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City of Hidalgo v. Hodge

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 18, 2018


         On appeal from the 332nd District Court of Hidalgo County, Texas.

          Before Chief Justice Valdez and Justices Contreras and Hinojosa Memorandum Opinion by Chief Justice Valdez



         Appellants, the City of Hidalgo (the "City") and City of Hidalgo Texas Municipal Facilities Corporation ("CHMFC") appeal the trial court's denial of their plea to the jurisdiction. By two issues, appellants contend that the trial court should have granted their plea to the jurisdiction because appellee, Mary Leah Hodge, failed to raise a material issue of fact necessary to confer jurisdiction on the trial court. We affirm.

         I. Background

         At a concert event outside of the State Farm Arena during an annual event called Borderfest, Hodge stepped into a hole and was injured. Hodge sued the City and CHMFC under a premises liability theory. Claiming immunity, appellants sought dismissal of the claim via a plea to the jurisdiction. The trial court denied the plea. This interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West, Westlaw through 2017 1st C.S.).

         II. Standard of Review

         The purpose of a plea to the jurisdiction is to "defeat a cause of action without regard to whether the claims asserted have merit." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). A challenge to the trial court's subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The plaintiff first bears the burden to plead facts establishing jurisdiction. Id. We will, when necessary, consider relevant evidence submitted by the parties to resolve the jurisdictional dispute. Id. at 227 (citing Bland Indep. Sch. Dist., 34 S.W.3d at 555). However, we will consider only the evidence relevant to the jurisdictional question. Bland Indep. Sch. Dist., 34 S.W.3d at 555. "[I]f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issues, the trial court rules on the plea to the jurisdiction as a matter of law." Miranda, 133 S.W.3d at 228.

         We take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in favor of the non-movant. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009). In the plea to the jurisdiction context, a defendant cannot simply deny the existence of jurisdictional facts and force the plaintiff to raise a fact issue. Mission Consol. Indep. Sch. Dist. v. Garcia, 314 S.W.3d 548, 553- 554 (Tex. App.-Corpus Christi 2010) rev'd in part on other grounds, 372 S.W.3d 629, 645 (Tex. 2012).

         III. Applicable Law

         Unless the Legislature expressly waives it, local governmental entities have absolute immunity from suit. Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011). When the legislature provides for a waiver of immunity from suit, it must do so with clear and unambiguous language, and any ambiguity must be resolved in favor of retaining immunity. Tooke v. City of Mexia, 197 S.W.3d 325, 328-29, 333 (Tex. 2006); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 697 (Tex. 2003).

         "[A] governmental unit is immune from suit unless the [Texas] Tort Claims Act [("TTCA")] expressly waives immunity, which it does in, " among other situations, suits involving premises defects. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). Section 101.021(2) of the TTCA "waives governmental immunity for personal injuries caused by a condition on property 'if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.'" City of El Paso v. Viel, 523 S.W.3d 876, 891 (Tex. App.-El Paso 2017, no pet.) (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West, Westlaw through 2017 1st C.S.)). Generally, for such conditions, a governmental unit owes only the duty that a private person owes to a licensee on private property. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (West, Westlaw through 2017 1st C.S.)). However, "[i]f the claimant pays for use of the premises, the City's duty is elevated to that owed to an invitee." Id. (citing City of Dallas v. Davenport, 418 S.W.3d 844, 847 (Tex. App.-Dallas 2013, no pet.)).

At common law, a licensee is defined as a person who, for his or her own convenience, pleasure, or benefit, enters the premises with the express or implied permission of the owner. To a licensee, a premises owner owes a duty not to injure "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."
At common law, an invitee is a person who enters the premises of another in answer to an express or implied invitation from the owner or occupier for their mutual benefit. To an invitee, a landowner owes "a duty to make safe or warn against any concealed, unreasonably dangerous conditions of which the landowner is, or reasonably should be, aware but the invitee is not." An invitee need only prove that the owner knew or reasonably should have known of a dangerous ...

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