Thurman v. Harris County (Tex.App.- Houston [1st Dist.] Jun. 11, 2009)(Hanks)
(
TTCA, ferry drowning, plea to the jurisdiction improperly granted)
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC
FOR FURTHER PROCEEDINGS:   
Before Judge Wilson, Justices Hanks and Bland. Opinion by
Justice George C. Hanks, Jr.
01-07-00235-CV Joe Thurman, Individually, And As Sole Heir of the Estate of Amanda Rene
Thurman v. Harris County, Texas, As a Local Governmental Unit of the State of Texas
Appeal from 269th District Court of Harris County
Trial Court Judge:
The Honorable John T. Wooldridge  
Trial Court Cause No. C-200551860
--------------------------------------------------------------------------------

MEMORANDUM OPINION
  
Joe Thurman, individually and as sole heir of the estate of Amanda Rene Thurman, sued Harris
County, Texas (“the County”) after his daughter drowned when the car in which she was riding drove
off the Lynchburg Ferry. The trial court granted the County’s plea to the jurisdiction and dismissed
Thurman’s case. In three issues, Thurman contends that the trial court erred in dismissing the case
because (1) it has concurrent jurisdiction over this case under federal maritime law, (2) appellant
should have been given the opportunity to formally invoke the federal “saving to suitors” clause,  28
U.S.C. § 1333. and (3) it improperly rendered fact findings pertaining to whether the County was
immune from Thurman’s suit under the Tort Claims Act (“the Act”)  Tex. Civ. Prac. & Rem. Code §§
71.001–71.012 (Vernon 2008).

We affirm the order in part, reverse it in part, and remand for further proceedings.  

Background  
                                        
The parties submitted no evidence, and our facts thus come from Thurman’s firstamended petition,
viewed in light of his intent and construed liberally in favor ofjurisdiction. See Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 446(Tex. 1993); City of Sugarland v. Ballard, 174 S.W.3d
259, 263 (Tex.App.—Houston [1st Dist.] 2005, no pet.).
  
At approximately 5:00 a.m. on September 19, 2004, Amanda Thurman was a passenger in a car
driven by David Stokely. According to Thurman’s petition, Stokely’s car drove onto the Lynchburg
Ferry where there was no watchman, deckhand, able seaman, or other person present to direct
Stokely in parking his vehicle on the ferry. Due to the lack of an attendant, poor lighting and the
absence of any substantial, visible barrier at the far end of the ferry, Stokely’s car drove or rolled off
the ferry and into the waters of the Houston Ship Channel. The only barrier at the far end of the
ferry to prevent a vehicle from driving or rolling off into the water was a small wire cable,
approximately 1/4 inch in diameter, with enough slack that it allowed Stokely’s car to slide under the
cable and into the water. No warning or other barrier was present. Amanda Thurman was unable to
escape and drowned.
  
Thurman sued the County for damages arising from Amanda’s death. The County is identified in the
petition as a local governmental unit of the State of Texas and as the owner of the Lynchburg Ferry
that operates ferry boat service in the navigable waters of the State of Texas. In his pleadings,
Thurman concedes that the County is generally immune from suit under the Texas wrongful death
statute.  
                                        Tex. Civ. Prac. & Rem. Code §§ 71.001, et. seq. (Vernon 2008).

Nevertheless, he argues that the plain language of Section 101.021(2) of the Act waives the County’
s immunity in this case because he has alleged claims for personal injury and death caused by a
condition or use of tangible personal or real property by the County when a private person would
have been liable for these alleged acts and omissions under Texas
law.                                                  

While the Texas Tort Claims Act also contains a limited waiver of sovereign immunity for claims for
“Premise and Special Defects,” Thurman’s petition does not contend that that waiver applies in this
case, nor does he raise this issue on appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022
(Vernon Supp. 2008).

Tex. Civ. Prac. & Rem. Code Ann. §101.021(2) (Vernon 2005). Thurman’s petition also references
two prior occasions when motor vehicles drove or rolled off of the far end of the Lynchburg Ferry
and into the water.

  The County filed a plea to the jurisdiction asserting that the Thurman’s allegations do not waive its
immunity to this suit. The County’s plea also alleged, without evidentiary support, that Stokely was
currently incarcerated “for the crime of manslaughter in connection with this incident.”

  After considering the County’s plea and Thurman’s response,  
                                         
The record does not indicate that the parties submitted any evidence to the trial court during the
hearing on the plea to the jurisdiction. After the hearing, Thurman submitted two newspaper
articles—one describing the incident in question and another describing similar incidents aboard the
ferries. The record does not reflect whether Harris County objected to the submission of these
articles. The trial court’s dismissal cites only to statements of fact made in the parties’ various
pleadings.

the trial court ruled that it lacked jurisdiction because (1) a state district court has no jurisdiction to
hear a maritime case when the incident occurred on a vessel in navigable waters and (2) under
maritime law, an invitee or a licensee is prohibited from asserting a claim of unseaworthiness against
a vessel owner. As a result, the trial court dismissed Thurman’s suit for lack of subject matter
jurisdiction. This appeal followed.
                
Standard of Review for Jurisdictional Challenges
  
“A party may contest a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction.” Tex.
Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A person may appeal an order that
grants or denies a plea to the jurisdiction by a governmental unit. Tex. Civ. Prac. & Rem. Code §§
51.104(a)(8), 101.001(3)(D) (Vernon 2008); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835,
841 (Tex. 2007). We review a trial court’s order granting or denying a plea to the jurisdiction de
novo. Hoff v. Nueces County, 153 S.W.3d 45, 48 (Tex. 2004). When reviewing such an order, “we
consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue,
the evidence submitted by the parties.” Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d
864, 868 (Tex. 2001). Here, the parties did not submit any evidence.  
                                        
The record reflects that Thurman attempted to seek discovery, but the County objected to each
discovery request, asserting that, because there was no waiver ofimmunity, it need not respond to
any of the discovery requests.

Therefore, we look solely to the allegations in Thurman’s pleadings.

   A plea to the jurisdiction challenges a trial court’s authority to determine the subject matter of the
cause of action, but without defeating it on the merits. City of Houston v. Northwood Mun. Util. Dist.
No. 1, 73 S.W.3d 304, 308 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Bland Indep.
Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). While the underlying claims may form the
context in which a plea to the jurisdiction is raised, the purpose of the plea is not to preview or delve
into the merits of the case, but to establish the reason why the merits of the underlying claims need
not be reached. Id.

  In a plea to the jurisdiction, “the pleader must allege facts that affirmatively demonstrate the court’
s jurisdiction to hear the cause.” City of Houston v. Rushing, 7 S.W.3d 909, 913 (Tex. App.—
Houston [1st Dist.] 1999, pet. denied). In reviewing a jurisdictional ruling, we construe the pleadings
liberally in favor of the plaintiff, look to the pleader’s intent, and accept factual allegations as true.
Miranda, 133 S.W.3d at 226; Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.
1993). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.
Miranda, 133 S.W.3d at 228. If the evidence creates a fact question regarding a jurisdictional issue,
then the trial court should not grant the plea until the fact issue is resolved. Id. at 227-28. If the
relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the
trial court should rule on the plea as a matter of law. Id. at 228.

  A trial court’s ruling on a plea to the jurisdiction presents a legal question which we review de
novo. Northwood, 73 S.W.3d at 308. Questions involving the application of the principles of
sovereign and governmental immunity and a party’s standing to bring an action are the proper
subjects of a plea to the jurisdiction. See Brown v. Todd, 53 S.W.3d 297, 300–02 (Tex. 2001).

Jurisdiction Over Maritime Claims and the “Savings to Suitors” Clause

  The trial court found that it did not have subject matter jurisdiction over Thurman’s claims because
they arose from an occurrence on a vessel within navigable waters, and because Thurman did not
invoke in his petition the “savings to suitors” clause under maritime law for a state court to have
jurisdiction over maritime claims.  
                                        This clause, found in Section 1333 in Title 28 of the United States Code,
concernsthe choice of the law to be applied in admiralty and maritime cases: maritime law orstate
law. Section 1333 provides in pertinent part that: The district courts shall haveoriginal jurisdiction,
exclusive of the courts of the States, of:



                                        (1)       Any civil case of admiralty or maritime, saving to suitors inall cases
all other remedies to which they are otherwiseentitled.



                                        (2)       Any prize brought into the United States and all proceedingsfor the
condemnation taken as prize.



                            28 U.S.C. § 1333 (emphasis added).


Close The trial court found that the federal district courts have exclusive jurisdiction over Thurman’s
claims and that maritime law regarding claims against a vessel’s owner for seaworthiness preempted
and applied to bar Thurman’s state law claims. The trial court erred in reaching these conclusions.

  We find no support for the proposition that a plaintiff must affirmatively plead the “savings to
suitors” clause before a state court has jurisdiction of a claim under maritime law, either in case law
or under the Texas Rules of Civil Procedure. As federal and state courts have recognized, maritime
law does not affect a state court’s subject matter jurisdiction over the action, but instead prescribes
the substantive law governing the state court action. Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d
916, 919–20 (Tex. 1993). Pursuant to the federal “savings to suitors” clause, state courts have
concurrent jurisdiction with the federal courts over maritime actions, but are constrained by the
‘reverse-Erie’ doctrine which requires that the substantive remedies afforded by the states conform
to governing maritime standards. Id. at 920 (citing 28 U.S.C. § 1333). Accordingly, the trial court
erred in holding that, because Thurman failed to expressly invoke the “savings to suitors” clause in
his petition, it lacked subject matter jurisdiction to hear this case.  

  The trial court also erred in finding that maritime law rather than state law applied to Thurman’s
claims, because the County waived the application of maritime law. Preemption affecting the parties’
choice of law, but not the choice of forum, may be waived if not raised in a timely manner. Id.; see
also Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 545–47 (Tex. 1991) (holding that, where
ERISA’s preemptive effect results in change of applicable law, as opposed to denial of state court
jurisdiction, preemption is affirmative defense that is waived if not pled in defendant’s answer).
Preemption is an affirmative defense. City of Mont Belvieu v. Enter. Prods. Operating, L.P., 222 S.W.
3d 515, 520 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Accordingly, whether maritime law
preempts state law under the “savings to suitors” clause in this case is a choice of law argument,
which may be waived if not raised in defendant’s answer. See id.; Gorman, 811 S.W.2d at 545–46.

  Here, the record indicates that the County failed to timely raise the issue of the preemption of
maritime law under the “savings to suitors” clause. Accordingly, the trial court erred in concluding
that maritime law regarding claims against a vessel’s owner for seaworthiness applied to Thurman’s
claims. The trial court erred in holding that it did not have jurisdiction over this case on these
grounds, and we sustain Thurman’s first issue.  
                                        Because the trial court has concurrent jurisdiction over maritime matters
and shouldnot have dismissed Thurman’s suit on that basis alone, we need not addressThurman’s
second issue concerning whether the court erred by not giving him theopportunity to formally invoke
the “savings to suitors” clause.


Close Next, we determine whether the trial court had jurisdiction under state law.

Governmental Immunity

  Absent an express statutory waiver, governmental immunity protects political subdivisions of the
State from suit. See Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.
2001), overruled on other grounds by Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217
(Tex. 2004). Governmental immunity inures to the benefit of a municipality insofar as the municipality
engages in the exercise of governmental functions, except when that immunity has been waived.
Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 840 (Tex. 2000).

  Governmental immunity from suit defeats a trial court’s subject matter jurisdiction and is properly
asserted in a plea to the jurisdiction. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.
1999). Generally, a party suing a governmental entity must establish consent to sue by reference to
either a statute or express legislative permission. Nivens v. City of League City, 245 S.W.3d 470,
474 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Mo. Pac. R.R. v. Brownsville
Navigation Dist., 453 S.W.2d 812, 814 (Tex. 1970)).

  Although its primary ground for dismissing this suit was its application of maritime law, the trial
court peripherally considered the application of the Texas Torts Claims Act and found no waiver of
immunity.  
                                        In its order of dismissal, after finding that Thurman’s claims were barred
undermaritime law, the trial court also cited to Texas case law discussing the waiver ofimmunity
under the Texas Torts Claims Act:



                                        It is not this Court’s duty to declare whether one form of protectionis more
adequate than another. The Court must merely determine thereasonableness of the provided
precaution. Thus, although the cablearguably gave rise to a possible injury which could have
beenprevented by another type of protective barrier, the courts haveindicated that a governmental
entity’s use of one form of propertyover another does not necessarily give rise to liability.
Accordingly,the ferry cannot be found to have used unreasonable care bysupplying a wire rope
cable as opposed to a steel bar or concreteguards.



(Citations omitted.)


Close The parties have briefed the issues concerning the application of the Act to the allegations of
this case. Accordingly, we consider the application of the Act to Thurman’s claims.

  Fact Findings

  Thurman contends that the trial court erred in making the following fact findings pertaining to
Thurman’s claims under the Act: that (1) the Lynchburg Ferry’s use of 1/4" cable was a reasonable
barrier to keep vehicles on the Ferry from driving or rolling into the water, and (2) Stokely, the
driver, had a blood alcohol level of 0.15 and steered his vehicle off of the Ferry into the Houston
Ship Channel. We agree.

  No discovery or other evidence was before the court to evaluate the reasonableness of the barrier
in place or Stokely’s level of intoxication, if any, at the time of the incident. Accordingly, there was no
evidence in the record to contradict the allegations in Thurman’s pleadings, and the trial court’s
findings on these issues are unsupported by the pleadings or the evidence before it.

  We sustain Thurman’s third issue and now examine the issue of whether the County has waived its
immunity under the Act for Thurman’s claims.

  Waiver of Immunity

  The County is a governmental entity entitled to sovereign immunity. However, under the Act, a
state entity can waive its sovereign immunity under limited circumstances. The Act does not abolish
sovereign immunity, and we must look to the terms of the Act to determine the scope of its waiver.
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). Specifically, the Act waives
sovereign immunity 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 § 101.021(2) (Vernon 2005).

  “Texas courts have long struggled to define the limits of ‘use’ and ‘condition’ which serve to waive
immunity under the Texas Tort Claims Act.” Tex. State Technical College v. Beavers, 218 S.W.3d
258, 261 (Tex. App.—Texarkana 2007, no pet.). If a claim alleges a condition or use of tangible
personal property, the plaintiff must allege that the property did more than merely furnish the
condition that makes the injury possible—the plaintiff must allege that the property was a direct
factor in causing the injuries. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.
2d 339, 343 (Tex. 1998). Allegations of failure to use or non-use of property are not actionable
under the Act. See Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587–88 (Tex. 2001)
(distinguishing claims involving failure to use, or non-use of property, which do not waive sovereign
immunity, from claims involving condition or use of tangible personal property, which do effect
waiver); LeLeuax v. Hamshire-Fannett Indep. Sch. Dist., 835 S.W.2d 49, 51 (Tex. 1992) (where
student injured herself by jumping into rear door of an empty bus that had been parked for some
time, bus was not in “use” at the time of injury and thus immunity not waived). In addition, a
contention that better or safer property, such as that with a “more effective safety feature” might
have been provided is not sufficient to waive immunity because that claim is construed as one of
non-use rather than “use.” Tex. A & M Univ. v. Bishop, 156 S.W.3d 580, 584 (Tex. 2005). Similarly,
“design decisions” are discretionary and exempt from the Act’s waiver of immunity. Tex. Civ. Prac. &
Rem. Code Ann. § 101.056 (Vernon 2005); see, e.g., Univ. of Texas Health Sci. Center at San
Antonio v. Bruen, 92 S.W.3d 24, 26–28 (Tex. App.—San Antonio 2002, pet. denied) (where plaintiff
slipped and fell on ramp that did not have handrails, university was immune from plaintiff’s claims
regarding design and failure to use).

Was Amanda Thurman injured by a “use” or “condition” of government property?



   On appeal, relying on the holdings in Lowe v. Texas Tech Univ., 540 S.W.2d. 297 (Tex. 1976),
Robinson v. Cent. Tex. MHMR Ctr., 780 S.W. 2d 169 (Tex. 1989), and Kerrville State Hosp. v. Clark ,
923 S.W. 2d. 582 (Tex. 1996), Thurman argues that his allegations of the lack of an integral safety
component are sufficient to state a claim that Amanda was injured by a use or condition of state
property under the Act. Thurman contends that, under the Act, the County can waive its immunity if
it provides property—the Lynchburg Ferry—that lacks an integral safety component, and the lack of
that safety component led to a plaintiff’s injury and damages. Thurman’s reliance on these cases is
misplaced.          As Texas courts have held, an allegation that government property lacked an
integral safety component may be sufficient to waive sovereign immunity under the Act only under
very narrow circumstances. See Bishop, 156 S.W. 3d at 584; Beavers, 218 S.W. 3d at 264. As
Thurman correctly notes, waiver of immunity due to the lack of an integral safety component is
limited to claims in which a plaintiff alleges that a state actor has provided property that lacks an
integral safety component and that the lack of this component led to the plaintiff’s injuries. Beavers,
218 S.W.3d at 264. However, to show a waiver of immunity, the plaintiff must allege that the “integral
safety component” is entirely lacking rather than merely inadequate. Stated conversely, supplying
safety components that are inadequate, but not entirely lacking, does not constitute a use of
personal property as to waive immunity.” Id. (emphasis added; citations omitted).  
                                        Texas courts have also held that merely alleging that the property lacked
an integralsafety component does not waive immunity. Instead, there must be allegationssupporting
the conclusion that the safety component is integral to the property thatcaused the injury. Bonham
v. Tex. Dep’t of Crim. Justice, 101 S.W.3d 153, 160(Tex. App.—Austin 2003, no pet.) (holding that
plainitff’s allegation thatsurveillance cameras were an integral safety component of prison restrooms
was notsufficient to waive immunity because court was “not persuaded by [plainitiff’s]contention that
surveillance equipment was an integral safety component of a men’sbathroom” because, among
other things, the petition did not allege “failure of anyessential purpose or use of the facility’s men’s
restroom” as a result of the lack ofsurveillance cameras).


Close           A review of Thurman’s pleading reveals that the main thrust of his petition relates to the
alleged inadequacy of existing safety components for nighttime operation of the ferry. In his petition,
Thurman alleges that “both of Harris County’s Lynchburg Ferries lacked the following integral safety
components for nighttime operation:

(a)Adequate lighting to prevent automobiles from driving or rolling off of the end of the vessels into
the water in the dark; and



(b)Safety barriers or guard rails to prevent automobiles from driving or rolling off of the end of the
vessels into the water in the dark.”

However, with respect to his allegation about the lighting, Thurman’s petition goes on to describe in
multiple ways how Amanda’s death was caused by “inadequate” and “poor” lighting on the ferry.  
                                         The petition makes the following allegations regarding the lighting on the
ferry insupport of Thurman’s claims for damages:



                                        “Due to . . . . poor lighting, . . . when the vehicle pulled forward onto
theferry it drove or rolled off the other end. . . .”



                                        “Although the county provided ferry services at night, in the dark, there
wasinadequate light to prevent vehicles from driving or rolling off the end of theferry and into the
water.”



                                        “Operation of the ferry service at night, in the dark, without adequate
lightingto prevent vehicles from driving or rolling off the end of the ferry and into thewater.


Close Likewise, with respect to his allegation about safety barriers and guard rails, Thurman
appears to allege that these were needed to prevent Amanda’s death because the present barrier
was inadequate —not because there was entirely no barrier present. As Thurman’s petition further
alleges, “The only barrier at the far end of the ferry to prevent a vehicle from driving or rolling off
into the water was a small, wire cable, approximately 1/4 inch in diameter, with enough slack that it
allowed the Stokely vehicle to move under the cable into the water. . . . No other warning or barriers
were present.”(emphasis added)                                                  The petition also makes the
following allegations regarding the barrier on the ferryin support of Thurman’s claims for damages:



                                        “There was no adequate, visible barrier on the “water end” of the ferry
toprevent vehicles from driving or rolling off the end of the ferry and into thewater.”



                                        “Operation of a ferry boat with no adequate, visible barrier on the“water
end” of the ferry to prevent vehicles from driving or rolling offthe end of the ferry and into the water.”


Close Such pleadings do not waive the County’s statutory immunity to suit in this case. See Bishop,
156 S.W. 3d at 584; Beavers 218 S.W. 3d at 264.  

  Nevertheless, citing State v. Tennison 509 S.W.2d 560 (Tex. 1974), and Miranda, Thurman
argues that the County’s immunity should be waived because he has alleged that the County had
notice of several prior similar accidents occurring on the ferry before Amanda’s death. Thurman’s
reliance on these cases for his argument is also misplaced. These cases, unlike the case before us,
involved allegations of premises liability and waiver of immunity under 101.022 of the Act concerning
“Premises and Special Defects.” In this case, as noted above, Thurman has not brought premises
liability claims against the County nor has he sought to waive immunity under this section of the Act.

  Finally, however, we note that Thurman’s petition alleges that the County has waived its immunity
under the Act because the Ferry “is tangible property, which was defective” by not being equipped
with certain additional safety devices and the County was negligent in operating the ferry at night
without the use of these devices. It is an established principle that, if a plaintiff’s pleadings do not
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable
defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the
opportunity to amend. Miranda, 133 S.W.3d at 226–27. We note that, since the City has refused to
respond to Thurman’s discovery requests on the grounds that it was immune, it is not clear from the
record that Thurman cannot prove any jurisdictional facts which might waive immunity in this case.
Depending on the content of the County’s discovery responses, these jurisdictional facts may state
a claim under the Act, and the jurisdictional defect we have noted may be curable. County of
Cameron v. Brown, 80 S.W.3d 549, 558–59 (Tex. 2002). Thurman’s petition is worded in such a way
that it is an open question whether he is alleging that the cable in question was in fact a barrier, and
an inadequate one at that, or whether he is actually alleging that a barrier is an integral safety
component of the ferry, and that the ferry in question completely lacked such a barrier.  
                                         For example, the petition alleges that, “[d]ue to . . . the absence of any
substantial,visible barrier, . . . when the vehicle pulled forward onto the ferry it drove or rolledoff the
other end. . . .”


Close Similarly, Thurman’s petition alleges that the ferry was the location of the accident and
appears to allege that Amanda’s death was the result of the County’s use or operation of motor-
driven equipment.                                                  The petition includes statements such as



                            “Harris County, as the owner and operator of the Lynchburg Ferry, was negligent
in . . .



                            Operation of a ferry boat with no adequate visible barrier on the ‘water end’ of
theferry to prevent vehicles from driving or rolling off the end of the ferry and into thewater; . . .



                            Operation of the ferry service at night, in the dark, without any flagmen or
otherpersonnel to direct the movement of vehicles and passengers onto the ferry vesselsto prevent
vehicles from driving or rolling off the end of the ferry and into the water;and . . .



                            Operation of the ferry with no physical barrier to prevent vehicles from driving
orrolling off the end of the ferry and into the water. . . .



                            If a private person had operated a ferry in the same manner and in the same
conditionas existed on the Lynchburg Ferries at the time of the incident made the basis of thissuit as
described above, such private person would be liable to Plaintiff for hisdaughter’s death under
Texas law.”                                       


Close In such circumstances, we remand for further proceedings. Peek v. Equip. Serv. Co., 779 S.W.
2d 802, 804-05 (Tex. 1989); Brown, 80 S.W.3d at 558–59. Conclusion

  We hold that the trial court erred in dismissing Thurman’s suit for lack of jurisdiction under
maritime principles. We further hold that, to the extent that Thurman alleges that Amanda’s death
resulted from the use of an inadequate barrier or inadequate lighting aboard the Lynchburg Ferry,
the County is immune from this suit and the trial court did not have subject matter jurisdiction over
Thurman’s claims. However, because Thurman appears to allege, in the alternative, facts about the
County’s operation of motor-driven equipment and that no barrier existed (in contrast to an
inadequate one), and the County did not address these allegations in its jurisdictional plea or
special exceptions, we remand the cause for further proceedings.
                                                                                                                 
George C. Hanks, Jr.
                                                                
Justice

Panel consists of Justices Hanks, Bland, and Wilson.  
                                         
The Hon. Davie L. Wilson, retired Justice, Court of Appeals, First District of Texasat Houston,
participating by assignment.