Senaida Buenrostro, Individually, and as Mother to Anthony Buenrostro, and Brandy Buenrostro, Individually, and on Behalf of the Estate of Anthony Buenrostro and as Next Friend to Z.B., a Minor v. Texas Department of Transportation

• Court: Court of Appeals of Texas
• Decided: October 16, 2024
• Docket: 07-24-00048-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00048-CV

SENAIDA BUENROSTRO, INDIVIDUALLY AND AS MOTHER TO ANTHONY BUENROSTRO, DECEASED, AND BRANDY BUENROSTRO, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ANTHONY BUENROSTRO AND AS NEXT FRIEND TO Z.B., A MINOR, APPELLANTS

V.

TEXAS DEPARTMENT OF TRANSPORTATION, APPELLEE

On Appeal from the 287th District Court Bailey County, Texas Trial Court No. 10142, Honorable Kathryn H. Gurley, Presiding

October 16, 2024 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

This appeal arises from a crash on a Texas Panhandle highway which was treated

with an anti-icing solution before a winter storm. Appellants, Senaida Buenrostro,

individually and as mother to Anthony Buenrostro, Deceased, and Brandy Buenrostro,

individually and on behalf of the Estate of Anthony Buenrostro and as next friend to Z.B.,

a minor (the “Buenrostro Parties”), challenge the dismissal of their claims against Appellee, the Texas Department of Transportation (“TXDOT”). They complain the trial

court erred in granting TXDOT’s plea to the jurisdiction based on sovereign immunity

because: (1) there were disputed issues of material fact concerning the trial court’s

jurisdiction; (2) TXDOT had actual notice of the Buenrostro’s claims under the Texas Tort

Claims Act, and the statutory notice under the Act was not required; and (3) the

Buenrostro Parties timely amended their pleadings to cure any jurisdictional pleading

defects. We affirm.

BACKGROUND

One December evening in 2018, TXDOT personnel treated the highways near

Muleshoe, Texas in preparation for a severe winter storm. As part of the treatment,

TXDOT sprayed the roads with brine—a saltwater solution—to prevent ice formation and

inhibit snow from sticking to the surface. This process, when performed correctly, also

makes subsequent plowing and clearing of accumulated snow easier to perform. After it

completed treating the roadways, an accident occurred at 8:00 p.m. in which a truck spun

off the highway and hit a tree. TXDOT then received reports from the local police dispatch

residents were complaining of “slick roads.” In response, at 2:00 a.m. the next morning,

TXDOT employees applied sand to the areas where the brine was previously applied.

The application of sand is a standard TXDOT remedy for slippery conditions because,

according to TXDOT, sand will absorb any wet materials on the road.

2 At approximately 9:00 a.m., a TXDOT employee inspected the brine storage tank

and noted an oily contaminant floating on top of the water inside.1 The substance had

stained the sides of the tank as the water level had gone down with the previous night’s

brine spraying, and TXDOT decided to flush the tank to remove the contaminant. Having

already applied sand, and without any further reports of accidents, no further actions were

taken by TXDOT.

Around 10:00 a.m., Anthony Buenrostro drove his six-wheel fuel truck near

Muleshoe going westbound on US-70. While making a lane change from the left to the

right lane, he lost control of his vehicle. The truck spun and traveled sideways while

Buenrostro attempted to regain control before it careened off the highway and flipped

over; Buenrostro was fatally injured. He was survived by his mother, his spouse, and his

minor child, who collectively sued TXDOT, the third-party supplier of the brine solution,

and the manufacturer of his vehicle. TXDOT filed a plea to the jurisdiction arguing there

was insufficient evidence of jurisdictional facts to waive its sovereign immunity under the

Texas Tort Claims Act; the trial court agreed and granted its motion. This appeal followed.

STANDARD OF REVIEW

We review a trial court’s ruling on a plea to the jurisdiction de novo. Farmers Tex.

Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 240 (Tex. 2020) (citing Presidio Indep.

Sch. Dist. v. Scott, 309 S.W.3d 927, 929 (Tex. 2010)). In applying a de novo standard of

review, we construe the pleadings in the plaintiff’s favor, but we also consider relevant

1 The impetus for the inspection is unknown, but testimony from a TXDOT employee indicates the

TXDOT supervisor for the area requested the inspection and also the tanks were periodically inspected for inventory purposes. 3 evidence offered by the parties. Beasley, 598 S.W.3d at 240 (citing In re H.S., 550

S.W.3d 151, 155 (Tex. 2018)).

Where the defendant challenges the existence of jurisdictional facts, the court must

move beyond the pleadings and consider evidence. Tex. DOT v. Lara, 625 S.W.3d 46,

52 (Tex. 2021). The analysis then mirrors that of a traditional summary judgment. Id. A

plea to the jurisdiction can properly challenge the existence of jurisdictional facts. Mission

Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). In those cases,

the court can consider evidence as necessary to resolve any dispute over those facts,

even if that evidence “implicates both the subject-matter jurisdiction of the court and the

merits of the case.” Id. (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004)). If a fact issue exists, the trial court should deny the plea. Garcia, 372

S.W.3d at 635 (citing Miranda, 133 S.W.3d at 227–28). But if the relevant evidence is

undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the court

rules on the plea as a matter of law. Garcia, 372 S.W.3d at 635 (citing Miranda, 133

S.W.3d at 228). When the trial court’s order does not specify the basis for the ruling, we

must affirm the trial court’s judgment if any of the theories advanced are meritorious.

Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

ANALYSIS

ISSUE ONE—EXISTENCE OF JURISDICTIONAL FACTS

The Buenrostro Parties’ first issue complains they presented evidence sufficient to

raise a question of fact regarding jurisdiction to defeat TXDOT’s plea. They specifically

4 argue they presented evidence raising jurisdictional fact questions regarding the

following:

• the existence of a dangerous condition;

• TXDOT’s failure to make safe or warn of the dangerous condition; and

• whether the dangerous condition caused the death of Anthony Buenrostro.

Generally, the State of Texas and its agencies retain sovereign immunity from suit

unless the Legislature clearly and unambiguously waives it. Univ. of Tex. at Austin v.

Hayes, 327 S.W.3d 113, 115 (Tex. 2010). The Texas Tort Claims Act waives sovereign

immunity for personal injuries caused by a condition of real property. TEX. CIV. PRAC. &

REM. CODE ANN. §§ 101.021(2), 101.025(a). If a plaintiff’s claim arises from a premises

defect, then the government’s duty is generally limited to “the duty that a private person

owes to a licensee on private property.” Id. at § 101.022(a), (c). The duty owed is the

duty to warn the licensee of a dangerous condition or to make the condition reasonably

safe, but only when the owner is aware of the dangerous condition and the licensee is

not. Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 98 (Tex. 2023) (citing State Dep’t of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). Absent willful,

wanton, or grossly negligent conduct, a licensee must prove the following elements to

establish the breach of duty owed to him:

(1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; [and] (5) the owner’s failure was a proximate cause of injury to the licensee.

5 Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (quoting Payne, 838 S.W.2d at

237). Therefore, if there is no evidence of at least one of these elements, a plea to the

jurisdiction should be granted. Sampson, 500 S.W.3d at 391 (citing Univ. of Tex.-Pan

Am. v. Aguilar, 251 S.W.3d 511, 512–14 (Tex. 2008)). We find the Buenrostro Parties

failed to present sufficient evidence to demonstrate an issue of fact regarding TXDOT’s

actual knowledge of the condition and its failure to exercise ordinary care proximately

caused the injury.

Actual Knowledge

A plaintiff suing for premises liability under the Tort Claims Act must show that the

owner actually knew of the dangerous condition at the time of the accident, not merely of

the possibility that a dangerous condition could develop over time. Sampson, 500 S.W.3d

at 392 (citations and internal quotations omitted). Hypothetical knowledge will not suffice.

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. Union Pac. R.R. Co. v. Prado, 685 S.W.3d 848, 861–62 (Tex. 2024)

(citations and quotations omitted). Circumstantial evidence establishes actual knowledge

only when it either directly or by reasonable inference supports that conclusion. Id.

The Buenrostro Parties point to the following as evidence of TXDOT’s actual

knowledge of the condition:

6 • another accident occurred at around 8:00 p.m. the night before Buenrostro’s accident on the same highway one-quarter of a mile away in the opposite direction;

• TXDOT received complaints of slippery roads from the Muleshoe police dispatch;

• anecdotally, residents of Muleshoe claimed the roads were “slick” and thought TXDOT was spraying oil on the road; and

• TXDOT discovered the contaminant in the brine an hour before the accident occurred.

The accident occurring the night before Buenrostro’s accident does not impute knowledge

to TXDOT, because the evidence did not establish the cause of the accident as the

contaminant from the brine tank.2 There were no accidents in the intervening fourteen

hours between the accident the evening before and Buenrostro’s incident. The evidence

shows TXDOT did not have actual knowledge there was a contaminant until it inspected

the tank over twelve hours after spraying the brine.3 Finally, there is no evidence TXDOT

knew the contaminant from the brine had made its way onto the roadway.4 See City of

San Antonio v. Rodriguez, 931 S.W.2d 535, 536–37 (Tex. 1996) (per curiam) (school’s

knowledge of leaky roof did not give it actual knowledge of the water leaking onto the

2 The Buenrostro Parties suggest the prior accident was caused by the contamination simply because the accident occurred after the spraying of the brine and the fact the accident report stated “lost control on the wet pavement” as the cause of the accident. However, (1) wet pavement, without something more, is not an unreasonably dangerous condition; and (2) the report failed to note any oil or oily residue was noted by the reporting officer as a contributing factor. See Christ v. Tex. DOT, 664 S.W.3d 82, 87 (Tex. 2023) (commonplace hazards are not unreasonably dangerous as a matter of law).

3 Because TXDOT had already applied sand to the brined areas of the road, the only remedial

action it would have taken for oil contamination, TXDOT took no further actions before Buenrostro’s accident, which occurred one hour after discovery of the contaminant.

4 After learning of the contamination of the brine, TXDOT employees did not believe the

contaminant would have caused “slick roads” because the contaminant was found floating on top of the water and the brine was sprayed onto the road from the bottom of the tank.

7 basketball court below after a rain). This evidence failed to raise a fact question as to

TXDOT’s actual knowledge the contaminant in the brine caused an unreasonably

dangerous condition at the time of the accident.

Proximate Cause

Moreover, even if the evidence had raised a fact question regarding TXDOT’s

actual knowledge, there was still no evidence of proximate causation. Proximate cause

comprises two elements: cause in fact and foreseeability. Del Lago Ptnrs. v. Smith, 307

S.W.3d 762, 774 (Tex. 2010) (citing W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.

2005)). The general test for cause in fact is whether the defendant’s act or omission was

a substantial factor in causing the injury and without which the injury would not have

occurred. Del Lago Ptnrs., 307 S.W.3d at 774 (citing Urena, 162 S.W.3d at 551).

The Buenrostro Parties’ theory of the case was a contaminant in the brine used by

TXDOT created an unreasonably dangerous condition which proximately caused

Buenrostro’s death. Thus, in order to show proximate cause, they had to present

evidence sufficient to raise a question of fact as to whether the contaminant caused the

accident. While the evidence demonstrated there was a contaminant in the brine, the

evidence does not establish a causal link between the contaminant and the accident. The

bare facts of the presence of an unknown contaminant in the brine and the spraying of

the brine on the road are not enough to establish cause in fact. There is no evidence of:

• what the contaminant was; 5

5 No sample was taken of the contaminant by TXDOT, and the contaminant remains unidentified.

TXDOT employees took video of the contaminated tanks and the flushing of the tanks to clean out the contaminant, but there was no protocol in place to save a sample of the contaminant. 8 • how much of the brine was contaminated;

• how the contaminant affected road conditions;

• how much of the contaminant made its way onto the roadway; or

• how much of the contaminant remained on the road at the time of the accident.

Without at least establishing what the contaminant was and how it conceivably caused

the accident, the assertion the contaminant caused Buenrostro’s accident is conclusory

conjecture. See Stanfield v. Neubaum, 494 S.W.3d 90, 97 (Tex. 2016) (“Conjecture,

guess, and speculation are insufficient to prove cause in fact and foreseeability.”).

Without evidence showing the contaminant was a substantial factor in causing the

accident, the Buenrostro Parties failed to raise a fact issue regarding proximate causation.

No Issues of Jurisdictional Facts

The Buenrostro Parties, having failed to present sufficient evidence to raise a

jurisdictional fact issue as to each element of a premises liability claim under the Tort

Claims Act, did not demonstrate a waiver of sovereign immunity. The trial court did not

err by granting TXDOT’s plea to the jurisdiction. Issue one is overruled.

The Buenrostro Parties’ second issue complained TXDOT had actual notice of the

premises defect and statutory notice was not required, while their third issue complained

their amended pleadings cured any jurisdictional pleading defects. However, because

they failed to meet their burden to demonstrate the trial court had jurisdiction, their second

and third issues are moot. TEX. R. APP. P. 47.1.

9 CONCLUSION

The trial court’s judgment is affirmed.

Alex Yarbrough Justice