texas-department-of-transportation-v-yolanda-guidry-as-sole-heir-and ( 2007 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-06-419 CV ____________________

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant

V.

YOLANDA GUIDRY, as sole heir and representative of THE ESTATE OF TEMPIST BAZILE, DECEASED, and heir and next friend of THE ESTATE OF THE DECEASED, UNBORN CHILD OF TEMPIST BAZILE and MILTON LEWIS, Appellees

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On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-176,183

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MEMORANDUM OPINION  

   At approximately 12:10 a.m. on December 7, 2003, an automobile collision at the intersection of U.S. Highway 69 and FM 365 in Port Arthur, Texas, claimed the life of Tempist Bazile, as well as the life of her unborn child. Bazile, and her passenger, Milton Lewis, were southbound on the service road of Highway 69 when their vehicle was struck by a vehicle driven by Bernardo Morales, Jr., who was traveling west on FM 365. The accident report prepared by personnel with the City of Port Arthur Police Department indicated that Bazile failed to stop for a red light at the intersection, thus, precipitating the collision. Bazile was pronounced dead at the scene, and Lewis was transported to a local hospital for treatment. He ultimately survived the collision.

Bazile's mother, Yolanda Guidry, sued Texas Department of Transportation ("TxDOT"), Bernardo Morales, Jr., and Bernardo Morales, Sr., contending the defendants were liable for the deaths of Bazile and Bazile's unborn child. ⁽¹⁾ Lewis also filed suit against the three previously named defendants as well as against Bazile's estate. TxDOT filed a plea to the jurisdiction and motion for traditional and no-evidence summary judgment in both the Guidry and Lewis suits. ⁽²⁾ The trial court orally granted the plea to the jurisdiction with regard to Lewis' suit on the basis of his failure to provide pre-suit notice to TxDOT. See Tex. Civ. Prac. & Rem. Code Ann. § 101.101 (Vernon 2005); Tex. Gov't Code Ann. § 311.034 (Vernon Supp. 2006). The trial court orally denied the plea to the jurisdiction as to Guidry's claims. However, the only written order appearing in the record includes in the style all of the individual plaintiffs and defendants, and merely states: "The Court, having considered the State's Plea to the Jurisdiction, is of the opinion that the same should be, and here by [sic] is, Denied." TxDOT perfected this interlocutory appeal from the denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon Supp. 2006).

Lewis has not filed a brief in response to TxDOT's appellate issue. TxDOT contends it is "undisputed that Plaintiff Lewis failed to give notice[.]" Although TxDOT has not provided an affidavit to that effect nor directed our attention to any such evidence in the record, we do find that Lewis' trial counsel conceded the fact at the September 22, 2006, hearing. When asked if he had anything to controvert the fact that Lewis had failed to give notice of suit to TxDOT, Lewis' trial counsel replied, "I think [TxDOT] has imputed notice, Your Honor[,] . . . [b]ecause [Lewis] was riding in the same car with the lady that got killed." When asked for authority for that proposition, counsel responded that he had not found any at that time.

To satisfy the pre-suit notice requirement under section 101.101 of the Texas Tort Claims Act, "actual notice" under subsection (c) requires a plaintiff provide the governmental unit knowledge of the information to which it is entitled under subsection (a) and a subjective awareness that its fault produced or contributed to the claimed injury. See Tex. Dep't of Criminal Justice v. Simons, 140 S.W.3d 338, 348 (Tex. 2004); see also Tex. Civ. Prac. & Rem. Code Ann. §101.101. The Texas Legislature has made such notice a jurisdictional prerequisite "in all suits against a governmental entity." See Tex. Gov't Code Ann. § 311.034. We have recently found this provision to be procedural rather than substantive and therefore, retroactive. See Texas Dep't of Criminal Justice v. Simons, 197 S.W.3d 904, 906-07 (Tex. App.--Beaumont 2006, no pet.). Having failed to provide TxDOT notice as contemplated under section 101.101, Lewis was jurisdictionally precluded from filing suit against TxDOT. The trial court erred in failing to grant TxDOT's plea to the jurisdiction as to Lewis' claims against TxDOT. TxDOT's issue is sustained as to appellee Milton Lewis.

We now turn to TxDOT's issue with regard to the claims against it made by appellee Yolanda Guidry. An interlocutory appeal is available when a trial court denies a governmental unit's challenge to subject matter jurisdiction, irrespective of the underlying procedural vehicle used in obtaining the ruling. Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006). Undisputedly, TxDOT is a "governmental unit" as defined in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (Vernon 2005). In her original petition, Guidry alleges that the intersection where the collision occurred was "unsafe, unreasonably dangerous and not properly maintained" by TxDOT who "had knowledge of this dangerous condition and failed to use ordinary care to protect [Bazile] from this unreasonable risk of harm." Guidry's petition does not specify how or in what way the intersection in question was "unreasonably dangerous."

In her appellate brief, Guidry contends that at the hearing on the plea to the jurisdiction, conducted on September 22, 2006, TxDOT argued the "merits of Guidry's cause of action rather than just disput[ing] jurisdictional facts." ⁽³⁾ The consequences of this tactic, Guidry further contends, are fatal to TxDOT because on appeal of a grant or denial of a plea to the jurisdiction the reviewing court "is precluded from considering the merits of the case." Additionally, Guidry argues our review of TxDOT's sovereign immunity claim is strictly limited to sections 101.025 and 101.021(2) of the Tort Claims Act because TxDOT neither verbally raised any other section during the September 22, 2006, hearing, nor cited to any other provision in its original appellate brief. As the following will demonstrate, Guidry's assertions are misplaced.

"Sovereign immunity protects the State from lawsuits for money damages." Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). TxDOT, a governmental unit, is immune from both suit and liability unless its immunity is waived by the provisions of the Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.025 (Vernon 2005); Tex. Dep't of Transp. v. Garza, 70 S.W.3d 802, 806 (Tex. 2002). Sovereign immunity from suit deprives a trial court of subject matter jurisdiction and is, therefore, properly asserted in a plea to the jurisdiction. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224-26 (Tex. 2004). In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the trial court's jurisdiction by alleging a valid waiver of immunity. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540-42 (Tex. 2003); Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). "[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." Miranda, 133 S.W.3d at 227.

Section 101.021 of the Tort Claims Act provides a limited waiver of sovereign immunity. See Miller, 51 S.W.3d at 587. Section 101.021 has been interpreted to waive sovereign immunity in three general areas: 1) injury caused by an employee's use of a motor-driven vehicle, 2) premises defects, and 3) injuries arising out of conditions, or an employee's use, of tangible personal or real property. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000) (quoting Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976)); see also Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) ("Property does not cause injury if it does no more than furnish the condition that makes the injury possible."). Guidry's petition attempts to demonstrate waiver of immunity under section 101.021(2) of the Tort Claims Act by alleging a premises defect claim. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 2005); Able, 35 S.W.3d at 612.

Generally, the Tort Claims Act waives immunity for personal injuries and deaths proximately caused by a condition or use of personal or real property if a governmental unit would, were it a private person, be liable. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). The condition/use-of-property waiver is an exception to the general rule that the State cannot be held liable for its own negligence. See City of Grapevine v. Sipes, 195 S.W.3d 689, 692 (Tex. 2006). One of the listed exceptions to the Tort Claims Act's limited waiver of immunity relates to claims arising from "the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice[.]" See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(2) (Vernon 2005).

In its plea to the jurisdiction, TxDOT challenges the existence of jurisdictional evidence of any malfunction or defective condition of the traffic light controlling the intersection in question at the time of the collision, as well as the existence of jurisdictional evidence establishing TxDOT's knowledge of any purported malfunction or defective condition of the traffic light prior to, or at the time of, the collision. Filed along with the plea to the jurisdiction was an affidavit from Bill Graves, the supervisor of the traffic signal shop for TxDOT's Beaumont District ("signal shop"), and custodian of all of the records kept by the signal shop. These records include maintenance records on all traffic signals for which the signal shop is responsible, the signal shop's daily activity reports, a complaint log listing circumstances which the signal shop is informed of possible problems with traffic signals, certification test reports, and signal maintenance log entries. The signal shop's responsibility includes maintenance of the traffic light located at the intersection in question. The essence of Graves' affidavit, supported by pertinent TxDOT maintenance records, is that, at the time of the collision, the traffic light was operating properly. Graves reached this conclusion from the fact that he could find no signal shop record suggesting "conflicting green signals" ever existed at the intersection in question, and from the fact that the signal's one repair, completed on August 14, 2003, "dealt with a condition wherein the subject intersection signal lights all, automatically, went to flashing red." He further indicates that after the signal's repair on August 14, 2003, "through the month of December, 2003," he could find no record or report to indicate any malfunction of the traffic light in question.

Graves' affidavit also established that the traffic light in question was equipped with a "conflict monitor," the purpose of which is to cause the traffic light to immediately switch to flashing red lights in all directions if some sort of malfunction or "conflict" occurs. He also stated that when a "conflict" occurs and a traffic light switches to flashing red lights on all sides, it continues functioning in that manner until it is repaired manually, as traffic lights do not have the capacity for remote correction. As Graves could find no signal shop record or report documenting a malfunction of the traffic light in question at or near the time of the collision, Graves concluded "[i]t would be highly speculative to suppose that any such an inexplicable, [undocumented, self-curing, conflict] event occurred." In sum, TxDOT's jurisdictional evidence established that since August 15, 2003, the traffic light had functioned properly and was functioning properly at the time of the collision. It also established that any purported malfunction of the traffic light at the relevant time in question shown by some other source was completely unknown to TxDOT.

Thereafter, Guidry filed a supplemental response to TxDOT's plea to the jurisdiction and summary judgment motions. This supplemental response contains a report from Guidry's expert, James W. Gartrell, Jr., a consulting engineer. In the course of formulating his opinion, Gartrell examined a number of sources, including accident reports, depositions, traffic signal sequencing, site measurements, TxDOT maintenance records, and the deposition of Bill Graves taken on September 14, 2006. The pertinent portions of Gartrell's opinion appear in the record as follows:

THE DEPOSITION OF MR. BILL GRAVES, ON [SEPTEMBER] 14, 2006, PROVED THESE DOCUMENTS TO BE INACCURATE, INCLUDING THE MAINTENANCE RECORDS TO BE INACCURATE.

PRELIMINARY FINDINGS:

. . . .

Based on the above and the accident reports and verbal information from area wrecker drivers, the intersection is hazardous and (TXDOT) knew or should have known that the initial design / sequency [sic] of the traffic signal and / or the revised sequencing of the traffic signal was a hazardous condition. The signal was installed in the 1970's and TXDOT assumed the operation of maintenance in 1988.

. . . .

TXDOT provided inaccurate traffic signal sequence and sign and maintenance information, as revealed by Mr. Bill Graves, on September 14, 2006, at his deposition.

Providing this inaccurate information, in such a late time, will require additional assessment time and a complete re-evaluation of engineering assessments. At this time the revised TXDOT data seems to indicate inaccurate maintenance records and a failed inventory control system of the signal monitoring system and a traffic signal system.

TXDOT is the sole source for the traffic signal sequence and signal maintenance information. Failure to provide accurate information either prepared for this matter or providing records incorrectly have caused me to doubt the credibility of the TXDOT source of information possibly indicating no records were in existence, as required, and the records submitted by TXDOT [were] prepared for this matter and not based on field conditions, as was requested by TXDOT.

The traffic signals are out of alignment with the driving lanes, in conflict with applicable specifications. This could have been caused by inaccurate TXDOT signal head replacement, which provided a hazardous condition to vehicles traveling Southbound on U.S. 69 access road, by causing a delayed reaction time to drivers.

Guidry's response material, apparently filed on September 15, 2006, also includes deposition excerpts of Bill Graves recorded on September 14, 2006, and mentioned by Gartrell as the source of TxDOT's purportedly inaccurate maintenance records. In this deposition, Graves stated that TxDOT determined the traffic light in question had been working properly at the time of the collision, a fact confirmed by subsequent inspection of the light done on December 29, 2003. Graves's deposition included the following exchange: Q. [Guidry's counsel] Okay, sir. On page 4, the fifth paragraph down: Indications are the conflict monitor was properly working. The signals did not switch to all flashing red and no service technician was called for after the subject accident. Thus, it is evident that no conflict occurred. That is, had the signal switched to all flashing red, it would not have switched back to normal operation by itself without service by a technician.

But you weren't at the accident site immediately after it happened. That's correct, isn't it?

A. [Bill Graves] That is correct.

Q. So, there'd be no way for you to know if it had gone to flashing red at that time, correct?

A. It was not reported to me that it was on red flash.

Q. The last paragraph on page 4: A TXDOT employee who saw a conflict would report it. When signals or signs are down or malfunctioning, there are so many drivers, citizens, and law enforcement officers with cell phones and radios that problems with signs are routinely, typically, promptly reported. Upon such a report, a service technician would be dispatched. There would be a record of such a dispatch. Because there is no such record at or near the time of the accident in question, it is evident that no malfunction was reported and none occurred.

But you can't know if any malfunction occurred at the time, can you?

A. I believe there not to have been a malfunction.

. . . .

Q. And, in fact, you say on page 6 -- sorry page 5 of your affidavit that in referring to whether or not there was a conflict in the green signals it would be highly speculative to suppose that any such inexplicable event occurred; is that right?

A. That's correct.

Q. But it's speculation, isn't it, whether or not it occurred if you weren't there.

. . . .

Q. Correct?

A. I -- I believe the equipment is pretty stable; and if it messes up, it stays messed up until it is repaired. It's not self-healing. I don't think that there was any malfunction or conflict that did occur, you know, because it was not reported to me that there was a problem.

The portion of Graves' deposition with which Gartrell apparently took issue appears during the following exchange:

Q. [Guidry's counsel] [TxDOT's attorney] asked you some questions about the -- about these conflict monitors, sometimes referred to in your log as safety monitors, and the issue of -- of what monitor was present at the intersection in December of 2003. Each time a safety monitor or conflict monitor is changed it's recorded in this log; is that correct?

A. [Bill Graves] It is supposed to be.

Q. And, therefore, if it was changed, it would be reflected here; is that right?

A. It should be.

Q. And on this particular -- in the time frame from June of '03 to September of '04 there's an indication that monitor No. 9512-579 was installed on June - - I guess June 2nd of '03, is that right, or -- or is that date wrong?

A. June 2nd of '03, you're asking which monitor was installed?

Q. Yes, sir, at least -

A. 9512-579 was installed on June the 2nd.

Q. Okay. According to these notes -- and then there's not another indication in this log about any -- another conflict monitor being installed between June of '03 and September of '04; is that correct?

A. That is correct.

Q. And, yet, there is a different safety monitor number that's indicated that's replaced in September of '04 -

A. That is correct.

Q. -- than the one that was installed in June of '03; and, so, there is no way based on these records to be certain if the same safety monitor -- if any of these monitors were hanging at that intersection -- or at that intersection -- excuse me -- not hanging -- installed at that intersection on December 7, 2003.

. . . .

Q. Is that correct?

A. It was either one of the two. I can't - -

. . . .

A. -- say for sure.

Q. There's no way for you to know that based on these records.

. . . .

Q. Is that accurate?

A. It was one of these two.

Q. Well -

A. The records indicate 9512-579 was installed in June. The records indicate monitor 9606-793 was removed on 9/04. I cannot tell you at what date safety monitor 9512-579 was removed; but when it was removed, it was replaced with safety monitor 9606-793.

Q. Well, there's no way for you to know that, though, is there, from this record because there's no record of it being installed, is there?

A. I don't know.

Q. But there's not any in this record.

A. There's no indication that that was installed in this record.

Thereafter, TxDOT supplemented its plea to the jurisdiction, attaching an affidavit from Bill Graves made subsequent to Gartrell's preliminary report, along with supporting TxDOT maintenance records. Titled "Summary Disposition Affidavit Regarding History of Signal Light Maintenance," Graves' affidavit includes the following pertinent portions:

On April 10th, 2003, the TxDOT Signal Shop received word from the City of Port Arthur that it had received a call or complaint that all the lights were turning green at the same time on FM 365 at US 69. According to time records (attached), TxDOT Signal Technician Steve Jones was dispatched to the intersection. He arrived about 10:29 AM, observed the operation of the signal, appears to have found no problem, and changed the safety Monitor. (See attached records.)

. . . .

No objective test shows any pertinently (sic) defective Monitor. Regardless, in an abundance of caution, Steve Jones made a Monitor replacement on April 10, 2003.

. . . .

That is, the Monitor that was installed on 4/10/03 was SM # 9503-312. It was subsequently tested on 6/2/03, and passed all tests. See attached test report.

And, the Monitor that was installed on 6/2/03 was SM # 9512-579. It was subsequently tested on 10/29/04, and passed all tests. See attached test report.

And, Monitor SN 9606-793, which appears to have been incorrectly denoted as installed on 9/20/04, also was subsequently tested, on 9/27/04, and passed all tests. See attached test report.

Thus, nothing indicates that any defect was found in any test for any Monitor that was installed at any pertinent place and time.

Rather, the only documentation of a possible green conflict is based on hearsay reported to the City of Port Arthur, to "Christine," who relayed such hearsay to TxDOT, after which TxDOT sent Steve Jones to the intersection to perform the work as stated above.

No report of a green conflict is shown to have been corroborated at any time by any independent investigator or by any objective test.

As noted above, Guidry's petition may be construed as alleging a waiver of immunity by way of premises defect under section 101.021(2) of the Tort Claims Act. The report submitted by her expert, James Gartrell, focused the "dangerous condition" of the intersection, as pleaded by Guidry, on a purported malfunction or defective condition or placement of the traffic light at the time of the collision. Under this theory of liability, section 101.060(a)(2) of the Tort Claims Act becomes applicable, and retains TxDOT's immunity from suit unless negated by Guidry's jurisdictional evidence. See Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(2); Miranda, 133 S.W.3d at 228. The provisions of section 101.060 do not create a cause of action separate and apart from a premises defect cause of action, but act as a further limitation on a governmental unit's waiver of immunity in situations involving a "condition" or malfunction of a traffic control device. See In re Tex. Dep't of Transp., 50 Tex. Sup. Ct. J. 546, 2007 WL 704584, at *4 (Tex. Mar. 9, 2007) (per curiam) (orig. proceeding).

We have carefully examined all of the jurisdictional evidence submitted by both parties and find nothing to indicate any malfunction or other defective condition or placement of the traffic light at the time of the collision on December 7, 2003. Gartrell's report consists of speculation and conjecture regarding the condition of the intersection in question, and he essentially admits as much when he states that TxDOT's purportedly inaccurate information "will require additional assessment time and a complete re-evaluation of engineering assessments. . . . I will need additional time to review assessment of the hazardous conditions of the intersection to Southbound U.S. 69 access road." As such, his statement that "the intersection is hazardous and (TXDOT) knew or should have known that the initial design / [sequencing] of the traffic signal . . . was a hazardous condition" is conclusory and therefore, fails to raise a material fact with regard to TxDOT's retention of immunity under section 101.060(a)(2). ⁽⁴⁾

The record before us indicates that Guidry has failed in her burden to bring forward sufficient jurisdictional evidence to create a fact question regarding the trial court's subject matter jurisdiction in the face of TxDOT's jurisdictional evidence filed in support of its plea to the jurisdiction. See Miranda, 133 S.W.3d at 227-28. TxDOT established the traffic light was working properly at the time of the collision on December 7, 2003, and further established a complete lack of any records or reports that the traffic light had malfunctioned, or otherwise constituted a "dangerous condition," at or near the time of the collision so as to place TxDOT on notice and triggering its duty to make repairs. No other material jurisdictional evidence of a dangerous condition with regard to the intersection in question was provided by Guidry.

As the jurisdictional evidence establishes TxDOT's immunity from liability was retained under section 101.060(a)(2), its immunity from suit was also retained. See Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a) (Vernon 2005). We have already sustained TxDOT's issue as to appellee-Milton Lewis as Lewis was jurisdictionally precluded from filing suit against TxDOT for failing to provide proper notice as required under section 101.101. We sustain TxDOT's appellate issue with regard to Guidry's claims against it for reasons discussed above. As the trial court lacks subject matter jurisdiction over TxDOT, we reverse the order denying TxDOT's plea to the jurisdiction and render judgment dismissing both Lewis' and Guidry's causes of action against TxDOT.

REVERSED AND RENDERED.

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CHARLES KREGER

Justice

Submitted on April 12, 2007

Opinion Delivered May 24, 2007

Before Gaultney, Kreger and Horton, JJ.

1. Guidry sued as sole heir and representative of the estate of Bazile and as heir and next friend of the estate of the deceased's unborn child.

2. Additional suits were brought by the liability carriers of the individual parties. All suits were ultimately consolidated by the trial court under one cause number, "A-176,183."

3. Guidry cites Brazos Transit Dist. v. Lozano, 72 S.W.3d 442, 445 (Tex. App.--Beaumont 2002, no pet.) as support for this proposition. However, Lozano has been explicitly disapproved with regard to this proposition in Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006).

4. At the September 22, 2006, hearing on TxDOT's plea to the jurisdiction, Guidry was given the opportunity to present additional jurisdictional evidence to the trial court, but explicitly declined.