City of Socorro v. Hernandez, 08–14–00009–CV

• Decision Date: 02 September 2015
• Docket Number: No. 08–14–00009–CV,08–14–00009–CV
• Citation: 508 S.W.3d 1
• Parties: The CITY OF SOCORRO, Appellant, v. Enrique HERNANDEZ and David Maldonado, Appellees.
• Court: Texas Court of Appeals

508 S.W.3d 1

The CITY OF SOCORRO, Appellant,

v.Enrique HERNANDEZ and David Maldonado, Appellees.

No. 08–14–00009–CV

Court of Appeals of Texas, El Paso.

September 2, 2015

Joseph L. Hood Jr., for Appellant.

Henry Aguirre, John P. Mobbs, for Appellee.

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

OPINION

ANN CRAWFORD McCLURE, Chief Justice

This is an appeal to the trial court's denial of a plea to the jurisdiction filed by the City of Socorro. For the reasons that follow, we affirm.

FACTUAL SUMMARY

According to the live pleadings below, on or about December 23, 2009, Enrique Hernandez and David Maldonado were involved in a collision on a darkened section of North Loop Drive in Socorro, Texas. The crash rendered Hernandez's car inoperable and it stopped dead in the street. The electrical system was damaged and the hazard lights were not working. A police unit of the City responded to a report of the wreck. When Officer Cesar Gonzalez arrived, he did not park his patrol car behind the stalled vehicle as a buffer. Instead, he parked on a side street and activated his overhead flashing lights. The officer ordered Hernandez and Maldonado to push the stalled vehicle out of the road. At that very moment, Virginia Guzman was driving in the westbound lane of North Loop in the direction of the accident. She became distracted by the overhead lights of Office Gonzalez' police car. Consequently, she rammed her vehicle into Hernandez, Maldonado and Officer Gonzalez, causing severe bodily injuries. Specifically, the following allegations were pled:

The occurrence made the basis of this suit ... and the resulting injuries and damages were proximately caused by the negligent conduct of Defendant City of Socorro in one or more of the following respects:

(a) In the use of its motor vehicle by failing to use its flashers or warning lights in a way to warn other motorists of the dangerous condition in the roadway.

(b) In the use of a motor vehicle by failing to place the motor vehicle in an area to warn oncoming traffic of the dangerous condition in the roadway.

(c) In using its motor vehicle by turning on its lights and flashers on a side street to distract motorists of the dangerous condition of the roadway.

(d) After becoming aware of the dangerous condition existing in the roadway, failing to take reasonable steps to warn oncoming traffic or make the roadway safe for passage.

(e) In using Plaintiff's vehicle by directing and ordering him to push and steer the car out of the roadway despite the inoperable condition.

The City filed a plea to the jurisdiction, which the trial court denied. This appeal follows.

ISSUES FOR REVIEW

The City brings three issues for review. Issue One queries whether the allegations establish that the Appellees' injuries were proximately caused by the City's "use" of its police car. Issue Two asks whether their injuries were proximately caused by the City's use of Hernandez's disabled vehicle. Issue Three questions whether the pleadings establish that the dangerous condition created by Hernandez's disabled vehicle was a special defect.

STANDARD OF REVIEW

A plea to the jurisdiction challenges a trial court's authority to decide the subject matter jurisdiction of a specific cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004) ; Dallas Fort Worth Int'l Airport Bd. v. Cox, 261 S.W.3d 378, 386 (Tex.App.—Dallas 2008, no pet.). Whether the trial court has subject matter jurisdiction is a question of law that we review de novo. Miranda, 133 S.W.3d at 226. In reviewing a grant or denial of a plea to the jurisdiction, we consider the plaintiffs' pleadings, construed in the plaintiffs' favor, and any evidence relevant to the jurisdictional issue without considering the merits of the claim beyond the extent necessary to determine jurisdiction. Miranda, 133 S.W.3d at 226 ; County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002).

The plaintiff bears the burden to plead facts affirmatively establishing the trial court's subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). If the pleadings are insufficient to establish jurisdiction but do not affirmatively demonstrate an incurable defect, the plaintiff should be afforded an opportunity to amend. State v. Holland, 221 S.W.3d 639, 643 (Tex.2007) ; Miranda, 133 S.W.3d at 226–27. However, if the pleadings affirmatively negate the existence of the trial court's jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.

THE TEXAS TORT CLAIMS ACT

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Miranda, 133 S.W.3d at 224 ; Texas Department of Transportation v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The TTCA provides a limited waiver of sovereign immunity. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001 –.109 (West 2011) Sovereign immunity includes two distinct principles, immunity from liability and immunity from suit. Miranda, 133 S.W.3d at 224 ; Jones, 8 S.W.3d at 638. Immunity from liability is an affirmative defense, while immunity from suit deprives a court of subject matter jurisdiction. Miranda, 133 S.W.3d at 224. The TTCA creates a unique statutory scheme in which the two immunities are co-extensive: "Sovereign immunity to suit is waived and abolished to the extent of liability created by this chapter." Miranda, 133 S.W.3d at 224, quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a). Thus, the City is immune from suit unless the Act expressly waives immunity. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001(3)(B). Section 101.021 provides:

A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(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.

The term "use" has been defined to mean "to put or bring into action or service; to employ for or apply to a given purpose." LeLeaux v. Hamshire–Fannett Independent School District, 835 S.W.2d 49, 51 (Tex.1992). The term "operation" is defined to mean "a doing or performing of a practical work." Id. The phrase "arises from" requires a nexus between the injury negligently caused by a governmental employee and the operation or use of a motor-driven vehicle or piece of equipment. LeLeaux, 835 S.W.2d at 51. This requires more than mere involvement of the property. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex.2003). The vehicle's use or operation must have actually caused the injury. Id. The operation or use of the motor vehicle does not cause injury if it merely furnishes the condition that makes the injury possible. Id.

DID THE OFFICER "USE" HIS PATROL CAR?

This issue actually consists of two components. First, Appellees have alleged that the officer failed to park his patrol car behind Hernandez's disabled vehicle and failed to use the vehicle's flashers to warn oncoming motorists of the danger posed by Hernandez's vehicle. We agree with the City that this is tantamount to non-use. See Jackson v. City of Corpus Christi, 484 S.W.2d 806, 809–810 (Tex.Civ.App.—Corpus Christi 1972, writ ref'd n.r.e.). There, the plaintiff sued the City of Corpus Christi alleging that two police officers were negligent in failing to properly direct traffic around a car stalled in the middle of the street. The court held that the plaintiff's pleading did not allege a "use" of a motor vehicle. Id. at 809. Because the failure to remove the stalled vehicle or to use the police car to direct traffic around the stalled vehicle are not a "use" of a motor-driven vehicle as that term is meant in the TTCA, we conclude that the "failure to ..." claims do not fall within this waiver of governmental immunity.

The second component of Issue One is more complicated. Appellees alleged that the officer negligently used his patrol car by pulling off of North Loop and onto a side road where he activated his flashing lights. This action, they assert, distracted drivers on the darkened North Loop, causing them to believe that a traffic hazard existed on a side street rather than directly in front of them. The City counters that this is merely an allegation that Officer Gonzalez was guilty of poor judgment or human error in deciding where to park. In support of this argument, it first directs us to City of Houston v. Rushing, 7 S.W.3d 909 (Tex.App.—Houston [1st Dist.] 1999, pet. denied) (en banc). There, the plaintiff alleged that a truck owned and operated by defendant Guevara was stopped perpendicular to all three lanes of traffic on Memorial Drive and obscuring the left two lanes of traffic. Guevara's truck was purportedly hit by another vehicle which failed to stop. A City of Houston police officer, guarding the Houston Police Memorial, heard the accident and went over to the scene. Subsequently, another officer arrived on the scene. According to the pleadings, the police failed to secure the scene, failed to use available warning devices to alert others, failed to move Guevara's car and failed to alert oncoming vehicles of the hazard. Along came a motorcycle driver who had no alternative but to swerve to avoid Guevara's parked vehicle. In doing so, he lost control of the motorcycle and was killed. Plaintiff Rushing, his passenger, suffered severe, debilitating, permanent injuries.

The appellate court first concluded...