                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS


AMERICA TIRADO,                                   §
                                                                    No. 08-10-00334-CV
                               Appellant,         §
                                                                       Appeal from the
v.                                                §
                                                                     327th District Court
                                                  §
THE CITY OF EL PASO,                                              of El Paso County, Texas
                                                  §
                                Appellee.                              (TC# 2009-393)
                                                  §


                                            OPINION

       This is an accelerated interlocutory appeal from a trial court order granting the City of

El Paso=s plea to the jurisdiction. The suit arises out of a June 2008 car accident between Michael

Joseph Lynch and Hilda Muniz Morales. The accident occurred when Muniz failed to observe a stop

sign allegedly obscured by palm tree fronds. For the reasons that follow, we reverse and remand.

                                        FACTUAL SUMMARY

       The car accident between Lynch and Muniz occurred at the intersection of North Campbell

Street and Cincinnati Avenue. Campbell runs north and south while Cincinnati runs east and west.

Lynch was driving on Cincinnati while Muniz was traveling south in the 2700 block of Campbell.

The City had erected a stop sign at the northwest corner of the intersection, controlling southbound

traffic on Campbell, but Muniz did not see it and failed to yield the right-of-way. According to the

pleadings, the view of the stop sign was obscured by the fronds of a palm tree.

       Appellant, America Tirado, lived at the northwest corner residence. The palm trees were

located on the parkway between the sidewalk and the street curb, running along the side of Tirado=s
home.

        Lynch filed suit against Muniz and Tirado alleging negligence causes of action against each

defendant. As to Muniz, he complained: (1) she failed keep a lookout Aas a person of ordinary

prudence would have kept under the same or similar circumstances;@ (2) she failed to yield the right-

of-way; (3) she ran into Lynch=s car; and (4) she failed to stop at the stop sign. With respect to

Tirado, the petition alleged she was negligent in: (1) allowing her palm tree to obscure a stop sign;

(2) covering up a stop sign; and (3) failing to keep her landscape from interfering with traffic signals.

Muniz filed a cross-claim against Tirado alleging that she was negligent in allowing a palm tree to

obscure the stop sign, which was the proximate cause of the collision between Lynch and Muniz.

        Once it became apparent that Muniz intended to argue that she failed to yield the right-of-way

because she could not see the stop sign due to the palm trees, Lynch amended his petition to include

the City of El Paso, complaining that the City: (1) created an unsafe condition; (2) failed to warn

plaintiff of the dangers; (3) failed to adequately correct the obstruction of palm fronds at the

intersection of Cincinnati and Campbell; and (4) failed to cut the palm tree before the wreck.

        In response, the City filed a general denial, affirmative defenses, special exceptions, and a

cross-claim against Tirado, alleging that as owner/occupant of the property located at the corner of

Cincinnati and Campbell, she was in violation of El Paso Municipal Code Sections 12.068.030(A)

and (E):



        It shall be the duty of every owner or occupant of any corner lot in the City to keep
        any and all trees trimmed and pruned of limbs, branches and foliage to a minimum
        clearance of ten feet above the street level at the nearest curb line in that area of a
        triangle formed by the intersecting property lines and a diagonal line joining the
        property lines at points twenty feet from their intersection on such corner lot. . . .

                                                  -2-
       Notwithstanding the provisions of any other section in this chapter it is unlawful for
       any person to place, plant or maintain any plant, tree, or other object in such a manner
       as to obstruct from view any traffic-control device.

Muniz then amended her cross-claim against Tirado to include the City of El Paso.

       The City filed a plea to the jurisdiction, contending that all allegations were barred by

governmental immunity. It attached the deposition testimony of Tirado; a series of photographs

taken the day of the incident; a service request form generated by the City showing a ANo Parking

Anytime@ sign was damaged by the accident between Lynch and Muniz; an incident report; a letter

from Lynch to the Mayor and City Council notifying them that he had been injured in a car accident

at the intersection of Campbell and Cincinnati; and excerpts of several City ordinances from the

El Paso Municipal Code.

       Tirado filed a response to the City=s plea and a cross-claim against the City for contribution

alleging that the palm trees and the stop sign are located on property owned and controlled by the

City. She alleged that the City knew or should have known of the obstruction and that under Section

101.060(a)(2) of the Texas Tort Claims Act, the City waived its immunity. The trial court granted

the plea and this appeal follows.

                                PLEA TO THE JURISDICTION

       A plea to the jurisdiction is a dilatory plea by which a party challenges the court=s authority to

determine the subject matter of a cause of action. Bland Independent School Dist. v. Blue, 34

S.W.3d 547, 554 (Tex. 2000); see Texas Department of Transp. v. Jones, 8 S.W.3d 636, 637-38

(Tex. 1999). A governmental unit=s sovereign immunity deprives a trial court of subject matter

jurisdiction. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)

Therefore, a governmental unit, such as The City of El Paso, properly raises the issue by a plea to the

                                                  -3-
jurisdiction. Id.

       In asserting the plea, the plaintiff bears the burden to allege facts affirmatively proving that

the trial court has subject matter jurisdiction. Texas Dept. of Criminal Justice v. Miller, 51 S.W.3d

583, 587 (Tex. 2001); Texas Ass=n of Business v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.

1993). To sue a governmental unit, the pleadings must allege consent to suit either by reference to

statute or express legislative permission. Jones, 8 S.W.3d at 638-39; City of El Paso v. Chacon, 148

S.W.3d 417, 421 (Tex.App.--El Paso 2004, pet. denied). To prevail on a plea to the jurisdiction, the

defendant must show an incurable jurisdictional defect on the face of the pleadings. City of Austin v.

Rangel, 184 S.W.3d 377, 381 (Tex.App.--Austin 2006, no pet.), citing MAG-T, L.P. v. Travis Cent.

Appraisal Dist., 161 S.W.3d 617, 624 (Tex.App.--Austin 2005, pet. denied).

                                         Standard of Review

       The existence of subject matter jurisdiction is a legal question which we review de novo.

Miranda, 133 S.W.3d at 226-27; State Dept. of Highways and Public Transp. v. Gonzalez, 82

S.W.3d 322, 327 (Tex. 2002). In conducting our review, we do not look at the merits of the case but

construe the pleadings liberally in favor of the plaintiff, look to the pleader=s intent, and accept the

pleadings= factual allegations as true. Texas Dept. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex.

2002); Texas Ass=n of Business, 852 S.W.2d at 446; Arnold v. University of Texas Southwestern

Medical Center at Dallas, 279 S.W.3d 464, 467 (Tex.App.--Dallas 2009, no pet.); City of Austin v.

Lamas, 160 S.W.3d 97, 100 (Tex.App.--Austin 2004, no pet.).

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence submitted by the parties to the extent necessary to resolve the jurisdictional issues

raised, just as the district court is required to do. Miranda, 133 S.W.3d at 227, citing Bland Ind. Sch.

                                                  -4-
Dist., 34 S.W.3d at 555. Where a plea to the jurisdiction includes evidence, and the jurisdictional

challenge implicates the merits of the plaintiff=s cause of action, the trial court reviews the relevant

evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. If the evidence shows a

fact question regarding the jurisdictional issue, a plea to the jurisdiction may not be granted and the

fact finder should resolve the fact issue. Id. at 228. However, if the relevant evidence is undisputed

or fails to raise a fact question on the jurisdictional issue, the plea to the jurisdiction may be ruled on

as a matter of law. Id.

                                           Issues for Review

        On appeal, Tirado complains that the trial court erred because (1) sufficient facts were pled

demonstrating jurisdiction; (2) the City owns and controls the stop sign, has exerted control over the

maintenance of the palm tree, and therefore has a duty to maintain the stop sign clear from

obstruction; (3) a fact question exists with respect to whether the City knew or should have known

that the stop sign was obstructed; and (4) a fact question exists with respect to whether the City

corrected the defect.

                                      Sufficiency of the Pleadings

        Generally, the State, its agencies, and subdivisions enjoy sovereign immunity from tort

liability. See The University of Texas at Austin v. Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010);

Chacon, 148 S.W.3d at 421. Here, it is undisputed that a municipality such as the City of El Paso is

a Agovernmental unit@ under the Texas Tort Claims Act (Athe Act@) and therefore immune from

liability for governmental functions unless that immunity is specifically waived. Miranda, 133

S.W.3d at 225; Chacon, 148 S.W.3d at 421. When a claim is barred by sovereign immunity, the trial

court lacks subject-matter jurisdiction and dismissal with prejudice is proper. Miranda, 133 S.W.3d

                                                   -5-
at 224, 225. The Texas Tort Claims Act provides a limited waiver of sovereign or governmental

immunity in certain situations, to the extent of liability for:

        [P]ersonal 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(2)(West 2011). Section 101.060(a)(2) limits the extent

of governmental liability in Section 101.021 above by providing that the chapter allowing for

governmental liability does not apply to a claim arising from:

        [T]he 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)(2).

        We first consider whether the pleadings and relevant jurisdictional evidence state a claim

under which the City may have waived its immunity under Section 101.060(a)(2). See Bland Indep.

Sch. Dist., 34 S.W.3d at 555 (AIn sum, a court deciding a plea to the jurisdiction is not required to

look solely to the pleadings but may consider evidence and must do so when necessary to resolve the

jurisdictional issues raised. The court should, of course, confine itself to the evidence relevant to the

jurisdictional issue.@).

        The pleadings here were initially sufficient to state the basis of the trial court=s jurisdiction

predicated on the alleged waiver of sovereign immunity under Section 101.060(a)(2). The record

demonstrates that Lynch and Muniz pled that their injuries arose out of an automobile accident

which was proximately caused by the City=s negligence in failing to maintain a stop sign free from

obstruction. Both parties pled palm tree fronds obstructed the stop sign. The Texas Supreme Court

has held that the obstruction of a stop sign by branches and/or trees is a Acondition@ of the sign within

                                                  -6-
Section 101.060(a)(2). See Lorig v. City of Mission, 629 S.W.2d 699 (Tex. 1982). Additionally,

Tirado specifically alleged the City waived its immunity under Section 101.060(a)(2). Therefore, it

is clear from the pleadings that the parties are alleging the City is liable for injuries caused by a

condition of Atangible personal or real property,@ i.e. the obstructed stop sign, and that any limitation

placed on the City=s liability under Section 101.060(a)(2) does not apply because the City had actual

or constructive knowledge of the defect prior to the accident and failed to correct it. Therefore, to

the extent Tirado=s first issue argues the pleadings were sufficient to allege a claim, we sustain Issue

One.

                                        Is There a Fact Issue?

        Where, as here, a defendant tenders evidence to establish that the trial court lacks subject-

matter jurisdiction as a matter of law, the burden shifts to the plaintiff to demonstrate the existence of

a material fact regarding the jurisdictional issue. Miranda, 133 S.W.3d at 228; TEX.R.CIV.P.

166(a)(c). Under this procedure, the City cannot simply deny the existence of jurisdictional facts and

force the plaintiff=s to raise a fact issue. See TEX.R.CIV.P. 166(a)(i); Johnson v. Brewer & Pritchard,

P.C., 73 S.W.3d 193, 207 (Tex. 2002). To prevail on its plea to the jurisdiction, the City must

demonstrate an incurable defect in the pleadings. In other words, the City has the burden to show

through its plea to the jurisdiction and attached evidence that it did not owe a duty as a matter of law

and therefore the claims are barred by sovereign immunity. See Robnett v. City of Big Spring, 26

S.W.3d 535, 538 (Tex.App.--Eastland 2000, no pet.).

        In Robnett, the trial court granted summary judgment based on sovereign immunity in a

dispute over the city=s failure to maintain a stop sign allegedly obstructed by an elm tree. Robnett, 26

S.W.3d at 536-38. The Eastland Court of Appeals reversed the decision. Id. The court relied on the

                                                   -7-
fact that evidence introduced through affidavits indicated that there had been prior accidents due to

the obstructed sign, that the police officer on the scene personally knew that the tree in question was

a problem, and, according to the trial judge, that Aeveryone in town@ knew about the intersection. Id.

at 537. The court held that for governmental immunity to be waived under Section 101.060(a)(2),

the governmental unit must have either known or should have known of the condition within a

reasonable time after notice. Id. at 538. The court then reasoned that the Section 101.022(a)

limitation on premises defects that actual notice be shown does not govern special defects under

Section 101.060 and that, had the Legislature wanted to require actual notice in Subsection (a)(2) as

it requires in Subsection (a)(3), then it Acertainly knew how to so provide, but it did not.@ Id.

        In Kenneally v. Thurn, 653 S.W.2d 69 (Tex.App.--San Antonio 1983, writ ref=d n.r.e.), the

plaintiffs brought suit for injuries received by Timothy Kenneally after a car accident. Kenneally,

653 S.W.2d at 71. Plaintiffs sued the other driver for negligence, his father (under the theory of

negligent entrustment), the City of San Antonio (for negligently permitting obstruction of a stop sign

by crepe myrtle bushes); and (4) the occupant of the home at the corner where the accident occurred

(for negligent failure to trim the bushes which were located on her property but within the City=s

easement). Id. The case proceeded to a jury trial, but after the jury had been empaneled and sworn,

the plaintiffs announced they had settled their claim against the home owner and took a nonsuit as to

her. Id. At the close of testimony, the trial court granted the City=s motion for instructed verdict. Id.

The court of appeals reversed, noting that Athe obstruction of a traffic sign by trees or bushes is a

>condition= of such sign, exposing the municipality to liability under [the Act] for negligent failure to

keep the view of the sign unobstructed.@ Id. at 72. The court added:

        There is sufficient evidence to raise a question of fact as to whether the condition had

                                                  -8-
       existed for such a length of time that City, in the exercise of reasonable diligence,
       should have discovered it. The photographs introduced in evidence showed that the
       bushes were scraggly, indicating that they had not been trimmed in some time. One
       of the residents in the area testified that the bushes had been there as long as she
       could remember. The evidence also showed that various police officers of the City,
       while on routine patrol, drove through the intersection, driving in an easterly
       direction, several times a month.

Id.

       To prevail on appeal, Tirado must demonstrate the existence of a fact issue with respect to

whether the City had either type of notice. See id. The evidence includes deposition testimony and

traffic reports from three prior accidents at the intersection of Cincinnati and Campbell. See

University of Texas Pan-American v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)(noting that in

determining whether a party had notice, courts generally consider whether the party has previously

received reports of prior injuries). The first accident occurred on September 18, 2006. The second

and third accidents both occurred on September 11, 2007, within an hour of each other. According

to the September 11 accident reports, the officer who responded to the first accident was still at the

scene and witnessed the second accident. The driver who was traveling on Campbell and failed to

stop informed the officer that she could not see the stop sign because it was obstructed by a tree

branch. The evidence also includes deposition testimony from Daryl Cole, the director of the City=s

street department, who said that based on the two accidents occurring on the same day, there must

be an issue with respect to visibility of the stop sign at the intersection. Finally, the evidence

includes affidavits from three City of El Paso employees who all stated that they are trained to

recognize visual obstructions that would interfere with traffic and remove them immediately. Based

on the relevant jurisdictional evidence, a fact issue exists with respect to whether or not the City

waived immunity under Section 101.062 of the Act. We sustain Issues Three and Four.

                                                 -9-
                                       The Municipal Codes

       In Issue Two, Tirado argues that the trial court erred because the City owns and controls the

stop sign, has exerted control over the maintenance of the palm tree, and therefore has a duty to

maintain the stop sign clear from obstruction. The governmental duties owed by the City are

governed by Section 101.022. See TEX.CIV.PRAC.&REM.CODE ANN. § 101.022; Chacon, 148

S.W.3d at 421-22. Section 101.022(a) provides:

       (a) [I]f a claim arises from a premise defect, the governmental unit owes to the
       claimant only the duty that a private person owes a licensee on private property,
       unless the claimant pays for the use of the premises. [Emphasis added].

TEX.CIV.PRAC.&REM.CODE ANN. § 101.022(a). The duty articulated in this subsection requires:

       [T]hat a landowner not injure a licensee by willful, wanton, or grossly negligent
       conduct, and that the owner use ordinary care either to warn a licensee of, or to make
       reasonably safe, a dangerous condition of which the owner is aware and the licensee
       is not.

See Robnet, 26 S.W.3d at 537, citing State Department of Highways & Public Transportation v.

Payne, 838 S.W.2d 235, 237 (Tex. 1992).           Section 101.022(a) limits the duty owed by a

governmental unit by requiring actual knowledge of the dangerous condition. This limitation is

recognized in Subsection (b) of Section 101.022, which provides:

       (b) The limitation of duty in this section does not apply to the duty to warn of special
       defects such as excavations or obstructions on highways, roads, or streets or to the
       duty to warn of the absence, condition, or malfunction of traffic signs, signals, or
       warning devices as required by Section 101.060. [Emphasis added].

TEX.CIV.PRAC.&REM.CODE ANN. § 101.022(b).               In cases involving a special defect, the

governmental unit owes a claimant the duty that a private landowner owes an invitee. Robnett, 26

S.W.3d at 537, citing County of Harris v. Eaton, 573 S.W.2d 177, 180 (Tex. 1978). “That duty

requires the landowner to use ordinary care to reduce or eliminate an unreasonable risk of harm

                                                -10-
created by a condition of which the owner reasonably should be aware.” Robnett, 26 S.W.3d at 537,

citing Payne, 838 S.W.2d at 237.

        The record includes several excerpts of the El Paso Municipal Code which were submitted as

part of the City=s plea to the jurisdiction. The ordinances which the City cites place the burden on the

owner or occupier of a corner lot to keep trees trimmed to a certain clearance. The City appears to

rely on these codes to resolve any jurisdictional issue by claiming the municipal code sections relieve

the City of any duty, and therefore any liability, regarding the condition of stop signs located on

corner residential lots.

        Citing City of El Paso v. Chacon, 148 S.W.3d 417 (Tex.App.--El Paso 2004, pet. denied),

Tirado contends the City cannot use the ordinances to shift the responsibility for maintaining the

corner street sign to Tirado in such a way that the trial court would lack subject matter jurisdiction

over any claim against the City. In Chacon, the plaintiff was injured while walking down a sidewalk

when he stepped into a hole where a traffic control device or utility pole had once been placed.

Chacon, 148 S.W.3d at 417, 419. When the pole was removed, the hole was not covered and no

warning signs were posted. Id. at 419. The plaintiff claimed that at the time of the injury, the hole

was visually obstructed by foliage. Id. In its plea to the jurisdiction, the City argued that the defect

was an ordinary defect such that it owed only the duty of care that a private party owes a licensee.

Id. It also argued that under the applicable municipal code provisions, the duty to maintain the

sidewalk and remedy the defect (the visual obstruction) was shifted to the abutting property owner.

Id. at 419, 426. The trial court denied the plea and the City appealed. After determining that the

defect was a special defect, the court noted that actual knowledge was not necessary to establish a

claim based on a special defect. Id. at 425. A claimant must prove: (1) a condition of the premises,

                                                 -11-
(2) the owner knew or should have known of the condition; (3) the owner failed to exercise ordinary

care to protect the invitee from danger; and (4) the owner=s failure was a proximate cause of the

injury to the invitee. Id., citing Payne, 838 S.W.2d at 237. We then looked to Chacon=s pleadings to

determine whether he alleged facts which, if taken as true, sufficiently supported jurisdiction.

Chacon, 148 S.W.3d at 425-26. In finding Chacon properly pled a cause of action we reasoned:

       We find that Chacon sufficiently pled an unreasonable risk of harm, the first element,
       by stating that the hole was large, gaping, uncovered, and located on a pedestrian
       sidewalk. He pled that the hole was a condition about which the City knew or should
       have known since the City had installed the device and then removed it. Moreover,
       the hole had been there for a substantial period of time. This sufficiently pleads the
       second element. Third, Chacon pled failure to exercise ordinary care by stating that
       the City failed to repair the hole and failed to warn of the danger. Finally, Chacon
       pled that the accident was the direct and proximate cause of injuries he sustained to
       his back, leg, knee, and hips. The trial court properly denied the City=s motion to
       dismiss based on a plea to the jurisdiction.

Id. at 426. We then turned to the City=s argument regarding the City ordinances that shifted

responsibility to abutting property owners and examined El Paso Municipal Code Section 13.04.050:

       [H]ere, Section 13.04.050 operates as a >valid ordinance to the contrary.= While
       Section (A) requires an abutting owner to maintain the sidewalk, it does not impose a
       duty to comply with the ordinance, and does not in and of itself render the owner
       liable for injuries. He only becomes liable when the ordinance expressly imposes
       liability for injuries occasioned by the defective condition. Thus, we concentrate on
       Section (E): ‘The owner of property abutting . . . a sidewalk . . . that has become
       defective and has resulted in . . . injury . . . shall be primarily liable . . . for any loss
       or damage sustained . . . .= [Emphasis in original].

       The Supreme Court has examined a similar ordinance which provided that the
       abutting property owner should be ‘primarily liable’ for any damages sustained as a
       result of a defective condition. The terms >primarily liable= and >primary liability=
       were plainly relative and connoted secondary liability on the part of the city. Giving
       the phrases their ordinary and obvious meaning, the terms did not enlarge or diminish
       the liability of either the abutting owner or the city. >As between the two, the liability
       of the former is primary to that of the latter= but that otherwise, the liability of the two
       was identical because it arose from a breach of the same duty. [Citations omitted].


                                                   -12-
Id. at 427. We then concluded that, Athe abutting property owner=s duties and responsibilities under

the El Paso Municipal Code do not relieve the City of its liability.@ Id.

       The City argues that it is not seeking to shift responsibility but that it Ahas established, as a

matter of law that it neither knew nor should have known that the stop sign was obstructed prior to

June 30, 2008; therefore it remains immune.@ We disagree. The record contains crew reports

evidencing that the City was sent to trim the branches on at least two occasions after three separate

accidents. Each of the affidavits from the City=s employees acknowledges the need to remedy the

obstruction. While the City spins this evidence as proof it timely corrects problems of which it has

knowledge, it also demonstrates it had constructive notice that the palm fronds grew back and needed

regular pruning.

       Based on all the evidence, a jurisdictional fact issue exists concerning whether the City knew

or should have known of the alleged obstruction and failed to correct the situation prior to June 2008

when the accident occurred. Any issues regarding the relative responsibility of the parties is not

properly before this Court in reviewing the trial court=s order granting the plea to the jurisdiction.

                                          CONCLUSION

       A plea to the jurisdiction is a procedural hurdle and therefore this opinion does not serve to

indicate whether or not the plaintiff=s case will satisfy the requisite notice under Section

101.060(a)(2). See City of Austin v. Lamas, 160 S.W.3d 97, 103 (Tex.App.--Austin 2004, no pet.)

However, because we conclude that a jurisdictional fact issue exists, we reverse and remand.



January 11, 2012
                                               ANN CRAWFORD McCLURE, Chief Justice


                                                 -13-
Before McClure, J., Rivera, J., and DeHart, Judge
DeHart, Judge, sitting by assignment




                                             -14-
