City of Fort Worth v. Robles

• Decision Date: 14 June 2001
• Citation: 51 S.W.3d 436
• Parties: (Tex.App.-Fort Worth 2001) THE CITY OF FORT WORTH, APPELLANT v. NOEMI ROBLES, INDIVIDUALLY AND AS HEIR OF CASSANDRA ROBLES, APPELLEE NO. 2-01-039-CV
• Court: Texas Court of Appeals

Page 436

51 S.W.3d 436 (Tex.App.-Fort Worth 2001)

THE CITY OF FORT WORTH, APPELLANT v. NOEMI ROBLES, INDIVIDUALLY AND AS HEIR OF CASSANDRA ROBLES, APPELLEE

NO. 2-01-039-CV

Court of Appeals of Texas, Fort Worth

JUNE 14, 2001

Rehearing Overruled July 12, 2001.

FROM THE 141ST DISTRICT COURT OF TARRANT COUNTY

[Copyrighted Material Omitted]

PANEL A:DAY, HOLMAN, and GARDNER, JJ.

OPINION

DAY, JUSTICE

I. INTRODUCTION

In this interlocutory appeal, Appellant, the City of Fort Worth (the "City"), appeals from the trial court's denial of its plea to the jurisdiction on the grounds that the doctrine of sovereign immunity bars Appellee Noemi Robles's claims under the Texas Tort Claims Act and Robles has failed to plead a deprivation of a federal right that would entitle her to protection under 42 U.S.C. section 1983. We reverse and render.

II. BACKGROUND

On April 19, 1997, six-year-old Cassandra Robles was hit by a car and killed as she walked across the street near the intersection of Homan Avenue and Fifteenth Street in north Fort Worth. There were two-way stop signs on Fifteenth Street. However, Mr. Akbar, the owner of a grocery store at the corner of the intersection, had previously requested that the City place four-way stop signs at the intersection for the safety of pedestrians.

On April 21, 1997, the City sent a traffic engineer to the intersection, who determined that four-way stop signs should be installed. The City installed the traffic signal on April 23, 1997.

At the time of the accident, the City had a set policy to determine whether four-way stop signs should be installed at an intersection. This policy required the president of the neighborhood association to request four-way stop signs if the intersection was in an area that was controlled by a neighborhood association. If the area was not so controlled, then the person requesting the signs must also send a letter signed by the owners of the property on the corners of the intersection. The City would then conduct a traffic count, upon completion of which, a minimum of two-thirds of the residents living within 600 feet of the intersection must vote in favor of the signs.

Robles sued the City for the death of her daughter under the Texas Tort Claims Act and 42 U.S.C. section 1983. Robles also sought damages under the wrongful death and survival statutes. The City filed a plea to the jurisdiction, which the trial court denied.

III. PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party contests the trial court's authority to determine the subject matter of the cause of action. See, e.g., State v. Benavides, 772 S.W.2d 271, 273 (Tex. App. Corpus Christi 1989, writ denied). Because the question of subject matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999); Denton County v. Howard, 22 S.W.3d 113, 118 (Tex. App. Fort Worth 2000, no pet.)

In determining whether jurisdiction exists, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440 446 (Tex. 1993); City of Saginaw v. Carter, 996 S.W.2d 1, 2-3 (Tex. App. Fort Worth 1999, pet dism'd w.o.j.). We also consider evidence relevant to the jurisdictional issue that was before the trial court when it ruled on the plea. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000) (explaining that "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. The court should, of course, confine itself to the evidence relevant tot he jurisdictional issue.").

IV. TEXAS TORT CLAIMS ACT

The doctrine of sovereign immunity, unless waived, protects the State of Texas, its agencies, and its officials from lawsuits for damages, absent the State's consent to be sued. Umar v. Scott, 991 S.W.2d 512, 518 (Tex. App. Fort Worth 1999, no pet.). The party suing a governmental entity must allege consent to suit either by statute or express legislative permission. Mo. Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813-14 (Tex. 1970). The legislature has waived governmental immunity in the Texas Tort Claims Act, chapter 101 of the civil practice and remedies code, and its predecessor statutes. Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (Vernon 1997). Under the Texas Tort Claims Act, a governmental unit, including a city, is liable for personal injuries and deaths proximately caused by a condition or use of personal or real property if the governmental unit would, were it a private person, be liable. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997); City of Fort Worth v. Adams, 888 S.W.2d 607, 611 (Tex. App. Fort Worth 1994, writ denied), cert. denied, 516 U.S. 992 (1995). Section 101.0215(a) of the Texas Tort Claims Act provides that a municipality is liable under the Act for damages arising from its governmental functions, which are described as those enjoined on a municipality by law and given it by the State, to be exercised by the municipality in the interest of the general public. Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(a) (Vernon Supp. 2001). Some of the listed government functions covered by section 101.0215(a) are: warning signals; regulation of traffic; and maintenance of traffic signals, signs, and hazards. Id. However, the Tort Claims Act provides that the State and its municipalities retain their sovereign immunity in several situations, two of which are relevant in this case.

First, under section 101.056, the City preserves its immunity for an act "if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 1997). Therefore, if the City's action is discretionary, it does not waive its immunity. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); see also State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994).

Second, under section 101.060, the City does not waive its sovereign immunity for claims arising from the placement of traffic and road control devices in certain circumstances. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (Vernon 1997).

Section 101.060 specifically provides:

(a) This chapter does not apply to a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice; or

(3) the removal or destruction of a traffic or road sign, signal, or warning device by a third person unless the governmental unit fails to correct the removal or destruction within a reasonable time after actual notice.

(b) The signs, signals, and warning devices referred to in this section are those used in connection with hazards normally connected with the use of the roadway.

(c) This section does not apply to the duty to warn of special defects such as excavations or roadway obstructions.

Id.

Robles argues that her claims fall within section 101.060(a)(2). Under subsection (a)(2), immunity is retained unless the absence, condition, or malfunction of a traffic sign, signal, or warning device is not corrected by the governmental unit within a reasonable time after notice. Id. § 101.060(a)(2). The City contends that traffic signals cannot be absent until the City makes a decision to install the signals, which the City did not do until after Cassandra's death in this case. Instead, the City alleges that this case involves a situation in which Robles is actually arguing about the City's decision to initially install the stop signs on Homan Avenue, thereby requiring analysis under section 101.060(a)(1). Robles counters that the City made its initial decision about the placement of stop signs at the intersection when it placed the two stop signs on Fifteenth Street. As such, Robles argues that the City's failure to erect four-way stop signs at the intersection after Akbar's request placed the City on notice of the stop signs' absence. Therefore, we must determine whether the signs were "absent" from the intersection.

The City relies on City of San Antonio v. Schneider as support for its contention that the signs were not absent at the time of the accident. 787 S.W.2d 459, 468 (Tex. App. San Antonio 1990, writ denied). Schneider involved a situation in which Schneider had stopped to help the occupant of a car involved in an accident and was injured when a fire truck was unable to stop on the wet road and hit the car. Id. at 460-61. In Schneider, the road that was the object of the suit became slippery when it rained; however, there were no signs warning drivers of the danger. Id. at 461. The City of San Antonio agreed to place speed advisory signs and resurface the road, but the changes had not been made as of the date of the accident. Id. The City argued that under section 101.060(a)(2), it was shielded from liability unless the failure was not corrected within a reasonable time. Id. at 468. Concluding that subsection (a)(2) did not apply to the special defect presented in that case, the Schneider court explained that, "Subsection (a)(2) pertains to a sign or warning device that was in place at one time but was subsequently removed, is malfunctioning or is endowed with some condition that should be corrected by the governmental unit." Id.

Robles asserts that this court has already determined that a sign does not have to be in place before it can be absent. See Miller v....