julia-p-diaz-individually-representative-of-the-estate-of-juan-diaz ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-04-00112-CV

Julia P. Diaz, Individually and AS

Representative of the Estate of

Juan Diaz, Michael Brashear and

Deborah Stayton,  Individually

and AS Representatives of the

Estate of Patrick Brashear, AND

Bernardo Diaz,  Individually and

AS Representative of the Estate

of JaUn Diaz,

                                                                      Appellants

 v.

Ellis County, Texas,

                                                                      Appellee

From the 40th District Court

Ellis County, Texas

Trial Court No. 66466

MEMORANDUM  Opinion

          The trial court granted Ellis County’s plea to the jurisdiction in a suit claiming that the County was liable for the death of two teenagers when their car fell off a bridge.  We reverse.

Background

          Juan Carlos Diaz was driving on Stacks Road in Ellis County with his friend and passenger, Patrick Wayne Brashear. Apparently in an attempt to avoid hitting an animal, Diaz abruptly turned the car.  The car struck the leading edge of a wooden bridge, flipped over, and landed upside down in the creek below.  Both boys drowned.

          Appellants[1] filed suit individually and on behalf of Diaz and Brashear alleging that a premise defect and/or a special defect on the bridge proximately caused the boys’ death.  Ellis County filed a plea to the jurisdiction, which was granted.

          On appeal, Appellants argue that the trial court erred in (1) granting the County’s plea to the jurisdiction because there is sufficient evidence to waive immunity; (2) granting the County’s plea to the jurisdiction on the basis that the County had no notice; and (3) preventing Appellants from conducting discovery by denying their motion to compel and motion for continuance.  The County brings a cross appeal arguing that the trial court erred in denying the County’s objections to the Appellants’ evidence brought in response to the County’s plea. 

The Appellants’ Evidence

          In its cross appeal, the County argues that the trial court erred in denying the County’s objections to the Appellants’[2] evidence because the affidavits submitted were improper.  Appellants submitted several photographs of the accident scene and the affidavit of Michael Brashear purporting to identify the photographs.  Appellants also submitted several newspaper articles reporting on the investigation of the accident and the affidavit of Robert K. Dowd, one of the Appellant’s attorneys, attesting that the County had notice of the accident.  Both of the affidavits fail to state that the facts recited therein are true.  In both instances the affiant states that he “will testify as to the truth of the matters stated herein if called upon to do so.”

          We apply an abuse-of-discretion standard in reviewing whether a trial court erred in admitting or excluding evidence.  See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).  An affidavit must be based on the affiant’s personal knowledge and must state that the recited facts are true.  Majeski v. Estate v. Majeski, 163 S.W.3d 102, 107 n.1 (Tex. App.—Austin 2005, no pet.) (citing Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)); Youngblood v. U.S. Silica Co., 130 S.W.3d 461, 467-68 (Tex. App.—Texarkana 2004, pet. denied); Adams v. Reynolds Tile and Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App.—Houston [14th Dist.] 2003, no pet.).  “Any qualification of the affiant’s personal knowledge will invalidate the affidavit.”  Majeski, 163 S.W.3d at 107 n.1; see Humphreys, 888 S.W.2d at 470-71.  Similarly, any qualification regarding the truth of the statements in the affidavit, as in this case, will invalidate the affidavit.  Exito Electronics, Co., Ltd. v. Trejo, 99 S.W.3d 360, 372 (Tex. App.—Corpus Christi 2003) rev’d on other grounds 142 S.W.3d 302 (Tex. 2004) (“an affidavit is legally insufficient if it does not positively and unqualifiedly represent the facts as disclosed in the affidavit to be true”); Teixeira v. Hall, 107 S.W.3d 805, 810 (Tex. App.—Texarkana 2003, no pet.) (affidavit must show that the affirmation is “so positive as to allow perjury to lie”).  Therefore, we find that the trial court abused its discretion in considering the Appellants’ evidence.  See Alvarado, 897 S.W.2d at 753.  We sustain the County’s cross issue.

Plea to the Jurisdiction

          Appellants argue in their first issue that the trial court erred in granting the County’s plea to the jurisdiction because their pleadings allege a valid waiver of immunity under the Texas Tort Claims Act (TTCA) and because fact issues remain as to whether the roadway condition at issue is a premise defect or a special defect.

          Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo.  Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

          In general, governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity.  Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998).  Sovereign immunity has two components: immunity from liability and immunity from suit.  Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003).  Immunity from suit is waived to the extent of liability created by the TTCA.  Tex. Civ. Prac. & Rem. Code Ann § 101.025(a) (Vernon 1997); Tex. Dept. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004).  The TTCA waives a governmental unit's immunity to liability based on violations of “the duty to warn of special defects such as excavations or roadway obstructions.”  Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c) (Vernon 1997).

          In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity, and pleading facts showing that the trial court has jurisdiction.  Miranda, 133 S.W.3d at 226.  When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition together with any relevant jurisdictional evidence.  Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).  When a plea to the jurisdiction challenges the existence of jurisdictional facts, implicating the merits of the plaintiff’s cause of action, the trial court reviews the relevant evidence to determine if a fact issue exists.  Miranda, 133 S.W.3d at 227.

          Special defects “unexpectedly and physically impair a vehicle’s ability to travel on the road.”  Harris County v. Est. of Ciccia, 125 S.W.3d 749, 754 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999)).  The condition of the road must be analogous to and of the same degree as “excavations or obstructions on highways, roads, or streets.”  Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon 1997).  It must present “an unusual and unexpected danger to ordinary users of roadways.”  State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992); City of Mission v. Cantu, 89 S.W.3d 795, 809 (Tex. App.—Corpus Christi 2002, no pet.).  The dangerous condition need not have been created or caused by the government unit to constitute a special defect for which the governmental unit has a duty to warn. Est. of Ciccia, 125 S.W.3d at 754 (citing County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).

          Pictures of the wooden bridge were introduced into evidence by the County.  They depict a significant hole in front of the bridge.  Portions of the bridge surrounding the depression appear to have rotted away, and erosion has occurred immediately before the edge of the bridge.  One of the wooden planks appears to have been removed from the edge of the bridge.  Appellants argue that the vehicle struck this depression, causing the tires to hit the front edge of the bridge and flip over.  The County argues that this depression is not a special defect because it is not an unusual or unexpected danger to ordinary users of the road.  They argue that the ordinary use of the road is to travel on the center of the bridge, and not to drive off it.  However, the depression, while not in the middle of road, is still within the parameters of the driving portion of the bridge and can be considered an obstruction.  In one of the County’s photographs, traffic cones surrounding the depression are some feet away from the edge of the bridge.  See e.g. Morse v. State, 905 S.W.2d 470, 475 (Tex. App.—Beaumont 1995, writ denied) (10 inch drop-off along shoulder that prevented car’s left wheels from reentering roadway once they slipped off was special defect); Stambaugh v. City of White Oak, 894 S.W.2d 818, 820 (Tex. App.—Tyler 1994, no writ) (caved-in portion of road 15 feet by 10 feet special defect); State v. Nichols, 609 S.W.2d 571, 573 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.) (3-4 foot caved-in portion of highway special defect); State v. McBride, 601 S.W.2d 552, 558 (Tex. Civ. App.—Waco 1980, writ ref'd n.r.e.) (slick, muddy excavation special defect); Miranda v. State, 591 S.W.2d 568, 569 (Tex. Civ. App.—El Paso 1979, no writ) (flood water two feet deep across highway special defect).

          Because there is conflicting evidence as to the character of the depression, fact issues exist as to whether the depression is a special defect.  Miranda, 133 S.W.3d at 227-28 (“if the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder”).  Accordingly, we sustain Appellants’ first issue.

Conclusion

          Because Appellant’s first issue is dispositive of the case, we need not address their other issues.  We reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.  

                                                                   FELIPE REYNA

                                                                   Justice

Before Chief Justice Gray,

          Justice Vance, and

          Justice Reyna

          (Chief Justice Gray dissents to this opinion issued after rehearing without a separate opinion.  See withdrawn opinion in this appeal issued April 6, 2005).

Reversed and remanded

Opinion delivered and filed September 14, 2005

[CV06]

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    [1]       Appellants include Julia P. Diaz, individually and on behalf of Diaz, her son, and Michael Brashear and Deborah Stayton, individually and on behalf of Brashear, their son.  Afterwards, Bernardo Diaz, Diaz’s father, filed a plea in intervention.

    [2]       Bernardo Diaz, the intervenor, did not submit evidence in response to the County’s plea.