Opinion
No. 10-04-00045-CV
Opinion delivered and filed November 10, 2004.
Appeal from the 74th District Court, McLennan County, Texas, Trial Court # 2003-1168-3.
Affirmed.
Alfred Mackenzie and Charles D. Olson, HALEY DAVIS, P.C., Waco, TX, Attorney(s) for Appellant/Relator.
Aubrey Williams, MONTEZ, WILLIAMS BAIRD, P.C., Waco, TX, J. Alan Nelson and John L. Lewis, THE NELSON-LEWIS LAW FIRM, Waco, TX, Edward H. Moore, LAW OFFICE OF EDWARD H. MOORE, Dallas, TX, Attorney(s) for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA (Chief Justice GRAY concurring).
MEMORANDUM OPINION
In this interlocutory appeal, we have reviewed the trial court's denial of a plea to the jurisdiction filed by the City of Waco against claims brought by David Wright and Janet Key arising out of the deaths of two children, who drowned in a drainage culvert and tunnel constructed and maintained by the City. We affirm the denial of the City's plea. City of Tyler v. Likes, 962 S.W.2d 489 (Tex. 1997); Univ. of Tex. at San Antonio v. Trevino, 2002 Tex. App. Lexis 8395 (Tex.App.-San Antonio November 27, 2002, no pet.); City of Fort Worth v. Gay, 977 S.W.2d 814 (Tex.App.-Fort Worth 1998, no pet.).
CONCURRING Opinion
Appellees brought wrongful death and survivorship actions against the City of Waco for the drowning of their children in a Waco drainage culvert. The City filed a plea to the jurisdiction, which was premised on governmental immunity under the Texas Tort Claims Act. See TEX. CIV. PRAC. REM. CODE ANN. §§ 101.001-101.109 (Vernon 1997 Supp. 2004-2005). The trial court denied the plea. The City appeals. The majority affirms the trial court's order. I concur in this Court's judgment.
The trial court denied the plea to the jurisdiction on two grounds: "it appears that the plaintiffs have adequately pled [(1)] a cause of action for premises liability under the Tort Claims Act and [(2)] a common law action for negligent pre-1970 construction of the culvert system." The trial court had jurisdiction over the common law claim, and thus did not err in denying the plea.
The Tort Claims Act "does not apply to a claim based on an act or omission that occurred before January 1, 1970." TEX. CIV. PRAC. REM. CODE ANN. § 101.061 (Vernon 1997). "Common law thus governs causes of action based on acts occurring before that date." City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997). "When a municipal corporation acts in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government, it is liable for the negligence of its representatives." Id. (quoting Dilley v. City of Houston, 148 Tex. 191, 193, 222 S.W.2d 992, 993 (1949)).
[T]he acts of constructing and maintaining a storm sewer are proprietary at common law, both because they are performed in a city's private capacity for the benefit of those within its corporate limits and because they are ministerial functions. The City could be liable for the negligent performance of these acts if they proximately caused [plaintiff]'s damages.
Id. Thus, governmental immunity would not, as a matter of law, bar Appellees' pre-1970 common law construction claim. The City's arguments on immunity for design and improvement are not on point.
If the trial court has jurisdiction on any ground, the court does not err in denying a plea to the jurisdiction. Aledo Indep. Sch. Dist. v. Choctaw Props., L.L.C., 17 S.W.3d 260, 261-62 (Tex.App.-Waco 2000, no pet.). Since the trial court had jurisdiction over at least one of Appellees' claims, without regard to the premises liability claim, the court did not err in denying the City's plea to the jurisdiction. We should thus overrule the City's issue and affirm the trial court.
The majority, however, also cites cases on premises liability. We need not address the premises liability issue, and so we should not. I do not join the majority's holding, if that is what is to be inferred from the citations, that the trial court had jurisdiction over a cause of action for premises liability.
Accordingly, I concur in this Court's judgment.