City of Galveston, Texas v. Karen Albright

Affirmed and Memorandum Opinion filed November 2, 2004 Affirmed and Memorandum Opinion filed November 2, 2004. In The Fourteenth Court of Appeals _______________ NO. 14-04-00072-CV _______________ CITY OF GALVESTON, TEXAS, Appellant V. KAREN ALBRIGHT, Appellee On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 02CV1251 M E M O R A N D U M   O P I N I O N The City of Galveston (ACity@) appeals the trial court=s denial of its plea to the jurisdiction, arguing that appellee Karen Albright failed to plead sufficient facts to invoke a waiver of immunity under the Texas Tort Claims Act (AAct@).[1] Alternatively, the City argues that if Albright pleaded sufficient facts, her claim is exempted under the Act. Because we hold that the pleadings and jurisdictional evidence do not affirmatively negate jurisdiction, we affirm the trial court=s ruling. Factual and Procedural Background The underlying facts in this case are essentially undisputed. At 7:00 a.m. on February 25, 2002, Albright was riding her bicycle to work when she struck a Adrainage block@ protruding from the roadway. Albright was thrown from her bicycle and suffered injuries. She filed suit against the City. The City filed a plea to the jurisdiction, which the trial court denied, and this appeal ensued. Texas Tort Claims Act Generally, cities and counties enjoy sovereign immunity from suit unless such immunity has been waived. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002); City of Galveston v. Gray, 93 S.W.3d 587, 591 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). The party suing the governmental entity must establish waiver of immunity, either by reference to a statute or to express legislative consent. General Servs. Comm=n v. Little‑Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001); Gray, 93 S.W.3d at 591. Sovereign immunity from suit defeats a trial court=s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. State Dep=t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Tex. Dep=t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999); Gray, 93 S.W.3d at 591. The Act provides a limited waiver of sovereign immunity, specifically in three areas: (1) use of a publicly owned automobile; (2) premise defects; and (3) injuries arising out of conditions or use of property. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004); see Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 1997). Whether there has been a statutory waiver of immunity is a question of law. See Miranda, 133 S.W.3d at 226; City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 169 (Tex. App.CEl Paso 1997, pet. denied). Standard of Review A plaintiff has the burden to allege facts affirmatively demonstrating the court=s jurisdiction over the suit. Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction challenges the pleadings, the trial court considers the allegations in the pleadings, accepting those allegations as true, and may also consider evidence relevant to the jurisdictional issues raised. Gray, 93 S.W.3d at 590B91. When the plea challenges the existence of jurisdictional facts, relevant evidence submitted by the parties also may be considered when necessary to resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. The trial court reviews the evidence to determine if a fact issue exists; if it concludes fact issues exist, the trial court may not grant the plea. Id. at 227B28. If the relevant evidence is undisputed or fails to raise a fact issue, the trial court rules on the plea as a matter of law.[2] Id. However, Aa court may not weigh the claims= merits but must consider only the plaintiff=s pleadings and the evidence pertinent to the jurisdictional inquiry.@ Brown, 80 S.W.3d at 555; see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554B55 (Tex. 2000). When reviewing a trial court=s order on a plea to the jurisdiction, we must construe the pleadings liberally in the plaintiff=s favor and look to the pleader=s intent. Miranda, 133 S.W.3d at 226; Brown, 80 S.W.3d at 555. When a plaintiff fails to plead facts establishing jurisdiction, but the petition does not affirmatively negate 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; Brown, 80 S.W.3d at 555. Analysis In two issues, the City contends the trial court improperly denied its plea to the jurisdiction, claiming (1) Albright failed to plead sufficient facts establishing waiver of immunity under the Act, and (2) even if Albright=s pleadings sufficiently allege waiver, the challenged Aconduct@ falls within the discretionary exception[3] to the Act. A. Albright=s Pleadings The facts as alleged in Albright=s petition are as follows: On February 25, 2002, [Albright] while riding her bicycle struck a drainage ditch in the northwest corner of 10th and Ball Street. [Albright] was proceeding from her place of employment to home. The accident took place at 7:00 a.m. in the morning. When [Albright] struck the drainage ditch, [Albright] was thrown from her bicycle. [Albright] suffered injury to her body (broken hand, dislocated digit finger and a blackened face (left eye)). [Albright] also suffered general bruises from the fall in question. Further, the petition alleges Albright is suing the City Afor damages associated with the condition of City streets and/or sidewalk that has caused injury@ and that Athe defective existence of the road/street was an actual and/or constructive notice defect in that the nature of the defect is open and obvious which on reasonable inspection would have disclosed the defect.@ In her response to the City=s plea to the jurisdiction, Albright provided a more detailed recitation of the underlying facts,[4] stating that she rode her bicycle to work for nine years; however, on the day of the accident, she took an alternate route and struck the drainage block, which was exposed and raised above the driving surface, resulting in her injuries. She alleged that the City had actual and/or constructive knowledge of the defect because a reasonable inspection would have revealed it and the City=s crews had been to that location Aon at least nine occasions prior to@ her accident. She also cited sections of the Act which she alleged were express waivers of immunity in this case.[5] Albright also asserted that the City was liable because the drainage block was a special defect and a premise defect.[6] Attached to her response was an expert=s report and portions of Albright=s deposition. B. Premise Claim The City first argues that the drainage block is not a special defect as a matter of law. The character of the drainage blockCas a premise defect or a special defectCdetermines the duty allegedly owed by the City to Albright. If a claim arises from a premise defect, the governmental unit owes the claimant the same duty that a private person owes to a licensee on private property, in other words, not to injure a licensee by willful, wanton or grossly negligent conduct, and to use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(a) (Vernon 1997); State Dep=t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). However, if a premise claim arises from a special defect the duty owed is the same as a private person owes to an invitee. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(b); Payne, 838 S.W.2d at 237; Harding v. Kaufman County, 119 S.W.3d 428, 432 (Tex. App.CTyler 2003, no pet.). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware.[7] Payne, 838 S.W.2d at 237. 1. Special defect Special defects are excavations or obstructions on roadways, or some other condition that presents an Aunexpected and unusual danger to ordinary users of roadways.@ Payne, 838 S.W.2d at 238B39; see Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(b). The test for Aunexpectedness@ is an objective one. Hindman v. State Dep=t of Highways & Pub. Transp., 906 S.W.2d 43, 45 (Tex. App.CTyler 1994, writ denied). AA special defect must be distinguished by some unusual quality outside the ordinary course of events.@ Mitchell v. City of Dallas, 855 S.W.2d 741, 747 (Tex. App.CDallas 1993), aff=d, 870 S.W.2d 21 (Tex. 1994). It is not a longstanding, routine or permanent condition. Id. at 748. Both ordinary premise defects and special defects can constitute a dangerous condition. Morse v. State, 905 S.W.2d 470, 474 (Tex. App.CBeaumont 1995, writ denied). Whether a condition is a premise defect or a special defect is a question of law. State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994). In her pleadings, Albright alleges the drainage block is a special defect. Her petition states that the defective condition of the road was Aopen and obvious,@ such that it served to provide notice to the City. Her expert=s report contains pictures of the drainage block and its dimensions,[8] and notes that the City had not furnished information indicating when the drainage block was installed. Attached to its plea, the City furnished an affidavit from Angelo Grasso, the Senior Assistant Public Works Director, in which he stated (1) the drainage block was not defective because it performs the function it was designed to perform, that is, it facilitates drainage; (2) the drainage block is open and obvious, and observable by Aany ordinary user of the roadway@; and (3) there is nothing Aunusual or unexpected@ about the drainage device which would alert the City to its dangerous condition. Even construing Albright=s pleadings liberally, she does not establish that the drainage block is a special defect. Her pleadings do not allege that the drainage block was an excavation, obstruction, or possessed some other quality which would distinguish it from something out of the ordinary. Moreover, Albright pleaded that the drainage block was Aopen and obvious.@ The open and obvious nature of the drainage block serves to defeat the Aunexpected and unusual requirement@ for a special defect. See Villegas v. Tex. Dep=t of Transp., 120 S.W.3d 26, 32 (Tex. App.CSan Antonio 2003, pet. denied). Although Albright may not have actually been aware of the drainage block because she was taking an alternative route to work when the accident occurred, the test for unexpectedness when determining whether a condition is a special defect is an objective one. Hindman, 906 S.W.2d at 45. Finally, Grasso=s affidavit negates Albright=s claim that the drainage block is a special defect and her evidence does not controvert Grasso=s statements. We conclude Albright=s pleadings and the relevant jurisdictional evidence affirmatively demonstrate that the drainage block is not a special defect. 2. Premise defect The City also contends that even as a premise defect claim,[9] Albright=s pleadings are insufficient because she has failed to plead: that (1) the drainage block created an unreasonable risk of harm; (2) the City actually knew of the unreasonable risk; (3) she did not know of the danger; or, (4) the City failed to exercise ordinary care to protect her from the danger posed by the drainage block. To establish liability for a premise defect, a licensee must prove that: (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; [and] (5) the owner=s failure was a proximate cause of injury to the licensee. Payne, 838 S.W.2d at 237; Villegas, 120 S.W.3d at 33-34. Albright=s pleadingsCalthough rudimentary[10]Cstate that she is suing the City for damages caused by the defective condition of the City=s streets and storm drain. She states that the City had a duty to maintain the street and the drainage block, failed to perform that duty, and such failure was the proximate cause of her injuries. Further, she alleges that the City had actual and/or constructive notice of the drainage block=s defective condition which was evidenced by the maintenance records and Afrequency with which the city crews performed work at this intersection.@ In her deposition, attached to the expert=s report, Albright stated she was not aware of the drainage block because she was not traveling her normal route that morning, and she had not seen other drainage blocks Apoking up in the middle of the street.@ Albright=s expert report stated that the drainage block was hazardous, the City had the duty to repair and maintain the road in a safe manner, and in his opinion, the City failed in its duty to Aadequately protect the health, safety and welfare@ of the City=s residents Arelated to the installation and maintenance@ of the drainage block. Finally, attached to the report were the City=s repair records regarding the drainage block, indicating work had been done on it numerous times, and pictures attached to the report show the asphalt surrounding the drainage block had been patched and repaired. In sum, construing Albright=s pleadings liberally, as we must, she has sufficiently alleged a premise defect claim against the City for a defective condition of the drainage block. The City argues Grasso=s affidavit establishes that the City was not aware the drainage block posed any danger. Specifically, Grasso=s affidavit states, A[t]here is nothing unusual or unexpected about the drainage device . . . which would make the [City] aware the drainage device is potentially dangerous or hazardous to the public.@ Read in context, Grasso=s statement goes directly to whether the drainage block was a special defect, but does not address Albright=s claim that the City was aware of the defective condition of the drainage block due to the number of times it had been to that location to maintain and repair the drainage block. The evidence provided by Albright shows the drainage block had been patched and that the City=s crews had been out to the site numerous times to perform maintenance work. At a minimum, this evidence raises a fact issue as to the City=s knowledge and, when jurisdictional evidence raises a fact issue, a plea to the jurisdiction must be denied. Miranda, 133 S.W.3d at 227B28. In its plea, the City states that, because Albright did not have her bicycle light on and because she violated traffic laws by crossing over to the left hand side of the road where she encountered the drainage block, she cannot establish jurisdiction. However, whether Albright was properly following applicable traffic laws or whether her bicycle light should have been on, are issues pertaining to comparative responsibility but do not negate jurisdiction. See, e.g., Brown, 80 S.W.3d at 556 (noting plaintiff=s lack of care may be issue for jury to decide). Finally, the City also argues that because Albright=s petition states the drainage block was obvious and open, it defeats jurisdiction for a premise defect by negating her claim that she was not aware of the drainage block=s dangerous condition. However, in asserting a premise defect claim, the plaintiff must establish her lack of actual knowledge. See Payne, 838 S.W.2d at 237; Harding, 434-35. In her petition, Albright claimed the drainage block was Aopen and obvious@ in the context of providing constructive notice to the City. She stated in her deposition that she did not know of the drainage block because she was traveling a route that was not her usual route. The fact Albright was traveling an unfamiliar route was also alleged in her original petition. Construing the pleadings liberally in Albright=s favor and looking to her intent, they do not affirmatively negate jurisdiction. See Miranda, 133 S.W.3d at 226-27. We overrule the City=s first issue. C. Discretionary Acts Alternatively, the City contends that even if Albright has sufficiently pleaded a premise defect, her claim is exempted from waiver of immunity under the Act because the City=s acts and decisions pertaining to the design and installation of the drainage block are discretionary. Albright argues her claim involves the City=s maintenance of the drainage block. Under section 101.056, claims based on the performance or nonperformance of an act left to the discretion of the governmental unit are exempted from the waiver of immunity under the Act. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 1997); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). An act is discretionary if it requires exercising judgment and the law does not dictate performing the act with such precision that nothing is left to discretion or judgment. Rodriguez, 985 S.W.2d at 85. Design decisions are considered discretionary acts. See, e.g., Mogayzel v. Tex. Dep=t of Transp., 66 S.W.3d 459, 465 (Tex. App.CFort Worth 2001, pet. denied); Mitchell, 855 S.W.2d at 745. Maintenance activities are not considered discretionary acts. See Brown v. State Dep=t of Transp., 80 S.W.3d 594, 598 (Tex. App.CCorpus Christi 2000, no pet.). Maintenance activities are distinguished from discretionary acts in that maintenance involves the preservation of existing infrastructure. Id. Whether an act is discretionary is a question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999). Here, construing Albright=s pleadings liberally, she claims the City had a duty to maintain the drainage block in a safe manner and the City failed in that duty. She also provided copies of the City=s maintenance records. Thus, her claim involves maintenance activities.[11] See, e.g., Brown, 80 S.W.3d at 598 (concluding that maintaining lights previously installed was not a discretionary act); City of Fort Worth v. Gay, 977 S.W.2d 814, 816-17 (Tex. App.CFort Worth 1998, no pet.) (concluding plaintiff=s claims focused on the City=s failure to maintain, clean, and inspect an area of the street and actions were therefore not immune to suit). We overrule the City=s second issue. Conclusion Although we hold Albright=s pleadings do not affirmatively demonstrate an incurable jurisdictional defect, we cannot say that her pleadings affirmatively demonstrate jurisdiction. Her pleadings fail to clearly state whether she had actual knowledge of the condition of the drainage block. Because this defect is a pleading deficiency that may be cured through amendment, we affirm the trial court=s denial of the City=s plea to the jurisdiction. See, e.g., Brown, 80 S.W.3d at 559 (stating that failure to plead a plaintiff=s lack of actual knowledge was a pleading defect for which the plaintiff should be afforded the opportunity to amend). /s/ Eva M. Guzman Justice Judgment rendered and Memorandum Opinion filed November 2, 2004. Panel consists of Justices Yates, Edelman, and Guzman. [1] Tex. Civ. Prac. & Rem. Code ch. 101. All subsequent references to the AAct@ are to the Texas Tort Claims Act. [2] If the plaintiff had a reasonable opportunity to amend his pleadings and still did not allege facts constituting a waiver of immunity, a dismissal of the plaintiff=s claims is with prejudice. Harris County v. Sykes, 47 Tex. Sup. Ct. J. 618, 2004 WL 1194127 *3 (Tex. May 28, 2004). [3] The Act does not apply to claims based on the following: (1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a governmental unit=s decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 1997). [4] Pleadings relevant to a review of a plea to the jurisdiction include responses filed in connection with the plea. Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.CCorpus Christi 2001, no pet.) (citing Janik v. Lamar Consol. Indep. Sch. Dist., 961 S.W.2d 322, 324 (Tex. App.CHouston [1st Dist.] 1997, writ denied)). [5] Albright referred to sections 101.021 and 101.0215. Section 101.0215 provides that a municipality is liable under the Act for damages arising from certain governmental functions, including street construction and design, and street maintenance. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215 (Vernon Supp. 2004). [6] Albright did not amend her original petition to reflect these more specific allegations, but did request the opportunity to amend. [7] The differences in the elements required to prove these duties are: (1) a licensee must prove that the premises owner had actual knowledge of the condition, while an invitee need only prove that the owner knew or reasonably should have known of the dangerous condition; and (2) a licensee must prove that he did not know of the dangerous condition, however an invitee need not prove this element. Payne, 838 S.W.2d at 237; Morse, 905 S.W.2d at 474. [8] The expert=s report describes the dimensions of the drainage block as follows: the portion of the block Athat faces the curb is raised above the road surface approximately by six and half inches and the portion that opens into the street is raised above the road surface approximately 10.5 inches.@ The drainage block is Abetween 24 and 36 inches in width.@ There is information in the report indicating that other drainage blocks in the City differ from the one causing Albright=s injuries. [9] At oral argument, the City conceded that the drainage block is a premise defect. The City also asserted in its appellate brief that the drainage block was a premise defect. [10] At oral argument, Albright=s counsel conceded that the petition was less than artful. [11] Due to the limited nature of Albright=s pleadings and the evidence before us, it is not altogether clear if she is claiming her injuries were also caused by installation of the drainage block. If her claim is based on the installation of the drainage block, it may impact Albright=s ability to establish waiver; however, because she has alleged maintenance issues, at this juncture we need not address a claim concerning installation.