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Texas Department of Transportation v. Markham

Court of Appeals of Texas, Fourth District, San Antonio

August 21, 2019

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant
v.
Naomi MARKHAM, Carrie Markham, and Trevor Markham, Individually and as the Administrator of the Estate of Joslyn Markham, Deceased, Appellees

          From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-01166 Honorable Martha Tanner, Judge Presiding.

          Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D. Chapa, Justice Beth Watkins, Justice.

          MEMORANDUM OPINION

          Beth Watkins, Justice.

         Appellant Texas Department of Transportation ("TxDOT") appeals the trial court's order denying its plea to the jurisdiction. On appeal, it argues appellees Naomi Markham, Carrie Markham, and Trevor Markham, Individually and as the Administrator of the Estate of Joslyn Markham, Deceased, ("the Markhams") did not establish a waiver of governmental immunity under the Texas Tort Claims Act ("TTCA") as to their premises defect claims and the Markhams' claim for negligence per se should be dismissed for want of jurisdiction. We dismiss the Markhams' negligence per se claim for want of jurisdiction and affirm the remainder of the trial court's order.

         Background

         In February of 2015, Joslyn was driving southbound on U.S. Highway 281 when she crashed into a guardrail. Her truck vaulted the guardrail before falling into the small creek below and landing on its roof. The wreck killed Joslyn and critically injured her passenger and sister, Naomi. When investigating the wreck, the Markhams learned the guardrail was a height of 23 and 5/8 inches as opposed to the 27 inches required by TxDOT.

         Relevant to this appeal, the Markhams sued ISI Construction Co., Inc. and TxDOT alleging a premises defect claim and arguing TxDOT was negligent in failing to ensure the guardrail met the height requirement of 27 inches. The Markhams amended their petition to add: Guerra Construction as a defendant; a gross negligence claim against TxDOT; and claims for joint enterprise and civil conspiracy against ISI Construction, TxDOT, and Guerra Construction.

         TxDOT filed a plea to the jurisdiction, asserting its governmental immunity from suit had not been waived. The trial court granted TxDOT's plea as to the Markhams' claims for joint enterprise and civil conspiracy, but denied TxDOT's plea as to their negligence and gross negligence claims, both arising from a premises defect. The Markhams then amended their petition, adding a negligence per se claim against TxDOT. This interlocutory appeal followed.

         Analysis

         Standard of Review

         Governmental immunity from suit defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); City of San Antonio v. Cervantes, 521 S.W.3d 390, 394 (Tex. App.-San Antonio 2017, no pet.). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Cervantes, 521 S.W.3d at 394.

         If, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, the reviewing court must determine whether a fact question on the jurisdictional issue exists by considering the relevant evidence. City of Corsicana v. Stewart, 249 S.W.3d 412, 414 (Tex. 2008). If the evidence raises a fact question on jurisdiction, the plea cannot be granted. Id. If the relevant evidence is undisputed or fails to raise a fact question, the trial court must rule on the plea as a matter of law. Id.

         TxDOT's Actual Knowledge of the Condition

         TxDOT first contends the Markhams failed to raise a fact issue that it had actual knowledge that the guardrail constituted an unreasonably dangerous condition at the time of the accident. TxDOT contends the evidence produced by the Markhams failed to demonstrate TxDOT's knowledge of ...


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