In a thorough analysis of the Texas Tort Claims Act’s waiver of sovereign immunity, the Corpus Christi Court of Appeals has reversed a trial court’s denial of a city’s plea to jurisdiction in a personal injury lawsuit.
The case, City of Brownsville v. Daniel Reglado, Individually and As Next Friend of D.A.R., A Minor, Cecilia P. Alonso, and Sylvia Vela (No. 13-21-00149-CV), arose from the collapse of a metal structure marking the starting line of a 10k footrace between the cities of Brownsville and Matamoros. The structure fell when a gust of high wind caught the banner suspended at the top of the gate and pulled the whole thing down. Plaintiffs were injured and sued the City of Brownsville, which sponsored the race, two Mexican charities that benefited from the race, and the independent contractor that built the structure. They alleged both negligent use and premises liability claims. The city filed a plea to the jurisdiction asserting that the race was a governmental function and that Plaintiffs did not establish the elements of a premises liability claim for which the TTCA waives sovereign immunity. The trial court denied the plea. In an interlocutory appeal filed by the city, the court of appeals reversed and rendered.
The memorandum opinion by Justice Benavides, joined on the panel by Chief Justice Contreras and Justice Tijerina, conducts an extensive analysis of the TTCA that should be of equal interest to local governments and the lawyers who sue them. First, the court had to determine whether the city, which sponsored the race and paid for the construction of the gate out of its own funds, was performing a governmental or proprietary function. Plaintiffs alleged that the race was a proprietary function and thus not covered by the TTCA. Noting that conducting a footrace is not in the non-exclusive list of governmental functions in the TTCA, the court turned to the four-factor analysis for determining the issue: (1) was the function discretionary; (2) did the function benefit only the residents of the city or the general public; (3) did the city act on its own behalf or as an arm of government; and (4) was the function sufficiently related to a governmental function to come within the scope of immunity. The court found that: (1) sponsoring the footrace was discretionary, indicating a proprietary act; (2) the function benefited the general public since it was open to anyone from Texas and Mexico and the proceeds of the race went entirely to charity, indicating a governmental function; (3) the city acted on its own behalf, indicating a proprietary function; and (4) using city funds to put on a binational footrace was closely related to providing recreational facilities, a governmental function listed in the TTCA. Because of the split in the factor analysis, the court determined that since the city is permitted to use general revenue to finance recreational programs, such as a road race, the city’s actions “were more closely aligned with ‘purely governmental matters solely for the public benefit’ rather than those done in ‘its private capacity, for the benefit only of those within its corporate limits, and not as an arm of government’” (citations omitted). The TTCA thus applies.
Under the TTCA, a claimant can clear the immunity bar in three instances: (1) auto accidents caused by public employees; (2) injuries arising out of a condition or use of tangible personal property; and (3) premises defects. §101.021, CRPC. Here the issue was whether Plaintiffs asserted a negligent use or premises claim, since they can’t have it both ways. A negligent use or condition claim requires a showing of “a contemporaneous, affirmative action or service (i.e., use) or the state of being (i.e., condition) of the tangible property itself that allegedly caused the injury, or whether it was a condition created on the real property by the tangible personal property (i.e., a premises defect). Plaintiffs asserted a negligent use or condition theory based on the temporary nature of the tangible property, the fact that city employees helped the contractor construct it, and that the structure lacked an “integral safety feature” (not merely inadequate safety features). The court rejected this theory on the basis that the injury was not contemporaneous with the city employees’ actions, that the structure may have had inadequate safety features but was not “defective,” and that the real basis of Plaintiffs’ claim was that the structure created a dangerous condition on the property, that is a falling hazard. Plaintiffs thus failed to plead a negligent use or condition theory.
They likewise failed to meet the higher threshold for a premises liability claim. Although the city maintained sufficient control over the condition of the property and the Plaintiffs paid an entry fee for the race, because the structure was on a public street the city only owed a duty of care that would be owed to a licensee on the property. This means that the city had to have actual knowledge of the alleged defect. Plaintiffs presented no evidence that it did, nor that the structure itself presented an unreasonable risk of harm, such as prior accidents or reports of the potential danger of the condition. Although Plaintiffs alleged that a perforated banner would have mitigated the risk of the wind blowing down the structure, that “is not evidence that [the city] had actual knowledge that the structure in its chosen form was dangerous.” The court held that Plaintiffs failed to establish waiver of governmental immunity under the TTCA, reversed the trial court, and rendered in favor of the city.
We take a close interest in TTCA cases for the same reason that we do any case involving a sovereign immunity issue: every lawsuit brought against a governmental entity costs taxpayer money, but those that get through the immunity bar cost a lot more. If we’re serious about controlling property taxes, we need to make sure that further erosions of sovereign immunity don’t get through the legislative process.
