i i i i i i
MEMORANDUM OPINION
No. 04-09-00132-CV
THE CITY OF LAREDO,
Appellant
v.
Maria Alejandro REYES, Individually and As Representative
of the Estate of Karen Reyes, a/k/a Karen Vaquera, Deceased,
Appellee
From the 341st Judicial District Court, Webb County, Texas
Trial Court No. 2008 CVQ 000276-D3
Honorable Elma Teresa Salinas Ender, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Dissenting opinion: Steven C. Hilbig, Justice
Sitting: Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Steven C. Hilbig, Justice
Delivered and Filed: September 9, 2009
AFFIRMED IN PART, RENDERED IN PART, REMANDED IN PART
This is an interlocutory appeal from the trial court’s order denying The City of Laredo’s plea
to the jurisdiction. Because we conclude the evidence before the trial court raised a fact question
regarding the City’s actual knowledge of a dangerous condition, we affirm the trial court’s denial
of the City’s plea as to the appellees’ premise defect claim and remand that claim for further
04-09-00132-CV
proceedings. We reverse the trial court’s denial of the City’s plea on the appellees’ remaining
claims, and we render a dismissal of those claims.
BACKGROUND
At approximately 3:00 a.m. on June 17, 2007, the vehicle in which the decedent, Karen
Reyes, was a passenger drove through flood waters across Century Boulevard in Laredo. The vehicle
was swept off the road by the flood waters, resulting in Ms. Reyes’s drowning death. Maria
Alejandro Reyes, individually and as representative of the Estate of Karen Reyes, a/k/a Karen
Vaquera, sued the City of Laredo. Reyes alleged the City’s governmental immunity from suit was
waived because the condition of the road constituted either a premise defect or a special defect and
the City negligently failed to maintain the road and creek-bed. The City moved for dismissal on the
ground that the trial court lacked jurisdiction because the roadway was neither a premise defect nor
a special defect, and design of roadways and installation of safety features were discretionary acts;
therefore, the City retained its immunity from suit. The trial court denied the City’s plea, and this
appeal ensued.
STANDARD OF REVIEW
Immunity from suit deprives a trial court of subject matter jurisdiction. Tx. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Whether a court has subject matter
jurisdiction is a question of law. Id. at 226. The plaintiff has the burden to allege facts
demonstrating jurisdiction and we construe the pleadings liberally in its favor. Id. When a plea to
the jurisdiction challenges the existence of jurisdictional facts, as the City’s plea does here, the trial
court reviews the relevant evidence to determine whether a fact issue exists. See id. at 227. If the
evidence raises a fact question on jurisdiction, the trial court cannot grant the plea and the issue must
-2-
04-09-00132-CV
be resolved by the trier of fact. Id. at 227-28. If the evidence is undisputed or fails to raise a fact
question, the trial court must rule on the plea as a matter of law. Id. at 228. We review the trial
court’s ruling de novo. Id. We take as true all evidence favorable to the nonmovant and indulge
every reasonable inference in its favor. Id.
PREMISE DEFECT AND SPECIAL DEFECT CLAIMS
A governmental entity is generally immune from suit unless the immunity is waived by the
Legislature. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). The Texas Legislature has
provided a limited waiver of immunity for tort claims arising from a condition or use of real property
“if the governmental unit would, were it a private person, be liable to the claimant.” TEX . CIV . PRAC.
& REM . CODE ANN . § 101.021(2) (Vernon 2005). These claims may arise from either an ordinary
premise defect or a special defect, depending on the condition of the property. See id. § 101.022
(Vernon Supp. 2008). Whether a condition is a premise defect or a special defect is a question of
law. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992) (op. on
reh’g).
A. Premise Defect - Actual Knowledge
When there is an ordinary premise defect, the duty owed by the governmental unit is the same
duty owed by a private landowner to a licensee, which requires a landowner not to injure a licensee
by willful, wanton or grossly negligent conduct and to use ordinary care to warn or make reasonably
safe a dangerous condition of which the owner has actual knowledge. Id. at 237; see also TEX . CIV .
PRAC. & REM . CODE ANN . § 101.022(a) (Vernon Supp. 2008). To establish a waiver of immunity
in an ordinary premise defect case, a plaintiff must show the governmental entity had actual
knowledge of the dangerous condition at the time of the accident. City of Corsicana v. Stewart, 249
-3-
04-09-00132-CV
S.W.3d 412, 413 (Tex. 2008). “Actual knowledge requires knowledge that the dangerous condition
existed at the time of the accident, as opposed to constructive knowledge which can be established
by facts or inferences that a dangerous condition could develop over time.” Id. at 414-15.
In City of Corsicana, the Supreme Court stated, “[i]t is undisputed that no direct evidence
was offered that the City knew the crossing was flooded prior to the accident” Id. at 414. Here,
unlike in City of Corsicana, Reyes presented the affidavit of Jose Sanchez as proof the City had
actual knowledge of the flooding on Century Boulevard in the early morning hours of June 17,
2007.1 Sanchez stated he has lived on Century Boulevard for about thirty years, he lives “directly
next to the creek,” and he has a clear view of the creek and of Century Boulevard where it crosses
the creek. According to Sanchez, flooding at this location “has been an on-going problem” and this
is not the first time “a car or person has been swept into the waters of Chacon Creek during a flood.”
He also stated as follows:
On June 17, 2007, I began calling 911 at approximately 12:30 a.m. to advise
the police that the water in Chacon Creek was rising and that there was going to be
a problem with cars getting swept away if something was not done. I continued to
place four or five calls to 911 as the night progressed but the police never showed up.
The water level was approximately three and one-half feet high over the roadway
which I could tell by the debris line the next day. The water level in my home
flooded to over three feet of water that night and my house is well above the creek.
Although Sanchez does not state he saw water rising over Century Boulevard at the time of
the accident, circumstantial evidence may establish actual knowledge “when it ‘either directly or by
reasonable inference’ supports that conclusion.” City of Corsicana, 249 S.W.3d at 415 (quoting
1
… The City presented the affidavit of Sylvia Soria, M anager of the Emergency Communications Center for
the City of Laredo as evidence it had no actual knowledge of the flooded intersection. Soria stated the City did not
become aware of the flooding on or at Century Boulevard until 3:04 a.m., when it received a call that two vehicles were
stuck in the flood waters.
-4-
04-09-00132-CV
State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002) and citing to City of San Antonio v. Rodriguez,
931 S.W.2d 535, 537 (Tex. 1996)). In Rodriguez, involving a suit for injuries suffered as a result
of a fall on a wet public basketball court, the Supreme Court rejected the City’s contention that there
was no evidence of actual knowledge because the evidence showed the City’s employee in charge
of the building had contemporaneous actual knowledge of the dangerous condition in the vicinity
of the hazard because he knew of leaks in the roof and knew that it had been raining. Id. The
Rodriguez Court held that, “[d]epending on the position of the leaks above the floor and the amount
of rain, the jury might have inferred that the person in charge knew that there would be water on the
floor.” Id. The Court in City of Corsicana characterized its holding in Rodriguez as “a direct and
reasonable inference [of actual knowledge] from the evidence submitted.” City of Corsicana, 249
S.W.3d. at 415.
Here, Sanchez stated he informed the City, at 12:30 a.m., that the water in the creek was
rising and “there was going to be a problem with cars getting swept away if something was not
done.” Sanchez called 911 four or five more times as the night progressed. We conclude Sanchez’s
statements, and the reasonable inferences from those statements, were sufficient to raise a fact issue
on whether the City had actual knowledge of the dangerous condition at the time of the accident,
which occurred not more than two and one-half hours after Sanchez began calling 911. Therefore,
the trial court appropriately denied the City’s plea.
B. Special Defect
In a special defect liability claim, the duty owed by the governmental unit is that owed by a
private landowner to an invitee, which requires an owner to use ordinary care to reduce or eliminate
unreasonable risks of harm of which the owner is aware or reasonably should be aware. Reed, 258
-5-
04-09-00132-CV
S.W.3d at 622. Having concluded there is a fact issue on the City’s knowledge, we next address
whether the water on the roadway was a special defect.
The Texas Tort Claims Act does not define “special defect” but, instead, “likens it to
‘excavations or obstructions’ that exist ‘on’ the roadway surface.” Denton County v. Beynon, 283
S.W.3d 329, 331 (Tex. 2009); TEX . CIV . PRAC. & REM . CODE ANN . § 101.022(b). In Beynon, the
Texas Supreme Court noted that the Tort Claims Act “itself says nothing about ‘unexpected and
unusual danger.’” Beynon, 283 S.W.3d at 332 n.11. The Court explained that the phrase
“unexpected and unusual danger” first appeared in its 1992 opinion in Payne, in which the Court
observed that excavations and obstructions “present an unexpected and unusual danger to ordinary
users of roadways.” Id. (citing Payne, 838 S.W.2d at 238). But, according to the Beynon Court, the
Tort Claims Act “mandates no second prong, nor does Payne engraft one; the statutory test is simply
whether the condition is of the same class as an excavation or obstruction.” Id.
Although “a condition’s unexpectedness is not a stand-alone basis for bringing a special-
defect claim,” id. at 332 n.15, whether a condition presents an “unexpected and unusual danger” may
describe the class of “obstructions” envisioned by the Tort Claims Act. Id. at 332 n.11. Water
accumulating on a road caused by persistent rain is neither unexpected nor unusual to ordinary users
of roadways. Villegas v. Tx. Dep’t of Transp., 120 S.W.3d 26, 33 (Tex. App.—San Antonio 2003,
pet. denied); see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786
(Tex. 1993) (per curiam) (“Unlike an excavation or obstruction, an icy bridge is something motorists
can and should anticipate when the weather is conducive to such a condition.”); but see Miranda
v. State, 591 S.W.2d 568, 570-71 (Tex. Civ. App.—El Paso 1979, no writ) (in suit arising from death
of motorist who drowned after he drove his car into two feet of flood waters over a low-water
-6-
04-09-00132-CV
crossing in predawn darkness and was swept away, court held that plaintiff alleged a special defect
by specifically pleading “torrential floodwaters” had “flooded and obstructed the roadway”). We
conclude the water on Century Boulevard did not pose a threat to the ordinary users of the road in
the same manner as an excavation or obstruction and therefore was not a special defect.
DISCRETIONARY ACTS
Reyes also alleged the City is liable because it created the hazard that led to the accident by
failing to warn of the low water crossing and failing to erect barriers at “a known low water crossing
subject to flooding in wet weather.” Immunity is not waived for “a claim based on . . . a
governmental unit’s decision not to perform an act or on its failure to make a decision on the
performance or nonperformance of an act if the law leaves the performance or nonperformance of
the act to the discretion of the governmental unit.” TEX . CIV . PRAC. & REM . CODE ANN .
§ 101.056(2) (Vernon 2005). For example, the design of a roadway is a discretionary function
involving many policy decisions, and the responsible governmental entity may not be sued for such
decisions. Tx. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). “Likewise, decisions
about installing safety features are discretionary decisions for which the State may not be sued.” Id.
Whether a governmental act is discretionary is a question of law. State v. Miguel, 2 S.W.3d 249, 251
(Tex. 1999) (per curiam). Here, we conclude that “regardless of whether the City should have been
better prepared to respond, the City is immune from liability for discretionary decisions concerning
the expenditure of limited resources for the safety of its citizens.” City of Corsicana, 249 S.W.3d
at 416. Therefore, the City is immune from suit for any failure on its part to warn of the low water
crossing or install safety features at the crossing.
-7-
04-09-00132-CV
CONCLUSION
For the reasons stated above, we hold the trial court did not err in denying the City’s plea to
the jurisdiction on Reyes’s premise defect claim and we remand that claim to the trial court for
further proceedings. However, because we conclude the water on Century Boulevard was not a
special defect and the City is immune from suit for any failure on its part to warn of the low water
crossing or install safety features at the crossing, we reverse the trial court’s denial of the plea as to
those claims and we render a dismissal for lack of jurisdiction on those claims.
Sandee Bryan Marion, Justice
-8-