Claim of Fan, Who Was Injured in Post-Game Celebration, Is Dismissed

Oct 7, 2005

A Texas state appeals court has concluded that the University of Texas at El Paso is shielded by governmental immunity in a case involving a fan who was injured in a post-game celebration after a football game.
Significantly, the appeals court also identified case law to support the fact that a university, or other governmental entity, cannot be held liable for “any injury or death resulting from (its) decision to use only minimal police efforts to control a riot or to control crime.”
Gabriel Moreno was attending at UTEP football game in November of 2000. After the game, a UTEP victory, the plaintiff and others rushed onto the football field. Moreno climbed the goal post and proceeded to hang from one of the cross bars. Other fans began to shake the goal post, tearing it down. Moreno sued under the Texas Tort Claims Act, alleging that the goal post in question constituted a premises defect liability based upon a failure to erect barriers to control the crowd and gross negligence. UTEP moved to dismiss, a motion that was denied. The university appealed.
The appeals court began its analysis by noting that UTEP, as a governmental entity, is immune from both suit and liability unless the Tort Claims Act has waived that immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A) (Vernon 2005).
The plaintiff, or appellee, claimed that he suffered injuries “as a result of the over-zealous conduct of out-of-control football fans knocking down a football goal post. Other than a contention that he is pursuing his claim under Section 101.021 and 101.025, et seq., Appellee pleads a series of factual allegations related to UTEP’s failure to control the crowd with a few additional statements that the goal post was defective. Nothing in his petition alleges any facts to show how the goal post was defective.
“Though Appellee has attempted to plead that the defective condition of the goal post was a proximate cause of his injuries, and thus created a basis for a cause of action under Section 101.021 involving either the use or misuse of tangible property or as a premises defect, he does not succeed.
“A cause of action based upon the negligent use of real property, or a cause of action involving a condition of real property, does not exist separately from a cause of action for a premises defect. Laman v. Big Spring State Hosp., 970 S.W.2d 670, 671-72 (Tex. App.–Eastland 1998, pet. denied); University of Texas-Pan American v. Valdez, 869 S.W.2d 446, 450 (Tex. App.–Corpus Christi 1993, writ denied).
“Appellee has not stated a cause of action for a premises defect because he has not alleged a defect, shortcoming, or physical imperfection of the property which was a proximate cause of his injuries. Despite his statements that the goal post was defective, his deposition testimony and pleadings establish that his only complaint regarding the goal posts is that they were torn down by the unruly crowd. Such does not amount to an allegation that satisfies the premises defect limitations on sovereign immunity under the Texas Tort Claims Act. See Laman, 970 S.W.2d at 672 (immunity not waived for cause of action based upon sexual assault of female psychiatric patient who had been temporarily placed in men’s hall and left in unlocked room because property does not cause injury if it does no more than furnish the condition that makes the injury possible).”
Further, the appeals court was careful to note that “while the alleged injury suffered by Appellee occurred on the UTEP’s football field and goal post, the property itself did not cause Appellee’s injuries. Consequently, the trial court erred in not granting UTEP’s plea to the jurisdiction with respect to these claims.”
The plaintiff also claimed that UTEP failed to control the crowd after the game, arguing that it should have used “barriers, gates, link chains, and security devices” and that by failing to do so was negligent.
“If the negligence causing an injury lies in the formulation of policy, i.e., the determination of the method for providing police protection, the government remains immune from liability. State v. Terrell, 588 S.W.2d 784, 788, 22 Tex. Sup. Ct. J. 543 (Tex. 1979); Barefield v. City of Houston, 846 S.W.2d 399, 405 (Tex. App.–Houston [14th Dist.] 1992, writ denied). The “method” of performing an act refers to the governmental decision or plan for providing police or fire protection. Terrell, 588 S.W.2d at 788; [*11] Barefield, 846 S.W.2d at 405. The government is not liable for any injury or death resulting from a government’s decision to use only minimal police efforts to control a riot or to control crime in a particular area of a city. Terrell, 588 S.W.2d at 788; Barefield, 846 S.W.2d at 405. If, however, an officer or employee acts negligently in carrying out that policy, government liability may exist. Terrell, 588 S.W.2d at 788; Barefield, 846 S.W.2d at 405.”
Turning to the plaintiff’s last argument, the court found that “the State is immune from liability for intentional torts committed by third parties. … Appellee is clearly complaining of injuries that occurred as a result of the deliberate destructive behavior of the crowd which, we note, included Appellee as a participant.”
University Of Texas At El Paso and The University Of Texas System, Appellants, V. Gabriel Moreno, Appellee.; Ct. App. Tex.; 8th Dist. El Paso; No. 08-05-00076-CV; 8/25/05


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