Perez v. City of Dallas

• Decision Date: 13 December 2005
• Docket Number: No. 05-05-00205-CV.,05-05-00205-CV.
• Citation: 180 S.W.3d 906
• Parties: Martin PEREZ, Appellant v. CITY OF DALLAS, Appellee.
• Court: Texas Supreme Court

180 S.W.3d 906

Martin PEREZ, Appellant v. CITY OF DALLAS, Appellee.

No. 05-05-00205-CV.

Court of Appeals of Texas, Dallas.

December 13, 2005.

COPYRIGHT MATERIAL OMITTED

Daniel P. Clark, Law Office of Daniel P. Clark, P.C., Dallas, for appellant.

Patricia Medrano, Assistant City Attorney, Dallas, for appellee.

Before Justices WHITTINGTON, FRANCIS, and LANG.

OPINION

Opinion by Justice LANG.

Martin Perez sued the City of Dallas under a theory of premises liability for injuries he sustained when he fell from the bed of his truck into an open pit at a trash transfer station owned and operated by the City. The trial court granted the City of Dallas's plea to the jurisdiction where it claimed sovereign immunity and dismissed Perez's claim against the City. In four points on appeal, Perez contends the trial court erred in granting the City's plea to the jurisdiction, asserting that the City's sovereign immunity was waived because the City's trash disposal pit was an unreasonably dangerous condition, i.e., it constituted a premises defect. We decide Perez's points against him and affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On November 9, 2002, Perez drove his truck to the Northwest (Bachman) Transfer Station to dispose of his personal trash. The Bachman Transfer Station, which is owned and operated by the City of Dallas, is an enclosed location for disposing of trash. Upon demonstrating to a City employee that he was a resident of Dallas, Perez was directed by the City employee where to park in order to deposit his trash. He backed his truck up to the edge of the concrete pit where trash is deposited, climbed into the bed of the truck, and began unloading his trash. While unloading his truck, Perez fell from the bed of his truck into the concrete pit. He fractured his wrist and suffered a comminuted fracture to his right ankle.

Perez brought this suit against the City claiming in his original and amended petitions that the cause of his injuries was a premises defect at the transfer station. He asserts that his pleadings and evidence submitted in response to the City's plea to the jurisdiction reflect a waiver of sovereign immunity by the City based on the alleged premises defect and that he has met his burden to create at least a fact question as to the trial court's jurisdiction. In particular, he asserts in his petitions that the alleged premises defect is a "drop-off" of seven to eight feet at the open trash pit, which was not protected by a guardrail, which he states Dallas Building Code section 1716 required, coupled with directions for use of the pit given to him by the City's employee, in accordance with City policy.

The City filed a plea to the jurisdiction, claiming sovereign immunity. The City challenged the existence of jurisdictional facts, contending that Perez had not pled a premises defect, or in the alternative, that the City's facility, its design, and any limitations on its use fall within the discretionary function exception to waiver of immunity pursuant to section 101.056 of the Texas Civil Practice and Remedies Code. Evidence was submitted by both parties to support their respective positions. Perez appealed after the trial court granted the City's plea.

II. STANDARD OF REVIEW

A plea to jurisdiction contests a trial court's subject matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999); Benefit Realty Corp. v. City of Carrollton, 141 S.W.3d 346, 348 (Tex.App.-Dallas 2004, pet. denied). The purpose of the plea "is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs' claims should never be reached." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court has subject matter jurisdiction is a matter of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Dallas County v. Wadley, 168 S.W.3d 373, 376 (Tex.App.-Dallas 2005, pet. denied). Accordingly, we review a challenge to the trial court's subject matter jurisdiction de novo. Thompson v. City of Dallas, 167 S.W.3d 571, 574 (Tex.App.-Dallas 2005, pet. filed) (quoting Miranda, 133 S.W.3d at 228); Benefit Realty Corp., 141 S.W.3d at 348.

In Miranda, the Texas Supreme Court identified the regimen courts are to follow in analyzing whether a plea to the jurisdiction should be granted. See Miranda, 133 S.W.3d at 226-27. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id.; Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). "However, if the plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do." Miranda, 133 S.W.3d at 227; see Bland, 34 S.W.3d at 555 (confining the evidentiary review to evidence that is relevant to the jurisdictional issue). "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Miranda, 133 S.W.3d at 227. "However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law." Id.

III. APPLICABLE LAW

A. Premises Liability and Sovereign Immunity

In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits against the State or other governmental units unless the State consents to suit. Miranda, 133 S.W.3d at 224; Wadley, 168 S.W.3d at 376. The sovereign immunity of the State also applies to the benefit of a municipality to the extent the municipality engages in the exercise of governmental functions. See City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997). The Texas Tort Claims Act provides for waiver of sovereign immunity, including immunity from lawsuit, under limited circumstances. Miranda, 133 S.W.3d at 224; see TEX. CIV. PRAC. & REM.CODE ANN. § 101.025(a) (Vernon 2005). Thus, as a political subdivision of the State, the City of Dallas is immune from suit except to the extent its immunity is waived under the Act.

The Tort Claims Act expressly waives sovereign immunity in three areas: (1) property damage and personal injury caused by the use of publicly owned automobiles (section 101.021(1)); (2) personal injury caused by a condition or use of tangible personal or real property (section 101.021(2)); and (3) claims arising out of premises defects (section 101.022). Wadley, 168 S.W.3d at 376; see Miranda, 133 S.W.3d at 225. Under the Texas Tort Claims Act, sovereign immunity is waived for personal injury and death caused by a condition or use of tangible personal or real property if the governmental unit would be liable to the claimant according to Texas law if it were a private person. TEX. CIV. PRAC. & REM.CODE ANN. § 101.021(2). Liability for premises defects is implied under section 101.021(2) because a premises defect arises from a condition existing on real property. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.); Lamar Univ. v. Doe, 971 S.W.2d 191, 195 (Tex.App.-Beaumont 1998, no pet.). If the condition of real property giving rise to the waiver of immunity is a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property. TEX. CIV. PRAC. & REM.CODE ANN. § 101.022(a). However, if the claimant pays for the use of the premises, the limitation of duty under section 101.022 does not apply and the governmental entity owes the claimant the duty owed to an invitee. See id. The duty to an invitee "requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware." State Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

The Texas Tort Claims Act creates certain exceptions to the waiver of sovereign immunity. Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on: "(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) the governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of 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. This latter provision is commonly referred to as the "discretionary function" exception. See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex.App.-Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1994).

The discretionary function exception to waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. Mitchell, 855 S.W.2d at 745; see also State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979). The "`[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions.'" Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999)). Designs for a building or other municipal premises are discretionary and therefore immunity from liability applies. Mitchell, 855 S.W.2d at 745. Additionally, decisions regarding the installation of safety features are discretionary decisions for which a governmental entity may not be sued. See, e.g., Ramirez, 74 S.W.3d at 867; State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999).

While a governmental entity...