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Reedy v. Pompa

Reedy was required to show that the plaintiffs' suit invoked a waiver of immunity from suit and liability under the Tort Claims Act in order to prevail on her motion to dismiss under �101.106(f) of the Texas Civil Practice and Remedies Code. Corpus Christi Court of Appeals, No. 13-08-00590-CV, 03-18-2010

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OPINION

Before Justices Yañez, Rodriguez, and Benavides.

In this interlocutory appeal, appellant, Wilma Reedy, R.N., appeals from the trial court’s denial of her motion to dismiss under Texas Civil Practice and Remedies Code section 101.106(f) in favor of appellees, Elizabeth Pompa and Nicholas Pompa, III, as parents and next friends of Annica Pompa, a minor (collectively “the Pompas”). See Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005); id. § 51.014(a)(5) (Vernon 2008) (authorizing an interlocutory appeal from an order that denies “a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state”).*fn1 Under section 101.106(f), a trial court must dismiss a suit against an employee of a governmental unit if the employee shows that the suit was based on conduct within the general scope of his or her employment and that the suit “could have been brought under [the Tort Claims Act] against the governmental unit.” Id. § 101.106(f). On appeal, Reedy argues by two issues that (1) she proved the suit was based on conduct within the scope of her employment with a hospital, for which the hospital could have been liable, and she was not required to prove that sovereign immunity would be waived in a suit against her employer; and (2) if she was required to prove a waiver of sovereign immunity, she did so. For the reasons that follow, we disagree and affirm the trial court’s order denying Reedy’s motion to dismiss.

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