Trial Materials: STEELHEAD MIDSTREAM PARTNERS, LLC, ET AL vs CL III FUNDING HOLDING COMPANY, LLC

On August 07, 2017 a Trial Materials was filed involving a dispute between and for OTHER CIVIL, OTHER in the District Court of Tarrant County.

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352-293713-17

Exhibit A
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

employer's facility. Vernon's Ann.Texas Civ.St.
art. 5221k, § 1.01 et seq.
KeyCite Yellow Flag - Negative Treatment
Distinguished byGohring v. State,Tex.App.-Beaumont, March 18, 9 Cases that cite this headnote
1998

820 S.W.2d 869 [2] Appeal and Error Requests and Failure to
Court of Appeals of Texas, Submit Interrogatories or Issues
Austin. Employer that did not object to former female
employee's failure to submit jury question on
SYNDEX CORPORATION, Appellant, employer liability for discrimination employing
v. two-part test could not subsequently raise
Mary C. DEAN, Appellee. argument that test indeed should have been
employed.
No. 3–88–090–CV.
| 1 Cases that cite this headnote
Nov. 6, 1991.
|
[3] Trial Statement of grounds of objection
Rehearing Overruled Jan. 8, 1992.
Party objecting to jury charge must point out
Synopsis distinctlyobjectionable matter and grounds of
Female former employee brought suit against supervisor and objection. Vernon's Ann.Texas Rules Civ.Proc.,
employer for,inter alia,sexual harassment in violation of Rule 274.
state Human Rights Act. The District Court of Travis County,
147th Judicial District, Juan Gallardo, J., entered judgment
for employee, and appeal was taken. The Court of Appeals, [4] Civil Rights Employment practices
781 S.W.2d 652, partially reversed, but the Supreme Court,
Whether employer ratified or authorized
803 S.W.2d 711,reversed and remanded for consideration of
supervisor's sexually harassing conduct toward
remaining points of error. On remand, the Court of Appeals,
female subordinate was not determinative of
Aboussie, J., held that: (1) employer was liable to employee
employer's liabilityunder stateHuman Rights
for supervisor's conduct because supervisor acted within his
Act; conduct that was forbidden could still
delegation of authority as employer's branch manager, and (2)
be within scope of employment. Vernon's
testimony of certified social worker and psychotherapist fell
Ann.Texas Civ.St. art. 5221k, § 1.01 et seq.
within medical-treatment exception to hearsay rule.
18 Cases that cite this headnote
Affirmed.

[5] Evidence Acts and Statements of Person
Sick or Injured
West Headnotes (7) Testimony of certified social worker and
psychotherapist who counseled employee for
[1] Civil Rights Employment practices depression and obtained history of sexual
harassment by employee's supervisor fell within
Under agency principles, even if employer
medical-treatment exception to hearsay rule;
did not authorize supervisor's specific sexually
employee's family doctor originally referred
harassing conduct toward female subordinate,
employee to social worker for treatment for
employer was directly liable to subordinate
depression, history was obtained in preparation
under state Human Rights Act for supervisor's
for treatment, and social worker testified that
conduct because supervisor acted under his
obtaining history was important part of diagnosis
delegation of authority as branch manager of
and treatment. Rules of Crim.Evid., Rule 803(4).

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

emotional distress, and sued Syndex for sexual harassment
2 Cases that cite this headnote under the Texas Commission on Human Rights Act. See
Tex.Rev.Civ.Stat.Ann. art. 5221k (1987 & Supp.1991) (“the
[6] Appeal and Error Admission or exclusion Human Rights Act”). Judgment was rendered in favor of
of evidence in general Dean. This Court held that the trial court had admitted
improper character and profile evidence, and reversed that
Review of trialcourt's action with respect to
part of the judgment awarding damages and attorney's fees for
admission of evidence under abuse of discretion
sexual harassment. The supreme court reversed our judgment
standard is question of law, and test is whether
and remanded the cause to us for consideration of Syndex's
court acted without reference to any guiding
remaining points of error. See Bushell v. Dean, 781 S.W.2d
rules and principles, i.e.,
whether court acted
652 (Tex.App.1989), rev'd, 803 S.W.2d 711 (Tex.1991). We
arbitrarily or unreasonably.
will affirm the judgment of the trial court.
18 Cases that cite this headnote

Background 1
[7] Appeal and Error Admissions,
1
declarations, and hearsay For a more complete background statement, see our
earlier opinion, Bushell, 781 S.W.2d 652.
Appeal and Error Particular cases
Even if testimony of certified social worker and Smith Produce, which Syndex Corporation owns, hired Dean
psychotherapist regarding incidents of sexually as an order clerk in 1978. Syndex maintains its corporate and
harassing conduct by supervisor against female principal place of business in Houston; Smith Produce is a
subordinate who was social worker's patient was branch of Syndex located in Travis County. Over the years,
inadmissible hearsay, error in admitting it was Dean received raises and was promoted to office manager.
harmless; most incidents described by social Bill Bushell is the branch manager of Smith Produce and
worker were also testified to by at least one other was Dean's immediate supervisor when she became office
witness besides subordinate, and sole incident manager. As such, Bushell could fire Dean and completely
that was not confirmed by other testimony was controlled her workload.
point of disagreement between social worker and
subordinate, with social worker admitting that Although they initially had a good workplace relationship, by
she may have confused different events. December 1983 the relationship between Bushell and Dean
began to change. Dean testified that Bushell suddenly altered
1 Cases that cite this headnote his conduct toward her. His conduct toward her ranged from
flirtatious to sexually aggressive: he bought her meals and soft
drinks, did her favors, and discussed with her his fantasies
and dissatisfactionwith his wife's sexual performance. He
Attorneys and Law Firms grabbed her in front of other employees, triedto kiss her,
and once sneaked up behind her, putting his hands under her
*870 Bill Malone, Jr.,Austin, Tim G. Sralla, Fielding, armpits, and exclaimed “Gotcha.” One day while she was
Barrett & Taylor, Ft. Worth, for appellant. seated at her desk, he approached her from behind, began
rubbing her shoulders and then moved his hands down toward
Malcolm Greenstein, Greenstein & Kolker, Austin, for her breasts. She became angry and insisted that he stop.
appellee.
One Saturday in February 1984, Bushell ordered Dean into
Before CARROLL, C.J., and ABOUSSIE and KIDD, JJ.
his office where he had closed the blinds and cleared his desk.
Opinion He insisted thatshe lock the door, whereupon he satnext
to her and proposed that they have an affair, to begin that
ABOUSSIE, Justice. very moment in his office. She told him that she was flattered
but repeatedly told him that she was not interested. On the
Mary Dean sued Bill Bushell and Syndex Corporation
following Monday Bushell admitted that he had upset her, but
for damages for assault and intentional infliction of
insisted that he was glad that he had said what he did, and

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 2
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

continued to pursue her. Finally, in front of other employees,
Bushell looked at her and commented that everything has a Employer Liability
price and can be bought. Dean responded in anger that she [1] There are no Texas cases establishing a test for employer
was not for sale. liability under the Human Rights Act. However, this Act is
modeled on federal law and itspurpose is to provide for
Thereafter, Bushell again changed his behavior toward Dean, the execution of the policies embodied in TitleVII of the
becoming cold and formal, calling her “Mrs. Dean,” and federal Civil Rights Act of 1964 in 42 U.S.C. § 2000e, et seq.
increasing her workload. When she tried to inform Bushell See Tex.Rev.Civ.Stat.Ann. art. 5221k, § 1.02(1) (Supp.1991).
that the company's truck drivers were planning to strike in Accordingly, Syndex relies on federal case law.
protest over a wage freeze, he became angry and shouted at
her. She responded that he was not going to shout at her, and Syndex originallyargued that any corporate liabilitymust
quit her job. She then collected her personal things, left, and be based on the general principles of agency law set forth
never returned. in sections 219–237 of the Restatement 2nd of Agency as
required by the Supreme Court in Vinson, 477 U.S. at 72,
106 S.Ct. at 2408 (1986). Specifically, Syndex urged at trial
The Controversy and on appeal that the test for employer liability is “course
The Texas Human Rights Act makes it unlawful for an and scope.” Syndex complains of an erroneous jury charge on
employer “to discriminate *871 against an individual with the basis that “[t]he proper inquiry would have been whether
respect to compensation or the terms, conditions, or privileges Bushell was acting in the course and scope of his employment
of employment because of ... sex....” Tex.Rev.Civ.Stat.Ann. when he allegedly committed the sexual harassment.”
art. 5221k, § 5.01(1) (Supp.1991). Sexual harassment, like
racial harassment, is universally recognized as employment Syndex complains in points of error one and two that the
discrimination. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 64, trial court erred in granting judgment against Syndex because
106 S.Ct. 2399, 2403, 91 L.Ed.2d 49 (1986). See also Hicks the trial court failed to submit to the jury the correct test for
v. Gates Rubber Co., 833 F.2d 1406, 1413 (10th Cir.1987). employer liability and as a result there was no jury finding that
Courts have recognized two distinctcategories of claims: Bushell was acting in the course and scope of his employment
quid pro quo sexual harassment and hostile work environment when he sexually harassed Dean.
sexual harassment. Katz v. Dole, 709 F.2d 251, 254–55 (4th
Cir.1983). The trial court submitted the following questions on employer
liability to the jury:
This case involves hostile work environment harassment,
which “has the purpose or effect of unreasonably interfering QUESTION 10: Do you find thatprior to the date Ms.
with an individual's work performance or creating an Dean resigned, that Syndex Corporation failed to take
intimidating, hostile, or offensive working environment.” those actions which a reasonable employer would have
Vinson, 477 U.S. at 65–66, 106 S.Ct. at 2404–05 (quoting taken under the same or similar circumstances to make
the EEOC Guidelines. See 29 C.F.R. § 1604.11(a)(3) (1986)). itsworkplace reasonably safe from unlawful sexual
The jury found that Dean was subjected to unlawful sexual harassment?
harassment by Bushell, and made other findings in favor of
ANSWER: Yes.
Dean. Based upon the jury's verdict, the trial court rendered
judgment in favor of Dean and against Bushell and Syndex. QUESTION 11: Do you find thatSyndex Corporation
failed to take immediate appropriate corrective action
The primary issue on remand is embodied in Syndex's first upon learning that an allegation of unlawful sexual
three points of error which complain generally that the harassment had been made?
trialcourt erred by submitting to the jury an inaccurate
test of employer liabilityunder the Human Rights Act. ANSWER: Yes.
Also undecided are Syndex's points of error ten and eleven
complaining thatthe trialcourt erred in admitting certain Syndex's original argument on appeal is consistent with its
testimony of witnesses Gilbert, Klein, and Mersky. objections at trial. Syndex objected to question 10 “because
that special issue would place a duty upon [Syndex] that does
not exist” and requested the court substitute a question on

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 3
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

course and scope. 2 Syndex objected to question 11 *872 subjected Dean to unlawful sexual harassment (question 9).
“because it places the burden of proof inappropriately,” and Syndex does not citeus to any authority holding thatan
employer
requested in its place a special issue inquiring, “Do you find ... cannot be held liable for its branch manager's
that Syndex Corporation took appropriate corrective action as sexual harassment of a subordinate employee in the absence
it learned the full extent of Plaintiff's claims and the evidenceof an express finding that the branch manager acted in the
supporting it?” The trial court overruled these objections and course and scope of his employment. Indeed, under the
denied the requests. circumstances of this case Bushell is deemed to act as the
employer. See Hugo, Schmeltzer & Co. v.Paiz, 104 Tex.
2 563, 141 S.W. 518 (1911); Ramsey v. Coldwater Cattle Co.,
Syndex requested three alternative substitutes, all
403 S.W.2d 196 (Tex.Civ.App.1966, writ dism'd); Phillips
essentially course-and-scope inquiries.The first
Oil Co. v. Linn, 194 F.2d 903 (5th Cir.1952). Thus, under
asked whether Bushell was acting within the
agency principles, even if Syndex did not authorize Bushell's
course and scope of his employment when he
specific conduct, Syndex is directly liable to Dean for
sexually harassed Dean and was accompanied by
Bushell's conduct because Bushell acted under his delegation
an instruction defining course and scope. The
of authority as branch manager of Smith Produce. See Sparks
second alternative asked whether Bushell's actions
v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1558–59 (11th
were “referable to or in the discharge of any duty
Cir.1987).
owed Syndex Corporation.” The third alternative
asked whether Bushell's actions “related to Syndex
[2] Furthermore, on remand Syndex concedes that course
Corporation's fruit and vegetable business.”
and scope is not the appropriate jury inquiry. Syndex now
Proof of Bushell's actions and course of conduct toward relies on cases decided since this case was tried and urges
Dean over a lengthy period was introduced as evidence that in applying general agency principles the court should
that he assaulted her, that he sexually harassed her, and inquire by a two-part test: “(1) whether the employer knew or
that he intentionally inflictedemotional distress upon her. should have known of the harassment; and (2) assuming the
Upon this evidence, the jury found that Bushell was acting existence of such notice, whether the employer then failed to
within the course and scope of his employment when he take appropriate corrective action.”
committed the assault (question 3) and when he intentionally
inflicted emotional distress upon Dean (question 8). On these We do not decide the accuracy of Syndex's argument on
questions, the court instructed the jury: remand. Syndex did not object to Dean's failure to submit
a question on employer liability applying this two-part test.
“Objections to the charge cannot be raised for the first
[A] person acts within the course and time on appeal.” Wilson v. King, 311 S.W.2d 957, 959
scope of his employment if the acts ... (Tex.Civ.App.1958, writ ref'd).
were done within the scope of the
general authority given to Mr. Bushell [3] The party who does not have the burden of proof on an
by Syndex Corporation. Furthermore, issue is required to object at trial to the failure to submit a
the acts ...must have been done in question. Tex.R.Civ.P.Ann. 278 (Supp.1991). The objection
furtherance of Syndex Corporation's must be in writing or read into the record or it is waived.
business, and the acts must have been Tex.R.Civ.P.Ann. 272 (Supp.1991). The party objecting to
done to accomplish the job for which the charge must point out distinctly the objectionable matter
Mr. Bushell was employed. and the grounds of the objection. Tex.R.Civ.P.Ann. 274
(Supp.1991). See also *873 Castleberry v. Branscum, 721
S.W.2d 270, 276–77 (Tex.1986). If the objection is that the
trialcourt failed to submit a definition or instruction, the
This Court has already overruled Syndex's challenges to the
party is required to tender a substantially correct definition
legal and factual sufficiency of the evidence proving that
or instruction in writing. Tex.R.Civ.P.Ann. 278 (Supp.1991).
Bushell's actions were within the course and scope of his
In either situation, a party must state “the specific grounds
employment. See Bushell, 781 S.W.2d at 658–59. The jury
for the ruling he desires the court to make” in order to
further found that by his action Bushell, who was Dean's
supervisor and the head of Smith Produce in Austin, had

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 4
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

preserve a complaint for appellate review. Tex.R.App.P.Ann. this history was an important part of the diagnosis and
52 (Pamph.1991). treatment of Dean's depression.

We cannot now consider on remand whether the court erred Mersky's testimony is within the medical-treatment exception
for failure to submit an issue inquiring whether Syndex “knew to the general ruleprohibiting the introduction of hearsay
or should have known” about the sexual harassment. This statements. Under this exception, the following statements are
theory was not tried, requested, or made the basis of any of admissible:
Syndex's objections to the charge. “Parties are restricted on
appeal to the theory on which the case was tried.” Davis v.
Campbell, 572 S.W.2d 660, 662 (Tex.1978). Statements made for purposes of
medical diagnosis or treatment and
[4] Syndex complains in itsthird point of error that the describing medical history, or past or
trialcourt erred in granting judgment against it because a present symptoms, pain, or sensations,
partial summary judgment prior to trial established as a matter or the inception or general character
of law that Syndex did not ratify or authorize Bushell's of the cause or external source thereof
unlawful acts. We reject Syndex's argument. Whether Syndex insofar as reasonably pertinent to
ratified or authorized Bushell's acts is not determinative of diagnosis or treatment.
its liability. “The Restatement specifically provides that even
though an act is forbidden it may still be within the scope of
employment.” Yates v. Avco Corp., 819 F.2d 630, 636 (6th Tex.R.Civ.Evid.Ann. 803(4) (Pamph.1991). Under this
Cir.1987); Restatement (Second) of Agency § 230 (1958). See exception the statement need not have been made to a
also Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex.1968). physician, so long as it is made for the purpose of medical
treatment. See Advisory Committee's Note to Federal Evid.
Syndex's first three points of error are overruled. Rule 803(4).

[6] The admission of evidence is a matter within the
Syndex's Remaining Points of Error
discretion of the trialcourt. Review of a trialcourt's
Syndex's tenth point of error complains that the testimony of
action under the abuse of discretion standard is a question
witnesses Gilbert and Klein regarding the effect of the non-
of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810
existence of written policies prohibiting sexual harassment
(Tex.1983). The test is whether the court acted without
and the non-existence of a grievance procedure was unduly
reference to any guiding rules and principles.*874 Downer
prejudicial because iterroneously implied to the jury that
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
there is an affirmative duty on the employer to provide such
(Tex.1985); Craddock v. Sunshine Bus Lines, 134 Tex. 388,
written policies. As with points of error seven, eight and nine,
133 S.W.2d 124, 126 (1939). Another way of stating the test
Syndex failed to preserve error on this point. Point of error
is whether the act was arbitrary or unreasonable. Downer, 701
ten is therefore overruled.
S.W.2d at 242.
[5] In itseleventh point of error,Syndex argues that the
Applying the medical-treatment exception to the hearsay rule,
trial court erred in admitting the testimony of Deena Mersky
the statements of child abuse victims as to the identity of
about a number of acts by Bushell against Dean because the
their abuser were held admissible where the cause of the
testimony constituted inadmissable hearsay and was offered
injury was pertinent to physical and psychological treatment
for the sole purpose of bolstering Dean's credibility.See
and diagnosis. See Interestof L.S., 748 S.W.2d 571, 577
Tex.R.Civil Evid.Ann. 801 (Pamph.1991). We disagree.
(Tex.App.1988, no writ). Since the trialjudge acted in
Mersky is a certified social worker and psychotherapist. accordance with this existing precedent of Interest of L.S., we
Dean's family doctor originally referred her to Mersky for cannot say that he abused his discretion in allowing Mersky's
treatment for depression. Mersky counselled Dean about testimony.
thirty times. In preparation for her treatment, Mersky obtained
a history of the incidents involving Bushell, about which [7] Further, even if the testimony was inadmissible, it was
Mersky testified at trial. Mersky also testified that obtaining harmless error. Most of the incidents Mersky described were

© 2020 Thomson Reuters. No claim to original U.S. Government Works. 5
Syndex Corp. v. Dean, 820 S.W.2d 869 (1991)
57 Fair Empl.Prac.Cas. (BNA) 547

not prejudiced, even if Mersky's testimony was improperly
also testified to by at least one other witness besides Dean.
admitted. Syndex's eleventh point of error is overruled.
The only event that was not confirmed by other testimony
was that Bushell approached Dean with his pants down in
The judgment of the trial court is affirmed.
an attempt to have sexual intercourse with her. Dean testified
that the incident did not occur the way Mersky described,
but that Mersky may have confused two other incidents. All Citations
Mersky admitted that she may have confused two separate
events. Thus, the jury was not misled and Syndex was 820 S.W.2d 869, 57 Fair Empl.Prac.Cas. (BNA) 547

intentionally performed certain acts (2) that
resulted in the taking, damaging, or destruction
KeyCite Yellow Flag - Negative Treatment of the owner's property (3) for public use.
Distinguished byFoster v. Denton Independent School Dist.,
Tex.App.-
Vernon's Ann.Texas Const. Art. 1 § 17.
Fort Worth,March 28, 2002

1 Cases that cite this headnote
989 S.W.2d 368
Court of Appeals of Texas,
Fort Worth. [2] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished
TARRANT COUNTY, Texas, Appellant. The essential element that must exist for a taking
v. to be compensable is that the private property
Roy ENGLISH and Gayle English, must be taken for, or applied to, public use.
d/b/a Dakota Industries, Apellees. Vernon's Ann.Texas Const. Art. 1 § 17.

No. 2–97–067–CV.
|
[3] Eminent Domain What Constitutes a
Nov. 12, 1998.
Taking; Police and Other Powers Distinguished
|
When private property is damaged or destroyed
Rehearing Overruled Jan. 7, 1999.
merely as the result of governmental employees'
Synopsis negligence, it is not taken or damaged for public
Former landowner brought action against county to recover use. Vernon's Ann.Texas Const. Art. 1 § 17.
for contamination with diesel fuel from county's asphalt
trucks. The 236th District Court, Tarrant County, Tom Lowe, 1 Cases that cite this headnote
J.,entered judgment in favor of landowner on claims of
inverse condemnation, nuisance, and negligence. County [4] Eminent Domain What Constitutes a
appealed. The Court of Appeals, Richards, J., held that: (1) Taking; Police and Other Powers Distinguished
property damage from the fuel was not a “taking” necessary There is no taking of property unless the damage
for inverse condemnation claim; (2) county was immune was authorized by the state in the exercise of its
from liability on a nuisance theory; (3) county could be held lawful authority or was necessarily incidental to
liable under Tort Claims Act subjecting governmental unit to the governmental action; mere negligence is not
liability for property damage that arises from use of a motor the lawful exercise of governmental authority.
vehicle; (4) evidence established migration of the fuel and Vernon's Ann.Texas Const. Art. 1 § 17.
thus causation; (5) damages were limited to $100,000; and (6)
county's settlement letter was admissible. 1 Cases that cite this headnote

Reversed and rendered in part; reformed in part; and affirmed
[5] Eminent Domain Forfeitures
as reformed.
Damage from diesel fuel that had negligently
Procedural Posture(s): On Appeal. dripped from county's asphalt trucks and
migrated to adjacent property was not a “taking”
necessary for inverse condemnation claim; the
West Headnotes (22) migration of the diesel fuel onto the adjacent
property was not authorized or intended by the
county. Vernon's Ann.Texas Const. Art. 1 § 17.
[1] Eminent Domain What Constitutes a
Taking; Police and Other Powers Distinguished 5 Cases that cite this headnote
To recover based on an inverse condemnation
theory, a property owner must establish that:
(1) the state or other governmental entity

[6] Eminent Domain Nuisance and [11] Municipal Corporations Nuisances
demolition If a nuisance is caused by the negligent
Nuisance is an alternate ground of recovery performance of a governmental function, then
under state constitutional provision stating that the governmental entity is protected from
no person's property shall be taken, damaged, or liability because of governmental immunity.
destroyed for or applied to public use without
adequate compensation. Vernon's Ann.Texas 2 Cases that cite this headnote
Const. Art. 1 § 17.
[12] Counties Condition and use of public
2 Cases that cite this headnote
buildings, places, and property
County was immune from liability on a
[7] Municipal Corporations Nuisances nuisance theory for any negligence in allowing
Municipality is liable for the creation or hydrocarbons to migrate to adjacent property; the
maintenance of a nuisance in the course of the county did not act with gross negligence.
non-negligent performance of a governmental
function.
[13] Automobiles Counties
2 Cases that cite this headnote
Property damage from diesel fuel that was
sprayed on the beds of county asphalt trucks and
[8] Municipal Corporations Nuisances migrated to adjacent property could be viewed
To be a nuisance within the exception to as arising from use of the trucks, and, thus,
governmental immunity, the condition must in county could be held liable under Tort Claims
some way constitute an unlawful invasion of the Act subjecting governmental unit to liability for
property or rights of others that is inherent in the property damage that arises from use of a motor
thing or condition itself, beyond that arising from vehicle; even though the trucks were not pouring
its negligent or improper use. asphalt at the time of the damage, the trucks
were in use because they were being prepared.
3 Cases that cite this headnote V.T.C.A., Civil Practice & Remedies Code §
101.021(1).
[9] Municipal Corporations Governmental
4 Cases that cite this headnote
powers in general
If the governmental function cannot be
performed non-negligently without injuring a [14] Automobiles Questions for Jury
private citizen's property, the governmental Whether a governmental entity'sconduct falls
entity must stand the loss and is not immune. within the scope of Tort Claims Act subjecting
governmental unit to liability for property
damage that arises from the operation or use of
[10] Municipal Corporations Nuisances a motor vehicle is a question for the fact finder.
V.T.C.A., Civil Practice & Remedies Code §
“Non-negligence” within the meaning of the
101.021(1).
principle of governmental immunity from
liabilityon a nuisance theory for the non-
negligent performance of a governmental
function means beyond negligence, as in gross [15] Negligence In general; degrees of proof
negligence or an intentional act. Causation element of negligence must be
established by evidence of probative value
9 Cases that cite this headnote showing a reasonable probability that injuries

were caused by the defendant's negligence; to mislead the landowner. Rules App.Proc., Rule
absolute certainty is not required. 44.1.

[16] Counties Condition and use of public [20] Counties Nature and grounds of liability
buildings, places, and property

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Trial Materials: STEELHEAD MIDSTREAM PARTNERS, LLC, ET AL vs CL III FUNDING HOLDING COMPANY, LLC

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