City of Bay City v. Bobbie P. Gaspard

NUMBER 13-14-00439-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF BAY CITY, Appellant
v.
BOBBIE P. GASPARD, Appellee.
On appeal from the 23rd District Court
of Matagorda County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
Appellee Bobbie Gaspard tripped and injured herself while exiting the Business
Development Center (the Building) owned by appellant City of Bay City (the City).
Gaspard filed a premises defect suit against the City. The City filed a plea to the
jurisdiction, claiming that Gaspard did not plead sufficient facts to demonstrate that the
City had waived its sovereign immunity. After the trial court denied the City’s plea, the
City filed this appeal. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West,
Westlaw through Chapter 46, 2015 R.S.) (allowing an interlocutory appeal after the grant
or denial of a government’s plea to the jurisdiction). The City argues in three issues that
the trial court erred in denying its plea to the jurisdiction. We reverse and render judgment
for the City.
I. BACKGROUND
According to the City, around 1994, City employees in the Building experienced
problems with the wind blowing the front doors open, scattering all of their papers around,
and lowering the temperature in the offices. Building Official Jimmy Hendrickson was
given the job to fix the problem. Hendrickson stated during his deposition that he decided
that the best solution was to enclose the covered front porch area with glass, and include
exterior doors between the supporting columns of the porch roof. He testified that he
hired a glass company to accomplish the task, sometime between 1994 and 1998.
Hendrickson claimed that he personally met with Vaughn Watts, the owner of the glass
company, to discuss the design of the porch area and to tell Watts exactly how he wanted
the porch built. Hendrickson further asserted that the glass area was constructed exactly
“as [he] intended and in accordance with the design that [he] developed.” Outside the
installed doors, there were only two steps: a step down from the doorway and a second
step down onto the sidewalk. Hendrickson testified that “at the time that it was done, it
appeared that was the only way we could do it.”
Gaspard testified in her deposition, even though she could not give a specific
number, that she had visited the Building about once a month for the previous five years
2
to attend meetings and that prior to the accident, she used the same stairs on almost
every visit.1 Gaspard admits that on October 30, 2012, she went to the Building as usual.
As she left the Building, she tripped and fell on the stairs, sustaining serious injuries.
Gaspard filed suit against the City and alleged a premises defect cause of action, claiming
that the construction of the exit steps violated the City’s building code. The City filed a
plea to the jurisdiction, claiming that the City had not waived its immunity. Gaspard replied
by filing an amended petition and a response. Attached to the response was an affidavit
from Gaspard’s daughter, Joan. In Joan’s affidavit, she testified that about a week after
her mother tripped, Joan went to the Building to speak with Karen, an employee of the
City. A conversation ensued with Joan, Karen, and an unidentified woman inside the
Building. Joan mentioned the alleged difficulty of the door threshold. Joan claims that
one of the woman said the exact words, “most fall in when entering.” However, Joan
could not identify specifically which person said those words. The City objected to Joan’s
testimony as inadmissible hearsay; the court overruled the objection. The City also
objected to the deposition testimony of Kelly Golda, Gaspard’s retained expert, that was
attached to Gaspard’s response; this objection was overruled.
At a hearing on June 16, 2014, after hearing arguments, the trial court advised the
parties that he would be denying the plea to the jurisdiction and told Gaspard that she
had until July 2, 2014 to supplement the record, if she so desired. Gaspard responded
to the City’s objections and plea to the jurisdiction and attached an affidavit from Golda.
On July 2, 2014, the trial court denied the City’s plea to the jurisdiction. The City filed its
notice of appeal on July 15, 2014.
1 Gaspard testified that she had used the handicap ramp a few times but stopped using the ramp
after finding the door at the top of the ramp locked on several occasions.
3
II. STANDARD OF REVIEW AND APPLICABLE LAW
To determine whether the plaintiff has affirmatively demonstrated the court's
jurisdiction to hear the case, we consider the facts alleged by the plaintiff and, “to the
extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.” Tex.
Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001). If a
plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such
defect is incurable, immediate dismissal of the case is proper. Peek v. Equip. Serv. Co.,
779 S.W.2d 802, 804—05 (Tex. 1989). Otherwise, the plaintiff should be given an
opportunity to amend its pleadings to demonstrate jurisdiction. Id. The process of
deciding whether jurisdictional facts have been affirmatively plead is similar to a summary
judgment: if the evidence does not raise a genuine issue of fact regarding the
jurisdictional issue, then the plea to the jurisdiction should be granted. Miranda, 133
S.W.3d at 228.
Sovereign immunity defeats a trial court’s subject matter jurisdiction. Tex. Dept.
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). The trial court should
determine the issue of subject matter jurisdiction, including whether sovereign immunity
divests it of jurisdiction, at the earliest stage possible before allowing the case to proceed.
Id. The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial
court's jurisdiction to hear a case. Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d
674, 676 (Tex. App.—Corpus Christi 2001, no pet.). Whether a plaintiff has alleged facts
that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law
that we review de novo. Miranda, 133 S.W.3d at 226.
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A. Governmental Functions
Government entities are immune from tort liability under the doctrine of sovereign
immunity unless the legislature has specifically waived immunity. Harris County v. Dillard,
883 S.W.2d 166, 168 (Tex. 1994). “A municipality is liable for torts arising from the
exercise of its proprietary functions, but it is generally immune from suit and liability for
torts arising from the exercise of its governmental functions.” Tex. Bay Cherry Hill, L.P.
v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.). Thus,
determining a municipality's immunity from suit is a two-step inquiry. Id. First, we
determine whether the function that forms the heart of the suit is governmental or
proprietary. Id. Then, if the function is governmental, we determine whether immunity
has been waived. Id. In the first step, we look to legislative definitions of governmental
actions. For example, the legislature has specifically stated that “[f]or purposes of
Chapter 101, Civil Practice and Remedies Code, a Type B corporation is a governmental
unit and the corporation's actions are governmental functions.” See TEX. LOC. GOV'T
CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46, 2015 R.S.).
Additionally, section 101.0215 of the Texas Civil Practice and Remedies Code
contains a non-exclusive list of governmental functions, including running civic centers
and community development programs pursuant to Chapters 373 and 374 of the Local
Government Code. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34) (West, Westlaw
through Chapter 46, 2015 R.S.); TEX. LOC. GOV'T CODE ANN. §§ 373, 374 (West, Westlaw
through Chapter 46, 2015 R.S.). Section 373 states that “through a community
development program, a municipality may conduct work or activities designed to: (1)
improve the living and economic conditions of persons of low to moderate income; (2)
5
benefit low or moderate income neighborhoods . . . .” TEX. LOC. GOV'T CODE ANN. §
373.004 (West, Westlaw through Chapter 46, 2015 R.S.).
B. Waiver of Immunity
If the suit does involve a governmental function, then the second step is to
determine whether immunity has been waived. Tex. Bay Cherry Hill, L.P., 257 S.W.3d at
389. One waiver of sovereign immunity is the Tort Claims Act, which allows suits to be
brought against the government for injuries caused by: 1) the use of publicly-owned
automobiles; 2) premises defects; and 3) the conditions or use of personal or real
property. See TEX. CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter
46, 2015 R.S.). The Act specifically waives sovereign immunity from two types of premise
defect claims: a special defect and a regular premise defect. Id. § 101.022 (West,
Westlaw through Chapter 46, 2015 R.S.). Which defect is involved affects the standard
of care that will be applicable. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843
(Tex. 1997).
Special defects are limited to suits involving “excavations or obstructions on
highways, roads, or streets” but implicate a higher standard of care then regular premise
defect claims. See id. § 101.021. Special defects are usually the kind associated with
the road itself. See Roberts, 946 S.W.2d at 843. To determine if a defect is special,
courts should look to factors such as the size, nature, location, and permanence of the
condition. See City of Austin v. Rangel, 184 S.W.3d 377, 383 (Tex. App.—Austin 2006,
no pet.). However, even when courts have found special defects that are not on the road
itself, they additionally find that the defects must still affect ordinary users of the sidewalk.
See Roberts, 946 S.W.2d at 843; City of El Paso v. Chacon, 148 S.W.3d 417, 422–23
6
(Tex. App.—El Paso 2004, pet. denied); see also Payne, 838 S.W.2d at 239 (holding that
a culvert was not a special defect because pedestrians walking up and down the sidewalk
normally would not come across the culvert; only pedestrians who walked perpendicular
to the sidewalk would encounter the alleged defect). If the defect is special, then the
landowner is required to use ordinary care to reduce unreasonable risks of harm created
by conditions that the landowner was, or reasonably should have been, aware of. See
Roberts, 946 S.W.2d at 843
In contrast, a regular premise defect is any defect not classified as special. See
id. In a regular premise defect case, the plaintiff must plead:
1) a condition of the premises created an unreasonable risk of harm to the
licensee; 2) the owner actually knew of the condition; 3) the licensee did not
actually know 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 the injury to the licensee.
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). This
requires the landowner to actually be aware of the allegedly dangerous condition; with a
special defect, a landowner may still be liable if he should have been reasonable aware
of the allegedly dangerous condition. The plaintiff must raise a genuine issue of material
fact on each of the five elements of a regular premises defect claim. See Payne, 838
S.W.2d at 237.
One element is that the premise owner actually knew of the dangerous condition.
Id. Actual knowledge is knowing of an existing dangerous condition at the time of the
accident, not merely knowing that a dangerous condition could possibly develop over
time. See Reyes v. City of Laredo, 335 S.W.3d 605, 608 (Tex. 2010) (per curiam); City
of Dallas v. Prado, 373 S.W.3d 848, 854 (Tex. App.—Dallas 2012, no pet.). Although the
7
absence of reports is just one factor to consider when determining whether a premises
owner had actual knowledge of a dangerous condition, “courts generally consider whether
the premises owner has received reports of prior injuries or reports of the potential danger
presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.
2008) (per curiam); see State ex rel. State Dept. of Highways & Pub. Transp. v. Gonzalez,
82 S.W.3d 322, 330 (Tex. 2002) (holding that the State had no actual knowledge of the
dangerous condition because the plaintiff “did not introduce any evidence showing that
anyone had reported” the dangerous condition to the State). Circumstantial evidence can
establish actual knowledge but “only when it ‘either directly or by reasonable inference’
supports that conclusion. City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008)
(citing State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)).
If the plaintiff does not raise a genuine issue of fact on each element, the plea to
the jurisdiction should be granted. See Miranda, 133 S.W.3d at 228. Unchallenged
hearsay can be used to raise issues of fact, but inadmissible hearsay that has been
properly objected to cannot be used to raise a genuine issue of material fact. See TEX.
R. EVID. 802; Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 233 (Tex. 1962);
Stovall & Associates, P.C. v. Hibbs Fin. Ctr., Ltd., 409 S.W.3d 790, 796 (Tex. App.—
Dallas 2013, no pet.); Patterson v. Mobiloil Fed. Credit Union, 890 S.W.2d 551, 555 (Tex.
App.—Beaumont 1994, no writ).
However, these waivers do not apply to claims based on discretionary acts of the
government. TEX. CIV. PRAC. & REM CODE ANN. § 101.056. This is an exception to the
exception; even if a claimant raises a genuine issue of material fact on every element of
the premise defect claim, the governmental entity has not waived its immunity to suit if
8
the act or failure to act was discretionary. See id. Whether an act is discretionary is a
question of law. State v. Miguel, 2 S.W.3d 249, 251 (Tex.1999) (per curiam). An act that
requires the exercise of judgment is discretionary. City of Dallas v. Hughes, 344 S.W.3d
549, 556 (Tex. App.—Dallas 2011, no pet.). The government may be liable if the law
“mandate[s] performance with such precision that nothing is left to discretion or
judgment.” Id. But design decisions are considered discretionary acts. See Mogayzel v.
Texas Dept. of Transp., 66 S.W.3d 459, 465 (Tex. App.—Fort Worth 2001, pet. denied)
(holding that the design of the highways is discretionary); City of Watauga v. Taylor, 752
S.W.2d 199, 202 (Tex. App.—Fort Worth 1988, no writ) (finding that the design of sewers
and drains is discretionary); see also City Of McAllen v. Hernandez, No. 13-04-00182-
CV, 2005 WL 2000818, at *5 (Tex. App.—Corpus Christi Aug. 22, 2005, pet. denied)
(mem. op.) (observing that the design of the lid covering a drainage box near the sidewalk
was discretionary).
This Court has held that the “decision of a governing body to choose one design
over another is the essence of the exercise of discretion.” Sanchez v. Matagorda County,
124 S.W.3d 350, 353 (Tex. App.—Corpus Christi 2003, no pet.). “This distinction is often
stated in terms of actions taken at the planning or policy-making level, which are immune,
and actions taken at the subordinate or operational level, which are not immune.” Mitchell
v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.—Dallas 1993), aff'd, 870 S.W.2d 21,
22 (Tex. 1994); McKinney v. City of Gainesville, 814 S.W.2d 862, 866 (Tex. App.—Fort
Worth 1991, no writ).
For example, in Hernandez, the plaintiff walked over a drainage box, and the shop-
made lid tilted, causing the plaintiff to seriously injure her legs. 2005 WL 2000818, at *1.
9
The plaintiff claimed that the city had violated its own engineering code in designing this
lid and thus the city had waived its immunity in this premise defect suit. Id. However, this
Court held that the design of the lid was a discretionary act, despite the fact that it violated
a specific engineering code. See id. at *6.
Similarly, in Sanchez, the plaintiff sued the county for the design of a bridge. 124
S.W.3d at 353. The City Commissioner testified that the layout of the bridge “was part of
the bridge design and was based partially on the increased cost that would have been
incurred” to build the bridge differently. Id. We held that this was not “a situation where
a governmental employee negligently performed the task he was ordered to do.” Id. To
the contrary, we concluded that the decision to design and remodel the bridge by adding
wooden planks longitudinally was a “discretionary act of a county government.” Id.
On the other hand, maintenance activities undertaken at the operational level are
not discretionary functions and are not immune from liability. Mitchell, 855 S.W.2d at 745;
see City of Round Rock v. Smith, 687 S.W.2d 300, 303 (Tex.1985); Taylor, 752 S.W.2d
at 202; Hamric v. Kansas City S. Ry., 718 S.W.2d 916, 919 (Tex. App.—Beaumont 1986,
writ ref'd n.r.e.). Thus, a government entity is immune from liability if an injury results from
the formulation of policy but is not immune from liability if the injury is caused by the
“negligent implementation of that policy.” Mitchell, 855 S.W.2d at 745; see State v. Terrell,
588 S.W.2d 784, 787 (Tex.1979).
III. DISCUSSION
In three issues, the City argues that the trial court erred by: 1) denying the City’s
plea to the jurisdiction; 2) considering Gaspard’s deposition notwithstanding the changes,
which affected the court’s ruling on the plea to the jurisdiction; and 3) failing to strike the
10
objectionable portion of Joan’s affidavit, which also affected the court’s ruling on the plea
to the jurisdiction. We will consider these three issues as one because issues two and
three are sub-issues of issue one. We conclude that the trial court erred in denying the
City’s plea to the jurisdiction because Gaspard fails to raise a genuine issue of fact on
every element of her premise defect claim. Furthermore, Gaspard’s suit arose out of a
discretionary government function. As such, the City had not waived its sovereign
immunity to this type of suit, and the trial court had no jurisdiction to hear this case. There
is nothing that Gaspard could plead to change these jurisdictional facts; therefore, the
case should be dismissed without an opportunity to amend.
A. The Underlying Action Was Governmental
The City argues that its plea to the jurisdiction should have been granted. The first
step in determining the City’s immunity from liability is determining whether the underlying
action is governmental or proprietary. Tex. Bay Cherry Hill, 257 S.W.3d at 389. The City
asserts that Gaspard’s claims arise out of a governmental function because: 1) the
Building is used by the Bay City Community Development Corporation (BCCDC), the
City’s 4B sales tax corporation; and 2) the BCCDC is engaged in activities on the
enumerated list of government functions in the Torts Claim Act. The City asserts, and
Gaspard does not refute the claim, that the BCCDC is the City’s 4B sales tax corporation.
Therefore, the decision to design and build the steps and the glass porch was an action
of the City’s 4B sales tax corporation, which is legislatively defined to be a governmental
function. TEX. LOC. GOV'T CODE ANN. § 505.106(b) (West, Westlaw through Chapter 46,
2015 R.S.).
11
Furthermore, the Tort Claims Act lists programs of community development as
governmental functions. TEX. CIV. PRAC. & REM CODE § 101.0215(a)(34). Community
development programs conduct work to “improve the living and economic conditions of
persons of low and moderate income” and to “benefit low or moderate income
neighborhoods.” TEX. LOC. GOV'T CODE ANN. § 373.004 (West, Westlaw through Chapter
46, 2015 R.S.). The BCCDC offers low-cost business opportunities for a low-income
community to encourage economic growth; this fits the definition of a community
development program as outlined in the Local Government Code. See id. Thus, we
conclude that Gaspard’s claim arose out of a governmental function.
B. The City Has Not Waived Immunity
Finding that the underlying action is governmental, we next determine if the City’s
immunity has been waived. Tex. Bay Cherry Hill, 257 S.W.3d at 389. We analyze
whether there are genuine issues of material fact on every element of the premise defect
claim such that jurisdiction is affirmatively demonstrated. See Miranda, 133 S.W.3d at
226; Payne, 838 S.W.2d at 237. Both parties agree that Gaspard’s claim would fall under
the second waiver found under the Torts Claim Act: a premise defect claim. See TEX.
CIV. PRAC. & REM CODE § 101.021 (West, Westlaw through Chapter 46, 2015 R.S.).
Gaspard claims that the stairs at issue are a special defect as opposed to a regular
premise defect. This case involves the design of steps that lead into a building, which
seemingly has little to do with roadways. Gaspard argues that a defect does not have to
physically be in the road to be in the road to be considered a special defect. See Rangel,
184 S.W.3d at 383. This is true, but, as the Rangel case also points out, the defect must
12
still present an “unexpected and unusual danger to ordinary users of roadways” to be
considered a special defect. Id. (citing Payne, 838 S.W.2d at 238).
The steps do not meet the general classification of special defects because they
are not an obstruction or excavation of the road itself. Furthermore, the threshold of the
Building does not pose an unusual danger to ordinary users of the sidewalk because the
alleged defect would only affect people who are specifically entering or exiting the
Building. In other words, only a pedestrian “whose destination required him to leave the
proximity of the road” would encounter the alleged defect. See Payne, 838 S.W.2d at
239. Therefore, the steps are properly classified as a regular premise defect claim. To
survive a plea to the jurisdiction on a regular premise defect claim, the claimant must be
able to raise a genuine issue of material fact on the five elements listed in Payne. 838
S.W.2d at 237
i. Genuine Issues of Material Fact
The City asserts that there are no genuine issues of material fact on at least two
of the elements of a regular defect claim: 1) that the City had actual knowledge of the
alleged defect and 2) that Gaspard had no knowledge of the defect. Id. All the City
employees testified that they never received any complaints about the steps over the last
two decades since the steps were built.2 This shows that the City had no actual
knowledge of the allegedly dangerous condition. See Aguilar, 251 S.W.3d at 513;
2 Karen Hitzfield testified that she had worked for BCCDC at the Building since 1998. Since that
time, she testified that she had never seen or heard anybody fall or injure themselves at the front entrance
steps. Rhonda Clegg, the City Secretary and custodian of the official records of the City, filed an affidavit
stating that after searching the official records, she found no records of any complaints, e-mails, or reports
of injury involving the Building or its steps. Hendrickson testified that for the last 20 years, he thought the
front entrance was safe, even though the design was “unusual,” especially since nobody had been injured
on it or ever complained about it.
13
Gonzalez, 82 S.W.3d at 330. The only other evidence in the record that might indicate
that the City actually knew about the alleged dangerous condition was the affidavit from
Joan Gaspard. 3 The City objected to Joan’s affidavit as hearsay, to which Gaspard
retorted that it was an admission by a party-opponent. See TEX. R. EVID. 801(e)(2)(D).
However, the BCCDC not only houses City employees but also houses the offices of
numerous other non-governmental companies. Joan’s affidavit does not properly show
that the declarant was an agent of the City, as opposed to an employee of the other
companies, to be admitted as a party opponent. See Farlow v. Harris Methodist Fort
Worth Hosp., 284 S.W.3d 903, 928 (Tex. App.—Fort Worth 2009, pet. denied) (finding
that the testimony of a witness who assumed that a woman was a city employee was
inadmissible hearsay because there was no evidence that the alleged declarant was
actually a city employee); see also Trencor, Inc. v. Cornech Mach. Co., 115 S.W.3d 145,
151 (Tex. App.—Fort Worth 2003, pet. denied) (holding that agency must be shown; it
cannot be presumed).
Without any applicable exceptions, Joan’s affidavit is inadmissible hearsay. See
TEX. R. EVID. 802. Allegations that someone in the Building knew about the allegedly
dangerous condition does not allow us to presume that person to be a City employee.
See Trencor, 115 S.W.3d at 151. Agency cannot be presumed on this mystery declarant.
Id. We conclude that there is nothing left to raise a genuine issue of fact regarding the
3 Appellee additionally argues that by adopting a building code and by building the steps the City
had knowledge of the allegedly dangerous condition. Hendrickson testified that, at the time the steps were
designed and built, he thought the steps were safe and in compliance with the building code, which
authorized the building director to approve alternative methods if they were safe. This shows that the City,
rather than having actual knowledge of a dangerous condition, actually thought there was no dangerous
condition. Simply building the steps does not reasonably support an inference that the City had actual
knowledge. See City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (holding that circumstantial
evidence establishes actual knowledge only if it supports that conclusion “either directly or through
reasonable inference”).
14
City’s actual knowledge of the allegedly dangerous condition because inadmissible
hearsay that was properly objected to cannot be used to raise genuine issues of fact.
See Penn, 363 S.W.2d at 233; Stovall, 409 S.W.3d at; Patterson, 890 S.W.2d at 555.
Another element Gaspard must allege is that she had no knowledge of the
dangerous condition. See Payne, 838 S.W.2d at 237. The City raised concerns regarding
the evidence on whether Gaspard was aware of the defect. During Gaspard’s deposition,
the City asked a question about whether Gaspard felt that she had ever noticed anything
dangerous about the steps. To this, Gaspard originally replied, “Yes, I’ve always felt like
it was dangerous and usually held onto the door to get out.” For “clarification” purposes,
Gaspard later amended her answer after the deposition to simply say, “No.”
The City followed up by asking, “Why did you feel like it was dangerous?” To this,
Gaspard originally stated, “Because the way it’s constructed.” Again for “clarification”
purposes, Gaspard changed her answer after the deposition to read, “I didn’t understand
the question.” Later in the deposition, Gaspard’s own attorney asked her on direct
examination, “[P]rior to the accident did you have any reason to believe those steps were
particularly or uniquely dangerous as against other steps.” Gaspard answered, “Well,
they were narrow; and I was always careful when I came up.” Gaspard’s amended
answer was changed, once again for “clarification,” to say, “Prior to the Oct. 30, 2012 fall
I was careful about using any steps. I preferred ramps.”
The City argues that this is evidence of a sham affidavit. It cites Farroux v. Denny’s
Restaurants, Inc. in support of this position. 962 S.W.2d 108, 111 (Tex. App.—Houston
[1st Dist.] 1997, no pet.). Farroux states if a change in a deposition goes to a material
point, without explanation, and clearly contradicts earlier testimony, then it is a “sham”
15
affidavit that should be disregarded. Id. However, our Court doesn’t generally recognize
the sham affidavit doctrine. Del Mar Coll. Dist. v. Vela, 218 S.W.3d 856, 862 (Tex. App.—
Corpus Christi 2007, no pet.). If the deposition testimony is contradictory, then it presents
a genuine issue of fact. Id. The contradictory nature would merely affect the weight this
testimony would be given. Id.
However, even considering Gaspard’s deposition testimony, we conclude that the
facts alleged by Gaspard do not affirmatively show that the trial court had jurisdiction to
hear this case. As pled, the facts affirmatively demonstrate a lack of jurisdiction because
the underlying action was a discretionary governmental action performed by a 4B sales
tax corporation carrying out a community development program; furthermore, Gaspard
has not raised genuine issues of fact as to the City’s actual knowledge of the allegedly
dangerous condition. Therefore, Gaspard failed to demonstrate that the City has waived
its immunity under the Torts Claims Act.
ii. Discretionary Acts
However, assuming without deciding that Gaspard did raise a genuine issue of
material fact on every element of the premise defect claim, a government entity is still
immune from tort liability for its discretionary actions, even if the underlying actions
constituted a waiver of immunity under the Torts Claims Act. See TEX. CIV. PRAC. & REM
CODE ANN. § 101.021. Gaspard argues that the City’s actions in remodeling the Building
and constructing the glass porch were not discretionary since the city’s building code
dictates how to design steps leading out of a building. Specifically, the act was not
discretionary because the Code provides that there should be a landing level with the
floor outside the door of a building before any steps lead to the ground. However, we
16
agree with the City that its actions in designing the glass porch and door threshold were
discretionary. In Hernandez and Sanchez, discussed above, this Court has previously
held that the governmental act of deciding to design a structure in a particular way is
immune from tort liability. See Hernandez, 2005 WL 2000818, at *5; Sanchez, 124
S.W.3d at 353. The same is true here: Hendrickson stated that he designed the glass
porch this way because of a “cost consideration” to the City, just like the city official in
Sanchez. See 124 S.W.3d at 353.
Additionally, according to Hendrickson, if the steps were built as specified in the
1988 code, the door threshold would be too close to the roadway. Section 102.6 of the
1988 code specifically authorizes alternative designs and methods of construction “not
specifically prescribed by the Code, provided any such alternative has been approved by
the Building Official.” (emphasis added). Hendrickson approved the alternative in this
case and testified that he believed this alternate design was safe; he further testified that
at the time the glass porch was made, “it appeared that was the only way we could do it.”
This case is distinguished from other scenarios in which the government might be
liable. The City did not choose an unsafe design, knowing it was unsafe or knowing it
was violating a code. Rather, Hendrickson believed that the expansion was safe and built
in compliance with the 1988 edition of the Southern Building Code in effect at the time.4
The city did not have a safe design plan that was negligently built. Id. Rather, the City
considered the safety and cost of all alternatives and then built the steps as intended, in
4 Gaspard argues that the City is mandated by the State to adopt and adhere to a building code;
therefore, the construction of steps could not be discretionary. However, the building code in place at the
time was the 1988 locally-adopted building code. The first statewide, mandatory municipal building code
was not enacted until 2006. See TEX. LOC. GOV'T CODE ANN. § 214.216 (West, Westlaw through Chapter
46, 2015 R.S.). Thus, there was no state-mandated method to build the stairs at the time the glass porch
was built.
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good condition. The City’s decision to choose one design over another is the “essence
of discretion.” Id. We conclude that the City’s design of the steps was a discretionary act
protected against liability. Furthermore, there is nothing Gaspard could amend in her
pleadings to bestow jurisdiction; thus, the case should be outright dismissed instead of
allowing for further amendment of the petition. See Peek, 779 S.W.2d at 804.
We sustain the City’s sole issue.
IV. CONCLUSION
We reverse the decision of the trial court, render judgment granting the City’s plea
to the jurisdiction, and dismiss the case with prejudice.
NORA LONGORIA,
Justice
Delivered and filed the
13th day of August, 2015.
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