Benjamin David Pena v. City of Garland ( 2021 )

Affirm and Remanded and Opinion Filed December 30, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00611-CV
BENJAMIN DAVID PENA, Appellant
V.
CITY OF GARLAND, Appellee
On Appeal from the County Court at Law No. 1
Dallas County, Texas
Trial Court Cause No. CC-19-02090-A
MEMORANDUM OPINION
Before Justices Reichek, Nowell, and Carlyle
Opinion by Justice Nowell
Benjamin David Pena appeals the trial court’s order granting the City of
Garland’s plea to the jurisdiction. Pena argues the trial court erred by granting the
City’s plea to the jurisdiction because he pleaded valid causes of action for which
the City is not immune from suit. We affirm the trial court’s June 24, 2021 order
granting the City’s plea to the jurisdiction, and we remand this case to the trial court
to afford Pena an opportunity to amend his pleading.
A. The Record
We begin with the state of the record. The City filed its plea to the jurisdiction
and Pena responded. The City then filed a brief in support of its plea with deposition
testimony attached. The trial court held a hearing on the plea, and having considered
“the plea and all responses and the arguments of counsel,” granted the plea. On
appeal, Pena asserts we cannot consider the deposition testimony attached to the
City’s brief because the City failed to introduce the deposition transcript into
evidence at the hearing.1 We disagree.
An appellant has the burden to bring forth a sufficient record to show error by
the trial court. See Taylor v. Wells Fargo Bank, No. 05-16-00115-CV, 2017 WL
1282896, at *2 (Tex. App.—Dallas Apr. 6, 2017, no pet.) (mem. op.). Pena only
requested a partial clerk’s record, and the clerk’s record includes all of the requested
documents. Additionally, although the trial court’s order demonstrates the court held
a hearing on the City’s plea (Pena’s brief also states a hearing was held), Pena did
not file a reporter’s record. The court reporter filed a letter with this Court stating
Pena did not request a reporter’s record and did not make financial arrangements for
one. We presume the missing reporter’s record supports the trial court’s decision in
this case. See id.; see also Lohmann v. Sanchez, No. 01-19-00984-CV, 2021 WL
3043415, at *6 (Tex. App.—Houston [1st Dist.] July 20, 2021, pet. denied) (mem.
1
We need not consider whether the City was required to introduce the deposition transcript into
evidence at the hearing in order for the trial court to consider it.
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op.). Accordingly, we will consider the deposition excerpts attached to the City’s
brief.
B. Factual Background2
Pena was employed by American Management Staffing, LLC (AMS), a
staffing agency. AMS assigned Pena to work at the Charles Hinton Landfill, which
was owned, operated, and controlled by the City.
While Pena was working, a truck driver, Anibar Jaramillo Rodriguez, brought
a load of bricks to dump at the landfill. However, Rodriguez was not properly
licensed to drive the dump truck, the dump truck was overweight, and the truck’s
back-up lights and audible backup warning device were not operable. A City
employee signaled to Rodriguez, instructing Rodriguez to back up his truck. When
Rodriguez backed up to dump the bricks, his truck hit Pena who was crushed under
the left rear wheels. Pena sustained significant injuries.
Rodriguez testified in his deposition that Pena was the first person he
encountered at the dump. Subsequently, Rodriguez honked at a second person who
worked at the landfill to ask where the employee wanted Rodriguez to go. The
employee “just guided - - he told me to go - - there was a big - - big brick pile, which
I already knew I had to go there, but I just wanted to make sure. He just waved me
2
Except where the deposition testimony is discussed below, the facts presented are taken from Pena’s
third amended petition.
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that way.” Rodriguez did not speak to the employee; the employee only waived his
hand. Rodriguez used his mirrors to back up. He did not see Pena until he hit Pena.
Pena sued the City for “injury by premises defect,” negligence, “injury by
motor vehicle,” and respondeat superior.
C. Plea to the Jurisdiction
Cities, as political subdivisions of the State, are protected from suit by
governmental immunity unless that immunity has been waived by the constitution
or by state law. See City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014).
Governmental immunity implicates a court’s subject matter jurisdiction and may be
properly asserted by a plea to the jurisdiction. Harris County v. Annab, 547 S.W.3d
609, 612 (Tex. 2018). The pleader must allege facts that affirmatively demonstrate
the court’s jurisdiction to hear the cause. Id. Where a governmental entity challenges
jurisdiction on the basis of immunity, “the plaintiff must affirmatively demonstrate
the court’s jurisdiction by alleging a valid waiver of immunity.” Ryder Integrated
Logistics, Inc. v. Fayette Cnty., 453 S.W.3d 922, 927 (Tex. 2015).
When a plea to the jurisdiction challenges the pleadings, we determine if the
pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to
hear the cause. Id. However, if a plea to the jurisdiction challenges the existence of
jurisdictional facts, we consider relevant evidence submitted by the parties when
necessary to resolve the jurisdictional issues raised, as the trial court is required to
do. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). If
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the evidence creates a fact question regarding the jurisdictional issue, then the trial
court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by
the fact finder. Id. at 227-28. However, if the relevant evidence is undisputed or fails
to raise a fact question on the jurisdictional issue, the trial court rules on the plea to
the jurisdiction as a matter of law. This standard generally mirrors that of a summary
judgment under Texas Rule of Civil Procedure 166a(c). Id. at 228.
Subject matter jurisdiction is a question of law that we review de novo. Annab,
547 S.W. 3d at 612. We construe the pleadings in favor of the plaintiffs and look to
the pleaders’ intent. Id. at 612-13. However, the Texas Supreme Court has repeatedly
stated that “any purported statutory waiver of sovereign immunity should be strictly
construed in favor of retention of immunity.” PHI, Inc. v. Tex. Juvenile Justice
Dep’t, 593 S.W.3d 296, 303 (Tex. 2019) (quoting Prairie View A & M Univ. v.
Chatha, 381 S.W.3d 500, 513 (Tex. 2012)).
The Texas Tort Claims Act (TTCA) waives immunity for:
(1) property damage, personal injury, and death proximately caused
by the wrongful act or omission or the negligence of an employee acting
within his scope of employment if:
(A) the property damage, personal injury, or death arises from
the operation or use of a motor-driven vehicle or motor-driven
equipment; and
(B) the employee would be personally liable to the claimant
according to Texas law; and
(2) personal injury and death 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.
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TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. The TTCA further provides that,
with exception, if a claim arises from a premises defect, “the governmental unit owes
to the claimant only the duty that a private person owes to a licensee on private
property.” Id. § 101.022(a).
Pena argues the TTCA waived the City’s immunity in this case because: (1)
he alleges a premises defect claim; (2) he alleges a personal injury proximately
caused by the negligence of a City employee and his injury arose from a condition
or use of tangible personal property; and (3) he asserts a claim for injury by a motor
vehicle.
1. Premises Defect Claim
Pena casts his first cause of action as a premises defect claim.3 Pena alleges
he was injured because the landfill is unreasonably dangerous because of the high
volume of traffic, the City’s “lack of control of the direction of the traffic,” and the
City’s failure to ensure vehicles entering and leaving the premises have adequate
safety devices to warn persons such as himself.
When a claim arises from a premises defect, “the governmental unit owes to
the claimant only the duty the private person owes to a licensee on private property.
. . .” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). That duty consists of not
3
The City asserts Pena’s first cause of action is merely an artfully pleaded negligence claim. We need
not reach the City’s argument because, even if we assume Pena’s first cause of action properly presents a
premises defect claim, we conclude Pena failed to plead a waiver of immunity under the TTCA.
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injuring the licensee through willful, wanton, or grossly negligent conduct,4 and to
either warn the licensee or make reasonably safe an unreasonably dangerous
condition of which the owner has actual knowledge and the licensee does not. See
Dallas County Hosp. Dist. v. Bravo, 05-20-00640-CV, 2021 WL 822916, at *3 (Tex.
App.—Dallas Mar. 4, 2021, no pet.) (mem. op.) (citing City of Irving v. Seppy, 301
S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.)). The licensee must show that
the landowner actually knew of the dangerous condition at the time of the accident,
and not merely that a dangerous condition could develop over time. Sampson v.
Univ. of Tex. at Austin, 500 S.W.3d 380, 392 (Tex. 2016). “Hypothetical knowledge
will not suffice.” Id. “Additionally, that the owner could have done more to warn the
licensee is not direct evidence to show that the owner had actual knowledge of the
dangerous condition.” Id. “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.” Id. (citation omitted). Actual
knowledge of a dangerous condition can sometimes be proven through
circumstantial evidence that either directly or by reasonable inference supports the
conclusion. Bravo, 2021 WL 822916, at *3 (citing Seppy, 301 S.W.3d at 444); see
also City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (per curiam).
4
Pena does not allege the City injured him through willful, wanton, or grossly negligent conduct.
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No direct evidence was presented showing whether the City had actual
knowledge of the allegedly dangerous conditions before the accident. Instead, Pena’s
pleading repeatedly states the City had actual knowledge. He suggests, although
does not directly allege, the City’s knowledge is demonstrated by the City’s decision
to delegate an employee to direct traffic and to require employees to inspect vehicles
entering the premises to determine whether those vehicles were equipped with
proper warning devices. Pena’s bare allegations that the City had actual knowledge
of the allegedly dangerous condition are insufficient to show actual knowledge. See
State v. Lueck, 290 S.W.3d 876, 884-885 (Tex. 2009) (recognizing that a plaintiff’s
pleadings must do more than make bare allegations to survive a plea to the
jurisdiction); see also City of Dallas v. Ruffin, No. 05-20-00646-CV, 2021 WL
3196963, at *7 (Tex. App.—Dallas July 28, 2021, no pet.) (citing Stephen F. Austin
State Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007); PermiaCare v. L.R.H., 600
S.W.3d 431, 444 (Tex. App.—El Paso 2020, no pet.) (“conclusory allegations in a
pleading are insufficient to meet a plaintiff’s burden of establishing jurisdiction;
instead, a plaintiff must allege specific facts that, if true, would affirmatively
demonstrate the court’s jurisdiction to hear the case.”)). Likewise, the City’s
decision to delegate employees to direct traffic at the dump and inspect vehicles
entering the premises does not directly or by reasonable inference support the
conclusion that the City had actual knowledge the landfill was dangerous at the time
of the accident. Construing Pena’s pleading liberally in his favor, we conclude his
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premises defect cause of action does not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity. See
Ryder Integrated Logistics, 453 S.W.3d at 927.
2. Negligence
In his second cause of action, Pena alleged the City acted negligently by:
a. Failing to maintain a safe environment;
b. Maintaining an unsafe environment that was unsafe to human life;
c. Failing to correct a known hazardous condition that had the potential
to seriously injure guests;
d. Allowing a known dangerous condition to exist and threaten the
safety, rights, and welfare of all persons;
e. Failing to provide adequate safeguards to protect all persons;
f. Failing to promulgate, implement, enforce, and/or ensure
compliance with adequate safety procedures, policies, and practices;
g. Failing to adequately warn [Pena] of a dangerous condition on the
premises;
h. Failing to adopt and enforce warnings against hazards for all persons
on the premises;
i. Failing to take all reasonable precautions for the safety of all persons
on the premises;
j. Failing to correct a known hazardous condition that had the potential
to seriously injure person and/or employees and/or visitors;
k. Allowing a known dangerous condition to exist and threaten the
safety, rights, and welfare of all persons staying in the hotel [sic] in
question;
l. Allowing unsafe vehicles to enter the premises; and
m. Negligently warning of unsafe conditions.
Pena argues these allegations establish waiver of governmental immunity because
his injury was proximately caused by the City’s employee’s “use of and/or condition
of tangible, personal property.” Pena’s negligence cause of action does not allege
his injury was caused by a condition or use of real property.
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Immunity is waived for claims based on a “condition” of tangible personal
property if the condition proximately causes personal injury or death. Rusk State
Hosp. v. Black, 392 S.W.3d 88, 97 (Tex. 2012) (citing TEX. CIV. PRAC. & REM. CODE
ANN. § 101.021(2); Dallas Cnty. v. Posey, 290 S.W.3d 869, 872 (Tex.2009); Dallas
Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343
(Tex.1998)). A condition does not proximately cause an injury or death if it does no
more than furnish the means to make injury or death possible; that is, immunity is
waived only if the condition (1) poses a hazard in the intended and ordinary use of
the property and (2) actually causes an injury or death. Id. at 97-98 (citing Posey,
290 S.W.3d at 871, 873; Bossley, 968 S.W.2d at 343). “To find proximate cause,
there must be a nexus between the condition of the property and the injury. This
nexus requires more than mere involvement of property; rather, the condition must
actually have caused the injury.” Posey, 290 S.W.3d at 872 (internal citation
omitted)
Pena’s negligence claim fails to identify any tangible personal property. It also
fails to allege a causal nexus between his injury and a condition or use of tangible
personal property. Construing Pena’s pleading liberally in his favor, we conclude his
negligence cause of action does not contain sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction by alleging a valid waiver of immunity. See
Ryder Integrated Logistics, 453 S.W.3d at 927.
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3. Operation or Use of a Motor-Driven Vehicle
In his third cause of action, Pena alleges the City improperly operated or used
a motor vehicle because the City’s employee was controlling ingress to and egress
from the dump site, and that employee directed Rodriguez to back up his dump truck
to the place where Pena was working. Thus, Pena argues, the City employee
“controlled Rodriguez’s vehicle to back into and crush” him.
The TTCA waives immunity for personal injury caused by the wrongful act
or omission or the negligence of an employee acting within the scope of employment
if the personal injury “arises from the operation or use of a motor-driven vehicle”
and the employee would be personally liable to the claimant. TEX. CIV. PRAC. &
REM. CODE ANN. § 101.021(1). We strictly construe section 101.021’s vehicle-use
requirement to reflect the Legislature has a preference for a limited immunity
waiver. See PHI, Inc., 593 S.W.3d at 303.
Considering section 101.021’s “use” or “operation” language, the supreme
court has stated these are “common, everyday words,” and courts should strive to
give them “a simple construction, rather than converting them into terms of art
intelligible only to experts in the case law applying the Tort Claims Act.” Id. The
supreme court has defined “use” as “to put or bring into action or service; to employ
for or apply to a given purpose” and defined “operation” as referring to “a doing or
performing of a practical work.” Id. These definitions are not particularly
enlightening here.
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A governmental employee does not have to be driving a motor-driven vehicle
to meet the operation or use requirement. See, e.g., id. at 304; Ryder Integrated
Logistics, 453 S.W.3d at 926-28. However, a governmental employee directing
traffic generally is not sufficient to meet the use or operation requirement. See
generally City of Sugar Land v. Gaytan, No. 01-18-01083-CV, 2020 WL 2026374(Tex. App.—Houston [1st Dist.] Apr. 28, 2020, no pet.) (mem. op.).
We find the analysis in City of Sugar Land v. Gaytan persuasive. In Gaytan,
the plaintiff was riding his bike while participating in a triathlon. Two law
enforcement officers employed by the City were directing traffic related to the
triathlon. Before Gaytan reached an intersection on the triathlon course, at least one
of the officers signaled to a private driver to proceed through the intersection and
make a left-hand turn. However, after entering the intersection, the driver paused
momentarily in the lane in which Gaytan was biking; Gaytan hit the driver’s car and
was injured. Gaytan, 2020 WL 2026374, at *1.
The First District Court of Appeals considered whether Gaytan alleged he
sustained injuries arising from the operation or use of a motor-driven vehicle by a
City employee, the law enforcement officers, sufficient to waive the City’s
immunity. See id. at *3-4. The Gaytan court examined cases presenting similar
issues from other courts. Id. at *5 (discussing Townsend v. City of Alvin, No. 14-05-
00915-CV, 2006 WL 2345922, at *1–2 (Tex. App.—Houston [14th Dist.] Aug. 15,
2006, no pet.) (mem. op.); Heyer v. North East Independent School District, 730
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S.W.2d 130, 131–32 (Tex. App.—San Antonio 1987, writ ref’d n.r.e.); Jackson v.
City of Corpus Christi, 484 S.W.2d 806, 808–10 (Tex. App.—Corpus Christi–
Edinburg 1972, writ ref’d n.r.e.)). Each of those courts concluded that government
employees directing traffic were not using or operating the motor-driven vehicles
driven by private citizens as those terms are used in the TTCA. See id. (discussing
Townsend, 2006 WL 2345922, at *1–2; Heyer, 730 S.W.2d at 131–32; Jackson, 484
S.W.2d at 808–10). The Gaytan court reached the same conclusion and stated
Gaytan failed to allege facts demonstrating the City’s law enforcement officers’
conduct in directing or controlling traffic during the triathlon constituted operation
or use of a motor-driven vehicle as required for waiver of immunity under the TTCA.
Id. at *5-6.
Pena does not allege that any City employee drove the truck that hit him or
any governmental vehicle was involved in the ultimate collision in which was
injured. See id. at *4. Rather, Pena alleges he was hit by a truck driven by Rodriguez
who maintained complete control over his own vehicle. The evidence shows a City
employee waived his hand toward Rodriguez, and Rodriguez interpreted that act as
a signal to back up his truck to an area where he already knew he needed to go.
Following the precedent of Gaytan, we conclude Pena has not alleged facts
demonstrating the City employee’s conduct in waiving his hand to Rodriguez
constitutes the “operation” or “use” of a motor-driven vehicle as required for waiver
of immunity under the TTCA. See id. at *6 (“Gaytan has not alleged facts that
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demonstrate that the City’s law enforcement officers’ direction or control of traffic
constituted “operation” or “use” of a motor-driven vehicle.). Construing Pena’s
pleading liberally in his favor, we conclude his third cause of action does not contain
sufficient facts to affirmatively demonstrate the trial court’s jurisdiction by alleging
a valid waiver of immunity. See Ryder Integrated Logistics, 453 S.W.3d at 927.
D. Opportunity to Replead
When the party who raised the jurisdictional defense shows that the pleadings
or record conclusively negate the existence of jurisdiction, or that the plaintiff had a
“full and fair opportunity in the trial court to develop the record and amend the
pleadings,” or that even with a remand “the plaintiff would be unable to show the
existence of jurisdiction,” then the case should be dismissed without a remand.
Annab, 547 S.W.3d at 616. The pleadings in this case do not affirmatively negate
the existence of jurisdiction by revealing an incurable defect. See Texas A & M Univ.
Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex.2007); Miranda, 133 S.W.3d at 227.
Further, the record does not show that Pena had a full and fair opportunity in the trial
court to develop the record and amend his pleadings, and the City has not
demonstrated that, even with a remand, Pena would be unable to show the existence
of jurisdiction. Accordingly, we conclude Pena should be offered an opportunity to
amend his pleadings.
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E. Conclusion
Pena’s allegations in his third amended petition failed to trigger the TTCA’s
waiver of the City’s immunity. We affirm the trial court’s June 24, 2021 order
granting the City’s plea to the jurisdiction. However, although we overrule Pena’s
sole issue, we must remand this case to the trial court to afford Pena an opportunity
to amend his pleading.
/Erin A. Nowell//
210611f.p05 ERIN A. NOWELL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
BENJAMIN DAVID PENA, On Appeal from the County Court at
Appellant Law No. 1, Dallas County, Texas
Trial Court Cause No. CC-19-02090-
No. 05-21-00611-CV V. A.
Opinion delivered by Justice Nowell.
CITY OF GARLAND, Appellee Justices Reichek and Carlyle
participating.
In accordance with this Court’s opinion of this date, we AFFIRM the trial
court’s June 24, 2021 order granting the City of Garland’s plea to the jurisdiction.
This cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 30th day of December, 2021.
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