Rosie Riston v. City of Houston

Reversed and Remanded and Memorandum Opinion filed December 2, 2004 Reversed and Remanded and Memorandum Opinion filed December 2, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-01135-CV ____________ ROSIE RISTON, Appellant V. THE CITY OF HOUSTON, Appellee __________________________________________________ On Appeal from the 113th District Court Harris County, Texas Trial Court Cause No. 02-47694 __________________________________________________ M E M O R A N D U M   O P I N I O N Appellant Rosie Riston challenges the trial court=s order granting the City of Houston=s plea to the jurisdiction on the ground that, contrary to the trial court=s ruling, she properly invoked the trial court=s subject matter jurisdiction under the Texas Tort Claims Act[1] (the AAct@). We reverse and remand. I. Factual and Procedural Background Riston, a Continental Airlines employee, alleges she was injured when she was struck by the doors of a freight elevator located in Terminal AC@ of Bush Intercontinental Airport. She brought a negligence suit against the City of Houston in which she alleged the City=s sovereign immunity was waived under the Act. In October 2002, the City filed (1) an answer generally denying Riston=s allegations and (2) special exceptions to her third amended petition. In her fourth amended petition, filed in February 2003, in paragraphs 14 through 20, Riston alleged the following: (1) the City negligently operated its motor-driven elevator; (2) the City owed a duty to Riston to exercise ordinary care in its ownership, possession, maintenance, use and operation of its elevator; (3) the City maintained the elevator; and (4) the City, acting through its agents, servants and employees, failed to use that degree of care which an elevator-maintainer, owner, or operator of ordinary prudence would have used under the same or similar circumstances by failing to: (a) maintain and inspect the elevator to prevent injuries from the operation of elevators; (b) inspect, maintain, and/or repair the elevator in a timely and prudent manner; (c) warn Riston of the dangerous operation of the elevator; and (d) train the City=s employees to properly operate the elevator. Riston further alleged that the City=s acts, errors, and omissions in (4), above, and those of its agents, servants, and employees constituted negligence and that at all relevant times, the agents, servants, and employees were acting in the course and scope of their employment with the City. Additionally, Riston pleaded that (1) her personal injury claim arose from the operation or use of a motor-driven vehicle or motor-driven equipment; (2) the employees responsible for such operation were personally liable to her according to Texas law; and (3) the City was liable to her under sections 101.021(1) and (2) of the Texas Civil Practice and Remedies Code. Riston alleged that, as she was getting on the freight elevator, the solid door, driven by a motor, came down suddenly and unexpectedly, striking her on the head and shoulders. In April 2003, the City filed its first plea to the jurisdiction, alleging (1) Riston had not and would not be able to plead facts to establish compliance with the notice[2] requirements of the Act[3]; and (2) Riston had no basis upon which to assert the City was on actual notice of her claim. The City attached to its plea (1) the ALiability Accident Notice@ from Houston Airport System; (2) the ATreatment Form@ (Continental); and (3) the AEmployer=s First Report of Injury of Illness@ (Worker=s Compensation). Riston filed her fifth amended petition in April 2003, in which she additionally alleged the City received written notice within ninety days of the alleged incident in accordance with sections 101.101(a) and (b) of the Act and, in the alternative, the City had actual notice under section 101.101(c) of the Act. In this petition, Riston also alleged, for the first time, a violation of Title 42, section 1983 of the United States Code. A few days later, Riston filed her response to the City=s plea to the jurisdiction in which she asserted that she had pleaded sufficient jurisdictional facts in paragraphs 14 through 20 of her fifth amended petition and that her pleadings must be taken as true without regard to their merits. She also asserted that she had properly pleaded notice. In August 2003, the City re-filed its plea to the jurisdiction.[4] The trial court sustained this plea on September 11, 2003, and dismissed Riston=s case for lack of subject-matter jurisdiction, without specifying the basis for the ruling. II. Plea to the Jurisdiction The burden is on the plaintiff to plead facts that affirmatively demonstrate subject-matter jurisdiction. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A trial court must grant a plea to the jurisdiction, after providing an appropriate opportunity to amend, when the pleadings do not state a claim upon which the trial court has subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). However, when a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226B27 (Tex. 2004); County of Cameron v. Brown, 80 S.W.3d 549, 558B59 (Tex. 2002).[5] Whether a pleader has alleged facts that affirmatively demonstrate a trial court=s subject matter jurisdiction is a question of law that we review de novo. Id. at 226. Notice The City=s plea to the jurisdiction asserted that the trial court was without jurisdiction solely because of Riston=s failure to comply with the Act=s notice requirements. The Texas Supreme Court recently held that a plaintiff=s failure to comply with the Act=s notice requirements does not deprive a trial court of subject-matter jurisdiction. Univ. of Tex. Southwestern Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 358B65 (Tex. 2004). Accordingly, we conclude the trial court erred to the extent it sustained the City=s plea based on Riston=s failure to satisfy the Act=s notice requirements. See id. Premises Defect Riston alleged that (1) as she was getting on the freight elevator, the solid door, driven by a motor, came down suddenly and unexpectedly, striking her on the head and shoulders; (2) as a result of the accident, she sustained physical injuries and pain and suffering; and (3) the City was liable to her pursuant to sections 101.021(1) and (2) of the Act. A claim that an injury was caused by the condition of an elevator is one based on premises defect. See University of Texas Medical Branch at Galveston v. Davidson, 882 S.W.2d 83, 84B86 (Tex. App.CHouston [14th Dist.] 1994, no writ). Thus, we look to the Act to determine if sovereign immunity is waived in a premises defect case. The Act expressly waives sovereign immunity in three areas: A>use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property.=@ Brown, 80 S.W.3d at 554; see also Tex. Civ. Prac. & Rem Code '' 101.021,[6] 101.022.[7] The Texas Supreme Court recently reiterated that the Act=s scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in section 101.022 by re‑casting the same acts as a claim relating to the negligent condition or use of tangible or real property. See Miranda, 133 S.W.3d at 233. In Miranda, the Texas Supreme Court relied on State v. Estate of Horton,[8] which noted, Aonce a claim is determined to be a premises defect, the claimant is limited to the provisions delineated by the section on premises defects and may not assert a general negligence theory.@ Estate of Horton, 4 S.W.3d at 54. Whether a condition is a premises defect is a question of law. Texas Dep=t of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex. 2002). If a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the property. Tex. Civ. Prac. & Rem Code '101.022(a). A property possessor must not injure a licensee by willful, wanton, or grossly negligent conduct and must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe. Brown, 80 S.W.3d at 554. Riston alleged that the City failed to warn her of the dangerous operation of the elevator. However, her pleadings did not allege that the City injured her willfully or wantonly, or that the City was grossly negligent. Furthermore, Riston did not allege either that the City was aware of, or that she was unaware of, any unreasonable risk of harm. To establish liability for a premises defect, a licensee must prove that she did not have actual knowledge of the condition. See id. at 558. Riston did not do so. Further, Riston did not allege that she paid for the use of the property. See Tex. Civ. Prac. & Rem Code '101.022(a). In Brown, the Texas Supreme Court held that the plaintiffs= failure to plead that they did not actually know of the dangerous condition was a pleading defect and allowed them an opportunity to amend. Id. at 559. We conclude that Riston=s pleadings do not affirmatively demonstrate a lack of subject-matter jurisdiction and that Riston should be afforded an opportunity to amend her petition to plead sufficient facts showing subject-matter jurisdiction. See Brown, 80 S.W.3d at 558B59. Accordingly, we sustain Riston=s second issue to this extent. Section 1983 In her fifth amended petition, Riston alleges the City violated 42 U.S.C. ' 1983[9] by pursuing a policy of filing pleas to the jurisdiction. In her fourth issue on appeal, Riston claims the trial court ignored her section 1983 claim. However, the trial court granted the City=s plea to the jurisdiction and dismissed all of Riston=s claims for lack of jurisdiction. Therefore, the trial court did not ignore any alleged section 1983 claim. Riston provides neither argument nor authorities to support a reversal of the trial court=s judgment in this regard. Nevertheless, construing Riston=s petition liberally, we cannot say her pleadings affirmatively negate jurisdiction. Accordingly, Riston should be afforded an opportunity on remand to amend her petition to plead sufficient facts showing subject-matter jurisdiction regarding any alleged claim under 42 U.S.C. ' 1983. See Brown, 80 S.W.3d at 558B59. III. Conclusion The trial court erred to the extent it found a lack of subject-matter jurisdiction based on the City=s notice arguments. Because we cannot say that Riston=s pleadings affirmatively negate subject-matter jurisdiction, we conclude that Riston should be afforded an opportunity on remand to amend her petition to plead sufficient facts showing subject-matter jurisdiction. Accordingly, we sustain Riston=s second issue to this extent, reverse the trial court=s judgment, and remand for further proceedings consistent with this opinion. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed December 2, 2004. Panel consists of Chief Justice Hedges and Justices Frost and Guzman. [1] See Tex. Civ. Prac. & Rem Code ' 101.001 et seq. [2] Section 101.101 of the Texas Civil Practice and Remedies Code provides: (a) A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe: (1) the damage or injury claimed; (2) the time and place of the incident; and (3) the incident. (b) A city=s charter and ordinance provisions requiring notice within a charter period permitted by law are ratified and approved. (c) The notice requirements provided or ratified and approved by Subsections (a) and (b) do not apply if the governmental unit has actual notice that death has occurred, that the claimant has received some injury, or that the claimant=s property has been damaged. Tex. Civ. Prac. & Rem Code ' 101.101 (Vernon 1997). [3] Page 3 is missing from the first plea to the jurisdiction in both the clerk=s record and the appendix to Riston=s brief; however, the City=s first and second pleas to the jurisdiction seem to be identical, and the third page is included in the second plea. [4] In her first issue, Riston argues that the City=s plea to the jurisdiction became moot after she filed her fifth amended petition on April 16, 2003. However, the City filed another plea to the jurisdiction after Riston filed her fifth amended petition. Riston=s main contention under her first issue seems to be that, because the City=s last plea to the jurisdiction contains a reference to her fourth amended petition, this plea is ineffective because her fourth amended petition was no longer in effect. Despite this reference in the City=s last plea to the jurisdiction, we conclude the City=s plea sufficiently challenged the trial court=s subject-matter jurisdiction. Accordingly, we overrule Riston=s first issue. [5] In Miranda, the Texas Supreme Court also delineated a standard to review an order on a plea to the jurisdiction wherein the defendant challenges the existence of jurisdictional facts by means of evidence. See Miranda, 133 S.W.3d at 227. In that event, the trial court considers relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. Id. Thereafter, 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. Id. at 227B28. 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. at 228. Because the City=s plea to the jurisdiction did not raise a fact question regarding any jurisdictional issue, we review the trial court=s ruling de novo. [6] Section 101.021 of the Act provides that a governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor‑driven vehicle or motor‑driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) 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. [7] Section 101.021 of the Act provides that Aif a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.@ [8] 4 S.W.3d 53, 54 (Tex. App.CTyler 1999, no pet.) [9] This statute provides that A[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer=s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.@ 42 U.S.C. '1983.