COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00152-CV

SOMCHAI SARAMANEE AND 

ANDREW TERRELL BOGGESS

APPELLANTS

V.

TOWN OF NORTHLAKE APPELLEE

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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellants Somchai Saramanee and Andrew Terrell Boggess appeal from 

the trial court‘s grant of Appellee the Town of Northlake‘s plea to the jurisdiction. 

In three issues, Saramanee and Boggess argue that they pled sufficient facts to 

establish a waiver of governmental immunity under section 101.021 of the Texas 

Tort Claims Act (TTCA), that Northlake did not produce evidence establishing 

 

1See Tex. R. App. P. 47.4.
2

that section 101.021 does not apply, and that even if section 101.021 does not 

waive immunity, immunity is waived under section 101.0215 for negligence 

arising from Northlake‘s provision of police enforcement. Because we hold that 

Saramanee and Boggess alleged sufficient facts to demonstrate a waiver of 

immunity under section 101.021, we reverse the trial court‘s order dismissing 

their claims.

While on patrol on October 7, 2007, Northlake Police Officer Nick 

McGregor observed a group of motorcyclists driving on the freeway; two 

motorcyclists in the front of the group were speeding and performing ―wheelies.‖ 

McGregor decided to stop the motorcyclists, and to do so, he drove onto the 

freeway on ramp, crossed the white lines to get into the right lane, got in front of 

the two motorcycles in the lane, and then stopped his car in the lane. Of the two 

motorcyclists, one came to a stop and the other drove around the police car and 

did not stop. McGregor opened his driver‘s side car door and exited his vehicle

on the driver‘s side. Boggess and Saramanee were among the motorcycle

drivers in the group, and an accident occurred when Saramanee struck 

Boggess‘s motorcycle.

Boggess and Saramanee filed suit against the Town of Northlake, alleging 

that McGregor was recklessly and grossly negligent in the operation of his police 

vehicle. Northlake filed a plea to the jurisdiction, asserting governmental 

immunity and contending that (1) Boggess and Saramanee had not stated a 

claim for which the town‘s immunity from suit had been waived and (2) Boggess 
3

and Saramanee had failed to allege facts showing either that their injuries had 

been caused by the use or operation of a motor vehicle2or by the condition or 

use of tangible personal property.3

In their response, Boggess and Saramanee did not specify which section 

of the TTCA waived immunity for their claims, but they asserted that there was ―a 

clear nexus between [McGregor‘s] use of the vehicle‖ and their injuries, and they 

used the ―arises from‖ language of section 101.021(1), impliedly arguing that 

their injuries were caused by the operation or use of McGregor‘s vehicle. They 

attached to their response an internal investigation memo from the Northlake 

police department, which stated that McGregor had violated department 

directives by using his vehicle to block the roadway and by failing to have due 

regard for the safety of other vehicles on the roadway.

At the hearing on Northlake‘s plea to the jurisdiction, Boggess and 

Saramanee put on evidence to show that the accident resulted from McGregor‘s 

actions. The trial court watched the video from the in-car camera in McGregor‘s 

vehicle. Boggess then testified about the accident. He stated that as he was 

driving on the freeway, he saw an all-black car driving on the service road at a 

high rate of speed. He saw the driver cut across the solid white line to get onto 

 

2See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1) (Vernon 2011) 

(waiving a governmental unit‘s immunity for injuries and damages arising from 

the use or operation of a motor vehicle).

3See id. § 101.021(2) (waiving immunity for damages resulting from the 

use or condition of tangible property).
4

the interstate, come to a complete stop, and turn on its emergency lights. After 

McGregor‘s car stopped, Boggess started slowing down to miss the vehicle, 

―which [he] just thought was an erratic driver.‖ When McGregor exited the car, 

Boggess saw that it was a police officer, ―so [he] took evasive action to make 

sure that [he] did not contact the officer himself, which led to the accident.‖ 

Boggess also testified that he did not have a Class M certification on his driver‘s 

license, and he acknowledged that other motorcycle drivers were able to pass 

McGregor‘s vehicle to the left and on the shoulder to the right.

Northlake argued that the evidence did not show that it was the use of 

McGregor‘s vehicle that directly caused Boggess‘s and Saramanee‘s damages, 

but rather that McGregor‘s use of the vehicle merely created the condition that 

made the accident possible. After hearing the evidence, the trial court concluded 

that the damages did not arise from McGregor‘s use or operation of his motor 

vehicle. The court noted that the evidence showed that another motorcyclist had 

time to come to a complete stop behind McGregor‘s vehicle even though he had 

been ahead of Boggess on the road and that McGregor had time to get out of his 

vehicle before the accident occurred. The trial court also referenced Boggess‘s 

testimony regarding why he swerved:

He says he sees the car coming at a high rate of speed, coming 

down . . . the access road, pulling onto the road at a high rate of 

speed. He doesn‘t think it‘s a police car, so I guess he just doesn‘t 

care if it‘s not a police car. After [McGregor] stops, turns on his 

lights, and . . . swings open the door and puts his feet [on the road], 

then [Boggess] says, oh, it‘s a police officer, I guess I better swerve
5

it since it‘s a police officer. I mean, that—your client‘s testimony 

doesn‘t make any sense in that regard.

The court then concluded, ―What I see when I look at the video[], and 

coupled with your own client‘s testimony is, that the vehicle was in park, and the 

officer‘s feet were on the pavement, he was not using or operating the motor 

vehicle at the time the accident occurred.‖ The trial court then granted 

Northlake‘s plea to the jurisdiction.

Governmental Immunity

The state has sovereign immunity from suit and from liability unless that 

immunity has been waived.4 Cities, as political subdivisions of the state, are also 

entitled to immunity—referred to as governmental immunity—both from suit and 

from liability, except when that immunity has been waived.5

The TTCA waives immunity from liability for

property damage, personal injury, and death proximately caused by 

the wrongful act or omission or the negligence of an employee 

acting within his scope of employment if:

(A) the property damage, personal injury, or death 

arises from the operation or use of a motor-driven 

vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the 

claimant according to Texas law.

6

 

4State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009).

5Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).

6

Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).
6

To the extent that the TTCA waives a governmental unit‘s immunity from liability, 

it also waives the governmental unit‘s liability from suit.7

Standard of Review for Pleas to the Jurisdiction

We review a trial court‘s ruling on a plea to the jurisdiction de novo.8 A

plaintiff has the burden of alleging facts that affirmatively demonstrate that the 

trial court has subject-matter jurisdiction.9 Accordingly, because a governmental 

unit has immunity from suit, a plaintiff asserting a claim against a governmental 

unit must allege facts that affirmatively demonstrate that the legislature has 

waived immunity for the claims brought.10

In determining a plea to the jurisdiction challenging the pleadings, that is, 

asserting that the plaintiff has not met this burden, a court looks at the allegations 

in the plaintiff‘s pleadings and accepts them as true.11 If, however, the plea to 

the jurisdiction challenges the existence of jurisdictional facts, a court must also 

consider the relevant evidence necessary to resolve the jurisdictional issues 

 

7

Id. § 101.025(a) (―Sovereign immunity to suit is waived and abolished to 

the extent of liability created by this chapter.‖).

8Pakdimounivong v. City of Arlington, 219 S.W.3d 401, 407 (Tex. App.—

Fort Worth 2006, pet. denied).

9City of Fort Worth v. Robinson, 300 S.W.3d 892, 895 (Tex. App.—Fort 

Worth 2009, no pet.).

10City of Arlington v. Randall, 301 S.W.3d 896, 906 (Tex. App.—Fort Worth 

2009, pet. filed).

11Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 

2004); Pakdimounivong, 219 S.W.3d at 407.
7

raised.12 When a jurisdictional challenge also implicates the merits of the 

plaintiff‘s claim, then the trial court considers the evidence submitted by the 

parties to determine if a fact question exists.13 If the evidence creates a fact 

question about the jurisdictional issue, then the trial court cannot grant the plea to 

the jurisdiction; instead, the trial court must leave the fact issue for determination 

by the fact finder.14 But if the evidence is undisputed, or if the evidence does not 

raise a fact question on the jurisdictional issue, the trial court rules on the plea to 

the jurisdiction as a matter of law.15

Analysis

In their first issue, Saramanee and Boggess argue that they pled sufficient 

facts to establish a waiver of governmental immunity under section 101.021 

based on their allegations that McGregor operated and used a patrol car 

negligently in a manner that caused an accident, resulting in Saramanee‘s and 

Boggess‘s property damage and injuries.

In Northlake‘s plea to the jurisdiction, it challenged both the pleadings and 

the existence of jurisdictional facts. With respect to Northlake‘s challenge to their 

pleadings, Saramanee and Boggess had the burden to plead facts that, if true, 

 

12Miranda, 133 S.W.3d at 227.

13Id.

14Id. at 227–28.

15Id. at 228.
8

demonstrate (1) that their damages were proximately caused by McGregor‘s 

negligence or wrongful act during the scope of his employment, (2) that the 

damages resulted from the operation or use of a motor-driven vehicle, and (3) 

that McGregor would be personally liable to them under Texas law.16 Northlake‘s 

plea to the jurisdiction challenged their pleadings with respect to the ―operation or 

use‖ element. In their petition, Saramanee and Boggess alleged that without 

operating his siren or emergency lights, McGregor pulled onto the highway at a 

high rate of speed directly in front of the motorcycle drivers and then ―suddenly 

slammed on his brakes[,] forcing the motorcycles to take emergency evasive 

action to avoid a collision with the patrol unit.‖ If such action on McGregor‘s part 

constitutes the operation or use of a motor vehicle, and if the damages 

complained of arose from this operation or use, then their pleadings sufficiently 

alleged a waiver of immunity.17

At issue here are the terms ―arises from‖ and ―operation or use.‖ The term 

―operation‖ means ― ̳a doing or performing of a practical work,‘‖ and the term 

―use‖ means ― ̳to put or bring into action or service; to employ for or apply to a 

given purpose.‘‖18 By use of the phrase ―arises from,‖ the statute ―requires a 

 

16See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1); Miranda, 133 

S.W.3d at 227.

17See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1).

18LeLeaux v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 

1992) (quoting Mount Pleasant Indep. Sch. Dist. v. Estate of Lindburg, 766 

S.W.2d 208, 211 (Tex. 1989)).
9

nexus between the injury negligently caused by a governmental employee and 

the operation or use‖ of a vehicle by the employee.19 The nexus ―requires more 

than mere involvement of property.‖20 For immunity to be waived, the 

employee‘s operation or use of the vehicle must not be merely part of a 

sequence of events that ultimately results in the injury but must actually cause 

the injury.

21 If the vehicle is nothing more than the place where the plaintiff has 

injured himself, or if the vehicle does no more than furnish the condition that 

makes the injury possible, immunity is not waived.22

Saramanee and Boggess alleged in their petition that without operating his 

siren or emergency lights, McGregor pulled onto the highway at a high rate of 

speed directly in front of the motorcycle drivers and then ―suddenly slammed on 

his brakes[,] forcing the motorcycles to take emergency evasive action to avoid a 

collision with the patrol unit.‖ In their response to Northlake‘s plea, they asserted 

that McGregor slammed on his brakes to block their path at a time when they did 

not have sufficient time or distance from his vehicle to stop. These facts do not 

 

19Id.

20Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003).

21Id.

22Id.; LeLeaux, 835 S.W.2d at 51; see also Dallas County Mental Health & 

Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (holding that 

immunity is not waived based on the use or condition of tangible property when 

the use or condition of the property was too attenuated from the injury to be said 

to have caused it).
10

allege that McGregor‘s actions with his vehicle merely furnished a condition that 

made the accident possible or that his actions were merely part of a sequence of 

events that ultimately led to their injuries. They allege that Boggess had to take 

emergency evasive action to avoid hitting McGregor because of McGregor‘s 

actions and that McGregor‘s operation of his vehicle was the reason for and 

actual cause of Boggess‘s swerving into the left lane and Saramanee‘s resulting 

collision with Boggess. Saramanee and Boggess‘s pleadings thus alleged facts 

showing that their injuries arose from McGregor‘s use or operation of his 

vehicle.23 Accordingly, we hold that Saramanee and Boggess sufficiently pled a 

waiver of Northlake‘s immunity. We sustain their first issue.

In their second issue, Saramanee and Boggess argue that Northlake did 

not meet its burden to prove that their injuries and property damage did not arise 

from and were not caused by McGregor‘s operation or use of his patrol car. In 

addition to challenging Saramanee and Boggess‘s pleadings, Northlake also 

challenged the existence of jurisdictional facts, that is, it argued that the facts of 

the case did not give rise to jurisdiction. Because the facts as pled sufficiently 

alleged a waiver of immunity, in order to prevail on its plea, Northlake had to

show that despite what Saramanee and Boggess pled, their damages actually 

 

23See, e.g., Hitchcock v. Garvin, 738 S.W.2d 34, 37 (Tex. App.—Dallas 

1987, no writ) (holding that the plaintiffs had alleged a waiver of immunity based 

on the operation of a motor-driven vehicle when they alleged that a bus driver

failed to activate the flashers or warning signals of the school bus when children 

were exiting and that their daughter was struck by a car as she crossed the street 

immediately after exiting the bus).
11

arose in some manner other than as alleged and that the manner in which the 

damages arose did not support a waiver of immunity.

Northlake alleged below that the damages complained of did not arise from 

McGregor‘s operation or use of his motor vehicle because the damages were 

actually caused when Saramanee drove his motorcycle into Boggess‘s 

motorcycle. And again on appeal, Northlake points out that at the time of the 

accident, McGregor‘s vehicle was not being used or operated. But what matters 

is not whether McGregor was driving his vehicle at the exact moment of the 

collision, but whether McGregor did actually use or operate his vehicle and 

whether that use or operation gave rise to the injuries. Northlake had the burden 

to bring forth favorable evidence on this point.

24

 If it did so, Saramanee and 

Boggess would then have had the burden to submit evidence raising an issue of 

fact on the issue of jurisdiction.25

The trial court considered evidence submitted by both sides about the 

cause of the accident.26 The evidence conflicted about whether, as Northlake 

police department‘s report stated, Saramanee and Boggess ―possibly were 

unable to see [McGregor‘s] vehicle parked in the roadway due to the other 

motorcycles in front of them,‖ or whether, as Boggess testified, he did see 

 

24See Miranda, 133 S.W.3d at 227.

25See id.

26See id.
12

McGregor‘s vehicle. The evidence also conflicted on whether Boggess had 

come to a stop at the time that he was struck by Saramanee. Boggess also gave 

seemingly contradictory evidence about whether he could have avoided hitting 

McGregor‘s vehicle without swerving into the left lane, at one point stating that if 

McGregor had not exited the patrol car, he could have stayed in the same lane 

and passed the vehicle without moving into the left lane, and stating at another 

point that his only choice was between moving into the left lane and hitting 

McGregor‘s vehicle.

The trial court was not called upon, however, to resolve these factual 

disputes because while the evidence may raise questions of fact about the merits 

of Saramanee and Boggess‘s claims, it does not raise questions of fact on the 

issue of jurisdiction.

27

 Regardless of whether Boggess stopped his motorcycle 

and was then hit by Saramanee or was hit by Saramanee because he swerved 

into Saramanee‘s driving lane, and regardless of whether it was McGregor or his 

vehicle that Boggess was attempting to avoid hitting, even Northlake‘s evidence 

showed that McGregor‘s actions directly set in motion the rapid sequence of 

events that resulted in the accident, either because Boggess took evasive action 

to avoid hitting McGregor or his vehicle (after McGregor used his vehicle by 

 

27See id. at 227–28 (stating that if the evidence creates a fact question on 

the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction 

and must leave the fact issue for the fact finder, but that if the relevant evidence 

fails to raise a fact question on the jurisdictional issue, then the trial court rules on 

the plea to the jurisdiction as a matter of law).
13

stopping on the freeway and by opening the door) or because McGregor used his 

vehicle as a blockade, resulting in Boggess stopping his motorcycle and 

Saramanee striking it almost immediately after the stop. Without regard to what 

the evidence at trial will ultimately show, under any of the factual scenarios 

supported by the evidence submitted to the trial court for jurisdictional purposes, 

Northlake failed to show that Saramanee‘s and Boggess‘s damages did not arise

from McGregor‘s use or operation of his vehicle.

28

Northlake contends that the video from the in-car camera in McGregor‘s 

vehicle conclusively showed that his use of the vehicle was too attenuated from 

the accident. It argues that the video demonstrated a gap of eight to fourteen 

seconds between when McGregor stopped and when the accident occurred and 

a gap of twelve to eighteen seconds between the time at which McGregor 

activated his emergency lights and the time of the accident. Northlake bases its 

calculations on the time stamp on the video, from the time at which the video 

shows McGregor entered the freeway and the time at which McGregor can be 

heard saying ―What happened? You okay?‖ Even assuming that a time gap of 

less than thirty seconds between two events could make the second event too 

attenuated from the first to show causation, Northlake is incorrect that the video 

 

28See Austin Indep. Sch. Dist. v. Gutierrez, 54 S.W.3d 860, 867 (Tex.

App.—Austin 2001, pet. denied) (holding that the trial court did not err by denying 

a school district‘s plea to the jurisdiction because school bus driver‘s affirmative 

act in honking to signal to a student that the street was safe to cross was a use of 

the bus and may have contributed to the accident); Hitchcock, 738 S.W.2d at 37.
14

conclusively shows that McGregor‘s vehicle did no more than furnish a condition 

that made the injuries possible. The camera was facing forward, and therefore it 

did not record the accident or any events that happened behind McGregor‘s 

vehicle. The video thus does not conclusively establish sufficient attenuation 

between McGregor‘s actions and the accident.

Northlake cites cases that it urges this court to follow, but those cases are 

distinguishable. This is not a case in which the facts alleged in the pleadings or 

the evidence demonstrated that Boggess and Saramanee could have avoided 

the accident if they had not ignored McGregor‘s flashing lights until it was too 

late.29 Nor is this a case when the plaintiffs‘ allegations showed or the evidence 

before the trial court proved that Boggess chose to move over into another lane 

instead of stopping; here, Boggess alleged and testified that he did not have time 

to stop, and Northlake‘s evidence did not conclusively prove otherwise.

30

 Finally, 

this case is not one in which the plaintiffs were injured because they attempted to 

evade the police instead of yielding to a traffic stop.31 None of the cases cited by 

 

29See City of Kemah v. Vela, 149 S.W.3d 199, 204 (Tex. App.—Houston 

[14th Dist.] 2004, pet. denied) (holding that immunity was not waived when the 

plaintiff‘s injuries resulted from a driver ignoring the flashing lights of two police 

cars and striking the vehicle in which the plaintiff was sitting).

30See Tex. Dep’t of Pub. Safety v. Grisham, 232 S.W.3d 822, 827 (Tex. 

App.—Houston [14th Dist.] 2007, no pet.) (holding that immunity was not waived 

when the plaintiff driver, upon seeing a stopped patrol car on the shoulder, chose 

to move into the left lane, which was obstructed by a vehicle, instead of slowing 

down).
15

Northlake addressed a scenario in which a government employee‘s use or 

operation of a vehicle creates a situation that requires immediate evasive action

that results in injuries. Accordingly, we sustain Saramanee and Boggess‘s 

second issue.

Because we have sustained their first two issues, which are dispositive, we 

do not reach Saramanee and Boggess‘s third issue in which they argue that 

Northlake‘s immunity was waived under section 101.0215 of the TTCA.

32

Having sustained Saramanee and Boggess‘s dispositive issues, we 

reverse the trial court‘s order dismissing their claims for want of jurisdiction and 

remand this cause for further proceedings.

LEE ANN DAUPHINOT

JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: March 17, 2011

 

31See City of Dallas v. Hillis, 308 S.W.3d 526, 535 (Tex. App.—Dallas 

2010, pet. filed) (concluding that the police officer‘s use of his patrol car was too 

attenuated from the plaintiff‘s conduct to constitute a cause of the plaintiff‘s 

injuries when the police officer attempted to initiate a traffic stop of the plaintiff 

and, instead of stopping, the plaintiff accelerated, attempted to flee, and 

ultimately lost control of his motorcycle).

32See Tex. R. App. P. 47.1.