Opinion issued September 29, 2016




                                    In The

                           Court of Appeals
                                For The

                          First District of Texas
                         ————————————
                          NO. 01-14-00866-CV
                        ———————————
             CONNIE ROGGE, INDIVIDUALLY AND
           AS HEIR OF RICHARD HOLLAS ROGGE,
            RICHARD ROGGE, INDIVIDUALLY AND
         AS HEIR OF RICHARD HOLLAS ROGGE, AND
    RICHARD ROGGE AS ADMINISTRATOR OF THE ESTATE OF
             RICHARD HOLLAS ROGGE, Appellants
                                     V.
              THE CITY OF RICHMOND, TEXAS, Appellee


                 On Appeal from the 268th District Court
                        Fort Bend County, Texas
                  Trial Court Case No. 11-DCV-194261
                                   OPINION

      Appellants Richard and Connie Rogge sued the City of Richmond after their

son committed suicide in a jail cell. The City filed a plea to the jurisdiction and a

motion for summary judgment asserting governmental immunity. In response, the

Rogges argued that immunity had been waived under the Texas Tort Claims Act.

See TEX. CIV. PRAC. & REM. CODE §§ 101.001–.109. The trial court granted the

City’s motion.

      The Rogges’ suit is classified as a premises-liability claim based on

allegations that their son’s death was caused by a defective metal grate covering an

air vent on the ceiling of the jail cell. But no evidence suggests that the metal

grating was inherently dangerous or hazardous in its intended use as a cover for the

air vent. Moreover, no evidence suggests that the condition of the grate actually

caused the Rogges’ son to commit suicide. We conclude that statutory waiver of

governmental immunity for death caused by a condition of real property did not

apply to this case, and the court lacked subject-matter jurisdiction over the Rogges’

claims. Accordingly, we affirm.

                                   Background

      Richard Hollas Rogge was arrested for driving while intoxicated. He was

taken to the City of Richmond police station, where he was placed in a holding cell

while the arresting officer completed the paperwork required to transfer him to the



                                         2
Fort Bend County jail. Video recordings from inside the holding cell showed

Rogge lying on a bench, apparently napping for the majority of the time he spent

there. It is undisputed that Rogge was left alone in the cell for approximately three

hours while no officer physically checked on him. During that time, Rogge

committed suicide by using his shirt to hang himself from a metal grate covering

an air vent.

      Rogge’s parents (hereinafter, the Rogges) sued the City of Richmond and

two of its police officers alleging civil rights violations under federal law and

causes of action under the Texas Tort Claims Act. The defendants removed the

case to federal court for prosecution of the civil rights claims. The federal district

court entered a take-nothing judgment on those causes of action and remanded the

remaining state-law claims to the district court of Fort Bend County.

      In state court, the Rogges alleged negligence, wrongful-death, and survival

claims. They contended that their son’s death was caused by the use or condition of

property—the metal grate—which was “affixed into the ceiling and position[ed]

directly above a toilet located in the holding cell.” They alleged that the metal grate

presented an unreasonable risk of harm because it was easily accessible to a person

who wanted to harm himself. In the alternative, they pleaded that the positioning of

the vent above the toilet was a premises defect.




                                          3
       The City filed a plea to the jurisdiction and motion for summary judgment,

asserting that all of the Rogges’ claims were barred by governmental immunity.

The City argued that the suicide was not caused by a condition or use of tangible

property, see TEX. CIV. PRAC. & REM. CODE § 101.021(2), and that the claims were

barred by the discretionary-function exception to the limited waiver of immunity

found in the Tort Claims Act, see id. § 101.056.

       The Rogges amended their petition, and they responded to the jurisdictional

challenge with evidence, including a preliminary report and deposition excerpts

from an architect with expertise in the design and construction of jails and holding

cells. In addition, the Rogges argued that the discretionary-function exception to

the Tort Claims Act’s limited waiver of immunity was irrelevant because they

alleged a premises defect based on the size of the holes in the metal grate and its

lack of mesh backing, as opposed to a claimed defect in the design of the holding

cell itself.

       The trial court granted summary judgment in favor of the City, and the

Rogges appealed.

                                     Analysis

       The Rogges challenge the dismissal of their lawsuit in four issues, arguing

that (1) their son’s death was caused by the City’s use of tangible personal

property, (2) his death was caused by a condition of tangible personal property,



                                         4
(3) the discretionary-function exception to the waiver of immunity did not apply,

and (4) their cause of action for a premises defect was not addressed by the motion

for summary judgment.

       Governmental immunity from suit defeats a trial court’s subject-matter

jurisdiction, and it may be asserted in a plea to the jurisdiction or a motion for

summary judgment. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 225–26 (Tex. 2004); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554

(Tex. 2000). Whether a trial court has subject-matter jurisdiction is a question of

law, which we review de novo. See Miranda, 133 S.W.3d at 226.

       A plaintiff must allege facts that affirmatively establish the trial court’s

subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). In

determining whether the plaintiff has satisfied this burden, we construe the

pleadings liberally in the plaintiff’s favor and deny the plea if facts affirmatively

demonstrating jurisdiction have been alleged. Id. at 643; Miranda, 133 S.W.3d at

227.

       When a defendant challenges the sufficiency of jurisdictional facts, the trial

court must consider relevant evidence submitted by the parties. City of Waco v.

Kirwan, 298 S.W.3d 618, 622 (Tex. 2009); Miranda, 133 S.W.3d at 227. In doing

so, the court will “take as true all evidence favorable to the nonmovant” and

“indulge reasonable inferences and resolve doubts in her favor.” Miranda, 133



                                          5
S.W.3d at 228. When the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law. Id. at 228. If, however, the evidence creates a fact

question regarding jurisdiction, then the trial court must deny the plea, and the fact

issue will be resolved by the factfinder. Id. at 227–28.

      The doctrine of governmental immunity, like sovereign immunity from

which it is derived, protects political subdivisions of the State from lawsuits unless

the Legislature specifically has waived its immunity to suit. See City of Houston v.

Williams, 353 S.W.3d 128, 134 (Tex. 2011). The Tort Claims Act, which provides

a limited waiver of immunity, applies equally to the State and its political

subdivisions, including cities. Mission Consol. Indep. Sch. Dist. v. Garcia, 253

S.W.3d 653, 655 (Tex. 2008); see TEX. CIV. PRAC. & REM. CODE § 101.001(3).

Among other categories of permitted claims, section 101.021 waives sovereign

immunity in premises-defect cases, which represent a specific type of case arising

from a condition of real property. See, e.g., Cty. of Cameron v. Brown, 80 S.W.3d

549, 554 (Tex. 2002); see also TEX. CIV. PRAC. & REM. CODE §§ 101.021(2),

101.022(a). Immunity is waived for “personal injury and death” proximately

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).



                                          6
      In the trial court, the Rogges pleaded alternative causes of action. First, they

alleged that “a metal grate affixed into the ceiling” and positioned “directly above

a toilet located in the holding cell” was a “condition of the premises” constituting a

premises defect that “placed an unreasonable risk of harm . . . as the grate was

easily accessible by a person to cause or inflict harm to himself.” They further

alleged that the City had “actual knowledge of the premises defect,” that it was

“aware that such defect was a dangerous condition,” and that the dangerous

condition was created by the City “through the design and use of the premises.”

The Rogges contended that the City breached its duty to their son by creating “the

dangerous condition,” failing to warn about the condition, and failing to make it

reasonably safe, proximately resulting in the suicide.

      The Rogges also alleged negligence “in supplying” tangible personal

property, identified in the trial court and on appeal as the metal grate on the

ceiling.1 The grate was alleged to be “inadequate,” “defective,” and missing

“necessary and integral” safety components.



1
      In addition to the metal grate, the Rogges’ first amended petition also
      alleged that the holding cell itself and the toilet were “inadequate” and
      “defective” items of tangible personal property that had been supplied to
      their son. They further alleged that the City failed to provide him proper
      attire. None of these allegations have been relied upon by the Rogges on
      appeal to support their argument that they have pleaded a proper cause of
      action based on the City’s use of tangible personal property. Instead, their
      appellate arguments about waiver of immunity based on the alleged

                                          7
      The Rogges relied upon both the premises-liability and negligence theories

of liability to support wrongful death and survival claims. On appeal, the Rogges

base each of these claims on the “use” and “condition” of the metal grate, which

they alleged was the cause of their son’s suicide.

I.    Classification of cause of action

      To decide the jurisdictional issue presented by this appeal, we first must

evaluate how to characterize the Rogges’ cause of action. The Tort Claims Act

imposes different standards of care upon a governmental unit for negligence claims

based on “a condition or use of tangible personal property” and claims based on a

“premises defect” relating to the condition or use of real property. See Sampson v.

Univ. of Tex. at Austin, No. 14-0745, 2016 WL 3212996, at *2 (Tex. June 10,

2016) (citing TEX. CIV. PRAC. & REM. CODE §§ 101.021(2), 101.022(a)). A claim

cannot be both a premises-defect claim and also a claim relating to a condition or

use of tangible property. See id. at *3 (citing Miranda, 133 S.W.3d at 233).

“Whether a claim is based on a premises defect is a legal question.” Id. at *2. A

claim based on a condition or use of real property is a premises-defect claim under

the Tort Claims Act. Id. at *3 (citing Miranda, 133 S.W.3d at 230, and TEX. CIV.

PRAC. & REM. CODE §§ 101.021(2), 101.022).


      condition or use of tangible personal property are based solely on the alleged
      condition or use of the grate.


                                          8
      When “liability is predicated not upon the actions of the governmental unit’s

employees but by reference to the duty of care owed by the governmental unit to

the claimant for premise and special defects as specified in section 101.022 of

the . . . Tort Claims Act,” the claim is based on an allegation of premises defects.

DeWitt v. Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995); see also Sampson, 2016

WL 3212996, at *4. “[N]egligent activity encompasses a malfeasance theory based

on affirmative, contemporaneous conduct by the owner that caused the injury,

while premises liability encompasses a nonfeasance theory based on the owner’s

failure to take measures to make the property safe.” Del Lago Partners, Inc. v.

Smith, 307 S.W.3d 762, 776 (Tex. 2010). Thus, when distinguishing between a

negligent activity and a premises defect, we must focus on “whether the injury

occurred by or as a contemporaneous result of the activity itself—a negligent

activity—or rather by a condition created by the activity—a premises defect.”

Sampson, 2016 WL 3212996, at *4 (citing Keetch v. Kroger Co., 845 S.W.2d 262,

264 (Tex. 1992)). “The distinction lies in whether it is the actual use or condition

of the tangible personal property itself that allegedly caused the injury, or whether

it is a condition of real property—created by an item of tangible personal

property—that allegedly caused the injury.” Id.

      Within the Tort Claims Act’s context, “condition” has been defined as

“either an intentional or an inadvertent state of being.” Id. (quoting Abutahoun v.



                                          9
Dow Chem. Co., 463 S.W.3d 42, 49 (Tex. 2015)). To state a “condition” claim

under the Tort Claims Act, there must be an allegation of “defective or inadequate

property.” Id. Furthermore, “use” has been defined to mean “to put or bring into

action or service; to employ for or apply to a given purpose.” Id. (quoting Tex.

Dept. of Criminal Justice v. Miller, 51 S.W.3d 583, 588 (Tex. 2001)). “As with

negligent activity claims under common law, to state a ‘use’ of tangible personal

property claim under the Tort Claims Act, the injury must be contemporaneous

with the use of the tangible personal property—‘[u]sing that property must have

actually caused the injury.’” Id. (quoting Miller, 51 S.W.3d at 588).

      A governmental unit “does not ‘use’ tangible personal property . . . within

the meaning of section 101.021(2) by merely providing, furnishing, or allowing . . .

access to it.” Id. (quoting Rusk State Hosp. v. Black, 392 S.W.3d 88, 98 (Tex.

2012)). “However, non-use and furnishing access are distinguishable from

situations in which a governmental unit ‘provided equipment that lacked an

integral safety component.’” Id. (citing Tex. A & M Univ. v. Bishop, 156 S.W.3d

580, 584 (Tex. 2005)).

      Our determination turns on whether the contemporaneous “action or service”

(use) or “state of being” (condition) of the tangible personal property itself caused

the injury, or whether the tangible personal property created a dangerous real-

property condition, making it a premises defect. See id. “Just as at common law,



                                         10
where an activity may create a condition of the premises, under the Tort Claims

Act an item of tangible personal property may create a condition of the premises,

resulting in a premises defect claim.” Id. (citing Keetch, 845 S.W.2d at 264).

      The Rogges rely on Retzlaff v. Texas Department of Criminal Justice, 135

S.W.3d 731 (Tex. App.—Houston [1st Dist.] 2003, no pet.), a case in which a

prisoner fell into a razor-wire fence constructed on the perimeter of a prison

recreation yard. This court held that the prison’s placement of the razor wire was a

use of tangible personal property, and immunity had been waived by the Tort

Claims Act as to a negligence claim. Retzlaff, 135 S.W.3d at 741. The Rogges

argue that the City in this case similarly “used” the grate by installing it in the

holding cell for the purpose of preventing “a prisoner’s escape through the

ventilation.” We find no factual support for this argument. The testimony in the

appellate record addressed the need for suitably-sized holes to permit the passage

of air, industry recommendations regarding identification of individuals at-risk for

suicide, and methods for continuous observation of at-risk people. But the

deposition excerpts relied upon by the Rogges do not include testimony that the

purpose of the metal grate was to prevent a prisoner’s escape. Thus, the

jurisdictional evidence does not support the comparison to Retzlaff and the

suggestion that the suicide resulted from the use of the grate to prevent escape.




                                         11
      The Rogges also urge us to follow a precedent of the Corpus Christi Court of

Appeals in Martinez v. City of Brownsville, No. 13-00-425-CV, 2001 WL 1002399

(Tex. App.—Corpus Christi Aug. 31, 2001, pet. denied) (mem. op.; not designated

for publication). In Martinez, an inmate committed suicide by hanging himself

with a shirt tied to the bars on his prison cell door. Martinez, 2001 WL 1002399, at

*2. The court of appeals rejected the argument that the decedent’s use of tangible

personal property was insufficient to satisfy the statute because the governmental

entity had to use the property to waive immunity. Id. at *6–7. The court held that

the City used the cell improperly by failing to provide the decedent with garments

that could not have been used to commit suicide. Id. at *7. We acknowledge the

factual similarity between Martinez and this case. In both cases, the inmates used

clothing and city-owned property to commit suicide. However, we decline to

follow Martinez, which is inconsistent with subsequently decided Supreme Court

authority that clarified that a governmental unit does not use “property merely by

allowing someone else to use it and nothing more.” San Antonio State Hosp. v.

Cowan, 128 S.W.3d 244, 246 (Tex. 2004) (no waiver of immunity when suicidal

hospital patient committed suicide with suspenders and walker); see also Dallas

Cty. v. Posey, 290 S.W.3d 869, 871–72 (Tex. 2009) (per curiam) (no waiver of

immunity when inmate committed suicide with a telephone cord).




                                        12
      We conclude that the Rogges’ claim is properly classified as a premises-

defect claim, and not one based on the use of tangible personal property. This is

not a case in which liability is predicated upon any “affirmative, contemporaneous

conduct” by the City’s employees, Del Lago Partners, 307 S.W.3d at 776, but

instead depends upon the duty of care owed by the City to people held in the police

station’s holding cell. See DeWitt, 904 S.W.2d at 653; Sampson, 2016 WL

3212996, at *4. Accordingly, we overrule the Rogges’ first issue, which is based

on the specific theory that “the death of Richard Hollis Rogge was caused by the

City’s use of tangible personal property.”

      We also overrule their fourth issue, which is similarly premised on the

incorrect assumption that the petition embodied distinct claims based on the City’s

alleged use of tangible personal property and also based on an alleged premises

defect. The claim was based on an alleged premises defect, not use of tangible

personal property, see Sampson, 2016 WL 3212996, at *3, and the City’s motion

for summary judgment and plea to the jurisdiction properly presented the immunity

defense that Rogge’s death was not caused by a defective condition of tangible

property.




                                         13
II.   Premises-liability claim based on condition of tangible personal
      property
      In their second issue, the Rogges argue that the trial court erred by

dismissing their case because immunity was waived due to the condition of the

metal grate, which they contend caused their son’s death.

      A condition of property may be a basis for waiver of governmental

immunity when it makes the property inherently dangerous and “poses a hazard

when the property is put to its intended and ordinary use.” Rusk State Hosp., 392

S.W.3d at 99. When waiver of immunity is premised on a condition of property,

“there must be a nexus between the condition of the property and the injury.”

Posey, 290 S.W.3d at 872. “This nexus requires more than mere involvement of

property; rather, the condition must actually have caused the injury.” Id. (citing

Dallas Cty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339,

342–43 (Tex. 1998)). Thus immunity may be waived when a plaintiff alleges that

the governmental entity has provided him with property lacking an integral safety

component and that the lack of such safety component caused his injuries. Rusk

State Hosp., 392 S.W.3d at 99; Cowan, 128 S.W.3d at 247.

      On appeal, the Rogges contend that the metal grate’s ventilation holes were

“too large” and that an “integral safety component” was lacking.2 They rely on


2
      See Appellants’ Br. at 24–28. Our dissenting colleague reformulates the
      Rogges’ arguments on appeal to emphasize the placement of the grate

                                        14
excerpts from the architect’s deposition and his report to support their claim that

the ventilation holes in the metal grate were too large for use in a holding cell and

that a mesh backing was required. They argue that the mesh backing was an

integral safety component that the metal grate lacked.

      The architect testified that contemporaneous industry recommendations

promoted the use of smaller ventilation holes as an additional means to prevent

suicide, along with the preferred methods of identifying at-risk individuals and

      “directly over the toilet in the holding cell” as a critical aspect of the
      challenged condition of tangible personal property in this case. In fact, while
      the placement of the toilet is discussed in the factual background section of
      the Rogges’ brief to explain how the suicide occurred, the toilet is not
      referenced anywhere in the legal analysis. The placement of the grate over
      the toilet is particularly absent from the section of legal analysis arguing that
      the Rogges’ injuries “were caused by the condition of tangible personal
      property.” See id. Rather, in support of the argument that they pleaded facts
      sufficient to meet jurisdictional pleading requirements, the brief states
      simply: “The petition stated that Rogge was provided tangible personal
      property that was inadequate, defective and/or lacking an integral safety
      component, namely the grate in the holding cell that Rogge was placed in.”
      Id. at 26. The Rogges’ appellate argument did not rely on the design of the
      jail cell or the relative placement of the toilet as an allegedly defective aspect
      of a condition of tangible personal property. Nor did it rely upon any alleged
      deprivation of depression medication. We do not consider arguments that
      were not urged on appeal. See, e.g., Bunton v. Bentley, 153 S.W.3d 50, 53
      (Tex. 2004) (“ordinarily, an appellant waives any complaint about the trial
      court’s judgment that is not raised in the court of appeals”). “‘The premise
      of our adversarial system is that appellate courts do not sit as self-directed
      boards of legal inquiry and research, but essentially as arbiters of legal
      questions presented and argued by the parties before them.’” Nat’l
      Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 148 n.10, 131 S. Ct.
      746, 757 n.10 (2011) (Alito, J.) (quoting Carducci v. Regan, 714 F.2d 171,
      177 (D.C. Cir. 1983) (Scalia, J.)).


                                          15
closely monitoring them. He did not testify that the metal grate lacked an integral

safety component. Contrary to the description in the Rogges’ brief, the deposition

excerpts in the appellate record also do not show the expert testifying “that tear

away clothing and/or the lack of clothing should have been provided to Rogge as

he was intoxicated, under the influence of antidepressants and a suicide risk.” To

the contrary, when asked if he would have “believed it appropriate for Mr. Rogge

to have been detained in this cell with no clothes on,” the architect declined to

answer, saying he lacked sufficient information and explaining other measures law

enforcement officers can use to prevent inmate suicide—such as identification and

monitoring of at-risk individuals.

      There is no evidence in the appellate record that the metal grating was

inherently dangerous or hazardous in its intended use as a cover for the air vent.

None of the jurisdictional facts show that the condition of the grate actually caused

the injury. See Rusk State Hosp., 392 S.W.3d at 99; Posey, 290 S.W.3d at 872.

      Our dissenting colleague suggests that the Rogges should be permitted an

opportunity to replead and cure the jurisdictional defect. The pleadings already

were amended in response to the jurisdictional challenge, and the Rogges have not

suggested how they would amend their pleadings if given a second opportunity to

do so. “For a defective condition to be the basis for complaint, the defect must pose

a hazard in the intended and ordinary use of the property.” Posey, 290 S.W.3d at



                                         16
872. Even if the pleadings were amended to allege that the intended and ordinary

use of the metal grate was to prevent an inmate from escaping through the air vent,

the allegedly defective combination of the large holes and the lack of mesh backing

would not have actually caused this injury. See id. Likewise, even if the Rogges

challenged the placement of the toilet as a defective condition of real property, that

would not establish that the toilet posed a hazard when put to its intended and

ordinary use. See id. Even an allegation that the metal grate, the relative placement

of the toilet, and the failure to provide tear-away clothing combined to create a

premises defect would not adequately allege a nexus between a dangerous

condition of real property and the cause for the tragic suicide that occurred in the

jail cell. See id. In the absence of an argument suggesting how the pleadings might

be cured, a remand would serve no purpose. See Texas A & M Univ. Sys. v.

Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

      We therefore hold that the City’s immunity was not waived by a defective

condition of real property, and we overrule the Rogges’ second issue.3




3
      Based on our conclusion that governmental immunity has not been waived
      pursuant to the Tort Claims Act, TEX. CIV. PRAC. & REM. CODE
      § 101.021(2), it is unnecessary for us to address the Rogges’ third issue,
      which challenged the application of the statutory discretionary-function
      exception to waiver of immunity, id. § 101.056, argued by the City in the
      trial court. See TEX. R. APP. P. 47.1.

                                         17
                                   Conclusion

      We affirm the judgment of the trial court.




                                             Michael Massengale
                                             Justice

Panel consists of Justices Keyes, Massengale, and Lloyd.

Justice Keyes, dissenting.




                                        18
