City of Brownsville v. Lili Nezzer

NUMBER 13-21-00149-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF BROWNSVILLE, Appellant,

v.

DANIEL REGLADO, INDIVIDUALLY
AND AS NEXT FRIEND OF D.A.R.,
A MINOR, CECILIA P. ALONSO,
AND SYLIVA VELA, Appellees.

On appeal from the 444th District Court
of Cameron County, Texas.
 NUMBER 13-21-00150-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

CITY OF BROWNSVILLE, Appellant,

v.

LILI NEZZER, Appellee.

On appeal from the 444th District Court
of Cameron County, Texas.

MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Benavides and Tijerina
Memorandum Opinion by Justice Benavides

In these related interlocutory appeals from the denial of pleas to the jurisdiction,

appellant the City of Brownsville argues that its governmental immunity was not waived

under the Texas Tort Claims Act (TTCA). We reverse and render.

2
 I. BACKGROUND

On March 24, 2018, appellant co-sponsored a binational ten-kilometer footrace

with the City of Matamoros, Mexico. At around 8:05 a.m. that day, the wind reached gusts

of about forty miles per hour, and the metal structure marking the start of the race fell and

struck appellees Cecilia P. Alonso, Daniel Reglado, D.A.R., a minor, Sylvia Vela, and Lili

Nezzer. 1 Appellees sued appellant, as well as Fundacion Teleton USA and Sistema

Infantil Teleton USA (the Organizations), which provided support and resources for the

race, and Sabas Lopez, an independent contractor whom appellant hired to erect and

assemble the metal structure.

In their pleadings, appellees alleged causes of action against appellant for both

negligent use or condition of tangible personal property and for premises defect.

Appellees posed two theories for the downfall of the structure: (1) the structure was not

properly anchored to prevent it from falling, and/or (2) the banner attached to the structure

“acted as a sail to bring the trusses down.” As to appellant’s immunity, appellees alleged

that appellant was performing a proprietary, as opposed to governmental, function at the

time the tort occurred. Alternatively, appellees alleged that appellant’s immunity had been

waived under the TTCA.

On December 14, 2020, appellant filed a plea to the jurisdiction as to each

appellee, challenging both the pleadings and the existence of certain jurisdictional facts.

Appellant contended that it performed a governmental function by hosting the race, the

1 The claims brought by appellees Alonso, Reglado (in his individual capacity and as next friend of

D.A.R.), and Vela are at issue in appellate cause number 13-21-00149-CV. The claims brought by appellee
Nezzer are at issue in appellate cause number 13-21-00150-CV.
3
appellees had alleged a premises defect claim, and appellant’s immunity was not waived

under the TTCA.

Attached as evidence to appellant’s plea to the jurisdiction was Ramiro Gonzalez’s

deposition. In his deposition, Gonzalez identified himself as the director of government

and community affairs for the City of Brownsville. Gonzalez’s duties included “[h]andl[ing]

all external relations [of] the city with regards to local, state, and federal agencies—

agencies and elected officials. And . . . special projects as assigned.” Pertinently,

Gonzalez was also the “race organizer or the lead on the race.” Although appellant

partnered with the City of Matamoros and the Organizations to host the event, according

to Gonzalez, “[t]he [C]ity [of Brownsville] was in the lead role in this race.” Appellant

“received no financial benefit” from hosting the race, but Gonzalez averred that one

benefit appellant received was “the [g]oodwill between two cities and . . . let’s say a

cultural benefit.”

Gonzalez knew that “[o]ne of the first things [he] need[ed] [was] a gate, a starting

gate” for the race. Therefore, Gonzalez contacted Lopez, an independent contractor in

the area who had experience building trusses and printing banners. Lopez provided

appellant with an estimate that specified he would supply “ASSEMBLY OF TRUSSING

AT [THE] STARTING POINT OF EVENT,” “ALL NECESSARY BRACKETING AND

ANGLED SUPPORTS TO HOLD UP STRUCTURE,” and a “BANNER WITH DIGITAL

PRINTED LOGO INSTALLED ONTO TRUSSING.” The estimate also “INCLUDE[D]

INSTALLATION AND REMOVAL OF ALL ITEMS LISTED ABOVE.” Appellant ultimately

hired Lopez to build the structure in question.

4
 Appellant also attached Lopez’s deposition to its plea to the jurisdiction. In it, Lopez

admitted that, prior to this event, he had never installed a similar structure that had

banners on it. Lopez acknowledged that if the banners were not installed on the structure,

it likely would not have fallen. However, Lopez also stated that he had worked with

appellant before and had never had a similar structure fall in the past. He also stated that

he had failed to anchor trusses before without incident. Lopez affirmed that on the day of

the race, three city workers, whom he could not identify, helped him with the installation

of the trusses.

The trial court ultimately denied appellant’s plea to the jurisdiction for each

appellee, and these interlocutory appeals followed. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 51.014(a)(8).

II. PLEA TO THE JURISDICTION

A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat an

action without regard to whether the claims asserted are meritorious. Bland Indep. Sch.

Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Subject matter jurisdiction is a question of

law, and we review a trial court’s ruling on a plea to the jurisdiction de novo. See Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Immunity is

properly asserted in a plea to the jurisdiction since sovereign immunity deprives a trial

court of jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636

(Tex. 2012); Miranda, 133 S.W.3d at 225–26. A plea to the jurisdiction may challenge the

sufficiency of the pleadings, or it might include evidence which challenges the existence

of jurisdictional facts. Miranda, 133 S.W.3d at 225–26; City of El Paso v. Cangialosi, 632

5
S.W.3d 611, 619 (Tex. App.—El Paso 2020, no pet.). When, like here, the plea to the

jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties. Miranda, 133 S.W.3d at 225–26; Cangialosi, 632 S.W.3d at 619.

“The burden is on the governmental unit as the movant to meet the standard of proof.”

City of Westworth Village v. City of White Settlement, 558 S.W.3d 232, 240 (Tex. App.—

Fort Worth 2018, pet. denied). We also review de novo whether a plaintiff has sufficiently

alleged facts that affirmatively demonstrate the trial court’s subject matter jurisdiction. Id.

III. PROPRIETARY/GOVERNMENTAL DICHOTOMY

By its first sub-issue, appellant contends it was performing a governmental function

and is thus immune from suit unless appellees can establish a waiver of immunity under

the TTCA. Appellees counter that appellant was performing a proprietary function and no

immunity exists.

A. Standard of Review & Applicable Law

“Texas is inviolably sovereign.” Wasson Ints., Ltd. v. City of Jacksonville, 489

S.W.3d 427, 429 (Tex. 2016). Texas’s political subdivisions—such as counties,

municipalities, and school districts—share in the state’s inherent sovereignty. Id. at 429–

30. “When analyzing a cause of action brought under the [TTCA] against a municipality,

the initial determination to be made is whether the municipality’s action or inaction

involves a proprietary function or a governmental function.” Carrasco v. City of El Paso,

625 S.W.3d 189, 195 (Tex. App.—El Paso 2021, no pet.). “A municipality is not immune

from suit for torts committed in the performance of its proprietary functions, as it is for

torts committed in the performance of its governmental functions.” Tooke v. City of Mexia,

6
197 S.W.3d 325, 343 (Tex. 2006). Governmental functions are “those functions that are

enjoined on a municipality by law and are given it by the state as part of the state’s

sovereignty, to be exercised by the municipality in the interest of the general public.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.0215(a). Proprietary functions “are those functions

that a municipality may, in its discretion, perform in the interest of the inhabitants of the

municipality.” Id. § 101.0215(b). This “language seems plain enough, but the rub comes

when it is sought to apply the test to a given state of facts.” City of Houston v. Wolverton,

277 S.W.2d 101, 103 (Tex. 1955).

The TTCA contains non-exhaustive lists of functions the legislature has already

determined to be either governmental or proprietary. See TEX. CIV. PRAC. & REM. CODE

ANN. § 101.0215. “If a function is included in the nonexclusive list of governmental

functions, it has been deemed governmental in nature by the legislature and we have no

discretion or authority to hold otherwise.” Rogers v. City of Houston, 627 S.W.3d 777, 795

(Tex. App.—Houston [14th Dist.] 2021, no pet.).

B. Factor Analysis

Whether appellant is immune from suit is contingent on whether appellant was

performing a governmental or proprietary function when it hosted the race. See Tooke,

197 S.W.3d at 343. Hosting a footrace is not included in either the list of governmental or

proprietary functions included in the TTCA. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.0215. When a municipality’s action is not relegated to the non-exhaustive lists of

governmental and proprietary functions in the TTCA, we consider four factors in

determining whether the activity is governmental or proprietary. Wasson Ints., Ltd. v. City

7
of Jacksonville, 559 S.W.3d 142, 150 (Tex. 2018) (“Wasson II”). Specifically, we address

whether appellant’s action was: (1) mandatory or discretionary; (2) intended to primarily

benefit the general public or appellant’s residents, (3) done on the State’s behalf or on its

own behalf; and (4) sufficiently related to a governmental function to render the act

governmental even if it would otherwise have been proprietary. Id.

1. Appellant’s Act was Discretionary

Appellant concedes that it was engaged in a discretionary function. Prior to the

binational race, appellant had not hosted a race any time within the past nine and a half

years. Gonzalez acknowledged in his deposition that appellant had no plans to host a

race in the future. There is no evidence in the record that appellant was enjoined by law

to host the race. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a). Therefore, this

factor indicates appellant’s act was proprietary.

2. Appellant’s Act Primarily Benefited the General Public

Generally, a city’s governmental functions are ones that primarily benefit the

general public while its proprietary functions benefit its own residents. See id.; Wasson II,

559 S.W.3d at 151. There were many benefits amassed as a result of appellant hosting

the race. In his deposition, Gonzalez acknowledged that appellant received a benefit from

the race in the form of “[g]oodwill” between the “two cities” of Matamoros, Mexico, and

Brownsville, Texas.

The record shows that the race participants were not limited to Brownsville

residents and that both Texas and Mexico residents participated in the race. Indeed,

appellees Reglado and Vela were from Matamoros, Mexico and Brownsville, Texas,

8
respectively. Thus, the city’s act was not “primarily for the benefit of those within the

corporate limits of the municipality.” See Gates v. City of Dallas, 704 S.W.2d 737, 739

(Tex. 1986). Gonzalez affirmed that “[h]undreds of thousands of people were invited to

participate in the event,” and that parts of the race were broadcast on television. See id.

(providing that proprietary functions are functions primarily for the benefit of those within

the municipality). But ultimately, the record reflects that the main purpose of the race from

appellant’s perspective was “the fundraising effort,” of which appellant received no share.

Appellant’s co-defendant, Fundacion TeletonUSA, a charitable organization, was the only

financial benefactor. See Wasson II, 559 S.W.3d at 152 (holding that the City’s objective

in leasing property to raise funds for the City’s budget indicated it entered into the lease

primarily to benefit its own residents, not the general public). Based on this evidence, the

record indicates that the general public, rather than appellant’s residents, primarily

benefited from the race. See id. at 151–52. Therefore, this factor indicates appellant’s act

was governmental.

3. Appellant Acted on its Own Behalf

Governmental functions are those in which the municipality acts as a branch of the

State or as an arm of the government, rather than on its own behalf. Id. at 152. The record

indicates that appellant communicated with “Custom[s] and Border Protection” to ensure

that the runners would be able to cross back and forth between Texas and Mexico during

the race. Appellant also worked with Cameron County to use the international bridge

stretching between Texas and Mexico, which Cameron County owns, during the race.

9
 However, overall, appellant’s act in hosting the race was done on its own, rather

than as an arm of the government. Gonzalez did not indicate that the “goodwill” created

by the race was between Texas and Mexico, but solely between the two cities. Funding

for the race came from appellant’s own coffers, not from any agency of the State. See

Hays St. Restoration Grp. v. City of San Antonio, 570 S.W.3d 697, 706 (Tex. 2019).

Therefore, this factor slightly weighs in favor of finding this act to be proprietary.

4. Appellant’s Act was Sufficiently Related to a Governmental Function
to Render it Governmental Nonetheless

To be sufficiently related to a governmental function to render appellant’s act

governmental nonetheless, it must be “closely related to or necessary for performance”

of the governmental functions designated by statute. Wasson II, 559 S.W.3d at 153

(quoting City of Houston v. Petroleum Traders Corp., 261 S.W.3d 350, 356 (Tex. App.—

Houston [14th Dist.] 2008, no pet.)). Appellees liken the race to “amusements owned and

operated by the municipality,” but there is no evidence in the record that appellant “owned”

the race. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(b)(2); Nguyen v. SXSW

Holdings, Inc., 580 S.W.3d 774, 783 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

Appellant characterizes the binational race as being akin to “parks” or a

“recreational facility.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a)(13), (23). We

agree with this characterization. The terms “parks” and “recreational facilities” in

§ 101.0215(a) are afforded broad interpretations. City of Plano v. Homoky, 294 S.W.3d

809, 814–15 (Tex. App.—Dallas 2009, no pet.); see Lewis v. City of Fort Worth, 89

S.W.2d 975, 978 (Tex. 1936); see also TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(L)

(defining “[r]ecreation” to include “any other activity associated with enjoying nature or the

10
outdoors”). Hosting a cultural event like the binational race is also similar to events the

public may enjoy at “civic, convention centers, or coliseums.” See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.0215(a)(16). This factor weighs in favor of designating this activity as a

governmental function.

C. The Nature and Purpose of Immunity

In this case, because the factors do not uniformly point to a proprietary or

governmental function we must consider “immunity’s nature and purpose and the

derivative nature of [the] city’s access to that protection.” Wasson II, 559 S.W.3d at 154.

“[I]mmunity preserves the separation of powers by preventing the judiciary from interfering

with the policymaking responsibilities of other branches of government and seeking to

control their choices regarding the use of public funds.” Nettles v. GTECH Corp., 606

S.W.3d 726, 739 (Tex. 2020). “A lack of immunity may hamper governmental functions

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

than using those resources for their intended purposes.” Reata Constr. Corp. v. City of

Dallas, 197 S.W.3d 371, 375 (Tex. 2006).

A municipality is permitted to use its general revenues to fund recreational

programs. See TEX. LOC. GOV’T CODE ANN. §§ 332.002, 332.004(a); see also TEX. TAX

CODE ANN. § 321.506 (stating that certain tax revenue “may be used for any purpose for

which the general funds of the municipality may be used”). Diverting tax resources that

are permitted to be spent on recreational programs to instead be spent on “defending

lawsuits and paying judgments” would certainly hamper this municipal function. See

Reata Constr. Corp., 197 S.W.3d at 375. A determination that appellant’s function was

11
proprietary, rather than governmental, would thus do nothing to further the “nature and

purpose” of the city’s immunity. See Wasson II, 559 S.W.3d at 154.

The dichotomy is a binary choice; either appellant was performing a governmental

function by hosting the race or it was performing a proprietary function. On balance,

appellant’s actions were more closely aligned with “purely governmental matters solely

for the public benefit” rather than those done in “its private capacity, for the benefit only

of those within its corporate limits, and not as an arm of the government.” Tooke, 197

S.W.3d at 343 (quoting Dilley v. City of Houston, 222 S.W.2d 992 993 (Tex. 1949)).

Having reviewed and applied the analysis set forth in Wasson II, we conclude that

appellant performed a governmental function by hosting the race and the TTCA therefore

applies. See Wasson II, 559 S.W.3d at 150–54.

IV. TTCA CLAIMS

Because we have concluded that the race was a governmental function, the

burden to affirmatively show that appellant’s immunity was waived under the TTCA was

on the appellees. See Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d

506, 512 (Tex. 2019). Appellant contends that appellees were required to plead a claim

for relief for either negligent use or condition of personal tangible property or for premises

defect, not both. Appellant further asserts that appellees have neither a viable negligent

use or condition of personal tangible property claim nor a viable premises defect claim.

A. Pleading Defects

“The [TTCA] . . . applies different standards of care upon a governmental unit for

negligence claims based on ‘a condition or use of tangible personal property’ and claims

12
based on a ‘premises defect.’” Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385

(Tex. 2016). “The [TTCA]’s scheme of a limited waiver of immunity from suit does not

allow plaintiffs to circumvent the heightened standards of a premises defect claim

contained in [§] 101.022 by re-casting the same acts as a claim relating to the negligent

condition or use of tangible property.” Miranda, 133 S.W.3d at 233. Therefore, appellees

cannot assert a claim that is both a premises defect claim and one relating to a condition

or use of tangible property. Sampson, 500 S.W.3d at 385.

To determine whether the TTCA waives appellant’s immunity for appellees’ claim,

we must first determine the correct nature of appellees’ claim for relief. See id. Whether

appellees’ claim is based on a premises defect or a negligent use or condition of tangible

personal property is a legal question that we review de novo. See id.; United Scaffolding,

Inc. v. Levine, 537 S.W.3d 463, 469 (Tex. 2017).

B. Characterization of Claims

The TTCA expressly waives immunity for governmental units in three areas:

(1) auto accidents caused by public employees; (2) injuries arising out of a condition or

use of tangible personal property; and (3) premises defects. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.021.

The distinction between a use or condition of tangible personal property
claim as opposed to a premises defect claim, . . . is whether it was the
contemporaneous, affirmative action or service (use) or the state of being
(condition) of the tangible property itself that allegedly caused the injury, or
whether it was a condition created on the real property by the tangible
personal property (a premises defect).

Sampson, 500 S.W.3d at 390.

13
 Real property includes “land, and generally whatever is erected or growing upon

or affixed to land.” Miranda, 133 S.W.3d at 229–30. In their amended pleadings, appellees

alleged that “[a]s part of the organizational and hosting duties it undertook, [appellant]

hired Lopez to erect the trusses and signs that fell on [appellees].” Premises is not defined

by the TTCA. However, another section of the Texas Civil Practice and Remedies Code

defines premises to include “land, roads, water, watercourse, private ways, and buildings,

structures, machinery, and equipment attached to or located on the land, road, water,

watercourse, or private way.” TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(2).

Appellees rely on authority from our sister courts to assert that “one factor courts

examine in determining whether a case involves a ‘premises defect’ is the permanent or

temporary nature of the item in question.” See City of Houston v. Rushing, 7 S.W.3d 909,

916 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Tex. Dep’t of Transp. v. Henson,

843 S.W.2d 648, 652 (Tex. App.—Houston [14th Dist.] 1992, pet. denied). The test laid

out by the supreme court to determine whether a claim is one for premises defect or

negligent activity is whether the “plaintiff alleges injury as a result of a physical condition

or defect left on the premises, ‘not as a contemporaneous result of someone’s

negligence.’” See Levine, 537 S.W.3d at 472 (quoting Clayton W. Williams, Jr., Inc. v.

Olivo, 952 S.W.2d 523, 527 (Tex. 1997)); see also Tex. Health & Human Servs. Comm’n

v. McRae, No. 05-14-00894-CV, 2015 WL 4546927, at *3 (Tex. App.—Dallas 2015, no

pet.) (mem. op.) (“[T]he removability or temporary nature of a piece of property on a

premises does not convert a premises-defect claim into a viable negligence claim.”). We

note that the cases cited by appellees were also decided prior to Sampson, which held

14
that even “an item of tangible personal property may create a condition of the premises,

resulting in a premises defect claim.” See Sampson, 500 S.W.3d at 389.

Therefore, even if we concluded that the structure is tangible personal property,

the nature of appellees’ claims is still based on the principle that the use or condition of

the tangible personal property created a dangerous condition on real property; namely, a

falling hazard. See Harris County v. Shook, 634 S.W.3d 942, 952 (Tex. App.—Houston

[1st Dist.] 2021, pet. filed); see also Constantino v. Dall. Cnty. Hosp. Dist., No. 05-15-

01273-CV, 2016 WL 6161748, at *5 (Tex. App.—Dallas Oct. 24, 2016, no pet.) (mem.

op.). Nevertheless, appellees assert their claim is correctly characterized as one for

negligent use or condition of tangible personal property. We disagree.

First, “use” generally means “to put or bring into action or service; to employ for or

apply to a given purpose.” Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 588 (Tex.

2001). According to Lopez, three City employees helped “bring” the structure “into action”

by installing supports on the structure. However, the city employees’ act of helping to

erect the structure did not occur contemporaneously with the injuries that appellees

sustained. Therefore, the fact that city employees helped to install the structure does not

support a “use” claim under the TTCA. Sampson, 500 S.W.3d at 388–89 (“[T]o state a

‘use’ of tangible personal property claim under the [TTCA], the injury must be

contemporaneous with the use of the tangible personal property . . . .”).

Alternatively, appellees allege that the structure was lacking an integral safety

feature.2 See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996); Lowe v.

2Our sister courts have struggled to determine whether the lack of an integral safety component
represents a “use” or “condition” of tangible personal property. See Tex. State Tech. Coll. v. Beavers, 218
15
Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976); Robinson v. Cent. Tex. MHMR Ctr.,

780 S.W.2d 169, 171 (Tex. 1989). This type of “use” has been restricted by the supreme

court. See Clark, 923 S.W.2d at 585 (“The precedential value of [Lowe and Robinson]

is . . . limited to claims in which a plaintiff alleges that a state actor has provided property

that lacks an integral safety component and that the lack of this integral component led

to the plaintiff’s injuries.”). To support a “use” claim under the TTCA, a safety feature may

not merely be inadequate but must be completely lacking. Id.

What a cruel prism hindsight is. In retrospect, we can condemn Lopez for attaching

an unperforated banner or failing to anchor the structure. However, failing to provide an

S.W.3d 258, 264 n.1 (Tex. App.—Texarkana 2007, no pet.); Univ. of N. Tex. v. Harvey, 124 S.W.3d 216,
223 (Tex. App.—Fort Worth 2003, pet. denied) (“Thus, a scoop was an integral safety component of the
ice barrels. The lack of a scoop was an intentional or inadvertent state, i.e., a condition, of the ice barrels.”);
Tex. Dep’t of Crim. Just. v. Diller, 127 S.W.3d 7, 12 (Tex. App.—Tyler 2002, pet. denied) (“Appellee has
not complained about the condition of the bag used by her son. She does not claim it was defective or
lacked an integral safety component.”); see also Solis v. Tex. Dep’t of Crim. Just., No. 10-09-00065-CV,
2009 WL 4357259, at *1 (Tex. App.—Waco Dec. 2, 2009, pet. denied) (mem. op.) (“A governmental unit
may waive immunity under the ‘condition’ of tangible personal property portion of section 101.021(2) if it
provides equipment that is defective because it lacks an integral safety component.”).

This is perhaps because the supreme court’s precedent is relatively opaque as to whether the lack
of an integral safety feature is a negligent use or condition. Compare San Antonio State Hosp. v. Cowan,
128 S.W.3d 244, 245 (Tex. 2004) (“Respondents do not complain of the condition of Cowan[’]s walker and
suspenders. They do not assert, for example, that the walker and suspenders were defective or that they
lacked some safety feature.”), with Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996) (holding
that cases where a governmental unit furnished property lacking an integral safety component “represent
perhaps the outer bounds of what we have defined as use of tangible personal property” (emphasis added)).
In Sampson, the supreme court explained that a defective or inadequate condition of tangible personal
property is different than a “use” of tangible personal property which involves furnishing property that lacks
an integral safety component. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388 n.3 (Tex.
2016). However, the supreme court has not provided explicit guidance as to how we might differentiate
between the two. See id. In any event, we agree with our sister court that:

Whether the requirement is analyzed under the “condition” or “use” section of the statute,
the Texas Supreme Court has made it clear that, unless the governmental agency has
“used” tangible personal property in some other manner so as to waive immunity, merely
supplying the property for another’s use, without more, does not waive immunity unless
the supplied property is completely lacking an integral safety component.

Beavers, 218 S.W.3d at 264 n.1.
16
item with a more effective safety feature does not waive a governmental unit’s immunity.

Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex. 2005). The contention that the

city employees who helped erect the structure by placing barricades around it and

installing support features should have also helped Lopez anchor the structure and/or

should have known to remove the banners from the structure is a claim that appellant

provided tangible personal property that was merely inadequate, not defective. See Univ.

of Tex. Sys. Operating v. Palomino, 498 S.W.3d 711, 717 (Tex. App.—El Paso 2016, pet.

denied). Accordingly, appellees have failed to show that their claims fall within the TTCA’s

“use” exception to governmental immunity under the integral safety component doctrine.

Second, a condition of tangible personal property requires “an allegation of

defective or inadequate property when ‘some condition’ of property is a contributing factor

to the injury.” Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983). “Condition”

has been defined as “either an intentional or an inadvertent state of being.” Sampson,

500 S.W.3d at 388 (quoting Abutahoun v. Dow Chem. Co., 463 S.W.3d 42, 49 (Tex.

2015)). “For a defective condition to be the basis for complaint, the defect must pose a

hazard in the intended and ordinary use of the property.” Dallas County. v. Posey, 290

S.W.3d 869, 872 (Tex. 2009).

Appellees do not cite any authority to support the notion that a tendency to be

felled by the wind is a defective condition of tangible personal property. In truth, it was not

the structure’s “state of being” that caused a dangerous condition. Instead, it was the

structure’s placement on the premises. See Sampson, 500 S.W.3d at 391; see also

Constantino, 2016 WL 6161748, at *5 (holding that the “placement” of a television

17
“created the dangerous condition of the room, in this case a falling hazard” and that

appellant’s claim was therefore properly characterized as a premises defect). If the

structure had been wrapped in barbed wire, that would certainly be a condition that made

the structure itself more dangerous. See Sampson, 500 S.W.3d at 391 (noting in dicta

that a cord “frayed with exposed wire” would be an example of a defective condition);

Posey, 290 S.W.3d at 872 (“[T]he exposed wires in this case might have posed an

electrical hazard to an ordinary user of the telephone.”). The structure’s falling hazard in

this case, however, created a dangerous condition on the premises.

Regardless of the nature of the property, the dangerous condition that was created

was a real-property condition. We therefore conclude that appellees’ claims are for a

premises defect.

C. Premises Defect Claim

To succeed on a premises defect claim, appellees as licensees were required to

prove that: (1) a condition of the premises created an unreasonable risk of harm to the

licensees; (2) the governmental unit actually knew of the condition; (3) the licensees did

not actually know of the condition; (4) the governmental unit failed to exercise ordinary

care to protect the licensees from danger; and (5) the governmental unit’s failure was a

proximate cause of injury to the licensee. See State Dep’t of Highways & Pub. Transp. v.

Payne, 838 S.W.2d 235, 237 (Tex. 1992).

Appellant argues that “given that the trusses and signage at issue were not owned,

occupied, or controlled by Appellant City of Brownsville, Appellee’s [sic] claims fail as a

matter of law . . . .” However, “[t]he relevant inquiry is whether [appellant] assumed

18
sufficient control over the part of the premises that presented the alleged danger so that

the [appellant] had the responsibility to remedy it.” County of Cameron v. Brown, 80

S.W.3d 549, 556 (Tex. 2002). There is no requirement that the control be exclusive. See

Levine, 537 S.W.3d at 479.

Although it is undisputed that the street the structure was built on belonged to

Texas Southmost College, appellant’s own evidence indicated that Texas Southmost

College granted appellant “[u]sage of TSC grounds to run the route.” Gonzalez

acknowledged that appellant selected the location of the structure, appellant had the

power to move the gate, appellant had the power to exclude people from the area where

the structure fell, appellant made decisions about what the structure looked like, and

appellant assumed responsibility for safety at the race. Lopez also testified that three city

employees allegedly helped to erect the trusses. Therefore, appellant had sufficient

control over the premises so that it was entrusted with the responsibility to remedy

potential defects. See Brown, 80 S.W.3d at 556.

“With premises defects, liability is predicated not upon the actions of the

governmental unit’s employees but by reference to the duty of care owed by the

governmental unit to the claimant . . . .” DeWitt v. Harris County, 904 S.W.2d 650, 653

(Tex. 1995). Appellees presented evidence that they paid for the use of the premises and

alleged that the duty of care owed to them was that which is owed by a private person to

an invitee. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a) (“Except as provided in

Subsection (c), if a claim arises from a premise defect, the governmental unit owes to the

claimant only the duty that a private person owes to a licensee on private property, unless

19
the claimant pays for the use of the premises.”). However, there is undisputed evidence

that the structure was located in the middle of the street. Therefore, regardless of

appellees’ payment for use of the premises, the duty of care owed to them was that which

a private person owes to a licensee. See id. § 101.022(c) (“If a claim arises from a

premises defect on a toll highway, road, or street, the governmental unit owes to the

claimant only the duty that a private person owes to a licensee on private property.”).

To prove that a governmental unit had actual knowledge of an unreasonable risk

of harm, a licensee must show that the governmental unit actually knew of the dangerous

condition at the time of the accident. See Univ. of Tex. at Austin v. Hayes, 327 S.W.3d

113, 117 (Tex. 2011). “Although there is no one test for determining actual knowledge

that a condition presents an unreasonable risk of harm, 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).

In his deposition, Gonzalez stated that he had the opportunity to see the structure

when it had been completed. He swore that he did not “notice any instability with it,” he

did not “notice it swaying with the wind,” and that “it looked like it was okay.” Gonzalez

also stated that he did not think about whether the structure might be susceptible to wind

“[b]ecause he hired a professional to do it” and that because “[Lopez] set[] up the trusses

and he set up the banners, and he ha[d] done it before—that’s just not something that

[Gonzalez] thought about as far as like poking holes in [the banner].”

20
 Given appellant’s evidence, it was appellees’ burden to raise a material fact as to

jurisdiction. See Sampson, 500 S.W.3d at 393. Appellees alleged in their pleadings that

appellant did have actual knowledge of the premises defect, but they provided no

evidence of such knowledge in their response to appellant’s plea to the jurisdiction nor

have they asserted on appeal that appellant had actual knowledge. Lopez stated that

three city employees were near the start area when the structure fell. However, mere

proximity to the defect is not evidence of actual knowledge. See id. at 396 (quoting City

of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006)).

No evidence exists in the record that appellant had any knowledge that the

structure was unstable at the time of the accident. Evidence that a perforated banner or

an anchored structure would have been better is not evidence that appellant had actual

knowledge that the structure in its chosen form was dangerous. See id. at 396. Because

appellant did not have actual knowledge that the structure was unstable, appellant’s

immunity was not waived under the TTCA. See Payne, 838 S.W.2d at 237; Tooke, 197

S.W.3d at 343; TEX. CIV. PRAC. & REM. CODE ANN. § 101.001–.109. We therefore hold that

the trial court erred in denying appellant’s plea to the jurisdiction.

V. CONCLUSION

We reverse and render judgment dismissing appellees’ claims against appellant.

GINA M. BENAVIDES
Justice

Delivered and filed on the
23rd day of June, 2022.

21