Court of Appeals of Texas, Ninth District, Beaumont
PORT OF BEAUMONT NAVIGATION DISTRICT OF JEFFERSON COUNTY, TEXAS, Appellant
KIRK HOWARD MCCARTY, Appellee
Submitted on December 6, 2016
Appeal from the 58th District Court Jefferson County, Texas
Trial Cause No. A-197, 282
Kreger, Horton, and Johnson, JJ.
Port of Beaumont Navigation District of Jefferson County,
Texas (the Port) appeals the trial court's denial of its
plea to the jurisdiction in a personal injury case filed by
Kirk Howard McCarty, who was injured when the car he was
driving was hit by a train. See Tex. Civ. Prac.
& Rem. Code Ann. § 51.014(a)(8) (West Supp. 2016)
(permitting an interlocutory appeal from a ruling granting or
denying a plea to the jurisdiction filed by a governmental
unit). When the collision occurred, McCarty was driving his
car on a roadway across an easement held by the Port that
crossed the tracks. In one issue, the Port argues that
McCarty has not alleged or established that the Tort Claims
Act waived its immunity from suit so that a court could
exercise jurisdiction over the claims McCarty filed against
the Port. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.021, 101.022 (West 2011) (Tort Claims Act).
The Port concludes the trial court erred by denying its plea.
We reverse and render in part, and we reverse and remand in
suit, McCarty alleged that one evening in October 2014, he
was injured when his car was hit by a train that was operated
by employees of Gerdau Ameristeel U.S. Inc. McCarty alleged
that the crossing where the collision occurred had been
leased to the Port, and that under its lease, the Port
"was responsible for the maintenance and upkeep of the
leased premises." McCarty claimed that an unreasonably
dangerous condition existed on the leased premises where the
collision occurred, that the Port knew or should have known
of the dangerous condition, that there were "no warnings
or insufficient warnings of the dangerous condition on the
land where [he] was injured[, ]" and that the Port
"failed to provide adequate lighting" on the
roadway where the train hit his car.
plea to the jurisdiction, the Port asserted that it did not
possess the premises where McCarty's injuries occurred,
and that it merely held a roadway easement to the crossing,
allowing it to access its property "via an improved
roadway that crosses the railroad track." Nonetheless,
the Port acknowledged in its brief that it "was
responsible for maintaining its roadway access easement"
at the crossing where the collision occurred.
McCarty responded to the Port's plea, he attached copies
of the documents that set out the terms that are relevant to
the roadway easement the Port holds at the crossing and a
copy of a deposition the parties obtained from Matthew
Hammer, Gerdau's safety manager, who investigated the
collision for Gerdau after it occurred. According to McCarty,
the evidence established that the Port is the entity that is
responsible for maintaining the crossing where the collision
occurred. Generally, the agreements establish that the Port
was responsible for maintaining the easement, but they do not
specifically state that the Port was also responsible for
maintaining the artificial lighting near the crossing. Also,
Hammer's deposition reflects that he reached the
following conclusions from his investigation: McCarty
"ran a stop sign and ran into our train[, ]"
McCarty ignored signs that warned of the presence of the
railroad tracks, and McCarty ignored signs near the crossing
indicating that the traffic on the road was required to yield
evidence introduced at the hearing reflects that the crossing
where the collision occurred requires vehicles to pass over
six sets of tracks. The evidence also shows that the tracks
curve in the area where the crossing is located. Hammer
estimated the distance from the entry of the crossing to the
exit of the crossing at approximately 75 yards. Hammer
explained that there were artificial lights on poles near the
crossing, but he was not asked to identify whether the poles
are within the boundaries of the roadway easement, whether
the Port installed the artificial lights that were in the
vicinity of the crossing, whether the Port was responsible
for maintaining the artificial lighting on the poles, or
whether the lights on the poles were working when
McCarty's collision with the train
occurred. Hammer also addressed whether he had
evaluated the lighting at the crossing, and he testified that
he never evaluated whether the artificial lighting at the
crossing adequately illuminated the crossing. Hammer
testified that other than McCarty's collision, no
collisions had ever occurred at the crossing.
a governmental unit of the State, such as the Port, has
sovereign immunity that protects it from being sued in tort
unless that immunity has been waived. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.001(3)(A), (B)
(West Supp. 2016), 101.025 (West 2011); Tex. Dep't of
Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). Under
the definitions in the Tort Claims Act, the Port, which is a
navigation district, qualifies as a "governmental
unit." See Tex. Civ. Prac. & Rem. Code Ann.
appeal, the Port argues the trial court erred by denying its
plea to the jurisdiction. According to the Port, McCarty
failed to allege any claims against the Port that fell within
the limited waivers provided by the Tort Claims Act.
See Tex. Civ. Prac. & Rem. Code Ann.
§§ 101.021, 101.022. The Port contested the trial
court's power to exercise jurisdiction over the dispute
by filing a plea to the jurisdiction. A plea to the
jurisdiction is a dilatory plea, which governmental units use
to defeat a plaintiff's cause of action without regard to
whether the plaintiff's claims have merit. See Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). The plea requires the trial court to decide whether
the Legislature waived the governmental unit's immunity
for the claims the plaintiff is asserting in its lawsuit.
Id. Generally, with the exception of constitutional
claims that are not at issue here, a plaintiff is required to
show that the Legislature waived a governmental unit's
immunity for the claims the plaintiff is making in the suit.
See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 403
(Tex. 1997); Duhart v. State, 610 S.W.2d 740, 741
(Tex. 1980). In the absence of an express waiver of
governmental immunity in a statute, courts lack jurisdiction
to impose duties on governmental units by disregarding their
immunity from suit. See Tex. Dep't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004)
(explaining that immunity to suit and immunity from liability
are coextensive under the Tort Claims Act).
McCarty seeks to recover against the Port for the personal
injuries he sustained on property that he alleges was
controlled by the Port, McCarty's claims sound in tort.
However, the Tort Claims Act does not waive the immunity of
governmental units for all tort claims; instead, the Act
provides a limited immunity waiver in personal injury cases
when the plaintiff's injury was caused by a premises
defect or by a governmental unit's failure to warn of
special defects, "such as excavations or obstructions on
highways, roads, or streets[.]" Tex. Civ. Prac. &
Rem. Code Ann. §§ 101.021(1)(B), 101.022(a), (b).
McCarty argues that the conditions at the crossing on the
night of his collision are properly categorized as either
special defects or as premises defects. However, even when
the Tort Claims Act applies, the governmental unit's duty
to plaintiffs who assert premises-defect claims is limited to
the duty owed to a licensee who enters private ...