Bexar County, Texas v. Joseph Edward Selvin and Sunshine Selvin; E.E. Hood & Sons, Inc.; Timothy F. Johnson; Jana Delgado--Appeal from 37th Judicial District Court of Bexar County

No. 04-00-00149-CV

BEXAR COUNTY, Texas,

Appellant

v.

Joseph Edward SELVIN and Sunshine Selvin,

E.E. Hood & Sons, Inc., Timothy F. Johnson and Jana Delgado,

Appellees

From the 37th Judicial District, Bexar County, Texas

Trial Court No. 98-CI-18303

Honorable Andy Mireles, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Tom Rickhoff, Justice

Paul W. Green, Justice

Delivered and Filed: August 16, 2000

AFFIRMED

Appellant, Bexar County, Texas, brings this interlocutory appeal from the trial court's denial of Bexar County's Pleas to the Jurisdiction. (1) Bexar County asserts sovereign immunity from claims arising out of a head-on collision that occurred on a county road which had recently been repaired. See Tex. Civ. Prac. & Rem. Code Ann. 101.021 (Vernon 1997). We affirm the orders of the trial court. Background

The underlying claims against Bexar County arise out of an automobile accident in which a vehicle driven by Sunshine Selvin collided head-on with a vehicle driven by Theresa Johnson. As Johnson attempted to pass a slower moving vehicle, she entered the left lane of the road and struck the on-coming vehicle driven by Selvin. Selvin was injured and Johnson died. Selvin and her husband filed suit against Bexar County and the paving contractor, E.E. Hood & Sons, Inc. (Hood). Johnson's parents, Timothy F. Johnson and Jana Delgado (Interveners), filed a Plea in Intervention seeking to recover damages for the death of their daughter. Interveners incorporated the claims made by the Selvins as a basis for the intervention action against Bexar County. Because the claims of the Selvins and the Interveners are identical, we refer to them jointly hereafter as "Selvin."

Selvin alleges Bexar County failed to replace centerline stripes on a county road which had recently undergone preventive maintenance. Prior to the beginning of construction, the road had a no-passing designation. Centerline stripes were necessary to denote a no-passing zone on the section of road where the accident occurred. During construction, temporary signs were used by Hood to designate the no-passing zone. Selvin contends after construction was complete and the temporary signs were removed, Bexar County did not replace the no-passing centerline stripes and the absence of these centerline stripes contributed to the head-on collision.

Selvin's suit alleges Bexar County and Hood failed to adequately warn of danger, failed to maintain and inspect the roadway, and failed to implement an effective remedial plan to protect drivers. Hood filed a cross-claim against Bexar County claiming the County was responsible for maintaining the road after construction was complete. Bexar County subsequently filed pleas to the jurisdiction asserting sovereign immunity as to the claims of all parties. Bexar County asserts Selvin and Hood failed to plead the factual allegations necessary to invoke a waiver of sovereign immunity. The trial court denied Bexar County's pleas and this interlocutory appeal ensued. Standard of Review

In reviewing an order denying a plea to the jurisdiction, we examine the pleadings of the claimants liberally in favor of the pleaders to determine if the facts alleged demonstrate the trial court's jurisdiction. See Continental Cas. Ins. Co. v. Functional Restoration Assoc., 43 Tex. Sup. Ct. J. 573, 581, 2000 WL 351196, at *9 (Tex. April 6, 2000); Continental Coffee Products Co. v. Casarez, 937 S.W.2d 444, 449 (Tex. 1996); Texas Ass'n. of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Not every failure to allege sufficient facts necessary to demonstrate jurisdiction authorizes immediate dismissal of the claims. See City of Austin v. L.S. Ranch, LTD., 970 S.W.2d 750, 753 (Tex. App.-Austin 1998, no pet.). Unless the party has effectively pled itself out of court, we look to see if, by amendment, a valid cause of action may be raised. See Peek v. Equipment Serv. of San Antonio, 779 S.W.2d 802, 804-05 (Tex. 1989). If so, there is only a question of the sufficiency of the pleading and not the jurisdiction of the court. See L.S. Ranch, Ltd., 970 S.W.2d at 753 (citing Bybee v. Fireman's Fund Ins. Co., 160 Tex. 429, 331 S.W.2d 910, 917 (1960)). Therefore, if Selvin and Hood's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show a lack of jurisdiction, the proper remedy is to allow the parties the opportunity to amend their pleadings before dismissing. See Peek, 779 S.W.2d at 805; Texas Ass'n of Bus., 852 S.W.2d at 446.

Discussion

Generally in Texas, activities involving the placement of traffic control devices is a discretionary governmental function. This discretionary function does not waive sovereign immunity from claims based on the Texas Tort Claims Act. See Loring v. City of Mission, 629 S.W.2d 699, 700 (Tex. 1982). There is, however, a statutory exception to this general rule. See Tex. Civ. Prac. & Rem. Code Ann. 101.060(a)(2) (Vernon 1997). "The Tort Claims Act provides plaintiffs the opportunity to sue [government entities] for claims arising from the absence, condition, or malfunction of any traffic or road sign, signal, or warning device provided that the governmental unit responsible had notice of the problem and failed to act within a reasonable time." Zambory v. City of Dallas, 838 S.W.2d 580, 583 (Tex. App.-Dallas 1992, writ denied). Section 101.060(a)(2) requires "notice" but not necessarily "actual notice." See State v. Norris, 550 S.W.2d 386, 391 (Tex. Civ. App.-Corpus Christi 1977, writ ref'd n.r.e.) (comparing the notice requirement of 101.060(a)(2) with the actual notice requirement of 101.060(a)(3)).

Bexar County contends Selvin and Hood failed to invoke the statutory exception because they did not plead Bexar County had actual notice there was an absence, condition or malfunction of a warning device. We disagree that actual notice is the standard for claims under 101.060(a)(2). Additionally, having reviewed the relevant pleadings, we hold actual notice was sufficiently pled to invoke at least one statutory exception to Bexar County's sovereign immunity.

The Selvins, in their Original Petition, state, "Plaintiffs would show Defendants had actual knowledge of the dangerous condition(s) on Talley Road in Bexar County, Texas, and that Defendants realized such dangerous condition(s) involved an unreasonable, imminent, and substantial endangerment and risk of harm to the public." (emphasis added). The Sixth Amended Original Petition, filed in response to the plea to the jurisdiction, elaborates on the claims from the Original Petition. As previously noted, Interveners adopted these allegations as a basis of their claim.

Further, Hood, in its First Amended Original Cross Action, states, "[T]he COUNTY had notice of the removal of the road signs, had a reasonable amount of time to replace pavement markings, in particular centerline stripes indicating no passing zones . . ." Hood also describes meetings with representatives of Bexar County regarding completion of the repair work and inspections by County inspectors at the site of the repairs, further indicating Bexar County had actual knowledge of the condition existing on the roadway. We hold the Selvins, the Intervenors and Hood all alleged actual notice to Bexar County.

Conclusion

The trial court did not err in denying Bexar County's Pleas to the Jurisdiction. Because the Selvins, the Intervenors, and Hood pled Bexar County had actual notice of the absence of centerline stripes, the claimants effectively invoked the statutory exception to sovereign immunity pursuant to Tex. Civ. Prac. & Rem. Code Ann. 101.060(a)(2). We need not decide whether the claimants also pled a waiver of sovereign immunity under Tex. Civ. Prac. & Rem. Code Ann. 101.060(a)(3) (Vernon 1997), a premise or special defect under Tex. Civ. Prac. & Rem. Code Ann. 101.022 (Vernon 1997), or a misuse of tangible property under Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon 1997). We overrule Bexar County's sole point of error and affirm the orders of the trial court.

PAUL W. GREEN,

JUSTICE

DO NOT PUBLISH

1. Bexar County appeals two separate orders denying its two pleas to the jurisdiction. The Order on Plea to the Jurisdiction denying the plea as to the cross claims of E.E. Hood & Sons, Inc. is dated February 25, 2000, and signed by Judge Carol Haberman. The second order, the Amended Order Denying Plea to the Jurisdiction as to Joseph Edward Selvin, Sunshine Selvin, Tim Johnson and Jana Delgado, is dated March 6, 2000, and signed by Judge Andy Mireles.