Reversed and Dismissed and Memorandum Opinion filed July 10, 2007.
In The
Fourteenth Court of Appeals
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NO. 14-06-01096-CV
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HARRIS COUNTY, Appellant
V.
HOLLIE GERBER, Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Cause No. 2001-65295
M E M O R A N D U M O P I N I O N
Harris County appeals the denial of its plea to the jurisdiction asserting there was no waiver of its governmental immunity under the Texas Torts Claims Act (ATTCA@). See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001 et. seq. (Vernon 2005 & Supp. 2006). We reverse and dismiss for lack of jurisdiction.
At approximately 3:30 a.m., after leaving a downtown club and late night restaurant, Hollie Gerber, appellee, tripped and fell into a tree planter box located outside the Harris County courthouse. She brought suit against Harris County under a premise defect theory, arguing the County failed to properly maintain the tree planter box and, therefore, the County created an unreasonably dangerous condition.[1] The County entered a plea to the jurisdiction, arguing Gerber failed to plead sufficient facts to invoke the waiver of immunity found under the TTCA. The trial court denied the County=s plea to the jurisdiction. We have jurisdiction to hear this interlocutory appeal pursuant to the Texas Civil Practices and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2006).
Governmental immunity from suit defeats a trial court=s subject matter jurisdiction. Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225B26 (Tex. 2004). Therefore, governmental immunity is properly asserted in a plea to the jurisdiction. Id. Whether a court has subject‑matter jurisdiction is a legal question subject to de novo review. Id. at 226.
A plaintiff must affirmatively demonstrate the court=s jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). To determine if the plaintiff has met this burden, we look to the facts alleged by the plaintiff and any evidence relevant to the jurisdictional issue. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the pleadings in the plaintiff=s favor and look to the pleader=s intent. Id.
The State, its agencies, and subdivisions, such as counties, generally enjoy sovereign immunity from tort liability unless immunity has been waived. See Tex. Civ. Prac. & Rem.Code '' 101.001(3)(A)‑(B), 101.025 (Vernon 2005); Brown, 80 S.W.3d at 554. The TTCA provides a limited waiver of sovereign or governmental immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances. Tex. Dep=t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). The TTCA provides a limited waiver of governmental immunity, specifically, in three areas: (1) use of a publicly owned motorized vehicle; (2) premise defects; and (3) injuries arising out of conditions or use of tangible personal property. Tex. Civ. Prac. & Rem.Code Ann. ' 101.021 (Vernon 2005); Miranda, 133 S.W.3d at 225.
If a claim arises from a premise defect, the governmental unit owes the claimant the same duty that a private person owes to a licensee on private property; in other words, not to injure a licensee by willful, wanton or grossly negligent conduct, and to use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.[2] See Tex. Civ. Prac. & Rem.Code Ann. ' 101.022(a) (Vernon Supp. 2006); State Dep=t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To establish liability for a premise defect, a licensee must prove that: (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 injury to the licensee. Payne, 838 S.W.2d at 237. We focus on the element of actual notice.
Counties, like other corporate entities, can only act through representatives or agents. See City of Fort Worth v. Davidson, 117 Tex. 89, 296 S.W. 288, 289 (1927) (stating cities and other corporate entities operate through agents and representatives). Before notice to an agent or representative can be imputed to his principal or superior, such notice must have come to the representative at a time when he was engaged in the business of his principal, under circumstances imposing upon him the reasonable duty of making known the facts to his superior. Id. In Davidson, a police officer discovered an obstruction in the street during his afternoon patrol. Id. at 288B89. The following night a car collided with the obstruction. Id. at 289. The court reasoned that before notice to the officer would be imputed to the city, at the time the officer received actual notice of the obstruction, he must have been charged with some duty pertaining to the obstruction=s removal. Id. The court determined the obstruction in the street pertained Ato a matter fittingly within the control and supervision of the police department,@ that the police department was the instrumentality through which the City elected to deal with such matters and, therefore, notice to a member of that department was Apeculiarly fitting@ as notice to the City itself. Id. at 290.
In her deposition, Gerber stated she had never tried to find out if other people had been injured at that location and, she did not know who was responsible for maintenance of the tree box. The only other discussion of notice came from the affidavit of Randy Moore, the designated representative of the County. Moore testified that the tree box and the differing levels and types of surfaces would be noticeable to people walking on the sidewalk. When asked what type of County employee would walk by the tree box on a daily basis, he answered AI would imagine all the County attorneys.@ When asked for others, he replied AI wouldn=t really know.@
Gerber argues Moore=s deposition declaring that County attorneys and agents pass by the tree box daily is enough to impute actual knowledge of the defect on the County. We disagree. Gerber presented no evidence that the County attorneys are charged with some duty of premise maintenance for the area surrounding the courthouse, and tree box maintenance would not fall Afittingly within the control and supervision@ of the County attorneys. Nor did she present evidence of any reports of injuries caused by the tree box at that location, or if anyone responsible for maintenance had actual knowledge of any defect. Thus, Gerber failed to offer even a scintilla of evidence of the County=s actual notice.
Moreover, the actual knowledge required for liability is knowledge of the dangerous condition at the time of the accident. City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006). Gerber argues that the erosion of the soil in the tree box would not suddenly occur but would erode over time. She contends actual knowledge should be imputed to the County because the length of time it would take for the soil to erode increases the number of County employees who had the opportunity to observe the condition. Gerber=s analysis is faulty for three reasons. First, Gerber presented no evidence that erosion caused a decrease in the soil level. The tree box could have been designed and installed with the soil level below the sidewalk level. The tree box would then be considered to have a design defect and, therefore, fall outside the TTCA. See Tex. Dep=t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999)) (stating the A[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions.@).
Second, merely the possibility that a dangerous condition can develop over time is not enough to impute actual knowledge. See Thompson, 210 S.W.3d at 603 (determining the City=s knowledge that a coverplate developed a protrusion over time, which it needed to inspect and maintain, did not satisfy the requirement of actual knowledge); State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002) (holding that evidence the State knew the traffic signs had been repeatedly vandalized prior to the accident did not indicate directly, or by reasonable inference, that it had actual knowledge the signs were down when the accident occurred); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 100B02 (Tex. 2000) (holding that the defendant=s knowledge its stair and platform units periodically became unstable was not evidence of actual knowledge that a unit had become dangerous when plaintiff was injured). Additionally, Gerber presented no evidence that anyone employed by the County knew erosion might be a problem.
Third, a logical inference could be made that a single occurrence of a heavy downpour or street flooding could just as easily have caused the soil to be washed away. For example, in Thompson, an expert testified that the City must have known of the dangerous condition because its employees were in the vicinity and walking over the coverplate in the hours prior to Thompson=s fall. Thompson, 210 S.W.3d at 603. The Court found that without evidence showing how long the protrusion on the coverplate had existed, the proximity of the employees was no evidence of actual knowledge. Id. Here, with no evidence showing how long the tree box soil existed at the level it occupied on the night of the incident, the proximity of the employees is no evidence of actual knowledge.
Thus, Gerber has failed to invoke the waiver of immunity found in the TTCA. Accordingly, we reverse the trial court=s judgment and dismiss the case for want of jurisdiction.
/s/ J. Harvey Hudson
Justice
Judgment rendered and Memorandum Opinion filed July 10, 2007.
Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.
[1] Interrogatories answered by the City of Houston stated Harris County was responsible for the maintenance of the tree planter box.
[2] If a condition is determined to be a special defect, the duty owed by the governmental unit to a user of the property is the same as the duty a private landowner owes an invitee. Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(b) (Vernon Supp. 2006). It is undisputed that Gerber=s claim involves a premise defect.