Charlene Carter v. City of Galveston

Opinion issued November 20, 2008

Opinion issued

November 20, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-07-01010-CV

CHARLENE CARTER, Appellant

V.

CITY OF GALVESTON, Appellee

On Appeal from the 56th District Court

Galveston County , Texas

Trial Court Cause No. 07CV0705

MEMORANDUM OPINION

Charlene Carter appeals

the trial court’s dismissal order, rendered on its granting of the City of Galveston’s jurisdictional plea. Carter contends that the trial court erred in granting Galveston’s plea because a premises defect on property owned by Galveston caused Carter’s

injuries, a claim from which Galveston is not immune. Carter further contends

that the trial court improperly considered evidence submitted by Galveston. We conclude that the trial court properly granted the plea and therefore affirm.

Background

In August 2006, after her

employer called a fire drill, Carter exited the University of Texas Medical Branch building and crossed the street to an adjoining sidewalk near 19th Street and Harborside Drive in Galveston. Carter tripped and fell over a pipe that

protruded approximately six inches above the sidewalk. She broke her left

wrist and incurred multiple bruises. She sued Galveston, alleging that it was

negligent in failing to maintain the sidewalk.

Galveston answered and

filed a plea to the jurisdiction, attaching evidence showing that the sidewalk

on which Carter was injured was controlled and managed by the Port of Galveston, not the city. The evidence includes an affidavit from Lloyd Rinderer, the

risk manager and assistant city manager of the city, in which he stated that Galveston had leased the sidewalk where Carter fell to the Board of Trustees of the

Galveston Wharves. Galveston also attached an affidavit from Barbara Lawrence,

the City Secretary, who verified (1) a copy of an “Ordinance of the City of

Galveston” which transferred the Port of Galveston to the Board of Trustees of

the Galveston Wharves as a separate entity, and (2) a copy of Article XII of

the City Charter of the City of Galveston which designates the Galveston

Wharves as a separate entity that controls the Port of Galveston and authorizes

its Board of Trustees to make such expenditures for the maintenance and repair

of the entire dedicated area.

In her response to Galveston’s plea, Carter contends that Galveston “could not, in the exercise of its

ownership, deviate in any respect from the public use of the property,” and

therefore, Galveston remained in control of the sidewalk and easement. The

trial court granted the plea.

Consideration of Evidence

Carter contends that the trial court

improperly considered Galvestons’s evidence in the plea to the jurisdiction.

She points to the Lawrence affidavit with Chapter XII of the City Charter, the

Rinderer affidavit, and a letter from Zurich Insurance Company which Galveston submitted in support of its plea. In considering the merit of a plea to the

jurisdiction, however, a trial court may consider evidence, and is not limited

to the plaintiff’s allegations. Tex. Dep’t of Parks and Wildlife v.

Miranda , 133 S.W.3d 217, 223 (Tex. 2004).

Here, the evidence that the trial

court considered addresses the issue of whether the site of Carter’s accident

was within the control of the City of Galveston. If Galveston did not control

the property, then its sovereign immunity is not waived. See County of

Cameron v. Brown , 80 S.W.3d 549, 554 (Tex. 2002) (holding that, to assert a

premises claim, a plaintiff must show that the defendant owned, occupied, or

controlled the premises where the injury occurred). The trial court therefore

did not err in considering Galveston’s evidence. Miranda , 133 S.W.3d

at 223 (holding that trial court may consider evidence raised to the extent

it implicated trial court jurisdiction).

Plea to the Jurisdiction

Carter contends that Galveston is not immune from suit because she alleges a special, or at minimum, a regular

premises defect of city-owned property, a claim for which the Legislature has

waived sovereign immunity. See T ex.

Civ. Prac. & Rem. Code Ann. § 101.021 ( Vernon 2005) . In such a case, the trial court has

jurisdiction to resolve the claim. Galveston responds that it does not control

the Galveston Wharves and the sidewalks within it and thus it is immune from

suit.

A. Standard of Review

In a suit against a governmental

unit, the plaintiff must affirmatively demonstrate the court’s subject-matter

jurisdiction by alleging a valid waiver of immunity. Dallas Area

Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003). To determine

whether the plaintiff has met that burden, 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. Id. (quoting Tex. Natural Resource Conservation Comm’n v. White ,

46 S.W.3d 864 , 868 (Tex. 2001)). We review a trial court’s ruling on a

jurisdictional plea de novo, construing the pleadings in the plaintiff’s favor

and looking to the pleader’s intent. Miranda , 133 S.W.3d at 226 ; Tex. Nat. Resource Conservation Comm’n v. IT-Davy ,

74 S.W.3d 849, 855 (Tex. 2002).

B.

Analysis

The duty owed by a governmental

entity for a premises defect is “the duty that a private person owes to a

licensee on private property.” Tex.

Civ. Prac. & Rem. Code Ann. § 101.022 ( Vernon 2005) .

In both a regular premises defect case and a special defect case, the duty of

care “arises only for an occupier with control of the premises.” Gunn v.

Harris Methodist Affiliated Hosps. , 887 S.W.2d 248, 251 (Tex. App.––Forth

Worth 1994, writ denied).

Carter does not dispute that the

sidewalk was within the Port of Galveston, an area controlled by Galveston

Wharves. Carter contends, rather, that because Galveston retained ownership of

the Galveston Wharves, it is still liable for any injuries due to a premises

defect that occurred there. We disagree. “Ownership of property is not

synonymous with control” over it. De Leon v. Creely , 972 S.W.2d 808,

812 (Tex. App.––Corpus Christi 1998, no pet.). Rather, “an owner or occupier”

of a premises is defined in terms of a possessor. Gunn , 887 S.W.2d at

250 (citing Restatement (Second) of Torts § 328E (1965)). A possessor of land

is one in occupation of the land with intent to control it, one formerly in

occupation of the land with intent to control it, if no other person has

subsequently occupied it with intent to control it, or one entitled to

immediate possession, if no one else actually possesses the land. Id . at 251.

Although the City of Galveston owns the Port of Galveston roadways and facilities, these properties “have been

set apart as a separate utility known as the Galveston Wharves.” City of Galveston v. Hill , 519 S.W.2d 103, 103 (Tex. 1975). The Galveston Wharves is

established as a separate governmental unit that has sovereign immunity. Lake

Charles Harbor & Terminal Dist. v. Bd. of Trustees of Galveston Wharves ,

62 S.W.3d 237, 246 (Tex. App.––Houston [14th Dist.] 2001, pet. denied). Galveston submitted evidence showing that power was vested in the Galveston Wharves Board

of Trustees to manage, maintain, and control the Galveston Wharves, including

all oversight over any additions, improvements, or extensions that are made. See

also Hill , 519 S.W.2d at 105 (noting that the Board of Trustees of the

Galveston Wharves has been explicitly vested with governmental functions).

Carter did not submit any controverting evidence.

Although Galveston retained ownership

of the Galveston Wharves, it did not retain the requisite control over the

premises that could invoke a duty of care. The Galveston Wharves, not the City

of Galveston, was responsible for maintaining the sidewalk. Because the City

of Galveston did not have control over the premises, it could not be liable as

a private person and thus, its governmental immunity is not waived. See T ex. Civ. Prac. & Rem. Code Ann.

§ 101.022 ( Vernon 2005) .

Conclusion

We hold that the City of Galveston established governmental immunity in its plea to the jurisdiction, and thus the

trial court properly granted the plea. We further hold that the trial court did

not abuse its discretion in considering the evidence proffered in support of

the plea. Accordingly, we affirm the order of the trial court.

Jane Bland

Justice

Panel consists of Justices Jennings,

Hanks, and Bland.