Port of Houston Authority v. Agnes A. Aaron,Jimmy L. Alberte and Patricia Alberte Robert L. AnselmiMike Argo and Dede Argo Gary ArrantRoger Ashton Patricia Ayers Adam Barr Billy BowenJames Allen Brown

Opinion issued September 5, 2013.

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-12-00373-CV
———————————
PORT OF HOUSTON AUTHORITY, Appellant
V.
AGNES A. AARON; JIMMY L. ALBERTE AND PATRICIA ALBERTE;
ROBERT L. ANSELMI; MIKE ARGO AND DEDE ARGO; GARY
ARRANT; ROGER ASHTON; PATRICIA AYERS; ADAM BARR; BILLY
BOWEN; JAMES ALLEN BROWN; ROBERT BUNKER; MICHAEL
BURGETT; GILBERT CADE AND PORTIA CADE; JOE WILLIAM
CANAS; CRISTORAL CARLOS AND BRIDGETTE CARLOS; MARTHA
JOYCE CASH; DUDLEY CHAMBERS AND LINDA CHAMBERS;
CHARLES P. CHRISTENSEN; WILLIAM S. DAVIS; JUDY DIETRICH;
DAVID FAIN AND DANIEL FAIN; SCOTT FLEMING; MELANIE FRICK;
AUDREY GAMBLE; ALBERT A. GARCIA, JR.; LEONEL GARCIA;
JERRY GARDNER AND GRACE GARDNER; CAROLYN GLOYNA;
ROBERT GOEBEL; PAUL HAMILTON AND TONI HAMILTON;
DOUGLAS W. HEINTSCHEL AND JOEL HEINTSCHEL; TOM
HENDERSON AND SHELLEY HENDERSON; ROY JAMAIL AND MARY
JAMAIL; TODD JOHNSON AND JENNIFER JOHNSON; DARRYL
KELLER; JOHNNIE LEGGIO, JR.; ROBERT LISTA AND LINDA LISTA;
 DOUGLAS AND CYNTHIA LONGRON; MARKLE LAND CO., LLC;
MICHAEL MATHIS; DANIEL KLING MCNEILL; JONATHAN MULLINS
AND KIMBERLY MULLINS; ND&D INTERESTS, LTD; GARY NIXON;
ALBERT PEREZ AND ELSA PEREZ; HANA PINARD; CURTIS
PLAGENS; SUSAN PLAUMANN; JOHN D. RENTZ; RICHARD
ROUNDER AND CLAIRE ROUNDER; ENRIQUE SANCHEZ, JR.; JOE
SANCHEZ; GARLAND SCHOEN; JAMES SCOTT AND CAROL SCOTT;
BRAD SINGLETARY; GLENDA SPARKS; LLOYD SPEVACK AND
DENISE SPEVACK; JIMMY SRADER; SHARON STAFFORD AND O.K.
STAFFORD; DAVID STAMPS AND CINDY STAMPS; JOHN J. STOUT;
DON STRONG; STEVE SZABO; VIRGINIA TELLER; HAROLD
THOMSON AND PATRICIA THOMSON; AMADOR TREVINO;
BEVERLY VAN ZANDT; MICHAEL VAUGHTERS AND LINDA
VAUGHTERS; FREEMAN VICKERS AND EMILY VICKERS; ROBERT
WRIGHT AND STEPHANIE WRIGHT; OSMOND J. YOUNG; AND
RAMONA ZURSCHMIEDE, Appellees

On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2010-74622

OPINION

More than ninety property owners filed a lawsuit against the Port of Houston

Authority, alleging that its negligent operation of a container terminal along the

Bayport Ship Channel constitutes a nuisance that interferes with the use and

enjoyment of their property and violates a municipal noise-control ordinance. The

Port Authority filed a plea to the jurisdiction, seeking dismissal based on

governmental immunity. The trial court denied the Port Authority’s plea. On
2
interlocutory appeal,1 we hold that the property owners’ claims do not fall within

the scope of the limited waiver of governmental immunity stated in the Texas Tort

Claims Act, reverse the trial court’s order denying the Port Authority’s plea, and

render judgment dismissing the property owners’ claims.

Background

The Port of Houston is a 25-mile-long complex of diversified public and

private marine terminals, industries, and facilities. The Port Authority, a political

subdivision of the State of Texas and a navigation district, 2 is charged with

owning, operating, and developing the Port of Houston’s public marine terminals,

including the Bayport Container Terminal. The Bayport Terminal supports the Port

Authority’s handling of containerized cargo in the Gulf of Mexico, which is the

Port Authority’s core business, and consists of at least 3320 feet of container dock

and a 160-acre container yard. Eventually, the Bayport Terminal will have the

capacity to accommodate up to seven container ships with 7000 feet of container

dock and 375 acres of container yard.

1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(8) (West Supp. 2012)
(permitting interlocutory appeal from order granting or denying governmental
unit’s jurisdictional plea).
2
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West Supp. 2012)
(defining “governmental unit” to include “a political subdivision of this state,
including any . . . navigation district”); City of Seabrook v. Port of Houston
Auth., 199 S.W.3d 403, 404−05 (Tex. App.—Houston [1st Dist.] 2006, pet.
dism’d) (explaining constitutional authority pursuant to which legislature created
Port Authority).
3
 As explained by the Port Authority’s Vice President of Strategic Planning,

[t]he movement of containers into the Bayport Terminal begins when
a vessel docks at the Bayport Terminal. The steamship line contracts
with an independent stevedoring company, which rents wharf cranes
from the Port Authority to offload the containers from the vessel. The
wharf cranes are operated by employees of the stevedore company, as
are yard-trucks that move containers from the dock to the container
stacks. Once at the stacks, containers are picked up by rubber-tire
gentry cranes (“RTGs”) and placed in line for delivery. The RTGs are
operated by members of the longshoreman’s union hired by the Port
Authority. Over-the-road semi-tractors (“18-wheelers”), arrive at
Bayport Terminal, pick up containers, depart the terminal, and deliver
them to their final destinations. The exporting process works the same
way, but in reverse order.

Ninety-five property owners in a community located near the Bayport

Terminal, filed suit against the Port Authority under the Texas Tort Claims Act

(TTCA). 3 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001−.109 (West 2011 &

Supp. 2012). The property owners stated causes of action for negligent nuisance

and negligence per se, alleging that the Port Authority’s operation of the facilities

and equipment at the Bayport Container Terminal causes excessive noise, light,

and chemical pollution that interferes with the use and enjoyment of their homes

3
This lawsuit is the property owners’ second lawsuit against the Port Authority
arising from its operation of the Bayport Terminal. The property owners
previously filed a suit in the County Civil Court at Law No. 4 for Harris County,
alleging claims for intentional nuisance, inverse condemnation, and
unconstitutional takings. That case was dismissed on the Port Authority’s pleas to
the jurisdiction and was appealed to this Court. Today, this Court issues its
opinions in both appeals.
4
and violates a municipal noise-control ordinance. The Port Authority’s alleged

negligent acts and omissions include:

• the operation of motorized cranes in a manner that creates
unreasonably loud noises by causing containers to bang against each
other, their racks, and their trailers;

• the use of excessively loud horns, loudspeakers, alarms, and lights
throughout the night;

• the emission of large quantities of pollutants and noxious substances
from the use of motor-driven equipment; and

• the failure to provide shore-based electrical service for vessels docked
at the terminal so as to avoid the vessels’ use of onboard generators
that emit additional noise and air pollution.

All of the property owners alleged the same damages, with no one plaintiff

alleging any additional or particularized harm. With respect to damage to their

homes, the property owners alleged an “ongoing assault upon their senses by the

light photons, sound waves, and noxious chemicals and the resulting loss of the use

and enjoyment of their property, a substantial reduction in the value of their homes

and property, the deprivation of the enjoyment of their property through

apprehension and loss of peace of mind, inability to sleep, mental anguish, and

disruption of peaceful enjoyment.” With respect to the damage to their persons, the

property owners alleged “sleep deprivation and resulting physical maladies,

traumatic stress disorders, and extreme mental anguish.”

5
 The Port Authority filed a plea to the jurisdiction. The jurisdictional plea

asserted that the TTCA does not waive governmental immunity absent allegations

of physical damage or destruction or property and physical bodily injury; that the

property owners had pleaded only economic loss resulting from the loss of

enjoyment and diminution in value of their property and resulting mental anguish;

and thus, the trial court lacked subject-matter jurisdiction over the property

owners’ negligence suit. After the Port Authority filed its plea to the jurisdiction,

the property owners thrice amended their petition, and the Port Authority filed an

amended plea to the jurisdiction asserting the same grounds for dismissal. In

response to the Port Authority’s amended plea, the property owners filed their

Fourth Amended Petition. After an oral hearing, the trial court denied the Port

Authority’s amended plea. This appeal followed.

Standard of Review

A trial court must have subject-matter jurisdiction before it may hear a case.

See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A

plaintiff bears the initial burden of alleging facts that affirmatively demonstrate the

trial court’s subject-matter jurisdiction over the suit. Id. at 446. A defendant may

challenge the trial court’s subject-matter jurisdiction through a plea to the

jurisdiction. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

The purpose of a plea to the jurisdiction is to “defeat a cause of action without

6
regard to whether the claims asserted have merit.” Id. It does not authorize delving

into the substance of the plaintiffs’ claims, but rather, examination of whether the

merits of those claims should be reached. Id. Accordingly, in reviewing the trial

court’s ruling on a plea to the jurisdiction, we construe the pleadings liberally in

favor of the plaintiffs and determine if the plaintiffs have alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause. Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Villarreal v.

Harris Cnty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

If the pleadings lack sufficient facts to affirmatively demonstrate the trial court’s

jurisdiction, but do not reveal incurable defects in jurisdiction, the issue is one of

pleading sufficiency, and the trial court may either afford the plaintiffs an

opportunity to amend or await further development of the case on the merits.

Miranda, 133 S.W.3d at 226–27; Villarreal, 226 S.W.3d at 541. Conversely, if the

pleadings affirmatively negate the existence of jurisdiction, the trial court may

grant the plea to the jurisdiction without providing the plaintiffs an opportunity to

amend. Miranda, 133 S.W.3d at 227; Villarreal, 226 S.W.3d at 541.

Governmental Immunity

The Port Authority contends that the trial court erred in denying its plea to

the jurisdiction because the damages pleaded by the property owners―described

by the Port Authority as loss of enjoyment and diminution in value of property and

7
mental anguish and other emotional harm―do not fall within the scope of the

TTCA’s limited waiver of governmental immunity for “property damage” or

“personal injury” caused by certain negligent acts. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021. According to the Port Authority, the TTCA requires

specific allegations of physical damage to or destruction of property and physical

bodily injury. The Port Authority further contends that because the property

owners have had reasonable opportunity to cure their pleading defects in four

amended petitions and have not done so in a manner sufficient to establish the trial

court’s subject-matter jurisdiction, we should render judgment dismissing the suit

without affording the property owners the opportunity to amend their pleadings for

the fifth time. We address each of these contentions in turn.

A. Governmental immunity, generally

“Governmental immunity protects subdivisions of the State . . . from

lawsuits and liability, which would otherwise ‘hamper governmental functions by

requiring tax resources to be used for defending lawsuits and paying judgments

rather than using those resources for their intended purpose.’” City of Houston v.

Esparza, 369 S.W.3d 238, 244 (Tex. App.—Houston [1st Dist.] 2011, pet. filed)

(quoting Mission Consolidated Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653,

655−56 (Tex. 2008)). The State can waive this immunity, and the legislature has

enacted statutes that create limited waivers with respect to specific types of claims.

8
E.g., TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001−.109; TEX. LAB. CODE ANN.

§§ 21.001−.556 (West 2006 & Supp. 2012).

The TTCA is one such statute that provides a limited waiver of

governmental immunity. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.001−.109. Although governmental immunity has two

components―immunity from liability and immunity from suit―the TTCA

“creates a unique statutory scheme in which the two immunities are co-extensive.”

Miranda, 133 S.W.3d at 224. “Sovereign immunity to suit is waived and abolished

to the extent of liability created by [the TTCA].” TEX. CIV. PRAC. & REM. CODE

ANN. § 101.025(a); Miranda, 133 S.W.3d at 224. Thus, the Port Authority is

immune from suit unless the TTCA expressly waives immunity. See TEX. CIV.

PRAC. & REM. CODE ANN. § 101.001(3)(B) (defining “governmental unit” to

include navigation district); City of Seabrook v. Port of Houston Auth., 199

S.W.3d 403, 404−05 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d) (defining

Port Authority as governmental unit).

B. The Port Authority’s tort liability under the TTCA

In essence, the property owners have alleged nuisance claims against the

Port Authority; the property owners’ negligence claim asserts a nuisance in fact,

and the property owners’ claim for violation of a municipal noise-control

ordinance asserts a nuisance per se. “In some cases, the [TTCA] may waive

9
immunity from certain nuisance claims.” See City of Dallas v. Jennings, 142

S.W.3d 310, 316 (Tex. 2004).4 Relevant to this appeal, section 101.021 of the

TTCA waives governmental immunity for (1) property damage and personal injury

arising from the operation or use of motor-driven equipment and (2) “personal

injury . . . caused by a condition or use of tangible personal or real property.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.021(1), (2).

Both parties assume, for purposes of this appeal, that the property owners

have pleaded acts or omissions on the part of the Port Authority that, if proven,

could subject the Port Authority to liability for its use of motor-driven equipment

or a condition of its property under section 101.021. What the parties dispute is

whether the Port Authority nevertheless retains its immunity because the damages

pleaded by the property owners are not the type of property or personal injury

damages contemplated in section 101.021. Thus, the jurisdictional determination in

this case turns on our construction of section 101.021.

A court’s primary objective in construing any statute is to determine and

give effect to the legislature’s intent. See State Dep’t of Hwys. & Pub. Transp. v.

4
Governmental immunity is also waived with respect to nuisance claims (1) when a
nuisance action rises to the level of a constitutional taking or (2) the nuisance
arises from a governmental unit’s proprietary function. See Jennings, 142 S.W.3d
at 316. The property owners do not allege that the Port Authority’s operation of
the Bayport Terminal rises to the level of a constitutional taking of their property,
nor do they assert that the operation of the Bayport Terminal is a proprietary
function. The property owners rely solely on the TTCA.
10
Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Esparza, 369 S.W.3d at 243. We

interpret statutory waivers of immunity narrowly, as the legislature’s intent to

waive immunity must be clear and unambiguous. See Garcia, 253 S.W.3d at 655

(citing TEX. GOV’T CODE ANN. § 311.034 (West Supp. 2012)); City of Houston v.

Vallejo, 371 S.W.3d 499, 502 (Tex. App.—Houston [1st Dist.] 2012, pet. filed);

City of Houston v. Hildebrandt, 265 S.W.3d 22, 25 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied).

1. Property damage

Neither section 101.021 nor any other provision of the TTCA defines the

term “property damage.” The Port Authority contends that property damage can

only be reasonably defined to mean the physical destruction of or damage to

property because such a definition affords the term its common usage and

comports with the common-law economic-loss rule that precludes recovery of

purely economic or financial losses. See Sharyland Water Supply Corp. v. City of

Alton, 354 S.W.3d 407, 415−20 (Tex. 2011) (explaining economic-loss rule). The

property owners respond that the Port Authority’s negligent operation of the

Bayport Terminal facilities and equipment has resulted in unnecessary light, noise,

and chemical insults upon their property. Although the Port Authority

acknowledges that noise, light, and chemical intrusions have physical properties in

a technical sense, the Port Authority disputes that those intrusions physically

11
damage property, and consequently, whether the property owners can establish a

waiver of governmental immunity under section 101.021. The Port Authority

further asserts that construing section 101.021 as a waiver of governmental

immunity for claims alleging the type of damage allegedly sustained by the

property owners here works an end-run around the community-damage rule that

precludes recovery of widely shared or community harms in inverse-condemnation

cases. See Felts v. Harris Cnty., 915 S.W.2d 482, 484 (Tex. 1996) (explaining

community-damages rule).

We need not resolve the issues of whether, as the Port Authority argues, the

waiver of immunity stated in section 101.021 requires physical property damage or

whether, as the property owners argue, the light, sound, and chemicals emitting

from the Bayport Terminal constitute physical intrusions on the property owners’

property for which damages are recoverable in a nuisance action. We conclude that

the harm alleged by the property owners is not compensable property damage

under the TTCA for another reason―namely, because it is harm suffered by the

community generally surrounding the container terminal. No one plaintiff alleges a

particularized grievance separate and apart from any other plaintiff. To hold that

section 101.021 of the TTCA waives governmental immunity for suits to recover

such damages would be contrary to the rule of narrow construction of

governmental-immunity waivers because it would subvert long-recognized law

12
that precludes private actions against governmental entities for community

damages. See Felts, 915 S.W.2d at 484.

Felts, a constitutional takings case, is most instructive regarding the

community-damages rule. There, the Supreme Court considered the extent to

which a governmental unit’s “interference with private property short of physical

appropriation may be compensable under our Constitution.” Id. The Court

concluded that recovery in a constitutional takings case is allowed only if the

injury is not one suffered by the community in general, reasoning:

Although the Texas Constitution does not require a physical
appropriation, neither does it require compensation for every decrease
in market value attributed to a governmental activity. Throughout its
history, courts have construed Article I, Section 17 to allow recovery
only if the injury is not one suffered by the community in general. As
we explained in G.C. & S.F. Ry. v. Fuller[, 63 Tex. 467, 470−71
(1885)]:

Every government has the power to construct or cause to be
constructed public works, and in so far as such construction
works an injury to the public, it can give no one a right to a
private action.

A railway may be built in such relation to a prosperous town as
practically to destroy the value of the real estate in it, or in a
part of it, and to destroy the business of its inhabitants, but if it
be built in accordance with legislative permission, this would
not entitle a person to maintain an action for loss resulting from
the diminution in value of his property in the town or his loss of
business.

In reference to such things benefits will accrue to some
communities and persons, and depreciation in values result to
the property of others; but these neither entitle a public work to
13
 compensation for benefits conferred, nor render it liable for
such losses as may be sustained. . . .

We concluded that injuries to property received or sustained in
common with the community in which the property is situated, and
resulting from the operation of a public work, are community in
nature. Community damages are not connected with the landowner’s
use and enjoyment of property and give rise to no compensation.

Id. at 484−85 (citations omitted).

In other words, for more than one hundred years, an injury imposed by a

governmental unit on a plaintiff as part of the general community has not been a

compensable property damage. See id. (citing G.C. & S.F. Ry., 63 Tex. at 470−71).

If such community damages are not compensable property damages in an action

arising from the intentional acts of a governmental unit, we conclude that the

legislature did not contemplate that section 101.021 would provide an avenue for

recovery for such damages in a suit based on a governmental unit’s negligent acts.

Thus, we will not construe section 101.021 and its limited waiver of governmental

immunity in a manner that would allow community damages for negligent

government conduct that are precluded for intentional government conduct. 5

It is undisputed that the Bayport Terminal is a public work. The property

owners did not contest the Port Authority’s evidence of the need for the Bayport

5
Our refusal to construe section 101.021 in a manner that would create an end-run
around the community-damages rule is supported by the rule of construction that
presumes, in enacting a statute, the legislature favored public interest over any
private interest. See TEX. GOV’T CODE ANN. § 311.021(5) (West 2013).
14
Terminal’s construction and operation in the trial court. Claims arising from such

public works and involving noise, light, and pollution like that alleged by the

property owners are barred by the community-damages rule. See, e.g., Tex. Dep’t

of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 647–48 (Tex. 2004) (holding

that bright lights from highway were not compensable under constitution because

impact from public works “are compensable only to the extent they are not

common to the community”); Felts, 915 S.W.2d at 485–86 (holding that “noise

emanating from a roadway ha[d] a similar impact on the community as a whole”

and thus was noncompensable, “quintessential” community damage); Cernosek

Enters., Inc. v. City of Mont Belvieu, 338 S.W.3d 655, 656 (Tex. App.—Houston

[1st Dist.] 2011, no pet.) (holding that plaintiff who alleged well drilling destroyed

“peace and general welfare of the nearby community” and “decrease[d] the

property values” failed to demonstrate that “injury affect[ed] it in some special or

unique way that [was] different from the injury suffered by the community at

large”). In light of the preceding and given the rule of narrow construction of

waivers of immunity, we hold that the property owners’ claimed

damages―diminution in value and loss of enjoyment that are shared in common

with the community―do not constitute property damage under section 101.021.

Accordingly, the Port Authority retains its immunity, and the trial court erred in

15
denying the Port Authority’s plea to the jurisdiction as to the property owners’

claims for damage to their homes.

Our conclusion that the Port Authority is immune from the property owners’

negligent nuisance claim also disposes of the property owners’ argument that the

operation of the Bayport Terminal constitutes a nuisance per se under the

municipal noise control ordinance. Nothing in section 101.021 indicates a

legislative intent to waive governmental immunity for property damage suffered by

the community generally. We thus conclude that, for the purpose of governmental

immunity, it makes no difference whether the conditions alleged are characterized

as a nuisance in fact or nuisance per se. In either circumstance, the Port Authority

retains its immunity from the property owners’ suit for damages to their homes.

2. Personal injury

We next determine whether the property owners have pled “personal

injur[ies]” within the scope of section 101.021’s limited waiver of governmental

immunity. The Port Authority contends that personal injury is a term of art in the

TTCA that cannot include mental anguish or its manifestations derived from

property damage, unaccompanied by physical injury. Because the mental anguish

and other emotional harm claimed by the property owners is, according to the Port

Authority, merely derivative of their property damage claims, the waiver of

sovereign immunity stated in section 101.021 is not implicated.

16
 Although the property owners state in their briefing in this Court that the

light, sound, and chemical pollution emitting from the Bayport Terminal has

resulted in physical pain that will likely require medical treatment and monitoring

in the future, no such allegation appears in their live pleading. The only personal

injuries actually pleaded by the property owners include “sleep deprivation and

resulting physical maladies, traumatic stress disorders, and extreme mental

anguish.” We agree with the Port Authority’s characterization of these damages as

mental anguish and the physical symptoms of mental anguish. 6 With respect to the

issue of whether such damages fall within the scope of section 101.021, we are

mindful that the TTCA “does not create a cause of action; it merely waives

[governmental] immunity as a bar to a suit that would otherwise exist.” City of

Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997). Thus, unless the property owners

would have a claim for “sleep deprivation and resulting physical maladies,

traumatic stress disorders, and extreme mental anguish” under common law against

a private defendant, we need not reach the question of whether such damages are a

personal injury for which the legislature has waived the Port Authority’s

governmental immunity. See id.

6
Regarding the property owners’ pleading of sleep deprivation and resulting
physical maladies, we note that the Supreme Court has categorized difficulty
sleeping as a “minor physical symptom,” not bodily injury. Likes, 962 S.W.2d at
496.
17
 The Supreme Court’s holding in City of Tyler v. Likes is dispositive here.

The plaintiff in Likes alleged that a city’s negligence caused her home to flood.

The principal issue presented was whether mental-anguish damages are

recoverable for the negligent destruction of property. 962 S.W.2d at 489. Without

deciding whether mental anguish is a “personal injury” within the meaning of

section 101.021 and focusing instead on whether any defendant (regardless of its

status as a governmental unit) would be liable for such damages, the Supreme

Court answered no. Id. at 496. The Supreme Court held that “damages measured

by diminution in value are an adequate and appropriate remedy for negligent harm

to real or personal property, and that mental anguish based solely on negligent

property damage is not compensable as a matter of law.” Id. at 497.

Like the Supreme Court in Likes, we do not reach the issue of whether the

damages pleaded by the property owners are personal injuries within the meaning

of section 101.021 because the property owners have not stated a claim that would

subject the Port Authority to liability as a private defendant for mental anguish or

any physical symptoms resulting from mental anguish. We therefore hold that the

Port Authority retains its immunity, and the trial court erred in denying the plea to

its jurisdiction as to the property owners’ claim for personal injury. In so holding,

we reject the property owners’ assertion that the pleading of wanton conduct by the

Port Authority―a heightened mental culpability―warrants an award of mental

18
anguish damages unaccompanied by physical injury. Section 101.021 waives

immunity only for negligence. See Gay v. State, 730 S.W.2d 154, 158 (Tex.

App.—Amarillo 1987, no writ) (TTCA does not waive immunity for gross

negligence or deliberate indifference).

CONCLUSION

We reverse the order of the trial court, and we render judgment dismissing

the property owners’ claims against the Port Authority.

Harvey Brown
Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

19