Texas Department of Transportation, Appellant v. Paul Kirk, Appellee (2016)

MEMORANDUM OPINION

Paul Kirk filed suit against several parties, including the Texas Department of Transportation (TxDOT), to recover for injuries that he sustained when, as he was traveling on U.S. Highway 277 in Taylor County, he lost consciousness and his vehicle hit a guardrail.  TxDOT filed a “MOTION ․ TO DISMISS FOR LACK OF JURISDICTION AND FOR SUMMARY JUDGMENT,” and later amended that motion.  TxDOT based its motion upon a claim of sovereign immunity from suit.  After a hearing, the trial court denied TxDOT's motion but did not assign any reasons for the denial.  It is from that denial that TxDOT brings this interlocutory appeal.  Because TxDOT is protected from the suit by sovereign immunity, we reverse the order of the trial court and render judgment dismissing Kirk's claims against TxDOT.

In Kirk's amended petition, he pleaded that, on the date of the accident, he was traveling on U.S. Highway 277 in Taylor County when he began to experience dizziness and blurred vision.  He lost consciousness, and his vehicle left the highway and struck a guardrail.  A portion of the guardrail came through the passenger compartment of Kirk's vehicle and injured him.

Kirk alleged that the guardrail end terminal that he hit was an “ET–Plus” design.  In his petition, Kirk claimed that the ET–Plus guardrail end terminal was developed, manufactured, distributed, marketed, and sold at various times by certain defendants in the lawsuit, but not by TxDOT.  Originally, the ET–Plus guardrail end terminal was designed in such a way that it absorbed the impact when vehicles hit it.  Kirk claims that parties other than TxDOT made certain design alterations to the ET–Plus and that, afterward, it no longer functioned in the manner in which it was originally intended to function.  Kirk asserts that the guardrail end terminal involved in this case had the new design alterations.

Insofar as this case is concerned, as a general proposition, the doctrine of sovereign immunity protects the State from suit.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex.2004).  Sovereign immunity deprives a trial court of subject-matter jurisdiction over suits against the State or certain governmental units unless the State has consented to suit.  Id. To invoke the trial court's subject-matter jurisdiction, the plaintiff must allege facts that affirmatively demonstrate that the court has jurisdiction to hear the lawsuit.  Id. at 226.

We have jurisdiction to review an interlocutory order in which the trial court “grants or denies a plea to the jurisdiction by a governmental unit.”  Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (West 2015), § 101.001(3)(A) (West Supp.2015).  Both a plea to the jurisdiction and a motion for summary judgment are appropriate vehicles by which to challenge a trial court's subject-matter jurisdiction.  Bland Indep.  Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000).

Whether a trial court has subject-matter jurisdiction is a question of law that we review de novo.  Miranda, 133 S.W.3d at 228.  A defendant can challenge, by a motion to dismiss, whether the plaintiff has sufficiently alleged facts that demonstrate the trial court's jurisdiction to hear the case, as well as challenge the existence of jurisdictional facts.  See Mission Consol.  Indep.  Sch. Dist. v. Garcia, 372 S. W.3d 629, 635 (Tex.2012).  If, in a motion to dismiss, a defendant challenges the existence of jurisdictional facts, the trial court considers relevant evidence by the parties when necessary to resolve the jurisdictional issues raised.  Miranda, 133 S.W.3d at 227.  When no evidence is presented in connection with the motion to dismiss, the trial court rules on the motion as a matter of law.  Id. at 228.

Sovereign immunity is waived only if the legislature so provides in language that is clear and unambiguous.  Tex. Dep't of Transp. v. Perches, 388 S.W.3d 652, 654 (Tex.2012) (citing Tex. Gov't Code Ann. § 311.034 (West 2013)).  Section 101.021 of the Texas Tort Claims Act provides for waiver of immunity otherwise enjoyed by a governmental unit when, among other things not applicable here, one suffers “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.”  C iv . Prac. & Rem. § 101.021 (West 2011).

In Section 101.022(a) of the Texas Tort Claims Act the legislature addressed the extent of the duty discussed in Section 101.021 as concerns a premise defect, and in Section 101.022(b), the duty that arises from a special defect.  Legally, the difference between a premises defect and a special defect lies in the duty that the State owes to the person injured.  City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.2008).

In premise defect claims, “the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.”  C iv . Prac. & Rem. § 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 & Public Transp. v. Payne, 838 S. W.2d 235, 237 (Tex.1992).  The legislature also provided in Section 101.022(b) that the limitation of duty provided for in Section 101.022 “does not apply to the duty to warn of special defects such as excavations or obstructions on highways ․ or to the duty to warn of the absence, condition, or malfunction of [certain] traffic signs, signals, or warning devices.”  C iv . Prac. & Rem. § 101.022(b).  In special defect cases, the State owes the same duty to warn that a private landowner owes an invitee.  Payne, 838 S.W.2d at 237.  “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.”  Id.

Except for the element of willful, wanton, or grossly negligent conduct, the supreme court has laid out the elements of each of the two duties.  To establish liability, a licensee must prove the following:  (1) that there was a condition of the premises that created an unreasonable risk of harm to the licensee;  (2) that the owner had actual knowledge of the existence of the condition;  (3) that the licensee did not have actual knowledge of the existence of the condition;  (4) that the owner failed to exercise ordinary care to protect the licensee from danger;  and (5) that the owner's failure was a proximate cause of injury to the licensee.  Id.

On the other hand, an invitee must prove the following:  (1) that there was a condition of the premises that created an unreasonable risk of harm to the invitee;  (2) that the owner knew or reasonably should have known of the condition;  (3) that the owner failed to exercise ordinary care to protect the invitee from danger;  and (4) that the owner's failure was a proximate cause of injury to the invitee.  Id.

Although Kirk has made many allegations against TxDOT's codefendants, these are the only ones against TxDOT that Kirk pleaded in his First Amended Original Petition:

4.46 Based upon information and belief, Defendant Texas Department of Transportation negligently and wrongfully selected and/or installed the subject guardrail terminal in a manner, [sic] which caused and/or contributed to the subject guardrail terminal and/or guardrail components not functioning as intended.

4.47 Based upon information and belief, the Defendant Texas Department of Transportation negligently installed and maintained the subject guardrail in a way that the unit was unable to extrude in response to the collision as it was designed.  The failure to install the guardrail system was a proximate cause of the occurrence and the injuries sustained the Plaintiff.  Such negligence attributable to the agents and/or employees of the Texas Department of Transportation was a proximate cause of the injuries, damages and suffered [sic] by the Plaintiff.

We cannot find any other claims that Kirk has alleged against TxDOT in his live pleading.¹  Although a good portion of TxDOT's brief is devoted to a discussion of premises defects and special defects, an examination of Kirk's pleading reveals that Kirk did not plead a cause of action for premises defects or special defects as those concepts are outlined in Payne.  Id. We have discussed them for the sole purpose of explaining our holding that Kirk did not plead either of those causes of action.

Instead, in his amended original petition, Kirk pleaded a cause of action for which the State's immunity is not waived.  Sovereign immunity is not waived when a claim is based on “the failure of a governmental unit to perform an act that the unit is not required by law to perform.”  C iv . Prac. & Rem. § 101.056(1).  Neither is sovereign immunity waived when the claim is based on “a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit.”  Id. § 101.056(2).

In its brief, TxDOT argues that the warning on the guardrail was one chosen and approved by TxDOT in the exercise of its discretionary function and that, as such, the warning is adequate as a matter of law.  That argument includes an assertion of the theory that sovereign immunity protects TxDOT from suit in this case because the actions complained of were taken in the exercise of its discretionary functions.

The design, placement, and upgrading of guardrails involve an exercise of discretionary powers, and the State is immune from claims in relation to those types of activities.  Maxwell v. Tex. Dep't of Transp., 880 S.W.2d 461, 464 (Tex.App.— Austin 1994, writ denied);  Burnett v. Tex. Highway Dep't, 694 S.W.2d 210, 212 (Tex.App.—Eastland 1985, writ ref'd n.r.e.).  An examination of Kirk's pleading shows that the complaints that he makes against TxDOT involve an exercise of discretionary powers, and the State is immune from suit related to activities in the performance of that discretion.  We sustain TxDOT's Issue No. 1, and because we have sustained Issue No. 1, we need not address TxDOT's remaining issue.

We reverse the order of the trial court, and we render judgment dismissing Kirk's claims against TxDOT.

FOOTNOTES

1.   Kirk's petition contains various references to the Tennessee Department of Transportation and to a Ms. Carrier, but he has not explained how either of those references is relevant to this appeal, if they are.

JIM R. WRIGHT, CHIEF JUSTICE