Erica Barrera, Individually and as Next Friend of D.R., Minor; Michael Brown, Individually and as Next Friend of V.B., Minor; Jennifer Davis, Individually and as Next Friend of Z.D., Minor; Angeli Rose Gomez, Individually and as Next Friend of G.B. & A.G., Minors; Luz Hernandez, Individually and as Next Friend of N.J., Minor; Carla Rose King; Tiffany Luna, Individually and as Next Friend of A.P., Minor; Tamica Martinez, Individually and as Next Friend of R.D., Minor; Tiffany Massey; Yolanda Morales, Individually and as Next Friend of Z.G., Minor; Nicole Faye Ogburn; Mary Ann Reyes, Individually and as Next Friend of A.S. & A.S., Minors; Bianca Rivera, Individually and as Next Friend of G.R., Minor; Christina and Brenda Sonora, Individually and as Next Friend of V.S., Minor; David Trevino, Individually and as Next Friend of A.T., I.T., & D.T., Minors; Krystal Upton, Individually and as Next Friend of J.T. and B.T., Minors; Esmeralda Velasquez, Individually and as Next Friend of C.V., Minor; Sofia Zapata, Individually and as Next Friend of M.S., Minor v. Uvalde County and The Texas Department of Public Safety

Summary

The Fourth Court of Appeals affirmed dismissal of negligence claims brought by teachers, students, and parents who survived the Robb Elementary School shooting against Uvalde County and the Texas Department of Public Safety. The court held that the Texas Tort Claims Act did not waive governmental immunity because the alleged nonuse or condition of tangible property, including law-enforcement radios and equipment, did not establish proximate causation. The court also concluded that the jurisdictional defects could not be cured by amendment.

Holdings

1. The appellants did not plead facts showing that their injuries were proximately caused by the use or condition of tangible personal or real property, and therefore did not establish a waiver of governmental immunity under Texas Civil Practice and Remedies Code section 101.021(2).
2. Negligent implementation of an active-shooter policy does not itself waive governmental immunity; a plaintiff must first establish a waiver under another provision of the TTCA.
3. Allegations that governmental entities failed to use or possess doors, locks, keys, protective equipment, firearms, or communications equipment do not establish a waiver because mere non-use of property is insufficient.
4. The alleged condition of the law-enforcement radios did not establish a TTCA waiver because the petition did not allege facts showing that the radios actually caused the rescue delay or that the injuries would not have occurred but for the radio defects.
5. The trial court properly dismissed the lawsuit without allowing the appellants another opportunity to amend because the jurisdictional defects were incurable on the record.

Questions Presented

1. Whether the appellants pleaded facts establishing a waiver of governmental immunity under the Texas Tort Claims Act's tangible-property provision.
2. Whether negligent implementation of an active-shooter policy independently waives governmental immunity.
3. Whether alleged non-use of doors, locks, keys, protective equipment, firearms, and communications equipment establishes a waiver of immunity.
4. Whether alleged defects in law-enforcement radios were sufficiently causally connected to the appellants' injuries to support a waiver of immunity.
5. Whether the appellants were entitled to amend their pleadings before dismissal.

Disposition

affirmed