Opinion

Affirmed in Part, Reversed and Remanded in Part, Reversed and Rendered

in Part, and Majority and Dissenting Opinions filed June 15, 2010.

In The

Fourteenth Court of

Appeals

___________________

NO. 14-09-00244-CV

___________________

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant

V.

ZULEIMA OLIVARES, INDIVIDUALLY AND AS THE

REPRESENTATIVE OF THE ESTATE OF PEDRO OLIVARES, JR., AND PEDRO OLIVARES,

INDIVIDUALLY, Appellees

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 2008-19417

O P I N I

O N

Texas Department of Transportation (“TxDOT”) presents this

accelerated appeal from the trial court’s denial of its plea to the

jurisdiction. In its plea, TxDOT challenged the trial court’s subject-matter

jurisdiction over claims brought by Zuleima Olivares, individually and as

representative of the estate of Pedro Olivares, Jr., and Pedro Olivares

(collectively, “appellees”).

TxDOT argues it is entitled to sovereign immunity relative to

all of appellees’ claims. In a separate appeal, Fort Bend County Toll Road

Authority (“FBCTRA”), TxDOT’s co-defendant in the underlying lawsuit, also

challenges the trial court’s denial of its plea to the jurisdiction. For

reasons outlined below, we affirm in part, reverse and render in part, and

reverse and remand in part.

I. Background

On January 1, 2007, Pedro Olivares, Jr. and his wife were

traveling westbound on the Westpark Tollway (“Tollway”) near Dairy Ashford Road

in Harris County when they were struck by a vehicle driven by Michael Ladson. According

to appellees, Ladson was traveling on the Tollway in the wrong direction after

entering the westbound lanes near Gaston Road in Fort Bend County,

approximately eight and one-half miles from the accident scene. Gaston Road

intersects with FM 1093, a state road controlled by TxDOT, which merges into

the Tollway. Pedro Olivares, Jr. sustained severe bodily injuries resulting in

death.

In their second amended petition, appellees assert claims

against TxDOT, Fort Bend County, FBCTRA, Harris County, Harris County Toll Road

Authority (“HCTRA”), Brown and Gay Engineers, Inc., and Michael Stone

Enterprises, Inc. The Estate of Michael Ladson has been designated as a

responsible third party. Appellees allege TxDOT is liable for certain premise

defects and negligent acts or omissions involving the intersection at FM

1093-Gaston Road and the Tollway. Appellees also contend TxDOT is liable under

a joint-enterprise theory.

TxDOT filed a combined plea to the jurisdiction and

no-evidence motion for summary judgment, which was later supplemented. [1] Appellees subsequently

amended their petition twice and filed a response to TxDOT’s plea. On February

19, 2009, the trial court signed an order denying TxDOT’s combined plea and

motion. TxDOT now appeals the trial court’s denial of its plea to the

jurisdiction.

II. Interlocutory Appeal and Standard of Review

We have statutorily-conferred authority to review the trial

court’s interlocutory order denying TxDOT’s plea to the jurisdiction. See

Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (a)(8) (Vernon 2008) (A party may

appeal an interlocutory order that “grants or denies a plea to the jurisdiction

by a governmental unit . . . .”). Appellate courts strictly construe statutes

authorizing interlocutory appeals. See State v. Fiesta Mart, Inc. , 233

S.W.3d 50, 54 (Tex. App.—Houston [14th Dist.] 2007, pet. denied). Subsection

51.014(a)(8) authorizes an appeal only when the trial court grants or denies a

plea to the jurisdiction. An appellate court must consider challenges to the

trial court’s subject-matter jurisdiction on interlocutory appeal, regardless of

whether such challenges were presented to or determined by the trial court.

See Waco Indep. Sch. Dist.

v. Gibson , 22 S.W.3d

849 , 850–51 (Tex. 2000). [2]

We review the trial court’s ruling on a plea to the

jurisdiction de novo . Tex. Dep’t of Parks & Wildlife v. Miranda ,

133 S.W.3d 217, 228 (Tex. 2004). In a plea to the jurisdiction, a party may challenge

either the pleadings or existence of jurisdictional facts. Id. at 226–27; see

also Rebecca Simmons & Suzette Kinder Patton, Plea to the

Jurisdiction: Defining the Undefined , 40 St. Mary’s L.J. 627, 651–52 (2009).

When a defendant challenges the plaintiff’s pleadings, the

court’s determination turns on whether the pleader has alleged facts sufficient

to demonstrate subject-matter jurisdiction. Miranda ,

133 S.W.3d at 226 . To make this determination, courts should glean the

pleader’s intent and construe the pleadings liberally in favor of jurisdiction.

Id. If the pleadings do not contain facts sufficient to affirmatively

demonstrate the trial court’s jurisdiction, but do not affirmatively demonstrate

incurable defects in jurisdiction, the issue is one of pleading sufficiency and

plaintiffs should be

afforded an opportunity to amend. Id. at 226–27. If the

pleadings affirmatively negate jurisdiction , a plea may be granted without allowing plaintiffs an opportunity

to amend. Id. at 227 . The opportunity to amend pleadings that are insufficient to establish,

but do not affirmatively negate, jurisdiction arises after a court determines

the pleadings are insufficient. White v. Robinson , 260 S.W.3d 463 ,

475–76 (Tex. App.—Houston [14th Dist.] 2008, pet. granted) (citing Tex.

A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835 , 839–40 (Tex. 2007)).

When a defendant challenges the existence of jurisdictional

facts, we consider relevant evidence submitted by the parties. Miranda ,

133 S.W.3d at 227 . We take as true all evidence favorable to the nonmovant and

indulge every reasonable inference and resolve any doubts arising from such

evidence in the nonmovant’s favor. Id. at 228 . If the relevant

evidence is undisputed or a fact question is not raised relative to the

jurisdictional issue, the trial court rules on the plea to the jurisdiction as

a matter of law. Id. If the evidence creates a fact question regarding

the jurisdictional issue, the trial court cannot grant the plea, and the fact

issue will be resolved by the fact finder. Id. at

227–28.

When resolution of an issue requires interpretation

of a statute, we review under a de

novo standard. Mokkala v. Mead , 178 S.W.3d

66, 70 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). In construing a statute, our objective is to determine

and give effect to the legislature’s intent. See Nat’l Liab. & Fire

Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must

ascertain that intent from the language the legislature selected and should not

refer to extraneous matters for intent not expressed in the statute.

Id. If the meaning of the statutory language is unambiguous, we adopt

the interpretation supported by the plain meaning of the

words. St. Luke’s Episcopal Hosp. v. Agbor , 952 S.W.2d 503, 505 (Tex.

1997).

III. Analysis

TxDOT contends the trial court lacks jurisdiction over appellees’

claims because they cannot demonstrate TxDOT’s sovereign immunity has been

waived. Disposition of whether immunity has been waived is governed by the

Texas Tort Claims Act (“TTCA”). See Tex. Civ. Prac. & Rem. Code

Ann. §§ 101 .001–.109 (Vernon 2005 & Supp. 2009).

A. Texas Tort Claims Act

Under our common law, sovereign or governmental immunity defeat

a trial court’s subject-matter jurisdiction. See Harris County v. Sykes ,

136 S.W.3d 635, 638 (Tex. 2004). The TTCA provides a limited waiver of

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 Ann. § 101.021 (Vernon 2005). For premise-defect claims,

the governmental unit generally “owes to the claimant only the duty that a

private person owes to a licensee,” unless the claim involves special defects

or “the duty to warn of the absence, condition, or malfunction of

[traffic-control devices] as is required by Section 101.060.” Id. §

101.022(a), (b) (Vernon 2005 & Supp. 2009).

However, there are certain exceptions to waiver of immunity

under the TTCA. There is no waiver when a claim arises from

(1) the failure of a governmental unit to

perform an act that the unit is not required by law to perform; or

(2) a 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.

Id. § 101.056

(Vernon 2005). “In other words, the State remains immune from suits arising

from its discretionary acts and omissions.” Tex. Dep’t of Transp. v. Garza , 70

S.W.3d 802, 806 (Tex. 2002). Similarly, under subsection 101.060(a), the

TTCA does not waive immunity as to claims arising from

(1) the failure of a governmental unit initially to

place a traffic or road sign, signal, or warning device if the failure is a

result of discretionary action of the governmental unit;

(2) the absence, condition, or malfunction of a

traffic or road sign, signal, or warning device unless the absence, condition,

or malfunction is not corrected by the responsible governmental unit within a

reasonable time after notice[.]

Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (a)(1) - (2) (Vernon 2005). “Under subsection

(a)(1), the State retains immunity for discretionary sign-placement

decisions.” State ex rel. State Dep’t of Highways and Pub. Transp. v.

Gonzalez , 82 S.W.3d 322 , 326–27 (Tex. 2002). “Under subsection (a)(2), the

State retains immunity as long as it corrects a sign’s defective [condition,

absence, or malfunction] within a reasonable time after notice.” Id.

B. TxDOT’s Duties Relative to the Tollway

TxDOT first contends that it had no legal duties relative to

the Tollway. TxDOT argues that certain evidence, which was submitted to the

trial court in support of other jurisdictional issues, establishes that it did

not own or control the Tollway during the relevant period of time. [3]

This argument was not raised in TxDOT’s plea to the jurisdiction, and, thus, appellees

did not present responsive evidence or argument in the trial court. In their

brief, appellees neither dispute the evidence referred to by TxDOT nor argue

they should be afforded an opportunity to file responsive evidence. Nevertheless,

assuming without deciding that TxDOT can stage an evidentiary challenge for the

first time on interlocutory appeal, TxDOT’s challenge is not meritorious because

the referenced evidence does not conclusively negate TxDOT’s responsibilities

relative to the Tollway.

In its brief, TxDOT explains that the Tollway crosses through

Harris County and Fort Bend County. Appellees allege that the accident

occurred in the Harris County segment. TxDOT argues it had no duty to

maintain, monitor, or operate the Harris County segment, but does not reference

any supporting evidence. Therefore, on this record, TxDOT’s evidentiary

challenge concerning the Harris County segment lacks merit.

As for the Fort Bend County segment, TxDOT refers to its agreement

with FBCTRA (“TxDOT-FBCTRA agreement”). The TxDOT-FBCTRA agreement provides

that FBCTRA is responsible for maintenance of the main lanes and ramps of the

Fort Bend County segment upon completion of the “Project.” [4]

However, TxDOT did not present any evidence indicating that the “Project” had

entered the post-completion stage at the time of the accident. [5]

The evidence does not conclusively negate TxDOT’s responsibilities relative to

the Fort Bend County segment. Accordingly, even if TxDOT may challenge the

evidence supporting the duty element of appellees’ Tollway-related claims for

the first time on interlocutory appeal, its challenge lacks merit on this

record. We also conclude that appellees’ pleadings are facially sufficient to

affirmatively plead TxDOT’s duty relative to the Tollway.

C. Claims Based on Traffic-Control Devices

TxDOT next challenges appellees’ claims concerning placement,

maintenance, and quality of traffic-control devices at or around the FM

1093-Gaston Road intersection. TxDOT generally argues that these allegations

involve exercise of discretion for which immunity is not waived under the TTCA.

1. Failure to Install Traffic-Control Devices

TxDOT challenges for the first time on appeal appellees’

allegation that it failed to install “non-discretionary” signs and devices

after receiving “notice” that such signs and devices were necessary. TxDOT

argues these claims are barred because they pertain solely to discretionary

acts. TxDOT also challenges appellees’ allegations that it designed but failed

to install warning flashers and cameras intended to monitor traffic for safety.

In City of Grapevine v. Sipes , the Texas Supreme Court considered

whether a city’s failure to install a traffic signal, after deciding to do so, fell

under the portion of subsection 101.060(a)(2) allowing claims to be brought

under the TTCA when the absence of a traffic-control device is not remedied

within a reasonable time after notice. 195 S.W.3d 689 , 692–95 (Tex.

2006). Construing subsection 101.060(a)(2) in light of subsection

101.060(a)(1), the court concluded that timing of implementation is

discretionary:

When the

City first installs a traffic signal is no less discretionary than whether

to install it. The timing of implementation could be affected by the

governmental unit’s balancing of funding priorities, scheduling, traffic

patterns, or other matters; to impose liability for the failure to timely

implement a discretionary decision could penalize a governmental unit for

engaging in prudent planning and paralyze it from making safety-related

decisions. This sort of planning and execution is precisely the type of

discretionary act for which the TTCA retains immunity. Thus, when subsections

(a)(1) and (a)(2) are read together, (a)(2) logically applies only to those

traffic signals that have already been installed.

Id. at 694.

Therefore, TxDOT retained discretion regarding when to install the

warning flashers. Although section 101.060 applies only to signs, signals, and

warning devices, this rationale likewise applies to TxDOT’s decision regarding

when to install the planned traffic-monitoring cameras because a governmental unit’s

plans regarding the safety features of a roadway are discretionary. See

State v. San Miguel , 2 S.W.3d 249, 251 (Tex. 1999) (per curiam)

(interpreting section 101.056).

In their pleadings, appellees do not specify the reason or

reasons why TxDOT failed to install these devices. Consequently,

appellees’ pleadings do not affirmatively demonstrate the trial court’s

jurisdiction over these claims. However, the allegations under consideration

do not affirmatively demonstrate incurable defects in the court’s

jurisdiction. Specifically, it is unclear whether TxDOT’s conduct involved negligent

implementation of a discretionary policy decision [6]

(e.g., construction workers negligently overlooked that construction plans

ordered installation of the devices on a certain date), for which immunity is

waived under the TTCA, or a discretionary policy decision (e.g., a decision to

postpone installation or the failure to set an installation date), for which immunity

is not waived. We also

cannot discern whether appellees are alleging that the absence of these items

caused a premise defect or simply failed to warn of an existing defect or make it

reasonably safe . [7]

A plaintiff is entitled to an opportunity to amend if additional facts can

overcome the governmental entity’s immunity from suit. See Miranda , 133

S.W.3d at 226–27; Koseoglu , 233 S.W.3d at 840 . Accordingly, we reverse

the trial court’s denial of TxDOT’s plea and remand for the trial court to

allow appellees a reasonable opportunity to amend their pleadings. See

Miranda , 133 S.W.3d at 226–27; see also Koseoglu , 233 S.W.3d at

839–40.

Finally, appellees’ petition does not affirmatively

demonstrate the trial court’s jurisdiction over their claim that TxDOT failed

to install “non-discretionary” signs and devices after receiving notice such

signs and devices were necessary. Appellees have not alleged facts and

circumstances rendering installation of the signs and devices

“non-discretionary.” [8]

Although we construe pleadings liberally in favor of jurisdiction, we refuse to

allow appellees to avoid the general rule that traffic-control device placement

is a discretionary governmental function by merely describing the act or

omission to be “non-discretionary.” Therefore, we reverse the trial court’s

order relative to this claim and remand for further proceedings after the trial

court allows a reasonable opportunity for appellees to amend their pleadings. See

Miranda , 133 S.W.3d at 226–27; see also Koseoglu , 233 S.W.3d at

839–40.

2. Traffic-Control Device Deficiencies

TxDOT also contends its immunity is not waived relative to appellees’

claims based on certain traffic-control devices that “allow” motorists to

travel in the wrong direction. In their petition, appellees allege the

Tollway/FM 1093 area near Gaston Road has confusing or misleading signs,

signals, and warning devices, inadequate barricades, and insufficient traffic

control. As a subset of this claim, appellees allege TxDOT negligently placed

warning signs on the wrong side of the road at or near the intersection.

Appellees allege these deficiencies constitute negligent implementation of

TxDOT’s policy to operate FM 1093 and the Tollway safely. Appellees also argue

that placement of warning signs on the wrong side of the road resulted in a

condition under subsection 101.060(a)(2).

It is well established that a governmental unit is not immune

from liability for an injury caused by a premise defect that was created

through negligent implementation of policy. See Mogayzel v. Tex. Dep ’t of Transp. , 66 S.W.3d 459 ,

465–66 (Tex. App.—Fort Worth 2001, pet. denied). A governmental unit’s negligence in

implementing a formulated policy, such as negligently constructing a designed gabion

wall, is not a discretionary function. 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). “[S] overeign immunity is preserved for the negligent

discretionary formulation of policy, but not for the negligent implementation

of the policy at the [operational/ministerial] level.” Guadalupe-Blanco River Auth. v.

Pitonyak , 84 S.W.3d 326,

342 (Tex. App. ¾ Corpus Christi

2002, no pet.). Further, a governmental unit does not relinquish its discretion

relative to roadway design by implementing a general policy to operate roads

safely. See Tarrant

County Water Control & Improvement Dist. No. 1 v. Crossland , 781 S.W.2d 427 , 433 (Tex.

App.—Fort Worth 1989, writ denied) (holding State’s alleged policy to “warn of

danger” did “not make the State liable for all possible failures to warn. The

State may still make specific policy decisions about the design of State

projects . . . .”), overruled on other grounds by City of

Dallas v. Mitchell , 870 S.W.2d 21, 23 (Tex. 1994). In other words, a general policy to build safe roads

does not expose a governmental unit to liability for every conceivable safety

deficiency under a negligent implementation of policy theory of recovery.

A “condition” under subsection 101.060(a)(2) is defined as

“something ‘wrong’ with the traffic sign or signal such that it would require

correction by the State after notice.” Garza , 70 S.W.3d at 807 ; see

also Sparkman v. Maxwell , 519 S.W.2d 852, 858 (Tex. 1975) (defining

“condition” as “either an intentional or an inadvertent state of being”). The

term also “refers to the maintenance of a sign or signal in a condition

sufficient to properly perform the function of traffic control for which it is

relied upon by the traveling public.” Lawson v. McDonald’s Estate , 524

S.W.2d 351, 356 (Tex. Civ. App.—Waco 1975, writ ref’d n.r.e.). “[I]n the

cases in which [the supreme court] has interpreted ‘condition’ in the context

of road signs and signals, [it has] found a waiver of immunity only in those

situations in which the sign or signal was either (1) unable to convey the

intended traffic control information, or (2) conveyed traffic control

information other than what was intended.” Garza , 70 S.W.3d at 807 ; see

also Gonzalez , 82 S.W.3d at 327 (“[S]ubsection [101.060](a)(2) requires the

State to maintain traffic signs in a condition sufficient to perform their

intended traffic-control function.”).

A ppellees’

contention that confusing and misleading signs, signals, and warning devices,

inadequate barricades, and insufficient traffic control “allow” drivers to

enter the Tollway in the wrong direction implicates the adequacy of devices

chosen by TxDOT, a discretionary design decision for which immunity is not

waived. See San

Miguel , 2

S.W.3d at 251 (“A court should not second-guess a governmental unit’s decision

about the type of marker or safety device that is most appropriate.”); Tex. Dep’t of Transp. v. Bederka , 36 S.W.3d 266, 271 (Tex. App.—Beaumont

2001, no pet.) (“Department enjoys immunity from suit regarding its decision to

place a particular traffic control signal, even if the signal fails to make the

premises safe. The selection of the device employed is not its condition.”), overruled on other grounds by Sipes , 195 S.W.3d 689 .

Next, appellees’ allegation that warning signs were

negligently placed on the wrong side of the road implicates TxDOT’s decision

relative to the location of the signs, another discretionary decision. See

Gonzalez , 82 S.W.3d at 326–27 (explaining that State retains immunity for

its decision relative to “where” signs should be located); Johnson v. Tex.

Dep’t of Transp. , 905 S.W.2d 394, 398 (Tex. App.—Austin 1995, no

writ) (holding that location of where to place sign is a discretionary design

decision). Appellees allege “[t]his negligent placement caused a failure to

[warn] motorist[s] that they may be going in the wrong direction.” They argue that TxDOT failed to

maintain the signs “in a condition sufficient to properly perform the function

of traffic control for which [they are] relied upon by the traveling public”

because the signs were on the wrong side of the road. City of Midland v.

Sullivan , 33 S.W.3d 1, 12 (Tex. App.—El Paso 2000, pet. dism’d

w.o.j.). Apparently,

appellees contend that location of the warning signs was a “condition” of signs

under subsection 101.060(a)(2) which prevented or hindered the signs from being

seen by motorists. [9]

A “condition” under subsection 101.060(a)(2) has been held to

arise when a sign is “unable to convey the intended traffic control

information.” Garza , 70 S.W.3d at 807 (citing Lorig v. City of

Mission , 629 S.W.2d 699, 701 (Tex. 1982) (holding that a “stop sign’s

obstruction from view by trees or branches is a ‘condition’ of that sign . . .

.”)). Appellees, however, allege that the signs failed to warn motorists

because of the location of the signs. Appellees do not cite any authority supporting their

contention that location of a sign as chosen by a governmental entity amounts

to a wrongful “condition” of the sign pursuant to subsection 101.060(a)(2), and

we decline to so broaden the meaning of “condition.” See Johnson , 905 S.W.2d at 398 (“If a motorist’s

claim that a sign is difficult to see were sufficient to call into question . .

. design discretion, virtually any challenge to the placement of a traffic sign

would suffice to preclude summary judgment on sovereign immunity grounds and

subject the . . . engineering design in this limited area to a jury’s review .

. . .”). [10]

“[W]hen traffic

engineers decide where to place warning signs around a detour, the State

retains its immunity.” Gonzalez , 82 S.W.3d at 326–27.

We also reject appellees’ argument that TxDOT failed to

maintain the signs in a condition sufficient to perform their intended function.

“[M]aintenance involves preservation of a highway as it was designed and

constructed .” Siders

v. State , 970 S.W.2d

189, 193 (Tex. App.—Dallas 1998, pet. denied) (emphasis added). If the signs were

located as designed, TxDOT did not fail to maintain the signs by failing to

relocate them.

Appellees argue TxDOT did not exercise discretion in

installing the subject traffic-control devices because defendant Brown &

Gay Engineers, Inc. drafted construction plans for the intersection which TxDOT

simply implemented. Appellees do not cite any authority for the proposition

that a governmental entity loses its discretion relative to design of a roadway

when it constructs the roadway pursuant to an outside engineer’s design. In

such a situation, the governmental entity necessarily exercises its discretion

to approve and adopt the design when it constructs the roadway pursuant to the

design. Therefore, appellees’ argument is unpersuasive.

Finally, appellees cannot avoid the discretionary-function

exception to waiver of immunity by claiming that TxDOT failed to implement its

policy to operate a safe road because of the confusing and misleading

traffic-control devices; a general safety policy does not vitiate a

governmental unit’s discretion in roadway design. See Crossland , 781 S.W.2d at 433.

Accordingly, appellees’ pleadings do not affirmatively

demonstrate jurisdiction over these claims. However, the same pleadings do not

affirmatively negate the trial court’s jurisdiction over these claims; appellees

do not specify whether the traffic-control devices were inadequate, or the

warning signs were negligently located, because of TxDOT’s negligent

implementation of the construction plans. [11]

Consequently, we reverse the trial court’s order denying TxDOT’s plea relative

to this claim, but remand for further proceedings after the trial court allows

appellees a reasonable opportunity to amend their pleadings. See Miranda ,

133 S.W.3d at 226–27; see also Koseoglu , 233 S.W.3d at 839–40.

3. Condition of the Pavement Markers

TxDOT next challenges appellees’ claim that it failed to

maintain pavement markers on FM 1093 and Tollway exits.

Failure to maintain a warning device is a claim pertaining to

a “condition” pursuant to subsection 101.060(a)(2). See Lawson , 524

S.W.2d at 356 . A

governmental unit is immune from claims involving the condition of a traffic-control

device “ unless the . . .

condition . . . is not corrected by the responsible governmental unit within a

reasonable time after notice.” Tex. Civ. Prac. & Rem. Code Ann. §

101.060 (a)(2). In its plea, TxDOT contends appellees can produce no evidence

that it had notice of any maintenance defects:

[Plaintiffs] have not identified, alleged, or

evidenced any non-discretionary maintenance defect under the Government’s

control that caused any actionable damages for which the danger was appreciated

by the Government but not by Plaintiffs.

However, in a plea to the jurisdiction, a defendant must produce evidence

that the trial court lacks jurisdiction before the plaintiff has the

burden to present evidence establishing a fact question regarding jurisdiction.

See Miranda , 133 S.W.3d at 228 . Because TxDOT did not present

evidence negating its prior knowledge that the pavement markers were in a

deficient condition, appellees did not have the burden to present evidence creating

a fact question relative to TxDOT’s notice. [12]

Thus, we affirm the trial court’s denial of TxDOT no-evidence challenge regarding

its notice of the pavement markers’ condition.

Next, TxDOT argues for the first time on appeal that appellees

fail to demonstrate how the allegedly dilapidated condition of the pavement

markers proximately caused the underlying accident. As noted above, the TTCA

provides a limited waiver of immunity for “personal injury and death so

caused by a condition or use of tangible personal or real property . . .

.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (emphasis added).

Proximate cause includes both cause in fact and

foreseeability. Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue , 271

S.W.3d 238, 246 (Tex. 2008). Cause in fact requires that the allegedly

negligent act or omission constitute “a substantial factor in bringing about

the injuries, and without it, the harm would not have occurred.” Id.

(quoting IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143

S.W.3d 794 , 799 (Tex. 2003)). The conduct of a defendant may be too attenuated

from the resulting injuries to be a substantial factor in bringing about harm.

Mason , 143 S.W.3d at 799. Foreseeability exists if the actor, as a

person of ordinary intelligence, should have anticipated the dangers his

negligent act creates for others. D. Houston, Inc. v. Love , 92 S.W.3d

450, 454 (Tex. 2002) (quoting El Chico Corp. v. Poole , 732 S.W.2d 306,

313 (Tex. 1987)). In support of its argument, TxDOT relies heavily on Dallas County Mental Health &

Mental Retardation v. Bossley . 968 S.W.2d 339 (Tex. 1998).

In Bossley , a mental-health patient escaped a

treatment facility through unlocked doors, traveled on foot for about half a

mile, and attempted to hitchhike along a highway. Id. at 340–41. Before

he could be apprehended, the patient leaped in front of a moving truck. Id.

at 341 . In holding that the condition of the doors was not a proximate

cause of the patient’s death, the supreme court explained, “ Although [the patient’s] escape

through the unlocked doors was part of a sequence of events that ended in his

suicide, the use and condition of the doors were too attenuated from [his]

death to be said to have caused it. . . . [His] death was distant

geographically, temporally, and causally from the [doors.]” Id. at 343 .

According to the court, “ Property

does not cause injury if it does no more than furnish the condition that makes

the injury possible.” Id.

Bossley is distinguishable from the

present case. Appellees allege the pavement markers were in a state of

disrepair and drivers were not warned about traveling in the wrong direction. TxDOT

argues the casual connection is too tenuous to support jurisdiction because of the

eight-mile distance between the deficient pavement markers and the accident

site. Because of the

close relationship alleged among the deficient markers, Ladson’s entering the

Tollway in the wrong direction, and the head-on, wrong-way collision, we

decline to hold that the distance between the markers and the accident site requires

a conclusion of no cause in fact. T he condition of the markers was “not so distant

geographically, temporally, and causally from the accident as to require a

conclusion that legal causation does not exist.” Sullivan , 33 S.W.3d at

9 . “The nexus between the alleged premises [defect] and [injury] in this case

is not so highly attenuated that it defies the definition of proximate cause.” Campos v. Nueces County , 162

S.W.3d 778, 787 (Tex. App.—Corpus Christi 2005, no pet.).

Next, TxDOT references evidence that

Ladson was intoxicated and warning signs were in place on the night of the

accident. TxDOT argues that it was not “foreseeable that a severely

intoxicated person would fail to see a pavement marking (allegedly in a state

of disrepair), and the warning signs posted to deter wrong-way entry to the

[Tollway], and then travel approximately eight and a half miles in the wrong

direction, ultimately crashing his car into motorists traveling in the proper

direction.” Assuming without deciding that we may consider this evidentiary

argument (not raised in the trial court), such facts do not negate legal

causation under the alleged circumstances, but are factors for the trier of

fact to consider. See Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996)

(“Foreseeability requires only that the general danger, not the exact sequence

of events that produced the harm, be foreseeable.”); see also County of

Cameron v. Brown , 80 S.W.3d 549 , 556–57 (Tex. 2002) (“While [plaintiff’s]

alleged lack of care may be an issue of comparative responsibility for the jury

to decide . . . , it does not render the subsequent harm in this case

unforeseeable.”). We

overrule TxDOT’s causation challenge.

This conclusion does not end our review of appellees’

pavement-markers claim because we are obliged to ascertain the existence of subject-matter

jurisdiction. See Univ. Tex. Sw. Med. Ctr. at Dallas v. Loutzenhiser ,

140 S.W.3d 351, 358 (Tex. 2004), superseded by statute on other grounds ,

Tex. Gov’t Code Ann. § 311.034 (Vernon 2005). We identify sua sponte a

pleading deficiency relative to appellees’ claim concerning the condition of

the pavement markers.

Appellees allege the “pavement markers were in a condition to

insufficiently perform their traffic control function . . . .” As such, the

claim concerns the condition of a traffic-safety device and, thus, falls under

the provisions of subsection 101.060(a)(2). Tex. Civ. Prac. & Rem. Code

Ann. § 101.060 (a)(2); see also Sullivan , 33 S.W.3d at 11 (explaining

that complaint regarding condition of pavement markers falls under subsection

101.060(a)(2)). To affirmatively demonstrate the trial court’s jurisdiction,

appellees must allege “the condition of [the pavement markers] [was] not

corrected by the responsible governmental unit within a reasonable time after

notice[.]” Tex. Civ. Prac. & Rem. Code Ann. § 101.060 (a)(2). This

notice can be either actual or constructive. See City of Austin v. Lamas ,

160 S.W.3d 97 , 101–03 (Tex. App.—Austin 2004, no pet.); Robnett v. City of

Big Spring , 26 S.W.3d 535, 538 (Tex. App.—Eastland 2000, no pet.). Such an

allegation is absent from appellees’ pleadings. Accordingly, we remand for

further proceedings after the trial court allows appellees a reasonable

opportunity to amend their pleadings pertaining to the condition of pavement

markers. See Miranda , 133 S.W.3d at 226–27; see also Koseoglu ,

233 S.W.3d at 839–40.

D. Negligent Implementation of Policy to Operate Tollway Safely

We next consider TxDOT’s challenge to appellees’ negligent-implementation

claims relative to the Tollway. As stated supra , a governmental

unit is not immune from suit for negligent implementation of policy, such as

negligent construction or maintenance. See Mitchell , 855

S.W.2d at 745 .

Appellees allege all defendants agreed “to manage, regulate, oversee,

construct, maintain, and operate . . . the [T]ollway safely,” and “formulated a

policy to monitor the [T]ollway entrances and exits to prevent wrong-way

traffic and unauthorized vehicles on the [T]ollway.” According to appellees,

this policy was negligently implemented because the Tollway was constructed

with minimal road shoulders and without traditional tollbooths and toll plazas

from which wrong-way drivers could be detected by law-enforcement personnel and

other persons.

We once again note that TxDOT’s discretion for roadway design

was not limited by any general policy to operate the Tollway safely. See Crossland , 781 S.W.2d at 433. Appellees

also specifically allege that TxDOT made a policy decision to monitor all

Tollway entrances for wrong-way drivers. Nevertheless, TxDOT had discretion in

choosing how to monitor the Tollway, and it is unclear whether appellees are

alleging that the absence of traditional toll booths and toll plazas caused a premise defect or simply failed to warn of an

existing defect or make it reasonably safe. [13]

I t is also unclear whether

the failure to construct wider road shoulders resulted from discretionary

formulation of policy or negligent implementation of policy. See Siders , 970 S.W.2d at 193 (emphasizing that

negligent implementation claim fails because road was constructed as designed).

Accordingly, we remand

for the trial court to allow appellees a reasonable opportunity to amend their

pleadings. See Miranda , 133 S.W.3d at 226–27; see also Koseoglu ,

233 S.W.3d at 839–40. [14]

E. Joint Enterprise

Finally, we consider TxDOT’s contentions regarding appellees’

joint-enterprise theory of liability.

An

essential element of joint enterprise is an agreement, express or implied,

among the group members. Seureau v. ExxonMobil Corp. , 274 S.W.3d

206, 222 (Tex. App.—Houston [14th Dist.] 2008, no pet.). J oint enterprise is not an independent

basis for waiver of immunity, but may result in waiver of immunity under the

TTCA where a governmental entity would be liable for another’s negligence if

the governmental entity were a private person. Id. at 218–19 (quoting Tex. Dep’t of

Transp. v. Able , 35 S.W.3d 608, 613 (Tex. 2000)).

Appellees allege that TxDOT, FBCTRA, HCTRA, Fort Bend County,

Harris County, and Michael Stone Enterprises “had an express or implied

agreement to [construct,] develop, operate, and maintain the Westpark Tollway.”

In its argument, TxDOT asserts that the only two agreements at issue are the TxDOT-FBCTRA agreement and an agreement between Harris

County and Fort Bend County (“Counties’ agreement”). However, nothing in the

record supports that no other agreements existed.

As an initial matter, TxDOT asserts that it is not a party to

the Counties’ agreement. We agree and hold that the Counties’ agreement does

not support a claim of joint-enterprise liability against TxDOT.

TxDOT also argues that the Local Government Code precludes a

party from claiming that a contract TxDOT executed with FBCTRA supports a claim

of joint-enterprise liability. See Tex. Loc. Gov. Code Ann. § 271.160 (Vernon 2005). We agree

for the reasons stated in today’s opinion in the companion case, Fort Bend

County Toll Road Authority v. Olivares , No. 14-09-00161-CV. Accordingly,

we hold appellees are not entitled to pursue a cause of action under a joint-enterprise

theory of liability between TxDOT and FBCTRA.

Nonetheless, we cannot dismiss appellees’ joint-enterprise

theory of liability against TxDOT in its entirety because TxDOT presented no

affidavits or other evidence negating its participation in any other express or

implied agreements. Therefore, TxDOT has not conclusively negated appellees’

allegation that express or implied agreements existed between TxDOT and HCTRA,

Fort Bend County, Harris County, and Michael Stone Enterprises. See City of Austin v. Leggett , 257 S.W.3d 456, 462 (Tex.

App.—Austin 2008, pet. denied) (“Unless a pled jurisdictional fact is

challenged and conclusively negated . . . , it must be

taken as true for purposes of determining subject-matter jurisdiction.”).

Accordingly, we reverse the trial court’s denial of TxDOT’s

plea relative to appellees’ claim of joint-enterprise liability between TxDOT and

FBCTRA and render judgment dismissing this claim. However, we affirm the trial

court’s denial of TxDOT’s plea relative to appellees’ claim of joint-enterprise

liability between TxDOT and HCTRA, Fort Bend County, Harris County, and Michael

Stone Enterprises.

IV. Conclusion

We affirm the trial court’s order denying that portion

of TxDOT’s plea challenging appellees’ claim of joint-enterprise liability between

TxDOT and HCTRA, Fort Bend County, Harris County, and Michael Stone Enterprises . We reverse the trial court’s order and render judgment

dismissing for want of jurisdiction appellees’ claim of joint-enterprise liability

between TxDOT and FBCTRA.

Finally, we reverse the trial court’s order denying

TxDOT’s plea and remand for further proceedings after the trial court allows appellees

a reasonable opportunity to amend their pleadings relative to the following

claims:

·

Premise defect resulting from

failing to install warning flashers, cameras, and non-discretionary signs;

·

Premise defect resulting from

inadequate barricades, insufficient traffic control, and signs placed on the

wrong side of the road;

·

Premise defect resulting from deficient

condition of pavement markers; and

·

Premise defect for constructing the

Tollway with minimal shoulders and without traditional tollbooths and toll

plazas.

/s/ Charles

W. Seymore

Justice

Panel consists of Chief Justice

Hedges, Justice Seymore, and Senior Justice Hudson. * (Hudson,

J., dissenting)

[1] The trial court initially granted TxDOT’s combined

plea and motion, but because appellees were not served with the plea and

motion, the parties agreed to have the order granting the same vacated and set

aside.

[2]

In previous panel decisions from this court, we expressed that an appellate

court does not have jurisdiction on interlocutory appeal to address grounds not

asserted in the underlying plea to the jurisdiction. See Galveston Indep.

Sch. Dist. v. Jaco , 278 S.W.3d 477 , 479 n.2 (Tex. App.—Houston

[14th Dist.] 2009), rev’d on other grounds , 303 S.W.3d 699 (per curiam);

State v. Clear Channel Outdoor, Inc. , No. 14-07-00369-CV, 2008 WL

2986392 , at *3 (Tex. App.—Houston [14th Dist.] July 31, 2008, no pet.); Clear

Lake City Water Auth. v. Friendswood Dev. Co. , 256 S.W.3d 735 ,

747 n.14 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d); Prairie

View A & M Univ. v. Dickens , 243 S.W.3d 732, 736 (Tex. App.—Houston

[14th Dist.] 2007, no pet.); Brenham Hous. Auth. v. Davies , 158 S.W.3d

53, 61 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

We are not bound by these opinions because the Gibson

decision is directly on point. See Chase Home Fin., L.L.C. v. Cal W.

Reconveyance Corp ., No. 14-08-00115-CV, 2010 WL 660166, at *9 (Tex.

App.—Houston [14th Dist.] Feb. 25, 2010, no pet. h.) (“[A]bsent a decision from

a higher court or this court sitting en banc that is on point and contrary to

the prior panel decision . . . , this court is bound by the prior holding of

another panel of this court.”).

[3] While this argument could be construed as a defense

addressing the merits of the case, we conclude Miranda allows this court

to examine the issue as a challenge to jurisdiction under sovereign immunity. See

133 S.W.3d at 224–25; Bexar Metro.

Water Dist. v. Evans , No.

04-07-00133-CV, 2007 WL 2481023 , at *2 (Tex. App.—San Antonio Sept. 5, 2007, no

pet.) (mem. op.) (“Because immunity from suit and immunity from liability are

coextensive under the Texas Tort Claims Act, a governmental unit’s plea to the

jurisdiction challenging the existence of jurisdictional facts may implicate

the merits of the plaintiff’s cause of action.”); see also State v. Lueck , 290 S.W.3d 876 , 880–84 (Tex. 2009).

[4]

In the TxDOT-FBCTRA agreement, “Project” is defined in relevant part as

“construction of the interchanges connecting the [Tollway] at FM 1464/FM 1093

and at SH 99 . . . .”

[5]

We recognize that both TxDOT and appellees rely on the “Project Maintenance”

section of the TxDOT-FBCTRA agreement as support for their arguments. This

section expressly provides, “Upon completion of the project, [TxDOT] and [FBCTRA]

agree to the following operation and maintenance responsibilities . . . .”

Nevertheless, we refuse to construe appellees’ reliance on this section as a

deliberate admission that the project was complete at the time of the

accident. See Regency Advantage Ltd. P’ship v. Bingo Idea-Watauga, Inc. ,

936 S.W.2d 275, 278 (Tex. 1996) (“A judicial admission must be a clear, deliberate, and unequivocal

statement.”).

[6]

“Negligent implementation” within the context of a claim under the TTCA is

discussed in greater depth infra .

[7] To the extent appellees allege that the lack of

traffic-monitoring cameras caused a dangerous condition because there were no

people monitoring the roadway, they fail to allege a premise-defect claim under

the TTCA. Such a “condition” concerns the activity of people, not the

condition of the roadway itself. See Tex. Parks & Wildlife Dep’t v.

Garrett Place, Inc. , 972 S.W.2d 140, 144 (Tex. App.—Dallas 1998,

no pet.).

[8]

To the extent appellees allege the signs were “non-discretionary” because they

were required by the Texas Manual on Uniform Traffic Control Devices (“MUTCD”),

appellees’ allegation that TxDOT “retained the right to supervise and inspect

all signs, barricades, and traffic control plans to insure compliance with the

[MUTCD]” is not an allegation that TxDOT was required to select and place signs

exactly as specified in the MUTCD. Compliance with the MUTCD’s provisions is

generally not mandatory. See Brazoria County v. Van Gelder , 304 S.W.3d

447, 454 (Tex. App.—Houston [14th Dist.] 2009, pet. denied).

[9]

To the extent appellees allege the signs were placed on the wrong side of the

road because their location did not comply with the MUTCD, appellees’

allegation that “[TxDOT] retained the right to supervise and inspect all signs,

barricades, and traffic control plans to insure compliance with the [MUTCD]” is

not an allegation that TxDOT was required to select and place signs exactly as

specified in the MUTCD. Compliance with the MUTCD’s provisions is generally

not mandatory. See Van Gelder , 304 S.W.3d at 454 .

[10]

We note that in Sparkman , the supreme court held that a red left-turn

arrow which was installed and operated as designed and was intended to direct

left-turning motorists to stop presented a condition because it actually

directed some motorists to proceed. 519 S.W.2d at 856–58. Therefore, the

governmental entity’s design decision was held to present a condition because

it conveyed traffic-control information other than intended. In the present

case, while appellees allege the signs were “misleading” and “confusing,” there

are no allegations that the signs conveyed unintended traffic-control

information creating a dangerous premises condition. Thus, we decline to apply

Sparkman to appellees’ claim.

[11]

See City of Lancaster v. Chambers , 883 S.W.2d 650, 654 (Tex. 1994)

(“[A]ctions which require obedience to orders . . . are ministerial.”); see

also Siders , 970 S.W.2d at 193 (holding negligent-construction claim

regarding a stop sign was merely a disguised design-defect claim because

plaintiffs’ witnesses admitted road was constructed as designed and plaintiffs

agreed the design plans did not specify the removal of the stop sign).

[12]

TxDOT also contends that appellees’ premise-defect claims should be dismissed

because TxDOT did not have actual knowledge of any allegedly dangerous

condition. TxDOT essentially argues this element is conclusively negated

because appellees failed to present evidence creating a fact question as to

TxDOT’s knowledge. However, in its plea to the jurisdiction, TxDOT argued

“there is no evidence TxDOT had actual knowledge of . . . a deficiency in

available illumination.” This argument did not place the burden on appellees

to present evidence of TxDOT’s knowledge. See Miranda , 133

S.W.3d at 228 . Accordingly, we overrule TxDOT’s contention.

[13]

To the extent appellees allege that the lack of toll booths and toll plazas

caused a dangerous condition because there were no people monitoring the

roadway, they fail to allege a premise defect claim under the TTCA. Such a

“condition” concerns the activity of people, not the condition of the roadway

itself. See Garrett Place , 972 S.W.2d at 144 .

[14] TxDOT also challenges appellees’ claims that TxDOT

was negligent in monitoring and operating the Tollway, arguing such claims do

not pertain to a condition or use of property as required by section 101.021. See

Tex. Civ. Prac. & Rem. Code § 101.021(2). However, construing

appellees’ pleadings in favor of jurisdiction, the factual basis for these

claims is the lack of traditional toll booths and toll plazas on the Tollway.

We cannot discern whether such items were required to be implemented or whether

appellees contend the absence of such items caused a premise defect or simply

failed to warn of or make safe an existing premise defect. Thus, we remand for

an opportunity to amend.

* Senior Justice J. Harvey Hudson sitting

by assignment.