Jefferson County v. Farris (Tex. Ct. App., Aug. 31, 2018)

Our plain-English summary of Jefferson County v. Farris (Texas Court of Appeals, August 31, 2018).

Ellarene Farris sued, as widow and personal representative, over the death of her husband, Judge James Farris, who died of mesothelioma on November 5, 2004. She alleged he was exposed to asbestos in the Jefferson County courthouse and annex, where he worked until his last exposure in December 1996. She brought wrongful-death and survival claims against the County as premises owner and employer. The County appealed the denial of its plea to the jurisdiction, arguing for the first time on appeal that it never received timely notice under the Texas Tort Claims Act. Mrs. Farris gave written notice on April 4, 2005. The majority held that notice was due within six months of the last exposure, that the widow's claims were derivative of the judge's own claim, and that they were therefore barred by governmental immunity. It rendered judgment dismissing the claims against the County. The dissenting justice argued that no claim existed until the judge's symptoms and diagnosis in late 2004, so the notice was timely.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Texas Court of Appeals, 1st District
• Decided: August 31, 2018
• Docket: No. 01-17-00493-CV
• Stage: Appeal from jurisdiction, venue or removal
• State: Texas

Outcome. The court of appeals rendered judgment dismissing Ellarene Farris's wrongful-death and survival claims against Jefferson County, reversing the denial of the County's plea to the jurisdiction, because the County did not receive Tort Claims Act notice within six months of the last exposure; one justice dissented.

What the court held. Under the Texas Tort Claims Act, the six-month notice period runs from the incident giving rise to the claim, here the last asbestos exposure. Wrongful-death and survival claims are derivative of the decedent's own claim and are barred by immunity to the extent his claim would have been barred.

Issues decided: Wrongful Death and Survival, Statute of Limitations, Premises Owner Liability.

The people and their exposure

• James Farris: mesothelioma; died

Who	Work	Where	When	Products
James Farris	judge; worked near others using it	Jefferson County courthouse and annex, Texas	until December 1996

The defendants

• Jefferson County, Texas (premises owner)

Other decisions in this case

Other rulings from the same court in the same case, in our library:

• Jefferson County v. Farris (December 28, 2018). The court of appeals reversed only the denial of the plea as to exemplary damages, rendering judgment dismissing that claim against Jefferson County, and otherwise affirmed the denial of the County's plea to the jurisdiction, so Mrs. Farris's claims proceed.

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Pustejovsky v. Rapid-American Corp. (Texas Supreme Court, 2000). The Texas Supreme Court reversed the court of appeals' affirmance of summary judgment for Rapid-American on limitations grounds and remanded to the trial court, so Pustejovsky's mesothelioma suit may proceed.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

JEFFERSON COUNTY, TEXAS, Appellant,

v.

ELLARENE FARRIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE

HEIRS AND ESTATE OF JAMES FARRIS, Appellee.

No. 01-17-00493-CV.

Opinion issued August 31, 2018.

Court of Appeals of Texas, First District, Houston.

Quentin Dean Price, Kathleen Marie Kennedy, for Jefferson County, Texas, Appellant.

Aaron Heckaman, Justin Jenson, Jason Kyle Beale, for Ellarene Farris, Individually and as Personal Representative of the Heirs and Estate of James Farris, Appellee.

On Appeal from the 11th District Court, Harris County, Texas, Trial Court Case No. 2005-09580. Panel consists of Justices Jennings, Massengale, and Caughey.

OPINION

MICHAEL MASSENGALE, Justice.

This wrongful death and survival action has been brought by Ellarene Farris, the widow of Judge James Farris. She alleges that her late husband was exposed to asbestos in the Jefferson County courthouse and annex, and he subsequently died from mesothelioma. One of the many defendants involved in this suit is Jefferson County, sued in its capacities as premises owner and employer, which brought this interlocutory appeal from the denial of its plea to the jurisdiction.

In addition to numerous arguments first raised in the trial court, the County raised an additional jurisdictional argument for the first time on appeal: its governmental immunity has not been waived because it did not receive notice of the claim against it within six months of "the day that the incident giving rise to the claim occurred," as required by the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE § 101.101(a); see also TEX. GOV'T CODE § 311.034 ("Statutory prerequisites to a suit, including the provision of notice, are jurisdictional requirements in all suits against a governmental entity."). The County contends the notice was due within six months of Judge Farris's last exposure to the courthouse in December 1996. Mrs. Farris does not dispute that the County did not receive notice before July 1997. Instead, she contends that she had no claim, and thus no notice was required, until after Judge Farris's death on November 5, 2004. She thus contends that her written notice delivered on April 4, 2005 satisfied the statute. We agree with Jefferson County. The Tort Claims Act specifies that the event triggering the notice requirement is "the incident giving rise to the claim." TEX. CIV. PRAC. & REM. CODE § 101.101(a); see also City of San Antonio v. Tenorio, 543 S.W.3d 772, 775-76 (Tex. 2018). The wrongful-death claim only could be pursued if Judge Farris himself "would have been entitled to bring an action for the injury" if he had lived. TEX. CIV. PRAC. & REM. CODE § 71.003(a). As such, to the extent Jefferson County was immune

from suit immediately prior to Judge Farris's death in 2004 from any claim based on his exposure to asbestos prior to 1997 due to his failure to give notice of a claim, it was likewise immune from any wrongful-death claim by Mrs. Farris. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 348 (Tex. 1992). Similarly, the survival action is derivative of Judge Farris's rights and also is barred by immunity to the extent a claim would have been barred if brought by him. See id. at 345.

Comparing this case to University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004), Mrs. Farris suggests that no claim existed prior to her husband's death. In Loutzenhiser, the Supreme Court of Texas held that with respect to an infant's personal-injury claim for negligent prenatal medical treatment, the negligent treatment of the child in utero was not an "incident giving rise to the claim" sufficient to trigger the six-month deadline to give notice to the defendant governmental unit. 140 S.W.3d at 356-57. The result in Loutzenhiser depended on the "longstanding common law rule" that the rights of a fetus to pursue his own cause of action are "contingent on live birth." Id. at 356. As such, the live birth of the child claimant in Loutzenhiser was itself an "incident giving rise to his claim, and one essential to the existence of the claim," such that the six-month notice period began not with the negligent prentatal treatment, but upon the child's birth. Id. at 357.

Mrs. Farris contends that the death of Judge Farris was an incident necessary to her wrongful-death claim, just as the birth of the child was an incident necessary to the child's negligence claim in Loutzenhiser. This would be a persuasive argument if Mrs. Farris had a viable claim upon Judge Farris's death, but not before that tragic event. However, the logic of Loutzenhiser does not compel a result favorable to Mrs. Farris because her claims after Judge Farris's death are derivative of his claims before his death, and her claims are subject to the defenses that would have been applicable before his death. Thus Mrs. Farris is correct that Judge Farris's death was an incident necessary to the existence of her wrongful-death claim, if she had one. Cf. Loutzenhizer, 140 S.W.3d at 356. But because Judge Farris's own personal-injury claim against Jefferson County was barred by his failure to give the notice required by the Tort Claims Act, TEX. CIV. PRAC. & REM. CODE § 101.101(a), Mrs. Farris's wrongful-death claim, which was derivative of Judge Farris's claim, was likewise barred. See id. § 71.003(a).

Mrs. Farris's response does not suggest any substantive repleading or potential fact dispute that might alter the foregoing analysis. We therefore render judgment dismissing her claims against Jefferson County. See id. § 101.101(a); TEX. GOV'T CODE § 311.034.

DISSENTING OPINION

TERRY JENNINGS, Justice.

[Judge James] Farris, who was 72 when he died, spent almost his entire legal career[, until retiring in 1996,] in the Jefferson County courthouse[, which included a period of asbestos remediation at the courthouse, during which he was allegedly exposed to the deadly fibers]. . . .

. . . .

"He had just given a speech in Idaho in October 2004," Ellarene Farris said. "He came home and said he couldn't do it anymore. He went into the hospital and nine days later, he was dead."

She said her husband had no idea he suffered from mesothelioma, a cancer of the lining of the lungs. The symptoms began as an abdominal pain that wouldn't quit and ended soon after with a struggle to breathe.[1]

Because the majority errs in misconstruing Texas Supreme Court precedent and dismissing the wrongful death and survival action of appellee, Ellarene Farris, against appellant, Jefferson County, Texas, for failure, pursuant to the Texas Tort Claims Act, to provide "timely" notice in 1997 of a non-existent claim, I respectfully dissent.

The Texas Tort Claims Act waives governmental immunity to suit in certain specified circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021-.29 (Vernon 2011). And the statute provides: A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

(3) the incident.

Id. § 101.101(a) (Vernon 2011) (emphasis added). Clearly, the statute "does not require notice of a nonexistent claim." Hous. Auth. of Beaumont v. Landrio, 269 S.W.3d 735, 745 (Tex. App.-Beaumont 2008, pet. denied) (citing Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004), superseded by statute on other grounds, Act of May 25, 2005, 79th Leg., R.S., ch. 1150, § 1, 2005 Tex. Gen. Laws 3783 (codified at TEX. GOV'T CODE ANN. § 311.034)).

Judge Farris died of mesothelioma on November 5, 2004, a mere nine days after exhibiting his first symptoms of illness and nearly eight years after his last exposure to asbestos in the Jefferson County courthouse and annex in December 1996. His widow, Ellarene, provided, pursuant to the Texas Tort Claims Act, Jefferson County with written notice of her claims against it on April 4, 2005, less than six months after the emergence of Judge Farris's first symptoms and, ultimately terminal, diagnosis. Stunningly, the majority holds that the claims asserted by Ellarene are barred by governmental immunity because she did not provide notice of them to Jefferson County within six months of Judge Farris's final exposure to asbestos in December 1996—before the existence of any injury or damage. See TEX. CIV. PRAC. & REM. CODE § 101.101(a).

Based on the majority's reasoning, Judge Farris was required to provide Jefferson County with notice of a premature and speculative claim within six months of December 1996. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex. 1998) ("Requiring plaintiffs to file suit based only upon their suspicions about causal connections is. . . undesirable in latent occupational disease cases because, among other things, plaintiffs would be compelled to file premature, speculative claims."). But at that time, Judge Farris did not yet have a claim against Jefferson County for which he could provide notice because it was nearly eight years before he exhibited any symptom or was diagnosed with mesothelioma, i.e., before any damage or injury to him had come into existence. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.101(a). Instead, his claim relating to a malignant asbestos-related condition arising from his employment with Jefferson County did not accrue until his diagnosis or the manifestation of symptoms that put him on notice of his condition. See Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653 (Tex. 2000); see also Childs, 974 S.W.2d at 33

(accrual of damages in latent-disease cases not until "plaintiff's symptoms manifest themselves to a degree or for a duration that would put a reasonable person on notice").

Here, as previously explained by the Texas Supreme Court, Judge Farris's exposure to asbestos in the Jefferson County courthouse and annex "was only an incident—one of two—giving rise to [any] claim" he might have against Jefferson County. Loutzenhiser, 140 S.W.3d at 356 (emphasis in original). In Loutzenhiser, a mother, individually and on behalf of her child, brought suit against the University of Texas Southwestern Medical Center at Dallas, alleging that a chorionic villus sampling ("CVS"), a prenatal diagnostic test, performed by the Medical Center caused her child to be born with birth defects. Id. at 354. The court held that section 101.101(a)'s six-month-notice period ran from the birth of the child, not the date that the Medical Center performed the CVS. Id. at 356. The court explained:

The Medical Center argues that "the incident giving rise to the claim" was the CVS, but the CVS was only an incident—one of two—giving rise to the claim. The other such incident, and one equally necessary to the existence of the claim, was [the child's] live birth. If the notice period ran from the CVS, the statute required notice of a nonexistent claim. "Courts should not read a statute to create such an absurd result." We decline to do so here when there is a reasonable alternative construction of the statutory language. Because [the child's] live birth was an incident giving rise to his claim, and one essential to the existence of the claim, we hold that the six-month period for giving notice began when [the child] was born.[[2]] Id. at 356-57 (quoting Barshop v. Medina Cty. Underground Water Conservation Dist., 925 S.W.2d 618, 629 (Tex. 1996)).

As in Loutzenhiser, if the notice period in this case runs from Judge Farris's last exposure to asbestos, it would require "notice of a nonexistent claim." See id. at 356. Thus, section 101.101(a)'s notice period must run from the date that Judge Farris's injuries and damages arose, nine days before his death. In reaching the opposite conclusion, the majority misconstrues well-established Texas Supreme Court precedent, including Loutzenhiser. Because Judge Farris had not suffered any damage or injury, and did not even arguably have a claim against Jefferson County, until nine days before his death, I would hold that Ellarene's notice, provided within six months of Judge Farris's first symptoms and, ultimately terminal, mesothelioma diagnosis, was timely.

The majority's conclusion to the contrary should be corrected by our high court. See TEX. GOV'T CODE ANN. § 22.001(a) (Vernon Supp. 2017) ("The supreme court has appellate jurisdiction. . . if the court determines that the appeal presents a question of law that is important to the jurisprudence of the state."). [1] Dan Wallach, Death Suit Blaming Asbestos in Jefferson County Courthouse Could End, BEAUMONT ENTERPRISE, Sept. 12, 2016, https://www.beaumontenterprise.co m/news/article/Death-suit-blaming-asbestos-in-Jefferson-County-9217178.php (emphasis added) (Exhibit 3 to Jefferson County's Amended Plea to the Jurisdiction and Amended Motion for Summary Judgment and Amended No Evidence Motion for Summary Judgment).

[2] The baby, until born, legally had no claim because of "the longstanding common law rule. . . that the rights of a fetus [are] contingent on live birth." Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004) (second alteration in original) (internal quotations omitted).

Sources

• The opinion on Google Scholar
• Texas asbestos laws
• Texas asbestos exposure sites