                                 NUMBER 13-15-00542-CV

                                 COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI – EDINBURG

MASON CASTILLO,                                                                          Appellant,

                                                   v.

CITY OF EDINBURG AND THE UNIVERSITY
OF TEXAS–PAN AMERICAN,                                                                   Appellees.


                       On appeal from the 389th District Court
                             of Hidalgo County, Texas.


                             MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Longoria
                Memorandum Opinion by Justice Garza
        Appellant Mason Castillo filed suit against The University of Texas–Pan American

(UTPA)1 and the City of Edinburg (“the City”) for injuries he sustained when he was struck


        1 We note that the University of Texas–Pan American (UTPA) ceased to exist in September 2015.
That entity became a new university, The University of Texas Rio Grande Valley. We refer to the university
as UTPA because it was so designated at the time of the accident.
by a vehicle while riding his bicycle in a crosswalk on Sugar Road in Edinburg, Texas

adjacent to the UTPA campus. UTPA and the City each filed a plea to the jurisdiction;

the trial court granted both pleas. By a single issue, appellant contends the trial court

erred in granting the pleas because the placement of the yield sign on Sugar Road and

condition of the crosswalk pavement markings constituted a premises defect, which

waived the City’s and UTPA’s sovereign immunity. See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 101.021(2), 101.022 (West, Westlaw through 2015 R.S.). We affirm.

                                         I. BACKGROUND

       On February 22, 2013, Castillo, a student at UTPA, was crossing Sugar Road on

his bicycle in the crosswalk between the Wellness and Recreation Sports Complex and

the UTPA main campus when he was struck by a northbound pickup driven by Carlos

Valdez Jr. Castillo sued UTPA and the City, alleging that the yield signs were in a

defective condition because they were placed too close to the crosswalk and the

pavement markings were too faded to be clearly visible to drivers. Castillo alleged that

the defendants’ failure to maintain or repair the condition of the yield signs and pavement

markings proximately caused his injuries.

       The City filed a plea to the jurisdiction, in which it argued that there was no waiver

of its governmental immunity because: (1) it did not receive notice of appellant’s claims

within six months of the date of the accident, as required by section 101.101 of the civil

practice and remedies code, see id. § 101.101 (West, Westlaw through 2015 R.S.); (2)

the design of the crosswalk was entirely discretionary; (3) there was nothing wrong with

the crosswalk and the City did not have notice of a condition that needed correction; and

(4) the condition of the crosswalk did not cause or contribute to the accident. As evidence,



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the City attached: (1) a copy of the police report regarding the accident; (2) photographs

of the accident; (3) excerpts from Valdez’s deposition testimony; (4) a copy of the citation

issued to the City reflecting that the City was served with the lawsuit on November 12,

2013; (5) an affidavit by Estella Hinojosa, the City’s Risk Management Coordinator,

stating that the City received no notice of Castillo’s claim prior to being served with the

lawsuit; and (6) an affidavit by Ponciano Longoria, the City’s Director of Public Works,

stating that the crosswalk was repainted in August 2012 and that the City had no notice

of any need for repairs to the crosswalk prior to being served with Castillo’s suit.

        UTPA filed a plea to the jurisdiction, in which it argued that its sovereign immunity

was not waived because: (1) claims based on the performance or nonperformance of a

governmental unit’s discretionary acts—such as the failure to place traffic or road signals

or warnings—are exempted from the waiver of immunity for premises defects, see id. §

101.056 (West, Westlaw through 2015 R.S.); (2) Castillo has not alleged a viable

premises liability claim; and (3) the evidence established that the crosswalk markings did

not proximately cause the accident. In support of its plea, UTPA attached: (1) a copy of

the police report regarding the accident; (2) a video showing the accident2; (3) excerpts

from Castillo’s deposition testimony; (4) Castillo’s interrogatory responses; (5) excerpts

from Valdez’s deposition testimony; (6) photographs of the scene of the accident; (7) a

copy of the Interlocal Cooperation Contract between the City and UTPA regarding the

purchase, installation, and maintenance of crosswalk signage; (8) Castillo’s live petition;

and (9) Ponciano Longoria’s affidavit stating that the July 8, 2010 Interlocal Cooperation



        2 The affidavit of Martin V. Baylor, which accompanied the video, stated that video of the accident
was captured by one of several video cameras installed on the UTPA campus for security purposes. The
video is not included in the record before us.

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Contract ended on May 31, 2010 and that at the time of the accident on February 22,

2013, the City owned and maintained Sugar Road and the crosswalk where the accident

occurred.

       On October 19, 2015, the trial court granted the City’s and UTPA’s pleas to the

jurisdiction without stating the grounds for its rulings.

                        II. STANDARD OF REVIEW AND APPLICABLE LAW

       A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of action

without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court's jurisdiction

over the subject matter of a pleaded cause of action. Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v. Morris, 129

S.W.3d 804, 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject-matter jurisdiction

is a question of law; therefore, an appellate court reviews de novo a trial court's ruling on

a plea to the jurisdiction. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807.

       “Sovereign immunity includes two distinct principles, immunity from suit and

immunity from liability.” Miranda, 133 S.W.3d at 224. “Immunity from liability is an

affirmative defense, while immunity from suit deprives a court of subject matter

jurisdiction.”   Id.   Because immunity from suit defeats a trial court's subject-matter

jurisdiction, it may be properly asserted in a jurisdictional plea. Id. at 225–26. In a suit

against a governmental unit, the plaintiff must affirmatively demonstrate the court's

jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley,

104 S.W.3d 540, 542 (Tex. 2003). We assume the truth of the jurisdictional facts alleged

in the pleadings unless the defendant presents evidence to negate their existence.



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Miranda, 133 S.W.3d at 226–27. If a plea to the jurisdiction challenges the jurisdictional

facts, we consider relevant evidence submitted by the parties to resolve the jurisdictional

issues raised. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2008) (citing Miranda,

133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555. If that evidence

creates a fact issue as to jurisdiction, then it is for the fact-finder to decide. City of Waco,

298 S.W.3d at 622; Miranda, 133 S.W.3d at 227–28. “However, if 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.” Miranda, 133 S.W.3d at 228. After the

defendant “asserts and supports with evidence that the trial court lacks subject[-]matter

jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and

subject matter jurisdiction are intertwined, to show that there is a disputed material fact

regarding the jurisdictional issue.”      Id.   This standard “generally mirrors” that of a

traditional motion for summary judgment. Id. When reviewing a plea to the jurisdiction in

which the pleading requirement has been met and evidence has been submitted to

support the plea that implicates the merits of the case, we take as true all evidence

favorable to the non-movant. Id.; see County of Cameron v. Brown, 80 S.W.3d 549, 555

(Tex. 2002). We do not “weigh the claims’ merits but must consider only the plaintiffs’

pleadings and the evidence pertinent to the jurisdictional inquiry.” Brown, 80 S.W.3d at

555.

       The Texas Supreme Court has long recognized that sovereign immunity, unless

waived, protects the State of Texas, its agencies, and its officials from lawsuits for

damages, absent legislative consent to sue the State. Miranda, 133 S.W.3d at 224.




                                                5
Sovereign immunity protects public universities. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 694 n.3 (Tex. 2003).

        “The Texas Tort Claims Act [TTCA] provides a limited waiver of sovereign

immunity.”     Miranda, 133 S.W.3d at 224 (citations omitted).               Sections 101.021 and

101.022 of the TTCA waive immunity in only three scenarios: (1) negligent operation or

use of a motor-driven vehicle or equipment by a state employee; (2) negligent use of

tangible personal property by a state employee, see TEX. CIV. PRAC. & REM. CODE ANN. §

101.021; and (3) premises defects, see id. § 101.022.

        If a claim arises from a premise defect and the recreational use statute does not

apply,3 the governmental entity owes to the claimant only the duty that a private person

owes to a licensee on private property, unless the claimant pays for the use of the

premises.4     Id. § 101.022(a); Sampson v. Univ. of Tex. at Austin, No. 14–0745,

___S.W.3d ___, ___, 2016 WL 3212996, at *2 (Tex. June 10, 2016); City of Irving v.

Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.). This duty requires the

landowner to avoid injuring a licensee by willful, wanton or grossly negligent conduct, and

to 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. Sampson, 2016 WL

3212996, at *2; State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237

(Tex. 1992) (op. on reh'g); Seppy, 301 S.W.3d at 441. To be subject to the duty to warn



        3The recreational use statute applies only if a person enters premises owned, operated, or
maintained by a governmental unit and engages in recreation on those premises. See TEX. CIV. PRAC. &
REM. CODE ANN. 75.002(f) (West, Westlaw through 2015 R.S.). There are no such allegations in this case.

          4 We note that appellant asserts that, because he was a student at UTPA at the time of the

accident, he “paid for the use of the premises” and was therefore an invitee as to UTPA. Because our
disposition focuses on appellant’s failure to show that any breach by either appellee proximately caused
his injuries, we need not address appellant’s invitee argument. See TEX. R. APP. P. 47.1.

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or make reasonably safe, the governmental entity must have actual knowledge of the

dangerous condition. Sampson, 2016 WL 3212996, at *6; City of Corsicana v. Stewart,

249 S.W.3d 412, 413–14, 416 (Tex. 2008) (per curiam); City of Dallas v. Giraldo, 262

S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.); Payne, 838 S.W.2d at 237.

Constructive knowledge of the defect is insufficient. Sampson, 2016 WL 3212996, at *6;

Stewart, 249 S.W.3d at 414–16.

             Absent willful, wanton, or grossly negligent conduct, a licensee must
      prove the following elements to establish the breach of duty owed to him:
      (1) a condition of the premises created an unreasonable risk of harm to the
      licensee; (2) the owner actually knew of the condition; (3) the licensee did
      not actually know of the condition; (4) the owner failed to exercise ordinary
      care to protect the licensee from danger; [and] (5) the owner's failure was a
      proximate cause of injury to the licensee. Payne, 838 S.W.2d at 237.
      Therefore, if [UTPA and the City] can show there was no evidence of one
      of these elements, [their] plea[s] to the jurisdiction should be granted. See
      [Univ. of Tex.–Pan American v. Aguilar, 251 S.W.3d 511, 512, 514 (Tex.
      2008)].

Sampson, 2016 WL 3212996, at *6.

                                  III. DISCUSSION

      UTPA and the City each argued—in their pleas to the jurisdiction and on appeal—

that appellant failed to show any evidence that any acts or omissions by UTPA or the

City—the placement of the yield signs or the alleged failure to maintain the pavement

markings—proximately caused his injuries because his injuries were caused solely by

Valdez’s inattention. We agree.

      In his deposition testimony, Valdez testified that, at the time of the accident, he

was a student at UTPA. On the day of the accident, he had dropped off his ex-girlfriend

and was headed back to her apartment, a routine trip he had made “more than probably

55, 70 times.” He was familiar with the crosswalk and had stopped for pedestrians there



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“many times.” When asked if he had any trouble seeing the pavement markings or the

yield sign, Valdez replied, “No.” He stated that when he was about fifteen or twenty feet

from the crosswalk, he was waving at a girl and did not see Castillo prior to hitting him.

The City’s attorney elicited the following testimony:

       Q [City’s counsel]: Okay. But what I’m asking more is, was there anything
                           that you—about the crosswalk, like was it obstructed,
                           was the sign that says to yield to pedestrians
                           obstructed, could you not see the stripes on the road,
                           anything like that, that you would say in any way
                           contributed to the accident?

       A [Valdez]:          No.

       Q:                   Okay.

       A:                   It was second nature at that point. I already had been
                            at Pan Am for so long.

       Q:                   This is simply you not seeing anybody at the crosswalk
                            and then becoming distracted momentarily?

       A:                   Yes.

       Appellant argues that a fact issue exists regarding whether the condition of the

pavement markings and the location of the yield sign proximately caused his injuries.

According to appellant, the condition of the pavement markings and location of the yield

sign were substantial factors in bringing about his injuries. Appellant cites Pitts v. Winkler

County, 351 S.W.3d 564, 576 (Tex. App.—El Paso 2011, no pet.), and City of Midland v.

Sullivan, 33 S.W.3d 1 (Tex. App.—El Paso 2000, pet. dism’d w.o.j.), for the proposition

that it is not necessary for a plaintiff to show that a defective property condition directly

caused his injuries; rather, it is sufficient for a plaintiff to show that the defective property

was a substantial factor in bringing about his injuries. See Pitts, 351 S.W.3d at 576; City

of Midland, 33 S.W.3d at 9.

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       We find both cases distinguishable. In Pitts, an oil spill occurred on a county road

in Winkler County. See Pitts, 351 S.W.3d at 569. The county’s foreman in charge of

maintaining the roads in the precinct covered the spill with dirt. See id. An accident

occurred when a driver’s car failed to stop at a stop sign and crashed into the plaintiff’s

car. See id. The plaintiff sued the county, alleging that the oil spill covered with dirt

constituted a premises defect. See id. The county argued that the plaintiff’s injuries were

caused by the driver running the stop sign. See id. at 576. The El Paso Court of Appeals,

however, citing City of Midland, rejected the county’s argument and found that the dirt

and oil mixture “was at least a substantial factor” in bringing about the plaintiff’s injuries.

See id.

       In City of Midland, a high school student was struck by a vehicle as he walked

through a crosswalk. See City of Midland, 33 S.W.3d at 5. His parents sued, alleging

that the crosswalk was defective because the pavement markers were not clearly visible

to motorists. See id. at 6. The City argued that the condition of the crosswalk merely

furnished the condition which made the injury possible, but did not cause the student’s

injuries. See id. at 8. The El Paso Court of Appeals disagreed, finding that the condition

of the property (the defective and inadequate condition of the pavement markers and

warning signs) was a substantial factor in bringing about the student’s injuries. See id. at

9.

       In Pitts, the evidence showed that the dirt on the road disguised the oil spill and

there was no way for a driver to know that the area was slick as he approached the

intersection. See Pitts, 351 S.W.3d at 573. The driver was unable to stop due to the oil

and dirt mixture on the road. See id. In City of Midland, the pleadings alleged that the



                                              9
motorist was unaware of the school zone due to the defective and inadequate condition

of the pavement markers and the warning signs. See City of Midland, 33 S.W.3d at 9. In

contrast, the evidence in the present case shows that Valdez was familiar with the

crosswalk and had stopped there “many times.” Valdez testified unequivocally that there

was nothing about the condition of the crosswalk that contributed to the accident.

Appellant did not produce any evidence to the contrary.

       Appellant points to Valdez’s deposition testimony in which he stated that if the yield

sign were placed further away from the crosswalk, it would be “more of an alert” because

a sign “right on top of the crosswalk” does not provide “much notice.” However, even

assuming that moving the yield sign would provide more notice, notice was not at issue

because Valdez was very familiar with the location of the crosswalk.          Valdez’s own

undisputed testimony established that the condition of the pavement markings and

location of the yield signs were not substantial factors in bringing about appellant’s

injuries.

       Appellant failed to establish that any acts or omissions by the City or UTPA caused

his injuries. See Sampson, 2016 WL 3212996, at *6. Because the City and UTPA

showed that there was no evidence of proximate cause, the trial court did not err in

granting both pleas to the jurisdiction. See id. We overrule the appellant’s sole issue.

                                     IV. CONCLUSION

       We affirm the trial court’s judgment.


                                                    DORI CONTRERAS GARZA
                                                    Justice

Delivered and filed the
1st day of December, 2016.

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