Kirstein v. City of S. Padre Island
| Decision Date | 05 September 2019 |
| Docket Number | NUMBER 13-18-00574-CV |
| Parties | SEAN KIRSTEIN, Appellant, v. CITY OF SOUTH PADRE ISLAND, TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 3 of Cameron County, Texas.
Before Chief Justice Contreras and Justices Longoria and Perkes
Appellant Sean Kirstein appeals from a plea to the jurisdiction granted in favor of appellee the City of South Padre Island, Texas (the City). By one issue, Kirstein argues the trial court erred when it granted the City's plea. We affirm.
On or about June 29, 2018, Kirstein was arrested for public intoxication and taken to the City's jail. While detained in a cell, Kirstein was attacked by fellow inmate Francisco Ibarra. In his petition, Kirstein argued that the City's "arresting officers and jailers knew or should have known that due to the many prior times they had arrested Mr. Kirstein for alcohol related offenses that he was unpredictable and violent 'drunk' who needed to be 'observed' and 'segregated' from other prisoners to avoid harm to Mr. Kirstein and to harm others in his close proximity" (emphasis in original). According to Kirstein, the City was negligent because: (1) it lacked adequate facilities for segregating and monitoring inmates such as Ibarra and Kirstein, (2) it failed to immediately transfer either Ibarra or Kirstein to the Cameron County Jail where either could have been "adequately segregated," (3) the City's jailers "failed to follow the written policies and procedures in place at the South Padre Island jail for segregating drunk and aggressive inmates such as" Ibarra and Kirstein, (4) the jailers were "not given any 'jail detention training' at the time they were assigned to duty as 'jailers,'" and (5) "jailers were allowed to watch television at the 'booking desk' thereby taking their attention away from assaults taking place in their jail." Kirstein suffered multiple injuries as a result of Ibarra's attack, including a broken nose, fractured eye socket, fractured wrist, lacerations, bruising, and injuries to spinal discs in his neck and back.
The City filed a plea to the jurisdiction asserting governmental immunity, and Kirstein filed a response in opposition. In his response, Kirstein argued that the City's actions violated the City's jail rules and regulations, which required: "segregation of all potentially dangerous inmates from the general jail population;" "to immediately transfereither Mr. Ibarra or Mr. Kirstein to the Cameron County Jail where either could have been adequately segregated;" that the jailers receive training "at the time they were assigned;" and that the jailers not "watch television at the 'booking desk' . . . thereby taking their attention away" from the detainees. Kirstein further argued that the City's jail lacked "adequate video and audio monitoring devices of jail cells." Kirstein stated that "his claim arose out of the antecedent negligence of the City's employees" and that "his injuries were proximately caused by negligent actions involving a 'condition or use' of tangible or real property (i.e. a jail)."
The trial court granted the City's plea. This appeal followed.
A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its purpose is to defeat a cause of action without regard to whether the claims asserted have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review the disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015). The plaintiff has the burden to allege facts that affirmatively demonstrate the trial court's jurisdiction to hear a case. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam). If the pleadings generate a fact question regarding the jurisdictional issue, a court cannot sustain the plea to the jurisdiction. Id. at 927. Ifjurisdictional facts are disputed, we consider any evidence submitted by the parties to the trial court. Blue, 34 S.W.3d at 555.
Governmental immunity defeats subject-matter jurisdiction in suits against subdivisions of the State, such as the City, unless that immunity has been clearly and unambiguously waived by the Legislature. See Sykes, 136 S.W.3d at 638. Governmental immunity encompasses both immunity from liability and immunity from suit. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims Act (TTCA) waives governmental immunity for "personal injury and death [proximately] caused by a condition or use of tangible personal or real property if the government 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); see Miranda, 133 S.W.3d at 224; Jefferson County v. Farris, 569 S.W.3d 814, 823 (Tex. App.—Houston [1st Dist.] 2018, pet. filed) (per curiam). Thus, "[t]o state a claim under the [TTCA], a plaintiff must allege an injury resulting from the 'condition or use of tangible personal or real property.'" Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). "Use" has been defined in the context of the TTCA as "to put or bring into action or service; to employ for or apply to a given purpose." Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001); Vela v. City of McAllen, 894 S.W.2d 836, 840 (Tex. App.—Corpus Christi-Edinburg 1995, no writ).
By his sole issue, Kirstein argues the trial court erred when it granted the City's plea to the jurisdiction.
First, we address Kirstein's contention that his injuries were caused by the "condition or use" of the City's jail and jail cell because the City lacked adequate facilities to segregate and monitor inmates such as Kirstein and Ibarra. For immunity to be waived under the TTCA, the property must be more than a condition that makes the injury possible. Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). In other words, usage of the property itself must have actually caused the injury. Ordonez v. El Paso County, 224 S.W.3d 240, 244 (Tex. App.—El Paso 2005, no pet.); Renteria v. Hous. Auth. of City of El Paso, 96 S.W.3d 454, 458-59 (Tex. App.—El Paso 2002, pet. denied); San Antonio State Hosp. v. Koehler, 981 S.W.2d 32, 35-36 (Tex. App.—San Antonio 1998, pet. denied). The injury must be proximately caused by the condition or use of the property and incidental involvement of the property is insufficient. See Bossley, 968 S.W.2d at 343; Ordonez, 224 S.W.3d at 244. "Although a room may be part of the context and condition that made a personal injury possible, such a setting without more, cannot satisfy the requirement of proximate cause under the [TTCA]." Ordonez, 224 S.W.3d at 244 (citing Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 720 (Tex. App.—Houston 1999, pet. denied)).
Kirstein's claim concerning "real property (i.e., a jail)" does not allege more than mere incidental involvement of the jail and the cell he was placed in, and he has not shown that the condition or use of the jail and holding cell were substantial factors in bringing about his injuries. While not placing Kirstein in the cell with Ibarra may have prevented him from being attacked, the cell or jail itself was not the proximate cause of Kirstein's injuries. See Hardin Cty. Sheriff's Dep't v. Smith, 290 S.W.3d 550, 553 (Tex. App.—Beaumont 2009, no pet.) ("Because a jail cell that confines its occupant isoperating as intended, its use to confine a person lacks the required causal nexus if the cell merely provides the condition that made a personal injury possible."); Ordonez, 224 S.W.3d at 244 (). Accordingly, we reject Kirstein's argument that the City's immunity was waived because the City lacked adequate facilities for segregating and monitoring inmates such as Kirstein and Ibarra.
Next, Kirstein argues that the City's immunity was waived because the it failed to immediately transfer him or Ibarra to the Cameron County Jail. However, this argument also fails because there was no condition or use of real or personal property by the City which allegedly caused Kirstein's injuries. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); Bossley, 968 S.W.2d at 343; Smith, 290 S.W.3d at 553; Ordonez, 224 S.W.3d at 244; Koehler, 981 S.W.2d 32, 35-36; see also Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (). Thus, we reject this argument.
Kirstein also argues that the City's immunity was waived because it was negligent in not providing jailers any "jail detention training" at the time they were assigned as jailers and because the "jailers failed to follow the guidelines they were taught in their training courses paid for by the City of South Padre Island . . . ." "We have long held that information is not tangible personal property, since it is an abstract concept that lacks corporeal, physical, or palpable qualities." Petta, 44 S.W.3d at 580. "[S]imply reducing information to writing on paper does not make the information 'tangible personalproperty.'" Id. "[W]hile instructional manuals can be seen and touched, the Legislature has not waived immunity for negligence involving the use, misuse, or non-use of...
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