Tirado v. City of El Paso

• Decision Date: 11 January 2012
• Docket Number: No. 08–10–00334–CV.,08–10–00334–CV.
• Citation: 361 S.W.3d 191
• Parties: America TIRADO, Appellant, v. The CITY OF EL PASO, Appellee.
• Court: Texas Court of Appeals

361 S.W.3d 191

America TIRADO, Appellant,

v.The CITY OF EL PASO, Appellee.

No. 08–10–00334–CV.

Court of Appeals of Texas, El Paso.

Jan. 11, 2012.

Robert C. McCabe, Oldenettel & McCabe, Houston, TX, for Appellant.

Michael G. McLean, Gordon, Mott & Davis, P.C., Karla M. Nieman, Assistant City Attorney, Ben H. Langford, Charles J. Ruhmann, El Paso, TX, for Appellee.

Before McCLURE, J., RIVERA, J., and DEHART, Judge, sitting by assignment.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

This is an accelerated interlocutory appeal from a trial court order granting the City of El Paso's plea to the jurisdiction. The suit arises out of a June 2008 car accident between Michael Joseph Lynch and Hilda Muniz Morales. The accident occurred when Muniz failed to observe a stop sign allegedly obscured by palm tree fronds. For the reasons that follow, we reverse and remand.

FACTUAL SUMMARY

The car accident between Lynch and Muniz occurred at the intersection of North Campbell Street and Cincinnati Avenue. Campbell runs north and south while Cincinnati runs east and west. Lynch was driving on Cincinnati while Muniz was traveling south in the 2700 block of Campbell. The City had erected a stop sign at the northwest corner of the intersection, controlling southbound traffic on Campbell, but Muniz did not see it and failed to yield the right-of-way. According to the pleadings, the view of the stop sign was obscured by the fronds of a palm tree.

Appellant, America Tirado, lived at the northwest corner residence. The palm trees were located on the parkway between the sidewalk and the street curb, running along the side of Tirado's home.

Lynch filed suit against Muniz and Tirado alleging negligence causes of action against each defendant. As to Muniz, he complained: (1) she failed keep a lookout “as a person of ordinary prudence would have kept under the same or similar circumstances;” (2) she failed to yield the right-of-way; (3) she ran into Lynch's car; and (4) she failed to stop at the stop sign. With respect to Tirado, the petition alleged she was negligent in: (1) allowing her palm tree to obscure a stop sign; (2) covering up a stop sign; and (3) failing to keep her landscape from interfering with traffic signals. Muniz filed a cross-claim against Tirado alleging that she was negligent in allowing a palm tree to obscure the stop sign, which was the proximate cause of the collision between Lynch and Muniz.

Once it became apparent that Muniz intended to argue that she failed to yield the right-of-way because she could not see the stop sign due to the palm trees, Lynch amended his petition to include the City of El Paso, complaining that the City: (1) created an unsafe condition; (2) failed to warn plaintiff of the dangers; (3) failed to adequately correct the obstruction of palm fronds at the intersection of Cincinnati and Campbell; and (4) failed to cut the palm tree before the wreck.

In response, the City filed a general denial, affirmative defenses, special exceptions, and a cross-claim against Tirado, alleging that as owner/occupant of the property located at the corner of Cincinnati and Campbell, she was in violation of El Paso Municipal Code Sections 12.068.030(A) and (E):

It shall be the duty of every owner or occupant of any corner lot in the City to keep any and all trees trimmed and pruned of limbs, branches and foliage to a minimum clearance of ten feet above the street level at the nearest curb line in that area of a triangle formed by the intersecting property lines and a diagonal line joining the property lines at points twenty feet from their intersection on such corner lot.... Notwithstanding the provisions of any other section in this chapter it is unlawful for any person to place, plant or maintain any plant, tree, or other object in such a manner as to obstruct from view any traffic-control device.

Muniz then amended her cross-claim against Tirado to include the City of El Paso.

The City filed a plea to the jurisdiction, contending that all allegations were barred by governmental immunity. It attached the deposition testimony of Tirado; a series of photographs taken the day of the incident; a service request form generated by the City showing a “No Parking Anytime” sign was damaged by the accident between Lynch and Muniz; an incident report; a letter from Lynch to the Mayor and City Council notifying them that he had been injured in a car accident at the intersection of Campbell and Cincinnati; and excerpts of several City ordinances from the El Paso Municipal Code.

Tirado filed a response to the City's plea and a cross-claim against the City for contribution alleging that the palm trees and the stop sign are located on property owned and controlled by the City. She alleged that the City knew or should have known of the obstruction and that under Section 101.060(a)(2) of the Texas Tort Claims Act, the City waived its immunity. The trial court granted the plea and this appeal follows.

PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea by which a party challenges the court's authority to determine the subject matter of a cause of action. Bland Independent School Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000); see Texas Department of Transp. v. Jones, 8 S.W.3d 636, 637–38 (Tex.1999). A governmental unit's sovereign immunity deprives a trial court of subject matter jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex.2004) Therefore, a governmental unit, such as The City of El Paso, properly raises the issue by a plea to the jurisdiction. Id.

In asserting the plea, the plaintiff bears the burden to allege facts affirmatively proving that the trial court has subject matter jurisdiction. Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). To sue a governmental unit, the pleadings must allege consent to suit either by reference to statute or express legislative permission. Jones, 8 S.W.3d at 638–39; City of El Paso v. Chacon, 148 S.W.3d 417, 421 (Tex.App.-El Paso 2004, pet. denied). To prevail on a plea to the jurisdiction, the defendant must show an incurable jurisdictional defect on the face of the pleadings. City of Austin v. Rangel, 184 S.W.3d 377, 381 (Tex.App.-Austin 2006, no pet.), citing MAG–T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex.App.-Austin 2005, pet. denied).

Standard of Review

The existence of subject matter jurisdiction is a legal question which we review de novo. Miranda, 133 S.W.3d at 226–27; State Dept. of Highways and Public Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2002). In conducting our review, we do not look at the merits of the case but construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept the pleadings' factual allegations as true. Texas Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.2002); Texas Assn. of Business, 852 S.W.2d at 446; Arnold v. University of Texas Southwestern Medical Center at Dallas, 279 S.W.3d 464, 467 (Tex.App.-Dallas 2009, no pet.); City of Austin v. Lamas, 160 S.W.3d 97, 100 (Tex.App.-Austin 2004, no pet.).

When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues raised, just as the district court is required to do. Miranda, 133 S.W.3d at 227, citing Bland Ind. Sch. Dist., 34 S.W.3d at 555. Where a plea to the jurisdiction includes evidence, and the jurisdictional challenge implicates the merits of the plaintiff's cause of action, the trial court reviews the relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. If the evidence shows a fact question regarding the jurisdictional issue, a plea to the jurisdiction may not be granted and the fact finder should resolve the fact issue. Id. at 228. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction may be ruled on as a matter of law. Id.

Issues for Review

On appeal, Tirado complains that the trial court erred because (1) sufficient facts were pled demonstrating jurisdiction; (2) the City owns and controls the stop sign, has exerted control over the maintenance of the palm tree, and therefore has a duty to maintain the stop sign clear from obstruction; (3) a fact question exists with respect to whether the City knew or should have known that the stop sign was obstructed; and (4) a fact question exists with respect to whether the City corrected the defect.

Sufficiency of the Pleadings

Generally, the State, its agencies, and subdivisions enjoy sovereign immunity from tort liability. See The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 115–16 (Tex.2010); Chacon, 148 S.W.3d at 421. Here, it is undisputed that a municipality such as the City of El Paso is a “governmental unit” under the Texas Tort Claims Act (“the Act”) and therefore immune from liability for governmental functions unless that immunity is specifically waived. Miranda, 133 S.W.3d at 225; Chacon, 148 S.W.3d at 421. When a claim is barred by sovereign immunity, the trial court lacks subject-matter jurisdiction and dismissal with prejudice is proper. Miranda, 133 S.W.3d at 224, 225. The Texas Tort Claims Act provides a limited waiver of sovereign or governmental immunity in certain situations, to the extent of liability for:

[P]ersonal 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)(West 2011). Section 101.060(a)(2) limits the extent of governmental liability in Section 101.021 above by providing that the chapter allowing for governmental liability does not apply to a...