Court of Appeals of Texas, Eighth District, El Paso
from 448th District Court of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD MCCLURE, CHIEF JUSTICE.
an accelerated interlocutory appeal from a trial court's
order denying El Paso County's plea to the jurisdiction.
The only question we need to resolve is whether Janice Baker
made out a prima facia premises liability case against the
County arising from an injury she claims was caused by a set
of elevator doors at the County Courthouse. The County
presented evidence that it had no knowledge of the claimed
defect with the elevator doors which is a necessary element
of Baker's claim. We conclude that Baker offered no
evidence raising a fact issue on that specific question.
Accordingly, the trial court erred in overruling the
County's plea to the jurisdiction. The order below is
reversed and the case against El Paso County is dismissed for
want of jurisdiction.
Baker visited the El Paso County Courthouse on July 17, 2014.
While entering elevator number six, she claims the doors shut
on her causing bodily injury. She reported the injury that
day and spoke with Deputy Sheriff Alfredo Colorado, who
prepared a report documenting the incident. The El Paso Fire
Department treated her on scene, but she refused to go to the
hospital. Officer Colorado transported her by wheelchair to a
nearby bus stop.
after the incident, her lawyer sent a letter to the El Paso
County Judge stating that he had been retained in connection
with Baker's personal injuries sustained on July 17, 2014
at the County Courthouse. An attorney for the County promptly
acknowledged the correspondence. The County's attorney
stated "[o]nce you have provided sufficient information
for us to evaluate your client's allegations, I will
present the matter to Commissioner's Court for their
consideration of your claim."
April 2016, Baker filed suit against the County asserting a
claim for negligence. The County answered and later named
ThyssenKrupp Elevator Corporation as a responsible third
party, claiming that entity services the elevators for the
County. Following several amended petitions, ThyssenKrupp
Elevator Corporation and ThyssenKrupp Elevator Americas
Corporation appeared as defendants below.
County eventually filed a combined plea to the jurisdiction,
traditional and no-evidence motion for summary judgment. The
motion advanced two arguments relevant here. First, the
County claimed it was not given proper notice of the claim as
required by Tex.Civ.Prac.&Rem.Code Ann. §
101.101(a)(a governmental unit is entitled to receive notice
of a claim within six months of the incident which describes:
"(1) the damage or injury claimed; (2) the time and
place of the incident; and (3) the incident."). Second,
the County argued that the claim against it is limited to a
premises liability theory, and under that theory, a licensee
such as Baker must show that the County had actual knowledge
of the claimed defect. Supported by several maintenance
records and the affidavit of its maintenance supervisor, the
County urged it had no actual knowledge of the claimed
dangerous condition in elevator six.
notice of claim issue, Baker responded by offering proof of
the oral report of injury that she made that day, the
incident report prepared by Officer Colorado, and the notice
of representation letter that her lawyer sent the month
following the incident. She contends that the County had
formal notice as contemplated by Section 101.101(a), or
alternatively, actual notice as permitted by Section
101.101(a). As to the premises liability issue--whether the
County had actual knowledge of the claimed defect--she
offered only a photocopy of a news article that we describe
in more detail below.
trial court denied the County's motion following a
non-evidentiary hearing. This interlocutory appeal
follows. See Tex.Civ.Prac.&Rem.Code
Ann. § 51.014(a)(8)(allowing interlocutory appeal from
order that grants or denies a plea to the jurisdiction by a
TO THE JURISDICTION
immunity (from suit) implicates a trial court's subject
matter jurisdiction over a lawsuit unless the State expressly
consents to suit. Engelman Irrigation Dist. v. Shields
Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017).
Governmental immunity operates like sovereign immunity and
affords similar protection to subdivisions of the State,
including its counties. Harris County v. Sykes, 136
S.W.3d 635, 638 (Tex. 2004); Bates v. Pecos County,
546 S.W.3d 277, 283 (Tex.App.--El Paso 2017, no pet.). El
Paso County is entitled to immunity from lawsuits seeking
monetary damages unless its immunity is waived. See
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d
629, 636 (Tex. 2012); Texas Dep 't of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).
The Legislature has provided a limited waiver of governmental
immunity in the Texas Tort Claims Act. That act allows suits
against governmental entities for, among other things,
personal injuries arising from a "premise defect,"
as well as from the "condition or use of tangible
personal . . . property[.]" Tex.Civ.Prac.&Rem.Code
Ann. §§ 101.021, 101.022; see also State v.
Gonzalez, 82 S.W.3d 322, 326 (Tex. 2002).
plaintiff must fall within the limited waiver of immunity and
a governmental entity may challenge whether the plaintiff has
done so through a plea to the jurisdiction. Miranda,
133 S.W.3d at 225-26. The plea may challenge the sufficiency
of the pleadings, or it might also include jurisdictional
evidence which thereby places into issue the existence of a
jurisdictional fact. Id.; Univ. of Texas at El Paso v.
Ochoa,410 S.W.3d 327, 330 (Tex.App.--El Paso
2013, pet. denied). When a plea to the jurisdiction
challenges the pleadings, we look to the pleader's
intent, construe the pleadings liberally in favor of
jurisdiction, and accept the allegations in the pleadings as
true to determine if the pleader has alleged sufficient facts
to affirmatively demonstrate the trial court's
jurisdiction to hear the case. Heckman v. Williamson
County,369 S.W.3d 137, 150 (Tex. 2012); JNC Land
Co., Inc. v. City of El Paso,479 S.W.3d 903, 907
(Tex.App.--El Paso 2015, pet. denied). "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 ...