Opinion
No. 05-18-00562-CV
02-28-2019
CITY OF RICHARDSON, TEXAS, Appellant v. DEBORAH SLAVER, Appellee
On Appeal from the 68th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-17-10490
MEMORANDUM OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Reichek
In this interlocutory appeal, the City of Richardson, Texas (the "City") challenges the trial court's denial of its plea to the jurisdiction. In a single issue, the City contends the trial court erred in refusing to dismiss Deborah Slaver's claims against it because the claims were based on an alleged premises defect about which the City had no actual knowledge. Slaver responds that her claims are based on an item of tangible personal property lacking an integral safety component and are not, therefore, premises liability claims. After reviewing the record, we conclude the pleadings and jurisdictional evidence presented show the trial court lacks subject matter jurisdiction over Slaver's claims against the City. Accordingly, we reverse the trial court's order and dismiss the claims brought against the City in this suit.
The title of the City's motion was "Defendant's Dispositive Motion Tex. R. Civ. P. Rule 69 Pleading." In the text of the motion, the City made clear it was intended as a dilatory plea seeking dismissal of the case for lack of subject matter jurisdiction. We therefore refer to the City's motion as a plea to the jurisdiction.
Factual Background
On August 22, 2017, Slaver filed suit against the City alleging that, two years earlier, "she stepped onto a water meter cover located in the concrete parking area behind Richardson Mercantile, and the cover gave way and flipped open under her," causing her to fall and sustain injuries. Slaver further alleged that the City, "acting through one or more of its employees, agents, and/or servants, removed the cover to read the meter in the hole beneath the cover or for some other reason, and then failed to secure the cover," creating an unreasonable risk of harm. Based on these alleged facts, Slaver asserted claims for negligence and premises liability. The City responded with a plea to the jurisdiction stating, among other things, that the incident made the basis of the suit did not occur on premises owned by the City. Slaver then amended her petition to add several other defendants, including Richardson Mercantile, LLC.
On December 11, 2017, the City filed a second plea to the jurisdiction asserting there was no waiver of the City's immunity under the Texas Tort Claims Act because the City did not have actual knowledge of any condition that presented an unreasonable risk of harm. The City submitted evidence in support of the plea including an incident report and two affidavits by City employees. The incident report stated that, immediately following Slaver's accident, a maintenance worker for Richardson Mercantile "reset the cover and stepped on it repeatedly and it seemed to be stable."
The affidavits submitted by the City contained testimony by Michael Hankamer, the City's Field Services Supervisor, and Greg McCutchen II, a former water meter reader for the City. Hankamer testified the water meter at issue was replaced in February 2015, nine months before the accident. After being replaced, the meter was read from the outside of the box without removing the cover. According to Hankamer, reading the meter without opening the cover does not make the cover unstable. Hankamer further testified there was no record of anything unusual found with respect to the meter before the accident, and the only way for the City to know of a problem is if one is reported. Hankamer stated 35,400 meters were read every month for the City without incident or problems.
McCutchen testified he read the meter in question on August 24, approximately one week before Slaver's accident. McCutchen used a meter reading wand to read the meter from outside the box. According to McCutchen, it is City policy that if the meter cover is out of place or damaged, it must be reported. McCutchen stated he was not aware of any issues with the meter when he read it before Slaver's accident and, therefore, he did not report any problems.
Slaver responded to the City's plea arguing there were genuine issues of material fact regarding the City's liability for negligence based on its failure to "lock and secure the water meter cover in question." In support of this argument, Slaver submitted documents showing that, after her accident, the City installed a lock on the water meter's cover. The City filed a reply arguing the absence of a locking device on the meter before Slaver's accident (1) was not pleaded as part of her claims and (2) could not provide a basis for liability or waiver of immunity.
The trial court conducted a hearing on the City's plea on February 2, 2018. Following the hearing, both sides submitted multiple letter briefs addressing the relevant case law. The court signed an order denying the City's plea on April 26. This appeal followed.
Analysis
I. Premises Defects and Sovereign Immunity
In Texas, sovereign immunity deprives a trial court of subject matter jurisdiction over claims against the State and certain governmental units unless the State affirmatively waives immunity and consents to suit. Tex. Dep't. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Texas Tort Claims Act provides a limited waiver of immunity for claims involving premises defects and injuries arising out of the condition or use of property. Id. at 224-25. When a claim arises out of the condition or use of real property, it is a premises defect claim. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385 (Tex. 2016). Therefore, the TTCA waives immunity for two distinct types of tort causes of action: negligence claims arising out of the condition or use of tangible personal property and claims arising from a premises defect. Id. A claim cannot be both a premises defect claim and also a claim relating to the condition or use of tangible personal property. Id.; see also Rogge v. City of Richmond, 506 S.W.3d 570, 575 (Tex. App.—Houston [1st Dist.] 2016, no pet.).
The TTCA also waives immunity for claims involving the use of publicly owned automobiles, which is not at issue in this case.
If a claim is based on a premises defect, the claimant faces a heightened standard to establish liability and a waiver of immunity. City of Houston v. Harris, 192 S.W.3d 167, 172 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Under this heightened standard, the claimant must show the governmental unit being sued had actual knowledge of the alleged defect made the basis of the claim. Sampson, 500 S.W.3d at 385-86. A plaintiff cannot use creative pleading to avoid the heightened standard by attempting to cast a premises defect claim as one for a condition or use of tangible personal property. Id. Whether a condition is a premises defect is a question of law. Harris, 192 S.W.3d at 172.
In a single issue, the City contends the trial court erred in denying its plea to the jurisdiction because the alleged condition made the basis of Slaver's claims was clearly a premises defect of which the City had no actual knowledge. Because the City's plea was submitted with supporting evidence and implicates the merits of the case, we review the trial court's ruling using a standard mirroring that of a summary judgment. See Sampson, 500 S.W.3d at 384. We take as true all evidence favorable to Slaver and indulge every reasonable inference and resolve any doubts in her favor. Harris, 192 S.W.3d at 172. Where the relevant evidence is undisputed or fails to raise a fact question, the jurisdictional issue may be ruled on as a matter of law. Id.
In this case, Slaver alleged she fell as the result of stepping on a water meter cover that flipped open under her. It is undisputed the water meter was in the ground under the level of the parking lot. When allegedly defective property is affixed to land or other property, the case involves a premises defect. Harris, 192 S.W.3d at 173. Slaver argues that we must consider the water meter cover separately from the meter itself. However, a fixture includes all its integral parts regardless of whether the part at issue can be removed. Id. at 174. Removability does not convert a premises defect claim into one for negligence. Constantino v. Dallas City Hosp. Dist., No. 05-15-01273-CV, 2016 WL 6161748, at *4 (Tex. App.—Dallas Oct. 24, 2016, no pet.).
Even if the cover is treated as a separate piece of property from the meter, this does not necessarily take it outside the scope of a premises defect. An item of personal property that creates a dangerous condition on real property is a premises defect. Id. at *5. "The distinction lies in whether it is the actual use or condition of the tangible personal property itself that allegedly caused the injury, or whether it is a condition of real property - created by an item of tangible personal property - that allegedly caused the injury." Sampson, 500 S.W.3d at 388. Texas courts have consistently treated slip/trip-and-fall cases involving personal property as presenting claims for premises defects. Id. at 386.
Slaver contends her claims involve the use or condition of tangible personal property, rather than a premises defect, because the water meter cover lacked an "integral safety component" - i.e., the locking device installed on the cover after she fell. In making this argument, Slaver relies on a line of cases holding that an allegation a governmental unit provided equipment lacking an integral safety component represents the "outer bounds" of the use of tangible personal property for purposes of waiver of immunity. See Tex. A&M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex. 2005). These cases do not apply here, however, because the water meter cover was not provided to Slaver. There is no use of property when the City merely allows access by the general public. Rogge, 506 S.W.3d at 576. As this Court has pointed out, when the alleged absence of the safety component merely creates a condition on the premises, as here, the claim is for a premises defect and not use of personal property. See Constantino, 2016 WL 6161748, at *6.
Nor does the absence of a locking device in this case give rise to a claim based on the condition of the water meter cover. Governmental immunity is waived for claims arising out of a condition of personal property only when the condition makes the property inherently dangerous and poses a hazard when the property is put to its intended and ordinary use. Rogge, 506 S.W.3d at 577. In this case, the uncontradicted evidence showed the water meter cover was stable when properly placed and, therefore, not inherently dangerous or hazardous for its intended use. The evidence further showed the City did not remove the cover to read the meter and 35,400 meters were monitored every month without incident or problems. The fact that the City knew of a safer, feasible alternative design for the cover is not evidence that the original design was dangerous or created an unreasonable risk of harm. See City of Dallas v. Thompson, 210 S.W.3d 601, 604 (Tex. 2006). Furthermore, decisions regarding the installation of safety features are discretionary decisions for which a governmental entity may not be sued. Perez v. City of Dallas, 180 S.W.3d 906, 911 (Tex. App.—Dallas 2005, no pet.).
Other than evidence showing a locking device was added to the meter cover after her accident, Slaver submitted no evidence regarding the condition of the water meter cover at the time she fell. Indeed, she alleges only that the cover was not properly in place. Accordingly, we conclude her claims are based on a premises defect. As stated above, for there to be a waiver of the City's immunity from a premises defect claim, there must be sufficient evidence to raise a fact issue regarding the City's actual knowledge of the defect.
II. Actual Knowledge
In determining actual knowledge of a premises defect, courts generally consider whether the premises owner received reports of prior injuries or reports of the potential danger presented by the condition. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). In this case, the City submitted evidence to show that, one week before Slaver's accident, the water meter cover was properly in place and there were no reports to the City of any safety issues concerning the meter. The evidence further showed the cover was stable when properly in place and was not moved by the City employee who read the meter. In contrast, Slaver did not submit any evidence to show the City had actual knowledge that the meter cover was unstable or had been moved. Accordingly, Slaver failed to raise a fact issue regarding the City's lack of knowledge of the alleged premises defect that caused her accident. See City of Austin v. Rangel, 184 S.W.3d 377, 384-85 (Tex. App.—Austin 2006, no pet.); Harris, 192 S.W.3d at 175.
The parties conducted discovery on the merits of the case and Slaver was permitted to introduce whatever evidence she believed was relevant to the City's plea. Slaver does not contend she needs additional time to conduct more discovery. Nor does she suggest how she could amend her pleadings to bring her claims within the TTCA's waiver of the City's immunity. Accordingly, we conclude the City demonstrated its immunity was not waived as a matter of law and the proper disposition is to dismiss Slaver's claims against it. Compare Rogge, 506 S.W.3d at 578-79, with City of Bedford v. Smith, No. 02-16-00436-CV, 2017 WL 4542858 at, *6 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.).
Conclusion
We resolve the City's sole issue in its favor. We reverse the trial court's order denying the City's plea and dismiss Slaver's claims against the City for lack of jurisdiction.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE 180562F.P05
JUDGMENT
On Appeal from the 68th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-17-10490.
Opinion delivered by Justice Reichek. Justices Whitehill and Molberg participating.
In accordance with this Court's opinion of this date, the trial court's order denying appellant CITY OF RICHARDSON, TEXAS's plea to the jurisdiction is REVERSED and appellee DEBORAH SLAVER's claims against appellant CITY OF RICHARDSON, TEXAS are DISMISSED for want of jurisdiction.
It is ORDERED that appellant CITY OF RICHARDSON, TEXAS recover its costs of this appeal from appellee DEBORAH SLAVER. Judgment entered February 28, 2019