Opinion
No. 05-11-01220-CV
07-13-2012
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant v. JOHNNY FELIPE MUNOZ, Appellee
AFFIRM; Opinion Filed July 13, 2012.
On Appeal from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. cc-1000309-e
MEMORANDUM OPINION
Before Justices Bridges, Francis, and Lang
Opinion By Justice Francis
The University of Texas Southwestern Medical Center appeals the trial court's order denying its second supplemental plea to the jurisdiction and motion to dismiss. In three issues, UT Southwestern claims Johnny Felipe Munoz failed to plead and prove a waiver of sovereign immunity under the tort claims act for either a premises defect or the negligent use of tangible personal property. We affirm the trial court's order.
UT Southwestern bought the Paul M. Bass Administration and Clinical Center in 2008. In the spring of 2009, UT Southwestern contracted with Siemens Industries, Inc. to retrofit the existing air handling control system on nine air handling units (AHU) in one of the buildings. Siemens hired Universal Controls to install conduit, run control wires, and install actuators, dampers, and temperature sensors for the retrofit. Most, if not all, of the covers on the units had been removed, exposing the pulley system on each unit. Munoz, who was employed by Universal Controls, was running conduit and control wires with his fellow employees when his leg got caught on some loose wire. The wire coiled around his leg and became entangled in the pulley system of AHU 26, pulling Munoz's leg backward and up in the air. Munoz's leg and back were injured.
Munoz sued UT Southwestern, alleging a premises defect that created a dangerous work environment. Munoz asserted UT Southwestern had waived immunity under section 101.021 of the Texas Tort Claims Act. UT Southwestern filed its answer and plea to the jurisdiction alleging it had sovereign immunity because Munoz knew of the dangerous condition. Munoz later amended his petition to claim, in the alternative, that his injuries were caused by a condition or use of tangible personal or real property. The trial court denied UT Southwestern's plea to the jurisdiction.
In its first issue, UT Southwestern claims Munoz failed to plead and prove a waiver of sovereign immunity under the tort claims act for a premises defect. Specifically, UT Southwestern argues Munoz was a licensee, and the evidence showed he had actual knowledge of the allegedly dangerous condition of the air handling unit at the time of his accident.
At the hearing on the plea to the jurisdiction, Munoz conceded he knew about the danger and, therefore, sovereign immunity was not waived for his premises defect claim. Likewise, in his appellate brief, he concedes his "premises liability claim is precluded by the facts of this case." In light of these concessions, we sustain UT Southwestern's first issue.
In its second issue, UT Southwestern claims Munoz improperly recast his premises defect argument as a claim for the negligent condition or use of tangible personal or real property. In its third issue, UT Southwestern claims, even assuming Munoz could properly raise such a claim, he failed to plead and prove a waiver of sovereign immunity under the tort claims act.
Sovereign immunity from suit defeats a trial court's subject matter jurisdiction and is properly asserted in a plea to the jurisdiction. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). A plea to the jurisdiction can be based on the pleadings or on evidence. Id. at 226, 228. 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 case. Id. We look to the allegations in the pleadings, construe them in the plaintiff's favor, and look to the pleader's intent. See Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). The plaintiff bears the burden to allege facts that affirmatively demonstrate the trial court's jurisdiction to hear a case. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties to determine if a fact issue exists. Miranda, 133 S.W.3d at 227.
A governmental unit in the state is liable for "personal injury and death 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." Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011). "Use" means "put into action or service; to employ or apply to a given purpose." Kassan v. Hatley, 887 S.W.2d 4, 14 (Tex. 1995). It is not sufficient if a use merely furnishes the condition that makes the injury possible. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001). Using the property must have actually caused the injury. Id.
In his second amended petition, Munoz first alleged he was an invitee or alternatively, a licensee, and UT Southwestern waived its sovereign immunity for premises defects. He alternatively argued he sustained a personal injury "caused by the wrongful act or omission or the negligence or willful/wanton/gross negligence of an employee" of UT Southwestern. Munoz pleaded his injuries were caused by UT Southwestern requiring the Universal employees work on AHU 26 while it was running without the safety cover. Munoz specifically alleged the
tangible property involved air handling unit (AHU) 26 at Bass Tower II, owned, managed, and operated by UTSW and its employees. The defective and inadequate property was operated by UTSW employees without a safety cover over a 3 foot motor and pulley system. UTSW required Plaintiff to work around a fully running AHU 26 without the safety cover being on. This made the tangible property and the improper use of AHU 26 without the safety cover on. [sic] These conditions and uses were a direct factor and cause of Plaintiff's injuries. . . Defendants' acts and omission were gross negligence when viewed objectively at the time of the occurrence and involved an extreme degree of risk, considering the probability and magnitude of the potential harm to their contractors and subcontractors employees, such as Plaintiff. Defendants had actual awareness of the risks involved and the benefits of the safety guard, but nevertheless proceeded with a conscious indifference to the rights, safety, and welfare of persons situated as the Plaintiff.
In his deposition, Munoz said all of the AHU had the safety covers removed while he was running conduit for the wires. He and his coworkers asked the UT Southwestern maintenance men why the safety covers were off, but no one had an explanation. AHU 26 was particularly dangerous because "there was hardly any room between where [he] had to run pipe and the pulley spinning." When Munoz's supervisor, Wesley Henry, turned the unit off, UT Southwestern maintenance men came in and said they had to turn it back on and work with the unit on. Although Munoz and his coworkers told them it was "real dangerous working around there," the UT Southwestern maintenance men said the unit had to be running for the employees in the building and "to be careful."
At the time of the incident, wires were hanging out of one of the boxes on the side of AHU 26. Although Munoz tried to step around them, he briefly touched the wire and it began coiling around his leg and got caught in the fast-moving pulley system of AHU 26. He immediately began yelling, and the unit was turned off. Nevertheless, his leg and back were injured. Henry said he had never seen an AHU at any other job without a pulley cover. He likewise said the UT Southwestern employees did not allow them to shut down the units while working on the units although they repeatedly tried to do so. Each time Henry shut down a unit, UT Southwestern maintenance men came to the room and turned the unit back on. Henry said they were told the units "could not be down for any length of time during the day." He noted they could not work on the units at night because they were not authorized to work overtime.
Steve Smith, the superintendent of utilities for UT Southwestern, said he was aware several AHU did not have covers on them. He did not tell anyone to put the covers back on the units because it was not his job as "controls superintendent." He conceded a lack of cover would be a safety issue. AHU 26 provided air to two tenants, a bank and a cancer call center. If the unit was off, those tenants would not get air-conditioning. He did not recall anyone asking him about turning off the AHU and, in fact, "expected air handling units to be on if tenants were in the spaces that the air handling unit provided air-conditioning to."
Scott Falgoust, project manager for Siemens, said Steve Smith of UT Southwestern told Gene Williams, the owner of Universal Controls, some of the units did not have covers and they could "shut the units down." He did not recall how long Smith said the units could be down or if he referred to units cooling occupied or unoccupied areas of the building. Falgoust said he went in the rooms where the AHU were "maybe once a month." He did not recall if the AHU had covers or not.
Although civil procedure rule 48 allows a party to make alternative claims, regardless of consistency, the tort claims scheme of a limited waiver of immunity from suit does not allow a plaintiff to circumvent the heightened standards of a premises defect claim by re-casting the same acts as a claim relating to the negligent condition of tangible property. Miranda, 133 S.W.3d at 233. To the extent Munoz's amended pleading raises a claim of a negligent condition, specifically that the lack of a safety cover on AHU 26 caused his injuries, this is simply recasting Munoz's premises defect claim as a negligent condition claim and sovereign immunity has not been waived. See Arnold v. Univ. of Tex. Sw. Med. Ctr. at Dallas, 279 S.W.3d 464, 467 (Tex. App.-Dallas 2009, no pet.). We sustain UT Southwestern's second and third issues to the extent Munoz raised a negligent condition of property claim.
We reach a different conclusion, however, with Munoz's allegation that UT Southwestern's use of the unit caused his injuries. Under his claim of use of tangible property, Munoz asserted UT Southwestern required the units, including AHU 26, to be running while Munoz and his coworkers worked on the retrofit. The record contains proof that UT Southwestern personnel required AHU 26 and other units to be running and operational while Munoz and the other Universal Controls employees worked on and around the units and wires. Although Munoz tried to step around the wires, his leg got caught and the wires got tangled in the pulley system of the AHU, his leg and back were injured. The pulley system was operational because the AHU was running. Under these facts and circumstances, the act of requiring the AHU to be running and operational constitutes a use of tangible personal property and is separate and distinct from a condition of property. We conclude Munoz pleaded, and provided proof, the trial court had jurisdiction over this suit. We overrule those portions of UT Southwestern's second and third issues relating to the use of tangible personal property.
We affirm the trial court's order denying UT Southwestern's plea to the jurisdiction and motion to dismiss.
MOLLY FRANCIS
JUSTICE
111220F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER, Appellant
V.
JOHNNY FELIPE MUNOZ, Appellee
No. 05-11-01220-CV
Appeal from the County Court at Law No. 5 of Dallas County, Texas. (Tr.Ct.No. cc- 1000309-e).
Opinion delivered by Justice Francis, Justices Bridges and Lang participating.
In accordance with this Court's opinion of this date, we AFFIRM the trial court's judgment . We ORDER that appellee Johnny Felipe Munoz recover his costs of this appeal from appellant The University of Texas Southwestern Medical Center.
Judgment entered July 13, 2012.
MOLLY FRANCIS
JUSTICE