper ty is not a 6proxi mate cause when it is too attenuate d from the injury). The alleg ed defe ct did not actua lly cause

Sanchez’s death nor was his death “haste ned or exac erba ted” by a telephone malfunction. See Posey , 290 S.W .3d at 872; Miller , 51 S.W .3d at 588. The malfunction was mere ly one of a series of fac tors that contributed to Sanchez not rec eiving timely medical assistance

. See Miller , 51 S.W .3d at 588

. Sanchez’s death was cause d by drug s, the passag e of time, and misint erpr etation of information. See id. (conc luding the death wa s cause d by mening itis, time, and an alleg ed err or in judg ment, not by sy m p t om-masking trea tment). Acc ording ly , the pleading s do not establish a defe ct in the 9-1-1 telephone sy stem was a proxi mate cause of Sanchez’s death as require d to establish a waiver of g overnme ntal immunit y

under the Tort Claims Act. Wit hout hear ing oral arg ument, we reve rse the court of appea ls’ jud gm en t and rende r judgme nt dismi ssing the c ase. See T E X . R. A P P . P. 59.1.

OP INION DELIVERED : J uly 1, 2016

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