Opinion
No. 10-04-00112-CV
Opinion Delivered and Filed April 6, 2005.
Appeal from the 40th District Court, Ellis County, Texas, Trial Court # 66466.
Reversed and Remanded.
John Alan Goren, Robert K. Dowd, Dallas, TX; Andrew B. Sommerman, Sommerman Quesada, PC, Dallas, TX, Attys. for Appellant/Relator.
W. Andrew Messer, Frisco, TX, Atty. for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
(Chief Justice GRAY dissents without a separate opinion).
MEMORANDUM Opinion
The trial court granted Ellis County's plea to the jurisdiction in a suit claiming that the County was liable for the death of two teenagers when their car fell off a bridge. We reverse.
Background
Juan Carlos Diaz was driving on Stacks Road in Ellis County with his friend and passenger, Patrick Wayne Brashear. Apparently in an attempt to avoid hitting an animal, Diaz abruptly turned the car. The car struck the leading edge of a wooden bridge, flipped over, and landed upside down in the creek below. Both boys drowned.
Appellants filed suit individually and on behalf of Diaz and Brashear alleging that a premise defect and/or a special defect on the bridge proximately caused the boys' death. Ellis County filed a plea to the jurisdiction, which was granted.
Appellants include Julia P. Diaz, individually and on behalf of Diaz, her son, and Michael Brashear and Deborah Stayton, individually and on behalf of Brashear, their son. Afterwards, Bernardo Diaz, Diaz's father, filed a plea in intervention.
On appeal, Appellants argue that the trial court erred in (1) granting the County's plea to the jurisdiction because there is sufficient evidence to waive immunity; (2) granting the County's plea to the jurisdiction on the basis that the County had no notice; and (3) preventing Appellants from conducting discovery by denying their motion to compel and motion for continuance.
Plea to the Jurisdiction
Appellants argue in their first issue that the trial court erred in granting the County's plea to the jurisdiction because their pleadings allege a valid waiver of immunity under the Texas Tort Claims Act (TTCA) and because fact issues remain as to whether the roadway condition at issue is a premise defect or a special defect.
Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Tex. Nat. Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In general, governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity. Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Immunity from suit is waived to the extent of liability created by the TTCA. Tex. Civ. Prac. Rem. Code Ann § 101.025(a) (Vernon 1997); Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TTCA waives a governmental unit's immunity to liability based on violations of "the duty to warn of special defects such as excavations or roadway obstructions." TEX. CIV. PRAC. REM. CODE ANN. § 101.060(c) (Vernon 1997).
In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity, and pleading facts showing that the trial court has jurisdiction. Miranda, 133 S.W.3d at 226. When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition together with any relevant jurisdictional evidence. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). When a plea to the jurisdiction challenges the existence of jurisdictional facts, implicating the merits of the plaintiff's cause of action, the trial court reviews the relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227.
Special defects "unexpectedly and physically impair a vehicle's ability to travel on the road." Harris County v. Est. of Ciccia, 125 S.W.3d 749, 754 (Tex.App.-Houston [1st Dist.] 2003, pet. denied) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999)). The condition of the road must be analogous to and of the same degree as "excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. Rem. Code Ann. § 101.022(b) (Vernon 1997). It must present "an unusual and unexpected danger to ordinary users of roadways." State Dept. of Highways Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992); City of Mission v. Cantu, 89 S.W.3d 795, 809 (Tex.App.-Corpus Christi 2002, no pet.). The dangerous condition need not have been created or caused by the government unit to constitute a special defect for which the governmental unit has a duty to warn. Est. of Ciccia, 125 S.W.3d at 754 (citing County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).
Pictures of the wooden bridge were introduced into evidence. They depict a significant hole in front of the bridge. Portions of the bridge surrounding the depression appear to have rotted away, and erosion has occurred immediately before the edge of the bridge. Appellants argue that the vehicle struck this depression, causing the tires to hit the front edge of the bridge and flip over. The County argues that this depression is not a special defect because it is not an unusual or unexpected danger to ordinary users of the road. They argue that the ordinary use of the road is to travel on the center of the bridge, and not to drive off it. However, the depression, while not in the middle of road, is still within the parameters of the driving portion of the bridge and can be considered an obstruction. See e.g. Morse v. State, 905 S.W.2d 470, 475 (Tex.App.-Beaumont 1995, writ denied) (10 inch drop-off along shoulder that prevented car's left wheels from reentering roadway once they slipped off was special defect); Stambaugh v. City of White Oak, 894 S.W.2d 818, 820 (Tex.App.-Tyler 1994, no writ) (caved-in portion of road 15 feet by 10 feet special defect); State v. Nichols, 609 S.W.2d 571, 573 (Tex.Civ.App.-Waco 1980, writ ref'd n.r.e.) (3-4 foot caved-in portion of highway special defect); State v. McBride, 601 S.W.2d 552, 558 (Tex.Civ.App.-Waco 1980, writ ref'd n.r.e.) (slick, muddy excavation special defect); Miranda v. State, 591 S.W.2d 568, 569 (Tex.Civ.App.-El Paso 1979, no writ) (flood water two feet deep across highway special defect).
Both parties present conflicting evidence as to the character of the depression. Therefore, fact issues exist as to whether the depression is a special defect. Miranda, 133 S.W.3d at 227-28 ("If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder"). Accordingly, we sustain Appellants' first issue.
Conclusion
Because Appellant's first issue is dispositive of the case, we need not address their other issues. We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.