Affirmed and Memorandum Opinion filed February 26, 2004.
In The
Fourteenth Court of Appeals
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NO. 14-03-00264-CV
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CITY OF HOUSTON, Appellant
V.
THOMAS AND CHORLOTTIEA HARRIS, INDIVIDUALLY AND AS
NEXT FRIEND OF JOSHUA HARRIS, A MINOR, Appellees
____________________________________________________
On Appeal from the County Civil Court at Law No. 3
Harris County, Texas
Trial Court Cause No. 767,952
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M E M O R A N D U M O P I N I O N
The City of Houston (“City”) appeals the trial court’s denial of its plea to the jurisdiction, arguing that appellees, Thomas and Chorlottiea Harris, individually and as next friend of Joshua Harris, failed to plead sufficient facts to invoke a waiver of immunity under the Texas Tort Claims Act. We affirm.
I. Factual and Procedural Background
While visiting in Houston, Joshua Harris posed for his father’s camera by placing his hand on a large, metal elephant statue located just outside the entrance to the Houston Zoo. As Joshua removed his hand from the statue, the top portion of his pinky finger was severed. Joshua’s parents filed suit against the City under the Texas Tort Claims Act[1] seeking damages for Joshua’s injury. The City answered and moved to dismiss the suit for lack of jurisdiction. The trial court initially granted the City’s motion; however, on rehearing the motion was denied. Subsequently, the City pursued this interlocutory appeal, contending the trial court improperly denied its plea to the jurisdiction.[2]
II. Standard of Review
The plaintiff has the burden to allege facts affirmatively demonstrating the court’s jurisdiction over the suit. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When deciding a plea to the jurisdiction, the trial court considers the allegations in the petition, accepting those allegations as true. City of Galveston v. Gray, 93 S.W.3d 587, 590 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). The trial court may also consider evidence relevant to jurisdictional issues raised. Id. at 591.
Furthermore, a court may not weigh the claims’ merits but must consider only 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); see also Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554–55 (Tex. 2000). We construe the pleadings in the plaintiff’s favor and look to the pleader’s intent when reviewing a trial court’s order on a plea to the jurisdiction. Brown, 80 S.W.3d at 555. When a plaintiff fails to plead facts establishing jurisdiction, but the petition does not affirmatively negate jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. Likewise, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id. A cause of action is properly dismissed for lack of subject matter jurisdiction only when the facts alleged in the plaintiff’s petition cannot confer jurisdiction on the trial court. Scott v. Prairie View A & M Univ., 7 S.W.3d 717, 718 (Tex. App.—Houston [1st Dist.] 1999, pet. denied).
III. Texas Tort Claims Act
Generally, cities and counties enjoy sovereign immunity from suit unless such immunity has been waived. Brown, 80 S.W.3d at 554; Gray, 93 S.W.3d at 591. The party suing the governmental entity must establish waiver of immunity, either by reference to a statute or to express legislative consent. General Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001); Gray, 93 S.W.3d at 591. Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and is properly asserted in a plea to the jurisdiction.[3] State Dep’t of Highways & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 637 (Tex. 1999); Gray, 93 S.W.3d at 591.
The Act provides a limited waiver of sovereign immunity, specifically in three areas: (1) use of a publicly owned automobile; (2) premise defects; and (3) injuries arising out of conditions or use of property. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000); Gray, 93 S.W.3d at 591; see Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 1997). Whether there has been a statutory waiver of immunity is a question of law for the court to decide based upon the facts of the case. City of El Paso v. W.E.B. Invs., 950 S.W.2d 166, 169 (Tex. App.—El Paso 1997, pet. denied).
IV. Analysis
In one issue, the City argues the trial court improperly denied its plea to the jurisdiction because appellees’ claims are not based on waiver relating to tangible personal property, or based on the use of real property or negligent activity. The City also contends appellees failed to plead sufficient facts to support a claim based on a premise defect.
In their First Amended Petition, the operative pleadings in this case, the appellees alleged they were visiting Houston at the time of Joshua’s injury and were on property owned by the City as invitees, when Joshua observed people taking pictures with an elephant statue and asked his father if he could also have his picture taken. Appellees’ petition also states the following:
The statue is constructed as such with numerous holes in the metal structure, these holes form pinch points which can cause serious injuries. The statue had been moved to this entrance in the recent past by agents and/or employees of the Defendant, and was devoid of any protective barriers or signs to warn of dangers associated with contact with [sic] the metal structure and these actions were ongoing when the Plaintiff was injured. Your minor Plaintiff approached the elephant and stood next to it, placing his hand on the statue. . . . and came away from the statue, but in the process your minor plaintiff’s finger suffered a traumatic “degloving” injury by the dangerous condition and use of the statue. . . . Thus, as a direct and proximate result of this incident Plaintiffs have suffered serious personal injuries and damages.
Appellees further alleged that: (1) Joshua’s injuries were caused by a condition, use, or misuse of tangible personal or real property such that, were the City a private person, it would be liable under Texas law; (2) the City owed them a duty to “act reasonably and prudently . . . and to use ordinary care . . . with respect to the condition or use of tangible personal or real property;” (3) the City knew or should have known of the dangers inherent in the metal statue, yet it neither warned of the danger, nor took any steps to protect the public, and that the statue was in a “dangerous and defective condition;” (4) “agents, servants or employees of Defendant were negligent under circumstances in which sovereign immunity is waived . . . .;” and (5) these “agents, servants or employees” were at all times acting within the scope of their employment.
A. Condition or Use of Tangible Personal Property
Section 101.021(2) of the Act provides that a governmental entity is liable for “personal injury . . . 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.” Tex. Civ. Prac. & Rem. Code § 101.021(2). A claimant’s pleadings must allege facts demonstrating a cause of action involving injury caused by a condition or use of tangible personalty or realty under circumstances in which a private person would be liable. City of Lubbock v. Rule, 68 S.W.3d 853, 857 (Tex. App.—Amarillo 2002, no pet.); see Able, 35 S.W.3d at 612 (noting that subsection (2) encompasses claims for injuries caused by the condition of personal or real property). Therefore, to state a cause of action under section 101.021(2), appellees must allege that the statue was defective or inadequate, or that some use of the statue caused the injury. See Barker v. City of Galveston, 907 S.W.2d 879, 883 (Tex. App.—Houston [14th Dist.] 1995, writ denied).
Here, appellees alleged that the statue was used by the City to attract visitors to the zoo and that the statue’s construction constitutes a dangerous or defective condition which directly and proximately caused Joshua’s injury. Although many Texas courts have grappled with defining the parameters of “use” sufficient to waive immunity,[4] we need not address whether appellees’ allegations of use satisfy the waiver provisions of the Act because our conclusions concerning their claims relating to the “condition” of the statue are dispositive of the jurisdictional inquiry.[5]
“Condition” implies that the property is in bad or defective condition. See Tex. Dep’t of Transp. v. Garza, 70 S.W.3d 802, 807 (Tex. 2002); see also Sparkman v. Maxwell, 519 S.W.2d 852, 858 (Tex. 1975) (defining “condition” as “either an intentional or an inadvertent state of being”); Webb County v. Sandoval, 88 S.W.3d 290, 294 (Tex. App.—San Antonio 2002, no pet.). “Tangible personal property” under the Act is property that is capable of being handled, touched, or seen. Robinson v. City of San Antonio, 727 S.W.2d 40, 43 (Tex. App.—San Antonio 1987, writ ref’d). To state a claim involving the “condition” of tangible personal property, a plaintiff must allege the property is defective or inadequate, and its defective condition proximately caused injury. See Tex. Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex. App.—Dallas 1998, no pet.). The requirement of causation is more than mere involvement. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998). A plaintiff must show a close causal relationship between the condition of the property and the resulting injury. See id.
In this case, the appellees stated in their pleadings that the condition of the property was defective or inadequate due to its construction. Moreover, the facts as set forth by appellees indicate a direct causal relationship between the statue and Joshua’s injury.[6] See Overton Mem’l Hosp. v. McGuire, 518 S.W.2d 528, 529 (Tex. 1975). Construing the pleadings in appellees’ favor, as we must, we conclude the pleadings sufficiently allege the statue: (1) is owned by the City; (2) is defective due to “pinch points” created by the construction and design of the statue;[7] (3) this defective condition directly and proximately caused Joshua’s injuries; (4) the City had knowledge (or should have known) of its dangerous condition; and (5) the City was negligent in failing to warn of this dangerous condition, failing to protect the public from the condition, or in failing to take “reasonable and prudent action” regarding the dangerous condition of the statue. In addition, appellees alleged that the statue had been moved to its location at the time of the accident by the City’s employees and the statue was without any protective barriers or signs to warn of its dangerous condition. We find these allegations are sufficient to bring the claim within the waiver provisions of the Act.[8]
The City argues however, that appellees have failed to sufficiently allege a defective condition under the waiver provisions of the Act because appellees have not pleaded that the City “furnished” the statue to appellees, nor alleged that the statue lacked an integral safety component. As authority for the proposition that section 101.021(2) requires these allegations, the City cites to Michael v. Travis County Housing Authority, 995 S.W.2d 909, 914 (Tex. App.—Austin 1999, no pet.). In Michael, the mother of a child attacked by pit bulls sued Travis County, alleging that the owner of the dogs lived in a dwelling owned and maintained by the Housing Authority, the fence surrounding the owner’s yard had holes in it, and this defect caused the child’s injuries. Id. at 911. The Michael court concluded the mother had satisfied the requirements for waiver under the Act. Id. at 915. During the course of its analysis, the court noted that the Texas Supreme Court had construed section 101.021(2) to provide a waiver of immunity for injuries caused by safety-defective property and acknowledged that the facts before them could be construed to involve tangible personal property that lacked an integral safety component. Id. at 914. From this, the City argues that the appellees’ pleadings lack a required allegation of a safety defect. Assuming without deciding that a lack of an integral safety component is a requirement, based on the pleadings and evidence[9] here, we find the appellees adequately pleaded under these facts the statue lacked an integral safety component.
Regarding the City’s contention that appellees have failed to properly allege the statue was “furnished,” we acknowledge that a number of cases have held that furnishing inadequate or defective property may create liability under the Act. See, e.g., Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (finding that university was liable because it furnished inadequate protective equipment to a football player). Here, appellees alleged that the statue was owned by the City, was on City property, and was accessible to the public.[10] Assuming without deciding a claimant must plead that property was “furnished,” we construe the plaintiffs’ petition to sufficiently allege the statue was furnished. See, e.g., Torres v. City of Waco, 51 S.W.3d 814, 820 (Tex. App.—Waco 2001, no pet.) (finding claims that City failed to properly secure a judge’s stand which proximately caused injury was sufficient allegation that condition of property caused injuries); Michael, 995 S.W.2d at 914–15 (finding waiver under the Act where fence had holes in it and vicious dogs escaped, causing injury); McBride v. TDCJ-ID, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.) (finding allegations regarding defective barrel sufficient to establish waiver under the Act); Barker, 907 S.W.2d at 884–85 (finding swing set to be a “dangerous condition,” falling within the Act).
B. Premise Defect
The City also argues that appellees have failed to establish waiver under the Act because the statue is an improvement to the land and appellees have not alleged facts to support a premise defect claim.[11]
Although “tangible personal property” is not defined under the Act, the term is generally construed as referring to something that is corporeal, concrete, and has a palpable existence. E.g., Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 178 (Tex. 1994); Sawyer v. Tex. Dep’t of Criminal Justice, 983 S.W.2d 310, 312 (Tex. App.—Houston [1st Dist.] 1998, pet. denied); see also Robinson, 727 S.W.2d at 43 (defining “tangible property” as something capable of being handled, touched, or seen). Indisputably, the statue at issue is a concrete, corporeal structure, having a palpable existence. In addition, the pleadings and evidence indicate the statue had been located in another area of the zoo, but was moved to its current position just prior to the time of Joshua’s injury. See Tex. Dep’t of Transp. v. Henson, 843 S.W.2d 648, 653 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (finding barrel-signs to be personalty under the Act, relying in part on their portable nature). The City also acknowledged in its pleadings that it did not deny that Joshua had been injured on tangible personal property.
Nevertheless, the City claims the statue is an “improvement.” The term “improvement” generally includes everything that permanently enhances the value of the premises. Karisch v. Allied-Signal, Inc., 837 S.W.2d 679, 679 (Tex. App.—Corpus Christi 1992, no writ). In determining whether personalty has become such a permanent part of the realty to which it is affixed that it constitutes an improvement, the pivotal factor is the intention of the person annexing the personal property to the real property. Logan v. Mullis, 686 S.W.2d 605, 607 (Tex. 1985); Johnson v. Mach. Ice Co., 820 S.W.2d 850, 852 (Tex. App.—Houston [14th Dist.] 1991, writ denied). Here, there is nothing in the record to evidence any intention of the entity affixing the statue to the real property and therefore, we decline to conclude the statue is an “improvement.” To do otherwise would be contrary to our standard of review, that is, construe the pleadings in the appellees’ favor.
Accordingly, we overrule the City’s issue and affirm the judgment of the trial court.
/s/ Eva M. Guzman
Justice
Judgment rendered and Memorandum Opinion filed February 26, 2004.
Panel consists of Justices Yates, Edelman, and Guzman.
[1] Tex. Civ. Prac. & Rem. Code ch. 101. All subsequent references to the “Act” are to the Texas Tort Claims Act.
[2] A governmental unit may appeal the grant or denial of a plea to the jurisdiction. Id. § 51.014(a)(8).
[3] Sovereign immunity takes two basic forms: (1) immunity from suit, regardless of the state’s liability, and (2) immunity from liability even though the state has consented to be sued. Tex. Civ. Prac. & Rem. Code Ann. § 101.021, .023, .025 (Vernon 1997); Scott, 7 S.W.3d at 719. The trial court’s jurisdiction is unaffected by immunity from liability. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). Sovereign immunity from liability is an affirmative defense that must be pled to avoid waiver. Id. However, because the Act waives immunity from both liability and suit, a plaintiff’s pleadings concerning waiver may be challenged in a plea to the jurisdiction.
[4] See Robinson v. Cent. Tex. MHMR Ctr., 780 S.W.2d 169, 170 (Tex. 1989) (noting that the waiver provision under section 101.021 has been a “fertile field for litigation and controversy”).
[5] Because we do not address the City’s contention’s regarding the alleged use of the statue, we also do not address the alleged use of real property.
[6] This causal relationship distinguishes this case from those concluding that there was no waiver under the Act due to causation problems. See, e.g., Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996) (finding failure to use injectable medication did not fall within waiver provision of the Act); Kidd v. Brenham State Sch., 93 S.W.3d 204, 206 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (finding information faxed to facility but locked in fax room, not “use” under the Act). See also Bossley, 968 S.W.2d at 343 (distinguishing the case from one involving an injury immediately and directly caused by the condition of the property).
[7] As evidence of the statue’s dangerous condition, appellees attached an affidavit from their expert, describing the construction of the statue and stating that the woven metal sculpture contained numerous openings which acted as “finger traps,” catching objects pulled into the openings. The expert also stated these openings were easily accessible and were located at a height where a person would naturally lean or rest their hand on it.
[8] See, e.g., Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 223-24 (Tex. App.—Fort Worth 2003, no pet.) (finding allegations that ice barrels lacking a scoop fell within the “condition-of-tangible-personal-property” waiver under the Act); Webb County v. Sandoval, 88 S.W.3d 290, 295 (Tex. App.—San Antonio 2002, no pet.) (concluding that allegations that child choked due to “condition” of overcooked chicken nuggets was sufficient to fall within waiver provision of the Act); Torres v. City of Waco, 51 S.W.3d 814, 820 (Tex. App.—Waco 2001, no pet.) (finding allegations that City failed to properly secure a judge’s stand which proximately caused injury, sufficiently alleged that condition of property caused injuries); Michael v. Travis County Hous. Auth., 995 S.W.2d 909, 914–15 (Tex. App.—Austin 1999, no pet.) (finding waiver under the Act where fence had holes in it, allowing vicious dogs to escape and cause injury); McBride v. TDCJ-ID, 964 S.W.2d 18, 22 (Tex. App.—Tyler 1997, no pet.) (finding allegations that governmental entity was negligent in furnishing defective barrel sufficient to establish waiver under the Act); Barker v. City of Galveston, 907 S.W.2d 879, 884–85 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (finding swing set to be a “dangerous condition,” falling within the Act).
[9] See infra notes 6–7 and corresponding discussion.
[10] Neither party raises an issue regarding whether the “Recreational Use Act” applies. See Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001–.004 (Vernon 1997 & Supp. 2004).
[11] Appellees contend that we cannot consider the City’s premise defect argument because it was not raised in the trial court. However, because the City’s argument goes to the jurisdiction of the trial court, we may address it for the first time on appeal.