Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, November 2, 2011

Statutory waivers of immunity enjoyed by governmental entities

Governmental and Sovereign Immunity & Statutory Exceptions Thereto (immunity waivers)
In Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. 2003), the court explained:

Courts often use the terms sovereign immunity and governmental immunity interchangeably. However, they involve two distinct concepts. Sovereign immunity refers to the State's immunity from suit and liability. In addition to protecting the State from liability, it also protects the various divisions of state government, including agencies, boards, hospitals, and universities. Governmental immunity, on the other hand, protects political subdivisions of the State, including counties, cities, and school districts.
Id. at 694 n.3 (citations omitted). The plaintiff bears the burden to plead facts that affirmatively demonstrate that governmental immunity has been waived and that the court has subject-matter jurisdiction. McMahon Contracting, L.P. v. City of Carrollton, 277 S.W.3d 458, 464 (Tex. App. -Dallas 2009, pet. denied).
The Texas Legislature has created exceptions to the doctrine of governmental immunity which are applicable under certain conditions. See Harris Cnty. v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994). Whether a governmental unit is immune from liability for a particular claim depends entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act provides that governmental units are liable for "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(2) (West 2011). The Tort Claims Act recognizes liability for two types of dangerous conditions of real property, premise defects and special defects. Id. at § 101.022.
If a claim arises from a premise defect, the governmental unit owes to the claimant only the same duty as a private person owes to a licensee on private property. Id. at § 101.022(a). That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh'g). Actual knowledge of the dangerous condition is required. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). Constructive knowledge of the defect is insufficient. Id.
If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Id.; Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). That duty requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware. Payne, 838 S.W.2d at 237. In The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010), the court discussed the considerations relevant to a determination that a condition is a special defect:
The Legislature does not define special defect but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see also County of Harris v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978) (construing "special defect" as including those defects of the same kind or class as those expressly mentioned in the statute). In Denton County v. Beynon, we reaffirmed that conditions can be special defects "only if they pose a threat to the ordinary users of a particular roadway." 283 S.W.3d 329, 331 (Tex. 2009) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992)). Whether a condition is a special defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam). In deciding this question, we have previously considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. See Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). The class of special defects contemplated by the statute is narrow.
SOURCE: DALLAS COURT OF APPEALS - 05-11-00509-CV - 10/26/11
Appellants argue the tall vegetation located in the easement along Sundown Road is a special defect, or in the alternative a premise defect from which their claim arose. Accordingly, we first address whether the tall vegetation constituted a special defect for purposes of section 101.022(b) of the Tort Claims Act. As emphasized by the court in Hayes and in Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009), the special defect class is narrow. The defect must "pose a threat to 'ordinary users' in the manner that an excavation or obstruction blocking the road does." Beynon, 283 S.W.3d at 332; see also Hayes, 327 S.W.3d at 116. The court in Beynon also explained that its statement in Payne that excavations and obstructions "present an unexpected and unusual danger to ordinary users of roadways" did not create an additional element that could be proven to establish a special defect. Beynon, 283 S.W.3d at 331, n.11. Rather, the "unexpected and unusual danger" language was used "to describe the class, not to redefine it." Id. As noted in Sipes v. Texas Dep't of Transp., 949 S.W.2d 516, 521 (Tex. App.-Texarkana 1997, writ denied), "grass and weeds growing along an East Texas highway in July are neither unexpected nor unusual." Several courts have concluded vegetation obstructing a motorist's view is not a special defect. See Anderson v. Anderson Cnty., 6 S.W.3d 612, 615-16 (Tex. App.-Tyler 1999, pet. denied) (collecting cases).