Opinion
NUMBER 13-17-00243-CV
08-30-2018
MARIA CAMARENA, Appellant, v. CITY OF WESLACO, Appellee.
On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Contreras and Hinojosa
Memorandum Opinion by Justice Hinojosa
Appellant Maria Camarena appeals from an order granting a plea to the jurisdiction filed by appellee the City of Weslaco (the City). In four issues, Camarena contends that: (1) the trial court erred in granting the City's plea to the jurisdiction; (2) the City owed a legal duty to her to warn of a dead-end street and adjacent canal; (3) she was driving with reasonable care; and (4) the canal running perpendicular and adjacent to the street she traveled on is a special defect as a matter of law. We affirm.
I. BACKGROUND
At approximately 11:10 p.m. on April 12, 2015, Camarena, an Elsa police officer who had just completed her shift, drove through a thunderstorm to her home in neighboring Weslaco, Texas. Camarena turned onto West Northcross Avenue when she meant to turn onto Sugarcane Road, which would have led to her home. West Northcross Avenue is a paved road that ends with a curb. Approximately ten feet of dirt or grass separate the curb from the beginning of a canal that runs perpendicular to West Northcross Avenue. Camarena's vehicle drove off of West Northcross Avenue, over the approximately ten feet of dirt or grass, and into the canal. Camarena was rescued by a police officer and transported to a nearby hospital for treatment.
Camarena sued the City on a claim for negligence. According to Camarena's live petition, the City owned the canal in which she drove into, and it failed to, among other things, maintain and inspect West Northcross Avenue. The City answered Camarena's suit with a general denial, and it pleaded that Camarena's claim was barred by the doctrine of governmental immunity. Later, the City filed a plea to the jurisdiction in which it argued that, among other things, it did not own the canal, and even if the City owned it, the canal constituted neither a premises nor a special defect; therefore, governmental immunity barred Camarena's claim. Camarena responded by arguing that the canal constituted a special defect and that its proximity to West Northcross Avenue precludes the City from relying on the doctrine of governmental immunity to bar her claim. At the hearing on the City's jurisdictional plea, Camarena conceded that the City did not own the canal and that it did not constitute a premises defect. She nevertheless maintained that the canal constituted a special defect and that its close proximity to West Northcross Avenue precluded application of the governmental immunity bar.
The trial court granted the City's plea to the jurisdiction. Thereafter, Camarena filed a second amended petition that asserted claims against "Hidalgo & Cameron County Irrigation District #9". This appeal followed.
The "Hidalgo & Cameron County Irrigation District #9" is not a party to this appeal.
II. APPELLATE JURISDICTION
The City contends that we lack jurisdiction over Camarena's appeal because the trial court's grant of its plea to the jurisdiction is an interlocutory order, and Camarena failed to perfect her appeal pursuant to rule of appellate procedure 28.1, which requires that the appellant perfect an accelerated appeal within twenty days of the trial court signing the judgment. See TEX. R. APP. P. 28.1 (setting out that interlocutory appeals are accelerated). Rule 28.1 specifically states that "filing a motion for new trial, any other post-trial motion, or a request for findings of fact will not extend the time to perfect an accelerated appeal." Id. It is undisputed that Camarena failed to file her notice of appeal within twenty days of the trial court's judgment granting the City's plea to the jurisdiction.
A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit. For the plea to qualify as an interlocutory order, the granting or denying of the same by a governmental unit must leave other parties or claims at issue in the trial court. If it does not, no obstacle or impediment stands in the way of proceeding, and the granting of a plea to the jurisdiction is a final, appealable order.Fox v. Wardy, 318 S.W.3d 449, 452 (Tex. App.—El Paso 2010, pet. denied) (internal quotations citations omitted).
Although not stated in its brief, as we understand it, the City bases its argument that this is an interlocutory appeal on the fact that after the trial court granted the City's plea to the jurisdiction, Camarena amended her petition by including an additional defendant—"Hidalgo & Cameron County Irrigation District #9". Therefore, it appears that the City argues that because Camarena filed an amended petition adding an additional party, other parties and claims are still at issue in the trial court in this cause. See id.
However, "after judgment is rendered, it is too late to amend [pleadings], whether by a trial amendment or an amendment complete in itself." Cantu v. Martin, 934 S.W.2d 859, 860 (Tex. App.—Corpus Christi 1996, no pet.). In addition, in Leach v. Brown, after the trial court rendered final judgment, the party filed what the party purported to be an amended petition. 156 Tex. 66, 292 S.W.2d 329, 331 (1956). The Texas Supreme Court explained that after a final judgment, "there was no live pleading" to amend; thus, the purported amended petition filed after the final judgment "necessarily must have been an original petition." Id. The Leach court concluded that the judgment dated January 21, 1953 had finally disposed of the original case and that the "amended petition" filed on August 7, 1953, under the original docket number of the case, was an original petition that invoked the trial court's jurisdiction, although it was a misnomer to title it an "amended petition." Id. In Cockrell v. Central Savings & Loan Ass'n, the Fifth Court of Appeals, relying on Leach, concluded that the filing of an amended petition after a final judgment resulted in two distinct cases under the identical cause number. 788 S.W.2d 221, 224 (Tex. App.—Dallas 1990, no writ) (per curiam) (citing Leach, 156 Tex. 66, 292 S.W.2d at 331). The Cockrell court held that the purported amended petition filed after a final judgment constituted a pleading initiating a second, distinct suit. Id.; see also Walker v. Walker, 152 S.W.3d 220, 223 (Tex. App.—Dallas 2005, no pet.) (following Cockrell and concluding that the party's second amended petition filed after final judgment in the same cause initiated a distinct case, which was subsequently disposed of by another final judgment); Williams v. Nat'l Mortg. Co., 903 S.W.2d 398, 403 (Tex. App.—Dallas 1995, writ denied) (holding that a counterclaim filed in the same cause after the trial court rendered a final judgment dismissing all claims had the essentials of a separate claim); Clyburn v. Neely, No. 07-98-0404-CV, 1999 WL 387141, at *3 (Tex. App.—Amarillo June 14, 1999, no pet.) (mem. op.) ("A lawsuit or claim filed and docketed under the same cause number as a prior suit which is no longer in existence nevertheless exists as an independent lawsuit if the later-filed lawsuit contains all the requirements of an independent lawsuit. In such a situation, two distinct cases exist under the same cause number: one no longer pending and one newly filed.").
Here, the trial court disposed of all issues and parties pending when it granted the City's plea to the jurisdiction. The order granting the City's plea to the jurisdiction was a final, appealable order. Thus, after the final judgment was entered, there no longer existed any pleading to amend. Camarena's filing of a second amended petition after the final judgment resulted in the creation of a second distinct case under the same cause number. See Cockrell, 788 S.W.2d at 224. Because the trial court's judgment granting the City's plea to the jurisdiction was a final judgment, Camarena was not required to file her notice of appeal pursuant to rule 28.1. See id. Accordingly, Camarena's appeal was timely, and we have jurisdiction over this appeal. See id.
III. SPECIAL DEFECT
Whether the canal constitutes a special defect presents a dispositive question. Therefore, we address Camarena's fourth issue out of order.
A. Standard of Review and Applicable Law
Governmental immunity deprives a trial court of subject matter jurisdiction in suits against political subdivisions of the state, including cities, unless the political subdivision consents to suit, and is therefore properly asserted in a plea to the jurisdiction. Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 n.4 (Tex. 2011) (per curiam) (distinguishing between sovereign immunity, which protects the State and its divisions from suit and liability, and governmental immunity, which affords like protection to political subdivisions, including counties, cities, and school districts); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). The Texas Tort Claims Act (TTCA) provides a limited waiver of immunity for two categories of claims that allege dangerous conditions on real property—"premises defects" and "special defects." See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.022(a) (West, Westlaw through 2017 1st C.S.) (providing for governmental unit's liability for premises defects), (b) (providing for governmental unit's liability for special defects), .025 (waiving sovereign immunity to suit "to the extent of liability created by this chapter" and allowing person with claim under TTCA to sue governmental unit for damages); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010) (per curiam). "'Premises defects' may be defined generally as defects or dangerous conditions arising from conditions of a premises. 'Special defects' are a subset of premises defects and include conditions such as excavations or obstructions on highways, roads, or streets." Univ. of Tex. at Austin v. Sampson, 488 S.W.3d 332, 338-39 (Tex. App.—Austin 2014), aff'd, 500 S.W.3d 380 (Tex. 2016) (internal citations and quotations omitted).
Under Texas law, whether the complained-of condition is classified as a premises defect or a special defect determines the entrant's status and, in turn, the duty of care owed to the entrant by the governmental unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (per curiam). Whether a condition is a premises defect or a special defect is a question of law, which we review de novo. Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992)).
The parties concede, and we agree, that the canal may not be considered a premises defect for our governmental immunity analysis.
If the claim arises from a special defect, the governmental unit owes the claimant the same duty of care that a private landowner owes an invitee. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b); Tex. Dep't of Transp. v. Perches, 388 S.W.3d 652, 654-55 (Tex. 2012) (per curiam) (citing Payne, 838 S.W.2d at 238). Under this standard, the governmental unit must use ordinary care to reduce or eliminate an unreasonable risk of harm which the governmental unit knew or should have known about. Payne, 838 S.W.2d at 237.
Under the TTCA, a special defect includes "excavations or obstructions on highways, roads, or streets." TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). Moreover, the Texas Supreme Court has held that a special defect must be in the same class as an excavation or obstruction and that the class of special defects contemplated by the TTCA is narrow. Perches, 388 S.W.3d at 655 (citing Hayes, 327 S.W.3d at 116). Whether a condition is a special defect is determined on a case-by-case basis. See Payne, 838 S.W.2d at 238; Wildermuth v. Parker Cty., 1 S.W.3d 705, 708 (Tex. App.—Fort Worth 1999, no pet.). We consider such factors as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. Hayes, 327 S.W.3d at 116. An ordinary user takes the "normal course of travel," which is on the actual roadway. See id. at 116-17 (citing Denton Cty. v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009)).
B. Analysis
In Perches, a driver was killed while navigating a highway underpass. 388 S.W.3d at 653. The underpass had a ramp from the westbound lanes of the highway to a bridge crossing over the highway. Id. At the end of the ramp, a "T-intersection" directs west-bound drivers left onto a city street. Id. The driver crashed into a concrete barrier while attempting to make a left turn. Id. His car went over the edge and fell more than twenty feet to the roadway below. Id.
The Texas Supreme Court observed that the concrete guardrail was located at the end of the T-intersection, and its function was to prevent cars from falling off the underpass. Id. at 656. It wrote that an "ordinary user of the roadway would not be expected to miss a turn and crash through a concrete guardrail." Id. The guardrail did not impede travel or otherwise block the road for an ordinary user in the normal course of travel, but rather, in accordance with its intended purpose, delineated the roadway's bounds. The court observed that "[g]uardrails, by their nature, define the roadway, they do not impede it"; and it held that the guardrail did not constitute a special defect under the TTCA. Id.
The dissent distinguishes Perches, 388 S.W.3d at 653-56, by positing that "there is a question of fact regarding whether Camarena acted as an ordinary user when she deviated off of the road and careened into the canal." But, whether the canal constitutes a special defect under the TTCA and by implication whether Camarena was an ordinary user of the roadway are questions of law, not fact. See Beynon, 283 S.W.3d at 332 ("Our cases rest on the objective expectations of an ordinary user, and such a driver would not be expected to careen uncontrollably off the paved roadway and into the adjoining grass, as [the driver] admitted when he stated that the 'normal course of travel for [the roadway in question] would be the asphalt pavement.'").
Moreover, the Texas Supreme Court has held that "the 'normal course of travel' would be on the actual road." Hayes, 327 S.W.3d at 116 (citing Beynon, 283 S.W.3d at 332). Under this standard, Camarena, who admits to traveling approximately ten feet off the roadway before driving into the canal, is not an ordinary user under the special defect analysis prescribed by the TTCA. See Perches, 388 S.W.3d at 656; Hayes, 327 S.W.3d at 116; Beynon, 283 S.W.3d at 332. Accordingly, it cannot constitute a special defect under the TTCA in this case.
In light of Camarena's claim and the absence of a special defect, no waiver of governmental immunity has been established. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.060(a), (c). Accordingly, we overrule Camarena's fourth issue and, because it is dispositive, see TEX. R. APP. P. 47.1, we need not address Camarena's other issues.
IV. RESPONSE TO DISSENT
The dissent misplaces its reliance on Harris County v. Estate of Ciccia, 125 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2003, pet. denied), and City of Houston v. Jean, 517 S.W.2d 596, 599 (Tex. Civ. App.—Houston [1st Dist.] 1974, writ. ref'd n.r.e.). A. Jean
In Jean, the plaintiff drove her vehicle east on Elm Street. 517 S.W.2d at 598. Elm Street ended at a T-intersection with Alder Street. Id. A six-foot deep ditch ran parallel with and began four feet to the east of Alder Street. Id. at 599. The plaintiff drove her vehicle through the T-intersection and into the ditch. Id. At trial, an investigating police officer testified that there were no signs indicating Elm Street ended and the only lighting at the location was a small 150-to-200 watt light bulb approximately twenty-five to thirty feet away from the intersection. Id. The Jean court concluded that the ditch constituted a special defect. Id. B. Estate of Ciccia
In Estate of Ciccia, the county constructed, according to engineering plans, a right-hand turn lane that was marked with striping, arrows, and the words "right turn only" on the road surface. 125 S.W.3d at 752. The turn lane was intended to serve a proposed concrete plant that was never built. Id. Instead, the turn lane ended abruptly. Id. At a later time, after this turn lane was constructed, the county permitted a telephone company to add a concrete culvert several yards beyond the end of the turn lane. Id. This section of road was not lit; there were neither barricades nor signs to warn drivers that the road simply stopped short of a ditch containing a culvert. Id. One night at 10:00 p.m. a vehicle proceeded on the turn lane and struck the concrete culvert, killing one passenger and injuring another. Id. The passengers sued the county for faulty road design and construction and for failing to warn of a special defect. Id.
The First Court of Appeals held that the county's governmental immunity was not waived regarding the faulty road design claim, but that the culvert constituted a special defect for which the county failed to provide an adequate warning. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0606(c) (West, Westlaw through 2017 1st C.S.) (providing that governmental immunity does not apply to the duty to warn of special defects such as excavations or roadway obstructions). The court referenced Jean, writing, "We agree with the Ciccias that the circumstances in this case are virtually indistinguishable from those in Jean, i.e., a road that suddenly ended with a ditch—here, a ditch with a concrete culvert in it—just beyond the road's end and that had inadequate lighting." Estate of Ciccia, 125 S.W.3d at 754. C. Beynon
Six years after Estate of Ciccia, the Texas Supreme Court decided Beynon. In Beynon, a driver of a vehicle on an unlit, undivided two-lane road swerved to avoid a collision with an oncoming vehicle and was impaled by a seventeen-foot floodgate arm located approximately three feet off the roadway and pointing in the direction of oncoming traffic. 283 S.W.3d at 330. The floodgate arm was owned by Denton County. Id. The trial court and intermediate appellate court concluded that it constituted a special defect. In explaining its precedent governing special defects, the Texas Supreme Court wrote:
This Court has never squarely confronted whether a hazard located off the road can (or can never) constitute a special defect, though we did note in Payne that some courts of appeals have held certain off-road conditions to be special defects. However, as Payne clarified, "[w]hether on a road or near one," conditions can be special defects like excavations or obstructions "only if they pose a threat to the ordinary users of a particular roadway." More specifically, a court cannot "classify as 'special' a defect that is not like an excavation or obstruction on a roadway."Id. at 331-32 (footnotes omitted). In analyzing whether the floodgate arm constituted a special defect, the court wrote that:
. . . the arm did not "pose a threat to the ordinary users of [the roadway in question]," or prevent ordinary users from traveling on the road (as opposed to skidding off the road). Our cases rest on the objective expectations of an "ordinary user," and such a driver would not be expected to careen uncontrollably off the paved roadway and into the adjoining grass, as [the driver] admitted when he stated that the "normal course of travel for [the roadway in question] would be the asphalt pavement."Id. (footnote omitted). It noted that the floodgate arm "was neither the condition that forced [the driver's] car off the road initially nor the condition that caused the car to skid sideways and crash into the floodgate arm." Id. at 332. Ultimately, the court concluded that the floodgate arm did not constitute a special defect under the TTCA. Id. at 333.
D. Analysis
Jean does not represent the current state of Texas law given the holdings in Beynon and Perches, and Estate of Ciccia represents a factually specific and distinct scenario. In Estate of Ciccia, the court wrote that "the culvert located just beyond the end of road presented an unusual and unexpected danger to ordinary users of the designated right turn lane." 125 S.W.3d at 755. Thus, the roadway markings, as encountered by the driver of the vehicle carrying the plaintiffs in Estate of Ciccia, would have guided an ordinary user off the roadway and toward a concrete culvert. Id. If Texas recognizes that a special defect for purposes of the TTCA may exist off the roadway, the facts in Estate of Ciccia narrowly fit. But see, Beynon, 283 S.W.3d at 331-32 (noting that the Texas Supreme Court has never squarely confronted whether a hazard located off the road can (or can never) constitute a special defect). On the other hand, Jean and Perches are irreconcilable. Both cases deal with drivers who left the roadway after passing through a T-intersection. The difference is that the First Court of Appeals in Jean summarily concluded that the city was "under a duty to warn or protect against any special defect such as an excavation or obstruction in the street or in such proximity to the street as to render travel unsafe." 517 S.W.2d at 599. It did not apply the ordinary user standard later articulated by the Texas Supreme Court in Beynon and applied in Perches. See Beynon, 283 S.W.3d at 331-32; see also Perches, 388 S.W.3d 656. Thus, Jean has been abrogated by Beynon and Perches and the dissent errs in relying on it.
The dissent also errs in positing that whether overgrown vegetation covered the curb that Camarena concedes existed creates a fact issue that precludes the granting of the City's plea to the jurisdiction. For clarity, the two photographs that best depict the curb and the distance between the street and canal are attached as an appendix to this memorandum opinion. Assuming for a moment that the ordinary user standard allows for travel off of a roadway and a special defect may exist in close proximity to a roadway, whether the curb was covered by overgrown vegetation does not create a fact issue material to the special defect analysis. As the photographs show, if Camarena was traveling straight and in her lane of travel, she would have necessarily hopped the curb that may—or may not—have been covered by overgrown vegetation and traveled approximately ten feet before driving into the canal. The only way Camarena's vehicle would not have hopped the curb would be if she approached it at a sharp angel and outside of her lane of travel.
V. CONCLUSION
We affirm the trial court's order granting the City's plea to the jurisdiction.
LETICIA HINOJOSA
Justice Dissenting Memorandum Opinion by Chief Justice Valdez. Delivered and filed the 30th day of August, 2018.
APPENDIX
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