City of El Paso v. Viel

• Decision Date: 30 June 2017
• Docket Number: No. 08-16-00177-CV,08-16-00177-CV
• Citation: 523 S.W.3d 876
• Parties: CITY OF EL PASO, Texas, Appellant, v. Holger P. VIEL, Appellee.
• Court: Texas Court of Appeals

523 S.W.3d 876

CITY OF EL PASO, Texas, Appellant,

v.Holger P. VIEL, Appellee.

No. 08-16-00177-CV

Court of Appeals of Texas, El Paso.

June 30, 2017

ATTORNEYS FOR APPELLANT: Hon. Daniel H. Hernandez, Ray, Valdez, McChristian & Jeans, P. C., 5822 Cromo Drive, Suite 400, El Paso, TX 79912, Hon. Jessica Z. Barger, Wright & Close LLP, One Riverway, Ste. 2200, Houston, TX 77056.

ATTORNEY FOR APPELLEE: Hon. Jeffrey B. Pownell, Scherr & Legate, PLLC, 109 N. Oregon, 12th Floor, El Paso, TX 79901.

Before McClure, C.J., Rodriguez, and Palafox, JJ.

OPINION

GINA M. PALAFOX, Justice

This is an accelerated interlocutory appeal filed by Appellant City of El Paso (the City), from the trial court's denial of the City's plea to the jurisdiction. Appellee Holger Viel filed suit against the City due to injuries he sustained when an overhead rolling service door collapsed on him while he was working for an air cargo business that leased a portion of a cargo warehouse owned by the City. The City argues that it engaged in a governmental function in leasing the cargo warehouse and that it retained immunity from suit and liability for all claims Viel filed against it. For the reasons explained below, we reverse the trial court's order in part and dismiss Viel's claims for negligent use of tangible personal property, for general negligence, for negligent undertaking, and for punitive damages, all for lack of subject matter jurisdiction. We affirm the trial court's refusal to dismiss the premises defect claim and remand that claim for further proceedings in accordance with this opinion.

I. FACTUAL BACKGROUND

The City and Servisair USA, Inc. (Servisair) signed a lease agreement on January 22, 2013, whereby the City leased a portion of an air cargo warehouse, known as the Cargo 2 building, on property owned by the City at the El Paso International Airport (the Airport). Servisair operated a cargo business at the cargo warehouse pursuant to contracts with several airlines. Viel worked for Servisair as a "senior cargo agent." Among other duties, Viel inspected cargo shipments in transit to ensure shipments complied with federal aviation standards and were safe for air transportation.

On June 5, 2013, Viel was working at the cargo warehouse when a semi-trailer truck arrived with an outbound international air freight shipment. The truck backed up to the rolling overhead door of one of the building's loading docks. The truck's cargo door had a heavy-duty seal or lock that required the use of bolt cutters to open. After the truck parked in a loading bay, Viel opened the electronically-operated, roll-up overhead door of the building and, while standing underneath the overhead door, he attempted to cut the lock on the back of the truck. While he was using bolt cutters on the lock, the overhead door attached to the building suddenly came crashing down on Viel, hitting his lower back, knocking him forward, and causing him to strike his head against the parked truck. Viel suffered extensive injuries.

A. Viel's Lawsuit

Nearly five months after his injury, in October of 2013, Viel sent a formal letter informing the City of his claim for injuries he sustained from the incident involving the overhead door on the City's Airport property. He later filed suit against the City and several other defendants. As against the City, Viel asserted claims of general negligence and premises liability. As against all defendants including the City, Viel sought compensatory and punitive damages.

B. The City's Plea and Motion to Dismiss

The City filed a motion to dismiss all claims filed against it for lack of subject matter jurisdiction based on governmental immunity alleging that Viel failed to provide timely notice of his claim as required by the Texas Tort Claims Act (TTCA). By agreement, the parties delayed setting a hearing and engaged in discovery on the jurisdictional issues raised in the motion to dismiss. After a year, the City filed a combined supplemental motion to dismiss for lack of jurisdiction and motion for summary judgment with evidence attached in support of its arguments. The City argued the evidence established, as a matter of law, that the trial court lacked subject matter jurisdiction over Viel's claims because governmental immunity had not been waived and it was entitled to dismissal of all claims. Alternatively, the City further argued it was not subject to liability because no genuine issue of material fact existed as to essential elements of Viel's claims. Specifically, the City argued that Viel provided no evidence the City was in control of the overhead door at the cargo warehouse or that it had actual knowledge of the dangerous condition of the overhead door prior to the incident. Thus, the City requested dismissal with prejudice of all Viel's claims filed against it.

Viel filed a supplemental petition and a response to the City's motions. Viel asserted that the City engaged in a proprietary function rather than a governmental function in leasing the cargo warehouse where he sustained his injury and, thus, the City was not immune from suit and could be held liable to the same extent as a private entity. Moreover, Viel argued the jurisdictional evidence raised factual issues regarding his claims brought against the City.

In reply, the City filed a response with additional evidence attached. Following a hearing, the trial court denied the City's motions. Thereafter, the City timely appealed.¹

II. DISCUSSION

On appeal, the City brings seven issues in arguing that the trial court erred in denying its combined motions to dismiss based on governmental immunity from suit and liability. Specifically, the City contends that: because it engaged in a governmental function, all of Viel's claims must comply with the requirements of the TTCA; that Viel did not timely comply with mandatory pre-suit notice requirements of the TTCA; that Viel failed to establish either an actionable premises defect claim or a tangible personal property claim under the TTCA; that all claims filed outside the TTCA were barred by immunity; and that exemplary damages were not permitted under the TTCA.

A. Plea to the Jurisdiction

As a political subdivision of the State of Texas, the City is generally protected by governmental immunity from lawsuits for money damages unless immunity has been clearly and unambiguously waived by statute. City of El Paso v. Collins , 483 S.W.3d 742, 749 (Tex.App.—El Paso 2016, no pet.) ; see also TEX.GOV'T CODE ANN. § 311.034 (West 2013) (a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language). Governmental immunity from suit defeats a trial court's subject matter jurisdiction and thus it is properly asserted in a plea to the jurisdiction. Gay v. City of Wichita Falls, 457 S.W.3d 499, 504 (Tex.App.—El Paso 2014, no pet.) (citing Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004) ); see also City of El Paso v. Waterblasting Techs., Inc., 491 S.W.3d 890, 894 (Tex.App.—El Paso 2016, no pet.) (a plea to the jurisdiction based on governmental immunity challenges a trial court's subject matter jurisdiction).

While the City did not label its motions as a "plea to the jurisdiction," the City's combined motions function as a plea and we will treat them as such for purposes of this appeal.² The function of a plea to the jurisdiction is "to defeat a cause of action without regard to whether the claims asserted have merit." Waterblasting Techs . , 491 S.W.3d at 894 (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000) ). In a plea to the jurisdiction, a defendant may challenge the sufficiency of the plaintiff's pleadings to establish jurisdiction or, alternatively, the existence of "jurisdictional facts" in support of subject matter jurisdiction. Id. at 895 (citing Miranda, 133 S.W.3d at 226 ); see also Collins, 483 S.W.3d at 748–49. The question of whether a plaintiff has alleged sufficient facts to affirmatively demonstrate a trial court's subject matter jurisdiction, as well as whether the jurisdictional facts establish a trial court's jurisdiction (or lack thereof), are both questions of law reviewed de novo. Texas Dep't of Aging & Disability Services v. Loya , 491 S.W.3d 920, 923 (Tex.App.—El Paso 2016, no pet.) (citing Miranda, 133 S.W.3d at 226 ); see also Tex. Natural Res. Conservation Comm'n v. IT-Davy , 74 S.W.3d 849, 855 (Tex. 2002).

A plaintiff bears the burden of alleging sufficient facts and to come forward with jurisdictional evidence to demonstrate that the trial court has subject matter jurisdiction over its claims. Waterblasting Techs . , 491 S.W.3d at 895 ; see also Tex. Ass'n Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). In determining whether a plaintiff has satisfied this burden, "we review the allegations in the pleadings—accepting them as true and construing them in the plaintiff's favor—and any evidence relevant to the inquiry." Loya, 491 S.W.3d at 923 (citing Miranda, 133 S.W.3d at 226-27 ; Esparza v. U niversity of Texas at El Paso , 471 S.W.3d 903, 908 (Tex.App.—El Paso 2015) ; Mayfield v. Tarrant Regional Water Dist., 467 S.W.3d 706, 711 (Tex.App.—El Paso 2015, no pet.) ). As a non-movant, the plaintiff's burden is to produce evidence raising a genuine issue of material fact on the elements specified in defendant's plea. TEX.R.CIV.P. 166a(i) ; Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006). If the evidence raises a fact question on jurisdiction, the plea must be denied. Loya, 491 S.W.3d at 923-24 (citing Miranda , 133 S.W.3d at 227–28 ; Esparza, 471 S.W.3d at 908 ; Mayfield, 467 S.W.3d at 711 ). However, if the defendant's evidence is undisputed and demonstrates a lack of jurisdiction, and if the plaintiff's responsive evidence does not raise a fact question on the jurisdictional issue, as a matter of law, the trial court must grant the plea to the jurisdiction. Id. at 924 (citing Mayfield, ...