Court of Appeals of Texas, Fourth District, San Antonio
the 73rd Judicial District Court, Bexar County, Texas Trial
Court No. 2017-CI-01166 Honorable Martha Tanner, Judge
Sitting: Sandee Bryan Marion, Chief Justice Luz Elena D.
Chapa, Justice Beth Watkins, Justice.
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.
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.
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.
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.
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.
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.
Actual Knowledge of the Condition
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 ...