Fort Bend County Toll Road Authority v. Zuleima Olivares, Individually and as the Representative of the Estate of Pedro Olivares, Jr., and Pedro Olivares Individually--Appeal from 334th District Court of Harris County
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Reversed and Remanded in Part, Reversed and Rendered in Part, and Majority and
Dissenting Opinions filed June 15, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-09-00161-CV
___________________
FORT BEND COUNTY TOLL ROAD AUTHORITY, Appellant
V.
ZULEIMA OLIVARES, INDIVIDUALLY AND AS THE REPRESENTATIVE OF
THE ESTATE OF PEDRO OLIVARES, JR., AND PEDRO OLIVARES,
INDIVIDUALLY, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2008-19417
O PI NI O N
Fort Bend County Toll Road Authority (―FBCTRA‖) presents this accelerated
appeal from the trial court‘s denial of its plea to the jurisdiction. In its plea, FBCTRA
challenged the trial court‘s subject-matter jurisdiction over claims brought by Zuleima
Olivares, individually and as representative of the estate of Pedro Olivares, Jr., and Pedro
Olivares (collectively, ―appellees‖).
FBCTRA argues the trial court erred in denying its plea because appellees have
not stated claims for which FBCTRA‘s governmental immunity is waived. In a separate
appeal, Texas Department of Transportation (―TxDOT‖), FBCTRA‘s co-defendant in the
underlying lawsuit, also challenges the trial court‘s denial of its plea to the jurisdiction.
For reasons outlined below, we reverse and remand in part and reverse and render in part.
I. BACKGROUND
On January 1, 2007, Pedro Olivares, Jr. and his wife were traveling westbound on
the Westpark Tollway (―Tollway‖) near Dairy Ashford Road in Harris County when they
were struck by a vehicle driven by Michael Ladson. According to appellees, Ladson was
traveling on the Tollway in the wrong direction after entering the westbound lanes near
Gaston Road in Fort Bend County, approximately eight and one-half miles from the
accident scene.
Gaston Road intersects with FM 1093, a state road controlled by
TxDOT, which merges into the Tollway. Pedro Olivares, Jr. sustained severe bodily
injuries resulting in death.
In their second amended petition, appellees assert claims against FBCTRA, Fort
Bend County, Harris County, Harris County Toll Road Authority (―HCTRA‖), TxDOT,
Brown and Gay Engineers, Inc., and Michael Stone Enterprises, Inc. The Estate of
Michael Ladson has been designated as a responsible third party. Appellees allege
FBCTRA is liable for certain premise defects and negligent acts or omissions involving
the intersection at FM 1093-Gaston Road and the Tollway. Appellees also contend
FBCTRA is liable under a joint enterprise theory.
FBCTRA filed a plea to the jurisdiction. Appellees then filed their first amended
petition and a response to FBCTRA‘s plea. Subsequently, FBCTRA filed a supplemental
plea. Following the hearing on FBCTRA‘s plea, appellees filed their second amended
petition and a supplemental response to FBCTRA‘s plea. FBCTRA then filed a second
supplement to its plea. On January 28, 2009, the trial court signed an order denying
FBCTRA‘s plea.
FBCTRA now appeals the trial court‘s denial of its plea to the
2
jurisdiction.
II. INTERLOCUTORY APPEAL AND STANDARD OF REVIEW
We have statutorily-conferred authority to review the trial court‘s interlocutory
order denying FBCTRA‘s plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code
Ann. § 51.014(a)(8) (Vernon 2008) (A party may appeal an interlocutory order that
―grants or denies a plea to the jurisdiction by a governmental unit . . . .‖). Appellate
courts strictly construe statutes authorizing interlocutory appeals. See State v. Fiesta
Mart, Inc., 233 S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
Subsection 51.014(a)(8) authorizes an appeal only when the trial court grants or denies a
plea to the jurisdiction. An appellate court must consider challenges to the trial court‘s
subject-matter jurisdiction on interlocutory appeal, regardless of whether such challenges
were presented to or determined by the trial court. See Waco Indep. Sch. Dist. v. Gibson,
22 S.W.3d 849, 850–51 (Tex. 2000).1
We review the trial court‘s ruling on a plea to the jurisdiction de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). In a plea to the
jurisdiction, a party may challenge either the pleadings or existence of jurisdictional facts.
Id. at 226–27; see also Rebecca Simmons & Suzette Kinder Patton, Plea to the
Jurisdiction: Defining the Undefined, 40 St. Mary‘s L.J. 627, 651–52 (2009).
When a defendant challenges the plaintiff‘s pleadings, the court‘s determination
1
In previous panel decisions from this court, we expressed that an appellate court does not have jurisdiction on
interlocutory appeal to address grounds not asserted in the underlying plea to the jurisdiction. See Galveston Indep.
Sch. Dist. v. Jaco, 278 S.W.3d 477, 479 n.2 (Tex. App.—Houston [14th Dist.] 2009), rev’d on other grounds, 303
S.W.3d 699 (per curiam); State v. Clear Channel Outdoor, Inc., No. 14-07-00369-CV, 2008 WL 2986392, at *3
(Tex. App.—Houston [14th Dist.] July 31, 2008, no pet.); Clear Lake City Water Auth. v. Friendswood Dev. Co.,
256 S.W.3d 735, 747 n.14 (Tex. App.—Houston [14th Dist.] 2008, pet. dism‘d); Prairie View A & M Univ. v.
Dickens, 243 S.W.3d 732, 736 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Brenham Hous. Auth. v. Davies,
158 S.W.3d 53, 61 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
We are not bound by these opinions because the Gibson decision is directly on point. See Chase Home
Fin., L.L.C. v. Cal W. Reconveyance Corp., No. 14-08-00115-CV, 2010 WL 660166, at *9 (Tex. App.—Houston
[14th Dist.] Feb. 25, 2010, no pet. h.) (―[A]bsent a decision from a higher court or this court sitting en banc that is on
point and contrary to the prior panel decision . . . , this court is bound by the prior holding of another panel of this
court.‖).
3
turns on whether the pleader has alleged facts sufficient to demonstrate subject-matter
jurisdiction. Miranda, 133 S.W.3d at 226. To make this determination, courts should
glean the pleader‘s intent and construe the pleadings liberally in favor of jurisdiction. Id.
If the pleadings do not contain facts sufficient to affirmatively demonstrate the trial
court‘s jurisdiction, but do not affirmatively demonstrate incurable defects in jurisdiction,
the issue is one of pleading sufficiency and plaintiffs should be afforded an opportunity to
amend. Id. at 226–27. If the pleadings affirmatively negate jurisdiction, a plea may be
granted without allowing plaintiffs an opportunity to amend. Id. at 227. The opportunity
to amend pleadings that are insufficient to establish, but do not affirmatively negate,
jurisdiction arises after a court determines the pleadings are insufficient.
White v.
Robinson, 260 S.W.3d 463, 475–76 (Tex. App.—Houston [14th Dist.] 2008, pet. granted)
(citing Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839–40 (Tex. 2007)).
When a defendant challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. We take as
true all evidence favorable to the nonmovant and indulge every reasonable inference and
resolve any doubts arising from such evidence in the nonmovant‘s favor. Id. at 228. If
the relevant evidence is undisputed or a fact question is not raised relative to the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.
Id. If the evidence creates a fact question regarding the jurisdictional issue, the trial court
cannot grant the plea, and the fact issue will be resolved by the fact finder. Id. at 227–28.
When resolution of an issue requires interpretation of a statute, we review under a
de novo standard. Mokkala v. Mead, 178 S.W.3d 66, 70 (Tex. App.—Houston [14th
Dist.] 2005, pet. denied). In construing a statute, our objective is to determine and give
effect to the legislature‘s intent. See Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525,
527 (Tex. 2000).
If possible, we must ascertain that intent from the language the
legislature selected and should not refer to extraneous matters for intent not expressed in
the statute. Id. If the meaning of the statutory language is unambiguous, we adopt the
interpretation supported by the plain meaning of the words. St. Luke’s Episcopal Hosp. v.
4
Agbor, 952 S.W.2d 503, 505 (Tex. 1997).
III. ANALYSIS
FBCTRA contends the trial court lacks jurisdiction over appellees‘ claims because
they cannot demonstrate that FBCTRA‘s governmental immunity has been waived.
Disposition of whether immunity has been waived is governed by the Texas Tort Claims
Act (―TTCA‖). See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109 (Vernon 2005
& Supp. 2009).
A.
Texas Tort Claims Act
Under our common law, sovereign or governmental immunity defeat a trial court‘s
subject-matter jurisdiction. See Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.
2004). The TTCA provides a limited waiver of immunity for ―personal injury and death
so 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 (Vernon 2005). For premise-defect claims,
the governmental unit generally ―owes to the claimant only the duty that a private person
owes to a licensee,‖ unless the claim involves special defects or ―the duty to warn of the
absence, condition, or malfunction of [traffic-control devices] as is required by Section
101.060.‖ Id. § 101.022(a), (b) (Vernon 2005 & Supp. 2009).
However, there are certain exceptions to waiver of immunity under the TTCA.
There is no waiver when a claim arises from
(1) the failure of a governmental unit to perform an act that the unit is not
required by law to perform; or
(2) a governmental unit‘s decision not to perform an act or on its failure to
make a decision on the performance or nonperformance of an act if the law
leaves the performance or nonperformance of the act to the discretion of the
governmental unit.
Id. § 101.056 (Vernon 2005). ―In other words, the State remains immune from suits
5
arising from its discretionary acts and omissions.‖ Tex. Dep’t of Transp. v. Garza, 70
S.W.3d 802, 806 (Tex. 2002). Similarly, under subsection 101.060(a), the TTCA does
not waive immunity as to claims 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;
(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[.]
Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(1) (2) (Vernon 2005).
―Under
subsection (a)(1), the State retains immunity for discretionary sign-placement decisions.‖
State ex rel. State Dep’t of Highways and Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 326–
27 (Tex. 2002). ―Under subsection (a)(2), the State retains immunity as long as it
corrects a sign‘s defective [condition, absence, or malfunction] within a reasonable time
after notice.‖ Id.
B.
Claims Based on Traffic-Control Devices
FBCTRA first challenges appellees‘ claims concerning placement, maintenance,
and quality of traffic-control devices at or around the FM 1093-Gaston Road intersection.
FBCTRA generally argues that these allegations involve exercise of discretion for which
immunity is not waived under the TTCA.
1.
Failure to Install Traffic-Control Devices
FBCTRA challenges for the first time on appeal appellees‘ allegation that it failed
to install ―non-discretionary‖ signs and devices after receiving ―notice‖ that such signs
and devices were necessary. FBCTRA argues these claims are barred because they
pertain solely to discretionary acts. FBCTRA also challenges appellees‘ allegations that
it designed but failed to install warning flashers and cameras intended to monitor traffic
for safety.
6
In City of Grapevine v. Sipes, the Texas Supreme Court considered whether a
city‘s failure to install a traffic signal, after deciding to do so, fell under the portion of
subsection 101.060(a)(2) allowing claims to be brought under the TTCA when the
absence of a traffic-control device is not remedied within a reasonable time after notice.
195 S.W.3d 689, 692–95 (Tex. 2006). Construing subsection 101.060(a)(2) in light of
subsection 101.060(a)(1), the court concluded that timing of implementation is
discretionary:
When the City first installs a traffic signal is no less discretionary than
whether to install it. The timing of implementation could be affected by the
governmental unit‘s balancing of funding priorities, scheduling, traffic
patterns, or other matters; to impose liability for the failure to timely
implement a discretionary decision could penalize a governmental unit for
engaging in prudent planning and paralyze it from making safety-related
decisions. This sort of planning and execution is precisely the type of
discretionary act for which the TTCA retains immunity. Thus, when
subsections (a)(1) and (a)(2) are read together, (a)(2) logically applies only
to those traffic signals that have already been installed.
Id. at 694. Therefore, FBCTRA retained discretion regarding when to install the warning
flashers. Although section 101.060 applies only to signs, signals, and warning devices,
this rationale likewise applies to FBCTRA‘s decision regarding when to install the
planned traffic-monitoring cameras because a governmental unit‘s plans regarding the
safety features of a roadway are discretionary. See State v. San Miguel, 2 S.W.3d 249,
251 (Tex. 1999) (per curiam) (interpreting section 101.056).
In their pleadings, appellees do not specify the reason or reasons why FBCTRA
failed to install these devices. Consequently, appellees‘ pleadings do not affirmatively
demonstrate the trial court‘s jurisdiction over these claims. However, the allegations
under consideration do not affirmatively demonstrate incurable defects in the court‘s
jurisdiction. Specifically, it is unclear whether FBCTRA‘s conduct involved negligent
implementation of a discretionary policy decision2 (e.g., construction workers negligently
2
―Negligent implementation‖ within the context of a claim under the TTCA is discussed in greater depth infra.
7
overlooked that construction plans ordered installation of the devices on a certain date),
for which immunity is waived under the TTCA, or a discretionary policy decision (e.g., a
decision to postpone installation or the failure to set an installation date), for which
immunity is not waived. We also cannot discern whether appellees are alleging that the
absence of these items caused a premise defect or simply failed to warn of an existing
defect or make it reasonably safe.3 A plaintiff is entitled to an opportunity to amend if
additional facts can overcome the governmental entity‘s immunity from suit.
See
Miranda, 133 S.W.3d at 226–27; Koseoglu, 233 S.W.3d at 840. Accordingly, we reverse
the trial court‘s denial of FBCTRA‘s plea and remand for the trial court to allow
appellees a reasonable opportunity to amend their pleadings. See Miranda, 133 S.W.3d
at 226–27; see also Koseoglu, 233 S.W.3d at 839–40.
Finally, appellees‘ petition does not affirmatively demonstrate the trial court‘s
jurisdiction over their claim that FBCTRA failed to install ―non-discretionary‖ signs and
devices after receiving notice such signs and devices were necessary. Appellees have not
alleged facts and circumstances rendering installation of the signs and devices ―nondiscretionary.‖4 Although we construe pleadings liberally in favor of jurisdiction, we
refuse to allow appellees to avoid the general rule that traffic-control device placement is
a discretionary governmental function by merely describing the act or omission to be
―non-discretionary.‖ Therefore, we reverse the trial court‘s order relative to this claim
and remand for further proceedings after the trial court allows a reasonable opportunity
for appellees to amend their pleadings. See Miranda, 133 S.W.3d at 226–27; see also
Koseoglu, 233 S.W.3d at 839–40.
3
To the extent appellees allege that the lack of traffic-monitoring cameras caused a dangerous condition because
there were no people monitoring the roadway, they fail to allege a premise-defect claim under the TTCA. Such a
―condition‖ concerns the activity of people, not the condition of the roadway itself. See Tex. Parks & Wildlife Dep’t
v. Garrett Place, Inc., 972 S.W.2d 140, 144 (Tex. App.—Dallas 1998, no pet.).
4
To the extent appellees allege the signs were ―non-discretionary‖ because they were required by the Texas Manual
on Uniform Traffic Control Devices (―MUTCD‖), appellees‘ allegation that TxDOT ―retained the right to supervise
and inspect all signs, barricades, and traffic control plans to insure compliance with the [MUTCD]‖ is not an
allegation that FBCTRA was required to select and place signs exactly as specified in the MUTCD. Compliance
with the MUTCD‘s provisions is generally not mandatory. See Brazoria County v. Van Gelder, 304 S.W.3d 447,
454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).
8
2.
Traffic-Control Device Deficiencies
FBCTRA also contends its immunity is not waived relative to appellees‘ claims
based on certain traffic-control devices that ―allow‖ motorists to travel in the wrong
direction. In their petition, appellees allege the Tollway/FM 1093 area near Gaston Road
has confusing or misleading signs, signals, and warning devices, inadequate barricades,
and insufficient traffic control. As a subset of this claim, appellees allege FBCTRA
negligently placed warning signs on the wrong side of the road at or near the intersection.
Appellees allege these deficiencies constitute negligent implementation of FBCTRA‘s
policy to operate FM 1093 and the Tollway safely. Appellees also argue that placement
of warning signs on the wrong side of the road resulted in a condition under subsection
101.060(a)(2).
It is well established that a governmental unit is not immune from liability for an
injury caused by a premise defect that was created through negligent implementation of
policy. See Mogayzel v. Tex. Dep’t of Transp., 66 S.W.3d 459, 465–66 (Tex. App.—Fort
Worth 2001, pet. denied).
A governmental unit‘s negligence in implementing a
formulated policy, such as negligently constructing a designed gabion wall, is not a
discretionary function. See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.—
Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994). ―[S]overeign immunity is preserved for
the negligent discretionary formulation of policy, but not for the negligent
implementation of the policy at the [operational/ministerial] level.‖ Guadalupe-Blanco
River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex. App.
Corpus Christi 2002, no pet.).
Further, a governmental unit does not relinquish its discretion relative to roadway design
by implementing a general policy to operate roads safely. See Tarrant County Water
Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d 427, 433 (Tex. App.—Fort
Worth 1989, writ denied) (holding State‘s alleged policy to ―warn of danger‖ did ―not
make the State liable for all possible failures to warn. The State may still make specific
policy decisions about the design of State projects . . . .‖), overruled on other grounds by
City of Dallas v. Mitchell, 870 S.W.2d 21, 23 (Tex. 1994). In other words, a general
9
policy to build safe roads does not expose a governmental unit to liability for every
conceivable safety deficiency under a negligent implementation of policy theory of
recovery.
A ―condition‖ under subsection 101.060(a)(2) is defined as ―something ‗wrong‘
with the traffic sign or signal such that it would require correction by the State after
notice.‖ Garza, 70 S.W.3d at 807; see also Sparkman v. Maxwell, 519 S.W.2d 852, 858
(Tex. 1975) (defining ―condition‖ as ―either an intentional or an inadvertent state of
being‖). The term also ―refers to the maintenance of a sign or signal in a condition
sufficient to properly perform the function of traffic control for which it is relied upon by
the traveling public.‖ Lawson v. McDonald’s Estate, 524 S.W.2d 351, 356 (Tex. Civ.
App.—Waco 1975, writ ref‘d n.r.e.). ―[I]n the cases in which [the supreme court] has
interpreted ‗condition‘ in the context of road signs and signals, [it has] found a waiver of
immunity only in those situations in which the sign or signal was either (1) unable to
convey the intended traffic control information, or (2) conveyed traffic control
information other than what was intended.‖ Garza, 70 S.W.3d at 807; see also Gonzalez,
82 S.W.3d at 327 (―[S]ubsection [101.060](a)(2) requires the State to maintain traffic
signs in a condition sufficient to perform their intended traffic-control function.‖).
Appellees‘ contention that confusing and misleading signs, signals, and warning
devices, inadequate barricades, and insufficient traffic control ―allow‖ drivers to enter the
Tollway in the wrong direction implicates the adequacy of devices chosen by FBCTRA, a
discretionary design decision for which immunity is not waived. See San Miguel, 2
S.W.3d at 251 (―A court should not second-guess a governmental unit‘s decision about
the type of marker or safety device that is most appropriate.‖); Tex. Dept. of Transp. v.
Bederka, 36 S.W.3d 266, 271 (Tex. App.—Beaumont 2001, no pet.) (―Department enjoys
immunity from suit regarding its decision to place a particular traffic control signal, even
if the signal fails to make the premises safe. The selection of the device employed is not
its condition.‖), overruled on other grounds by Sipes, 195 S.W.3d 689.
Next, appellees‘ allegation that warning signs were negligently placed on the
10
wrong side of the road implicates FBCTRA‘s decision relative to the location of the
signs, another discretionary decision. See Gonzalez, 82 S.W.3d at 326–27 (explaining
that State retains immunity for its decision relative to ―where‖ signs should be located);
Johnson v. Tex. Dep’t of Transp., 905 S.W.2d 394, 398 (Tex. App.—Austin 1995, no
writ) (holding that location of where to place sign is a discretionary design decision).
Appellees allege ―[t]his negligent placement caused a failure to [warn] motorist[s] that
they may be going in the wrong direction.‖ They argue that FBCTRA failed to maintain
the signs ―in a condition sufficient to properly perform the function of traffic control for
which [they are] relied upon by the traveling public‖ because the signs were on the wrong
side of the road. City of Midland v. Sullivan, 33 S.W.3d 1, 12 (Tex. App.—El Paso 2000,
pet. dism‘d w.o.j.). Apparently, appellees contend that location of the warning signs was
a ―condition‖ of signs under subsection 101.060(a)(2) which prevented or hindered the
signs from being seen by motorists.5
A ―condition‖ under subsection 101.060(a)(2) has been held to arise when a sign is
―unable to convey the intended traffic control information.‖ Garza, 70 S.W.3d at 807
(citing Lorig v. City of Mission, 629 S.W.2d 699, 701 (Tex. 1982) (holding that a ―stop
sign‘s obstruction from view by trees or branches is a ‗condition‘ of that sign . . . .‖)).
Appellees, however, allege that the signs failed to warn motorists because of the location
of the signs. Appellees do not cite any authority supporting their contention that location
of a sign as chosen by a governmental entity amounts to a wrongful ―condition‖ of the
sign pursuant to subsection 101.060(a)(2), and we decline to so broaden the meaning of
―condition.‖ See Johnson, 905 S.W.2d at 398 (―If a motorist‘s claim that a sign is
difficult to see were sufficient to call into question . . . design discretion, virtually any
challenge to the placement of a traffic sign would suffice to preclude summary judgment
on sovereign immunity grounds and subject the . . . engineering design in this limited
5
To the extent appellees allege the signs were placed on the wrong side of the road because their location did not
comply with the MUTCD, appellees‘ allegation that ―[TxDOT] retained the right to supervise and inspect all signs,
barricades, and traffic control plans to insure compliance with the [MUTCD]‖ is not an allegation that FBCTRA was
required to select and place signs exactly as specified in the MUTCD. Compliance with the MUTCD‘s provisions is
generally not mandatory. See Van Gelder, 304 S.W.3d at 454.
11
area to a jury‘s review . . . .‖). 6 ―[W]hen traffic engineers decide where to place warning
signs around a detour, the State retains its immunity.‖ Gonzalez, 82 S.W.3d at 326–27.
We also reject appellees‘ argument that FBCTRA failed to maintain the signs in a
condition sufficient to perform their intended function.
―[M]aintenance involves
preservation of a highway as it was designed and constructed.‖ Siders v. State, 970
S.W.2d 189, 193 (Tex. App.—Dallas 1998, pet. denied) (emphasis added). If the signs
were located as designed, FBCTRA did not fail to maintain the signs by failing to
relocate them.
Appellees argue FBCTRA did not exercise discretion in installing the subject
traffic-control devices because defendant Brown & Gay Engineers, Inc. drafted
construction plans for the intersection which FBCTRA simply implemented. Appellees
do not cite any authority for the proposition that a governmental entity loses its discretion
relative to design of a roadway when it constructs the roadway pursuant to an outside
engineer‘s design. In such a situation, the governmental entity necessarily exercises its
discretion to approve and adopt the design when it constructs the roadway pursuant to the
design. Therefore, appellees‘ argument is unpersuasive.
Finally, appellees cannot avoid the discretionary-function exception to waiver of
immunity by claiming that FBCTRA failed to implement its policy to operate a safe road
because of the confusing and misleading traffic-control devices; a general safety policy
does not vitiate a governmental unit‘s discretion in roadway design. See Crossland, 781
S.W.2d at 433.
Accordingly, appellees‘ pleadings do not affirmatively demonstrate jurisdiction
over these claims. However, the same pleadings do not affirmatively negate the trial
6
We note that in Sparkman, the supreme court held that a red left-turn arrow which was installed and operated as
designed and was intended to direct left-turning motorists to stop presented a condition because it actually directed
some motorists to proceed. 519 S.W.2d at 856–58. Therefore, the governmental entity‘s design decision was held
to present a condition because it conveyed traffic-control information other than intended. In the present case, while
appellees allege the signs were ―misleading‖ and ―confusing,‖ there are no allegations that the signs conveyed
unintended traffic-control information creating a dangerous premises condition. Thus, we decline to apply
Sparkman to appellees‘ claim.
12
court‘s jurisdiction over these claims; appellees do not specify whether the traffic-control
devices were inadequate, or the warning signs were negligently located, because of
FBCTRA‘s negligent implementation of the construction plans.7
Consequently, we
reverse the trial court‘s order denying FBCTRA‘s plea relative to this claim, but remand
for further proceedings after the trial court allows appellees a reasonable opportunity to
amend their pleadings. See Miranda, 133 S.W.3d at 226–27; see also Koseoglu, 233
S.W.3d at 839–40.
3.
Duty to Maintain Pavement Markers
FBCTRA next challenges appellees‘ claim that pavement markers on FM 1093
were in a condition of disrepair at the time of the accident such that they failed to warn
motorists they were traveling in the wrong direction. FBCTRA contends it was not
responsible for maintenance of the pavement markers.
―[A] premises-liability defendant may be held liable for a dangerous condition on
the property if it ‗assum[ed] control over and responsibility for the premises,‘ even if it
did not own or physically occupy the property.‖ County of Cameron v. Brown, 80
S.W.3d 549, 556 (Tex. 2002) (quoting City of Denton v. Van Page, 701 S.W.2d 831, 835
(Tex. 1986)). ―The relevant inquiry is whether the defendant assumed sufficient control
over the part of the premises that presented the alleged danger so that the defendant had
the responsibility to remedy it.‖ Id.
FBCTRA refers to the ―Project Maintenance‖ section of the agreement between it
and TxDOT (―TxDOT-FBCTRA agreement‖), in which it is expressed that TxDOT is to
7
See City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994) (―[A]ctions which require obedience to
orders . . . are ministerial.‖); see also Siders, 970 S.W.2d at 193 (holding negligent-construction claim regarding a
stop sign was merely a disguised design-defect claim because plaintiffs‘ witnesses admitted road was constructed as
designed and plaintiffs agreed the design plans did not specify the removal of the stop sign).
FBCTRA contends certain photographs of signage at the FM 1093-Gaston Road intersection incorporated
within design documents of the intersection conclusively establish the ―Do Not Enter‖ and ―Wrong Way‖ signs were
placed in accord with design plans at the time of the accident. While these documents appear to indicate the signs
were placed as designed by August 13, 2008, they do not reflect whether the signs were placed as designed at the
time of the accident. Thus, we reject FBCTRA‘s contention.
13
maintain pavement markers on FM 1093 upon completion of the Fort Bend County
Tollway project. However, FBCTRA did not present any evidence that the project was in
the post-completion stage at the time of the accident.8 Thus, indulging every reasonable
inference and resolving all doubts in appellees‘ favor, FBCTRA has not conclusively
established that it had no maintenance responsibilities relative to the pavement markers.9
However, this conclusion does not end our review of appellees‘ pavement markers
claim because we are obliged to ascertain the existence of subject-matter jurisdiction.
See Univ. Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser, 140 S.W.3d 351, 358 (Tex.
2004), superseded by statute on other grounds, Tex. Gov‘t Code Ann. § 311.034 (Vernon
2005).
We identify sua sponte a pleading deficiency relative to appellees‘ claim
concerning the condition of the pavement markers.
Appellees allege the ―pavement markers were in a condition to insufficiently
perform their traffic control function . . . .‖ As such, the claim concerns the condition of
a traffic-safety device and, thus, falls under the provisions of subsection 101.060(a)(2).
Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(2); see also Sullivan, 33 S.W.3d at 11
(explaining that complaint regarding condition of pavement markers falls under
subsection 101.060(a)(2)). To affirmatively demonstrate the trial court‘s jurisdiction,
appellees must allege ―the condition of [the pavement markers] [was] not corrected by
the responsible governmental unit within a reasonable time after notice[.]‖ Tex. Civ.
8
In the TxDOT-FBCTRA agreement, ―Project‖ is defined in relevant part as the ―construction of the interchanges
connecting the [Tollway] at FM 1464/FM 1093 and at SH 99 . . . .‖ FBCTRA does not cite any portion of the record
supporting that the project was complete. In the statement of facts section of its brief, FBCTRA expresses, ―By the
time of the accident on January 1, 2007, construction of the Tollway in Fort Bend County had been completed.‖
Appellees do not dispute this statement in their brief. However, even accepting this statement as true, see Tex. R.
App. P. 38.1(g), it does not necessarily establish that the project was also complete at that time.
We also recognize that both FBCTRA and appellees rely on the ―Project Maintenance‖ section in making
their respective arguments. However, we refuse to construe appellees‘ reliance on this section as a deliberate
admission that the project is complete. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc., 936
S.W.2d 275, 278 (Tex. 1996) (―A judicial admission must be a clear, deliberate, and unequivocal statement.‖).
9
FBCTRA also mentions, without argument, subsection 224.032(a)(1) of the Transportation Code which expresses
that the State Highway Commission shall provide for the efficient maintenance of the state highway system. Tex.
Transp. Code Ann. § 224.032(a)(1) (Vernon 1999). This language, however, says nothing about whether other
governmental entities can become contractually obligated to maintain a segment of a state highway.
14
Prac. & Rem. Code Ann. § 101.060(a)(2).
This notice can be either actual or
constructive. See City of Austin v. Lamas, 160 S.W.3d 97, 101–03 (Tex. App.—Austin
2004, no pet.); Robnett v. City of Big Spring, 26 S.W.3d 535, 538 (Tex. App.—Eastland
2000, no pet.). Such an allegation is absent from appellees‘ pleadings. Accordingly, we
remand for further proceedings after the trial court allows appellees a reasonable
opportunity to amend their pleadings pertaining to the condition of pavement markers.
See Miranda, 133 S.W.3d at 226–27; see also Koseoglu, 233 S.W.3d at 839–40.
C.
Negligent Implementation of Policy to Operate Tollway Safely
We next consider FBCTRA‘s challenge to appellees‘ negligent-implementation
claims relative to the Tollway. As stated supra, a governmental unit is not immune from
suit for negligent implementation of policy, such as negligent construction or
maintenance. See Mitchell, 855 S.W.2d at 745.
Appellees allege all defendants agreed ―to manage, regulate, oversee, construct,
maintain, and operate . . . the [T]ollway safely,‖ and ―formulated a policy to monitor the
[T]ollway entrances and exits to prevent wrong-way traffic and unauthorized vehicles on
the [T]ollway.‖
According to appellees, this policy was negligently implemented
because the Tollway was constructed with minimal road shoulders and without traditional
tollbooths and toll plazas from which wrong-way drivers could be detected by lawenforcement personnel and other persons.
We once again note that FBCTRA‘s discretion for roadway design was not limited
by any general policy to operate the Tollway safely. See Crossland, 781 S.W.2d at 433.
Appellees also specifically allege that FBCTRA made a policy decision to monitor all
Tollway entrances for wrong-way drivers. Nevertheless, FBCTRA had discretion in
choosing how to monitor the Tollway, and it is unclear whether appellees are alleging
that the absence of traditional toll booths and toll plazas caused a premise defect or
15
simply failed to warn of an existing defect or make it reasonably safe.10 It is also unclear
whether the failure to construct wider road shoulders resulted from discretionary
formulation of policy or negligent implementation of policy. See Siders, 970 S.W.2d at
193 (emphasizing that negligent implementation claim fails because road was constructed
as designed). Accordingly, we remand for the trial court to allow appellees a reasonable
opportunity to amend their pleadings. See Miranda, 133 S.W.3d at 226–27; see also
Koseoglu, 233 S.W.3d at 839–40.
D.
Joint Enterprise
Finally, we consider FBCTRA‘s arguments relative to appellees‘ joint-enterprise
theory of liability.
An essential element of joint enterprise is an agreement, express or implied,
among the group members. Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 222 (Tex.
App.—Houston [14th Dist.] 2008, no pet.). Joint enterprise is not an independent basis
for waiver of immunity, but may result in waiver of immunity under the TTCA where a
governmental entity would be liable for another‘s negligence if the governmental entity
were a private person. Id. at 218–19 (quoting Tex. Dep’t of Transp. v. Able, 35 S.W.3d
608, 613 (Tex. 2000)).
Appellees allege that FBCTRA, HCTRA, Fort Bend County, Harris County,
TxDOT, and Michael Stone Enterprises ―had an express or implied agreement to
[construct,] develop, operate, and maintain the Westpark Tollway.‖ In the statement of
facts section of its brief, FBCTRA expresses, ―The evidence demonstrated that there were
two agreements pertaining to the Tollway: an agreement between Harris County and Fort
Bend County [―Counties‘ agreement‖] . . . ; and [the TxDOT-FBCTRA agreement.]‖ We
assume this statement is true because appellees do not contradict its validity or accuracy.
See Tex. R. App. P. 38.1(g); see also Parker v. Walton, 233 S.W.3d 535, 537 n.1 (Tex.
10
To the extent appellees allege that the lack of toll booths and toll plazas caused a dangerous condition because
there were no people monitoring the roadway, they fail to allege a premise defect claim under the TTCA. Such a
―condition‖ concerns the activity of people, not the condition of the roadway itself. See Garrett Place, 972 S.W.2d
at 144.
16
App.—Houston [14th Dist.] 2007, no pet.).
As an initial matter, FBCTRA asserts that it is not a party to the Counties‘
agreement. We agree and thus hold that the Counties‘ agreement does not support a
claim of joint-enterprise liability against FBCTRA. Thus, we turn our attention to the
TxDOT-FBCTRA agreement.
FBCTRA argues that the TxDOT-FBCTRA agreement cannot support a jointenterprise theory of liability because such a theory is proscribed under section 271.160 of
the Local Government Code. Section 271.160 provides, ―A contract entered into by a
local government entity is not a joint enterprise for liability purposes.‖ Tex. Loc. Gov.
Code Ann. § 271.160 (Vernon 2005).
Appellees argue section 271.160 does not apply to FBCTRA because ―toll road
authority‖ is not mentioned in the definition of ―local governmental entity.‖
―Local government entity‖ is defined in relevant part as a
political subdivision of this state, other than a county or unit of state
government, as that term is defined by Section 2260.001, Government
Code, including a:
...
(C) special-purpose district or authority, including any levee improvement
district, drainage district, irrigation district, water improvement district,
water control and improvement district, water control and preservation
district, freshwater supply district, navigation district, conservation and
reclamation district, soil conservation district, communication district,
public health district, emergency service organization, and river authority.
Id. § 271.151(3)(C) (Vernon 2005). Apparently, appellees contend this definition is
exclusive. However, ―‗[i]ncludes‘ and ‗including‘ are terms of enlargement and not of
limitation or exclusive enumeration, and use of the terms does not create a presumption
that components not expressed are excluded.‖ Tex. Gov‘t Code Ann. § 311.005(13)
(Vernon 2005); see also House of Yahweh v. Johnson, 289 S.W.3d 345, 351 (Tex.
App.—Eastland 2009, no pet.). Therefore, the absence of ―toll road authority‖ from the
17
enumerated entities in subsection 271.151(3) does not preclude FBCTRA from being a
local government entity.
FBCTRA presented with its plea an order by the County Commissioners Court of
Fort Bend County approving the creation of FBCTRA, a ―local government corporation.‖
A local government corporation is a ―governmental unit‖ as that term is used in the
TTCA, and its operations ―are governmental, not proprietary, functions.‖ Tex. Transp.
Code Ann. § 431.108 (Vernon 2007).11 ―A local government corporation may be created
to aid and act on behalf of one or more local governments to accomplish any
governmental purpose of those local governments.‖ Id. § 431.101(a) (Vernon Supp.
2009).
A local government corporation has the powers to promote and develop
transportation facilities. See Tex. Transp. Code Ann. §§ 431.062(b) (Vernon 2007),
.101(b) (Vernon Supp. 2009).
As a local government corporation, FBCTRA acts on behalf of Fort Bend County.
See Tex. Transp. Code Ann. § 431.003(4) (Vernon 2007). However, by providing that
local-government corporations are ―governmental units‖ performing governmental
functions, and by imbuing them with ―nature, purposes, and powers,‖ it is clear the
legislature intended such corporations to be separate and discrete political subdivisions
11
The TTCA defines ―governmental unit‖ as
(A) this state and all the several agencies of government that collectively constitute the
government of this state, including other agencies bearing different designations, and all
departments, bureaus, boards, commissions, offices, agencies, councils, and courts;
(B) a political subdivision of this state, including any city, county, school district, junior college
district, levee improvement district, drainage district, irrigation district, water improvement
district, water control and improvement district, water control and preservation district, freshwater
supply district, navigation district, conservation and reclamation district, soil conservation district,
communication district, public health district, and river authority;
(C) an emergency service organization; and
(D) any other institution, agency, or organ of government the status and authority of which are
derived from the Constitution of Texas or from laws passed by the legislature under the
constitution.
Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (Vernon 2005).
18
from those they act on behalf of and aid. See Ben Bolt-Palito Blanco Consol. Indep. Sch.
Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320,
325–26 (Tex. 2006). In Ben Bolt, the supreme court recognized that ―[t]he only entities
expressly excluded from [the definition of local-government entity under subsection
271.151(2)] are counties and units of state government . . . .‖ Id. at 328. FBCTRA is a
political subdivision of the state, but is neither a unit of state government nor a county.
Hence, FBCTRA is a local-government entity as defined in subsection 271.151(3) and is
entitled to the protections of section 271.160.
Appellees also argue that section 271.160 is not applicable because the TxDOTFBCTRA agreement does not comport with the definition of a contract as used in
subchapter I of the Local Government Code. In subchapter I, the phrase ―Contract
subject to this subchapter‖ is defined as ―a written contract stating the essential terms of
the agreement for providing goods or services to the local governmental entity . . . .‖ Id.
at § 271.151(2) (Vernon 2005). The phrase ―contract subject to this subchapter‖ is used
in several sections of subchapter I. See id. §§ 271.152, .154 (Vernon 2005), .153 (Vernon
Supp. 2009). However, the legislature selected the word ―contract,‖ as opposed to the
phrase ―contract subject to this subchapter,‖ when it drafted section 271.160. Construing
the term ―contract‖ according to its common usage, it is clear the legislature intended
section 271.160 to refer to any contract entered into by a local governmental entity. See
Tex. Gov‘t Code Ann. § 311.011(a) (Vernon 2005).12 We hold section 271.160 refers to
any contract entered into by a local-government entity. Therefore, the TxDOT-FBCTRA
agreement does not subject FBCTRA to joint-enterprise liability. Accordingly, the trial
court‘s denial of FBCTRA‘s plea is reversed and we dismiss appellees‘ claim of jointenterprise liability against FBCTRA for want of jurisdiction. See Miranda, 133 S.W.3d
at 228.
12
See also FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008) (―We use
definitions prescribed by the Legislature and any technical or particular meaning the words have acquired, but
otherwise, we construe the statute‘s words according to their plain and common meaning unless a contrary intention
is apparent from the context, or unless such a construction leads to absurd results.‖).
19
IV. CONCLUSION
We reverse the trial court‘s order denying FBCTRA‘s plea and remand for further
proceedings after the trial court allows appellees a reasonable opportunity to amend their
pleadings relative to the following claims:
Premise defect resulting from failing to install warning flashers, cameras, and nondiscretionary signs;
Premise defect resulting from inadequate barricades, insufficient traffic control,
and signs placed on the wrong side of the road;
Premise defect resulting from deficient condition of pavement markers; and
Premise defect for constructing Tollway with minimal shoulders and without
traditional tollbooths and toll plazas.
We reverse that portion of the trial court‘s order denying FBCTRA‘s plea challenging
appellees‘ claim of joint-enterprise liability against FBCTRA and render judgment
dismissing this claim for want of jurisdiction.
/s/
Charles W. Seymore
Justice
Panel consists of Chief Justice Hedges, Justice Seymore, and Senior Justice Hudson. *
(Hudson, J., dissenting)
*
Senior Justice J. Harvey Hudson sitting by assignment.
20
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