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Kirstein v. City of South Padre Island

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

September 5, 2019

SEAN KIRSTEIN, Appellant,
v.
CITY OF SOUTH PADRE ISLAND, TEXAS, Appellee.

          On appeal from the County Court at Law No. 3 of Cameron County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE

         Appellant Sean Kirstein appeals from a plea to the jurisdiction granted in favor of appellee the City of South Padre Island, Texas (the City). By one issue, Kirstein argues the trial court erred when it granted the City's plea. We affirm.

         I. Background

         On or about June 29, 2018, Kirstein was arrested for public intoxication and taken to the City's jail. While detained in a cell, Kirstein was attacked by fellow inmate Francisco Ibarra. In his petition, Kirstein argued that the City's "arresting officers and jailers knew or should have known that due to the many prior times they had arrested Mr. Kirstein for alcohol related offenses that he was unpredictable and violent 'drunk' who needed to be 'observed' and 'segregated' from other prisoners to avoid harm to Mr. Kirstein and to harm others in his close proximity" (emphasis in original). According to Kirstein, the City was negligent because: (1) it lacked adequate facilities for segregating and monitoring inmates such as Ibarra and Kirstein, (2) it failed to immediately transfer either Ibarra or Kirstein to the Cameron County Jail where either could have been "adequately segregated," (3) the City's jailers "failed to follow the written policies and procedures in place at the South Padre Island jail for segregating drunk and aggressive inmates such as" Ibarra and Kirstein, (4) the jailers were "not given any 'jail detention training' at the time they were assigned to duty as 'jailers, '" and (5) "jailers were allowed to watch television at the 'booking desk' thereby taking their attention away from assaults taking place in their jail." Kirstein suffered multiple injuries as a result of Ibarra's attack, including a broken nose, fractured eye socket, fractured wrist, lacerations, bruising, and injuries to spinal discs in his neck and back.

         The City filed a plea to the jurisdiction asserting governmental immunity, and Kirstein filed a response in opposition. In his response, Kirstein argued that the City's actions violated the City's jail rules and regulations, which required: "segregation of all potentially dangerous inmates from the general jail population;" "to immediately transfer either Mr. Ibarra or Mr. Kirstein to the Cameron County Jail where either could have been adequately segregated;" that the jailers receive training "at the time they were assigned;" and that the jailers not "watch television at the 'booking desk' . . . thereby taking their attention away" from the detainees. Kirstein further argued that the City's jail lacked "adequate video and audio monitoring devices of jail cells." Kirstein stated that "his claim arose out of the antecedent negligence of the City's employees" and that "his injuries were proximately caused by negligent actions involving a 'condition or use' of tangible or real property (i.e. a jail)."

         The trial court granted the City's plea. This appeal followed.

         II. Discussion

         A. Standard of Review

         A plea to the jurisdiction is a dilatory plea that seeks to dismiss a cause for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). Its purpose 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). We review the disposition of a jurisdictional plea de novo. Suarez v. City of Tex. City, 465 S.W.3d 623, 632 (Tex. 2015). The plaintiff has the burden to allege facts that affirmatively demonstrate the trial court's jurisdiction to hear a case. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015) (per curiam). If the pleadings generate a fact question regarding the jurisdictional issue, a court cannot sustain the plea to the jurisdiction. Id. at 927. If jurisdictional facts are disputed, we consider any evidence submitted by the parties to the trial court. Blue, 34 S.W.3d at 555.

         B. Applicable Law

         Governmental immunity defeats subject-matter jurisdiction in suits against subdivisions of the State, such as the City, unless that immunity has been clearly and unambiguously waived by the Legislature. See Sykes, 136 S.W.3d at 638. Governmental immunity encompasses both immunity from liability and immunity from suit. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims Act (TTCA) waives governmental immunity for "personal injury and death [proximately] caused by a condition or use of tangible personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2); see Miranda, 133 S.W.3d at 224; Jefferson County v. Farris, 569 S.W.3d 814, 823 (Tex. App.-Houston [1st Dist.] 2018, pet. filed) (per curiam). Thus, "[t]o state a claim under the [TTCA], a plaintiff must allege an injury resulting from the 'condition or use of tangible personal or real property.'" Tex. Dep't of Pub. Safety v. Petta, 44 S.W.3d 575, 580 (Tex. 2001); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). "Use" has been defined in the context of the TTCA as "to put or bring into action or service; to employ for or apply to a given purpose." Tex. Nat. Res. Conservation Comm'n v. White, 46 S.W.3d 864, 869 (Tex. 2001); Vela v. City of McAllen, 894 S.W.2d 836, 840 (Tex. App.-Corpus Christi-Edinburg 1995, no writ).

         C. ...


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