City of Dallas v. Heard

• Decision Date: 22 April 2008
• Docket Number: No. 05-07-00762-CV.,05-07-00762-CV.
• Citation: 252 S.W.3d 98
• Parties: CITY OF DALLAS, Appellant v. Keisha HEARD, individually and as next friend of Rivers Heard, Bernard Hanyard, and Kiara Thomas, and Cheryl Reichert, individually and as next friend of Annabelle Reichert, Logan Reichert, and Tyler Reichert, Appellees.
• Court: Texas Court of Appeals

252 S.W.3d 98

CITY OF DALLAS, Appellant v. Keisha HEARD, individually and as next friend of Rivers Heard, Bernard Hanyard, and Kiara Thomas, and Cheryl Reichert, individually and as next friend of Annabelle Reichert, Logan Reichert, and Tyler Reichert, Appellees.

No. 05-07-00762-CV.

Court of Appeals of Texas, Dallas.

April 22, 2008.

Patricia M. Medrano, Barbara E. Rosenberg, City of Dallas Atty's Office, Dallas, for Appellant.

Ray Jackson, The Jackson Law Firm, Ben C. Martin, Law Offices of Ben C. Martin, L.L.P., Dallas, for Appellee.

Before Justices FITZGERALD, LANGMIERS, and MAZZANT.

OPINION

Opinion by Justice LANG-MIERS.

Appellees sued the City of Dallas for injuries they sustained when a gorilla escaped its outdoor exhibit at the Dallas zoo and attacked them. The City filed a plea to the jurisdiction, arguing that governmental immunity barred appellees' claims. The trial court denied the City's plea to the jurisdiction. We affirm in part and reverse and remand in part.

BACKGROUND

On March 18, 2004, Keisha Heard took her two minor sons and her niece to the Dallas zoo. Cheryl Reichert took her children to the zoo that same day. That afternoon, an adolescent western lowland gorilla escaped its outdoor exhibit and attacked Heard and one of her sons as they walked through the zoo. At some point, the gorilla entered the aviary where it encountered Reichert and her children. Reichert pushed her children out of the aviary through the glass-enclosed passageway doors,¹ but the gorilla pushed through the door before Reichert was able to exit. Appellees alleged that the aviary passageway doors "failed to open" when Reichert tried to escape. The gorilla attacked Reichert and threw her against the glass enclosure as her children watched. Eventually, one of the doors opened and Reichert fled to safety. In the meantime, zoo employees worked to prepare tranquilizer guns to sedate and recapture the gorilla. This required the employees to reconstitute the tranquilizer from a freeze-dried state. Before they were able to use the tranquilizer, members of a Dallas SWAT team shot and killed the gorilla.

Appellees sued the City under the theories of premises defects, condition or use of tangible personal property, and strict liability for possessing a wild animal. The City filed a plea to the jurisdiction arguing that governmental immunity bars appellees' claims. The trial court denied the City's plea to the jurisdiction, and the City appeals.

PLEA TO THE JURISDICTION

A party may challenge the trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). Whether the trial court has subject matter jurisdiction is a question of law, which we review de novo. Id. at 226. When the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties when it is necessary to resolve the jurisdictional issue. Id. at 227. This procedure generally mirrors that of a summary judgment under rule of civil procedure 166a(c). Id. at 228. The plaintiff has the burden to plead facts affirmatively showing the trial court has subject matter jurisdiction. Id. at 226. The governmental unit then has the burden to assert and support its contention, with evidence, that the trial court lacks subject matter jurisdiction. Id. at 228. If it does so, the plaintiff must raise a material fact issue regarding jurisdiction to survive the plea to the jurisdiction. Id. at 228.

In conducting our review, we construe the pleadings liberally in favor of the plaintiff and look to the plaintiff's intent. Id. at 226-27. We consider the pleadings and the evidence pertinent to the jurisdictional inquiry. Id.; City of Dallas v. First Trade Union Savings Bank, 133 S.W.3d 680, 686 (Tex.App.-Dallas 2003, pet. denied). If the evidence creates a fact issue concerning jurisdiction, the plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227-28. If the evidence is undisputed or fails to raise a fact issue concerning jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228. This standard "protect[s] the plaintiffs from having to 'put on their case simply to establish jurisdiction.'" Id. (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000)).

Additionally, our jurisdiction is limited to reviewing the grant or denial of the plea to the jurisdiction that was filed. TEX. CIV. PRAC. & REM.CODE ANN. § 51.014(a)(8) (Vernon Supp.2007); First Trade Union Sav. Bank, 133 S.W.3d at 686-87; Brenham Hous. Auth. v. Davies, 158 S.W.3d 53, 61 (Tex.App.-Houston [14th Dist.] 2005, no pet.). We do not have jurisdiction to consider grounds outside those raised in the plea to the jurisdiction. First Trade Union Sav. Bank, 133 S.W.3d at 687; Davies, 158 S.W.3d at 61.

GOVERNMENTAL IMMUNITY

Sovereign immunity deprives a trial court of subject matter jurisdiction over lawsuits against the state unless the state consents to suit. Miranda, 133 S.W.3d at 224. Governmental immunity operates like sovereign immunity and affords similar protections to governmental subdivisions, including cities. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.001(3)(B), .0215 (Vernon 2005); Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004).

The Texas Tort Claims Act (TTCA) creates a waiver of governmental immunity for personal injury or death caused by a condition or use of tangible personal property or real property if a private citizen would be liable under Texas law. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.021(2), .022, .025 (Vernon 2005 & Supp.2007). If a claimant alleges a premises defect and paid for use of the premises, the governmental unit owes the claimant the duty a private person owes an invitee on private property. See id. § 101.022; Miranda, 133 S.W.3d at 233 (citing State v. Tennison, 509 S.W.2d 560, 562 (Tex.1974)); Univ. of Tex. Med. Branch at Galveston v. Davidson, 882 S.W.2d 83, 85 (Tex.App.-Houston [14th Dist.] 1994, no pet.). The duty a private landowner owes an invitee is to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of the premises of which the owner is or reasonably should be aware. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex.2000); Davidson, 882 S.W.2d at 85. If a claim alleges a condition or use of tangible personal property, the plaintiff must allege that the property did more than merely furnish the condition that makes the injury possible — the plaintiff must allege that the property was a direct factor in causing the injuries. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). And allegations of failure to use or non-use of property are not actionable under the TTCA. See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587-88 (Tex.2001) (distinguishing claims involving failure to use, or non-use of property, which do not waive sovereign immunity, from claims involving condition or use of tangible personal property which do effect waiver).

A. Premises Defects

The City argues that appellees did not show a waiver of its governmental immunity for claims of premises defects because (1) their pleadings allege conduct that falls within the discretionary function exception to the limited waiver of immunity; (2) appellees did not plead gross negligence as required under the recreational use statute;² and (3) appellees did not show that any alleged premises defects were the proximate cause of their injuries.³

Initially, appellees contend that the City did not argue that the recreational use statute applies to this case in its plea to the jurisdiction and may not raise it for the first time on appeal. In response, the City argues that the recreational use statute is an element of subject matter jurisdiction and may be raised at any time. We agree with appellees.

Although subject matter jurisdiction may be raised for the first time on appeal, our jurisdiction in an interlocutory appeal is only to review the trial court's ruling on the plea to the jurisdiction filed below. See First Trade Union Sav. Bank, 133 S.W.3d at 687. We have no jurisdiction to consider issues on appeal that are outside the plea to the jurisdiction which was filed. See id. at 686-87; Davies, 158 S.W.3d at 61. Consequently, we limit our analysis to the order denying the plea that the City filed.

1. Appellees' Pleadings

Appellees alleged that the City did not adequately provide and maintain a safe gorilla habitat because the City did not build the habitat wall to the proper height, provide a roof over the habitat, trim trees next to the outdoor gorilla exhibit, maintain speed bumps to keep the gorilla from accelerating speed to climb the wall, provide an alarm system, and maintain functioning surveillance cameras. Appellees alleged that the City failed to immediately become aware of the gorilla's escape because it failed to properly monitor the habitat. According to appellees, the City failed to properly monitor the habitat because two of the surveillance cameras in that portion of the gorilla exhibit were not working. Appellees contended that the City's failure to maintain the cameras in working order also constituted the failure to provide an integral safety component. Additionally, appellees alleged that the doors to the aviary passageway were premises defects because they would not open when Reichert tried to escape, trapping her in the glass enclosure with the gorilla.⁴ They contended that the City failed to provide proper maintenance of the aviary doors. Appellees alleged that these conditions of real property allowed the gorilla to escape and injure them. They alleged that the City knew or reasonably should have known that these conditions existed and failed to adequately warn appellees of these dangerous conditions.

2. The City's Plea to the Jurisdiction

The City argued in its...