Opinion
No. 05-03-01587-CV
Opinion issued May 28, 2004.
On Appeal from the 196th District Court, Hunt County, Texas, Trial Court Cause No. 66, 345.
Reversed and Dismissed in part, Affirmed in part, Remanded in part.
Before Justices MORRIS, WHITTINGTON, and JAMES.
MEMORANDUM OPINION
Hunt County brings this interlocutory appeal of the denial of its plea to the jurisdiction. See Tex. Civ. Prac. Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2004). The County brings four issues asserting that its immunity from suit for Dallas, Garland and Northeastern Railroad's causes of action for negligence, nuisance, non-negligent nuisance, and condemnation is not waived by the Texas Tort Claims Act and the Texas Constitution. We reverse the trial court's order in part and render judgment dismissing the Railroad's causes of action for nuisance and negligent nuisance. We affirm the trial court's order denying the plea to the jurisdiction to the Railroad's negligence and inverse condemnation causes of action, and we remand the cause to the trial court for further proceedings.
FACTUAL BACKGROUND
On December 18, 2001, from about 9:00 a.m. to 10:30 a.m., a County road-maintenance crew was working on a County road that crossed the Railroad's tracks. Using motorized equipment, the road-maintenance crew spread road-base material over the road in the spots where the road material was thinning. The crew also spread the material over the railroad tracks at the crossing, burying the tracks beneath about four inches of road-base material. The road-maintenance crew then left the scene. At about 2:40 p.m., the Railroad's train encountered the built-up road-base material at the crossing, and the engine and lead car derailed. No one was injured, but the Railroad pleaded that it suffered property damages of "at least $20,000.00." After notifying the County of its claim, the Railroad brought suit against the County for negligence and nuisance. The County filed a plea to the jurisdiction asserting immunity from suit for these claims. The Railroad amended its petition adding claims for non-negligent nuisance and inverse condemnation. The County filed a supplement to its plea to the jurisdiction. Following a hearing, the trial court denied the plea. The County timely filed its notice of appeal.
STANDARD OF REVIEW
A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Osburn v. Denton County, 124 S.W.3d 289, 292 (Tex. App.-Fort Worth 2003, pet. filed). "In deciding a plea to the jurisdiction, a court may not weigh the claims' merits but must consider only the plaintiffs' pleadings and the evidence pertinent to the jurisdictional inquiry." County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002), (citing Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001), Blue, 34 S.W.3d at 554-55). "Because jurisdiction is a question of law, we review the trial court's ruling on a plea to the jurisdiction de novo, applying the same standards that the trial court applies." Godley Indep. Sch. Dist. v. Woods, 21 S.W.3d 656, 658 (Tex. App.-Waco 2000, pet. denied).
The court views the petition in favor of the plaintiff, taking all allegations in the petition as true and construing them in favor of the plaintiff. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993); Kerr v. Tex. Dep't of Transp., 45 S.W.3d 248, 250 (Tex. App.-Houston [1st Dist.] 2001, no pet.). However, the court is not bound by any legal conclusions in the petition or by any illogical factual conclusions the plaintiff draws from the pleaded facts. Firemen's Ins. Co. v. Bd. of Regents, 909 S.W.2d 540, 542 (Tex. App.-Austin 1995, writ denied), disapproved on other grounds by Blue, 34 S.W.3d at 555. In determining a plea to the jurisdiction, a court "is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Blue, 34 S.W.3d at 555.
SOVEREIGN IMMUNITY AND THE TORT CLAIMS ACT
Sovereign immunity protects the government from lawsuits for money damages. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Sovereign immunity consists of immunity from suit and immunity from liability. Id. Only the legislature can waive either type of immunity. Id. The legislature provided a limited waiver of liability and suit in certain circumstances for torts committed by the government. See Tex. Civ. Prac. Rem. Code Ann. §§ 101.021-.029 (Vernon 1997 Supp. 2004).
Under the Texas Tort Claims Act, 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.
Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 1997).
NEGLIGENCE
In its first issue, the County asserts the trial court erred in denying its plea to the jurisdiction to the Railroad's cause of action for negligence. The County asserts that the Railroad's injury, which the County defines as the train derailment, did not "arise from the operation or use of a motor-driven vehicle or motor-driven equipment." The supreme court has discussed the requirements for the narrow waiver of immunity under section 101.021(1):
We have consistently required a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff's injuries. This nexus requires more than mere involvement of property. Rather," the [vehicle]'s use must have actually caused the injury." Thus, as with the condition or use of property, the operation or use of a motor vehicle "does not cause injury if it does no more than furnish the condition that makes the injury possible."
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003) (citations omitted) (quoting White, 46 S.W.3d at 869; Dallas County Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998)). In this case, the County's use of the motor-driven equipment, driving it over the crossing while laying the road-base material is not what "actually caused" the derailment. Instead, the derailment was "actually caused" by a condition of the real property, the built-up road-base material, negligently created by the County. The motor-driven equipment did "no more than furnish the condition that [made] the injury possible." Id. Accordingly, we conclude the County has not waived its immunity from liability and suit for the Railroad's claim of negligence proximately causing the derailment.
The Railroad argues that the Fort Worth Court of Appeals' opinion in Tarrant County v. English, 989 S.W.2d 368 (Tex. App.-Fort Worth 1998, pet. denied), "mirrors the facts of the case at bar" and demonstrates there is a nexus between the use of the County's motor-driven vehicles and equipment and the derailment. In English, the plaintiff's property bordered on the government's property. Id. at 371. The government prepared its asphalt-hauling trucks by spraying the beds of the trucks with diesel fuel to release the asphalt better. Id. Some of the diesel fuel was negligently sprayed on the ground on the government's property, migrated through the soil to the plaintiff's property, and caused damage to the plaintiff's property. Id. The Railroad asserts the Fort Worth court held there was a sufficient nexus between the spraying of the trucks and the plaintiff's property damage for immunity to be waived under section 101.021(1). We disagree. The Fort Worth court did not hold there was a sufficient nexus; instead the court addressed the government's argument that there was no nexus because the trucks were not in use when they were sprayed with diesel, and the court held the trucks were in use. Id. at 375-76. The opinion does not show the court was asked to determine whether the spraying of the trucks was a sufficient nexus to the plaintiff's property damage, and the opinion does not address that issue. Id. The Fort Worth court's opinion in English does not support the Railroad's argument.
Although the County refers to the Railroad's damages as being limited to the derailment, the Railroad's petition does not limit its damages to the derailment. Instead, in a section of the petition labeled "Damages," the Railroad alleges: "As a direct and proximate result of Defendant's conduct, Plaintiff suffered the following injuries and/or other losses: A. actual damages of at least $20,000." The County did not specially except to any vagueness in the petition other than the amount of damages suffered. Accordingly, it has waived any defect in the petition from failing to plead the source of the damages. Tex. R. Civ. P. 90. The Railroad's notice of claim to the County, which was attached to the petition, states the Railroad suffered damages actually caused by the County's use of trucks to lay the road-base material, including the cost of removing the road-base material from the crossing. Attached to the notice is the "Initial Rail Equipment Accident/Incident Record," which includes the following damage estimates: "Cost of Clearing 20000. Medical0. 15000 26. Track, Signal, Way Structure Damage. 5000 25. Equipment." This document also states there was "Damage to track/roadbed, equipment in excess of US $6,600." The "4C's Incident Report" attached to the petition states, "COST: Estimated Crane $20,000; Trk [sic] $14,000; Equipment $5000." Under section 101.021(1), the County has waived its immunity from suit and liability to the Railroad's negligence cause of action to the extent the Railroad seeks compensation for damages actually caused by its use of the motor-driven vehicles or equipment, including any damage to the rails or the crossing actually caused by the use of the motor-driven vehicles and equipment. Accordingly, we conclude the Railroad's negligence cause of action is not barred by sovereign immunity. We resolve the County's first issue against it.
NUISANCE
In its second issue, the County asserts the trial court erred in denying its plea to the jurisdiction for the Railroad's cause of action asserting negligent nuisance. Sovereign immunity protects a governmental unit from claims of nuisance from the negligent performance of a governmental function. City of Tyler v. Likes, 962 S.W.2d 489, 504 (Tex. 1997); English, 989 S.W.2d at 374; Shade v. City of Dallas, 819 S.W.2d 578, 581 (Tex. App.-Dallas 1991, no writ). Street maintenance is a governmental function. Tex. Civ. Prac. Rem. Code Ann. § 101.0215(a)(4) (Vernon Supp. 2004). Therefore, sovereign immunity bars the Railroad's cause of action for negligent nuisance. We resolve the County's second issue in its favor. In its third issue, the County asserts the trial court erred in denying its plea to the jurisdiction for the Railroad's non-negligent nuisance cause of action. A governmental unit may be liable under article I, section 17 of the Texas Constitution for the creation or maintenance of a nuisance in the course of the non-negligent performance of a governmental function. English, 989 S.W.2d at 374; Shade, 819 S.W.2d at 581. The condition must constitute an unlawful invasion of the property or rights of others that is inherent in the thing or condition itself beyond that arising from its negligent or improper use. English, 989 S.W.2d at 374; Shade, 819 S.W.2d at 581. "Thus, if the governmental function cannot be performed non-negligently without injuring a private citizen's property, the governmental entity `must stand the loss.'" English, 989 S.W.2d at 374 (quoting Abbott v. City of Kaufman, 717 S.W.2d 927, 931 (Tex. App.-Tyler 1986, writ dism'd)).
Although the Railroad titled its cause of action "Non-Negligent Nuisance," it did not allege a cause of action for non-negligent nuisance. The Railroad alleged the County "intentionally interfered with the use and enjoyment of Plaintiff's property. In essence, by covering Plaintiff's railroad crossing with road-base material, Defendant deprived Plaintiff of its entire use of such land" The Railroad then alleged that the County's "conduct was unreasonable":
Plaintiff's railroad crossing was in clear view. Defendant was or should have been aware that using the motor-driven vehicle/motor-driven equipment to deposit road-base material onto the railroad crossing would deprive the railroad of use of the crossing that defendant's actions constituted an intention, unlawful invasion of Plaintiff's property and/or rights. Defendant intentionally invaded Plaintiff's land by purposefully depositing road-base material on its railroad crossing. . . . The existence of the road-base material covering the crossing was the proximate cause for the derailment. . . .
This pleading alleges a duty (the County knew or should have known not to put road-base material on the tracks), breach of that duty, and proximate causation of damages from the breach of duty, which is an allegation of negligence. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003). The Railroad did not allege that the governmental function at issue, street maintenance, "cannot be performed non-negligently without injuring a private citizen's property" or that the use of the road-base material on the crossing was proper. English, 989 S.W.2d at 374. The Railroad alleged only a negligent nuisance cause of action from the improper use of the road-base material, which is barred by the County's sovereign immunity. See Likes, 962 S.W.2d at 504; English, 989 S.W.2d at 374; Shade, 819 S.W.2d at 581. We resolve the County's third issue in its favor.
INVERSE CONDEMNATION
In its fourth issue, the County asserts the trial court erred in denying its plea to the jurisdiction to the Railroad's cause of action for inverse condemnation. The Railroad alleged the County's actions "constituted a taking, damaging or destroying of Plaintiff's property for or application to public use without adequate compensation having been made, in violation of Section 17 of article 1 of the Constitution of the State of Texas." Article I, section 17 provides, "[n]o person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person." Tex. Const. art. I, § 17. Although sovereign immunity bars the Railroad's negligent nuisance and non-negligent nuisance claims, it does not shield the County from an action for compensation under the takings clause. Gen. Servs. Comm'n v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001). Whether the facts are sufficient to constitute a taking is a question of law. Id.; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 933 (Tex. 1998).
To establish a constitutional taking, a party must show: (1) the State intentionally performed certain acts in the exercise of its lawful authority (2) that resulted in a "taking" of property (3) for public use. Berry v. City of Reno, 107 S.W.3d 128, 133 (Tex. App.-Fort Worth 2003, no pet.); Kerr, 45 S.W.3d at 250. "A person's property may be `taken, damaged or destroyed' and therefore require compensation if an injury results from either the construction of public works or their subsequent maintenance and operation. However, mere negligence which eventually contributes to the destruction of property is not a taking." Likes, 962 S.W.2d at 505. The State may be liable if the damage is necessarily a consequential result of an authorized, intentional act. Kerr, 45 S.W.3d at 252.
In its argument on the fourth issue, the Railroad relies on a subsequent opinion in the Kerr litigation, Kerr v. Harris County, No. 01-02-00158-CV (Tex. App.-Houston [1st Dist.] Aug. 29, 2003). However, on January 16, 2004, after the parties in this appeal had completed their briefing, the Houston First District Court of Appeals granted the motion for rehearing in Kerr v. Harris County and withdrew its August 29, 2003 opinion. Because the opinion has been withdrawn, we do not consider it. The court has not yet issued another opinion in that case.
The Railroad pleaded in the alternative to its other causes of action that the County, through its employees, the road-maintenance crew, was acting in its authority for the governmental function of road maintenance when the County "intentionally deposited road-base material on Plaintiff's railroad crossing. Defendant, in essence, used Plaintiff's land as a dumping ground for the remains of its road maintenance work." The Railroad alleged the County's piling the road-base material on the tracks damaged the Railroad's land, made the crossing unsafe, and caused the derailment.
The County argues the Railroad's cause of action is barred because the road-maintenance crew was negligent in laying the road-base material over the crossing, and a cause of action for inverse condemnation does not lie for negligence. See Tex. Highway Dep't v. Weber, 147 Tex. 628, 631, 219 S.W.2d 70, 71 (1949). The County also argues there was not a taking under article I, section 17 because the County did not authorize the dumping of the road-base material on the tracks. See English, 989 S.W.2d at 374. However, the Railroad did not plead negligence under its inverse condemnation cause of action; it pleaded that the placing of the road-base material on the tracks was an intentional act within the authority of the road-maintenance crew carrying out the governmental function of performing road maintenance. The County's arguments require that we weigh the merits of the lawsuit, a task beyond our jurisdiction on this interlocutory appeal. Brown, 80 S.W.3d at 555; Tex. Dep't of Transp. v. City of Sunset Valley, 8 S.W.3d 727, 731 (Tex. App.-Austin 1999, no pet.). In the cases on which the County relies, Weber and English, the trial courts and courts of appeals concluded on the merits there was a lack of intentional conduct, a lack of authorization, and that there was negligence. Weber, 147 Tex. at 630, 219 S.W.2d at 71 (trial court entered findings of fact and conclusions of law and concluded as a matter of law that "damages could not have resulted except from some unauthorized negligent act or omission"); English, 989 S.W.2d at 368 ("At the close of the evidence, the trial court granted English a directed verdict against the County on his inverse condemnation theory."). The cases were not before the appellate courts on interlocutory appeals of rulings on pleas to the jurisdiction. Unlike the courts in Weber and English, we must accept the facts alleged in the Railroad's petition as true and construe them in its favor. Brown, 80 S.W.3d at 555. Although the County may ultimately prevail on the merits based on proof of negligence, lack of intentional conduct, and lack of authorization, its arguments exceed the narrow jurisdictional issue before us.
The County has failed to show the trial court erred in denying the plea to the jurisdiction on the Railroad's inverse condemnation cause of action. We resolve the County's fourth issue against it.
The County did not assert in its plea to the jurisdiction, and does not assert on appeal, that the short period of time that the tracks were covered over prevents there having been a taking. Accordingly, that argument is not before us.
CONCLUSION
We reverse in part the trial court's order denying the County's plea to the jurisdiction, and we dismiss the Railroad's causes of action for nuisance and non-negligent nuisance for want of jurisdiction. We affirm the trial court's denial of the plea to the jurisdiction to the Railroad's inverse condemnation cause of action. We affirm the trial court's denial of the plea to the jurisdiction to the Railroad's negligence cause of action insofar as the Railroad alleges property damage that arises from the County's operation or use of a motor-driven vehicle or motor-driven equipment. We remand the cause to the trial court for further proceedings.