Did the Texas Supreme Court substitute fair notice pleading for well-pleaded complaints? Texas Rule of Civil Procedure 91a was adopted in 2013, and provides a “no reasonable person could believe” standard. Until recently, whether “no reasonable person could believe” meant “plausibility” remained an unanswered question. In City of Dallas v. Sanchez, No. 15-0094 (July 1, 2016), the Court implicitly construed Rule 91a to impose a “factual-plausibility standard.”
Sanchez marks the first time the Court posited a standard by which to assess Rule 91a’s “no reasonable person could believe” or “no basis in fact” standard. Interestingly, the Court’s per curiam opinion does not engage in an in-depth analysis as to how the Court arrived at a “factual-plausibility standard,” but simply cites to a Houston Fourteenth Court of Appeals case, which analogized Rule 91a to Federal Rule 12(b)(6) and applied the federal well-pleaded complaint standard. See Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
In Sanchez, 9-1-1 dispatchers in Dallas, Texas received two calls within ten-minutes of one another, from two separate callers, with separate phone numbers and separate residences, but both at the same apartment complex and both requesting assistance for a drug-overdose victim. The second call concerned Matthew Sanchez. After the dispatcher received the victim’s location and emergency, the call was disconnected and never reestablished. Emergency responders arrived at the first caller’s residence and provided treatment to the first drug-overdose victim. The responders subsequently left the apartment complex, concluding that the second call was redundant. Sanchez died.
On Petition for Review, following partial dismissal by the trial court under Rule 91a, the Texas Supreme Court centered its attention on a single issue: “whether the phone’s condition was a proximate cause of Sanchez’s death.” Asked another way, is it factually plausible that a 9-1-1 phone system malfunction actually caused Sanchez’s death? If “yes,” the Texas Tort Claims Act waives the City’s governmental immunity. If “no,” then the plaintiffs’ pleading has no basis in fact and dismissal is mandatory under Rule 91a. The Court answered “no”:
“The malfunction was merely one of a series of factors that contributed to Sanchez not receiving timely medical assistance. . . . Sanchez’s death was caused by drugs, the passage of time, and misinterpretation of information. . . . Accordingly, the pleadings do not establish a defect in the 9-1-1 telephone system was a proximate cause of Sanchez’s death as required to establish a waiver of governmental immunity under the Tort Claims Act.”
Thus, the Court appears to treat the “factual-plausibility standard” as co-extensive with the federal plausibility standard. In light of Sanchez, practitioners need seriously to consider whether notice-pleading will keep their case in court. The bare facts in the Sanchez petition left too many unanswered factual questions, not the least of which is whether the City had a long-standing problem with its emergency responder line that was left unremedied, with knowledge that some callers/victims would be disconnected from emergency dispatchers and, thereby, harmed. Notice-pleading ordinarily allows for bare facts and conclusory statements. But the Court in Sanchez required something more.