CITY OF GARLAND TEXAS v. BENJAMIN DAVID PENA (2025)

OPINION

Reverse and Render, and Opinion Filed January 15, 2025

The City of Garland appeals from the trial court's order denying its plea to the jurisdiction, contending the trial court erred because appellee Benjamin Pena's pleadings failed to affirmatively demonstrate that the Texas Tort Claims Act waived the City's governmental immunity as to Pena's personal injury claims. We reverse the trial court's order, sustain the plea to the jurisdiction, and render judgment that Pena's claims against the City are dismissed for want of jurisdiction.

I. Background

A detailed summary of the procedural background of this litigation is necessary to explain the resolution of this appeal.

In 2019, Pena brought suit against two individuals (Anibar Rodriguez and the owner of the truck) for injuries he sustained while working for a temporary staffing agency at the City's Charles Hinton Landfill. Pena alleged Rodriguez was emptying a dump truck at the landfill when Rodriguez backed over him and crushed him.

In June 2020, Pena filed a first amended petition in which he added the City as a defendant, asserting claims for negligence and negligence per se, injury by premises defect, and gross negligence. He nonsuited his claims against the two individuals the next month. In July 2020, the City answered and filed a plea to the jurisdiction, arguing Pena had failed to allege a valid waiver of immunity.

In February 2021, Pena filed a third amended petition that was the live pleading when the trial court first granted the City's plea to the jurisdiction. Pena alleged the landfill—which was owned, operated, and controlled by the City—had a constant stream of various sorts of vehicles. At the time of the injury, Pena had been placed at the landfill by his staffing agency and was picking up trash there when a dump truck, driven by Rodriguez, backed into him and crushed him. Pena alleged a City employee, Bobby Dennis, “negligently signaled to Rodriguez and instructed Rodriguez to back up when Pena was clearly in the path of Rodriguez's dump truck.” Pena asserted Dennis “controlled the path of Rodriguez's dump truck” and thus, used the vehicle “by putting it or bringing it into action or service for a given purpose.” Pena alleged Rodriguez was not licensed to drive the dump truck, the truck's back-up lights and audible warning device were not working, and the dump truck was overweight when it was admitted to the landfill.

In his premises liability claim, Pena alleged he was injured because the landfill was unreasonably dangerous due to the high volume of traffic, the City's “lack of control of the direction of the traffic,” and the City's failure to ensure vehicles entering and leaving the premises had adequate safety devices to warn pedestrians. He generally alleged the City had actual knowledge that the condition of the landfill was dangerous. In his negligence claim, Pena alleged the City acted negligently by failing to maintain a safe environment; maintaining an unsafe environment that was unsafe to human life; failing to correct a known hazardous condition that had the potential to seriously injure guests; allowing a known dangerous condition to exist and threaten the safety, rights, and welfare of all persons; failing to provide adequate safeguards to protect all persons; failing to promulgate, implement, enforce, and/or ensure compliance with adequate safety procedures, policies, and practices; failing to adequately warn Pena of a dangerous condition on the premises; failing to adopt and enforce warnings against hazards for all persons on the premises; failing to take all reasonable precautions for the safety of all persons on the premises; failing to correct a known hazardous condition that had the potential to seriously injure person and/or employees and/or visitors; allowing a known dangerous condition to exist and threaten the safety, rights, and welfare of all persons staying in the hotel [sic] in question; allowing unsafe vehicles to enter the premises; and negligently warning of unsafe conditions.

In his negligent operation or use of a motor vehicle claim, Pena alleged the City improperly operated or used a motor vehicle because the City's employee controlled ingress to and egress from the dump site and directed Rodriguez to back into the area where Pena was working. Pena asserted that Dennis “negligently instructed Rodriguez to use his vehicle to back up and Dennis controlled Rodriguez's vehicle to back into and crush Pena.”

The City's plea to the jurisdiction argued Pena failed to plead facts demonstrating a valid waiver of immunity. The trial court granted the City's plea to the jurisdiction, and Pena appealed.

This Court agreed with the trial court and affirmed the order granting the plea to the jurisdiction but remanded to give Pena an opportunity to amend his pleading. See Pena v. City of Garland, No. 05-21-00611-CV, 2021 WL 6143710 (Tex. App.—Dallas Dec. 30, 2021, no pet.) (mem. op.). As to Pena's premises liability cause of action, the Court concluded Pena's pleadings did not contain sufficient facts affirmatively demonstrating the trial court's jurisdiction by alleging a valid waiver of immunity because the pleading made bare allegations the City had actual knowledge of the allegedly dangerous condition, which were insufficient. Id. at *3. As to Pena's negligence claim, the Court concluded it failed to identify any tangible personal property and to allege a causal nexus between the injury and a condition or use of tangible personal property; thus, the cause of action did not contain sufficient facts affirmatively demonstrating the trial court's jurisdiction by alleging a valid waiver of immunity. Id. at *4. Finally, as to Pena's claim regarding the operation or use of a motor vehicle, the Court concluded the pleading failed to contain sufficient facts affirmatively demonstrating the trial court's jurisdiction by alleging a valid waiver of immunity because there was no factual allegation any City employee operated or used the truck in question. Id. at *6. Accordingly, the Court affirmed the trial court's order granting the City's plea to the jurisdiction. Id. However, because the Court further concluded that the pleadings did not affirmatively negate the existence of jurisdiction and that the record did not show Pena had a full and fair opportunity in the trial court to develop the record and amend his pleadings, the Court remanded the case to the trial court to afford him an opportunity to amend his pleading. Id.

On remand in the trial court, Pena filed his fifth amended petition. He alleged the landfill is a “beehive of activity and has all types of drivers present including inexperienced homeowners in their personal vehicles and professional haulers with commercial licenses.” The landfill “has a constant stream of vehicles,” including “private vehicles, automatic dump trailers and vehicles, and non-automatic dump vehicles.” Pena made additional allegations regarding the City's knowledge of conditions at the landfill and the circumstances of his injury. He alleged that,

[t]he CITY has recognized that the Hinton Landfill is a dangerous place. According to the CITY's website, “Children under the age of 12 must remain inside the vehicle.” And, because it is unsafe to be distracted while at the landfill, the CITY's website instructs visitors: “No cell phone use on landfill property.”[ ] In further recognition of the dangerous conditions at the Landfill, the CITY created a “safe” area for residential customers that is separated from the landfill working site. This area is called the “Citizens' Convenience Center.” According to the CITY'S website, “The Citizens' Convenience Center was created to offer our residential customers only a safe, convenient place at the Hinton Landfill to unload solid waste.”

Pena alleged the City created a brochure for the safe area stating customers should wear closed-toe shoes, refrain from smoking, keep children under twelve inside their vehicles, and observe a speed limit of twenty miles per hour. Pena further alleged:

To keep the Citizens' Convenience Center safe for citizens, the visitor's map contains two speed limit signs ․ and instructs: “No trailers accepted in this area,” and “Private waste haulers and customers with commercially generated waste must go to landfill working site.”[ ] By implication, the “landfill working site” is NOT safe; it is the actual landfill itself. And, unlike the Citizens' Convenience Center, the landfill working site does not have clearly defined and navigable roadways or signage. As the bottom left corner of the visitor's map below appears to demonstrate, entering the landfill working site requires one to leave the roadway. Further, there are mounds of trash and waste, and visibility is impaired.

At the time of the incident PENA, an employee of AMS, was on the premises as a temporary worker picking up loose trash at the “landfill working site”—that is, NOT at the safe Citizens' Convenience Center. The CITY instructed PENA to pick up loose trash in this area. PENA was wearing a hoodie and listening to music with a wireless earbud, which a CITY employee told him he was permitted to do. The CITY did not instruct PENA about the dangers of the “landfill working site” described in paragraph 4.2 above.

(Footnote omitted).

The next part of Pena's petition reiterated what he previously alleged: the dump truck driver, who was not properly licensed, backed into Pena while attempting to unload “brick trash”; the dump truck's back-up lights and audible back-up warning were not operable, and the truck was overweight. He alleged the landfill working site was unreasonably dangerous due to the high volume of traffic, the layout of the traffic way leading to the dumping area, the lack of traffic signage, the lack of marked lanes for vehicles, the rubble and debris accumulated at the dump site, and the many types of vehicles and drivers using the landfill. Pena further alleged:

Because of the congestion of traffic and the lack of signage and the volume of traffic, the City of Garland actually knew that the condition was dangerous. In fact, the CITY created a safe, speed-regulated and navigable area known as the Citizens' Convenience Center for residential customers that was separate from the dangerous landfill working site. Further, in the landfill working site, the CITY had delegated one of its employees to control ingress and egress of motor vehicles and to signal to and control truck drivers when it was safe to back up and dump their loads of trash. Thus, the CITY OF GARLAND controlled not only the premises but the operation and use of motor-driven vehicles on its property as well.

The CITY knows how to make the landfill working site safer because it created the clearly designated, speed-regulated and navigable Citizen's Convenience Center. But the CITY chose to not make the landfill working site safer. Thus, the CITY had a duty to warn PENA of the dangers present at the landfill working site. Though its website states, “No cellphone use on landfill property,” the CITY never gave PENA similar warnings or instructions. He was never warned that he should not listen to music nor that the CITY would permit entry of commercial trucks with broken or nonoperational back-up warning signals and lights. In fact, PENA was not given any substantive safety warnings or training by the CITY. A CITY employee even told PENA he was allowed to listen to music on the landfill working site while he worked.

Pena alleged Dennis negligently signaled to Rodriguez, instructing him to back up when Pena was clearly in the path of the dump truck. The dump truck was on City property, was only permitted to enter the landfill with the City's permission, and “was subject to the CITY's control while there.” Thus, Pena alleged, Dennis used the vehicle by “putting it or bringing it into action or service for a given purpose.”

Pena again asserted causes of action for premises liability and personal injury arising from the negligent operation or use of a motor vehicle; he abandoned the negligence claim alleged in previous petitions. Under his cause of action denominated “Injury by Premises Defect,” Pena alleged he was injured as a result of a condition on the City's premises that posed an unreasonable risk of harm. He alleged the landfill

is unreasonably dangerous due to the high volume of traffic, the lack of control of the direction of the traffic, the lack of visibility (due to trash mounds and other vehicles) the failure to provide signage for drivers, the failure to designate marked lanes for traffic, the failure of CITY OF GARLAND to ensure that vehicles entering and leaving the premises have adequate safety devices to warn pedestrians, including warning signals and reverse or backup lights and backup audible warning devices.

As to the City's knowledge, Pena alleged the City had

actual knowledge of a high volume of traffic, the varying degree of skills of the drivers who visited the landfill, the various conditions and safety equipment of all the different types of vehicles that its employees allowed to enter, the general lack of visibility the drivers had when they were unloading, and the unfamiliarity of the layout of the premises by many of the drivers who visited the landfill. In recognition of these dangers, the CITY's website states that children under 12 must remain inside a vehicle and cellphone use is not permitted on landfill property.

The City created the above-described Citizens' Convenience Center, Pena alleged, to “prevent citizens from being exposed to known dangers.” This citizens' center has “clearly delineated, navigable roads and does not permit trailers or commercial haulers.” Further, Pena alleged, the City—because of the dangerous conditions prevailing in the landfill working site—delegated employees to inspect vehicles entering the landfill to make sure they had proper registration, safety, and warning devices, to ensure drivers are properly licensed, and to direct traffic at the dump site.

Pena alleged he did not have actual knowledge of the condition on the premises that posed an unreasonable risk of harm because the condition of the imminent hazard was not perceptible to him. The City, he alleged,

had a duty to make the premises safe, either by adequately warning of the dangerous condition or by eliminating the risk of harm, but Defendant CITY OF GARLAND breached its duty by doing neither. Though the CITY has acknowledged that it is unsafe to use cellphones on landfill property, the CITY did not give PENA similar warning and did not warn PENA that it was unsafe to listen to music while he was working in the landfill working site. To the contrary, CITY employee told Plaintiff he was permitted to listen music. Further, the CITY did not warn PENA that it may permit entry into the landfill of truck that lacked working back-up lights and signals. The CITY also failed to warn PENA of the dangers posed by the landfill working site described in paragraph 4.2 above.

As to his second cause of action against the City, “Injury by Motor Vehicle,” Pena alleged the City employed Dennis to direct ingress and egress at the landfill; at the time of the injury, Dennis was controlling the use of motor vehicles within the course and scope of his employment for the City; and Dennis controlled, directed, and instructed the dump truck to back directly into the path where Pena was working, causing Pena to be injured. He further alleged:

Section 101.021(1) of the Texas Tort Claims Act states that a governmental unit in the state may be liable for personal injury proximately caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if the personal injury arises from the operation or use of motor-driven vehicle. “Arises from” does not require that a government employee be actively operating the vehicle at the time of the incident. There is no bright-line rule that a governmental employee must always be personally driving a motor-driven vehicle in order to meet the “operation” or “use” or “control” of a motor-driven vehicle requirement necessary for a waiver of immunity under the TTCA. Dennis was operating the vehicle in that he put or brought into action the vehicle for a given purpose—that is dumping the trash that the CITY was receiving. The dump truck was on CITY's property, was allowed to enter the landfill working site only with the CITY's permission, and was under the control of the CITY'S delegated employee, Dennis. That control is demonstrated by the fact that the operator of the dump truck did exactly what Dennis directed him to do, resulting in Plaintiff's injuries. Whether a plaintiff's personal injuries arise from the operation or use of a motor-driven vehicle by a governmental employee is inherently fact specific and to be decided by a jury.

The City filed another plea to the jurisdiction in which it argued that, despite Pena's additional allegations in his fifth amended petition, he still failed to affirmatively demonstrate a waiver of immunity. It supported its plea with deposition testimony from Rodriguez, the dump truck driver, as it had done with the first plea to the jurisdiction. Rodriguez testified that, after first interacting with Pena, he honked at Dennis, who waved his hand towards a “big brick pile.” Rodriguez said he “already knew [he] had to go there,” but he “just wanted to make sure.” He understood Dennis's hand wave to mean he should back up to the brick pile. Rodriguez took a curved path to back up to the pile; the truck did not have a rearview camera but Rodriguez was checking his mirrors as he reversed the vehicle. He did not see Pena before he hit him.

The trial court held a hearing on the plea to the jurisdiction and, on January 17, 2024, signed an order denying the City's plea to the jurisdiction. This appeal followed.

II. Discussion

A. Governmental immunity, the TTCA, and the Standard of Review

As political subdivisions of the State, municipalities are protected from suit by governmental immunity unless that immunity has been waived by the constitution or state law. City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). Because governmental immunity from suit defeats a trial court's jurisdiction, it may be raised by a plea to the jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). When a governmental entity challenges jurisdiction on this basis, “the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver of immunity.” Ryder Integrated Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015). Statutory immunity waivers must be expressed in “clear and unambiguous language.” Byrdson Servs., LLC v. S. E. Tex. Reg'l Planning Comm'n, 516 S.W.3d 483, 485 (Tex. 2016). Whether a plaintiff has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, 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 cause. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend.

Id. at 226–27 (citations omitted).

While we construe the pleadings in favor of the plaintiffs and look to the pleaders' intent, Harris Cnty. v. Annab, 547 S.W.3d 609, 612–13 (Tex. 2018), we also recognize that “any purported statutory waiver of sovereign immunity should be strictly construed in favor of retention of immunity,” PHI, Inc. v. Tex. Juvenile Justice Dep't, 593 S.W.3d 296, 303 (Tex. 2019).

As pertinent here, the Texas Tort Claims Act (TTCA) waives immunity 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 § 101.021. When a claim arises from a premises defect, “the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property.” Id. § 101.022(a).

B. Premises liability or negligent activity?

1.

The City first argues that the true nature of Pena's premises liability claim lies in negligence because, it argues, “[t]he danger encountered by Mr. Pena in this situation was one of a negligent driver, not a premises defect.” We agree with the City's analysis.

If an injury was caused by a condition, rather than by an activity, it is a premises liability claim. If it was caused by an activity, it is a negligence claim. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (“[A] person injured on another's property may have either a negligence claim or a premises-liability claim against the property owner. When the injury is the result of a contemporaneous, negligent activity on the property, ordinary negligence principles apply. When the injury is the result of the property's condition rather than an activity, premises-liability principles apply.”); United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (2017) (“Negligence and premises liability claims thus are separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor. Because negligence and premises liability claims are based on independent theories of recovery, we have held that they are not interchangeable.” (citations omitted)).

Pleading alternative theories of liability does not change this analysis. If the injury was caused by a condition rather than by an act or activity, it is a premises case and is governed by premises liability principles; if the injury was caused by an act or activity, it is a negligence case governed by negligence principles. Pena is certainly entitled to make alternative claims for relief. See TEX. R. CIV. P. 48. However, Pena does not plead the mechanism of injury alternatively. Under both his premises claim and his negligence claim, he alleges he was injured by a backing dump truck driven by Rodriguez. Pleading alternatively to invoke both premises and negligence would require, for example, pleading that the injury was caused by being hit by a truck or, alternatively, that the injury was caused by a specific defect of the premises (such as a hole in the ground into which he fell).

Additionally, a plaintiff may not expand the Texas Tort Claims Act's limited waiver through artful pleading; thus, in determining whether a plaintiff has stated a claim for condition or use of tangible personal or real property, “we look to the true nature of the dispute.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506, 513 (Tex. 2019). This Court recently explained the distinction between negligent activity and premises liability claims as follows:

The line between negligent activity and premises liability is sometimes unclear, since almost every artificial condition can be said to have been created by an activity. See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). The policy undergirding the distinction between the two theories is that negligent activity encompasses a malfeasance theory based on affirmative, contemporaneous conduct that caused the injury, whereas premises liability encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe. See id. Negligent activity concerns “simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done” while premises liability concerns “the failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about.” Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998) (internal quotation omitted). To determine on which side of the line a claim falls, Texas courts look to whether the activity that caused the condition was ongoing or had ceased when the injury occurred.

Flores v. Oncor Elec. Delivery Co., LLC, 697 S.W.3d 465, 478–79 (Tex. App.—Dallas 2024, no pet. h.).

We conclude that, according to all the pleadings, the injury alleged was caused by an act or activity, namely the backing up of the dump truck by Rodriguez. It was not caused by the condition or use of tangible real property. This is a sufficient reason of itself to conclude there is no section 101.021(2) waiver of immunity. We will nonetheless address other reasons to find the City did not waive its immunity due to an injury “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.”

2.

“The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). As a general rule, a person in possession of a premises has no legal duty to protect another from the acts of a third person. See generally id. (“As a general rule, a person has no legal duty to protect another from the criminal acts of a third person or control the conduct of another.”); Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998). The Supreme Court has provided exceptions to this general rule, significantly in the case of the criminal acts of third persons. Timberwalk, 972 S.W.2d at 756 (“An exception is that ‘[o]ne who controls ․ premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.’ ”) Such a case is ordinarily a premises liability claim governed by premises liability principles. Id. at 753.

Neither the Supreme Court nor this Court has extended that exception to the general rule to cover the negligent acts of third persons, as opposed to the criminal acts of third persons. We decline the opportunity to do so here.

Once again, the injury alleged was caused by the act or activity of Rodriguez in backing the dump truck into Pena. The City has no duty sounding in premises law to control the acts of Rodriguez in driving his vehicle. The action against the landowner City is not governed by principles involving a condition or use of tangible real property. Section 101.021(2) waiver cannot be found in the actions of Rodriguez negligently backing the truck into Pena.

3.

The City contends that, even if Pena could assert a premises defect claim, his pleading falls short of alleging facts to support waiver of the City's immunity. The City argues specifically that (1) Pena makes only bare allegations the City had actual knowledge of any dangerous condition, and (2) Pena failed to establish that he did not have knowledge of any dangerous condition.

As we stated in the first appeal in this case:

When a claim arises from a premises defect, “the governmental unit owes to the claimant only the duty the private person owes to a licensee on private property․” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). That duty consists of not injuring the licensee through willful, wanton, or grossly negligent conduct,[ ] and to either warn the licensee or make reasonably safe an unreasonably dangerous condition of which the owner has actual knowledge and the licensee does not. See Dallas County Hosp. Dist. v. Bravo, 05-20-00640-CV, 2021 WL 822916, at *3 (Tex. App.—Dallas Mar. 4, 2021, no pet.) (mem. op.) (citing City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.)). The licensee must show that the landowner actually knew of the dangerous condition at the time of the accident, and not merely that a dangerous condition could develop over time. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 392 (Tex. 2016). “Hypothetical knowledge will not suffice.” Id. “Additionally, that the owner could have done more to warn the licensee is not direct evidence to show that the owner had actual knowledge of the dangerous condition.” Id. “Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition.” Id. (citation omitted).

Pena, 2021 WL 6143710, at *3 (footnote omitted).

Pena alleges he was injured as a result of the conditions on the landfill that posed an unreasonable risk of harm. Those conditions included an absence of “control of or direction to the drivers who were unloading all types of materials from all types of vehicles in a very disorderly environment”; “a high volume of traffic, the lack of control of the direction of the traffic, the lack of visibility (due to trash mounds and other vehicles), the failure to provide signage for drivers, the failure to designate marked lanes for traffic”; and the failure of the City to ensure that vehicles entering the premises have adequate safety devices to warn pedestrians of their movement.

As described above, Pena also alleges additional facts in his fifth amended petition relating to whether the City had actual knowledge the landfill was dangerous at the time of the accident. This centers on allegations that the City created a “safe zone” for residential customers—the Citizens' Convenience Center—to unload solid waste, and that the City publicized certain precautions on its website that were never communicated to Pena. The citizens' center contained speed limit signs, “clearly defined and navigable roadways,” and was governed by special safety rules. By contrast, Pena alleges, the landfill working site where he was injured did not have such safety measures, signage, or clearly defined roads, and instead contains “mounds of trash and waste,” impairing visibility. Further, Pena alleges a City employee told him he was permitted to listen to music with earbuds—which he did—and that, relatedly, while the City's website states that cellphone use at the landfill is prohibited, the City never communicated to him similar warnings or instructions.

In other words, in his most recent petition, Pena goes to great lengths to plead that the Charles Hinton Landfill is a dangerous place and that there are safer ways to operate the facility. However, that extensive pleading still does not allege a premises liability action, nor does it demonstrate the actual knowledge needed to establish section 101.021(2) waiver.

In Reyes v. City of Laredo, 335 S.W.3d 605, 606 (Tex. 2010), a person drowned when a creek overflowed the street she was driving on during a torrential rainstorm, and her estate sued the city for wrongful death alleging premises defect. The city was aware flooding occurred on the road in question in the past during heavy rainfall but had no actual knowledge of flooding at the time of the incident—the most that could be inferred was that the city knew the creek was rising and there was going to be a problem at some point. Id. at 609. The Supreme Court stated that “[a]wareness of a potential problem is not actual knowledge of an existing danger” and concluded that the record did not show the city knew the creek had flooded at the time of the accident. Id.

The principle explained in Reyes applies to this case. Pena's argument here is that it can be reasonably inferred the City actually knew dangerous conditions prevailed in the landfill because it established safety-related rules for the facility, which allegedly were never communicated to Pena, and because the City had remedied those conditions on the part of the landfill open to the general public.

What Pena pleads, however, is that the City had actual knowledge of the general danger of the landfill, not actual knowledge of a specific condition posing an unreasonable risk of harm that caused him injury. Again, Pena has failed to sufficiently plead facts giving rise to section 101.021(2) waiver.

4.

Additionally, there are public policy reasons why it cannot suffice for a plaintiff to merely plead and prove a premises is, in and of itself, dangerous or that there are safer ways to operate the facility. Were that to be allowed, every activity a private or public landowner allowed or contracted for on its premises would open the landowner to premises liability for all injuries occurring on the premises. Every construction jobsite is a dangerous place; every road maintenance project is an injury waiting to happen; water treatment and sewage treatment facilities are, in and of themselves, dangerous. Accidents involving injury and death occur on city-owned roads every day. Are cities to be seen as waiving their immunity via the TTCA for all injuries occurring on these premises because the premises themselves are dangerous and the city has knowledge of that dangerousness? The extensive body of premises liability case law in this state answers that question in the negative. To plead (and ultimately prove) premises liability in these circumstances—and therefore to demonstrate waiver of sovereign immunity—a plaintiff must point to a specific condition of the premises that posed an unreasonable risk of harm, of which the City had actual knowledge, and which caused the injury. Pena did not do so.

Therefore, we conclude that Pena failed to plead sufficient facts to allege his injuries were caused by a condition or use of tangible real property such that the City would, were it a private person, be liable to Pena according to Texas law. We now turn to consider Pena's operation or use of a motor vehicle claim, which the City similarly challenges.

C. Negligent operation or use of a motor vehicle claim

The TTCA waives immunity for personal injury caused by the wrongful act or omission or the negligence of an employee acting within the scope of employment if the personal injury “arises from the operation or use of a motor-driven vehicle” and the employee would be personally liable to the claimant. TEX. CIV. PRAC. & REM. CODE § 101.021(1). The Supreme Court has defined “use” as “to put or bring into action or service; to employ for or apply to a given purpose,” and “operation” as “a doing or performing of a practical work.” PHI, Inc., 593 S.W.3d at 303.

In considering Pena's claim previously, we followed the First District Court of Appeals' decision in City of Sugar Land v. Gaytan, No. 01-18-01083-CV, 2020 WL 2026374 (Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.) (mem. op.). In that case, the plaintiff was riding a bicycle during a triathlon when a police officer signaled to a private driver to proceed through an intersection; the driver entered the intersection and then paused in the lane where Gaytan was bicycling. Gaytan struck the driver's car, was injured, and sued the City of Sugar Land. Id. at *1. The court of appeals concluded Gaytan failed to allege facts demonstrating Sugar Land's law enforcement officers' conduct in directing or controlling traffic constituted the operation or use of a motor vehicle as required for waiver of immunity under the TTCA. Id. at *5–6. The court of appeals also noted that, “in reaching this conclusion, we in no way suggest a bright-line rule that a governmental employee must always be personally driving a motor-driven vehicle in order to meet the ‘operation’ or ‘use’ of a motor-driven vehicle requirement necessary for a waiver of immunity under the TTCA.” Id. at *6. Instead, the court said, whether a plaintiff's injuries arise from the operation or use of a motor vehicle by a governmental employee “is inherently fact specific.” Id. (citing Diaz v. Canutillo Indep. Sch. Dist., 311 S.W.3d 588, 594 (Tex. App.—El Paso 2010, no pet.)).

We applied Gaytan and concluded as follows:

Pena does not allege that any City employee drove the truck that hit him or any governmental vehicle was involved in the ultimate collision in which [he] was injured. See id. at *4. Rather, Pena alleges he was hit by a truck driven by Rodriguez who maintained complete control over his own vehicle. The evidence shows a City employee waived his hand toward Rodriguez, and Rodriguez interpreted that act as a signal to back up his truck to an area where he already knew he needed to go. Following the precedent of Gaytan, we conclude Pena has not alleged facts demonstrating the City employee's conduct in waiving his hand to Rodriguez constitutes the “operation” or “use” of a motor-driven vehicle as required for waiver of immunity under the TTCA. See id. at *6 (“Gaytan has not alleged facts that demonstrate that the City's law enforcement officers' direction or control of traffic constituted ‘operation’ or ‘use’ of a motor-driven vehicle.”). Construing Pena's pleading liberally in his favor, we conclude his third cause of action does not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction by alleging a valid waiver of immunity.

Pena, 2021 WL 6143710, at *6.

We turn now to consider whether Pena's fifth amended petition contains sufficient facts affirmatively demonstrating the trial court's jurisdiction by alleging a valid waiver of immunity. As described above, in this updated pleading, Pena again generally alleges the City employed Dennis to direct the ingress and egress of traffic at the landfill, and Dennis negligently instructed Rodriguez to use his vehicle to back up and into Pena. He alleges Dennis was controlling, directing, and instructing Rodriguez in signaling to him to back up. After reviewing the current pleading and the pleading we reviewed previously, we observe that the following passage in the fifth amended petition is the only pertinent allegation not found in the third amended petition:

Dennis was operating the vehicle in that he put or brought into action the vehicle for a given purpose—that is dumping the trash that the CITY was receiving. The dump truck was on CITY property, was allowed to enter the landfill working site only with the CITY's permission and was under the control of the CITY'S delegated employee, Dennis. That control is demonstrated by the fact that the operator of the dump truck did exactly what Dennis directed him to do, resulting in Plaintiff's injuries.

These allegations merely reiterate, albeit in somewhat different words, what Pena previously alleged: Dennis directed Rodriguez to back up and into the area Pena was working, and Rodriguez did so, crushing Pena. As described above, given these allegations, we previously concluded Pena had not alleged facts demonstrating the City employee's conduct in waiving his hand to Rodriguez constituted the “operation” or “use” of a motor-driven vehicle as required for section 101.021(1) waiver of immunity. See Pena, 2021 WL 6143710, at *6.

Because Pena's allegation in the fifth amended petition is substantially similar to his previous allegation, the same question of law is before us again. The law of the case doctrine is that principle under which questions of law decided on appeal to a court of last resort will govern the case throughout its subsequent stages. Orca Assets, G.P., L.L.C. v. JP Morgan Chase Bank, N.A., No. 05-22-00292-CV, 2024 WL 1171375, at *8 (Tex. App.—Dallas Mar. 19, 2024, pet. denied) (mem. op.). Pena did not previously challenge before the Supreme Court our conclusion on the operation or use of motor vehicle claim, so we are the court of last resort for purposes of the application of this doctrine. Paniagua v. Weekley Homes, LLC, No. 05-19-00439-CV, 2024 WL 4600206, at *2 (Tex. App.—Dallas Oct. 29, 2024, no pet. h.) (mem. op.). Accordingly, we apply the law of the case doctrine and follow our prior conclusion that Pena has failed to allege sufficient facts to affirmatively demonstrate the trial court's jurisdiction by alleging a valid waiver of immunity, and we reverse the trial court's order denying the City's plea to the jurisdiction.² See Pena, 2021 WL 6143710, at *6.

D. Opportunity to Replead

Pena was previously provided a reasonable opportunity to amend his pleadings, after the City's first plea to the jurisdiction and Pena's appeal. The record shows he has filed five amendments to his petition. We conclude Pena has had more than a sufficient opportunity to plead facts giving rise to jurisdiction. See Miranda, 133 S.W.3d at 226–27. We accordingly render judgment granting the plea to the jurisdiction without remanding for further pleading amendments.

III. Conclusion

Because Pena fails to allege facts sufficient to plead a waiver of the City's sovereign immunity, either on the premises claim or on the motor driven vehicle claim, we

1. reverse the trial court's denial of the City's plea to the jurisdiction; and

2. render judgment granting the plea to the jurisdiction and dismissing Pena's claims against the City for want of jurisdiction.

JUDGMENT

Opinion delivered by Justice Lee. Justices Breedlove and Kennedy participating.

In accordance with this Court's opinion of this date, we REVERSE the order of the trial court denying the City of Garland's plea to the jurisdiction. We RENDER judgment granting the plea to the jurisdiction and dismissing Benjamin Pena's claims against the City for want of jurisdiction.

It is ORDERED that appellant City of Garland recover its costs of this appeal from appellee Benjamin Pena.

Judgment entered this 15th day of January, 2025.

FOOTNOTES

2.   Because we reverse the trial court's denial of the City's plea to the jurisdiction as to both of Pena's claims, we need not address the City's argument that Pena's premises liability claim “negates his claims for negligence and negligence in the operation or use of a motor-driven vehicle.” See TEX. R. APP. P. 47.1.

MIKE LEE JUSTICE