Hudspeth County, Texas and the Hudspeth County Sheriff's Office v. Raquel Ramirez, Individually and as Representative of the Estate of Lorenzo Ramirez Appeal from 205th District Court of Hudspeth County (concurring opinion)

Annotate this Case

Download PDF

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS HUDSPETH COUNTY, TEXAS AND THE HUDSPETH COUNTY SHERIFF’S OFFICE, § § No. 08-21-00218-CV Appellants, § Appeal from the v. § 205th District Court RAQUEL RAMIREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LORENZO RAMIREZ, § of Hudspeth County, Texas § (TC# CV-04833-205) Appellee. § CONCURRING OPINION I join the court’s opinion because I agree the trial court erred in denying Appellants’ plea to the jurisdiction. However, although the majority declined to take up Appellee’s Tort Claims Act allegations at this stage of the proceedings, I would consider them presently in the interest of judicial economy. The majority notes that Appellants’ plea to the jurisdiction did not address Appellee’s claim under the Tort Claims Act, and so declines to consider that claim to avoid issuing an advisory opinion. However, we held that Appellee’s Fourth Amended Petition was filed before the trial court entered its order. Thus, the Fourth Amended Petition pleadings, including those under the Tort Claims Act, were the live pleadings before the trial court when it denied Appellants’ plea to the jurisdiction. Matzen v. McLane, 604 S.W.3d 91, 100 (Tex.App.—Austin 2020), aff’d in part, rev’d in part, No. 20-0523, 2021 WL 5977218 (Tex. Dec. 17, 2021)(citing City of McKinney v. Hank’s Rest. Grp., 412 S.W.3d 102, 110 (Tex.App.—Dallas 2013, no pet.)). Governmental immunity invokes a court’s subject matter jurisdiction to hear a case and subject matter jurisdiction “must be considered by a court sua sponte.” Rusk State Hosp. v. Black, 392 S.W.3d 88, 103 (Tex. 2012)(Lehrmann, J., concurring and dissenting)(citing Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 379 (Tex. 2006)(Brister, J., concurring)(emphasis added); see also Texas Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In addition, subject matter jurisdiction can be raised for the first time on appeal by the court. See Tex. Ass’n of, 852 S.W.2d at 446. I believe, therefore, although Appellants did not address Appellee’s claim under the Tort Claims Act in their plea to the jurisdiction or in their brief on appeal, in holding the claim was before the trial court as part of the Fourth Amended Petition, we have a duty to address it sua sponte as an issue of subject matter jurisdiction. Rusk State Hosp., 392 S.W.3d at 103. CLAIMS UNDER THE TORT CLAIMS ACT I would begin by examining the allegations made by Appellee to determine if they adequately plead facts waiving immunity under the Tort Claims Act for any cognizable cause of action. Appellee states, “This Court has jurisdiction over this claim because the Texas Tort Claims Act waives [Appellants’] sovereign immunity for claims involving personal injury and death caused by the negligent use of tangible property by the [Appellants] or their agents[.]” Appellee goes on to allege that Mr. Ramirez’s death was caused by the negligence of Appellants in failing to properly supervise their employees, failing to stop Mr. Ramirez before he tripped, operating an unreasonably dangerous premises, failing to clear a path for Mr. Ramirez as he entered the building, and placing a rolled-up floor mat in the walkway of the jail where Mr. Ramirez worked. 2 According to Appellee, these failures caused Mr. Ramirez to fall over the floor mat and hit his head, causing his injuries and eventual death. Applicable Law The Tort Claims Act is arguably the primary vehicle through which claimants can sue the state or other certain governmental units through the Act’s limited waiver of sovereign immunity. See Miranda, 133 S.W.3d at 224. It does not create causes of action; rather, “it merely waives sovereign immunity as a bar to a suit that would otherwise exist.” Sampson v. University of Texas at Austin, 500 S.W.3d 380, 385 (Tex. 2016)(quoting City of Tyler v. Likes, 962 S.W.2d 489, 494 (Tex. 1997)). Appellee’s factual allegations implicate either of two potential claims where sovereign immunity is waived under the Tort Claims Act, but not both: injury by the use or condition of personal property, or a premises defect. See id. at 385; TEX.CIV.PRAC.&REM.CODE ANN. § 101.021(2)(describing waiver of immunity for personal injury caused by a condition or use of tangible personal or real property), § 101.022(a)(describing duty owed by governmental unit to a claimant for a claim arising from premises defect); see also Miranda, 133 S.W.3d at 233 (“The Tort Claims Act’s scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim . . . by re-casting the same acts as a claim relating to the negligent condition or use of tangible property.”). In a premises defect case against a governmental unit, “the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property,” with one exception not applicable in this case. TEX.CIV.PRAC.&REM.CODE ANN. § 101.022(a); Sampson, 500 S.W.3d at 385. In other words, a plaintiff under the Tort Claims Act who asserts a claim for premises defect must plead and prove the injury was caused by either “willful, wanton or grossly negligent conduct,” or that the property owner failed to “use ordinary care . . . to warn a licensee 3 of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.” Id. at 385 (quoting State Dep’t of Highways & Pub. Transp. v. Payne¸ 838 S.W.2d 235, 237 (Tex. 1992)). A premises defect claim, therefore, holds a heightened standard of care the plaintiff must plead and prove—actual knowledge of the dangerous condition. See id. at 385. A claim for injury resulting from a condition or use of personal property imposes liability on a governmental unit to the same extent it would be liable to a claimant if it were a private person. TEX.CIV.PRAC.&REM.CODE ANN. § 101.021(2). There is no heightened standard of care in a claim for injury caused by use or condition of personal property. See Sampson, 500 S.W.3d at 385. To adequately plead such a claim, the plaintiff must allege a defect or inadequacy of the personal property. Id. at 388 (citing Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983)). Additionally, there must be allegations that the property at issue was “[brought] into action or service[;] that is, the use of the property must have caused the injury. Id. at 388-89. Analysis I would then return to the factual allegations in Appellee’s fourth amended petition. Appellee states she is bringing a claim for injury caused by the negligent use of tangible property— namely, it appears, the floor mat over which Mr. Ramirez allegedly tripped. However, there are no allegations that the mat was in use or defective; instead, Appellee alleges the opposite, stating the floor mat was rolled up in the walkway when Mr. Ramirez fell over it. Appellee also alleges that Mr. Ramirez’s death was caused by operating an unreasonably dangerous premises. However, Appellee fails to allege any of the remaining elements of a premises liability cause of action for which immunity is waived under the Tort Claims Act, such as Appellants’ actual knowledge of the danger posed by the floor mat. See Sampson, 500 S.W.3d at 391. Appellee has pleaded neither potential cause of action adequately to confer jurisdiction 4 through a waiver of immunity under the Tort Claims Act. However, and particularly because the issue would be examined for the first time on appeal, Appellee should be afforded an opportunity to replead her alternative claim under the Tort Claims Act before it is dismissed on the basis of governmental immunity. Miranda, 133 S.W.3d at 226-27; see also Stinson v. Ins. Co. of the State of Penn., 286 S.W.3d 77, 89 n.5 (Tex.App.—Houston [14th Dist.] 2009, pet. denied)(proper remedy for a failure to adequately plead jurisdictional facts is remand and an opportunity to replead). With respect to the allegations of gross negligence and punitive damages pleaded by Appellee, the Tort Claims Act expressly disallows waiving immunity for such damages. See TEX.CIV.PRAC.&REM.CODE ANN. § 101.024. Accordingly, I would dismiss Appellee’s claim for punitive damages under the Tort Claims Act. See id. CONCLUSION I join the majority’s finding that the trial court erred in denying Appellee’s plea to the jurisdiction. I agree that the order of the trial court denying Appellants’ plea should be reversed and judgment rendered in favor of Appellants on Appellee’s causes of action for damages under the Wrongful Death Act and for exemplary damages under the Worker’s Compensation Act. However, I would also consider Appellee’s alternative cause of action under the Tort Claims Act. For the foregoing reasons, I would hold that Appellee’s claim for punitive damages under the Tort Claims Act should be dismissed. I would also hold that Appellee failed to adequately plead facts to confer jurisdiction to the trial court under this cause of action. I would remand this case to the trial court to grant Appellee an opportunity to plead adequate facts to confer jurisdiction upon the trial court for her cause of action under the Tort Claims Act. 5 August 5, 2022 YVONNE T. RODRIGUEZ, Chief Justice Before Rodriguez, C.J., Palafox, and Alley, JJ. 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.