Carmela Bustillos v. City of Midland

Opinion filed May 8, 2008 The Court on this day, May 15, 2008, has withdrawn this opinion and judgment dated May 8, 2008, and substituted the opinion and judgment dated May 15, 2008. Opinion filed May 8, 2008 In The Eleventh Court of Appeals ____________ No. 11-07-00038-CV __________ CARMELA BUSTILLOS, Appellant V. CITY OF MIDLAND, Appellee On Appeal from the 238th District Court Midland County, Texas Trial Court Cause No. CV45,055 M E M O R A N D U M   O P I N I O N Appellant, Carmela Bustillos, filed suit against the City of Midland for injuries she sustained when she stepped into an uncovered water meter box. She alleged that this condition of the property constituted a special defect under the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. '' 101.001-.109 (Vernon 2005 & Supp. 2007). The City filed a plea to the jurisdiction that contested the status of the open water meter box as a special defect. The trial court granted the City=s plea to the jurisdiction and dismissed appellant=s lawsuit. We affirm. Background Facts Appellant worked as a cashier at a Family Dollar in Odessa. One evening after the close of business, she exited a side door of the store for the purpose of carrying trash out to the store=s dumpsters that were located adjacent to an alley running behind the store. She stepped into the hole that is the subject of this appeal on her second trip to the dumpsters. Appellant testified in her deposition that the hole was located next to one of the dumpsters in a grassy area. In its plea to the jurisdiction, the City challenged appellant=s contention that the uncovered water meter box constituted a special defect. The City cited Bishop v. City of Big Spring, 915 S.W.2d 566 (Tex. App.CEastland 1995, no writ), and Martinez v. City of Lubbock, 993 S.W.2d 882 (Tex. App.CAmarillo 1999, pet. denied), in support of its contention. The City additionally attached excerpts of appellant=s deposition wherein she testified that the hole was not located in the alley. Specifically, appellant testified as follows: Q. You would agree with me that in order -- that somebody walking in the alleyway behind the store would not step into that hole, correct? A. Correct. Q. You would have to leave the alleyway to step into that hole? A. Yes. The City also attached the affidavits of two of its employees that stated that the water meter box was not located in the alley and that ordinary users of the alley would not encounter it. In her response to the City=s plea to the jurisdiction, appellant argued that the cases cited by the City are distinguishable because there were no obstructions that separated the alley from the area where the water meter box was located. Standard of Review Sovereign immunity from suit defeats a trial court=s subject-matter jurisdiction unless the state expressly consents to suit. Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts. See Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003). Governmental immunity from suit defeats a trial court=s subject-matter jurisdiction. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225‑26 (Tex. 2004). Therefore, governmental immunity is properly asserted in a plea to the jurisdiction. Id. A plea to the jurisdiction is a dilatory plea used 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 trial court=s ruling on a plea to the jurisdiction de novo. See Miranda, 133 S.W.3d at 226. The plaintiff has the burden of alleging facts to affirmatively demonstrate that the district court has jurisdiction. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider evidence necessary to resolve the jurisdictional issues, just as the district court is required to do. See id. at 227. When the jurisdictional challenge implicates the merits of the plaintiff=s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Id. If the evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the district court rules on the plea to the jurisdiction as a matter of law. Id. at 228. Analysis Appellant asserts in a single point of error that the trial court erred in granting the City=s plea to the jurisdiction on the basis that the open water meter box did not constitute a special defect. The Tort Claims Act provides a limited waiver of sovereign or governmental immunity allowing suits to be brought against governmental units only in certain, narrowly defined circumstances. Tex. Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Appellant pleaded the following jurisdictional facts in her petition: Further, and in the alternative, Plaintiff pleads that the condition upon the premises in question constituted a special defect as defined in the Texas Tort Claims Act. The manhole cover was under the control of the City of Midland. The condition posed an unreasonable risk of injury to Plaintiff. The [D]efendant knew or should have known of such open manhole cover, or taken steps to warn Plaintiff of said condition, or taken steps to alleviate said condition. This breach on the part of Defendant, City of Midland, was the proximate cause of Plaintiff=s injuries. By pleading a special defect, appellant ostensibly contends that her injuries were caused by a condition of real property. A governmental unit may be liable for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. Section 101.021. A condition of real property that gives rise to an injury can be classified as either a premises defect or a special defect. Section 101.022. The governmental unit=s standard of care depends on whether the condition is classified as a premises defect or a special defect. Id.; State Dep=t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). If a premises defect existed, the City only owed appellant the same duty that a private landowner owes a licensee. See Payne, 838 S.W.2d at 237 (citing Section 101.022(a)). If, instead, the condition was a special defect, the City owed appellant the duty that a private landowner owes an invitee. See id. (citing Section 101.022(b)). The primary difference is that the City must repair or warn of premises defects only if it has knowledge of the dangerous condition. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997). However, a duty to repair or warn of a special defect is imposed if the City knew or should have known of the dangerous condition. Id. The determination of whether a condition is a special defect is a question of law for the court to decide. Id. Special defects include Adefects such as excavations or obstructions on highways, roads, or streets.@ Section 101.022(b). Generally, special defects satisfying the statute Apresent an unexpected and unusual danger to ordinary users of roadways.@ Payne, 838 S.W.2d at 238. Accordingly, the central question in this appeal is whether the open water meter box presented an unexpected and unusual danger to ordinary users of the alley located behind appellant=s place of employment. We conclude that it did not. We begin our analysis by noting that appellant was not an ordinary user of the alley at the time the incident occurred. The supreme court made the same observation of the claimant=s status in Payne, 838 S.W.2d at 239. An ordinary user of the alley would be a person traveling in the alley or in a path parallel with the alley. Id. As noted previously, the open water meter box was located adjacent to dumpters that lined the side of the alley. An ordinary user of the alley would not encounter the hole because the dumpsters located on the side of the alley precluded users from traveling in a path parallel to the alley. Accordingly, we agree with the trial court=s determination that the open water meter box did not constitute a special defect. The trial court=s determination that the hole did not constitute a special defect is fatal to appellant=s claim against the City. She has not alleged a premises defect because she did not allege that the City=s conduct was willful, wanton, or grossly negligent or that the City had actual knowledge of the condition while she did not. See City of Houston v. Harris, 192 S.W.3d 167, 175 (Tex. App.CHouston [14th Dist.] 2006, no pet.). Thus, the City=s knowledge of the open water meter box is irrelevant in this case. Appellant=s sole point of error is overruled. This Court=s Ruling The judgment of the trial court is affirmed. TERRY McCALL JUSTICE May 8, 2008 Panel consists of: Wright, C.J., McCall, J., and Hill, J.[1] [1]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.