Joe Thurman, Individually, and as Sole Heir of the Estate of Amanda Rene Thurman v. Harris County, Texas, as a Local Governmental Unit of the State of Texas

In The Court of Appeals For The First District of Texas NO. 01-07-00235-CV JOE THURMAN, INDIVIDUALLY, AND AS SOLE HEIR OF THE ESTATE OF AMANDA RENE THURMAN, Appellant V. HARRIS COUNTY, TEXAS, Appellee On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. C-200551860 MEMORANDUM OPINION Joe Thurman, individually and as sole heir of the estate of Amanda Rene Thurman, sued Harris County, Texas (“the County”) after his daughter drowned when the car in which she was riding drove off the Lynchburg Ferry. The trial court granted the County’s plea to the jurisdiction and dismissed Thurman’s case. In three issues, Thurman contends that the trial court erred in dismissing the case because (1) it has concurrent jurisdiction over this case under federal maritime law, (2) appellant should have been given the opportunity to formally invoke the federal “saving to suitors” clause, and (3) it improperly rendered fact findings pertaining to whether the County was immune from Thurman’s suit under the Tort Claims Act (“the Act”) . We affirm the order in part, reverse it in part, and remand for further proceedings. Background At approximately 5:00 a.m. on September 19, 2004, Amanda Thurman was a passenger in a car driven by David Stokely. According to Thurman’s petition, Stokely’s car drove onto the Lynchburg Ferry where there was no watchman, deckhand, able seaman, or other person present to direct Stokely in parking his vehicle on the ferry. Due to the lack of an attendant, poor lighting and the absence of any substantial, visible barrier at the far end of the ferry, Stokely’s car drove or rolled off the ferry and into the waters of the Houston Ship Channel. The only barrier at the far end of the ferry to prevent a vehicle from driving or rolling off into the water was a small wire cable, approximately 1/4 inch in diameter, with enough slack that it allowed Stokely’s car to slide under the cable and into the water. No warning or other barrier was present. Amanda Thurman was unable to escape and drowned. Thurman sued the County for damages arising from Amanda’s death. The County is identified in the petition as a local governmental unit of the State of Texas and as the owner of the Lynchburg Ferry that operates ferry boat service in the navigable waters of the State of Texas. In his pleadings, Thurman concedes that the County is generally immune from suit under the Texas wrongful death statute. Nevertheless, he argues that the plain language of Section 101.021(2) of the Act waives the County’s immunity in this case because he has alleged claims for personal injury and death caused by a condition or use of tangible personal or real property by the County when a private person would have been liable for these alleged acts and omissions under Texas law. Tex. Civ. Prac. & Rem. Code Ann. §101.021(2) (Vernon 2005). Thurman’s petition also references two prior occasions when motor vehicles drove or rolled off of the far end of the Lynchburg Ferry and into the water. The County filed a plea to the jurisdiction asserting that the Thurman’s allegations do not waive its immunity to this suit. The County’s plea also alleged, without evidentiary support, that Stokely was currently incarcerated “for the crime of manslaughter in connection with this incident.” After considering the County’s plea and Thurman’s response, the trial court ruled that it lacked jurisdiction because (1) a state district court has no jurisdiction to hear a maritime case when the incident occurred on a vessel in navigable waters and (2) under maritime law, an invitee or a licensee is prohibited from asserting a claim of unseaworthiness against a vessel owner. As a result, the trial court dismissed Thurman’s suit for lack of subject matter jurisdiction. This appeal followed. Standard of Review for Jurisdictional Challenges “A party may contest a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction.” Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A person may appeal an order that grants or denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code §§ 51.104(a)(8), 101.001(3)(D) (Vernon 2008); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 841 (Tex. 2007). We review a trial court’s order granting or denying a plea to the jurisdiction de novo. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004). When reviewing such an order, “we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001). Here, the parties did not submit any evidence. Therefore, we look solely to the allegations in Thurman’s pleadings. A plea to the jurisdiction challenges a trial court’s authority to determine the subject matter of the cause of action, but without defeating it on the merits. City of Houston v. Northwood Mun. Util. Dist. No. 1, 73 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). While the underlying claims may form the context in which a plea to the jurisdiction is raised, the purpose of the plea is not to preview or delve into the merits of the case, but to establish the reason why the merits of the underlying claims need not be reached. Id. In a plea to the jurisdiction, “the pleader must allege facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.” City of Houston v. Rushing, 7 S.W.3d 909, 913 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). In reviewing a jurisdictional ruling, we construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept factual allegations as true. Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding a jurisdictional issue, then the trial court should not grant the plea until the fact issue is resolved. Id. at 227-28. If the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the trial court should rule on the plea as a matter of law. Id. at 228. A trial court’s ruling on a plea to the jurisdiction presents a legal question which we review de novo. Northwood, 73 S.W.3d at 308. Questions involving the application of the principles of sovereign and governmental immunity and a party’s standing to bring an action are the proper subjects of a plea to the jurisdiction. See Brown v. Todd, 53 S.W.3d 297, 300–02 (Tex. 2001). Jurisdiction Over Maritime Claims and the “Savings to Suitors” Clause The trial court found that it did not have subject matter jurisdiction over Thurman’s claims because they arose from an occurrence on a vessel within navigable waters, and because Thurman did not invoke in his petition the “savings to suitors” clause under maritime law for a state court to have jurisdiction over maritime claims. The trial court found that the federal district courts have exclusive jurisdiction over Thurman’s claims and that maritime law regarding claims against a vessel’s owner for seaworthiness preempted and applied to bar Thurman’s state law claims. The trial court erred in reaching these conclusions. We find no support for the proposition that a plaintiff must affirmatively plead the “savings to suitors” clause before a state court has jurisdiction of a claim under maritime law, either in case law or under the Texas Rules of Civil Procedure. As federal and state courts have recognized, maritime law does not affect a state court’s subject matter jurisdiction over the action, but instead prescribes the substantive law governing the state court action. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 919–20 (Tex. 1993). Pursuant to the federal “savings to suitors” clause, state courts have concurrent jurisdiction with the federal courts over maritime actions, but are constrained by the ‘reverse-Erie’ doctrine which requires that the substantive remedies afforded by the states conform to governing maritime standards. Id. at 920 (citing 28 U.S.C. § 1333). Accordingly, the trial court erred in holding that, because Thurman failed to expressly invoke the “savings to suitors” clause in his petition, it lacked subject matter jurisdiction to hear this case. The trial court also erred in finding that maritime law rather than state law applied to Thurman’s claims, because the County waived the application of maritime law. Preemption affecting the parties’ choice of law, but not the choice of forum, may be waived if not raised in a timely manner. Id.; see also Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545–47 (Tex. 1991) (holding that, where ERISA’s preemptive effect results in change of applicable law, as opposed to denial of state court jurisdiction, preemption is affirmative defense that is waived if not pled in defendant’s answer). Preemption is an affirmative defense. City of Mont Belvieu v. Enter. Prods. Operating, L.P., 222 S.W.3d 515, 520 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Accordingly, whether maritime law preempts state law under the “savings to suitors” clause in this case is a choice of law argument, which may be waived if not raised in defendant’s answer. See id.; Gorman, 811 S.W.2d at 545–46. Here, the record indicates that the County failed to timely raise the issue of the preemption of maritime law under the “savings to suitors” clause. Accordingly, the trial court erred in concluding that maritime law regarding claims against a vessel’s owner for seaworthiness applied to Thurman’s claims. The trial court erred in holding that it did not have jurisdiction over this case on these grounds, and we sustain Thurman’s first issue. Next, we determine whether the trial court had jurisdiction under state law. Governmental Immunity Absent an express statutory waiver, governmental immunity protects political subdivisions of the State from suit. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001), overruled on other grounds by Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004). Governmental immunity inures to the benefit of a municipality insofar as the municipality engages in the exercise of governmental functions, except when that immunity has been waived. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000). Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Generally, a party suing a governmental entity must establish consent to sue by reference to either a statute or express legislative permission. Nivens v. City of League City, 245 S.W.3d 470, 474 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Mo. Pac. R.R. v. Brownsville Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970)). Although its primary ground for dismissing this suit was its application of maritime law, the trial court peripherally considered the application of the Texas Torts Claims Act and found no waiver of immunity. The parties have briefed the issues concerning the application of the Act to the allegations of this case. Accordingly, we consider the application of the Act to Thurman’s claims. Fact Findings Thurman contends that the trial court erred in making the following fact findings pertaining to Thurman’s claims under the Act: that (1) the Lynchburg Ferry’s use of 1/4" cable was a reasonable barrier to keep vehicles on the Ferry from driving or rolling into the water, and (2) Stokely, the driver, had a blood alcohol level of 0.15 and steered his vehicle off of the Ferry into the Houston Ship Channel. We agree. No discovery or other evidence was before the court to evaluate the reasonableness of the barrier in place or Stokely’s level of intoxication, if any, at the time of the incident. Accordingly, there was no evidence in the record to contradict the allegations in Thurman’s pleadings, and the trial court’s findings on these issues are unsupported by the pleadings or the evidence before it. We sustain Thurman’s third issue and now examine the issue of whether the County has waived its immunity under the Act for Thurman’s claims. Waiver of Immunity The County is a governmental entity entitled to sovereign immunity. However, under the Act, a state entity can waive its sovereign immunity under limited circumstances. The Act does not abolish sovereign immunity, and we must look to the terms of the Act to determine the scope of its waiver. Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). Specifically, the Act waives sovereign immunity for “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.” Tex. Civ. Prac. & Rem. Code § 101.021(2) (Vernon 2005). “Texas courts have long struggled to define the limits of ‘use’ and ‘condition’ which serve to waive immunity under the Texas Tort Claims Act.” Tex. State Technical College v. Beavers, 218 S.W.3d 258, 261 (Tex. App.—Texarkana 2007, no pet.). If a claim alleges a condition or use of tangible personal property, the plaintiff must allege that the property did more than merely furnish the condition that makes the injury possible—the plaintiff must allege that the property was a direct factor in causing the injuries. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). Allegations of failure to use or non-use of property are not actionable under the Act. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001) (distinguishing claims involving failure to use, or non-use of property, which do not waive sovereign immunity, from claims involving condition or use of tangible personal property, which do effect waiver); LeLeuax v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (where student injured herself by jumping into rear door of an empty bus that had been parked for some time, bus was not in “use” at the time of injury and thus immunity not waived). In addition, a contention that better or safer property, such as that with a “more effective safety feature” might have been provided is not sufficient to waive immunity because that claim is construed as one of non-use rather than “use.” Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex. 2005). Similarly, “design decisions” are discretionary and exempt from the Act’s waiver of immunity. Tex. Civ. Prac. & Rem. Code Ann. § 101.056 (Vernon 2005); see, e.g., Univ. of Texas Health Sci. Center at San Antonio v. Bruen, 92 S.W.3d 24, 26–28 (Tex. App.—San Antonio 2002, pet. denied) (where plaintiff slipped and fell on ramp that did not have handrails, university was immune from plaintiff’s claims regarding design and failure to use). Was Amanda Thurman injured by a “use” or “condition” of government property? On appeal, relying on the holdings in Lowe v. Texas Tech Univ., 540 S.W.2d. 297 (Tex. 1976), Robinson v. Cent. Tex. MHMR Ctr., 780 S.W. 2d 169 (Tex. 1989), and Kerrville State Hosp. v. Clark , 923 S.W. 2d. 582 (Tex. 1996), Thurman argues that his allegations of the lack of an integral safety component are sufficient to state a claim that Amanda was injured by a use or condition of state property under the Act. Thurman contends that, under the Act, the County can waive its immunity if it provides property—the Lynchburg Ferry—that lacks an integral safety component, and the lack of that safety component led to a plaintiff’s injury and damages. Thurman’s reliance on these cases is misplaced. As Texas courts have held, an allegation that government property lacked an integral safety component may be sufficient to waive sovereign immunity under the Act only under very narrow circumstances. See Bishop, 156 S.W. 3d at 584; Beavers, 218 S.W. 3d at 264. As Thurman correctly notes, waiver of immunity due to the lack of an integral safety component is limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an integral safety component and that the lack of this component led to the plaintiff’s injuries. Beavers, 218 S.W.3d at 264. However, to show a waiver of immunity, the plaintiff must allege that the “integral safety component” is entirely lacking rather than merely inadequate. Stated conversely, supplying safety components that are inadequate, but not entirely lacking, does not constitute a use of personal property as to waive immunity.” Id. (emphasis added; citations omitted). A review of Thurman’s pleading reveals that the main thrust of his petition relates to the alleged inadequacy of existing safety components for nighttime operation of the ferry. In his petition, Thurman alleges that “both of Harris County’s Lynchburg Ferries lacked the following integral safety components for nighttime operation: (a)Adequate lighting to prevent automobiles from driving or rolling off of the end of the vessels into the water in the dark; and (b)Safety barriers or guard rails to prevent automobiles from driving or rolling off of the end of the vessels into the water in the dark.” However, with respect to his allegation about the lighting, Thurman’s petition goes on to describe in multiple ways how Amanda’s death was caused by “inadequate” and “poor” lighting on the ferry. Likewise, with respect to his allegation about safety barriers and guard rails, Thurman appears to allege that these were needed to prevent Amanda’s death because the present barrier was inadequate —not because there was entirely no barrier present. As Thurman’s petition further alleges, “The only barrier at the far end of the ferry to prevent a vehicle from driving or rolling off into the water was a small, wire cable, approximately 1/4 inch in diameter, with enough slack that it allowed the Stokely vehicle to move under the cable into the water. . . . No other warning or barriers were present.”(emphasis added) Such pleadings do not waive the County’s statutory immunity to suit in this case. See Bishop, 156 S.W. 3d at 584; Beavers 218 S.W. 3d at 264. Nevertheless, citing State v. Tennison 509 S.W.2d 560 (Tex. 1974), and Miranda, Thurman argues that the County’s immunity should be waived because he has alleged that the County had notice of several prior similar accidents occurring on the ferry before Amanda’s death. Thurman’s reliance on these cases for his argument is also misplaced. These cases, unlike the case before us, involved allegations of premises liability and waiver of immunity under 101.022 of the Act concerning “Premises and Special Defects.” In this case, as noted above, Thurman has not brought premises liability claims against the County nor has he sought to waive immunity under this section of the Act. Finally, however, we note that Thurman’s petition alleges that the County has waived its immunity under the Act because the Ferry “is tangible property, which was defective” by not being equipped with certain additional safety devices and the County was negligent in operating the ferry at night without the use of these devices. It is an established principle that, if a plaintiff’s pleadings do not affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226–27. We note that, since the City has refused to respond to Thurman’s discovery requests on the grounds that it was immune, it is not clear from the record that Thurman cannot prove any jurisdictional facts which might waive immunity in this case. Depending on the content of the County’s discovery responses, these jurisdictional facts may state a claim under the Act, and the jurisdictional defect we have noted may be curable. County of Cameron v. Brown, 80 S.W.3d 549, 558–59 (Tex. 2002). Thurman’s petition is worded in such a way that it is an open question whether he is alleging that the cable in question was in fact a barrier, and an inadequate one at that, or whether he is actually alleging that a barrier is an integral safety component of the ferry, and that the ferry in question completely lacked such a barrier. Similarly, Thurman’s petition alleges that the ferry was the location of the accident and appears to allege that Amanda’s death was the result of the County’s use or operation of motor-driven equipment. In such circumstances, we remand for further proceedings. Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804-05 (Tex. 1989); Brown, 80 S.W.3d at 558–59. Conclusion We hold that the trial court erred in dismissing Thurman’s suit for lack of jurisdiction under maritime principles. We further hold that, to the extent that Thurman alleges that Amanda’s death resulted from the use of an inadequate barrier or inadequate lighting aboard the Lynchburg Ferry, the County is immune from this suit and the trial court did not have subject matter jurisdiction over Thurman’s claims. However, because Thurman appears to allege, in the alternative, facts about the County’s operation of motor-driven equipment and that no barrier existed (in contrast to an inadequate one), and the County did not address these allegations in its jurisdictional plea or special exceptions, we remand the cause for further proceedings. George C. Hanks, Jr. Justice Panel consists of Justices Hanks, Bland, and Wilson.