* District Judge for the Eastern District of Texas, sitting by

designation.

** 

### Pursuant to 5 TH 

### C IR



### . 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 5 TH 

### C IR



### . R. 47.5.4.

-1- IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 99-40591

cons w/99-40612

____________________

RUTH HILL, ET AL.

Plaintiffs-Appellants

Cross Appellees,

versus

CITY OF HOUSTON,

Defendant-Appellee

Cross Appellant.

_______________________________________________________________________

Appeals from the United States District Court

for the Southern District of Texas

(G-97-CV-578)

____________________________________ ___________________________________ October 11, 2000

Before JONES and BENAVIDES, Circuit Judges, and COBB, District Judge *

COBB, District Judge **

Both sides appeal from a jury trial before a magistrate judge.

There are three issues before us on appeal. The first is whether the City

of Houston had actual notice of the claim under the provisions of the

Texas Tort Claims Act. The second issue is whether the evidence at trial

was sufficient to support a finding that the negligence of the Houston1 While another truck, Booster 67 arrived concomitantly with Ladder 67,

Booster 67 is not used to fight fires. It is a pickup truck which has a small

water tank (used for grass fires) and carries an extra firefighter to the

fire.



### -2- Fire Department caused the plaint iffs’ injuries. The third issue is

whether the plaintiffs’ claims are barred by sovereign immunity as

limited by the Texas Tort Claims Act. Because our review of the record

in the trial court convinces us a s a matter of law that the requisite

elements of actual notice were conclusively proven, we reverse the jury’s

finding that the City did not have notice until December 16, 1997 and

affirm the jury’s findings on causation and damages. We also hold that

the plaintiffs’ claims are not barred by sovereign immunity.

I. BACKGROUND

On December 5, 1995, an employee at station 67 of the Houston Fire

Department (HFD) reported to the Fleet Maintenance Division that the pump

on Ladder Truck 67 was broken and inoperable. On December 20, 1995,

Ladder 67 responded to a house fire in Houston. It was the first truck

to arrive but the broken pump prevented the firefighters’ access to the

home and the homeowner later died in the hospital. On December 21, 1995

a second request to repair the broken pump was made.

On January 4, 1996, a fire at the home of Ruth Hill (Hill) was

reported to HFD. Ladder Truck 67 was the first fire-truck on the scene

but again, the inoperable pump prevented firefighters from putting water

on the fire. 1 Another HFD truck (an Engine truck)arrived within two to

two and a half minutes later. (Tr. 250). After pumping water on the fire,

the firefi ghters were able to enter the home and upon entrance, they

discovered the bodies of four-year old Alex Freeman and five-year old2 The letter is fully set out in an appendix attached to this opinion.



### -3- Crystal Durden on a couch in the den located in the middle of the home.

Autopsies revealed that the children died of smoke inhalation,

specifically, as p hyxia due to soot and carbon monoxide. The apparent

cause of the fire was a space hea ter located in the front room of the

house. Tellas Williams, the children’s sixteen year old cousin who was

babysitting them escaped but was unable to rescue the children.

On January 13, 1996, Ladder Truck 67 responded to yet a third fire

without the pump being repaired. On January 22, 1996 the pump was finally

inspected and the problem was discovered: a blown twenty-five cent fuse

which was replaced in thirty minutes. Captain Boze then wrote and hand

delivered a scathing letter to his HFD superiors detailing the problem

with the pump and the motor-repair department’s troubles in repairing

it. 2

The ladder truck at Houston Fire Station 67 is equipped with a 300-

gallon water tank and a pump to use that water directly on the fire

without a connecting hose to a fire hydrant. It is called a “quint”

because it has five functions: (1) it has a large aerial ladder which can

extend 108 feet above the ground; (2) it carries smaller, movable

ladders; (3) it carries the “jaws of life” and other tools for entry,

ventilation, lighting and search and rescue; (4) it has a pump; and (5)

it has a tank to hold water. At most fires an engine truck or pumper is

also dispatched. The pumper’s primary job is to put water on a fire. It

can connect to a fire hydrant and carries a much larger tank and pump

than the ladder truck.3 See Hill v. City of Houston , 991 F. Supp. 847 (S.D. Tex. 1998). Judge

Kent dismissed the Fifth and Eighth Amendment claims but denied the Rule

12(b)(6)Motion to dismiss with respect to the Fourteenth Amendment,

conspiracy, and state law claims.



### -4- On October 6, 1997 the plainti ffs filed suit against the City in

Fede ral district court bringing state law claims under the Texas Tort

Claims Act and alleging violations of the United States Constitution.

Plaintiffs alleged the City’s negligence in failing to maintain and

repair the pump caused a delay in the fire department’s efforts to rescue

the children which resulted in their injuries and eventual deaths.

Specifically, plaintiffs alleg ed that on December 5, 20, and 21, HFD

employees reported the pump as a “Priority One” repair which according

to department policy required it to be repaired within twenty-four hours.

The representative of the decedents sent formal notices to the City on

December 16, 1997. The city moved to dismiss the state law claims on the

notice issue but the motion was denied by Judge Kent. 3

After a trial before Magistrate Judge Froeschner, the jury returned

a verdict in favor of the plaintiffs but found that the City did not have

notice of the claim until December 16, 1997–thus precluding recove r y

under the Texas Tort Claims Act. The Jury answered as follows:

Question 1: Was the inoperative pump on Ladder 67 a proximate

cause of the death of Crys tal Durden and Alex Freeman?

Answer “Yes” or “No”.

Answer: Yes

Question 2: Do you find from a preponderance of the evidence

that the “November 22, 1994 memorandum [sic] (Plaintiffs’

Ex h ibit 8) stated the official policy of the Houston Fire

Department regarding the repair of fire trucks duri ng the

period from December 5, 1995 to January 4, 1996? Answer

“Yes” or “No.”

Answer: Yes

### -5-

Question 3: Did the Houston Fire Department violate the

official policy? Answer “Yes” or “No.”

Answer: Yes

Question 4: On what date did t he Houston Fire Department

receive actual notice of Plaintiffs’ claims arising from the

fire at 2109 Ellington?

Answer: 12/17/96

Question 5: What sum of money, if paid now in cash, would

fairly and reasonably compensate Schanell Durden for her

damages, if any, resulting from the death of Crystal Durden?

Answer: $100,000.00 (past)

$300,000.00 (future)

Question 6: What sum of money would have fairly and reasonably

compensated Alex Freeman forElement a. Pain and mental anguish

Element b. Funeral and burial expenses.

Answer in dollars and cents for damages, if any.

Answer: $400,000.00

Question 7: What sum of money would have fairly and reasonably

compensated Crystal Durden forElement a. Pain and mental anguish

Element b. Funeral and burial expenses.

Answer in dollars and cents for damages, if any.

Answer: $400,000.00

Plaintiffs filed a motion to set aside the jury verdict or in the

alternative for judgment not withstanding the verdict (JNOV) arguing the

City had actual notice and that the jury confused “actual notice” with

“form al notice.” The City filed a motion to set aside the rest of the

jury findings. Both of these motions were denied by the magistrate judge

who then entered a take-nothing judgment for the City. This appeal by the

plaintiffs and cross-appeal by the City followed.

II. Standard of Review

We review rulings on motions for directed verdict and for JNOV de

novo, applying the same standard as the district court, Quest Medical,

Inc. v. Apprill

, 90 F.3d 1080, 1085 (5th Cir. 1996) (citations omitted).

### -6-

The standard of review for these motions was succinctly set out in Boeing

Co. v. Shipman , to wit:

[T]he court should consider all of the evidence–not just that

evidence which supports the non-mover's case–but in the light

and with all reasonable infe rences most favorable to the

party opposed to the motion. If the facts and inferences

point so strongly and overwhel mingly in favor of one party

that the Court believes that reasonable men could not arrive

a t a contrary verdict, granting [JNOV] is proper. On the

other hand, if there is substantial evidence opposed to the

motion[ ], that is, evidence of such quality and weight that

reasonable and fair-minded men in the exercise of impartial

judgment might reach different conclusions, [JNOV] should be

denied.... [I]t is the function o f the jury as the

traditional fi n der of facts, and not the court, to weigh

conflicting evidence and inferences, and determine the

credibility of witnesses.

411 F.2d 365, 374-75 (5th Cir.1969) (en banc), overruled on other grounds

by Gautreaux v. Scurlock Marine, Inc.

, 107 F.3d 331 (5th Cir. 1997) (en

banc). The verdict must be upheld unless the facts and inferences point

so strongly and overwhel mingly in favor of one party that reasonable

[people] could not arrive at any verdict to the contrary.” S cottish

Heritable Trust v. Peat M arwick Main Co. , 81 F.3d 606, 610 (5th Cir.

1996).

III. The Evidence Presented At Trial

A. Actual Notice

The Texas Tort Claims Act (TTCA) states that a governmental unit

is entitled to receive notice of a claim not later than six months after

the day the incident giving rise to the claim occurred. T EX

. C IV

. P RAC

. &

R EM

. C ODE § 101.101(a) (Vernon 1986). This notice requirement does not

apply if the governmental unit has actual notice of the claimant’s injury

or death. T EX

. C IV

. P RAC

. & R EM

. C ODE §101.101(c). The purpose of the notice4 As a Home Rule city, the City of Houston is entitled to establish its

own rules adjusting the State statutory time period. T EX

. L OC

. G OV ’ T C ODE §

51.077 (Vernon 1999). The City’s Home Rule Charter Notice period is ninety

days. While it is uncontested that the plaintiffs did not give the City formal

notice within this period, this is moot in light of our finding that the city

had actual notice.



### -7- provis ion is to ensure prompt reporting of claims to enable the

governmental unit to investigate the merits of a claim while the facts

are fresh and the conditions remain substantially the same. See City of

Houston v. Torres , 621 S.W.2d 588, 591 (Tex. 1981). 4

In Cathey v. Booth

, the Texas Supreme Court held that actual notice

to a governmental unit requires knowledge of (1) a death , injury, or

property damage; (2) the governmental unit’s alleged fault producing or

contributing to the death, injury, or property damage; and (3) the

identity of the parties involved. 900 S.W.2d 339, 341 (Tex. 1995). Actual

notice may be imputed only when an agent or representative charged with

a duty to investigate and report to the governmental unit receives the

three elements of actual notice. See Gonzalez v. El Paso Hosp. Dist.

, 940

S.W .2d 793, 795-96 (Tex. App.–El Paso 1997, no writ); D inh v. Harris

County Hosp. Dist ., 896 S.W.2d 248, 253 (Tex. App.–Houston [1st Dist.]

1995, writ dism’d w.o.j.).

The issue in Cathey was whether a hospital’s medical records

conveyed the elements of alleged fault to the hospital. The Texas Supreme

Court held merely providing medical records from which one could conclude

that the unit was at fault does not constitute actual notice. 900 S.W.2d

at 342. The document which purports to give actual notice must clearly

convey the alleged fault of the governmental unit in causing the injury.

See e.g., Gaskin v. Titus County Hosp. Dist

., 978 S.W.2d 178, 182 (Tex.5 The letter was undated, but it is undisputed it was received on

January 23, 1996.

6 The memo was received by Tommy Shelton in February 1996 from Deputy

Chief Whitehorn. The note was written by Shelton. (Tr.355).



### -8- App.–Texarkana 1998, pet. denied) (“Medical records may . . . create a

fact issue if they indicate to the hospital its possible culpability in

causing the injuries.”).

Plaintiffs argue that the letter of Captain Boze constitutes actual

notice as a matter of law. We agree. On January 23, 1996, Captain Boze

sent a letter to his superiors at the Houston Fire Dep artment which

clearly notifies the City of its alleged fault. 5 After detailing his

conversations with the repair shop and the three fires in which his

unit’s response was delayed by the broken pump, Captain Boze wrote: “.

. . I cannot understand, the apparent negligence on someone’s part, in

this matter. I am not saying that if the pump had been working on

December 20, 1995 [(redacted material)], or January 04, 1996 (Loss of Two

Lives) ,that the outcome would have been different, this we will never

know. This minor problem, which became a very significant problem, not

only affected the victims of the fires and their families, but also the

dedicated crew’s [sic] of Ladder 67

. . .” (emphasis added). This letter

does more than the medical records in C athey –it gives clear and

unequivocal notice that the City’s negligence may have contributed to the

deaths of the two children and the homeowner in the first fire. Further,

on plaintiffs’ exhibit 6 there is a handwritten notation indicating that

the matter in the motor repair department was discussed with Chief

Whit ehorn. 6 Hence, the letter achieved the purpose envisioned by the

notice statute: it spurred an investigation into the HFD priority repair

### -9-

system.

The City argues that Boze’s letter did not notify the City of its

alleged fault because the idea of potential legal problems never entered

his mind when he wro te the letter. Captain Boze’s state of mind

however, is irrelevant to the issue of whether the City had notice of its

culpability. Plaintiffs’ exhibit six indicates HFD took the letter

seriously enough to investigate the motor shop’s operations at the time

of the incident. If potential legal ramifications were not on Boze’s mind

when he wrote the letter, that is certainly not reflected in his writing.

The City next argues that the letter was insufficient to constitute

notice because it did not specifically state the names “Crystal Durden”

and “Alex Free man” or any of the other plaintiffs. None of the cases

considering actual notice have required the parties be identified with

the specificity urged by the city. Captain Boze, an employee with a duty

to investigate and report, knew who the victims were because he was at

the scene of the fire. Additionally there were several arson, EMS, and

incident reports each of which contained the names and addresses of the

victims.

Boze’s letter indicates that Boze and his HFD superiors knew that

(1) two deaths and property damage had occurred; (2) that the “apparent

negligence” of the HFD repair facility may have contributed to the

chil dren’s deaths; and (3) the identity of the parties involved. We

find that Boze’s letter establishes that the City had actual notice of

the plaintiffs’ claims as a matter of law nineteen days after the January

4, 1996 fire and that no reasonable jury could have reached a contrary7 A flashover occurs when smoke and gasses from the initial fire rise to

the ceiling of the room and begin to collect. Eventually this hot cloud

mushrooms out until it hits a wall or door where it begins to radiate back

down into the room. As the smoke and gas fill the room, the temperature

increases until the point that all remaining combustible items in the room

ignite, filling the room with flame.



### -10- verdict. We therefore reverse the jury’s findings a nd reverse the

magistrate’s denial of the plaintiffs’ motion for judgment JNOV.

B. Sufficiency of the Evidence as to Cause

On Cross-Appeal the City appeals the district court’s order denying

the City’s motion to set aside certain jury findings. The City first

argues that the jury’s answer to Question 1 (that HFD’s negligence was

the cause of the plaintiffs’ injuries) was not supported by the evidence.

Unlike the jury’s answer to interrogatory numb er four, there is ample

evidence in the record to support the finding that the Fire Department’s

negligence caused the deaths of Alex Freeman and Cyrstal Durden as well

as the other injuries.

The City argues that the jury could not have reached the conclusion

th at the broken pump caused the deaths of the children because the

evidence proved the children were dead by the time Ladder 67 arrived and

entered the burning house.

At trial, plaintiffs offered evide nce which showed that the fire

started around 9:55 in the front room of the Hill house. HFD received the

call at 9:59 and dispatched the fire trucks at 10:00. Ladder 67 arrived

at 10:06 and Engine 31 arrived some two to two and a half minutes later.

Dr. Burton, a forensic pathologist with arson investigation experience,

testified that based on the autopsies and Shanley’s report, the children

could have survived up to six minutes after the flashover 7 in the front

### -11-

room (until 10:10). Plaintiffs’ s econd expert was James Shanely, an

expert in fire investigation. He testified that the fire could have been

knocked down in about a minu te and that the fire grew significantly

larger because of the delay. He c oncluded that it was a medium-growth

fire and that the flashover occurred only in the front room around 10:04.

Together, their testimony established a two to three minute window during

which the children could have been rescued had it not been for the broken

fire pump. The plaintiffs’ experts also testified that the defendant’s

experts used faulty formulas and incorrect measurements.

The City argues this is insufficient to establish proximate cause

because it amounts to nothing more than a lost chance of survival. See

Campos v. Ysleta General Hosp ., 836 S.W.2d 791, 794 (Tex. App.–El Paso

1992 , writ denied) (holding testimony that “there was a window of

opportunity” during which a child “mi ght have been saved” was not

sufficient to establish a causal connection between the child’s death and

the co nduct of the two hospitals which refused to treat him). This

argume nt however, only goes to the sufficiency of the evidence on

causation, not to the plaintiffs’ theory of recovery. The essence of the

holding in Campos and the other cases on which it is based, is that the

“mere medical possibility” (as opposed to probability) that a patient

“might” have l ived had the doctor not mis-diagnosed the patient’s

condition is insuffic ient to constitute proximate cause. Texas courts

however, have consistently held that evidence which establishes a medical

probability that a patient would have survived had it not been for the

mis-diagnosis is sufficient to support a finding of proximate cause. See

Campos

, 836 S. W.2d at 795 (citing T ilotta v. Goodall

, 752 S.W.2d 160,

### -12-

163-64 (Tex. App.–Houston [1st Dist.] 1988, w rit denied); see also

Bradley v. Rogers

, 879 S.W.2d 947, 953-54 (Tex. App.–Houston [14th Dist.]

1994, writ denied) (“With regard to cause-in-fact, the plaintiff must

establish a causal connection based upon ‘ r easonable medical

probability,’ no t mere conjecture, speculation or possibility.”)

(citations omitted).

The timeline established by the plaintiffs’ experts permits a two

to three minute window in which the children would have probably been

resc ued had it not been for Ladder 67's inability to attack the fire

because of t he broken pump. Dr. Burton testified that in his opinion,

there was a reasonable probability more likely than not that the children

could have been saved. (Tr . 670) He noted that other people in house

fires have survived flashover situations and that the photos of the scene

did not indicate that a flashover occurred in the den.

Finally, the City attempts to undermine the testimony of Burton and

Shanely’s by challenging their reliability as experts. The City argues

that we should ignore the testimony of plaintiffs’ experts because they

lack the indicia of reliability outlined in Kumho Tire Co. v. Carmichael

,

526 U.S. 137 (1999). Specifically, the City argues no expert pathologist

would have relied on Shanely’s determinations as to when the flashover

occurred.

This court applies the “abuse of discretion” standard when

reviewing a district court’s reliability determina tion for an expert.

See Kumho

, 526 U.S. at 142; General Electric Co. v. Joiner

, 522 U.S. 136,

143 (1997). The City however, does not point to any evidence in the

record that it objected to the testimony of the plaintiffs’ experts on

### -13-

this ground nor does it argue that the trial court erred in admitting

this testimony. In fact, it ignores Dr. Burton’s testimony that forensic

pathologists regularly rely on other experts in determining how a person

died. Instead, the City seems to argue that t his court should not

consider the testimony of the plaintiffs’ experts.

The “gatekeeping” obligation imposed by Daubert and Kumho lies not

with this court of appeals, but with the trial court. 509 U.S. at 589;

526 U.S. at 147. Since the City has failed to identify any error or

abus e of discretion by the trial court in admitting the testimony of

Shanely or Burton, there is nothing for this court to rule on with

regards to the reliability of plaintiffs’ experts.

The defendants may not reverse t he jury’s finding merely because

they present evidence and testimony which controverts plaintiffs’ theory

of events. The evidence is not so overwhelming that a reasonable juror

could only conclude that the HFD’s failure to repair the pump was not the

cause of the plaintiffs’ injuries. There is sufficient evidence to

support the jury’s finding on proximate cause and therefore, there is no

reason to disturb the jury’s answer to the first interrogatory.

Accordingly, the district court’s denial of the City’s Motion to set

aside the jury’s findings as to question one is affirmed.

C. Questions two and three: Official Policy

The City n ext challenges the denial of the City’s Motion to Set

aside the jury’s findings to questions two and three–that the city had

an official policy on repair priority codes which was violated by HFD’s

### -14-

failure to timely repair the pump. At trial, plaintiffs relied on

Exhibit 8, a copy of a purported memorandum from “J.L. Reyes, Assistant

Fire Chief” to Tommy Shelton, Master Mechanic dated November 22, 1994.

The memo is signed by Head Fire Chief E. A. Corral and the “cc” at the

bottom of the page indicates he was also sent a carbon copy. The memo is

also stamped “Receive d, Jan. 11, 1995, HFD Fleet Management.” The

memorandum establishes six different priority codes for repairs and the

response time required for each. “Priority Code 1.0" is the highest, its

states: “IMMEDIATE ACTION REQUIRED / SAME DAY AS REPORTED.” The next is

“Priority Code 2.0 TWO DAY RESPONSE OR ADDRESS AS SOON AS PRACTICAL.”

The City makes two arguments: (1) that exhibit eight was never

authenticated, and (2) that it is a fake.

Exhibit eight was first admitted during direct testimony of Chief

Eddie Corral. At a bench conference, the City’s attorney objected on the

grounds that the memo was “not authentic.” The court overruled the

objection and admitted exhibit eight into evidence. (Tr. 130). Later, Jim

Kelley, a shop foreman, testified that he received the memo and

identified it as the priority code system in place at the time the

repairs were requested and the fire at the Hill reside nce. (Tr. 385).

Later, Jeff Moore, a GEMS 2000 computer technician, claimed to have seen

the document in August of 1995. (Tr. 1440-4 1). At trial however, both

witnesses admitted that they could not be sure that they had seen the

memo in 1995 or 1996. On the other hand, Chief Corral testified that he

never signed the document even though his signature appears on it. The

City also points to numerous inaccuracies, such as a different letterhead and that Chief Corral did not have staff meetings on Mondays during

### -15-

that period of time to support its argumen t that exhibit eight was

forged.

We review the district court's ruling on authentication for abuse

of discretion. See Snyder v. Whittaker Corp ., 839 F.2d 1085, 1089 (5th

Cir. 1988). That ruling will not be disturbed unless there is no

competent evidence in the record to support it. S ee Meadows & Walker

Drilling Co. v. Phillips Petroleum Co

. , 417 F.2d 378, 382 (5th C ir.

1969). Even then, error may not be predicated upon the court’s ruling

admitting the evidence unless a substanti al right of the party is

affected, and (in the case where evidence is admitted) there is a timely

objection stating the specific grou nd. See F ED

. R. E VID

. 103(a); see

Foster v. Ford Motor Co ., 621 F.2d 715, 721 (5th Cir. 1980).

To prove authenticity, the proponent must present evidence

sufficient to support a finding that the recording is an accurate

reproduction of the matter recorded. See United States v. Biggins

, 551

F.2d 64 (5th Cir.1977); F ED

. R. E VID

. 901(a). While the trial judge

ensures there is sufficient (or prima facie) evidence of authenticity,

the ultimate determination of whether to believe the evidence is left for

the fact-finder to decide. See United States v. Caldwell

, 776 F.2d 989,

1001-01 & n. 16 (11th Cir. 1985) (“Once [a prima facie showing that the

proffered evidence is what it purports to be] has been made, the evidence

should be admitted, although it remains for the trier of fact to appraise

whether the proffered evidence is in fact what it purports to be.”); 5

W EINSTEIN ’ S F EDERAL E VIDENCE , 901.02[2] (2d ed.).

Rule 1003 (aka “the best evidence rule”) permits a duplicate to be

### -16-

admitted on the same basis as an original unless (1) a genuine issue is

raised as to the authenticity of the original or (2) in the circumstances

it would be unfair to admit the duplicate in lieu of the original. F ED

.

R. E VID

. 1003. However, Rule 1008 makes clear that “when an issue is

raised (a)whether the a sserted writing ever existed, or (b) whether

another writing

. . . produced at trial is the original, or (c) whether

other evidence of contents correctly reflects the contents, the issue is

for the trier of fact to deter mine as in the case of other issues of

fact.” Thus under either rule, the question of whether exhibit eight is

a fake or rather, authentic copy was a fact question which was properly

submitted to the jury.

As noted above, this court reviews the j ury’s decision under a

“sufficiency of the evidence” standard. We will not disturb the jury’s

findings unless no reasonable jury could reach that conclusion.

In the present case, several witness es testified about the

existence of an official repair priority policy at the time of the Hill

Fire. While the credibility of some of them was hotly contes ted, we

cannot substitute our judgment for that of the jury. Nor can we find that

the trial court committed any abuse of its discretion in admitting

exhibit eight. We therefore, affirm the magistrate judge’s denial of the

City’s motio n to set aside the jury findings as to questions two and

three.

D. Questions Six and Seven Damages

The City next appeals the magistrate’s denial of its motion to set

aside the jury’s findings on damages. It argues there wa s no evidence

### -17-

that Alex Freeman and Crystal Durden suffered any pain or mental anguish

because they were unconscious by the time the Ladder 67 arrived at the

scene. The Ci ty points to the testimony of Tellas Williams, the

children’s sixteen year old cousin and James Williams (no relation), a

passing truck driver who both last heard the children’s screams long

before Ladder 67 arrived.

At trial however, James Wil liams testified upon being re-called

that he heard the children screaming after he broke a window on the side

of the house just before Ladder 67 arrived at the scene. (Tr . 1049).

Moreover, the testimony of Dr. Burton and Mr. Shanely establish that the

children were probably alive for a few minutes during the time which the

crew of Ladder 67 could have rescued them had their pump not been broken.

We therefore affirm the magistrate’s denial of the City’s motion to set

aside the jury’s findings on questions six and seven.

IV. Sovereign Immunity

The City also appeals the district court’s denial of its Motion to

Dismiss or for Summary Judgment on sovereign immunity. It argues it is

entitled to sovereign immunity on three separate statutes. Governmental

immunity shields the City from tort liability except where such liability

is specifically waived under the TTCA. See City of Lancaster v. Chambers

,

883 S.W.2d 650, 658 (Tex. 1994).

A. Civil Practice and Remedies Code § 101.021

This section of the Texas Tort Claims Act provides a waiver of

### -18-

sovereign immunity as follows:

A governmental unit in the state is liable for:

(1) 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 p roperty damage, personal injury, or death

arises from the operation or use of a motor-driven

vehicle or motor-driven equipment; and

(B) the employee w ould be personally liable to the

claimant according to Texas law; and

(2) personal injury and death so caused by a condition or

use of tangible personal or real property if the governmental

unit would, were it a private person, be liable to the

claimant according to Texas law.

T EX

. C IV

. P RAC

. & R EM

. C ODE § 101.021 (Vernon 1997). Thus, section 101.021

provides two avenues of liability. The City may either be sued (1) for

the negligence of an employee acting within the scope of his employment

if the damage or death is proximately caused by motor-driven equipment,

or (2) for personal injury or death caused by a condition or use of

tangible personal property if the governmental unit would, were it a real

person, be liable to the claimant under Texas law.

The City makes three arguments that its sovereign immunity has not

been waived under this section. It first argues there is no evidence that

the pump caused the deat hs of the children. Next it argues that the

broken pump constitu ted a “non-use” of property rather than a “use.”

Finally, the City argues it is not liable for the non-use of information.

1. Causation

The City argues that the plaintiffs’ injuries did not arise out of

the use of the pump on ladder 67. This however is nothing more than that

causal argument which was discussed and dispensed with above.

The term “use” as it relates to the Texas Tort Claims Act has been

### -19-

defined to mean “to put or bring into action or service; to employ for

or apply to a given purpose.” S ee Kassen v. Hatley

, 887 S .W.2d 4, 14

(Tex. 1994) (citing LeLeaux v. Hamshire-Fannett Indep. Sch. Dist

., 835

S.W.2d 49, 51 (Tex. 1992)). A study of the case law however reveals that

this is really a requirement that the property’s condition or use must

be the proximate or legal cause of the injury. See Dallas County Mental

Health and Retardation v. Bossley

, 968 S.W.2d 339, 343 (Tex. 1998)

(citing Union Pump Co. v. Allbritton , 898 S.W.2d 773, 776 (Tex. 1995);

Kassen , 887 S.W.2d at 14; LeLeaux, 835 S.W.2d at 51.

The same line of reasoning was followed in Schaefer v. City of San

Antonio

, 838 S.W.2d 688 (Tex. App.–San Antonio, 1992 writ denied) which

the City also cites. In that case a homeowner sued the city for failure

to fix a broken water main which flooded his property. To avoid the TTCA,

plaintiff claimed that the use of high pressure water pumps to move water

through the system constituted a use of motor driven equipment. The court

of appeals rejected the claim holding that the “pleading and proof

related to matters involving the practical application of the principles

or processes of directing and controlling water distribution to the City

of San Antonio, not to the practical applic ation of principles or

processes of using or operating motor-driven equipment.” Id . at 692.

In the present case the plaintiffs’ claims clearly arise from the

broken pump on Ladder 67. It is not tangential to the negligence inquiry

as the pleading and proof directly relate to the malfunction of motordriven equipment. The claims thus fall under the provisions of 101.021.

2. The non-use arguments8 In the lower court, Judge Kent denied the City’s Motion for Failure to

State a Claim and with respect to this argument, wrote it was “utterly

ridiculous and frivolous, to the point of being contemptible.” Hill v. City

of Houston , 991 F. Supp. 847, 852 (S.D. Tex. 1998).



### -20- The City next argues that it cannot be held liable for the non-use

of fire equipment. The City claims that since the pump was broken, it was

not “used” within the meaning of the TTCA at the Hill fire. 8 This narrow

reading of the statute would eviscerate its very purpose and ignores the

fact that Ladder 67 itself is a piece of motor-driven equipment.

Moreover, such a holdi ng would lead to in an inherently contradictory

result: granting immunity where the City did not use the equipment

be cause they knew it was broken but not giving immunity where they

attempted to use the pump at the scene and found it to be broken.

The City next argues that it cannot be held liable for the non-use

of information because information does not constitute tangible personal

property for the purpose s of a waiver under section 101.021. This

however, is moot given that the use of Ladder 67 is suffi cient to

constitute a waiver under the statute.

Thus, section 101.021 offers the City no relief from liability. We

therefore find that sovereign immunity is waived under section 101.021

and affirm the district court’s denial of the City’s Motion to Dismiss.

B. Official Immunity of its Employees

The City next argues tha t even if 101.021 provides a waiver of

immunity, it still is immune because its e mployees have official

immunity. A governmental entity in Texas is not liable “for the

negligence of its employee when the employee has no liability because of

### -21-

official immunity.” DeWitt v. Harris County

, 904 S.W.2d 650, 654 (Tex.

1995). If the employee is protected from liability by official immunity,

the state retains its sovereign immunity under both subsections (1) and

(2) of section 101.021. Id

.

The purpose of official immunity is to protect public officers from

civil liability for conduct that would otherwise be a ctionable. S ee

Chambers

, 883 S.W.2d at 653-54. Government employees are entitled to

official immunity from suit arising from the performance of their (1)

discretionary duties in (2) good faith as long as they are (3) acting

within the scope of their authority. See Id . at 653. The City contends

it meets all three requirements, the plaintiffs argue that the decision

to repair the pump according to the priority code it was assigned was not

discretionary, but ministerial.

The focus of the official immunity inquiry is whether the employee

was performing a ministerial or discretionary function. As the Tex a s

Supreme Court stated in Chambers : “If an action involves pe rsonal

deliberation, decision and judgment, it is discretionary; actions which

require obedience to order s or the performance of a duty to which an

actor has no choice, are ministerial.” Id . at 654.

The City argues that its actions regarding the repair of the pump

on Ladder 67 were discretionary, specifically, (1) the decision by

Captain Boze to leave the defective truck in service, (2) the decision

of the Fleet Maintenance Service writer to enter pump repair requests as

priority two rather then as priority one; and (3) the decisions by the

shop foreman and mechanics to decide which equipment to repair first. The

plaintiffs rely on exhibit eight, the policy memorandum to establish that

### -22-

a mandatory policy existed and that it was violated with respect to the

repair of the pump.

We first note that the written policy in exhibit eight, states with

respect to priority two repairs: “TWO DAY RESPONSE OR ADDRESS AS SOON AS

PRACTICAL.” The codes then allow for seven day, thirty day, and thirty

-day plus response times. The pump was first reported broken on December

5, 1995 but was not repaired until January 22, 1996 which was over a

month and a half later. Captain Boze’s letter indicates that the mechanic

who eventuall y worked on the pump only heard of the pump problem on

January 22nd. It is apparent, as Captain Boze noted in his letter, that

the repair shop had a mandatory policy to fix the pump within a certain

period of time. While the mechanics may have had discretion to repair the

pump within the two days or as soon as practicable after the problem is

reported, their duty to repair was ministerial in the sense that they had

to do it within a certain amount of time. They had no discretion to fix

the pump over a month and a half later. We therefore find that the HFD’s

duty to repair the pump with in the time designated by the memorandum

contained in exhibit eight was ministerial and that the policy was

negligently implemented. See Jenicke v. City of Forest Hill

, 873 S.W.2d

776, 780 (Tex. App.–Fort Worth 1994, no writ).

C. Discretionary function, §101.055(3)

The City’s next argues it is entitled to sovereign immunity under

Tex. Civ. Prac. & Rem. Code § 101.055(3) (Vernon 1997) which limits the

waiver of sovereign immunity to certain governmental functions. Section

101.055(3) states: “This chapter does not apply to a claim arising:

. .9 In Fernandez v. City of El Paso , 876 S.W.2d 370 (Tex. App. - El

Paso 1993, writ denied), a Texas Court of Appeals held that a claim

based on “the allegedly inadequate condition” of El Paso’s

“firefighting apparatus and protective clothing” fell within the

section 101.055(3) exception. Fernandez , 876 S.W.2d at 376. Though

the facts in Fernandez are sparse, the claim referred to by the court

may be construed as focusing on the general inadequacy of El Paso’s

firefighting system and equipment, i.e., the method adopted by the

City. In the present case, however, plaintiffs do not challenge the

City’s general policy regarding firefighting equipment (method);

instead, their claims rest on the negligent execution of the City’s

policy on equipment repair. Plaintiffs’ claims thus fall under

Terrell and Jenicke , not Fernandez

.



### -23- . (3) from the failure to provide or the method of providing police or

fire protection.” The purpose of this limita tion is to avoid judicial

review of policy decisions m ade by a governmental unit in charge of

providing police or fire protection. See State v. Terrell , 588 S.W.2d

784, 788 (Tex. 1979).

The City argues it falls under the exception because the present

suit is based on its policy decisions with respect to the repair of the

pump on truck 67. However, as Terrell n oted, section 101.055(3) only

exempts governmental decisions in formulating policy; it does not provide

a general exclusion for any act or omission that occurs while an officer

is providing police or fire protection to the public. Id

. at 787-88. If

an employee acts negligently in carrying out the policy, government

liability may exist under the act. Id

. at 787; Jenicke

, 873 S.W.2d at

780. 9

Thus, the waiver of sovereign immunity again depends on whether the

repair shop failed to comply with what purports to be the official policy

of the HFD repair facility contained in exhibit eight. As noted above,

we conclude that the jury did not err in determining that such a policy

existed and that the City violated this policy. Thus, we cannot find that

### -24-

section 101.055(3) provides sovereign immunity to the City.

D. Sovereign Immunity under Section 101.056

The City’s last argument for sovereign i mmunity comes under Tex.

Civ. Prac. & Rem. Code §101.056 which states:

This chapter does not apply to a claim based on:

(1) the failure of a governmental unit to p erform an act

that the unit is not required by law to perform; or

(2) a governmental unit’s dec ision not to perform an act

or on its failure to make a decision on the performance or

nonperformance of an act if the law leaves the performance

or nonperformance of the act to the dis c retion of the

governmental unit.

Sovereign Immunity under this section turns on whether the HFD’s decision

as to when to repair the pump was subject to a mandatory policy or was

discretionary which was discussed above. Given that we have held that the

HFD’s duty to comply with the priority policy was ministerial, § 101.056

offers no relief from the waiver of sovereign immunity in §101.021.

V. CONCLUSION

For the foregoing reasons, we REVERSE the magistrate judge’s denial

of the Plaintiffs’ motion to set aside the jury’s finding on actual

notice (question four) and AFFIRM the magistrate judge’s denial of the

City’s Motion to Set Aside the remainder of the jury’s findings. We also

AFFIRM the district court’s denial of the City’s Motion to Dismi ss on

grounds of Sovereign Immunity and REMAND this cause to the district court

for judgment in accordance with this opinion.

REVERSED IN PART, AFFIRMED IN PART.

### -25- Appendix One

Plaintiff’s Exhibit #6, The Boze Letter

To: Assistant Chief Reyes

Deputy Chief K. Whitehorn

Chief Mechanic T. Shelton

Re: Fire pump on Ladder 67

Dear Sirs:

On December 5, 1995 Engineer/Operator Raymond J. Pooler, PR #54955,

called the service writer at motor repair, and reported the fire pump on

Ladder 67 was not operating.

On December 20, 1995, the “C” shift at Station 67, responded to a

reported house fire at 6701 Cohn, ID #951220428, at 2043 hrs., Ladder 67

was the first unit to go to 97, due to E-67 being out of service on an

EMS call. It was reported that someone was still inside the home. Upon

10-97, Ladder 67 observed fire coming from a one story residence. Ladder

67 was not able to perform a rescue attempt, because they had no way to

charge their 1 3/4 hand line, due to the pump n ot working. . . .

[redacted material]

On December 21, 1995, Engineer/Operator Raymond J. Pooler, again

contacted Motor Repair about the fire pump on Ladder 67. He talked to

a person named Lloyd, who referred him to a person named Stewart, who

identified himself as the Acting Shop Foreman. Stewart said he would

pull the paper work and call him back. He did call Engineer/Operator

Pooler back, and said the pump was bad, and a new pump had been ordered.

Engineer /Operator Pooler told Mr. Stewart that we at Station 67, felt

like it was not the pump, but something electrical. Mr. Stewart

indicated that a mechanic had looked at Ladder 67, and said the problem

was the pump. Engineer/Operator Pooler informed Mr. Stewart of the

incident the “C” shift had on December 20, 1995, in which one fatality

occurred. Mr. Stewart said a pump had been ordered, and that was all he

could do.

On January 04, 1996 Ladder 67 responded to a rep orted house fire

at 2109 Ellington, ID #960104149, at 1000 hrs. Ladder 67 was the first

unit to go 10-97, due to Engine 67 being out of servic e at the radio

shop. While Ladder 67 was enroute to the house fire, it was reported

that children were possibly trapped. Upon 10 97, Ladder 67 observed a

heavy fire condition, but again was unable to use their pump. Two

children perished in this house fire.

. . . . . [redacted paragraph]

On January 22, 1996, Captain K. W. Owens of Station 67-D contacted

Mechanic Grube by telephone, and requested his assistance in getting the

### -26-

fire pump repaired. Mechanic Grube stated that he did not work on Ladder

Trucks, but he would contact the mechanic that did work on Ladder Trucks,

and have him come by Station 67. At 1123 hrs. on January 22, 1996,

Mechanic Rosenquist arrived at Station 67 to look at the fire pump on

Ladder 67. I relayed to Mechanic Rosenquist our theory about the

problem being electrical. He stated that this was a possibility. Upon

further investigation of Ladder 67, he discovered a blown f use, and

corrected the problem. I asked Mechanic Rosenquist how this could be,

when Mr. Stewart had informed us the problem was a ba d fire pump.

Mechanic Rosenquist looked puzzled, and the only reply he could give was

that “I don’t know, si nce I am the only mechanic that works on Ladder

Trucks in all four quadrants, and this was the first time I have looked

at Ladder 67 for this problem.”

In my opinion, there is a problem at Motor Repair that needs to be

addressed. I have been in the department for twenty years, and consider

myself a professional, and a dedicated servant to the citizens I serve.

I have always tried to be understanding when there is a problem in

another division or area in this department. However, I can not

understand, the apparent negligence on someone’s part, in this matter.

I am not saying that if the pump had been working on December 20, 1995.

. . or January 04, 1996 ( Loss of Two Lives), that the outcome would have

been different, this we will never know . This minor problem, which

became a very significant problem, not only affected the victims of the

fires and their fa milies, but also the dedicated crew’s of Ladder 67,

along with their families.

Your assistance in an investigation int o this matter is strongly

urged, and would be greatly appreciated by myself and the Firefighters

of Station 67, along with the citizens we serve.

Respectfully submitted,

E.W. Boze

Senior Captain

Station 67-D

HANDWRITTEN NOTE BY SHELTON ON THE BOTTOM OF THE PAGE:

Th is was discussed with Chief K. Whitehorn on December [January]

21. Steven Steward was riding in Higher Class as Hwy Duty Shop Foreman.

Shop Foreman was riding most because I was on scheduled vacation. I was

not made aware of this situation until I received this faxed letter. I

have instructed the mechanics and shop foremen to always check out Fire

Pumps that are reported out of service as quickly as possible.