For my lovely Texas-based readers, which is probably all of you, I have just stumbled across a new little tidbit that the Texas judiciary recently handed down. It’s so hot off the presses it hasn’t even been officially published yet! (Full disclosure, I was asked to write about this for a more “official” industry-specific blog too, but that article won’t be out for a few more days and will be chock FULL of jargon.)
It’s a case called Wasson Interests, Ltd. v. City of Jacksonville (— S.W.3d —) <–See! I told you it hasn’t been published yet.
In Wasson the State Supremes held that there was no reason why a municipal government should be liable in tort, but not liable in contract, so long as it was performing a proprietary function in each. You see, since 1878 or so, you have been able to get around sovereign immunity in tort claims so long as you are able to show that the function was discretionary and the city acted with the appropriate tortious conduct. Until just this year, however, nobody had ever successfully argued that you could sue for contract damages under the same theory. Wasson changed all that, though.
Did you get that? It’s a little Texas two-step. First! You (being an established jurist) have to decide whether or not the government was operating in its official governmental role or, instead, if it was serving in a proprietary function. How do you know which is which?
Why, my friend, I’m glad you asked! The Court decided proprietary events occur when a city exercises its discretion to perform a function on its own behalf. When a local government is performing the duties mandated by statute, then it lacks discretion and is cloaked in the State’s sovereign immunity. That is, of course, unless immunity has been expressly abrogated by statute (for instance, Chapter 101 of the Civil Practice & Remedies Code).
So… did you violate your lease terms with a municipality, then settle with that same municipality, only to have an eviction notice sent to you again later (Wasson)? You may have a claim! Did a city negligently install stormwater piping under your city street, causing your home to wash away? CLAIM AWAY!!! Did that same city negligently install sewer pipes under that same street, thereby ruining your property? WHOAH, buddy… you might have yourself a problem.
Got it? No? Don’t feel bad… neither does anyone else! That’s why we lawyers get to litigate these issues over and over again. Also, now that we have a theory of liability that “sounds in contract” as we like to say (probably because we’re so dang smart and need to sound like it), we have even more ways to get to the steps of the courthouse…
Stay tuned… this should be fun.