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Nguyen v. SXSW Holdings, Inc.

Court of Appeals of Texas, Fourteenth District

July 18, 2019


          On Appeal from the 261st District Court Travis County, Texas Trial Court Cause No. D-1-GN-17-002229

          Panel consists of Justices Christopher, Zimmerer, and Hassan.


          Tracy Christopher Justice.

         South by Southwest is a music, film, and interactive festival held annually in downtown Austin. The festival is a major event, spanning ten days, occupying nearly a hundred venues, and attracting hundreds of thousands of people. To accommodate the large numbers of pedestrians attending the festival, many downtown streets are barricaded and shut down to vehicular traffic.

         On one night during the 2014 festival, the driver of a sedan maneuvered around a barricade and accelerated into a group of festivalgoers who had assembled in the street. The driver killed four people and injured many others.

         Some of the injured parties and their survivors (collectively, the "Plaintiffs") filed this civil action, asserting various claims against the City of Austin and the organizers of the festival (collectively, the "Defendants"). The trial court disposed of the Plaintiffs' claims through a series of summary-judgment rulings in favor of the Defendants.

         We vacate the portion of the trial court's judgment disposing of the claims against the City and dismiss those claims for want of jurisdiction, and we affirm the other portion of the trial court's judgment because the remaining Defendants had no duty to protect the Plaintiffs from the cause of their injuries, which was the driver's criminal act.

         I. The Criminal Act

         The driver in this case was a young man by the name of Rashad Owens. He had been drinking on the night in question, but his actions were not accidental or the result of driver error. Quite the opposite, when Owens sped into the crowd of pedestrians, he did so intentionally and knowingly because he was fleeing from police.

         Before he struck the pedestrians, Owens cut off a police officer by making an illegal turn from Twelfth Street onto the southbound access road of Interstate 35. The officer activated his emergency lights in an attempt to initiate a traffic stop. Owens signaled that he would pull over, and he eventually turned into a gas station at the corner of Ninth Street. But rather than park in an open spot at the gas station, Owens maneuvered around the fuel pumps and turned westbound onto Ninth Street, heading the wrong way down a one-way street.

         Ninth Street was empty, and Owens accelerated on the open road. He then approached his first intersection at Red River Street, where many traffic control measures were in place because of nearby festival events. There were uniformed police officers. There were traffic cones and signs. And there were two types of barricades. The first type was an A-frame barricade, so named because its side supports are shaped like the letter "A." This barricade has a single horizontal board with reflective orange and white striping. The other type was a Type III barricade, so named because it has three horizontal boards (also reflective and striped) that are stacked along an upright stand and held in place by sandbags. Because of the stacking, a Type III barricade is much larger than an A-frame barricade.

         The traffic control measures were different at each of the four points of the intersection. At the eastern point of the intersection (where Owens was driving the wrong way down Ninth Street), there were no barricades at all, but the southernmost lane of Ninth Street was cordoned off with traffic cones. Continuing in a clockwise direction, the crosswalk at the southern point of the intersection was lined with Type III barricades, which impeded Owens from turning left onto Red River. At the western point of the intersection, A-frame barricades blocked the outermost lanes of Ninth Street. A middle lane remained open, but a truck had stopped there, and it was facing eastbound (the correct direction), which impeded Owens from continuing westbound.

         The northern point of the intersection along Red River had a large "Road Closed" sign, two Type III barricades, and an open "fire lane" on the far right-hand side. The fire lane was reserved for emergency vehicles and for residents of an adjacent apartment complex, and it was blocked with just a traffic cone and a festival attendant who was screening for anyone trying to enter the apartment complex. The attendant saw Owens approaching the intersection and tried to wave Owens down. Rather than stop, Owens made a right turn into the fire lane, ran over the traffic cone, and forced the attendant to jump out of the way.

         Owens then sped northbound along Red River, where pedestrians had gathered in the street. Owens hit the gas and barreled into the crowd at fifty-five miles per hour. He proceeded to the intersection of Red River and Tenth Street, where he crashed through a Type III barricade. He then continued on Red River and hit a bicycle, a motorcycle, and another vehicle. He eventually disabled his own vehicle near Eleventh Street, where he attempted to flee on foot, but he was quickly apprehended by police.

         Owens was charged with capital murder and convicted of that offense in a trial by jury. On direct appeal, he argued that the evidence was legally insufficient to support his conviction, but the court of appeals rejected that argument and held that a reasonable factfinder could have concluded from the evidence presented that Owens had intentionally and knowingly caused the deaths of the people he hit with his vehicle. See Owens v. State, 549 S.W.3d 735, 742-43 (Tex. App.-Austin 2017, pet. ref'd).

         II. The Civil Action

         The Plaintiffs filed this civil action against the Defendants and sought to recover on various claims of negligence, premises liability, and public nuisance. Broadly speaking, the Plaintiffs alleged that the Defendants' barricades and other safety measures were inadequate to protect pedestrians during the festival. The Plaintiffs also asserted that the Defendants were liable for the resulting injuries because it was foreseeable that an errant vehicle would penetrate the inadequate barricades and then collide with festivalgoers.

         The Defendants moved for summary judgment on multiple grounds. In related motions that they all joined, the Defendants argued that they could not be liable because they owed no duty to protect the Plaintiffs from Owens's criminal conduct, and because the criminal conduct was a superseding cause of the Plaintiffs' injuries, which negated the element of proximate cause. In a separate motion, the City individually argued that it was shielded by governmental immunity and that the trial court lacked subject-matter jurisdiction.

         The trial court ruled in a series of orders that each of the Defendants was entitled to summary judgment. The orders did not state the trial court's reasons. The trial court later merged the individual orders into a final take-nothing judgment, from which the Plaintiffs now appeal.

         III. The City's Motions

         A. The trial court implicitly rejected the City's jurisdictional challenge.

         A recital in the final judgment states that the trial court granted the City's "Traditional and No-Evidence Motion for Summary Judgment." That recital is latently ambiguous because the City styled two motions with that exact same heading. One motion addressed the merits issues of duty and causation (which the remaining Defendants also addressed in their motions for summary judgment), and the other motion addressed the City's governmental immunity (in what could have been styled as a plea to the jurisdiction). The City filed the two motions on separate days, and the final judgment does not identify which of the two motions was actually granted.

         The distinction is significant because the Plaintiffs only addressed the merits issues in their appellants' brief. They did not address the City's assertion of governmental immunity, apparently believing that the trial court had denied the City's plea to the jurisdiction.

         Of course, if the trial court had granted the City's plea to the jurisdiction, then we would summarily affirm the portion of the judgment disposing of the claims against the City because the Plaintiffs failed to address the City's jurisdictional arguments in their appellants' brief. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) ("The judgment must stand, since it may have been based on a ground not specifically challenged by the plaintiff . . . ."). But the City asserts in its appellee's brief that the trial court "did not feel it was necessary to rule on the City's jurisdictional plea because, (1) summary judgment determinations resolved all of the Plaintiffs' claims against all of the Defendants equally; and (2) dismissal for lack of jurisdiction would have been redundant."

         We cannot confirm the City's assertion because we do not have the benefit of a hearing transcript or any other sort of record regarding the trial court's reasoning. Nevertheless, the City's assertion is consistent with the language of the final judgment itself. Instead of "dismissing" the claims against the City, the trial court specifically ordered that the Plaintiffs "take nothing," which, as the City has said, indicates that the trial court ruled on the merits.

         If a trial court has ruled on the merits in a case for which its subject-matter jurisdiction has been challenged, then the trial court has implicitly rejected the jurisdictional arguments. See Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). The effect of this rule is that the Plaintiffs were not required to address the City's jurisdictional arguments in their appellants' brief. However, because jurisdictional arguments can be raised at any time, the City would not be precluded from reasserting its plea to the jurisdiction on appeal. See Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008) (per curiam). And the City has done that here in its appellee's brief.

         Though a decision on the merits might be more economical in this particular case, we have a duty to determine questions of jurisdiction. See In re City of Dallas, 501 S.W.3d 71, 73 (Tex. 2016) (orig. proceeding) (per curiam). We therefore begin with the City's jurisdictional arguments. Our standard of review is de novo. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

         B. The trial court should have granted the City's jurisdictional challenge.

         When a municipality performs a governmental function, it acts as a branch of the state and shares in the state's sovereign immunity, although the municipality's immunity is known as "governmental immunity." See Wasson Interests, Ltd. v. City of Jacksonville, 489 S.W.3d 427, 429-30 (Tex. 2016). Unless this governmental immunity is constitutionally or statutorily waived, a trial court lacks subject-matter jurisdiction over claims against the municipality. See Suarez v. City of Texas City, 468 S.W.3d 623, 631 (Tex. 2015).

         Governmental functions are generally defined as those actions performed by a municipality that are "public in nature" and "in furtherance of general law for the interest of the public at large." See City of White Settlement v. Super Wash, Inc., 198 S.W.3d 770, 776 (Tex. 2006). Not every action performed by a municipality is performed as a governmental function. A municipality may perform proprietary functions, which are acts conducted by the municipality "in its private capacity, for the benefit only of those within its corporate limits, and not as an arm of the government." See Tooke v. City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). When a municipality acts in a proprietary, non-governmental capacity, governmental immunity does not apply. Id.

         In its plea to the jurisdiction, the City points out that the Plaintiffs have generally complained about the adequacy (or inadequacy) of police protection, barricades, traffic control plans, and the maintenance of traffic hazards. Because a municipality's actions in these matters are statutorily defined as governmental functions, the City contends that it retained its governmental immunity and that the trial court lacked subject-matter jurisdiction over the Plaintiffs' claims. See Tex. Civ. Prac. & Rem. Code § 101.0215(a)(1), (20), (30), (31) (identifying these matters in a nonexclusive list of governmental functions).

         The Plaintiffs respond that the City was actually engaged in a proprietary function because it was "funding, maintaining, and operating" the festival alongside the remaining Defendants. This argument invokes the statutory authority that a municipality performs a proprietary function when it "own[s] and operate[s]" an "amusement." Id. § 101.0215(b)(2). Assuming for the sake of argument that the festival qualifies as an amusement, the Plaintiffs concede in a post-submission letter brief that "the City of Austin does not own SXSW." Therefore, we cannot conclude that the City engaged in a proprietary function on that basis.

         The Plaintiffs also argue in their letter brief that the City engaged in a proprietary function because the City implemented its traffic control measures "only for the patrons of the festival, not the public at large." This argument also fails, because an action that is statutorily defined as a governmental function cannot also be a proprietary function. Id. § 101.0215(c).

         Because the City demonstrated that it was performing a governmental function-and thus, that it was shielded by governmental immunity-the Plaintiffs were required to plead a valid waiver of that immunity. The Plaintiffs' pleadings do not clearly articulate this waiver. To be sure, the pleadings contain passing references to the Tort Claims Act, which provides for such a waiver. For example, Section 101.021 provides that a governmental unit may be liable for "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit, were it a private person, be liable to the claimant according to Texas law." Id. § 101.021(2). But the Plaintiffs did not expressly invoke this provision, and mere references to the Tort Claims Act are not sufficient by themselves to confer jurisdiction on the trial court. See Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

         The Plaintiffs alleged that the City "did not have the requisite barriers set up, nor did it ensure that the public who were present in the area were safe from negligently operated motor vehicles." They also alleged that the City "failed to utilize adequate traffic control measures to protect attendees who were pedestrians or bicyclists." They criticized the City for not installing more rigid, water-filled barriers, which presumably are more effective at stopping errant vehicles.

         The City contends that even if the Plaintiffs' allegations could be proper under Section 101.021, they would still be insufficient to confer jurisdiction because each of the allegations is based on the City's exercise of its discretionary powers, and the Tort Claims Act does not apply to such claims. See Tex. Civ. Prac. & Rem. Code § 101.056 (providing that there is no waiver of immunity for a claim based on the failure of a governmental unit to perform an act that is not required by law, or on the decision not to perform an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit).

         The Plaintiffs respond that the discretionary-power exemption does not apply in this case because the pleadings complain about the City's operational decisions, rather than its policy decisions. As their sole authority for this point, the Plaintiffs rely on Simons v. City of Austin, 921 S.W.2d 524 (Tex. App.-Austin 1996, writ denied). That case is inapposite because it had nothing to do with the installation of traffic control measures, which courts have routinely recognized as involving the exercise of a governmental unit's discretionary powers. See, e.g., Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam) ("Likewise, decisions about installing safety features are discretionary decisions for which the State may not be sued."); State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam) ("Thus, the decision to use barrels and signs, as opposed to another warning device, was discretionary."); Wenzel v. City of New Braunfels, 852 S.W.2d 97, 100 (Tex. App.-Austin 1993, no writ) ("We hold that the City's decision whether to regulate traffic near the County Fair by the means suggested in the Wenzel's petition was discretionary.").

         We generally allow a litigant an opportunity to cure her pleading defects when the pleadings do not allege enough jurisdictional facts. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). But this is not a case of pleading defects. Here, the pleadings and the evidence affirmatively show that the Plaintiffs' factual complaints concern discretionary decisions for which the City retains immunity from suit. See Tex. Civ. Prac. & Rem. Code § 101.056. The pleaded facts and the evidence thus demonstrate that it is impossible for the Plaintiffs to amend their pleadings to invoke jurisdiction. See Ramirez, 74 S.W.3d at 867-68.

         Based on the foregoing, we conclude that the City retained its governmental immunity, which meant that the trial court should have dismissed the Plaintiffs' claims against the City for want of jurisdiction.

         The next question for us to decide is whether the trial court correctly ruled on the remaining Defendants' motions for summary judgment.

         IV. The Remaining Defendants' Motions

         To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Ins. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). When, as here, the movant is a defendant, summary judgment is proper only if the defendant conclusively negates at least one essential element of each of the plaintiff's theories of recovery, or if the defendant conclusively establishes each element of an affirmative defense. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

         In one of their grounds for summary judgment, the Defendants sought to negate the element of duty, which is a common element to all of the Plaintiffs' negligence claims. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). That element is also essential to the Plaintiffs' premises claim, which is just "a special form of negligence." See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). And because the Plaintiffs pleaded that their nuisance claim arose out of the "Defendants' negligence in deploying inadequate traffic control measures," duty is an essential element of that claim as well. See Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 607 (Tex. 2016). Thus, if the Defendants conclusively negated the existence of a duty, and the Plaintiffs failed to raise a fact question on duty, then the trial court's summary judgment must be upheld.

         The Defendants argued in their motions that they could not be liable on the Plaintiffs' claims because the claims arose out of a criminal act, and generally speaking, a person has no duty to protect another from the criminal acts of a third party. This latter point bears some elaboration.

         The no-duty rule is firmly established in our precedent, but it is not absolute. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). A person who controls a premises has a duty to use ordinary care to protect an invitee from the criminal acts of a third party if the person knows or has to reason to know of an unreasonable and unforeseeable risk of harm to the invitee. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997). Whether this duty exists is a question of law for the court to decide based on the facts surrounding the occurrence in question. See Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). That analysis typically begins with the threshold inquiry of foreseeability. See UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 101 (Tex. 2017).

         Our case law has developed two frameworks for establishing foreseeability. The first framework is set forth in Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), which holds that a duty arises when "the general danger" is foreseeable, "not the exact sequence of events that produced the harm." Id. at 756. When the general danger is the risk of harm from criminal activity, foreseeability ...

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