Reynaldo Ybarra v. the County of Hidalgo ( 2011 )

OPINION
No. 04-11-00005-CV
Reynaldo YBARRA,
Appellant
v.
The COUNTY OF HIDALGO,
Appellee
From the 131st Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-07674
Honorable Janet P. Littlejohn, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: November 16, 2011
AFFIRMED
Appellant, Reynaldo Ybarra, appeals the trial court’s orders granting a motion to dismiss
for lack of jurisdiction and a motion for traditional and no-evidence summary judgment in favor
of appellee, the County of Hidalgo. We affirm.
BACKGROUND
On February 18, 2000, appellant, a postal worker, was delivering mail to the Hidalgo
County Administrative Building, which is owned by appellee. While walking down a hallway
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after exiting the elevator, appellant was struck and injured when an emergency stairwell door
was opened by Ricardo Ramos, an occupant of the building. Appellant sued appellee for injuries
under the Texas Tort Claims Act. Appellee filed a motion to dismiss for lack of jurisdiction,
asserting governmental immunity. Appellee also filed a motion for summary judgment asserting
governmental immunity. The trial court granted the motions.
STANDARD OF REVIEW
In his sole issue on appeal, appellant argues the trial court erroneously granted appellee’s
motions because appellant produced more than a scintilla of evidence creating a genuine issue of
material fact. Appellant and appellee both agree the motions essentially argue the same point—
there is less than a scintilla of evidence supporting appellant’s claims.
In this case, the motion to dismiss for lack of jurisdiction, or plea to the jurisdiction,
implicates both subject-matter jurisdiction and the merits of the case. “[I]f a plea to the
jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial
court is required to do.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex.
2004). If no question of fact exists as to the jurisdiction, then the trial court must rule on the plea
to the jurisdiction as a matter of law; however, if a fact question is raised, then the jurisdictional
issue must be resolved by the fact finder. City of El Paso v. Heinrich, 284 S.W.3d 366, 378
(Tex. 2009). This standard of review mirrors our review of summary judgments. TEX. R. CIV. P.
166a(c); Miranda, 133 S.W.3d at 228. Thus, on our review of both the plea to the jurisdiction
and the summary judgment motion, we take as true all evidence favorable to appellant and
indulge every reasonable inference and resolve any doubts in his favor. Heinrich, 284 S.W.3d at
378 (citing Miranda, 133 S.W.3d at 228).
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GOVERNMENTAL IMMUNITY
A municipality such as the County of Hidalgo is immune from liability for governmental
functions unless that immunity is waived. See TEX. CIV. PRAC. & REM. CODE ANN.
§§ 101.001(3)(A)–(B), 101.025 (West 2010). However, waiver is limited to certain instances set
out in Texas Civil Practice and Remedies Code section 101.021, which provides:
A governmental unit in the state is liable for:
(1) property damage, personal injury, and death proximately caused by the
wrongful act or omission or the negligence of an employee acting within his
scope of employment if:
(A) the property damage, personal injury, or death arises from the
operation or use of a motor-driven vehicle or motor-driven equipment; and
(B) the employee would be personally liable to the claimant according to
Texas law; and
(2) personal injury and death so caused by a condition or use of tangible personal
or real property if the governmental unit would, were it a private person, be liable
to the claimant according to Texas law.
Id. § 101.021. Subsections one and two provide separate and distinct requirements before
sovereign immunity is waived. Under subsection one, a governmental unit is liable if an
employee negligently operated or used a motor vehicle and “the employee would be personally
liable to the claimant according to Texas law.” Id.; see also DeWitt v. Harris County, 904
S.W.2d 650, 653 (Tex. 1995). Under subsection two, a governmental unit may be liable for the
use or condition of tangible personal property or real property. DeWitt, 904 S.W.2d at 653. If an
employee misuses tangible personal property, the governmental unit’s liability is based on
principles of respondent superior. Id. However, the condition of real property, unlike tangible
personal property, is not dependent on principles of respondent superior. Id. Instead, liability is
based on the duty of care owed by the governmental unit to the claimant for premises and special
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defects as explained in the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE § 101.022
(“Duty Owed: Premise and Special Defects”).
Here, appellant argues the employment status of Ricardo Ramos is important in
determining whether a fact issue exists as to appellee’s liability. Appellant argues Ramos is an
employee of the County of Hidalgo, while appellee argues Ramos is an employee of the State
because he is a probation officer employed by a district judge and paid from State funds.
However, we decline to decide whether Ramos is an employee of the county because it does not
guide our review of appellant’s claim. Appellant does not argue that Ramos was driving a
vehicle, nor does appellant argue the door was tangible personal property owned by appellant
and used by Ramos. Instead, appellant’s claims are based on premises and special defects to real
property. Id. § 101.021(2). Thus, if the county is liable, it is not based on the “wrongful act or
omission or the negligence of” its employee. Id. § 101.021(1).
SPECIAL DEFECT OR PREMISES DEFECT
Appellant contends the door was defective, and thus unreasonably dangerous, because it
lacked an important safety device that regulated the speed and force by which it opened.
Appellant asserts a safety device on the inside of the door was removed before his injury.
Hence, appellant argues this is a premises defect on real property belonging to appellee.
Alternatively, appellant claims the defect in the door is a special defect.
The Texas Tort Claims Act provides different standards of care depending on whether a
claim arises from an ordinary premises defect or a special defect. Id. § 101.022. If the condition
is a premises defect, then the county owes the same duty that a private landowner owes a
licensee, unless the claimant paid for the use of the premises. Id. § 101.022(a). This basic duty
is to avoid injuring the claimant willfully, wantonly, or through gross negligence. State Dep’t of
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Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). The duty also requires
ordinary care either to warn a licensee of a dangerous condition, or to make reasonably safe, if
the county has actual knowledge of a dangerous condition and the licensee does not. Id.
(emphasis added). If the condition is a special defect, then the county owes the same duty a
private landowner owes an invitee. TEX. CIV. PRAC. & REM. CODE § 101.022(b). This higher
duty of care requires the county to use ordinary care to warn of a dangerous condition or to make
the condition reasonably safe if it knows of or should have known of the defect. Payne, 838
S.W.2d at 237 (emphasis added).
A. Special Defect
While the Legislature does not specifically define special defects, it compares them to
“excavations or obstructions on highways, roads, or streets.” TEX. CIV. PRAC. & REM. CODE
§ 101.022(b). “Special defects are unexpected and unusual dangers to ordinary users of the
roadway or sidewalk.” City of El Paso v. Chacon, 148 S.W.3d 417, 422 (Tex. App.—El Paso
2004, pet. denied). Additionally, while the condition on the property does not necessarily have
to be on the roadway, it must be “close enough to present a threat to normal users of the road.”
Id. Here, the door and pedestrian walkway complained of was located inside a building and not
outside, near a road. Likewise, appellant has presented no evidence that the door presented an
excavation or obstruction on an actual highway, road, or street. Thus, the defect, if any, with the
door was not a special defect.
B. Premises Defect
Next, we must determine whether appellant has produced more than a scintilla of
evidence of a premises defect. Because appellant did not pay for the use of the premises, he is
only a licensee. The elements for a premises liability cause of action involving a licensee are: (1)
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a condition on the premises posed an unreasonable risk of harm; (2) the defendant had actual
knowledge of the danger; (3) the plaintiff did not have actual knowledge of the danger; and (4)
the defendant breached its duty of ordinary care by either failing to warn of the condition or
failing to make the condition reasonably safe. State v. Williams, 940 S.W.2d 583, 584 (Tex.
1996).
Here, as previously mentioned, appellant argues the safety device designed to regulate the
speed by which the door opened and closed was either not attached or had been removed, thus
posing an unreasonable risk of harm to anyone on the outside of the door. As proof of the
missing device, appellant offers an affidavit by Elvira Garza, a county employee who worked in
the building, and deposition testimony by Jose Cantu, Sr., a former postal worker who delivered
mail in the building before appellant. Garza claims the door lacked a safety device because she
could see and hear the door slam “hard continuously.” Cantu asserts the door had no resistance
and that the device used to slow the door down was not attached “half the time.” Additionally,
appellant argues the county knew the door was in disrepair by offering his own deposition in
which he claims Ramos told him right after the accident that the door “got away from me.”
However, there was no evidence Garza, Cantu, or Ramos reported the broken or missing
device to county officials. As such, appellee argues the evidence presented by appellant does not
by itself establish that the safety device was not properly attached at the time of the accident or
that county officials knew the device was not attached at the time of the accident. We agree. In
City of Dallas v. Thompson, the evidence established the city knew a cover plate would come
loose from the floor and that employees would tighten the plate when this happened. 210
S.W.3d 601, 603 (Tex. 2006). One of the times when the plate was loose, a pedestrian walking
over the cover plate fell. Id. The Supreme Court upheld the city’s summary judgment
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determining that the appellant had not presented evidence of the city’s actual knowledge of the
condition at the time of the incident. Id. at 604 (emphasis added); see also Univ. of Tex. at
Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010). Similarly, in this case, appellant has not
presented evidence showing the county actually knew of the missing or broken safety device on
the day appellant was injured—or for that matter—the county knew the device was missing or
broken at any time in the past.
Appellant also claims appellee knew of the dangerous condition of the door because a
sign was posted on the inside warning persons to open the door slowly. However, this evidence
does not present a fact issue as to whether the door needed repair or whether it was missing a
safety feature regulating how fast the door would swing open.
Consequently, appellant has not produced evidence that the door posed an unreasonable
risk of harm or that appellee actually knew of the danger. The evidence produced by appellant
only “contemplates the hypothetical knowledge of a dangerous condition, not actual knowledge
of a dangerous condition.” Hayes, 327 S.W.3d at 117. Because there is no evidence showing the
county had actual knowledge of a dangerous condition at the time of the incident, appellant
failed to establish the elements for a premises defect case.
CONCLUSION
For the reasons stated above, appellant’s claim is precluded by the Texas Tort Claims
Act. Therefore, we affirm the trial court’s orders granting appellee’s motion to dismiss for lack
of jurisdiction and motion for summary judgment.
Sandee Bryan Marion, Justice
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