County of Bexar v. Robert L. Walker, Jr.--Appeal from 285th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00463-CV
BEXAR COUNTY, Texas,
Appellant
v.
Robert L. WALKER, Jr.
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-03252
Honorable Phyllis J. Speedlin, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Paul W. Green, Justice

Sarah B. Duncan, Justice

Delivered and Filed: January 29, 2003

REVERSED; CAUSE DISMISSED FOR WANT OF JURISDICTION

While an inmate in the Bexar County Detention Center, Robert L. Walker slipped on a "wet and soapy floor." Walker sued Bexar County under the Texas Tort Claims Act, alleging (1) "failing to conduct an adequate inspection of the wet and soapy floor"; (2) "failing to warn [Walker] and others of the unreasonably dangerous condition of the wet and soapy floor"; (3) "failing to keep the condition of the floor in a safe condition for [Walker] and others to walk on"; (4) "allowing a wet and soapy floor to remain causing a dangerous condition"; (5) "failing to put up warning signs"; (6) "failing to properly maintain the floor"; (7) "failing to have the floor maintained"; and (8) "requiring [Walker], who was a prisoner in [Bexar County's] custody, to walk on a wet and soapy floor." The trial court denied Bexar County's plea to the jurisdiction; and the County appealed. We reverse the trial court's judgment and dismiss the cause for lack of jurisdiction.

We review the trial court's determination of subject matter jurisdiction, including its construction of pertinent statutes, de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998), cert. denied, 526 U.S. 1144 (1999). "[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. The court should, of course, confine itself to the evidence relevant to the jurisdictional issue." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

As a general rule, the County is immune from tort liability under the doctrine of sovereign immunity. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). However, the Texas Tort Claims Act provides a limited waiver of immunity of governmental units in two situations:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the property damage, personal injury, or death arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

(2) 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 1997). As the Supreme Court of Texas has explained, "[r]ecovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). Conversely, if a person is injured as a result of a condition of the premises, rather than a negligently conducted activity, he has only a premise defect cause of action. See H.E. Butt Grocery Co. v. Warner, 845 S.W.2d 258, 259 (Tex. 1992).

Walker argues that he sufficiently alleged an active negligence claim for which immunity has been waived under section 101.021(2) of the Tort Claims Act, because he alleged that the use of tangible personal property (mops, soap, and water) and real property (the Bexar County Detention Center) caused his injuries. We disagree. Walker has not alleged that he was "injured by or as a contemporaneous result of the activity itself [but] rather ... by a condition created by the activity." Keetch, 845 S.W.2d at 264. At most, Walker has alleged a premise defect cause of action. However, in his response to the County's plea to the jurisdiction, Walker stated he "is not claiming under [a] Premise defect theory"; and Walker states in his brief to this Court that he "did not allege a Premises Defect case."

Because Walker's negligence claim is barred by sovereign immunity, we reverse the trial court's order, grant the County's plea to the jurisdiction, and dismiss Walker's claims for want of jurisdiction.

Sarah B. Duncan, Justice

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