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Opinion issued April 12, 2007















In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00448-CV




UNIVERSITY OF HOUSTON, Appellant



V.



YVONNE MICHELLE DE LUNA, Appellee






On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2003-66636


MEMORANDUM OPINION

Appellant, University of Houston ("the University"), appeals from an order denying its plea to the jurisdiction and motion for summary judgment in favor of appellee, Yvonne Michelle De Luna. We determine whether the trial court erred by denying the University's plea to the jurisdiction because its waiver of immunity was excepted under section 101.056 of the Texas Tort Claims Act ("TTCA"). See Tex. Civ. Prac. & Rem. Code Ann. 101.056 (Vernon 2005). We vacate the order denying the University's plea to the jurisdiction and dismiss the suit for want of jurisdiction.

Background

On December 14, 2001, De Luna tripped and fell at the University's Hofheinz Pavilion ("the pavilion") while participating in her graduation ceremony. After receiving her diploma, De Luna was returning to her seat when her foot was caught in a gap between the "platform" and the floor and she fell on her hands and knees. The "platform" was actually a National Collegiate Athletic Association (NCAA) regulation raised wooden basketball court ("raised basketball court") that was constructed in the mid-1980's "consist[ing] of an ash wood playing surface, which was glued, as well as nailed, to two-inch by four-inch wood planks." The raised basketball court was two and one-half inches above the pavilion floor with an exposed gap around the entire court. At the graduation ceremony, the raised basketball court had a non-slip-rubber- membrane material placed over the wood.

De Luna sued the University on December 8, 2003 alleging, a premises defect. The University filed a plea to the jurisdiction requesting that the trial court dismiss De Luna's claim on the basis that section 101.056 of the TTCA prevented De Luna from recovering damages for her claim because "the University's decision to use the raised platform or basketball court configuration was discretionary." The University also filed traditional and no-evidence motions for summary judgment. The University contended that De Luna's claim should be dismissed because "the evidence show[ed] that no defective condition on the arena floor of the [pavilion] existed to cause [De Luna's] injuries." On April 21, 2006, the trial court denied the University's plea to the jurisdiction and motions for summary judgment.

Standard of Review

On appeal, because the question of subject-matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).

Appellate review as to subject-matter jurisdiction generally begins with review of the pleadings. The pleader must allege facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Tex. Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Mere reference to, or recitation of, provisions of the TTCA in pleadings does not confer jurisdiction on the trial court. Tex. Dep't. of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Courts deciding pleas to the jurisdiction are not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). If the evidence as to jurisdictional facts is undisputed, then whether that evidence establishes a trial court's jurisdiction is a question of law. Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction; the fact issue must be resolved by the fact finder. See id. at 227-28. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence implicating the merits of the case has been submitted to support the plea, we take as true all evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. at 228.

Plea to the Jurisdiction

In its first point of error, the University argues that section 101.056 of the TTCA bars De Luna's claim because "the raised basketball court was in its originally designed condition created by the discretionary acts of the University." Thus, the University argues that the waiver provisions of the TTCA do not apply.

A. The Law

As a governmental unit, the University enjoys governmental immunity from tort liability and suit, unless immunity has been waived. See Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003); Tex. Civ. Prac. & Rem. Code Ann. 101.001(3) (Vernon 2005) (defining "governmental unit"). The TTCA expressly waives sovereign immunity in three areas: (1) property damage and personal injury caused by the use of publicly owned automobiles (section 101.021(1)); (2) personal injury caused by a condition or use of tangible personal or real property (section 101.021(2)); and (3) claims arising out of premises defects (section 101.022). Tex. Civ. Prac. & Rem. Code Ann. 101.021-.022; see Dallas County v. Wadley, 168 S.W.3d 373, 376 (Tex. App.--Dallas 2005, pet. denied); see also Miranda, 133 S.W.3d at 225.

The TTCA creates certain exceptions to the waiver of sovereign immunity. Section 101.056 provides that the waiver provisions of the Act do not apply to claims based on: "(1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) the governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. 101.056. This latter provision is commonly referred to as the "discretionary-function exception." See Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.--Dallas 1993), aff'd, 870 S.W.2d 21 (Tex. 1994).

The discretionary-function exception to waiver of sovereign immunity is designed to avoid judicial review of governmental policy decisions. Mitchell, 855 S.W.2d at 745; see also State v. Terrell, 588 S.W.2d 784, 787 (Tex. 1979). A decision is discretionary when it requires exercising judgment and there is no specific law mandating specific action. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). Designs for a public building or other municipal premises are discretionary and therefore the governmental entity responsible may not be sued for such decisions. Mitchell, 855 S.W.2d at 745; see e.g., Gates v. Tex. Tech Univ., No. 07-03-00138-CV, 2004 WL 2559937 *3-4 (Tex. App.--Amarillo Nov. 9, 2004, pet. denied) (not designated for publication) (holding that university's construction and particular configuration of its adjustable, multi-level theater stage were excepted under discretionary-function exception). Additionally, decisions regarding the installation of safety features are discretionary decisions for which a governmental entity may not be sued. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (holding that State retained governmental immunity from premises-defect claim under TTCA's discretionary-function exception because plaintiff's petition alleged that highway's dangerous condition was related to highway median's slope and lack of safety features, such as barriers or guardrails, which are discretionary decisions); see, e.g., Tex. Health Sci. Ctr. at San Antonio v. Bruen, 92 S.W.3d 24, 26-27 (Tex. App.--San Antonio 2002, pet. denied) (holding that claims asserting that ramp in public auditorium was dangerous and should have been redesigned or various safety features added were excepted under discretionary-function exception); Ramos v. Tex. Dep't of Pub. Safety, 35 S.W.3d 723, 733 (Tex. App.--Houston [1st Dist.] 2000, pet. denied) (holding that parking lot design and lack of various additional safety barriers and dividers were excepted under discretionary-function exception).

While a governmental entity is immune from liability if an injury results from the formation of policy, a governmental entity is not immune if an injury is caused by the negligent implementation of that policy or negligent maintenance of the premises. Mitchell, 855 S.W.2d at 745; see e.g. Trevino v. Univ. of Texas at San Antonio, 153 S.W.3d 58, 62 (Tex. App.--San Antonio 2002, no pet.) (holding that evidence that bleachers were loose and warped from wear and tear, that is, evidence that indicated bleachers had not been maintained properly, prevented discretionary-function exception from applying); Terrell, 588 S.W.2d at 787-88 (holding that highway patrol officer who was pursuing speeding vehicle and collided with another motorist was not part of State's formulated policy decision to detect and apprehend individuals who exceed speed limit; therefore, State was subject to liability for injuries resulting from negligence of highway patrol officer). Thus, sovereign immunity is preserved for even negligent discretionary formulation of policy, but not for the negligent implementation of the policy at the operational level. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 754 (Tex. 1995); Terrell, 588 S.W.2d at 787-88; Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex. App.--Corpus Christi 2002, no pet.).

B. Analysis

De Luna alleged in her petition that the University is liable for her injuries because a dangerous condition existed on the University's premises. She pleaded that the University was negligent for the following reasons,



A. [The University] failed to provide warning of the condition;



B. [The University] failed to properly maintain and inspect said condition of the mat and floor;



C. [The University] failed to use due care in the design and implementation of the mat to reduce and/or eliminate the tripping hazard; and



D. [The University] failed to warn [De Luna] of the unsafe condition."



De Luna pleaded that the University's liability resulted from the combination of the nature of the raised basketball court, which allowed a two-and-one-half-inch gap around its perimeter, and the mat, which covered and was a similar color to the pavilion floor. De Luna concedes that the decision to use the raised basketball platform is a policy decision, but argues that the implementation of the policy created a dangerous condition. De Luna argues that "even in the absence of any particular defect in the platform, or the floor itself, it [was] the combination of the covered platform sitting on a portion of the pavilion floor where students were walking that was the dangerous condition." (Emphasis in original.)

De Luna relies on Simons v. City of Austin and Rawlings v. Angelo State University to support her argument that the University is not exempt from liability. See Simons v. City of Austin, 921 S.W.2d 524 (Tex. App.--Austin 1996, writ denied); Rawlings v. Angelo State Univ., 648 S.W.2d 430 (Tex. App.--Austin 1983, writ ref'd n.r.e.). In Simons, the plaintiff was injured by a wooden partition that fell on her while attending a meeting at a city recreation center. The plaintiff sued the city under premises liability and the city countered that the discretionary-function exception applied. Simons, 921 S.W.2d at 527. The Simons court held that, although the decision to use a wooden partition at the recreation center was a discretionary act, the actual design and construction of the partition and its defective condition were not excepted. Id. at 524. In Simons, the wooden partition was defectively constructed or maintained and was not in its originally designed condition. Id.

In Rawlings, the plaintiff was injured when she tripped over a water hose the employees at the university had laid across a sidewalk while watering the campus lawn. Rawlings, 648 S.W.2d at 431. It was undisputed that neither the water hose nor the sidewalk was defective. Id. at 434. The Rawlings court held that the method and manner of use by the university, i.e., the water hose having been stretched across a sidewalk used for ingress and egress to the library created a dangerous and unsafe condition on the premises. Id. The university did not argue that it was exempt under the discretionary-function exception. Id. at 431-32.

The cases on which De Luna relies are distinguishable from the facts here. De Luna's expert testified that the raised basketball court was not defectively constructed or maintained. The raised basketball court was designed to be placed two and one-half inches above the floor with an exposed gap. It remained in place for more than half of the calendar year. The change in elevation was part of the raised basketball court's design. De Luna's injuries were not caused by the negligent use of the raised basketball court and mat as in Rawlings. The "use," if any, that the University's employees made of the mat and raised basketball court was completed when those items had been attached to the pavilion floor. See Dallas County Mental Health and Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998); Gates, 2004 WL 2559937 *3-4.

The University relies on Texas Health Science Center at San Antonio v. Bruen, Gates v. Texas Tech University, and Ramos v. Texas Department of Public Safety to support its contention that it retained its immunity under the TTCA's discretionary-function exception. See Gates, 2004 WL 2559937 *3-4; Bruen, 92 S.W.3d at 26-27; Ramos, 35 S.W.3d at 733. In Bruen, the plaintiff was injured when she slipped and fell off an unprotected edge of an auditorium ramp. Bruen, 92 S.W.3d at 26-27. The plaintiff sued the University, alleging the design of the downward sloping auditorium ramp constituted a dangerous condition and created an unreasonable risk of harm because there was no differentiation in color between the carpet on the ramp and the carpet covering the rest of the room. Id. The plaintiff further alleged that the University failed to warn of the dangerous condition with a railing or other device to prevent someone from stepping off the side of the ramp. Id. The Bruen court held that these were "design decisions" that were discretionary, and therefore immunity was not waived under the TTCA. Id.

In Gates, while rehearsing on a theater stage, the plaintiff was injured when she fell into an orchestra pit, which was adjacent to the front of the main stage. Gates, 2004 WL 2559937 at *1. The plaintiff sued the university, alleging premises defect, and the university countered that the discretionary-function exception applied. Id. at *3-4. The configuration of the stage had been completed before the day on which the plaintiff was injured. Id. at *1. The stage had been adjusted to the orchestra-pit level, tape had been used to mark the front edge of the main stage, and a black cloth, similar to a store awning, had been attached across the front of the main stage. Id. The cloth awning had been extended down and out over the orchestra pit. Id. The Gates court held that because the stage configuration was the result of discretionary decisions by the university's employees, the university retained immunity under the discretionary-function exemption. Id. at *4.

In Ramos, a child pedestrian was killed when a motorist's car lurched forward following a driver's license road test at the Texas Department of Public Safety ("TDPS"). Ramos, 35 S.W.3d at 725-26. The plaintiffs alleged that TDPS failed to post warning signs concerning the dangers presented by the numerous inexperienced, dangerous, and unsafe drivers in the area. Id. at 732-33. The plaintiffs argued specifically that different or additional items, such as a safe waiting room, separate testing and parking areas away from general public, and bumper stops or other barriers in parking spaces should have been provided. Id. The Ramos court held the plaintiffs' allegations were complaints that the design of the parking lot itself was defective, not that the condition of the parking lot, as constructed in accordance with existing designs, was defective, "i.e., there [was] no complaint that the parking surface or current bumpers [were] themselves defective, rather the complaint is that different or additional items should have been provided." Id. Therefore, this Court held that TDPS retained its sovereign immunity under the discretionary-function exception. Id.

The cases on which the University relies are comparable to the facts here. De Luna specifically complains that the University negligently created a dangerous condition on its premises that it failed to warn about, reduce, or eliminate, and that the University failed to provide a reasonably safe area in which to walk. Specifically, De Luna's expert testified that the raised basketball court was not defectively constructed or maintained. Rather, he opined that the University should not have placed the graduates' seating on a raised platform and, alternatively, that the University should have used warning signs and marking tape to delineate the change in elevation. There is no complaint that the raised basketball floor or the mat were themselves defective; rather, the complaint is that different or additional items should have been provided. The configuration of the flooring had been completed before the day on which De Luna fell. There is no law that requires the University to design or configure the raised basketball court and mat in a particular manner. Such decisions, which are effectively decisions regarding the design of the floor and pavilion, were within the discretion of the University. See Cortez v. Weatherford Indep. Sch. Dist., 925 S.W.2d 144, 149-50 (Tex. App.--Fort Worth 1996, no writ) (design decision not to equip school bus with stop arm was exercise of discretionary powers, and sovereign immunity was not waived); Johnson v. Tex. Dep't of Transp., 905 S.W.2d 394, 397-98 (Tex. App.--Austin 1995, no writ) (stop sign placement was design decision shielded by sovereign immunity); Maxwell v. Tex. Dep't of Transp., 880 S.W.2d 461, 463 (Tex. App.--Austin 1994, writ denied) (design of roads and bridges, including installation of safety features such as guard rails and barricades, was not subject of Act's waiver of sovereign immunity); Mitchell, 855 S.W.2d at 745 (design decisions made by city are discretionary and therefore immune); Shives v. State, 743 S.W.2d 714, 716 (Tex. App.--El Paso 1987, writ denied) (decisions not to place traffic light at intersection and not to reduce speed limit were shielded by sovereign immunity). Accordingly, we hold that because the University's raised basketball court configuration was the result of discretionary decisions, the University retained immunity under section 101.056 of the TTCA.

We sustain the University's first point of error.

Summary Judgment

Given our disposition that the University has immunity from De Luna's claims, we need not address the University's second point of error that the trial court erred by denying the University's motion for summary judgment because there was no evidence that there was a defective condition, or alternatively that the evidence conclusively established that no defective condition existed.

Conclusion

We vacate the order denying the University's plea to the jurisdiction and dismiss the suit for want of jurisdiction.



Tim Taft

Justice



Panel consists of Justices Taft, Alcala, and Bland.