City of Midland v. Sullivan

• Citation: 33 S.W.3d 1
• Decision Date: 27 July 2000
• Docket Number: No. 08-99-00341-CV,08-99-00341-CV
• Parties: (Tex.App.-El Paso 2000) CITY OF MIDLAND, Appellant, v. PATRICIA SULLIVAN AND MICHAEL SULLIVAN, Individually and MICHAEL SULLIVAN as Next Friend of ADAM SULLIVAN, Appellees
• Court: Court of Appeals of Texas

Page 1

33 S.W.3d 1 (Tex.App.-El Paso 2000)

CITY OF MIDLAND, Appellant, v. PATRICIA SULLIVAN AND MICHAEL SULLIVAN, Individually and MICHAEL SULLIVAN as Next Friend of ADAM SULLIVAN, Appellees.

No. 08-99-00341-CV

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS, EL PASO

July 27, 2000

Opinion Overruling Rehearing September 28, 2000.

Appeal from the 142nd District Court of Midland County, Texas (TC# CV-42,093) [Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Before Panel No. 1 Larsen, McClure, and Chew, JJ.

O P I N I O N

ANN CRAWFORD McCLURE, Justice.

Patricia Sullivan and Michael Sullivan, individually, and Michael Sullivan as next friend of Adam Sullivan, brought suit against the City of Midland under the Texas Tort Claims Act, alleging that the City's failure to properly design, construct, and maintain the crosswalk and warning signs at Midland High School resulted in injuries to Adam when he was struck by a motor vehicle. Raising three issues for review, the City brings an interlocutory appeal from the denial of its plea to the jurisdiction based on sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2000); see Texas Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)(governmental defendant may contest in a plea to the jurisdiction whether the state has waived immunity from suit). We affirm in part and reverse in part.

FACTUAL SUMMARY

Adam was struck by a motor vehicle at 7:27 a.m. on October 9, 1997, as he walked through a school crosswalk near Midland High School. He suffered serious injuries to his head, legs, arms, face, and shoulders, as well as internal injuries. Although Adam's "zero hour"¹ classes began at 7:30 a.m., the school zone signs did not activate the school zone thirty minutes in advance of classes, contrary to a City policy.

On March 30, 1998, the Sullivans filed suit against the City of Midland under the Texas Tort Claims Act alleging that the school zone, crosswalk, and warning signs failed to adequately warn drivers of crossing pedestrians. The Sullivans alleged that sovereign immunity had been waived because Adam's injuries were caused by a condition or use of real or tangible personal property owned and/or controlled by the City. See Tex.Civ.Prac.&Rem.Code Ann. § 101.021(2)(Vernon 1997). They additionally relied on the waiver provision found in Tex.Civ.Prac.&Rem.Code Ann. § 101.060(a)(2)(Vernon 1997) relating to the condition of a traffic sign, signal, or warning device. The City answered and filed special exceptions claiming that the Sullivans' pleadings did not demonstrate a waiver of sovereign immunity. The trial court sustained the special exceptions on September 8, 1998, and ordered the Sullivans to replead in order "to provide [the City] notice as to how the real property in question may have contributed to the cause of the occurrence in question." The Sullivans filed their Second Amended Original Petition on October 13, 1998, alleging that certain defects and inadequacies of the school zone markers and warning signs proximately caused the accident. More specifically, the Sullivans alleged that although the "zero hour" classes began at 7:30 a.m. and the City had a policy of activating all school zones thirty minutes prior to classes, this particular school zone was not in operation at the time of the accident. They also alleged that the pavement markers identifying the school zone and crosswalk were not clearly visible to motorists and did not comply with the Manual for Uniform Traffic Control Devices (MUTCD). On November 2, 1998, the City filed a plea to the jurisdiction asserting that the Sullivans' pleadings did not allege how the City's tangible personal or real property was the instrumentality that directly caused Adam's injuries. The Sullivans not only filed a written response but again amended their pleadings to include an allegation that the City had knowledge of the defective and inadequate condition of the warning signs and pavement markers but failed to take corrective action. They alleged an additional claim based upon the City's action in providing a school zone, crosswalk, and warning sign which lacked an integral safety component, specifically, visible pavement markings and a sign which would have activated the school zone prior to the beginning of the "zero hour" classes. The trial court denied the plea to the jurisdiction on August 30, 1999. The City challenges that ruling in this interlocutory and accelerated appeal.

WAIVER OF SOVEREIGN IMMUNITY UNDER SECTION 101.021(2)

In its first issue for review, the City contends that the Sullivans have failed to allege a waiver of sovereign immunity under Section 101.021(2) of the Texas Tort Claims Act because they have not alleged that a condition or use of tangible personal or real property directly caused Adam's injuries. Since governmental immunity from suit defeats a trial court's subject-matter jurisdiction, the City argues that the trial court erred in failing to grant its plea to the jurisdiction. See Jones, 8 S.W.3d at 639; see Lamar University v. Doe, 971 S.W.2d 191, 196 (Tex.App.--Beaumont 1998, no pet.)(when a lawsuit is barred by sovereign immunity, dismissal with prejudice for want of jurisdiction is proper).

Standard of Review

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. City of Saginaw v. Carter, 996 S.W.2d 1, 2 (Tex.App.--Fort Worth 1999, no pet.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.--Corpus Christi 1989, writ denied). The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); City of Saginaw, 996 S.W.2d at 2. In the context of suit against a governmental unit, the plaintiff must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638; Missouri Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 813 (Tex. 1970); Texas Parks & Wildlife Dept. v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.App.--Dallas 1998, no pet.). The question of subject-matter jurisdiction is a legal question which we review de novo. City of Saginaw, 996 S.W.2d at 2; Texas Dept. of Health v. Doe, 994 S.W.2d 890, 892 (Tex.App.--Austin 1999, pet. dism'd by agr.); see Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999)(ripeness, as an element of subject-matter jurisdiction, is a legal question subject to de novo review). In reviewing the trial court's denial of a plea to the jurisdiction we look solely to the allegations in the petition and accept them as true. See City of Saginaw, 996 S.W.2d at 2-3; Firemen's Ins. Co. v. Board of Regents of Univ. of Tex. Sys., 909 S.W.2d 540, 541 (Tex.App.--Austin 1995, writ denied). We do not examine the merits of the case. See City of Saginaw, 996 S.W.2d at 3. If the petition does not allege jurisdictional facts, the plaintiff's suit is subject to dismissal only when it is impossible to amend the pleadings to confer jurisdiction. City of Saginaw, 996 S.W.2d at 3; see Texas Ass'n of Bus., 852 S.W.2d at 446; Liberty Mut. Ins. Co. v. Sharp, 874 S.W.2d 736, 739 (Tex.App.--Austin 1994, writ denied).

Liability Under the Tort Claims Act

A municipality such as the City of Midland is immune from liability for its governmental functions unless that immunity is specifically waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995); Gonzales v. City of El Paso, 978 S.W.2d 619, 622 (Tex.App.--El Paso 1998, no pet.). By designating warning signals, the regulation of traffic, engineering functions, and the maintenance of traffic signals, signs, and hazards as governmental functions,² the Legislature has imbued these functions with immunity unless a claim falls within one of three specific areas of liability for which immunity is waived by Section 101.021 of the Tort Claims Act -- use of publicly owned vehicles or other motor-driven equipment; a condition of real property (premises liability); and the condition or use of tangible personal property. See Medrano v. City of Pearsall, 989 S.W.2d 141, 144 (Tex.App.--San Antonio 1999, no pet.); McKinney v. City of Gainesville, 814 S.W.2d 862, 865 (Tex.App.--Fort Worth 1991, no writ). The basis for liability in the latter two areas is found in Section 101.021(2) of the Tort Claims Act which provides that a governmental unit in the state is liable for:

(2) 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)(Vernon 1997).³ However, in the case of a claim arising from the absence, condition, or malfunction of a traffic or road sign, signal, or warning device, a governmental unit will retain its immunity unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice. Tex.Civ.Prac.&Rem.Code Ann. § 101.060(a)(2)(Vernon 1997). Thus, Section 101.060(a)(2) imposes a limitation on the waiver of immunity provided by Section 101.021(2).

To state a claim involving the "condition" of property, the plaintiff must allege that defective or inadequate property caused the injury. Salcedo v. El Paso Hospital District, 659 S.W.2d 30, 31-32 (Tex. 1983); Garrett Place, 972 S.W.2d at 143. The injury must be proximately caused by the condition or use of the property. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998); Garrett Place, 972 S.W.2d at 143. Proximate cause consists of both cause in fact and...