Alice Smith, Individually and on Behalf of Donald Ray Smith v. Texas Department of Criminal Justice ( 2007 )

Affirmed and Memorandum Opinion filed November 6, 2007

Affirmed and Memorandum Opinion filed November 6, 2007.

In The

Fourteenth Court of Appeals

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NO. 14-07-00064-CV

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ALICE SMITH, INDIVIDUALLY AND ON BEHALF OF DONALD RAY SMITH, DECEASED, Appellant

V.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellee

On Appeal from the 412th District Court

Brazoria County, Texas

Trial Court Cause No. 35957

M E M O R A N D U M   O P I N I O N

In this wrongful death case, appellant challenges an order granting a plea to the jurisdiction in favor of the Texas Department of Criminal Justice, appellee. We affirm.

I. BACKGROUND

Donald Smith (Adecedent@), was an inmate with the Texas Department of Criminal Justice (ATDCJ@) and was assigned to a crew responsible for repairing power lines for the State.  Decedent was trained and accredited to work on power lines while he was incarcerated at TDCJ.  On May 6, 2005, decedent was called out as part of a crew to repair a downed power line in a horse pasture on TDCJ=s property.  Decedent=s supervisor, Clifford Guant, arrived at the scene around 5:00 p.m. to assess the damaged power line.  The rest of the crew, which included supervisor Anthony Allen, inmate Lemons, and decedent, arrived around 5:50 p.m. in trucks equipped with the supplies necessary to repair the downed line.  When the crew arrived, they were informed that the power lines were still energized and were told not to go near the line.  The power line was hanging three feet off the ground in the open pasture, about 40 feet away from where the trucks were parked.

 The crew was then told that the power would be shut off, and they began to unload equipment from the truck.  Supervisor Guant notified the TDCJ unit that they were cutting the power.  He then directed inmate Millard, another crew member, to pull the power switches.  Decedent began unspooling wire from the truck into the open pasture.  At this time, supervisor Allen turned his back on the crew to take a personal phone call.  While unspooling the wire from the truck, decedent backed into the dangling power line that was still energized with 7200 volts of power.  Decedent received an electric shock and, as a result, died three days later. 

Alice Smith, decedent=s mother, brought this suit individually and on behalf of his estate for wrongful death and survival damages.  The trial court granted TDCJ=s plea to the jurisdiction, dismissing the case with prejudice for lack of subject matter jurisdiction on the ground that appellant failed to allege facts demonstrating waiver of TDCJ=s immunity from suit under the relevant provisions of the Texas Tort Claims Act (the AAct@).   Appellant raises two issues in this appeal: (1) the trial court erred in dismissing the case because appellant=s evidence raised a fact issue as to whether decedent had actual knowledge of the dangerous condition, a fact that would waive TDCJ=s sovereign immunity; and (2) TDCJ was not entitled to an exclusion under the Act because the method by which TDCJ supervised decedent=s work on the high voltage lines should be characterized as implementing policy, not a discretionary function of formulating policy.

II. ANALYSIS

A. Standard of Review

A plea to the jurisdiction challenges the trial court=s authority to determine the subject matter of the action.  Tex. Dept. of Transp. v. Jones, 8 S.W.3d 636, 638-39 (Tex. 1999).  Governmental immunity from suit defeats subject matter jurisdiction.  Dallas Area Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003).  Whether the trial court had subject matter jurisdiction is a question of law that we review de novo.  Tex. Natural Resource Conservation Comm=n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mogayzel v. Tex. Dept. of Transp., 66 S.W.3d 459, 463 (Tex. App.CFort Worth 2001, pet. denied).  In performing this review, we do not consider the merits of plaintiff=s case, but focus instead on the plaintiff=s pleadings and the evidence pertinent to the jurisdictional inquiry.  County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).  We construe the pleadings liberally in favor of conferring jurisdiction.  Tex. Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam).  The pleadings are to be construed in favor of the plaintiff, and the court must look to the pleader=s intent.  Brown, 80 S.W.3d at 555; Tex. Dept. of MHMR v. Lee, 38 S.W.3d 862, 865 (Tex. App.CFort Worth 2001, pet. denied). Nevertheless, a waiver of immunity must be clear and unambiguous.  Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex. 2006).  In sum, we determine whether the plaintiff has pleaded a claim for which a governmental unit has waived immunity by reading the pleadings broadly and the alleged waiver narrowly. 

Here, the parties do not dispute that TDCJ is a governmental unit under the Act. Therefore, we will review appellant=s pleadings and jurisdictional evidence to determine if her claims fall within a waiver of immunity under the Act. 

B. Waiver of Immunity Under the Act

In appellant=s first issue, she alleges that the trial court erred in dismissing the case because her evidence raised a fact issue as to whether TDCJ waived immunity under the Act.  Specifically, appellant argues that TDCJ waived its sovereign immunity under section 101.021(2) because: (1) the condition of the premises presented an unreasonable risk of harm to decedent, a licensee; (2) TDCJ, the landowner, knew of the dangerous condition; (3) decedent did not have actual knowledge of the hazardous condition; (4) TDCJ failed to exercise ordinary care to protect decedent from danger; and (5) TDCJ=s failure to exercise ordinary care was the proximate cause of decedent=s death.  See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To support this argument, appellant relies on the deposition testimony of crew members stating that (1) decedent was called out by TDCJ to repair a downed power line energized with 7200 volts of power on its property; (2) decedent was told that the power was going to be cut by inmate Millard; (3) decedent waited a sufficient amount of time before backing into the downed power line; (4) inmate Millard only pulled the power on two switches; and (5) supervisors Allen and Guant knew that one line remained energized but failed to warn decedent. According to appellant, this evidence is sufficient to overcome TDCJ=s plea to the jurisdiction because it raises a fact issue as to whether TDCJ waived immunity under section 101.021(2) of the Act.

            Under the doctrine of sovereign immunity, a governmental unit is immune from suit and liability in the absence of a constitutional or statutory provision creating such liability.  See Medrano v. City of Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.CSan Antonio 1999, no pet.).  The Act creates a limited waiver of sovereign immunity.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).  In order for immunity to be waived under the Act, the claim must arise under one of three specific areas of liability for which immunity is waived, and the claim must not fall under one of the exclusions from waiver.  Medrano, 989 S.W.2d at 144.  The three specific areas of liability for which immunity has been waived are (1) injury caused by an employee=s use of a motor-driven vehicle, (2) injury caused by a condition or use of tangible personal or real property, and (3) claims arising from premise defects.  Tex. Civ. Prac. & Rem. Code Ann. '' 101.021(1), 101.021(2), 101.022 (Vernon 2005); Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 719 (Tex. App.CHouston [1st Dist.] 1999, pet. denied).  Appellant=s pleadings below and appeal before this Court does not reflect that this suit was prosecuted on an ordinary premise defect theory under section 101.022.  See City of Baytown v. Townsend, 548 S.W.2d 935, 939 (Tex. App.CHouston [14th Dist.] 1977, writ ref=d n.r.e.).  Therefore, appellant=s only claim to waiver in the instant appeal is grounded in an injury arising from the condition of real property under section 101.021(2).  We now examine the pleadings and jurisdictional evidence appellant offers to support her jurisdictional argument under 101.021(2).

            If decedent=s injury arose out of the condition of TDCJ=s property, it owed decedent the same duty a private landowner owes a licensee.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.021(2).  An owner, such as TDCJ, must avoid injuring a licensee by willful, wanton, or grossly negligent conduct.  See Payne, 838 S.W.2d at 237.  However, when the owner has actual knowledge of a dangerous condition and the licensee does not, the owner=s duty is to warn the licensee or make the premises reasonably safe. Id.  The elements of proof required to establish liability in the instant case are (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner had actual knowledge of the condition; (3) the licensee did not have actual knowledge of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner=s failure was a proximate cause of injury to the licensee.  See id. 

TDCJ does not dispute the first two elements of liability.  However, the third element, that the licensee did not have actual knowledge of the dangerous condition, is key to appellant=s first issue.  Actual knowledge embraces those things which a reasonably diligent inquiry and means of information at hand would have disclosed.  City of San Benito v. Cantu, 831 S.W.2d 416, 425 (Tex. App.CCorpus Christi 1992, no writ); see also Weaver v. KFC Management, Inc., 750 S.W.2d 24, 26-27 (Tex. App.CDallas 1988, writ denied) (stating that a licensee is also imputed with knowledge of those conditions perceptible to him, or the existence of which can be inferred from the facts within his present or past knowledge).  We must now examine the pleadings and jurisdictional evidence to determine whether decedent had actual knowledge of the hazard. 

The live power line was hanging three feet from the ground in an open horse pasture when decedent and the rest of his crew arrived.  The crew was told that because the downed power line was still energized, they needed to stay away from it.  This shows that each member of the crew, including decedent, had actual knowledge of the danger.  Even if decedent believed that the power had been cut after he had actual knowledge of the danger, as alleged by appellant, appellant cites no controlling authority that allows an injured party to subsequently lose actual knowledge once that party has been made award of the dangerous condition.   See Smith v. Radam, Inc., 51 S.W.3d 413, 415-16 (Tex. App.CHouston [1st Dist.] 2001, no pet.) (stating that a reviewing court will not conduct an independent review of the record and applicable law to determine whether error complained of occurred when appellant fails to cite any controlling authority on that point of error).  There were no affirmative representations of fact made by TDCJ that it was safe for decedent to make contact with the downed power line.  Instead, decedent assumed that the condition of the property became safe within a matter of one minute after being informed that the power would be cut off.  In fact, the usual and customary safety operation employed by TDCJ prior to working on a downed power line was to (1) notify the unit affected by the outage that power would be shut down, (2) cut the power, (3) check the power with a meter to verify the power was down, and (4) ground the conductors.  On the day in question, decedent did not follow this procedure.

Crew members testified that they knew the downed line was still energized.  If the danger of approaching the downed power line was apparent to supervisors Guant and Allen and inmate Lemons, then there is no reason to assume or believe that decedent, who was a trained lineman and had access to the same information, did not have actual knowledge of the same danger.  The conspicuousness of the danger was apparent to all, including decedent.  See Cantu, 831 S.W.2d at 425.  Therefore, TDCJ was relieved of its duty to further warn or make safe the condition of the real property.  Id.  Because decedent had actual knowledge of the dangerous condition, and the record is void with evidence of willful, wanton, or grossly negligent conduct on behalf of TDCJ, we find that TDCJ did not breach its duty to decedent under section 101.021(2).  Therefore, TDCJ did not waive its sovereign immunity under the Act.  We overrule appellant=s first issue.

Having concluded that TDCJ=s sovereign immunity was not waived, we do not reach appellant=s second issue addressing whether TDCJ=s conduct fell under one of the Act=s exclusions from waiver.  Accordingly, we affirm the  trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed November 6, 2007.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

Do Not Publish C Tex. R. App. P. 47.2(b).