                                     In The

                              Court of Appeals

                   Ninth District of Texas at Beaumont

                            ___________________

                             NO. 09-15-00279-CV
                            ___________________

                   JEANETTE HAGELSKAER, Appellant

                                       V.

       TEXAS DEPARTMENT OF TRANSPORTATION, Appellee
__________________________________________________________________

                On Appeal from the 284th District Court
                     Montgomery County, Texas
                   Trial Cause No. 13-10-10673 CV
__________________________________________________________________

                                   OPINION

      This is an accelerated interlocutory appeal from the trial court’s order

granting the plea to jurisdiction filed by the Texas Department of Transportation

(TXDOT). In four issues, Jeanette Hagelskaer argues that TXDOT’s jurisdictional

plea should have been denied. She argues that (1) TXDOT waived its sovereign

immunity because her injuries arose out of a TXDOT employee’s use or operation

of motor-driven equipment; (2) her injuries resulted from a premises or special


                                       1
defect that TXDOT created; (3) the Recreational Use Statute does not apply based

on the facts regarding the accident; and (4) if the Recreational Use Statute does

apply under the facts related to the accident that resulted in her injury, the evidence

the trial court considered during the hearing on TXDOT’s plea demonstrates that a

fact issue exists on the question of TXDOT’s gross negligence. We conclude that

TXDOT is immune from the claims Hagelskaer raised in her suit, but we reform

the trial court’s order so that the dismissal is a dismissal with prejudice. As

reformed, the trial court’s order, which granted TXDOT’s motion to dismiss, is

affirmed.

                                     Background

      In March 2013, TXDOT repaired the northbound shoulder of FM 1486, a

two-lane roadway in Montgomery County, Texas. In the course of its repairs,

TXDOT closed the northbound lane of FM 1486, and allowed traffic on the road to

alternate the use of the southbound lane to allow the traffic to bypass the

construction being done in the northbound lane that was being repaired. Although

the northbound lane was closed to traffic, it was occupied in various places by

TXDOT workers, vehicles, and equipment, which were being used to repair the

road. TXDOT stationed flaggers at each end of the project to control the use of the

southbound lane being used to bypass the construction, and the flaggers were

                                          2
equipped with radios to coordinate the movement of traffic through the southbound

lane.

        Hagelskaer, travelling south, approached the construction zone on her

bicycle with a group of other cyclists. The flagger, who TXDOT stationed at the

north end of the construction zone, allowed Hagelskaer along with the other

cyclists, to enter the southbound lane. As the cyclists were passing through the

construction zone, Hagelskaer noticed there was an oncoming vehicle in the

southbound lane. Although Hagelskaer managed to safely pass the first northbound

vehicle she encountered in the southbound lane, the next vehicle, a truck, hit her

bicycle, which knocked her to the ground. She suffered a broken wrist as a result of

the collision.

        In the suit Hagelskaer filed against TXDOT and the driver of the truck that

struck her bicycle, Hagelskaer claimed that there was not sufficient room in the

southbound lane to allow both northbound and southbound traffic to share the lane

because where the accident occurred, TXDOT was using a maintainer in the

northbound lane. According to the driver of the truck involved in the accident,

whose deposition was included in the evidence the trial court considered in ruling

on TXDOT’s motion, Hagelskaer slipped on her bike just as he began to pass her,



                                         3
and he denied that he ever struck her bike. None of the evidence at the hearing

indicated that TXDOT’s maintainer ever entered the southbound lane.

      Approximately seven months after the accident, Hagelskaer filed suit against

TXDOT and the driver of the truck, claiming their negligence caused the accident.

With respect to the claims she filed against TXDOT, Hagelskaer argued that

TXDOT’s immunity from suit had been waived under Chapter 101 of the Texas

Civil Practice and Remedies Code, the Texas Tort Claims Act. See Tex. Civ. Prac.

& Rem. Code Ann. §§ 101.001-.109 (West 2011 & West Supp. 2015). In her suit,

Hagelskaer claimed that TXDOT was negligent for failing to properly direct the

flow of traffic, failing to warn her of oncoming traffic, failing to properly train its

employees, failing to require its employees to follow their training, creating a

dangerous condition, and allowing both northbound and southbound traffic to use

the southbound lane when it was not safe to do so.1 When TXDOT answered the

suit, it asserted that it was immune from the claims that Hagelskaer had made, and

TXDOT claimed that its immunity from suit had not been waived. TXDOT also

filed a plea to the jurisdiction, arguing that under the circumstances that led to

Hagelskaer’s accident, its immunity had not been waived under the Tort Claims



      1
         The driver of the truck, while a party to the suit in the trial court, is not a
party to this appeal.
                                          4
Act. The trial court granted TXDOT’s plea to the jurisdiction, and Hagelskaer

appealed.

                                 Standard of Review

      TXDOT challenged the trial court’s power to exercise jurisdiction over

Hagelskaer’s case by filing a plea to the jurisdiction. A plea to the jurisdiction is a

dilatory plea that is used to defeat a plaintiff’s cause of action without regard to

whether the plaintiff’s claims have merit, as the plea requires the court to decide

whether it possesses subject matter jurisdiction over the plaintiff’s case. See Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Generally, in the

absence of the State’s permission waving a governmental unit’s immunity from

suit, a trial court lacks subject-matter jurisdiction over the suit. See Fed. Sign v.

Tex. S. Univ., 951 S.W.2d 401, 403 (Tex. 1997); Duhart v. State, 610 S.W.2d 740,

741 (Tex. 1980). Under the doctrine of governmental immunity, a court lacks

jurisdiction to impose a duty on a governmental entity that the Legislature has not

chosen to impose by enacting a statute. See Tex. Dep’t of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 224-25 (Tex. 2004) (explaining that immunity to suit

and immunity from liability are coextensive under Texas Tort Claims Act).

      In tort cases, plaintiffs generally rely on the Tort Claims Act as the source of

the Legislature’s decision to allow a dispute against the government unit to be

                                          5
heard by a court. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021-.029. In tort

cases such as Hagelskaer’s, plaintiffs are required to allege a valid waiver of

immunity and to affirmatively demonstrate that the court has jurisdiction over the

claims being made against the government unit in the case. See Tex. Dep’t of

Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). On appeal, the trial

court’s resolution of whether the Tort Claims Act waived a governmental unit’s

immunity from suit presents a matter involving a question of law that is reviewed

under a de novo standard. See Miranda, 133 S.W.3d at 226. In determining

whether a plaintiff has met her burden to demonstrate that a waiver exists and

applies to the facts of a given case, “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. Nat. Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868

(Tex. 2001).

                                    Sovereign Immunity

      In issue one, Hagelskaer argues that the Tort Claims Act waives TXDOT’s

right to immunity because her injuries arose out of TXDOT’s operation or use of

motor-driven equipment, which in this case consisted of TXDOT’s maintainer in

the northbound lane. Hagelskaer contends that the presence of TXDOT’s

maintainer prevented the driver of the truck from being able to safely pass

                                           6
Hagelskaer’s bike due to the construction in the northbound lane, which required

her to share the southbound lane with the oncoming truck. According to

Hagelskaer, the maintainer was being operated in the northbound lane in a manner

that left insufficient room in the southbound lane for drivers required to pass each

other in the southbound lane.

      In response, TXDOT argues that the Tort Claims Act does not contain a

waiver for the decisions TXDOT made to handle the traffic through the

construction zones, which in this case involved the decisions made by TXDOT

employees to allow northbound traffic to enter the southbound lane before the

group of bicyclists left the construction zone. According to TXDOT, for a waiver

to exist under section 101.021(1) of the Tort Claims Act, the tortious act that is

alleged must relate to the manner that the government’s vehicles were being

operated. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West 2011) (requiring

that the property damage, personal injury, or death arise from the operation or use

of a motor-driven vehicle or motor-driven equipment). TXDOT concludes that its

immunity was not waived by the Tort Claims Act merely because it allowed both

northbound and southbound traffic into the southbound lane and positioned its

construction equipment in the northbound lane that was closed for repairs. See id.

According to TXDOT, no waiver exists under the Tort Claims Act unless the

                                         7
evidence regarding the accident demonstrates that TXDOT’s vehicles were being

operated negligently and that the negligent operation of TXDOT vehicles caused

Hagelskaer’s accident or her injury.

      Under the Tort Claims Act, a governmental unit’s immunity from suit is

waived for “property damage, personal injury, and death proximately caused by the

wrongful act or omission or the negligence of an employee acting within his scope

of employment if [] the property damage, personal injury, or death arises from the

operation or use of a motor-driven vehicle or motor-driven equipment[.]” Id. In

this case, Hagelskaer claims that she and the driver of the truck did not have

sufficient room to pass safely because TXDOT was operating its equipment in the

northbound lane. Hagelskaer argues that her injuries and property damage relate to

the manner that TXDOT’s maintainer was being operated, and that her injuries

would not have occurred had the maintainer not been there. She contends that the

evidence shows that TXDOT’s acts or omissions proximately caused both the

accident and her injuries.

      The Tort Claims Act does not contain a waiver of immunity based on a

theory that TXDOT’s employees negligently allowed traffic to share the

southbound lane. Id. And, the evidence in this case does not demonstrate a nexus

between the alleged acts and omissions involving TXDOT’s use of its maintainer,

                                        8
which remained entirely in the northbound lane, and Hagelskaer’s accident, which

occurred entirely in the southbound lane. As used in the Tort Claims Act, the term

“arises from” requires a nexus between the injury that the governmental employee

is alleged to have caused and the manner the governmental unit has used or

operated a motorized vehicle or a motorized piece of equipment. Compare Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 543-44 (Tex. 2003) (holding that a

bus passenger’s injuries sustained when another bus passenger attacked him after

both left the bus were not injuries that arose from the use of the bus and therefore

immunity was not waived), with Ryder Integrated Logistics, Inc. v. Fayette Cty.,

453 S.W.3d 922, 928 (Tex. 2015) (holding that a deputy’s cruiser facing oncoming

traffic during an early morning traffic stop was a negligent use of the vehicle thus

waiving immunity). The relationship that exists between the accident and the

government-owned equipment requires more than mere presence of the equipment

near the location where the accident occurred, and requires more than the claim

that the presence of the equipment in a place it was legally entitled to be present

played a role in circumstances that resulted in the plaintiff’s accident. See Whitley,

104 S.W.3d at 543. Thus, the concept of “arises from” under the Tort Claims Act

requires that the government’s operation of a vehicle or motorized equipment serve

as a proximate cause of the plaintiff’s accident or injuries. See id. And, unless the

                                          9
use of the motorized equipment was a substantial factor in causing the accident or

the injury, the use or operation of the vehicle or equipment “‘does not cause injury

if it does no more than furnish the condition that makes the injury possible.’” Id.

(quoting Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d

339, 343 (Tex. 1998)).

      In this case, the pleadings, together with the evidence before the court

regarding the circumstances that led to Hagelskaer’s accident, do not show that the

positioning of TXDOT’s equipment in the northbound lane was a substantial factor

in causing Hagelskaer’s accident or her injury. The evidence before the court at the

hearing demonstrated that Hagelskaer and the truck driver’s shared use of a single

lane of traffic caused Hagelskaer’s injuries, and TXDOT’s use of its maintainer in

the northbound lane, where it was entitled to be located, was merely the condition

that made Hagelskaer’s injury possible. See Tex. Dep’t of Pub. Safety v. Grisham,

232 S.W.3d 822 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (holding that a

government vehicle did not cause plaintiff’s injuries and upholding the

government’s claim of immunity when plaintiff’s injuries resulted in plaintiff’s

collision with a disabled vehicle when plaintiff switched lanes to comply with the

Move Over Act after seeing the government vehicle); see also City of Kemah v.

Vela, 149 S.W.3d 199 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)

                                        10
(holding that the plaintiff’s injuries were not a result of the use of the patrol car

when a driver collided with the patrol car in which plaintiff sat after his arrest,

therefore, upholding the city’s immunity). Hagelskaer has not shown that the Tort

Claims Act contains a waiver for activity that is based on decisions involving a

lane closure and decisions by government employees that allowed commuter

traffic to share a single lane. Given the circumstances shown by the evidence as to

circumstances of Hagelskaer’s accident, we agree with the trial court that

TXDOT’s immunity from suit was not waived for its use of a maintainer that

remained wholly in its own lane. See White, 46 S.W.3d at 869.

      In reaching this conclusion, we note that Hagelskaer never alleged that the

maintainer being used in the northbound lane was being operated in a negligent

manner. Hagelskaer’s deposition, in which she gave her account of the accident,

indicates that she could not have alleged in good faith that TXDOT’s equipment

left the northbound lane. Her deposition reflects that she testified that TXDOT’s

equipment was in the closed lane, and that it did not protrude into the southbound

lane being used by the traffic in the construction zone. We overrule issue one.

                            Premises or Special Defect

      In her second issue, Hagelskaer relies on the condition of tangible property

waiver found in the Tort Claims Act to argue that the State waived its immunity

                                         11
from the claims that she raised in her suit. Specifically, Hagelskaer argues that the

pleadings and evidence before the trial court show that a premises or special defect

was present on TXDOT’s real property. See Tex. Civ. Prac. & Rem. Code Ann. §§

101.021(2), 101.025 (West 2011). According to Hagelskaer, the premises or

special defect resulted from TXDOT’s decision to allow the southbound lane to be

used by both northbound and southbound traffic. Hagelskaer contends that

TXDOT was aware of the risk presented by using a single lane to bypass the

construction in the area where TXDOT was performing its work, and that TXDOT

failed to warn her of the dangerous condition that it created by allowing oncoming

northbound traffic into the southbound lane that Hagelskaer traveled.

      In response, the State argues that the blocked northbound road and the

manner the northbound and southbound traffic were allowed to share the

southbound lane cannot be properly characterized as a premises defect or a special

defect for which its immunity was waived. On appeal, the question of whether

closing the northbound lane and allowing traffic to share the southbound lane is

capable of classification as a premises or special defect presents a question of law,

which is a matter that we review on appeal using a de novo standard. See State

Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).



                                         12
      Special defects present unexpected and unusual dangers to the ordinary users

of a roadway. See Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009)

(citing characteristics that courts have considered in Tort Claims Act cases to

determine whether an obstruction is a special defect, noting that the hazard created

by the obstruction must be of a type that presents an unexpected and unusual

danger to the ordinary user of the roadway). In Hagelskaer’s case, it is undisputed

that one lane of the road was blocked and closed for traffic so that TXDOT could

perform repairs. Therefore, the blocked road was not itself an obstruction, but it

was a detour around the obstruction. See Brazoria Cty. v. Van Gelder, 304 S.W.3d

447, 453 (Tex. App.—Houston [14th Dist.] 2009, pet. filed) (determining that the

plaintiff’s argument that the road’s sloped pavement was an obstruction was

actually a detour over an obstruction). Additionally, the defect on which

Hagelskaer premises her claim concerns the existence of equipment and vehicles

on a lane of the road closed for construction. Her claim does not concern a defect

or obstruction in the southbound lane where the accident occurred. Tex. Civ. Prac.

& Rem. Code Ann. § 101.022(b) (directing that the excavation or obstruction exist

on the roadway before the government’s immunity from suit is waived under the

Tort Claims Act).



                                        13
      Additionally, the existence of oncoming traffic in a single lane was not

unexpected from Hagelskaer’s point of view. The evidence before the trial court

relevant to TXDOT’s plea shows that TXDOT warned Hagelskaer of the lane

closure, that she was aware that she was in a construction zone before the accident

occurred, and that she passed one oncoming vehicle in her lane before the accident

occurred. The evidence shows that the accident occurred in the southbound lane,

and that it did not occur in the northbound lane. Under the circumstances in this

case, the condition that TXDOT created, which           required northbound and

southbound traffic to share a single lane, did not present an unexpected or unusual

hazard to Hagelskaer. The evidence shows that she was aware of the fact she was

in a single lane shared by traffic to bypass the construction zone before she

encountered the second northbound vehicle. Consequently, the condition cannot

be properly characterized as a special defect under Texas law. See Denton Cty. v.

Beynon, 283 S.W.3d 329 (Tex. 2009). We conclude that Hagelskaer failed to show

that the accident on FM 1486 occurred due to a premises or special defect in the

southbound lane.

      Moreover, even if we were to assume that TXDOT’s handling of the lane

closure created a premises defect in the southbound lane, TXDOT would have no

duty to warn her of the presence of oncoming traffic when she was already aware

                                        14
that it was present in her lane. In this case, the evidence before the trial court

showed that Hagelskaer was aware before the accident that she was being required

to share the southbound lane with oncoming traffic. Therefore, the evidence before

the trial court fails to show that TXDOT was aware of a danger of oncoming traffic

when Hagelskaer was not. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a)

(limiting a governmental unity’s duty for premises defects to the duty owed to

licensees); Payne, 838 S.W.2d at 237 (explaining that the plaintiff, to establish a

waiver, must show he had no knowledge of the risk of harm at issue). Thus,

Hagelskaer has not demonstrated that a valid waiver exists because she had

knowledge of the risk that she would be required to pass an oncoming vehicle

while both were sharing the same lane. Id.

      Having concluded that the blocked lane of traffic and TXDOT’s equipment

in the northbound lane cannot be classified as either a special defect or a premises

defect, we overrule issue two.

                                 Recreational Use Statute

      In the trial court, Hagelskaer never pled that the Recreational Use Statute

applied to her claim. See Tex. Civ. Prac. & Rem. Code Ann. § 75.002 (West 2011).

Instead, TXDOT raised the Recreational Use Statute in avoidance of Hagelskaer’s

Tort Claims Act theory regarding governmental immunity. In the trial court,

                                        15
Hagelskaer countered TXDOT’s argument by asserting that the Recreational Use

Statute did not apply, as she apparently wished to avoid the requirement under that

statute that she would be required to prove that TXDOT had been grossly negligent

before she could recover. Id. § 75.002(d). In face of TXDOT’s argument that the

Recreational Use Statute might apply, Hagelskaer never amended her pleadings to

rely on the Recreational Use Statute as a basis on which the trial court could

exercise jurisdiction over her case.

      Because we resolve the appeal based on the statutory provisions that

Hagelskaer raised in her pleadings, we need not resolve Hagelskaer’s additional

arguments, which she presents for the first time in her brief, which claim that a fact

issue exists on the issue of TXDOT’s gross negligence in the event we were to

accept TXDOT’s argument that the Recreational Use Statute applies. See Tex. R.

App. P. 33.1(a); Tex. R. App. P. 47.1.

                                       Cross-Appeal

      In its brief, TXDOT included a cross-issue asserting that the trial court erred

by dismissing Hagelskaer’s claims against TXDOT without prejudice.2 TXDOT

argues that while the case was in the trial court, Hagelskaer had a reasonable

opportunity to amend her pleadings to allege the Recreational Use Statute applied,
      2
       TXDOT perfected its right to raise cross-points on appeal by filing a notice
of appeal. Tex. R. App. P. 26.1(d).
                                       16
and to allege the facts that were necessary to support such a claim. TXDOT

contends that because Hagelskaer chose not to amend her pleadings when faced

with pleadings raising the possibility that the Recreational Use Statute might

arguably apply, the trial court should not have allowed Hagelskaer an opportunity

to file new pleadings by dismissing her claims without prejudice.

      The record shows that in January 2014, in response to Hagelskaer’s original

petition, TXDOT filed a combined plea to the jurisdiction and answer. In its plea to

the jurisdiction, TXDOT argued that Hagelskaer could not prove that its immunity

from suit had been waived. After the trial court set a hearing on TXDOT’s plea to

the jurisdiction, Hagelskaer filed a notice of nonsuit as to TXDOT, effectively

dismissing her suit against it.

      Two months later, Hagelskaer sued TXDOT again by naming it in her First

Amended Petition. The claims found in Hagelskaer’s First Amended Petition

against TXDOT mirror those she filed against TXDOT in her Original Petition.

TXDOT answered Hagelskaer’s First Amended Petition, and following a hearing

on its plea to the jurisdiction TXDOT prevailed on its claim that Hagelskaer had

failed to raise a valid waiver showing that its immunity from her suit had been

waived. Before the hearing, TXDOT’s pleadings placed Hagelskaer on notice that

that the Recreational Use Statute might arguably apply, but for tactical reasons she

                                        17
apparently chose to argue that the Recreational Use Statute did not apply under the

facts to her case.

      The record shows that Hagelskaer had a reasonable opportunity to amend

her pleadings to allege a basis other than the Tort Claims Act asserting that

TXDOT’s immunity from suit had been waived. Under the circumstances of this

record, we agree with TXDOT that dismissal of Hagelskaer’s suit against TXDOT

should have been with prejudice. See Harris Cty. v. Sykes, 136 S.W.3d 635, 639

(Tex. 2004) (requiring that an order granting a plea to the jurisdiction dismiss the

government entity with prejudice if the plaintiff had a reasonable opportunity to

amend its pleadings after the filing of the plea to the jurisdiction). Accordingly, we

hold that the trial court should have dismissed Hagelskaer’s claims against

TXDOT with prejudice, and we reform the order to reflect TXDOT was dismissed,

“with prejudice.”

      AFFIRMED AS REFORMED.



                                             ______________________________
                                                    HOLLIS HORTON
                                                         Justice

Submitted on November 12, 2015
Opinion Delivered April 21, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.
                                      18
