Court of Appeals of Texas, San Antonio.

PATE & PATE ENTERPRISES, INC., Appellant,

v.

City of EAGLE PASS, Appellee.

No. 04-96-00980-CV.

|

Sept. 17, 1997.

From the 293rd Judicial District Court, Maverick County, Texas Trial Court No. 94-08-12630-CV, Honorable Rey Perez, Judge Presiding.

Sitting: RICKHOFF, LÓPEZ and ANGELINI, JJ.

Opinion

RICKHOFF, Justice.

*1 This case tests the extent of governmental immunity and the workers’ compensation bar in a claim for indemnification against a municipality.

Two workers were killed and one injured while trying to unplug a sewer line operated by the City of Eagle Pass (“City”). The surviving worker and the beneficiaries of the dead workers brought suit against Pate & Pate (“Pate”) and other contractors involved in the design and operation of the sewer. Pate brought a third-party claim against the city for contribution and indemnification; other defendants and plaintiffs followed suit. The city moved for summary judgment against all such claims:

Despite the fact that nearly all parties to this lawsuit have filed some kind of claim against the City, none may maintain a cause of action against it, since any and all claims are barred by both the terms of the Workers’ Compensation Act and the doctrine of governmental immunity. The City is therefore entitled to judgment as a matter of law in its favor, on all claims by all parties.

The trial court granted the motion; the claim was severed out of the original action, resulting in this appeal.

In sixteen points of error Pate disputes the granting of the summary judgment; the quality of the city’s summary judgment evidence; disputes whether the Texas Tort Claims Act governs this action; and argues that the city is still responsible under the doctrines of strict liability for ultrahazardous activities and gross negligence. Because neither the workers’ compensation bar nor the doctrine of governmental immunity is a complete bar to recovery in this case, we find the city did not show itself entitled to judgment as a matter of law. We therefore reverse the judgment of the trial court.

STANDARD OF REVIEW

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant; every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 548-549.

Each summary judgment must stand or fall on the grounds expressly presented in the motion for summary judgment. McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 339-341 (Tex.1993). When the motion alleges more than one basis of support, and the order granting the motion is silent as to the reason for granting the motion, the appellant must show that each independent ground alleged in the motion is insufficient to support summary judgment. Rogers v. Ricane Enters. Inc., 772 S.W.2d 76, 79 (Tex.1989). In other words, a summary judgment disposing of an entire cause of action is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

*2 A defendant who conclusively negates at least one of the essential elements of each of the plaintiff’s causes of action is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex.1993). A defendant may also show entitlement to summary judgment by conclusively proving all elements of an affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972).

THE LAW OF CONTRIBUTION

Pate’s tenth point of error complains that summary judgment was improper because it was entitled to recover from the City for gross negligence; in its thirteenth point of error it complains that there is a genuine issue of material fact as to whether the City’s immunity under the Texas Tort Claims Act was waived. Because they correspond to the grounds presented for summary judgment, we will take each in turn.

A defendant’s claim for contribution is derivative of a plaintiff’s right to recover from a joint defendant against whom contribution is sought. Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 935 (Tex.1992). Here Pate seeks contribution from the City of Eagle Pass. The City presented two grounds for summary judgment: the bar against suit by a worker’s beneficiaries against a subscribing employer under the Texas Workers Compensation Act, Tex. Lab.Code Ann. §§ 401-506 (Vernon 1996) and the ground of governmental immunity. If either ground is a complete bar to the worker’s recovery, we will affirm the judgment of the trial court. Shoemake, 826 S.W.2d at 935.

1. The Workers’ Compensation Bar

In general, the workers’ compensation act bars suit against a participating employer for negligence. Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996). This bar is applicable to political subdivisions of the state. Tex. Lab.Code Ann. § 504.002 (Vernon 1996). It is undisputed that the workers’ beneficiaries received workers’ compensation benefits in this case.

The workers’ compensation bar has the effect of cutting off any right of indemnity or contribution from the employer. Varela v. American Petrofina Co. of Texas, 658 S.W.2d 561, 562-563 (Tex.1983). However, the Texas Constitution provides that “Every person, corporation or company, that may commit a homicide through wilful act, or omission, or gross neglect, shall be responsible in exemplary damages, to the surviving husband, widow, heirs of his or her body …” Tex. Const. art. XVI, § 26. The statute creating the workers’ compensation bar also implements this constitutional provision. Tex. Lab.Code Ann. § 408.001(b) (Vernon 1996). Thus, a worker or his beneficiaries may assert a claim for gross negligence against an employer despite the statutory workers’ compensation bar. Id.; Universal Services Co. Inc. v. Ung, 904 S.W.2d 638, 639-640 (Tex.1995); David W. Robertson, The Texas Employer’s Liability in Tort for Injuries to an Employee for Injuries Occurring in the Course of the Employment, 24 St. Mary’s L.J. 1195, 1206 (1993).

*3 Pate’s pleadings raised the issue of gross negligence. In its motion for summary judgment, the City merely asserted the statutory workers’ compensation bar. In its brief, the City asserts that the plaintiffs can recover under no theory because of this bar; this is simply not true. Rodriguez v. Naylor Industries Inc., 763 S.W.2d 411, 412-413 (Tex.1989). Although it is exceedingly difficult for a plaintiff to meet the standard for gross negligence as applied to a municipality,¹ this avenue is still open to plaintiffs. We find that the City did not show itself entitled to judgment as a matter of law on this point; hence summary judgment on this ground was improper.

We therefore turn to whether the doctrine of governmental immunity is sufficient to support summary judgment.

2. The Bar under the Governmental Immunity Doctrine

The City is entitled to assert governmental immunity. Tex. Civ. Prac. & Rem.Code Ann. § 101.001(2)(B) (Vernon 1997). This means the City is not liable for the negligence of its employees absent constitutional or statutory provisions. University of Texas Medical Branch v. York, 871 S.W.2d 175, 177 (Tex.1994). The Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 101-110 (Vernon 1997) is a statutory provision which permits a state entity to waive its governmental immunity under limited circumstances. However, the Act did not abolish governmental immunity, and we must look to the terms of the Act to determine the scope of its waiver. York, 871 S.W.2d at 177.

Specifically, the Act waives governmental immunity for “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.” TEX.CIV.PRAC. & REM.CODE § 101.021(2)(Vernon 1997). This waiver applies when a state subdivision fails to provide needed safety equipment when lack of that equipment is the cause of the injury. See, e.g., Robinson v. Central Texas MHMR Center, 780 S.W.2d 169, 171 (Tex.1989); Lowe v. Texas Tech Univ., 540 S.W.2d 297, 300 (Tex.1976).

In Lowe, a football player was supplied a uniform; he was also supplied a knee brace because he had suffered a prior knee injury. Id. at 302 (Greenhill, C.J., concurring). A football coach, concerned that the brace slowed him down, ordered him into the game without it; he promptly injured his knee. Id. The supreme court held that a failure to furnish proper protective equipment to be used as part of the uniform furnished him brought Lowe’s case within the Texas Tort Claims Act’s statutory waiver of immunity arising from “some condition or use of personal property.” Id. at 300.

*4 In Robinson, a patient prone to epileptic seizures was taken swimming along with other patients by the Texas Department of Mental Health and Mental Retardation. The patient was supplied a swimsuit by the department; however, he was not furnished a life preserver although another patient was. Robinson, 780 S.W.2d at 169. The patient drowned during a seizure. Id. The court held that “A life preserver was just as much a part of Robinson’s swimming attire as the knee brace was part of the uniform in Lowe ” and found immunity had been waived. Id. at 171.

In other words, if a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this integral component led to plaintiff’s injuries, a court may find waiver of governmental immunity under the Texas Tort Claims Act. Kerrville State Hospital v. Clark, 923 S.W.2d 582, 584-585 (Tex.1996).

This is the case before us today. Here Pate alleges the city sent the workers into an enclosed space around a sewer with the tools to do the job, but not with proper breathing equipment; because they lacked the proper breathing equipment, they were injured by noxious fumes. We find that this brings our case within the Lowe/Robinson statutory waiver of governmental immunity. Therefore, a claim by the workers, and by extension Pate, is not barred by governmental immunity. Pate’s points of error ten and thirteen are sustained.

CONCLUSION

Because neither ground asserted is sufficient to support a summary judgment, we find that summary judgment was improper. We therefore REVERSE the judgment of the trial court and REMAND for proceedings consistent with this opinion.

	Footnotes
1		However, it is not an insurmountable burden. See, e.g., City of San Antonio v. Rodriguez, 856 S.W.2d 552, 561-562 (Tex.App.-San Antonio 1993, writ denied).