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City of Austin v. Vykoukal

Court of Appeals of Texas, Third District, Austin

May 10, 2017

City of Austin and Austin Energy, Appellants
v.
Nicole Vykoukal and Eliezer Perez, Appellees

         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT NO. D-1-GN-15-000533, HONORABLE TIM SULAK, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Bourland.

          MEMORANDUM OPINION

          Melissa Goodwin, Justice.

         Nicole Vykoukal and Eliezer Perez brought suit against the City of Austin and Austin Energy (jointly, the City) pursuant to the Texas Tort Claims Act (TTCA) for personal injury damages sustained in a motor vehicle accident caused by an alleged special defect. See Tex. Civ. Prac. & Rem. Code §§ 101.001-.109. In this interlocutory appeal, the City challenges the trial court's denial of its Plea to the Jurisdiction and Motion for Summary Judgment based on governmental immunity. See id. § 51.014(a)(8). For the reasons that follow, we reverse the trial court's order and dismiss Vykoukal's and Perez's claims for lack of jurisdiction.

         BACKGROUND

         Vykoukal and Perez were riding their bicycles in the bike lane westbound on Rosewood Avenue in Austin, Texas, during the middle of the day. As they approached the intersection of Rosewood Avenue and Bedford, not far from where a right turn lane begins, they came across a portion of the bike lane that was partially encroached upon by overgrown vegetation on the property of the homeowners at 2500 Rosewood Avenue. They stopped in the bike lane in the shade provided by the overgrown vegetation to have a drink of water. Shortly after they stopped, a westbound driver approached, left the portion of the road designated for automobile travel, drove across the solid white line into the bike lane, and struck Vykoukal and Perez, who were seriously injured and taken to the hospital by ambulance.[1] According to Vykoukal and Perez, the driver told investigating police officers that she had not seen Vykoukal and Perez and did "not know if the sun was in her face or what." One of the officers replied, "But it's 11:30 . . . and the sun rises in the east."

         Vykoukal and Perez sued the City alleging that the overgrown vegetation constituted a special defect and that the City had breached its duty to maintain the right of way and keep it free of obstruction.[2] The City filed a Plea to the Jurisdiction and Motion for Summary Judgment, arguing that it retained its immunity because the overgrown vegetation was not a special defect and that Vykoukal and Perez could not amend their pleadings to establish a premises defect.[3] The City attached evidence to its motion, including excerpts from the depositions of Vykoukal and Perez and photographs of the scene of the accident. Vykoukal and Perez filed a response and also presented evidence, including an affidavit of Vykoukal, photographs of the scene, and the police report and dash cam video.[4] Following a hearing, the trial court denied the City's Plea to the Jurisdiction and Motion for Summary Judgment, and this appeal followed.

         STANDARD OF REVIEW AND APPLICABLE LAW

         We review a trial court's ruling on a plea questioning the trial court's subject matter jurisdiction de novo. See Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). We focus first on the plaintiff's petition to determine whether the facts that were pled affirmatively demonstrate that subject matter jurisdiction exists. Id. at 226. We construe the pleadings liberally in favor of the plaintiff. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)).

         When evidence is submitted that implicates the merits of the case, as is the case here, our standard of review generally mirrors the summary judgment standard under Texas Rule of Civil Procedure 166a(c). Id. at 227-28; see Tex. R. Civ. P. 166a(c). The burden is on the governmental unit to present evidence to support its plea. Miranda, 133 S.W.3d at 228. If the governmental unit meets this burden, the burden shifts to the nonmovant to show that a disputed material fact exists regarding the jurisdictional issue. Id. We take as true all evidence that is favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id. If the evidence creates a fact issue as to jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue must be resolved by the fact finder at trial. Id. at 227-28; University of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.-Austin 2009, no pet.). On the other hand, if the undisputed evidence establishes that there is no jurisdiction or fails to raise a fact issue, the trial court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228; Poindexter, 306 S.W.3d at 807.

         Governmental immunity deprives a trial court of subject matter jurisdiction in suits against political subdivisions of the state, including cities, unless the political subdivision consents to suit and is therefore properly asserted in a plea to the jurisdiction. Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759 n.4 (Tex. 2011) (per curiam) (distinguishing between sovereign immunity, which protects State and its divisions from suit and liability, and governmental immunity, which affords like protection to political subdivisions, including counties, cities, and school districts); Miranda, 133 S.W.3d at 225-26. The TTCA provides a limited waiver of immunity for two categories of claims that allege dangerous conditions on real property-"premises defects" and "special defects." See Tex. Civ. Prac. & Rem. Code §§ 101.022(a) (providing for governmental unit's liability for premises defects), (b) (providing for governmental unit's liability for special defects), .025 (waiving sovereign immunity to suit "to the extent of liability created by this chapter" and allowing person with claim under TTCA to sue governmental unit for damages); University of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010) (per curiam). "'Premises defects' may be defined generally as defects or dangerous conditions arising from conditions of a premises. 'Special defects' are a subset of premises defects and include conditions such as excavations or obstructions on highways, roads, or streets." University of Tex. at Austin v. Sampson, 488 S.W.3d 332, 338-39 (Tex. App.-Austin 2014), aff'd, 500 S.W.3d 380 (Tex. 2016) (internal citations and quotations omitted).

         Under Texas law, whether the complained-of condition is classified as a premises defect or a special defect determines the entrant's status and, in turn, the duty of care owed to the entrant by the governmental unit. See Tex. Civ. Prac. & Rem. Code § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (per curiam). If the claim arises from a special defect, the governmental unit owes the claimant the same duty of care that a private landowner owes an invitee. See Tex. Civ. Prac. & Rem. Code § 101.022(b); Texas Dep't of Transp. v. Perches, 388 S.W.3d 652, 654-55 (Tex. 2012) (per curiam) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). Under this standard, the governmental unit must use ordinary care to reduce or eliminate an unreasonable risk of harm which the governmental unit knew or should have known about. Payne, 838 S.W.2d at 237. If the condition alleged is a premises defect, the governmental unit owes the claimant only the duty of care that a private landowner would owe a licensee. See Tex. Civ. Prac. & Rem. Code § 101.022(a); Perches, 388 S.W.3d at 656. That duty would require the City here (1) not to injure the licensee by willful, wanton, or grossly negligent conduct, and (2) to use ordinary care to warn of or make reasonably safe a dangerous condition of which the City was aware and the licensee was not. See Perches, 388 S.W.3d at 656 (citing Payne, 838 S.W.2d at 237). Whether a condition is a premises defect or a special defect is a question of law, which we review de novo. Texas Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam) (citing Payne, 838 S.W.2d at 238).

         DISCUSSION

         Special ...


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