IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10555

BRIDGET ALEX, Individually and on Behalf of the Estate of Brandon Alex; 

JASHAWN ALEX; MICHAELLE COHEN; ESTATE OF BRANDON ALEX; 

DETREASURE COKER, 

 Plaintiffs - Appellees

v.

T-MOBILE USA, INCORPORATED; T-MOBILE US INCORPORATED, 

formerly known as MetroPCS Communications Incorporated, 

 Defendants - Appellants

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:17-CV-1532

USDC No. 3:17-CV-2622

Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.

PER CURIAM:*

After Brandon Alex’s death, members of his family (collectively, the 

“Estate”) sued T-Mobile USA, Inc. and T-Mobile US, Inc. (collectively, “TMobile”) and alleged that T-Mobile caused Brandon’s death because its failed 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 6, 2019

Lyle W. Cayce

Clerk

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No. 18-10555

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technology prevented Brandon from receiving timely medical attention after 

an injury. The district court rejected T-Mobile’s assertion of statutory 

immunity because the Estate had plausibly alleged that T-Mobile’s service was 

the proximate cause of Brandon’s death. Although this case is tragic, and the 

Estate’s claim is emotionally compelling, Texas law appears to insulate TMobile from suit—we reverse.

FACTS AND PROCEEDINGS

On March 11, 2017, seven-month old Brandon Alex was injured after 

falling from a daybed. His babysitter dialed 9-1-1 three separate times from 

her T-Mobile/MetroPCS cell phone. She was placed on hold each time, for a 

total of more than forty minutes. Unable to connect to a dispatcher, she

eventually called Brandon’s grandmother, who drove him to an emergency 

room more than an hour after the first 9-1-1 call. Brandon was pronounced 

dead soon after arriving at the hospital.

The Estate sued T-Mobile in state court for claims arising from 

Brandon’s death. The matter was removed to the Northern District of Texas. 

T-Mobile moved to dismiss the claims, asserting statutory immunity. The

district court held that statutory immunity did not bar the claims. The district 

court certified its decision for interlocutory appeal, concluding that it presented 

the following question of law: “whether, as a matter of law, the use of property 

that hinders or delays treatment, without other intervening causes, can never 

be the proximate cause of an injury.” 

STANDARD OF REVIEW

We review de novo a district court’s denial of a motion to dismiss, 

“accepting all well-pleaded facts as true and viewing those facts in the light 

most favorable to the plaintiff[s].” Billings v. Propel Fin. Servs., L.L.C., 821 

F.3d 608, 611 (5th Cir. 2016) (quotation omitted).

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DISCUSSION

In a four-page opinion, the Supreme Court of Texas provided guidance 

on what constitutes proximate cause in a similar case. City of Dall. v. Sanchez, 

494 S.W.3d 722 (Tex. 2016). Sanchez’s parents sued the City of Dallas for 

negligence, alleging that the City’s defective 9-1-1 system caused their son’s 

death. Id. The City moved to dismiss the claims, asserting governmental 

immunity under the Texas Tort Claims Act (“TTCA”). To establish a waiver of 

governmental immunity, the parents needed to establish that “the phone’s 

condition was a proximate cause of Sanchez’s death.” Id. at 726. 

The court articulated the following rule:

Proximate cause requires both cause in fact and 

foreseeability. For a condition of property to be a cause 

in fact, the condition must serve as a substantial factor 

in causing the injury and without which the injury 

would not have occurred. When a condition or use of 

property merely furnishes a circumstance that makes 

the injury possible, the condition or use is not a 

substantial factor in causing the injury. To be a 

substantial factor, the condition or use of the property 

must actually have caused the injury. Thus, the use 

of property that simply hinders or delays 

treatment does not actually cause the injury and 

does not constitute a proximate cause of an 

injury.

Id. at 726 (citations and quotations omitted) (emphasis added).

Under Texas Health and Safety Code §§ 771.053(a) and 772.407, TMobile is immune from claims arising out of its provision of 9-1-1 services 

“unless the act or omission proximately causing the claim, damage, or loss 

constitutes gross negligence, recklessness, or intentional misconduct.” So, the 

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Estate must establish proximate cause to prevail on a claim against T-Mobile

under the statutes.1 See id.

The parties debate the binding effect of the above-quoted Sanchez

statement. At an absolute minimum, the statement is non-erroneous judicial 

dictum, and we must follow it under the Erie doctrine.2

In Texas, there are two types of dicta: obiter dictum and judicial dictum. 

Autobahn Imports, L.P. v. Jaguar Land Rover N. Am., L.L.C., 896 F.3d 340, 

346 (5th Cir. 2018). Obiter dictum is made in passing and is not binding. Id. 

Judicial dictum is “a statement made deliberately after careful consideration 

and for future guidance in the conduct of litigation.” Id. Judicial dictum

“should be followed unless found to be erroneous.” Id.

In Sanchez, the statement appears as the culminating point of the rule 

statement. Sanchez, 494 S.W.3d at 726. Based on the language and structure 

of the opinion, this statement appears to be deliberate and “plainly intended 

to guide future courts and litigants” on the appropriate requirements to 

establish proximate cause in similar circumstances. Autobahn, 896 F.3d at 

347 (emphasis removed). Accordingly, the statement must at least be treated 

as judicial dictum.3

To the extent the facts in Sanchez are slightly different from those at 

hand, “this court must make an ‘Erie guess,’ i.e., forecast how the Supreme 

Court of Texas ‘would rule.’” Mid-Continent Cas. Co. v. Eland Energy, Inc., 709 

 

1 The Estate argues that “[a]s long as pleadings plausibly allege gross negligence, 

recklessness and/or intentional misconduct, §§ 771.053(a) and 772.407 provide no immunity 

to T-Mobile.” However, this is at odds with the quoted portion of the relevant statutes.

2 While T-Mobile argues that the Sanchez statement was not dictum at all, we need 

not reach this issue. 3 And the Estate cannot show that the statement is somehow erroneous. Indeed, it is 

consistent with the approach to proximate causation that Texas outlined more than a decade 

earlier. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001) (cited 

favorably in Sanchez). 

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F.3d 515, 520 (5th Cir. 2013) (citing Paz v. Brush Engineered Materials, Inc., 

555 F.3d 383, 392 (5th Cir. 2009)). “This prediction may be based on [Texas] 

case law, dicta, general rules on the issues, decisions of other states, and 

secondary sources.” Id. (alteration in original).

Based on the express language of the Sanchez statement, we conclude 

that the Supreme Court of Texas would probably rule that the Estate has failed

to plead facts that could support a finding of proximate cause. Accordingly, the 

district court erred in attempting to modify Texas’s proximate cause law. See 

W.-S. Life Assurance Co. v. Kaleh, 879 F.3d 653, 658 (5th Cir. 2018) (“When 

making an Erie guess, [o]ur task is to attempt to predict state law, not to create 

or modify it.” (alteration in original) (quotation omitted)). 

CONCLUSION

For the foregoing reasons, we REVERSE the district court and REMAND 

with instructions to dismiss the action against T-Mobile.

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