San Antonio State Hospital, Individually and as an Agency of the State of Texas v. Rose Guerrero--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-04-00396-CV
SAN ANTONIO STATE HOSPITAL, Individually and as an Agency of the State of Texas,
Appellant
v.
Rose GUERRERO,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-01859
Honorable Karen Pozza, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Karen Angelini, Justice

Delivered and Filed: October 6, 2004

AFFIRMED

This is an appeal from an order denying a plea to the jurisdiction filed by a governmental unit. Rose Guerrero brought suit against San Antonio State Hospital ("SASH") under the Texas Tort Claims Act ("TTCA") after she slipped on water while working in the hospital cafeteria. Guerrero sued SASH, alleging SASH: (1) "failed to maintain and control the air-conditioning system and room temperature which caused increased condensation to overflow the collection pan, releasing water onto the floor"; (2) "failed to properly inspect the area where Guerrero fell"; (3) "failed to put out warning signs for a condition they knew or should have known about"; (4) "failed to have equipment on hand to facilitate clean up or to warn of danger"; and (5) "cut back on the cleaning and maintenance crew which had previously been able to inspect and maintain [the] premises." Guerrero further alleged that SASH's negligence "directly and proximately created the unreasonably dangerous condition" that caused her injuries. SASH filed a plea to the jurisdiction asserting sovereign immunity. The trial court denied SASH's motion without specifying the grounds for its ruling. SASH subsequently filed this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann 51.014(a)(8) (Vernon Supp. 2004).

A plea to the jurisdiction is a dilatory plea by which a party challenges a court's authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The party suing the governmental entity bears the burden of affirmatively showing that the trial court has jurisdiction to hear the cause. Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mahew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In reviewing a trial court's ruling on a plea to the jurisdiction, we construe the pleadings in favor of the pleader and look to the pleader's intent. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). We are not required to look solely to the pleadings when deciding a plea to the jurisdiction; we may consider evidence relevant to jurisdiction when it is necessary to resolve the jurisdictional issue raised. Blue, 34 S.W.3d at 555.

The TTCA provides that a governmental unit is liable for 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) (Vernon 1997). In this case, Guerrero advanced several arguments in support of her contention that the trial court had jurisdiction over this cause. First, Guerrero argued her pleadings fall within the TTCA's waiver of immunity for injuries arising out of uses of property. See id. Second, Guerrero argued her pleadings fall within the TTCA's waiver of immunity for premises defects. See id. On appeal, however, SASH has attacked only whether Guerrero's pleadings fall within the TTCA's waiver of immunity for injuries arising out of uses of property. SASH has not challenged the possibility that the trial court's decision to deny the plea to the jurisdiction was based on the alternative theory that Guerrero's pleadings fall within the TTCA's waiver of immunity for premises defects. See Wigfall v. Tex. Dep't of Criminal Justice, 137 S.W.3d 268, 276 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (acknowledging that "[n]umerous courts have determined that a slippery floor condition constitutes an ordinary premise defect."). Because SASH failed to challenge the alternate basis for the trial court's ruling, the order of the trial court must be affirmed. Cf. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (recognizing that unless the appellant has specifically challenged every basis for the summary judgment, an appellate court may affirm based on an unchallenged ground.); Laredo Indep. Sch. Dist. v. Trevino, 25 S.W.3d 263, 265 (Tex. App.--San Antonio 2000, pet. denied) (same); Reese v. Beaumont Bank, N.A., 790 S.W.2d 801, 805 (Tex. App.--Beaumont 1990, no writ) (same).

The order of the trial court is therefore affirmed. (1)

Catherine Stone, Justice

1. We are further convinced that the trial court's order must be affirmed in light of SASH's acknowledgment that Guerrero's petition does in fact allege a premise defect complaint. SASH's plea to the jurisdiction motion expressly states, "The Plaintiff's claim is a premise defect claim."