Opinion issued May 1, 2014
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00318-CV ——————————— THE CITY OF HOUSTON, Appellant V. EDMUND L. COGBURN, Appellee
On Appeal from the 125th District Court Harris County, Texas Trial Court Case No. 2010-47056
MEMORANDUM OPINION ON REHEARING
In this personal injury case, the City of Houston appealed the trial court’s
denial of its plea to the jurisdiction based on governmental immunity. See TEX.
CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2013). On original
submission, we affirmed the trial court’s order on the basis that appellee Edmund L. Cogburn had sufficiently pleaded a special defect. The City has moved for
rehearing. We requested a response, and although we granted Cogburn’s request
for an extension of time to file his response, Cogburn failed to respond.
We grant the City’s motion, withdraw our opinion and judgment of
March 19, 2013, reverse the trial court’s order denying the City’s plea to the
jurisdiction, and render judgment granting the plea and dismissing Cogburn’s
claims against the City for want of jurisdiction.
Background
Cogburn sued the City over injuries he sustained when he tripped and fell
against a city-owned parking meter. The following factual allegations relevant to
Cogburn’s claim are taken from his First Amended Original Petition, which he
filed on January 9, 2011.
On January 31, 2009, Mr. Cogburn and his wife parked their car at a city parking meter on the South side of the 1200 block of Ewing Street, Houston, Texas. Mr. Cogburn deposited the required sum of money in the city owned and operated parking meter and station. Upon returning to their car Mr. Cogburn tripped and fell at the parking meter on exposed roots and other corruption excavated at the site of the parking meter. He sustained a broken femur and knee damage. Since then, he has undergone surgeries, extended hospitalization and rehabilitation. He will never recover totally from his injuries.
The parking meter site was under the ownership and/or control of the defendant city and presented an unreasonable risk of harm, which was known and/or should have been known by defendant city.
2 The defendants owed Mr. Cogburn, a business invitee, and others the duty to use ordinary care to ensure that the premises did not present a danger [to] its invitees, including the duty to inspect, warn and or cure. The defendants breached their duties by failing to inspect, warn or to cure the defect. Defendants were negligent.
On February 16, 2011, the City filed a plea to the jurisdiction, asserting
governmental immunity. In it, the City argued that immunity was not waived
because Cogburn’s injury occurred when he tripped over exposed tree roots, which
are a naturally occurring condition that was open and obvious.
The City attached evidence to its plea to the jurisdiction. Exhibit 1 was
Cogburn’s sworn interrogatory responses. One interrogatory asked Cogburn to
“[p]lease state briefly how this incident occurred.” Cogburn’s sworn response
stated:
On January 31, 2009, I was returning to my car, accompanied by my wife Marilyn, which was parked at a metered parking space for which I had paid on the North side of the 1200 block of Ewing Street in Houston. When I approached my metered parking space I tripped on some exposed roots and fell into the parking meter. I broke my right femur and was taken by ambulance to Saint Luke’s Episcopal Hospital.
The City also attached six affidavits from various city employees regarding the tree
roots at the site where Cogburn was injured. One of the affiants, Victor Cordova,
averred that, because of the nature of the soil and level of precipitation in Houston,
tree roots naturally move to the surface to obtain air, water, and nutrients. In sum,
3 Cordova averred that tree roots “coming to the surface is naturally occurring in
Houston due to our climate and soil.”
In response, on March 11, 2011, Cogburn filed a supplement to his First
Amended Original Petition. This pleading alleged that the area in which Cogburn
tripped contained not only “exposed roots,” “corruption,” and an excavated area,
but also “pipes and other hazards.”
The parking space and meter where plaintiff parked his car was only accessible by crossing an area of excavation and exposed roots and pipes and other hazards from the curb to the sidewalk. Indeed the parking meter itself is set in the excavated area and exposed roots. The only lawful means of accessing the parking meter is for a person to walk (not levitate) on the area of exposed roots. Indeed, the payment side of the meter faces the sidewalk away from the street, and one must stand on the hazardous roots and be exposed to the protruding obstructions in order to feed the meter. Otherwise parking patrons would have to illegally jaywalk in the street, but then would have to walk across and stand on the roots to pay the meter. When plaintiff tripped and fell, his leg fell against the parking meter and it was the parking meter iron post which broke his fall and broke his leg. The defendants knew of the hazards but chose to ignore them Moreover, the defendants knew that in order to park at the meter, pay the meter, and return to the car that a patron such as plaintiff would have to cross the hazardous area which was almost like an obstacle course.
At the time that plaintiff was injured the entire area was covered with leaves and debris and the exposed roots were not open and obvious nor were they readily apparent or even visible to a reasonably prudent person.
The parking space, meter and area of access all constitute the premises which is used in order to park and for which the City charged.
4 On the day he filed this supplemental petition, Cogburn also filed a response
to the plea to the jurisdiction. In it, he argued that the factual allegations in his
petition and its supplement, together, were sufficient to establish jurisdiction.
Cogburn’s response to the City’s plea complained that the City was improperly
attempting to use the plea to the jurisdiction to obtain summary judgment on his
premises defect claim. Notably, Cogburn failed to adduce any evidence in
response to the City’s plea. The trial court denied the plea. The City appealed.
Discussion
A. Plea to the Jurisdiction
A plea to the jurisdiction based on governmental immunity1 is a challenge to
the trial court’s subject matter jurisdiction. See City of Waco v. Kirwan, 298
S.W.3d 618, 621 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 225–26 (Tex. 2004). Whether the trial court has subject matter
jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639, 642 (Tex.
2007). We therefore review a trial court’s ruling on a plea to the jurisdiction de
novo. Id.
1 Sovereign immunity generally protects the state against lawsuits for money damages; governmental immunity provides protection to subdivisions of the state, including cities. Smith v. Galveston Cnty., 326 S.W.3d 695, 698 (Tex. App.— Houston [1st Dist.] 2010, no pet.) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) and Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
5 When a plea to the jurisdiction challenges the sufficiency of a plaintiff’s
jurisdictional pleadings, we must determine whether the plaintiff has alleged facts
that affirmatively demonstrate the court’s jurisdiction. See Miranda, 133 S.W.3d
at 226. We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). “If the pleadings affirmatively negate
the existence of jurisdiction, then a plea to the jurisdiction may be granted without
allowing the plaintiff an opportunity to amend its petition.” Smith, 326 S.W.3d at
698 (citing Miranda, 133 S.W.3d at 226). If the pleadings neither affirmatively
demonstrate nor negate jurisdiction, “it is an issue of pleading sufficiency and the
plaintiff should be given an opportunity to amend the pleadings.” Kirwan, 298
S.W.3d at 622 (citing Miranda, 133 S.W.3d. at 226–27).
When 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,’ even where those facts may implicate the
merits of the cause of action.” Id. (quoting Miranda, 133 S.W.3d. at 227). The
plea to the jurisdiction standard mirrors that of a traditional motion for summary
judgment. Miranda, 133 S.W.3d at 228; Ross v. Linebarger, Goggan, Blair &
Sampson, L.L.P., 333 S.W.3d 736, 744 (Tex. App.—Houston [1st Dist.] 2010, no
pet.). When reviewing the evidence, we must “‘take as true all evidence favorable
6 to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts
in the nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133
S.W.3d. at 228). If the evidence creates a fact issue as to the jurisdictional issue,
then the fact-finder will decide that issue. Id. (citing Miranda, 133 S.W.3d. 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.’” Id. (quoting Miranda, 133 S.W.3d. at 228).
B. Premises Liability
Under the Texas Tort Claims Act (TTCA), the government waives immunity
from suit to the extent of liability under the Act. TEX. CIV. PRAC. & REM. CODE
ANN. § 101.025 (West 2011); Kirwan, 298 S.W.3d at 622. Governmental entities
are liable under the TTCA for “personal injury . . . 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)).
The TTCA provides that “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, unless the claimant pays for the use of the
premises,” in which case the duty owed is that owed to an invitee. See TEX. CIV.
PRAC. & REM. CODE ANN. §101.022(a) (West 2011); Tex. S. Univ. v. Gilford, 277
7 S.W.3d 65, 69–70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing State
Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).
But regardless of whether a claimant is an invitee or licensee, the first element of a
premise defect claim requires that the complained-of premises condition create an
unreasonable risk of harm. Payne, 838 S.W.2d at 237; City of Dallas v. Giraldo,
262 S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.).
Texas courts have consistently held that, as a matter of law, naturally
occurring conditions that are open and obvious do not create an unreasonable risk
of harm for purposes of premises liability. See Scott & White Mem’l Hosp. v. Fair,
310 S.W.3d 411, 412–14 (Tex. 2010) (naturally occurring ice does not pose an
unreasonable risk of harm); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.
2004) (“Ordinary mud that accumulates naturally on an outdoor concrete slab
without the assistance or involvement of unnatural contact is, in normal
circumstances, nothing more than dirt in its natural state and, therefore, is not a
condition posing an unreasonable risk of harm.”); Johnson Cnty. Sheriff’s Posse,
Inc. v. Endsley, 926 SW.2d 284, 287 (Tex. 1996) (natural state of dirt, that it may
be slippery when wet or may contain small rocks, does not pose unreasonable risk
of harm); Eubanks v. Pappas Rests., Inc., 212 S.W.3d 838, 840–41 (Tex. App.—
Houston [1st Dist.] 2006, no pet.) (slime or mud accumulating naturally is not
unreasonably dangerous condition); Gagne v. Sears, Roebuck & Co., 201 S.W.3d
8 856, 858 (Tex. App.—Waco 2006, no pet.) (“the natural accumulation of ice on a
sidewalk near the entrance of a business does not pose an unreasonable risk of
harm to invitees”); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex.
App.—Eastland 2003, pet. denied) (premises owner “does not have a duty to
protect its invitees from conditions caused by a natural accumulation of frozen
precipitation on its parking lot because such an accumulation does not constitute an
unreasonably dangerous condition”).
C. Analysis
In a single issue, the City of Houston argues that the trial court erred by
denying its plea to the jurisdiction because (1) Cogburn failed to plead a valid
waiver of immunity, regardless of whether he was an invitee or licensee, (2) the
City’s “uncontroverted evidence demonstrates no jurisdiction,” and (3) tree
maintenance is a discretionary act for which immunity is retained as a matter of
law. On rehearing, the City argues that, because the City challenged the
jurisdictional facts supporting Cogburn’s claim, we are required to review the
relevant evidence submitted to determine whether a fact issue exists. Miranda,
113 S.W.3d at 227. We agree. As discussed above, under the framework set forth
in Miranda, a plea to the jurisdiction may attack a plaintiff’s pleadings, the
jurisdictional facts, or both. See id. at 226–27. If a plea challenges jurisdictional
facts, review of the plea mirrors that of a traditional motion for summary judgment.
9 Id. at 228. After Miranda, “[i]t is unquestionably [the] plaintiff[’s] burden” to
adduce evidence to demonstrate the existence of a fact issue if a governmental
entity introduces evidence controverting jurisdictional facts in support of its plea.
City of Houston v. Harris, 192 S.W.3d 167, 175 (Tex. App.—Houston [14th Dist.]
2006, no pet.).
Here, the City argued in its plea to the jurisdiction that the evidence showed
that Cogburn’s injury occurred when he tripped on exposed tree roots, and that this
could not form the basis for waiver of the City’s immunity, because the tree roots
were a naturally occurring condition that were open and obvious and thus, as a
matter of law, could not create an unreasonable risk of harm, regardless of whether
Cogburn was a licensee or invitee. See Giraldo, 262 S.W.3d at 869 (to establish
premise defect claim, plaintiff must prove condition on premises created
unreasonable risk of harm). The City supported its plea with evidence showing
that, due to soil conditions and precipitation in the Houston area, the movement of
tree roots to the surface of the ground is a naturally occurring condition. The City
submitted photographs of the site of Cogburn’s injury, which showed tree roots
that were exposed and uncovered. Also included in the City’s proof was
Cogburn’s sworn interrogatory response, which stated that he fell because he
“tripped on some exposed roots.” Taken together, this evidence conclusively
proved that the cause of Cogburn’s injury—the exposed tree roots—was an open
10 and obvious naturally occurring condition, and, therefore, as a matter of law, could
not create an unreasonable risk of harm. See Fair, 310 S.W.3d at 412–14; Rape,
139 S.W.3d at 676; Endsley, 926 SW.2d at 287; Eubanks, 212 S.W.3d at 840–41;
Gagne, 201 S.W.3d at 858; Surratt, 102 S.W.3d at 445.
On appeal, Cogburn cites two cases to support his contention that exposed
tree roots can create an unreasonable risk of harm. In Hamric v. Kansas City
Southern Railway Co., 718 S.W.2d 916 (Tex. App.—Beaumont 1986, writ. ref’d
n.r.e.), the Beaumont Court of Appeals held that the obligation to maintain the
right-of-way on a highway included the duty to ensure that grass and weeds did not
obstruct a driver’s ability to see down the right-of-way. Id. at 918–19. In
McVicker v. Johnson County, 561 S.W.2d 610 (Tex. App.—Waco 1978, writ ref’d
n.r.e.), the Waco Court of Appeals held that, where there was evidence that
employees of the county knew that a certain part of a county road flooded in heavy
rain, and there was a fact question regarding whether this danger was open and
obvious, there was a fact question regarding whether the county had a duty to warn
motorists about flooding. Id. at 611. Neither of these cases suggests that naturally
occurring exposed tree roots that are open and obvious can create an unreasonable
risk of harm.
Cogburn adduced no evidence in his response to the City’s plea. He
adduced no evidence to raise a fact issue regarding whether the tree roots at the site
11 of his injury were open and obvious or were a naturally occurring condition. And,
although he pleaded in his supplemental petition that the area in which he tripped
contained tree roots, an excavation, a pipe and corruption, he failed to adduce any
evidence that his injury was caused by anything other than the exposed tree roots
alone.
In his response to the City’s plea, Cogburn complained that he had not yet
been able to obtain certain discovery and depositions from the City. However, at
least with respect to the question of whether Cogburn tripped over exposed tree
roots alone, on the one hand, or a pipe or other non-naturally occurring conditions,
on the other, the evidence Cogburn needed to defeat the City’s plea was squarely
within his control. Cogburn could have raised a fact issue on this question by
merely adducing some evidence, by amended interrogatory or affidavit, to the
effect that he tripped over something other than exposed tree roots alone.
We are mindful that, when reviewing the evidence related to jurisdictional
facts, we must “‘indulge every reasonable inference and resolve any doubts in the
nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d.
at 228). Here, however, the City’s evidence conclusively showed that Cogburn’s
injury was caused when he tripped over exposed tree roots and that these tree roots
were open and obvious and were a naturally occurring condition. Therefore, the
burden shifted to Cogburn to adduce evidence sufficient to raise a fact issue on the
12 question of whether his injury was caused by something other than, or in addition
to, the exposed tree roots, or whether exposed tree roots are open and obvious and
a naturally occurring condition. See Miranda, 133 S.W.3d at 232. Because the
City’s plea challenged Cogburn’s pleadings and jurisdictional facts with evidence,
Cogburn’s supplementation of his pleadings with additional factual allegations
about the cause of his injury in response to the plea was insufficient to defeat it.
Since the City adduced evidence conclusively negating jurisdictional facts,
Cogburn also bore the burden to adduce evidence raising a fact issue on the
jurisdictional facts in question. See Harris, 192 S.W.3d at 175 (“[i]t is
unquestionably [the] plaintiff[’s] burden” to adduce evidence to demonstrate
existence of a fact issue if governmental entity introduces evidence controverting
jurisdictional facts); see also Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer,
904 S.W.2d 656, 660 (Tex. 1995) (generally, pleadings are not competent
evidence, even if sworn or verified). Cogburn failed to adduce any evidence
raising a fact issue regarding whether a private person could be liable to him under
Texas law, as required by the TTCA. See Miranda, 133 S.W.3d at 232; see also
City of Houston v. Ranjel, 407 S.W.3d 880, 893 (Tex. App.—Houston [14th Dist.]
2013, no pet.) (amended pleading could not create jurisdiction in the face of
conclusive jurisdictional evidence); Harris, 192 S.W.3d at 175 (dismissing case for
lack of subject-matter jurisdiction because although plaintiffs might have been able
13 to amend pleadings to sufficiently allege City’s knowledge regarding premise
defect on remand, plaintiffs had failed to controvert or otherwise demonstrate a
fact issue regarding City’s knowledge of alleged premise defect in response to
City’s evidence challenging jurisdictional facts).
The City’s sole issue is sustained.
Conclusion
Having sustained the City’s sole issue, we reverse the trial court’s order
denying the City’s plea to the jurisdiction and render judgment granting the City’s
plea to the jurisdiction and dismissing Cogburn’s claims against the City with
prejudice.
Rebeca Huddle Justice
Panel consists of Justices Jennings, Massengale, and Huddle.