Todaro v. City of Houston

• Decision Date: 20 April 2004
• Docket Number: No. 14-03-00627-CV.,14-03-00627-CV.
• Parties: Anthonette TODARO, Individually and on Behalf of the Estate of Blake Edward Todaro, Appellant, v. The CITY OF HOUSTON, Appellee.
• Court: Texas Court of Appeals

135 S.W.3d 287

Anthonette TODARO, Individually and on Behalf of the Estate of Blake Edward Todaro, Appellant, v. The CITY OF HOUSTON, Appellee.

No. 14-03-00627-CV.

Court of Appeals of Texas, Houston (14th Dist.).

April 20, 2004.

Mark E. Dykes and John W. Havins, Houston, TX, for appellants.

Andrea Chan, Houston, TX, for appellees.

Panel consists of Justices YATES, ANDERSON, and HUDSON.

OPINION

JOHN S. ANDERSON, Justice.

In this wrongful death action, appellant Anthonette Todaro, individually and on behalf of the estate of her son, Blake Edward Todaro, appeals from the trial court's order (1) granting appellee The City of Houston's plea to the jurisdiction and (2) dismissing Todaro's claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Blake Todaro died as a result of injuries sustained as he was riding his bicycle on an asphalt hiking and biking trail maintained by the City. According to the allegations in the petition, Blake encountered a steep part of the trail, which caused his bicycle to gather significant speed as it descended. When Blake reached the bottom of the steep portion, the front wheel of his bicycle struck a hole, causing Blake to fall, hit the asphalt, and sustain fatal injuries. There were no signs warning of the hole, which apparently served to gather water, which was then drained by a pipe running under the asphalt path. No allegations are made that the condition of real property effecting the injury was constructed before 1970.

Todaro sued the City. As part of the background facts, she alleged, "The defective condition of the path which caused Blake Todaro to fall to his death, was subject to the control of [the City] and [the City] knew or should of [sic] known of the dangerous condition and that such dangerous condition would not be appreciated by young children." She also set forth the following allegations in a separate section, captioned "Attractive Nuisance":

9. The portion of the City bike path upon which Blake Todaro was injured was one that the City knew or should have known would be frequented and played upon by small children. Moreover, the dangerous condition in and about the bike path was one of which the City know [sic] or should have known involved an unreasonable risk of death or serious bodily harm to Blake Todaro and children similarly situated.

10. Blake Todaro, because of his tender years, did not realize the risk involved in riding his bicycle down the hill. Plaintiff would further show that the utility, if any, to the City in eliminating the danger was slight as compared to the risk ... of injuries such as occurred to Blake Todaro as a proximate result thereof.

Todaro prayed for actual damages in an amount not to exceed $250,000.00, pre-and post-judgment interest, costs, and exemplary damages.

The City answered, asserting multiple defenses, including governmental and recreational use immunity. The City also filed a plea to the jurisdiction, in part arguing Todaro's claims were barred because (1) the acts of which Todaro complained were discretionary acts of which there is no waiver of immunity as a matter of law, (2) the doctrine of attractive nuisance was inapplicable because the case did not involve trespassing children or a device or machinery and the Texas Tort Claims Act ("Act" or "Tort Claims Act") precludes application of the doctrine,¹ and (3) Todaro failed to establish waiver of the City's immunity within the confines of the recreational use immunity statute.² Todaro responded, arguing the Tort Claims Act and the recreational use statute did not apply to attractive nuisance claims, a common law sovereign immunity analysis applied, and her attractive nuisance claims were not barred by common law sovereign immunity. The trial court granted the City's plea to the jurisdiction and dismissed Todaro's claims.

DISCUSSION

Introduction and Standard of Review

Todaro presents the following three issues for review, all of which are directed at the trial court's order granting the City's plea to the jurisdiction:

1. If the Texas Tort Claims Act does not apply to a claim based on attractive nuisance, is a common law governmental immunity analysis required or is a Plaintiff completely barred from bringing suit against a municipality for claims excluded from the Tort Claims Act?

2. If the Recreational Use Statute does not apply to claims based on attractive nuisance, does a Plaintiff nonetheless have to plead claims based on willful wanton acts or gross negligence to defeat a Plea to the Jurisdiction?

3. Does the attractive nuisance doctrine apply only to a device or machinery attractive to trespassing children?

A plea to the jurisdiction is a challenge to the trial court's authority to adjudicate the subject matter of the cause of action. City of Houston v. Lazell-Mosier, 5 S.W.3d 887, 889 (Tex.App.-Houston [14th Dist.] 1999, no pet.). It is a dilatory plea, the purpose of which 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). The claims may form the context in which a dilatory plea is raised, but a court should decide the plea without delving into the merits of the case. Id. The purpose of a dilatory plea is not to force the plaintiff to preview its case on the merits but to establish a reason why the merits of the plaintiff's claims should never be reached. Id. In deciding whether to grant a plea to the jurisdiction, the trial court normally looks only to the allegations in the petition. See id. When reviewing a trial court's order granting a plea to the jurisdiction, we construe the pleadings in favor of the plaintiff and look to the pleader's intent. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Our review of the trial court's ruling on a plea to the jurisdiction is de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

Governmental Immunity and Statutory Waiver thereof

The City based its plea to the jurisdiction on governmental immunity. A unit of State government is immune from suit and liability unless the State consents. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex.2003). Immunity from suit affects a court's jurisdiction and prohibits suits against a governmental unit unless the State expressly consents to the suit. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex.2003). For the Legislature to waive governmental immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature's waiver of immunity. See id. When determining whether the Legislature has clearly and unambiguously waived immunity from suit, we generally resolve any ambiguity in favor of retaining immunity. Id. at 697.

The Tort Claims Act waives a governmental unit's immunity from suit "to the extent of liability created" by the Act. TEX. CIV. PRAC. & REM.CODE ANN. § 101.025(a) (Vernon 1997); Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex.2002) (per curiam). The City is a "governmental unit" for purposes of the Tort Claims Act. TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(B) (Vernon Supp.2004). As explained in Ramirez:

The Act waives the State's immunity for, among other things, injury or death "caused by a condition or use of tangible personal or real property...." TEX. CIV PRAC. & REM.CODE § 101.021(2). If the dangerous condition is a "premise defect," the Act limits the State's duty to "only the duty that a private person owes to a licensee on private property." TEX. CIV. PRAC. & REM.CODE § 101.022(a). Whether a condition is a premise defect is a legal question. State v. Burris, 877 S.W.2d 298, 299 (Tex.1994).

74 S.W.3d at 866.

Under the Act, municipalities are liable for damages arising from a set of nonexclusive, specifically enumerated, governmental functions, including parks and zoos. See Act of June 3, 1987, 70th Leg., 1st C.S., ch. 2, § 3.02, sec. 101.0215(a), 1987 Tex. Gen. Laws 37, 47-48 (amended 1999, 2001) (current version at TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(a) (Vernon Supp.2004)). The Act, however, does not apply to the liability for damages arising from a municipality's proprietary functions, which do not include the specifically enumerated governmental functions. See TEX. CIV. PRAC. & REM.CODE ANN. § 101.0215(b), (c) (Vernon Supp.2004). The Act also does not apply to certain types of claims, for example, claims based on a governmental unit's nonperformance of a discretionary act, claims based on a theory of attractive nuisance, or torts committed before 1970. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.056, .059, .061 (Vernon 1997).

Finally, the Tort Claims Act provides that limitation of a governmental unit's liability under the recreational use statute controls over any waiver of immunity in the Tort Claims Act: "To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls." TEX. CIV. PRAC. & REM.CODE ANN. § 101.058 (Vernon 1997). Chapter 75 contains a complementary provision: "To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls." TEX. CIV. PRAC. & REM.CODE ANN. § 75.003(g) (Vernon Supp.2004). Section 75.003 further provides the chapter does not affect the doctrine of attractive nuisance, but "the doctrine may not be the basis for liability of an owner, lessee, or occupant of agricultural land for any injury to a trespasser over the age of 16 years." Id. § 75.003(b). Chapter 75 also "does not relieve any owner, lessee, or occupant of real property of any liability that would otherwise exist for deliberate, wilful, or malicious injury to a person or to property." Id. § 75.003(a).

Analysis

TODARO'S ARGUMENTS. With the preceding framework in mind, we turn now to the arguments...