Joseph Richardson (Greselda Richardson dismissed) v. Dallas/Fort Worth Airport and Dallas/Fort Worth Airport Board--Appeal from 162nd District Court of Dallas County

11th Court of Appeals

Eastland, Texas

Memorandum Opinion

Joseph Richardson[1]

Appellant

Vs. No. 11-03-00033-CV -- Appeal from Dallas County

Dallas/Fort Worth Airport and

Dallas/Fort Worth Airport Board

Appellees

This is an appeal from a take-nothing summary judgment granted in favor of Dallas/Fort Worth Airport and Dallas/Fort Worth Airport Board (collectively DFW). Joseph Richardson sued DFW for damages related to a knee injury he allegedly received in a DFW parking garage. DFW moved for summary judgment on various grounds, including sovereign immunity. The trial court granted DFW=s motion without specifying the ground upon which it relied. We affirm.

Richardson appears pro se and presents three points of error. In the first point and its 12 sub-parts, Richardson argues that the trial court erred in granting DFW=s motion for summary judgment. Under this point, appellant asserts that summary judgment was erroneous because: (a) the summary judgment proof was insufficient; (b) the court showed bias and prejudice by asking DFW if there were any objections to Richardson=s exhibits; (c) DFW abused the discovery process; (d) the court denied Richardson=s evidence; (e) the court allowed DFW to orally respond to his response to DFW=s motion for summary judgment; (f) DFW did not establish the standard of conduct applicable to a governmental unit in maintaining and operating a traffic control device; (g) DFW failed to establish that it did not breach the applicable standard of care; (h) DFW did not expressly move for summary judgment on the ground that it did not create a dangerous condition; (i) DFW failed to show that it had no knowledge of the dangerous condition; (j) DFW did not expressly move for summary judgment on the ground that the condition did not pose an unreasonable risk of harm; (k) DFW did not expressly move for summary judgment on the ground that it did not violate the Texas Transportation Code; and (l) the trial court=s decision was so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In the second point, Richardson contends that the trial court abused its discretion when it denied his motion for continuance of trial. In his third point, Richardson contends that the trial court abused its discretion in granting DFW=s motion to compel a deposition. Richardson also requests this court to sanction DFW for discovery abuses.

In order to determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, in order to determine whether the movants proved that there was no genuine issue of material fact and that they were entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). Because, the trial court did not specify which ground it relied upon to grant the summary judgment, we will affirm the summary judgment Aif any of the theories advanced are meritorious.@ State Farm Fire & Casualty Company v. S.S. & G.W., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

In the motion for summary judgment, DFW asserted that it was immune from suit because Richardson=s allegations did not fall under the limited waiver provisions of the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. ch. 101 (Vernon 1997 & Supp. 2003). Under the doctrine of sovereign immunity, a governmental unit is protected from suit unless immunity has been specifically waived by the legislature by clear and unambiguous language. TEX. GOV=T CODE ANN. ' 311.034 (Vernon Supp. 2003); Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex.), cert. den=d, 525 U.S. 1017 (1998). In order to address this issue, we must determine the scope of waiver from the terms of the Texas Tort Claims Act and then determine whether the particular facts of this case are within that scope. Texas Department of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001); see Dallas County Mental Health and Mental Retardation v. Bossley, supra.

Section 101.0215 provides that the operation of a municipal airport is a governmental function to which Chapter 101 applies. Section 101.021(2) provides that a governmental unit is liable for Apersonal injury and death so caused by a condition or use of tangible personal or real property@ if, under the same circumstances, a private person would be liable under Texas law. Section 101.022(a) provides that, if a claim arises from a premises defect, Athe 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.@ Under Sections 101.056 and 101.060, however, immunity is retained under certain circumstances. Immunity is retained under Section 101.056 for discretionary acts if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Section 101.060(a) provides in relevant part that immunity is not waived for a claim arising from:

(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit; [or]

(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or malfunction is not corrected by the responsible governmental unit within a reasonable time after notice.

Richardson alleged in his second amended petition that an employee of DFW advised him that he must obtain an airport toll passkey in order to pick up customers at the airport. Richardson was instructed to obtain the passkey from the DFW Airport Business Center. Richardson subsequently went to the business center and parked in the parking garage. While in the parking garage, Richardson entered the crosswalk after checking to make sure that there were no cars in view. While crossing, he heard a car coming and noticed that it was traveling at an extremely high rate of speed down the exit lane. Richardson=s immediate reaction was to run so as to avoid being struck by the car. As he scrambled out of the path of the speeding car, Richardson heard a loud pop and suffered excruciating pain. Richardson=s left knee was injured in the incident.

Richardson asserted that DFW was negligent for failing to maintain the premises in a reasonably safe condition, for locking the traffic control arms in an upright position, for failing to properly use the facilities to safely regulate traffic, for failing to provide adequate warning signs for motorists and pedestrians, for failing to maintain the traffic control device, for failing to inspect for dangerous conditions, for failing to exercise reasonable care, for failing to maintain control over the premises, for failing to exercise due care in the operation of the traffic control device, and for failing to provide a pedestrian safety zone. Richardson also asserted that DFW=s misuse of the traffic control arm created a premises defect.

DFW=s summary judgment proof showed that, prior to the occurrence of Richardson=s injury, DFW had not received notice of any absence, condition, or malfunction of a traffic or road sign, signal, or warning device in the business center parking garage. DFW=s summary judgment proof also showed that the gate arms located near the crosswalk in the parking garage were Afully-functional@ but were Adeliberately locked in the >up= position to facilitate the ingress and egress of garage traffic.@ Additionally, DFW showed that the crosswalk was maintained in accordance with applicable laws and regulations and that yellow reflective pedestrian-crossing signs were located in the parking garage above the entrance and exit lanes that intersect the crosswalk.

We hold that the trial court properly granted summary judgment for DFW because immunity has not been waived. None of Richardson=s claims fell within the limited waiver provisions of the Texas Tort Claims Act. The summary judgment proof showed that neither the premises nor the traffic control device was defective. See Laman v. Big Spring State Hospital, 970 S.W.2d 670 (Tex.App. - Eastland 1998, pet=n den=d). The proof showed, instead, that the gate was intentionally locked in the up position. The decision to lock the gate in the up position was a discretionary act for which DFW was entitled to immunity under Section 101.056. See, e.g., State v. Miguel, 2 S.W.3d 249 (Tex.1999). Furthermore, pursuant to Section 101.060(a), DFW was entitled to immunity with respect to Richardson=s claims regarding the adequacy and the placement of the warning signs and the crosswalk.

We have considered all of Richardson=s arguments relevant to the propriety of the summary judgment, and we hold that summary judgment was appropriate. Consequently, we need not address Richardson=s other points of error. TEX.R.APP.P. 47.1. Furthermore, this court has no authority to grant Richardson=s request to impose sanctions upon DFW for discovery abuses.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

July 17, 2003

Not designated for publication. See TEX.R.APP.P. 47.2(a).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.

[1]Greselda Richardson was originally included in the notice of appeal as an appellant, but she subsequently filed in this court a motion to withdraw her notice of appeal. This court granted that motion on January 30, 2003.