Affirmed and Memorandum Opinion filed November =
6,=20
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-07-00064-CV
____________
ALICE SMITH,=20
INDIVIDUALLY AND ON BEHALF OF DONALD RAY SMITH,=20
DECEASED, =
Appellant
V.
TEXAS=20
DEPARTMENT OF CRIMINAL JUSTICE, =
Appellee
On Appeal from the =
412th District Court
Brazoria=20
County, =
Texas
Trial Court Cause =
No. 35957
M E M O R=20
A N D U M O P I N I O N
In this wrongful =
death case,=20
appellant challenges an order granting a plea to the jurisdiction =
in favor=20
of the Texas Department of Criminal Justice, appellee. We=20
affirm.
I. =20
BACKGROUND
Donald Smith =
(Adecedent@), was an inmate with =
the Texas=20
Department of Criminal Justice (ATDCJ@) and was assigned to =
a crew=20
responsible for repairing power lines for the State. =
Decedent was=20
trained and accredited to work on power lines while he was =
incarcerated at=20
TDCJ. On May 6, 2005, decedent was called out as part of a =
crew to=20
repair a downed power line in a horse pasture on TDCJ=3Ds property. =20
Decedent=3Ds supervisor, =
Clifford Guant,=20
arrived at the scene around 5:00 p.m. to assess the damaged power=20
line. The rest of the crew, which included supervisor =
Anthony Allen,=20
inmate Lemons, and decedent, arrived around 5:50 p.m. in trucks =
equipped=20
with the supplies necessary to repair the downed line. When =
the crew=20
arrived, they were informed that the power lines were still =
energized and=20
were told not to go near the line. The power line was =
hanging three=20
feet off the ground in the open pasture, about 40 feet away from =
where the=20
trucks were parked.
The crew was =
then told=20
that the power would be shut off, and they began to unload =
equipment from=20
the truck. Supervisor Guant notified the TDCJ unit that they =
were=20
cutting the power. He then directed inmate Millard, another =
crew=20
member, to pull the power switches. Decedent began =
unspooling wire=20
from the truck into the open pasture. At this time, =
supervisor Allen=20
turned his back on the crew to take a personal phone call. =
While=20
unspooling the wire from the truck, decedent backed into the =
dangling=20
power line that was still energized with 7200 volts of =
power. =20
Decedent received an electric shock and, as a result, died three =
days=20
later.
Alice Smith,=20
decedent=3Ds mother, brought =
this suit=20
individually and on behalf of his estate for wrongful death and =
survival=20
damages. The trial court granted TDCJ=3Ds plea to the =
jurisdiction,=20
dismissing the case with prejudice for lack of subject matter =
jurisdiction=20
on the ground that appellant failed to allege facts demonstrating =
waiver=20
of TDCJ=3Ds immunity from suit =
under the=20
relevant provisions of the Texas Tort Claims Act (the AAct@). =
Appellant raises=20
two issues in this appeal: (1) the trial court erred in dismissing =
the=20
case because appellant=3Ds evidence raised a =
fact issue=20
as to whether decedent had actual knowledge of the dangerous =
condition, a=20
fact that would waive TDCJ=3Ds sovereign immunity; =
and (2)=20
TDCJ was not entitled to an exclusion under the Act because the =
method by=20
which TDCJ supervised decedent=3Ds work on the high =
voltage=20
lines should be characterized as implementing policy, not a =
discretionary=20
function of formulating policy.
II. =20
ANALYSIS=20
A. Standard of=20
Review
A plea to the =
jurisdiction=20
challenges the trial court=3Ds authority to =
determine the=20
subject matter of the action. Tex. Dept. of Transp. v. =
Jones,=20
8 S.W.3d 636, 638-39 (Tex. 1999). Governmental immunity from =
suit=20
defeats subject matter jurisdiction. Dallas Area Transit =
v.=20
Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Whether the =
trial=20
court had subject matter jurisdiction is a question of law that we =
review=20
de novo. Tex. Natural Resource Conservation=20
Comm=3Dn v. =
IT-Davy, 74 S.W.3d 849, 855 =
(Tex.=20
2002); Mogayzel v. Tex. Dept. of Transp., 66 S.W.3d 459, =
463 (Tex.=20
App.CFort Worth 2001, pet. =
denied). In performing this review, we do not consider the =
merits of=20
plaintiff=3Ds case, but focus =
instead on=20
the plaintiff=3Ds pleadings and the =
evidence=20
pertinent to the jurisdictional inquiry. County of =
Cameron v.=20
Brown, 80 S.W.3d 549, 555 (Tex. 2002). We construe the =
pleadings=20
liberally in favor of conferring jurisdiction. Tex. Dept. =
of=20
Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per =
curiam). =20
The pleadings are to be construed in favor of the plaintiff, and =
the court=20
must look to the pleader=3Ds intent. =
Brown,=20
80 S.W.3d at 555; Tex. Dept. of MHMR v. Lee, 38 S.W.3d 862, =
865=20
(Tex. App.CFort Worth 2001, pet. =
denied). Nevertheless, a waiver of immunity must be clear =
and=20
unambiguous. Tooke v. City of Mexia, 197 S.W.3d 325, =
332-33=20
(Tex. 2006). In sum, we determine whether the plaintiff has =
pleaded=20
a claim for which a governmental unit has waived immunity by =
reading the=20
pleadings broadly and the alleged waiver narrowly. =
Here, the parties do =
not=20
dispute that TDCJ is a governmental unit under the Act. =
Therefore,=20
we will review appellant=3Ds pleadings and =
jurisdictional=20
evidence to determine if her claims fall within a waiver of =
immunity under=20
the Act.
B. Waiver of =
Immunity=20
Under the Act
In =
appellant=3Ds first issue, she =
alleges that=20
the trial court erred in dismissing the case because her evidence =
raised a=20
fact issue as to whether TDCJ waived immunity under the Act. =
Specifically, appellant argues that TDCJ waived its sovereign =
immunity=20
under section 101.021(2) because: (1) the condition of the =
premises=20
presented an unreasonable risk of harm to decedent, a licensee; =
(2) TDCJ,=20
the landowner, knew of the dangerous condition; (3) decedent did =
not have=20
actual knowledge of the hazardous condition; (4) TDCJ failed to =
exercise=20
ordinary care to protect decedent from danger; and (5) =
TDCJ=3Ds failure to exercise =
ordinary=20
care was the proximate cause of decedent=3Ds death. See =
State=20
Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d =
235, 237=20
(Tex. 1992). To support this argument, appellant relies on =
the=20
deposition testimony of crew members stating that (1) decedent was =
called=20
out by TDCJ to repair a downed power line energized with 7200 =
volts of=20
power on its property; (2) decedent was told that the power was =
going to=20
be cut by inmate Millard; (3) decedent waited a sufficient amount =
of time=20
before backing into the downed power line; (4) inmate Millard only =
pulled=20
the power on two switches; and (5) supervisors Allen and Guant =
knew that=20
one line remained energized but failed to warn decedent. =
According=20
to appellant, this evidence is sufficient to overcome =
TDCJ=3Ds plea to the =
jurisdiction=20
because it raises a fact issue as to whether TDCJ waived immunity =
under=20
section 101.021(2) of the Act.
=
Under the doctrine of sovereign immunity, a governmental unit is =
immune=20
from suit and liability in the absence of a constitutional or =
statutory=20
provision creating such liability. See Medrano v. City of =
Pearsall, 989 S.W.2d 141, 143-44 (Tex. App.CSan Antonio 1999, no=20
pet.). The Act creates a limited waiver of sovereign =
immunity. =20
See Tex. Civ. =
Prac. &=20
Rem. Code Ann. ' 101.021 (Vernon =
2005). =20
In order for immunity to be waived under the Act, the claim must =
arise=20
under one of three specific areas of liability for which immunity =
is=20
waived, and the claim must not fall under one of the exclusions =
from=20
waiver. Medrano, 989 S.W.2d at 144. The three =
specific=20
areas of liability for which immunity has been waived are (1) =
injury=20
caused by an employee=3Ds use of a =
motor-driven=20
vehicle, (2) injury caused by a condition or use of tangible =
personal or=20
real property, and (3) claims arising from premise defects. =
Tex. Civ. Prac. & Rem. =
Code=20
Ann. '' 101.021(1), =
101.021(2),=20
101.022 (Vernon 2005); Scott v. Prairie View A & M =
Univ., 7=20
S.W.3d 717, 719 (Tex. App.CHouston [1st Dist.] =
1999, pet.=20
denied). Appellant=3Ds pleadings below and =
appeal=20
before this Court does not reflect that this suit was prosecuted =
on an=20
ordinary premise defect theory under section 101.022. See =
City of=20
Baytown v. Townsend, 548 S.W.2d 935, 939 (Tex. =
App.CHouston [14th Dist.] =
1977, writ=20
ref=3Dd n.r.e.). =
Therefore,=20
appellant=3Ds only claim to =
waiver in the=20
instant appeal is grounded in an injury arising from the condition =
of real=20
property under section 101.021(2). We now examine the =
pleadings and=20
jurisdictional evidence appellant offers to support her =
jurisdictional=20
argument under 101.021(2).
=20
If=20
decedent=3Ds injury arose out of =
the=20
condition of TDCJ=3Ds property, it owed =
decedent=20
the same duty a private landowner owes a licensee. =
See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' 101.021(2). An =
owner,=20
such as TDCJ, must avoid injuring a licensee by willful, wanton, =
or=20
grossly negligent conduct. See Payne, 838 S.W.2d at=20
237. However, when the owner has actual knowledge of a =
dangerous=20
condition and the licensee does not, the owner=3Ds duty is to warn the =
licensee=20
or make the premises reasonably safe. Id. The =
elements of=20
proof required to establish liability in the instant case are (1) =
a=20
condition of the premises created an unreasonable risk of harm to =
the=20
licensee; (2) the owner had actual knowledge of the condition; (3) =
the=20
licensee did not have actual knowledge of the condition; (4) the =
owner=20
failed to exercise ordinary care to protect the licensee from =
danger; and=20
(5) the owner=3Ds failure was a =
proximate cause=20
of injury to the licensee. See id. =20
TDCJ does not dispute =
the first=20
two elements of liability. However, the third element, that =
the=20
licensee did not have actual knowledge of the dangerous condition, =
is key=20
to appellant=3Ds first issue. =
Actual=20
knowledge embraces those things which a reasonably diligent =
inquiry and=20
means of information at hand would have disclosed. City =
of San=20
Benito v. Cantu, 831 S.W.2d 416, 425 (Tex. App.CCorpus Christi 1992, =
no writ);=20
see also Weaver v. KFC Management, Inc., 750 S.W.2d 24, =
26-27 (Tex.=20
App.CDallas 1988, writ =
denied)=20
(stating that a licensee is also imputed with knowledge of those=20
conditions perceptible to him, or the existence of which can be =
inferred=20
from the facts within his present or past knowledge). We =
must now=20
examine the pleadings and jurisdictional evidence to determine =
whether=20
decedent had actual knowledge of the hazard.
The live power line =
was hanging=20
three feet from the ground in an open horse pasture when decedent =
and the=20
rest of his crew arrived. The crew was told that because the =
downed=20
power line was still energized, they needed to stay away from =
it. =20
This shows that each member of the crew, including decedent, had =
actual=20
knowledge of the danger. Even if decedent believed that the =
power=20
had been cut after he had actual knowledge of the danger, as =
alleged by=20
appellant, appellant cites no controlling authority that allows an =
injured=20
party to subsequently lose actual knowledge once that party has =
been made=20
award of the dangerous condition. See Smith v. =
Radam,=20
Inc., 51 S.W.3d 413, 415-16 (Tex. App.CHouston [1st Dist.] =
2001, no=20
pet.) (stating that a reviewing court will not conduct an =
independent=20
review of the record and applicable law to determine whether error =
complained of occurred when appellant fails to cite any =
controlling=20
authority on that point of error). There were no affirmative =
representations of fact made by TDCJ that it was safe for decedent =
to make=20
contact with the downed power line. Instead, decedent =
assumed that=20
the condition of the property became safe within a matter of one =
minute=20
after being informed that the power would be cut off. =
In=20
fact, the usual and customary safety operation employed by TDCJ =
prior to=20
working on a downed power line was to (1) notify the unit affected =
by the=20
outage that power would be shut down, (2) cut the power, (3) check =
the=20
power with a meter to verify the power was down, and (4) ground =
the=20
conductors. On the day in question, decedent did not follow =
this=20
procedure.
Crew members =
testified that=20
they knew the downed line was still energized. If the danger =
of=20
approaching the downed power line was apparent to supervisors =
Guant and=20
Allen and inmate Lemons, then there is no reason to assume or =
believe that=20
decedent, who was a trained lineman and had access to the same=20
information, did not have actual knowledge of the same =
danger. The=20
conspicuousness of the danger was apparent to all, including=20
decedent. See Cantu, 831 S.W.2d at 425. =
Therefore, TDCJ=20
was relieved of its duty to further warn or make safe the =
condition of the=20
real property. Id. Because decedent had actual=20
knowledge of the dangerous condition, and the record is void with =
evidence=20
of willful, wanton, or grossly negligent conduct on behalf of =
TDCJ, we=20
find that TDCJ did not breach its duty to decedent under section=20
101.021(2). Therefore, TDCJ did not waive its sovereign =
immunity=20
under the Act. We overrule appellant=3Ds first =
issue.
Having concluded that =
TDCJ=3Ds sovereign immunity =
was not=20
waived, we do not reach appellant=3Ds second issue =
addressing=20
whether TDCJ=3Ds conduct fell under =
one of the=20
Act=3Ds exclusions from =
waiver. =20
Accordingly,=20
we affirm the trial court=3Ds=20
judgment.
=
; =
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sp; &nbs=
p; =
; =20
=
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bsp; =20
/s/ =20
Adele Hedges
Chief =
Justice
=
; =
&=
nbsp; &n=
bsp; &nb=
sp; =20
Judgment=20
rendered and Memorandum Opinion filed November 6, 2007.
Panel=20
consists of Chief Justice Hedges and Justices Anderson and=20
Seymore.
Do Not=20
Publish C =
Tex. R. App. P.=20
47.2(b).
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