                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-06-196-CV


ARNOLDO DOMINGUEZ, INDIVIDUALLY,                      APPELLANTS
AND AS HEIR OF THE ESTATE OF
MIRNA DOMINGUEZ, DECEASED;
MARIA DOMINGUEZ, INDIVIDUALLY,
AND AS HEIR OF THE ESTATE OF
MIRNA DOMINGUEZ, DECEASED;
FERMIN VITOLAS, INDIVIDUALLY,
AND AS HEIR OF THE ESTATE OF
FERNANDO FERMIN VITOLAS, DECEASED;
EMILIA OLIVIA CARRILLO DE VITOLAS,
INDIVIDUALLY, AND AS HEIR OF THE ESTATE
OF FERNANDO FERMIN VITOLAS, DECEASED

                                          V.

THE CITY OF FORT WORTH, TEXAS                           APPELLEE

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          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                      ------------

                         MEMORANDUM OPINION 1

                                      ------------


    1
        See T EX. R. A PP. P. 47.4.
      This is an interlocutory appeal from the trial court’s order granting the

City of Fort Worth, Texas’s (hereinafter the “City”) plea to the jurisdiction. We

reverse.

      On or about June 1, 2004, at approximately 8:15 p.m., Fernando Fermin

Vitolas, along with his passenger, Mirna Dominguez (hereinafter collectively

“Decedents”), were traveling west on NE 28th Street in Fort Worth, Texas, in

a 1992 Geo Metro. Decedents were on their way to meet Fernando’s mother,

appellant Emilia Olivia Carrillo de Vitolas, on Decatur Avenue in Fort Worth,

where she was departing on a bus trip to Mexico.            There were severe

thunderstorms in the Fort Worth area at the time.

      At the intersection of NE 28th Street and Decatur Avenue, the police

were redirecting traffic because Decatur Avenue was beginning to flood due to

the heavy rains. Fernando turned his vehicle around and headed back east on

NE 28th Street. Fernando then made a left turn onto Schwartz Avenue and

another left turn onto Vera Cruz Street, where he successfully traversed a

flooded low water crossing equipped with a sign stating, “Warning Watch For

Flash Flooding.” He continued on until he turned on Schadt Street, only to

discover that it was a dead end road.

      Fernando turned the car around and made a right turn back onto Vera

Cruz Street where he came upon another flooded low water crossing marked

                                        2
by a sign stating, “Warning Watch For Flash Flooding.” This was not a thru

street, however, and Fernando found that the other end of the low water

crossing terminated in a grassy area with no visible roadway.

      Before attempting to drive across this flooded low water crossing a

second time, Fernando decided to wait for the water to subside.2 After waiting

approximately 20-25 minutes, Fernando exited his car to inspect the water

level. A water depth indicator that had been placed by the City at this crossing

was missing. Fernando then attempted to drive across the flooded crossing.

The decedents were swept away and drowned during the attempt.

      On October 6, 2005, appellants filed suit against the City under Sections

101.021(2), 101.022(b), and 101.060(a)(2) of the Texas Tort Claims Act (the

“Act”), alleging that the decedents’ deaths were caused by the missing flood

depth gauge and that the City failed to replace the missing gauge within a

reasonable time after notice that the gauge was missing.

      On April 25, 2006, the City filed a plea to the jurisdiction based upon

governmental immunity. After a hearing, the trial court granted the City’s plea

to the jurisdiction and dismissed the suit.




      2
       According to appellants, Fernando had some difficulty traversing the
crossing the first time due to the high water.

                                       3
      In four issues, appellants contend that 1) the decedents’ knowledge of

the flooding is not a bar to recovery because the applicable standard of care is

that of a landowner to an invitee; 2) the City did not warn of the absence of the

missing water depth gauge or the severity of the hazard posed by the flooding;

3) the affidavit they submitted in support of their response to the City’s plea to

the jurisdiction is legally sufficient; and, 4) a genuine issue of material fact

exists as to whether the absence of the water depth gauge caused the

decedents’ deaths.

      Generally, a governmental unit 3 enjoys sovereign immunity from suit and

may be sued only if liability arises under the Act.4 If a plaintiff fails to prove the

existence and violation of a legal duty sufficient to impose liability under the

Act, sovereign immunity remains intact.5

      Under the Act, a governmental unit has liability 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




      3
        A “governmental unit” includes political subdivisions of the state such
as cities. T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.001(3)(B) (Vernon 2005).
      4
          See id. § 101.025 (Vernon 2005).
      5
          See City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986).

                                          4
according to Texas law.” 6       To state an actionable claim under section

101.021(2) based upon the condition, use, or misuse of property, personal

injury or death must be proximately caused by the condition or use of the

property.7

      In cases where the claim arises from a premises defect involving real

property, section 101.022(a) of the Act limits the governmental unit’s liability

to that which a private person would owe to a licensee on private property. 8

Under section 101.022(b), however, this limitation of duty does not apply to

the duty to warn of special defects, or to “the duty to warn of the absence,

conditions, or malfunction of traffic signs, signals, or warning devices as is

required by section 101.060.” 9 The relevant provisions of section 101.060

exclude liability for claims involving injuries caused by the absence, condition,

or malfunction of a traffic or road sign, signal or warning devices “unless the

absence, condition or malfunction is not corrected by the responsible

governmental unit within a reasonable time after notice.” 10


      6
      T EX. C IV. P RAC. & R EM. C ODE A NN. § 101.021(2) (Vernon 2005).
      7
          Id.
      8
          Id. § 101.022(a) (Vernon 2005 & Supp. 2007).
      9
          Id. § 101.022(b).
      10
           Id. § 101.060(a)(2) (Vernon 2005).

                                        5
      Appellants contend that decedents’ knowledge that the bridge was

flooded does not bar their recovery under section 101.060 of the Act. We

agree. By its own terms, the limitation of duty in section 101.022 applicable

to premises defects does not apply to section 101.060: “The limitation of duty

in this section does not apply to the duty to warn of the . . . absence . . .

of . . . warning devices . . . as is required by section 101.060.” 11 Section

101.060(a)(2) conditions liability on whether the absence, condition, or

malfunction of a traffic or road sign, signal, or warning device is corrected by

the governmental unit within a reasonable time after notice.12 Consequently,

the City’s liability in this case is dependent, in part, on whether the missing

water depth gauge was corrected within a reasonable time after notice, not on

whether decedents knew the bridge was flooded.13



      11
           Id. § 101.022(b).
      12
           Id. § 101.060(a)(2).
      13
        See City of Baytown v. Peoples, 9 S.W.3d 391, 396–97 (Tex. App.—
Houston [14th Dist.] 1999, no pet). The facts in Corbin v. City of Keller, 1
S.W.3d 743 (Tex. App.—Fort Worth 1999, pet. denied), are distinguishable.
In Corbin, the appellants asserted a claim under section 101.022, alleging that
the flooding at a low-water crossing was a special defect of which the City of
Keller failed to warn, or to take steps to make safe. Id. at 746–48. Here,
appellants’ claim is brought under section 101.060, based on the alleged failure
of the City to warn of a missing water depth gauge and to replace the gauge
within a reasonable time after notice. Appellants in this case do not contend
that the flood waters were a special defect.

                                       6
      Appellants allege in their pleadings that the water depth gauge where the

incident in question occurred had been missing for two years prior to the

incident, and that the City had notice that the gauge was missing prior to the

incident but failed to replace the gauge within a reasonable time after notice.

The City does not challenge these jurisdictional allegations. Instead, the City

argues that it satisfied its duty under section 101.060 by warning the

decedents “of the flood waters.” This warning, however, is immaterial to the

appellants’ claim under section 101.060(a)(2) that the City failed to timely

replace the water depth gauge or to warn of its absence.

      In the alternative, the City asserts that the missing water depth gauge

was not the proximate cause of the decedents’ deaths. In support of this

assertion, the City submitted the affidavit of an eyewitness, Bobby Miller.

According to Miller, the level of the water flowing over the bridge “stayed

approximately the same” between the time of the decedents’ first successful

crossing of the bridge and their attempted second crossing. The City contends

that this affidavit testimony proves that the missing gauge was not the

proximate cause of the accident because the decedents knew the depth of the

water during their attempted second crossing.

      Contrary to the City’s interpretation of Miller’s affidavit, we conclude that

the affidavit raises a genuine issue of fact as to whether the water level

                                        7
increased between the decedents’ two crossings and, thus, whether the

absence of the water gauge proximately caused their deaths.             The Miller

affidavit establishes that there was a “severe thunderstorm along with heavy

rain” before the decedents attempted the second crossing; that “the

[decedents’] vehicle’s headlights were turned off at that time”; and that Miller’s

“power had gone out because of the storm.” The affidavit does not establish

the depth of the water during either crossing.

      Proximate cause is usually a question of fact unless the evidence is

undisputed and only one reasonable inference may be drawn.14 Because the

jurisdictional facts challenged by Miller’s affidavit are disputed, and because the

affidavit does not conclusively establish the depth of the water when the

decedents crossed the bridge, we hold that the trial court could not grant the

City’s plea to the jurisdiction on the ground that the decedents’ deaths were

not proximately caused by the missing gauge as a matter of law.15

      Finally, the City contends for the first time on appeal that it is immune

from suit under Section 101.055(2), which is referred to as the “emergency




      14
     See Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 266 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied).
      15
       See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–
28 (Tex. 2004).

                                        8
response doctrine,” based on City police officers’ diversion of decedents from

Decatur Avenue due to flooding.16 This provision states that the Act “does not

apply to a claim arising . . . from the action of an employee while responding

to an emergency call or reacting to an emergency situation if the action is in

compliance     with     the   laws   and   ordinances   applicable   to   emergency

action . . . .” 17    The City contends that “[w]hile Appellants do not list the

diversion as a formal cause of action, they intimate that the diversion did in fact

cause [the decedents] to lose their way and end up at the intersection of

Schadt and Vera Cruz Streets, where they drowned.”             There is, however,

nothing in appellants’ pleadings that suggests that the decedents’ deaths were

caused by the actions of City police officers. To the contrary, appellants assert

in their brief on appeal that the police officers “did not cause decedents to

cross the bridge that they were swept off of.” We, therefore, hold that the

emergency response doctrine is inapplicable to this case.

      In conclusion, appellants have alleged facts in their pleadings that

affirmatively demonstrate the trial court’s jurisdiction to hear appellants’ cause



      16
       See T EX. C IV. P RAC . & R EM. C ODE A NN. § 101.055(2) (Vernon 2005).
Generally, a challenge to subject matter jurisdiction may be raised at any time.
See Gorman v. Life Ins. Co. of N. Amer., 811 S.W.2d 542, 547 (Tex.), cert.
denied, 502 U.S. 824 (1991).
      17
      T  EX. C IV. P RAC. & R EM . C ODE A NN. § 101.055(2).

                                           9
under section 101.060 of the Act, and the evidence submitted by the City on

the issue of proximate cause creates a fact question that defeats the City’s plea

to the jurisdiction.18 Therefore, the judgment of the trial court is reversed and

the cause is remanded to the trial court for further proceedings.




                                                 JOHN CAYCE
                                                 CHIEF JUSTICE


PANEL A: CAYCE, C.J.; LIVINGSTON and DAUPHINOT, JJ.

DELIVERED: March 6, 2008




      18
        Miranda, 133 S.W.3d at 227–28. Having sustained appellants’ first,
second, and fourth issues to reach this conclusion, it is unnecessary for us to
reach appellants’ third issue challenging the legal sufficiency of Miller’s
affidavit. See T EX. R. A PP. P. 47.1.

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