City of Cleburne v. Trussell

• Decision Date: 19 January 2000
• Docket Number: No. 10-99-287-CV,10-99-287-CV
• Citation: 10 S.W.3d 407
• Parties: (Tex.App.Waco 2000) CITY OF CLEBURNE, Appellant v. DONNA R. TRUSSELL AND EDWIN E. TRUSSELL, Appellees
• Court: Texas Court of Appeals

Page 407

10 S.W.3d 407 (Tex.App.Waco 2000)

CITY OF CLEBURNE, Appellant v. DONNA R. TRUSSELL AND EDWIN E. TRUSSELL, Appellees

No. 10-99-287-CV

IN THE TENTH COURT OF APPEALS of Texas, Waco

Jan. 19,2000

From the 18th District Court Johnson County, Texas Trial Court # 249-230-98

Before Chief Justice DAVIS, Justice VANCE, and Justice GRAY.

O P I N I O N

BILL VANCE, Justice

In this interlocutory appeal under section 51.014(8) of the Texas Civil Practice and Remedies Code, we must decide: 1) whether the court properly denied a plea to the jurisdiction, and 2) whether lost wages and loss of earning capacity are "personal injury damages" recoverable under the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE ANN. 51.014(8), 101.021-.025 (Vernon 1997 & Supp. 1999).

Donna and Edwin Trussell (the Trussells) sued the City of Cleburne (the City) under the Texas Tort Claims Act (TTCA) for failure to warn and failure to make the street safe after a metal plate covering a utility ditch collapsed when they drove over it. The Trussells seek a variety of damages for injuries resulting from the accident, including lost wages and loss of earning capacity. The City brings this interlocutory appeal, asserting that the trial court should have granted its plea to the jurisdiction on the basis of sovereign immunity. We will affirm the court's denial of the plea to the jurisdiction.

STANDARD OF REVIEW

When a lawsuit is barred by sovereign immunity, dismissal with prejudice for want of jurisdiction is proper. See Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex. App.-Austin 1994, writ denied). "In deciding whether to grant a plea to the jurisdiction, the trial court must look solely to the allegations in the petition." Id. On appeal, we examine the petition, take as true the facts pleaded, and determine whether those facts support the trial court's jurisdiction. Hernandez v. Texas Worker's Comp. Ins. Fund, 946 S.W.2d 904, 906 (Tex. App.-Eastland 1997, no writ). The allegations in the petition are construed in favor of the plaintiff. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Thus, we look only to the allegations within the four corners of the Trussells' petition to determine whether the trial court has jurisdiction to hear the case.

THE ALLEGATIONS

The Trussells' petition asserts that, on a public street known as Granbury Street, maintained and operated by the City of Cleburne, a hole was dug up and left uncovered. This condition was known to the City because City employees created the condition. While driving along Granbury Street, the Trussells' automobile hit the portion of the street which had been dug up and were injured as a result. They assert that the City was negligent in:

a.failing to inspect the street and its attendant equipment;

b.failing to properly maintain the street and its attendant equipment;

c.failing to properly warn Plaintiffs about the condition of the street and its attendant equipment;

d.negligently inviting, enticing, and/or directing Plaintiffs into the street;

e.failing to place barricades around the area of the street which had been dug up;

f.placing iron plates over the 6"-8" hole within the dug-up area that were not anchored to hold them in place and/or prevent them from moving, thereby allowing a vehicle wheel to drop in the hole;

g.placing iron plates over the 6"-8" hole within the dug-up area that did not withstand a vehicle safely passing over them, causing the damage to Plaintiff's vehicle; and

h.allowing the iron plates to be placed in such a manner as to present an unreasonable risk of injury to travelers on the street, including the Plaintiffs.

As a "direct and proximate result of the occurrence," the Trussells assert, Donna suffered "injury to her neck, shoulders, back, arms and hands." They further assert that she has incurred the following damages:

a.reasonable medical care and expenses in the past;

b.reasonable and necessary medical care and expenses which will in all reasonable probability be incurred in the future;

c.physical pain and suffering in the past;

d.mental anguish in the past;

e.physical pain and suffering in the future;

f.mental anguish in the future g.physical impairment in the past;

h.loss of earnings in the past;

i.loss of earning capacity which will, in all probability, be incurred in the future;

j.loss of consortium in the past;

k.loss of consortium in the future;

l.loss of household services in the past; and

m.loss of household services in the future.

They also claim damages for Edwin for loss of consortium in the past and future and loss of household services.

TEXAS TORT CLAIMS ACT

Under the TTCA, the City is liable only for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. 101.021(2). Municipalities are specifically liable for damages resulting from street construction and design. Id. 101.0215(a)(3). Thus, the negligence alleged in the Trussells' petition is the type of conduct for which the City may be liable. The City's sole contention on appeal is that some of the damages alleged by the Trussells, namely loss of wages and loss of earning capacity, are "economic damages" and not "personal injury damages" and therefore are not recoverable under the TTCA. The City does not dispute that the other damages asserted may be recoverable under the TTCA. See id. 101.021(2).

PLEA TO THE JURISDICTION

A plea to the jurisdiction urges that the court lacks the power to determine the subject matter of the controversy. General Motors Acceptance Corp. v. Harris County Mun. Util. Dist. #130, 899 S.W.2d 821, 824 n.3 (Tex. App.-Houston [14th Dist.] 1995, no writ). Thus, sustaining a plea to the jurisdiction requires dismissal of the entire cause of action. See Speer v. Stover, 685 S.W.2d 22, 23 (Tex. 1985); American Pawn & Jewelry, Inc. v. Kayal, 923 S.W.2d 670, 672 (Tex. App.-Corpus Christi 1996, writ denied). As a result, the granting of a plea to the jurisdiction on the basis that some of the damages pled are not recoverable would be erroneous. Thus, the court did not err in denying the plea to the jurisdiction. Alternatively, we will address whether lost wages and loss of earning capacity...