Summary
holding in case under section 101.021, negligent supervision theory cannot be advanced absent proof of an independent waiver of immunity
Summary of this case from Tavira v. Tex. Dept. of Criminal JusticeOpinion
No. 04-04-00887-CV
Delivered and Filed: June 22, 2005.
Appeal from the 111th Judicial District Court, Webb County, Texas, Trial Court No. 2004-Cvq-000915-D2, Honorable Solomon Casseb, Jr., Judge Presiding.
Reversed; Cause Dismissed As to Appellant Only.
Sitting: Alma L. LÓPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
This court's opinion and judgment of May 25, 2005 are withdrawn, and this opinion and the accompanying judgment are substituted to clarify that the underlying cause is dismissed only as to the appellant, the City of Laredo.
The City of Laredo appeals the trial court's order denying its plea to the jurisdiction. The City contends the trial court erred because the actions involved a governmental function and its immunity was not waived. We reverse the trial court's order and dismiss the underlying lawsuit as to the City of Laredo.
Background
The City solicited bids for a project entitled "Streets of Laredo Urban Mall" (the "Project"). The Project was described in the bid request as follows:
The project is a downtown enhancement project. It is limited to the reconstruction of Iturbide St. from Flores Ave. to Juarez Ave. The work includes the removal and disposal of existing sidewalk and pavement, installing new brick paver sidewalks with sidewalk expansions, installation of new pavement section using brick pavers, relocation of inlets, replacement of water and sanitary sewer lines, relocate underground private aerial utilities, installing decorative lighting poles, decorative water fountains, benches, canopies with mist cooling system, control access electrical outlets, drinking water fountains, and trees and minimal landscaping with automatic irrigation system.
The Project's specifications stated that the work covered by the specifications was subject to inspection by the City's authorized inspectors.
According to the pleadings filed by New Yorkers Apparel, Inc., a City engineer and a retained consultant, Ramos Industries, Inc., developed the plans for the Project. On or about August 19, 2002, the City awarded the construction contract to Ramos. Ramos removed the pavement and base in the area adjoining NYA's store. NYA alleges that the removal of the pavement and base caused the basement of the store to flood, thereby damaging inventory stored in the basement.
Standard of Review
We review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Texas Natural Resource Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002). A plea to the jurisdiction challenges the trial court's authority to consider the subject matter of a specific cause of action. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.-Austin 2000, no pet.). In order to establish subject matter jurisdiction, the pleader must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a ruling on a plea to the jurisdiction, we accept the allegations in the petition as true and construe them in favor of the pleader. Id.; Bexar County v. Lopez, 94 S.W.3d 711, 713 (Tex.App.-San Antonio 2002, no pet.). In addition to the pleadings, a court may also consider other relevant evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
Governmental v. Proprietary Function
Whether a city is immune from suit for damages depends on the nature of both the city's actions and the alleged claims. Cities retain immunity for governmental functions unless the Legislature has expressly waived that immunity. See Texas River Barges v. City of San Antonio, 21 S.W.3d 347, 356 (Tex.App.-San Antonio 2000, pet. denied). Cities performing proprietary functions have no immunity for their actions. See id. Governmental functions are those functions that are enjoined on a municipality by law and are given it by the state as part of the state's sovereignty, to be exercised by the municipality in the interest of the general public. See id. (citing Tex. Civ. Prac. Rem. Code § 101.0215(a)). Proprietary functions are those functions that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality. See id. (citing Tex. Civ. Prac. Rem. Code § 101.0215(b)). The Texas Tort Claims Act ("TTCA") sets out a nonexclusive list of functions that the Legislature deems governmental. See Tex. Civ. Prac. Rem. Code Ann. § 101.0215(a) (Vernon Supp. 2004-2005).
NYA contends that the City's actions with regard to the Project were proprietary because the project was intended to enhance and beautify the area and was not a mandatory project. To support its contention, NYA primarily relies on the following statement from Oldfield v. City of Houston, 15 S.W.3d 219, 226 (Tex.App.-Houston [14th Dist.] 2000, pet. denied), "Governmental functions are what a municipality must do for its citizens and proprietary functions are what a municipality may, in its discretion, perform for its inhabitants." NYA asserts that because the downtown enhancement project was an action the City chose to perform and not an action the City was required to perform, the City was engaged in a proprietary function. NYA's assertion, however, ignores the efforts made by the Legislature to classify many previous proprietary functions as governmental through section 101.0215 of the TTCA. Many of the listed functions involve actions that a city has discretion in undertaking, i.e., parks and zoos, museums and firework displays; nevertheless, the Legislature has defined those actions as governmental functions. See Tex. Civ. Prac. Rem. Code Ann. § 101.0215 (Vernon Supp. 2004-2005); see also City of San Antonio v. Butler, 131 S.W.3d 170, 178 (Tex.App.-San Antonio 2004, pet. filed) (noting city has discretion to perform or not perform many activities in connection with its governmental functions).
Included in the TTCA's list of governmental functions are street construction and design and street maintenance. See Tex. Civ. Prac. Rem. Code § 101.0215(a)(3)(4) (Vernon Supp. 2004-2005). The Texas Transportation Code defines a "sidewalk" as the portion of the street between a curb or lateral lane of a roadway and the adjacent property line which is intended for pedestrian use. Tex. Tranp. Code Ann. § 541.302 (Vernon 1999). Therefore, the construction, design, and maintenance of sidewalks is a governmental function. See Hur v. City of Mesquite, 893 S.W.2d 227, 235 (Tex.App.-Amarillo 1995, writ denied) (concluding installation of sidewalks is a governmental function).
NYA seeks to distinguish "reconstruction" from "construction" and focuses on the City's motive for undertaking the Project. This court previously has held that a city's motives in undertaking an action are not relevant to whether the function is governmental or proprietary. See Texas River Barges v. City of San Antonio, 21 S.W.3d at 357; see also Georgetown Waterpark, Ltd. v. City of Georgetown, No. 03-02-00266-CV, 2002 WL 31833727, at *3 (Tex.App.-Austin Dec. 19, 2002, no pet.) (asserting reason or motive for city's action did not change the fact that city's actions related to the governmental function of building roads). Furthermore, distinguishing between "reconstruction" and "construction" would undermine the Legislature's intent. See City of San Antonio v. Butler, 131 S.W.3d at 178. The Legislature intended for all actions relating to street construction and maintenance to be considered governmental functions. Because the reconstruction of sidewalks is related to street construction and maintenance, the actions by the City in undertaking the Project to reconstruct the sidewalks constituted a governmental function.
Waiver of Immunity
Cities retain immunity for governmental functions unless the Legislature has expressly waived that immunity. See Texas River Barges v. City of San Antonio, 21 S.W.3d at 356. In its petition, NYA asserted that its damages arose from the operation or use of motor driven vehicles or equipment that were used to remove the pavement and base and that the City maintained authority and control over Ramos, the entity that was awarded the construction contract for the Project.
Immunity is waived for property damage "caused by the wrongful act or omission or the negligence of an employee" if the property damage "arises from the operation or use of a motor-driven vehicle or motor-driven equipment." Tex. Civ. Prac. Rem. Code § 101.021(1)(A) (Vernon 1997). The Texas Supreme Court has "consistently required a nexus between the operation or use of the motor-driven vehicle or equipment and a plaintiff's injuries." Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003). "This nexus means more than mere involvement of property." Id. "Rather the vehicle's use must have actually caused the injury." Id. "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." Id.
In Hunt County v. Dallas, Garland Northeastern R.R., the Dallas court addressed the requisite nexus in a case involving road maintenance. No. 05-03-01587-CV, 2004 WL 1178609 (Tex.App.-Dallas May 28, 2004, no pet.). In that case, a road maintenance crew used motorized equipment to spread road-base material over the road in spots where the road material was thinning. Id., at *1. The crew also spread the material over the railroad tracks at a crossing, burying the tracks beneath about four inches of road-base material. Id. Later in the afternoon, a train encountered the built-up road-base material, and the engine and lead car derailed. Id. Citing Whitley, the Dallas court held that the railroad failed to establish the requisite nexus, asserting:
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., at *2-3 (citations omitted).
Similarly, in this case, the use of the motor-driven equipment to remove the pavement and base did not actually cause the flooding. Instead, the flooding was actually caused by the condition of the sidewalk and road as it existed after the removal. Although the condition may have been negligently created by the City, the motor-driven equipment did no more than furnish the condition that made the injury possible. Accordingly, the City's immunity is not waived.
Because NYA's pleadings fail to establish the requisite nexus between the operation or use of the motor-driven vehicle or equipment and NYA's injuries, we do not address whether the City's control over the employee who was operating or using the motor-driven vehicle or equipment was sufficient to give rise to a waiver of immunity. See Tex.R.App.P. 47.1 (opinions should be as brief and practicable and address issues "raised and necessary to final disposition of the appeal").
NYA asserts various claims regarding negligent supervision and negligent implementation of policy; however, NYA is required to establish an independent waiver of sovereign immunity before it can advance its negligent supervision and implementation of policy theories of recovery. City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex.App.-Dallas 2004, no pet.); Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex.App.-Corpus Christi 2002, no pet.). Because NYA has failed to state a claim for which immunity is waived under section 101.021, NYA cannot invoke a claim of negligent supervision or negligent implementation of policy. See City of Garland, 146 S.W.3d at 338; Guadalupe-Blanco River Auth., 84 S.W.3d at 342.
Conclusion
The trial court's order is reversed, and the underlying lawsuit as against the City of Laredo is dismissed for lack of jurisdiction.