Opinion
No. 05-11-00509-CV
Opinion Filed October 26, 2011.
On Appeal from the 422nd Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 81338-422.
Before Justices MOSELEY, LANG, and MYERS.
MEMORANDUM OPINION
Jerry, Marsha, and Jason Chambers bring this interlocutory appeal of the trial court's order granting the plea to the jurisdiction of appellee Kaufman County. The issue before us is whether governmental immunity bars appellants' claims against the County. We conclude that it does. As a result, we affirm the trial court's judgment.
I. Factual and Procedural Background
Jerry Chambers was riding his motorcycle on July 9, 2008, in Kaufman County when he was seriously injured in a collision. He was traveling eastbound on State Highway 243 when he attempted to pass three slower-moving vehicles, also traveling eastbound. The first of the slower-moving vehicles had its right turn signal on, and Chambers saw the signal. Chambers decided to pass in the left lane. The first of the slower vehicles, however, was actually turning onto Sundown Road, not into a driveway. At the moment Chambers was passing the slower-moving vehicles, a car turned left from Sundown Road onto westbound State Highway 243. That car collided with Chambers as it turned left into the westbound lane.
Chambers explained in a letter he wrote and provided as an exhibit at the hearing on the plea to the jurisdiction, "[i]t is a normal occurrence for there to be slower ( older) drivers traveling on both SH 243 and FM 429 and also because there are numerous house and cow pasture driveways ( I had my wife count them and there are 112 and that is just between SH 34 coming out of Kaufman and Sundown)."
Chambers contends that tall weeds and vegetation growing along a County-owned right-of-way easement on Sundown Road blocked both his view of cars turning on to State Highway 243 from Sundown Road and the view of motorists on Sundown Road of cars traveling on the state highway. He contends that because the weeds and vegetation blocked his view, he had no way of knowing that he was approaching an intersection and therefore should not attempt to pass other vehicles. As a result of his injuries from the collision, Chambers's right leg was amputated. Chambers, his wife Marsha, and son Jason filed suit for damages arising out of the collision, including claims against Kaufman County for failure to remove vegetation obstructing the view of motorists at the intersection. Kaufman County filed a plea to the jurisdiction, alleging appellants' claims were barred by sovereign immunity. After a hearing, the trial court granted the plea and dismissed the suit against the County. Appellants filed a motion for new trial, which the trial court denied after a hearing.
II. Issues
Appearing pro se, appellants list four issues in their brief. First, they complain that the trial court erred by granting the County's plea to the jurisdiction because there were fact issues regarding whether the County waived its immunity to suit. Second, they argue the trial court should not have granted the plea to the jurisdiction because they pleaded and presented evidence supporting all of the elements of their cause of action which the County failed to refute. Third, they contend the trial court's questioning of Jerry Chambers during a hearing changed the meaning and intent of his testimony. Fourth, they contend there are genuine issues of material fact to be decided by a fact finder, as well as cumulative reversible errors including fundamental error on the face of the record, that preclude granting the County's plea to the jurisdiction.
III. Standard of Review
Governmental immunity from suit defeats a trial court's subject-matter jurisdiction and is properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); see also Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). The existence of subject-matter jurisdiction is a question of law and we review the trial court's ruling on a plea to the jurisdiction de novo. Miranda, 133 S.W.3d at 226, 228.
A plea to the jurisdiction can be based on the pleadings or on evidence. Id. When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Id. We must look to the allegations in the pleadings, construe them in the plaintiff's favor, and look to the pleader's intent. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989). The plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court's jurisdiction to hear a case. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional plea based on evidence "generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c)." Id. at 228. That is, if the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. Id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.
Appellants also argue that the trial court's questioning of Jerry Chambers changed the meaning and intent of his testimony regarding the cause of the accident. We review the trial court's questioning of a witness under an abuse of discretion standard. Moreno v. Reliable Insulation, Inc., 217 S.W.3d 769, 772 (Tex. App.-Dallas 2007, no pet.).
Appellants appear pro se. We construe liberally pro se pleadings and briefs; however, we hold pro se litigants to the same standards as licensed attorneys and require them to comply with applicable laws and rules of procedure. In re N.E.B., 251 S.W.3d 211, 211-12 (Tex. App.-Dallas 2008, no pet.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978)). To do otherwise would give a pro se litigant an unfair advantage over a litigant who is represented by counsel. Id. at 212.
IV. Applicable Law
In Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), the court explained:
Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State's immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.
Id. at 694 n. 3 (citations omitted). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex. App.-Dallas 2009, pet. denied).
The Texas Legislature has created exceptions to the doctrine of governmental immunity which are applicable under certain conditions. See Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that governmental units are liable for "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(2) (West 2011). The Tort Claims Act recognizes liability for two types of dangerous conditions of real property, premise defects and special defects. Id. at § 101.022.
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Id. at § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner 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. State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh'g). Actual knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Constructive knowledge of the defect is insufficient. Id.
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Id.; Tex. Civ. Prac. Rem. Code Ann. § 101.022(b). 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. Payne, 838 S.W.2d at 237. In The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the court discussed the considerations relevant to a determination that a condition is a special defect:
The Legislature does not define special defect but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). In Denton County v. Beynon, we reaffirmed that conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." 283 S.W.3d 329, 331 (Tex. 2009) (citing State Dep't of Highways Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n. 3 (Tex. 1992)). Whether a condition is a special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam). In deciding this question, we have previously considered characteristics of the class of special defect, such 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. See Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). The class of special defects contemplated by the statute is narrow.
V. Application of Law to Facts
Appellants argue the tall vegetation located in the easement along Sundown Road is a special defect, or in the alternative a premise defect from which their claim arose. Accordingly, we first address whether the tall vegetation constituted a special defect for purposes of section 101.022(b) of the Tort Claims Act. As emphasized by the court in Hayes and in Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009), the special defect class is narrow. The defect must "pose a threat to `ordinary users' in the manner that an excavation or obstruction blocking the road does." Beynon, 283 S.W.3d at 332; see also Hayes, 327 S.W.3d at 116. The court in Beynon also explained that its statement in Payne that excavations and obstructions "present an unexpected and unusual danger to ordinary users of roadways" did not create an additional element that could be proven to establish a special defect. Beynon, 283 S.W.3d at 331, n. 11. Rather, the "unexpected and unusual danger" language was used "to describe the class, not to redefine it." Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases).
Here, Jerry Chambers testified that the vegetation was one of several causes of his accident. In an affidavit, he stated that the vegetation blocked his view of Sundown Road as he approached the intersection, so he was unaware that it was not safe to attempt to pass the vehicles that were slowing down in front of him. He also testified, however, that one of the vehicles in front of him that he attempted to pass was a large truck. The truck kept him from seeing the car turning left on to the state highway from Sundown Road. Also, according to Chambers' statement, the car that hit him "seemed to make an extra wide left hand turn" as it turned left, so that his efforts to move to the left shoulder of the road did not prevent the collision. Additionally, he testified that the Texas Department of Transportation was partially responsible because the portion of the state highway on which he was traveling was not marked as a no-passing zone near the intersection. Accepting his testimony as true, as we must do, the vegetation was one of the causes of his collision. His testimony does not establish, however, that the vegetation presented an "unexpected or unusual danger to ordinary users" of the roadway. See Payne, 838 S.W.2d at 238. Rather, his obstructed view was one event in a series resulting in the collision and injury. We conclude the vegetation on Sundown Road did not constitute a "special defect" for purposes of section 101.022(b) of the Tort Claims Act.
Assuming, without deciding, that the vegetation was a "premise defect" under section 101.022(a) of the Tort Claims Act, the County's duty was to not injure Chambers by willful, wanton or grossly negligent conduct. Payne, 838 S.W.2d at 237. If the County had actual knowledge of the defect and Chambers did not, the County had a duty to use ordinary care to either warn Chambers of the condition or make it reasonably safe. Id.
Chambers offered evidence that he had only been using SH 243 as a route to and from work for about a month when the accident occurred, and he was unaware of the vegetation on Sundown Road. However, appellants did not offer evidence that the County had actual knowledge of the condition presented by the vegetation. Further, appellants do not argue that other accidents had occurred at the intersection or that the County had notice the vegetation presented a dangerous condition before the accident occurred. See Hayes, 327 S.W.3d at 118 (absence of prior reports of injuries or accidents at same location is "just one factor to consider," but when determining whether premises owner had actual knowledge of dangerous condition, courts generally consider whether premises owner has received reports of prior injuries or of potential danger represented by condition). Instead, appellants claim that pursuant to section 251.004 of the Texas Transportation Code, the County had a duty to inspect roadways once a month, and therefore would have seen the tall vegetation in the course of the inspection. See Tex. Transp. Code Ann. § 251.004(b) (West 1999) (county commissioner serving as road supervisor shall supervise public roads in commissioner's precinct "at least once per month"). As noted above, however, constructive notice is not sufficient. Tennison, 509 S.W.2d at 562. Even had the County observed the vegetation, appellants did not offer evidence that the County realized it presented a dangerous condition. See Sipes, 949 S.W.3d at 521-22 (evidence that State inspected grass periodically was not evidence State had knowledge of dangerous condition). Because appellants did not establish that governmental immunity was waived by the County, we decide against appellants on their first two issues.
Appellants state their third issue as follows:
Can the Trial Court ask a witness to CHANGE their testimony concerning what the witness actually saw and can the Trial Court ask a witness to Agree with the Trial Court's statements which are exactly the opposite of what the witness testified to just moments before the Trial Court ask[ed] the ambiguous question in an attempt to get the witness to completely CHANGE the meaning and intent of the witness' prior testimony?
Appellants contend the trial court would not allow Jerry Chambers to explain that his view of the car that hit him was blocked not only by a large truck, but also by the vegetation. Appellants complain the trial court asked questions at both the hearing on the plea to the jurisdiction and at an earlier hearing on a motion for new trial of appellants' claims against another defendant. Appellants contend these questions resulted in the trial court asking Jerry Chambers to change his testimony. We disagree.
The record of the hearings shows the questions from the judge about the large truck were made during extensive testimony from Jerry Chambers and argument by Marsha Chambers about the circumstances of the accident, including the location and condition of the vegetation on the date of the accident, whether the vegetation had been recently mowed, whether the County and Chambers were aware of the vegetation, and whether the vegetation blocked Jerry Chambers's view of Sundown Road.
The record reflects appellants did not object at the hearings to the trial court's questioning of Jerry Chambers or to the form or substance of particular questions, and therefore did not preserve their complaint. See Johnson v. Hawkins, 255 S.W.3d 394, 398 (Tex. App.-Dallas 2008, pet. denied) (citing Tex. R. App. P. 33.1(a) and Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam)). Nevertheless, on this record, we conclude the trial court did not abuse its discretion in its questions to Jerry Chambers. See Moreno, 217 S.W.3d at 772. We decide against appellants on their third issue.
In their fourth issue, appellants state:
Can the judgment of the Trial Court which granted the Plea to Jurisdiction still stand if Genuine Issues of Material Fact Questions Existed and these Issues were not placed before a Fact Finder and therefore the Trial Court made Reversible Errors as well a[s] Cumulative Errors and even One Fundamental Error which is obvious on the face of the transcript records?
Appellants' arguments on this issue include their contentions that the County had a duty to maintain its right-of-way easement so as not to willfully and wantonly create an unreasonable risk of harm to users of the highway; the County had knowledge of the defect presented by the vegetation because of its duty to supervise roads at least once a month; the County received notice of the claim; the County had a duty to comply with federal highway vegetation control standards; the premise defect was a proximate cause of Jerry Chambers's injury; the accident was foreseeable; and the injured party cannot be charged with knowledge of the hidden intersecting roadway. To the extent these arguments apply to the trial court's ruling on the County's plea to the jurisdiction, we have considered them above. Because we have concluded that the County's governmental immunity has not been waived for appellants' claims, appellants' fourth issue is decided against them.
VI. Conclusion
Because governmental immunity bars appellants' claims against Kaufman County, we affirm the trial court's order granting the County's plea to the jurisdiction.