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Wilkins v. Collin County11/26/2002
In three points of error, Joanna Wilkins, individually and on behalf of the Estate of Jeannette Wilkins, appeals the trial court's dismissal of her claims against Collin County (the County) and the State of Texas (the State), contending the trial court erred (1) in granting summary judgment for the County because there are issues of fact regarding whether the County owned, maintained, or controlled FM 1138; (2) in granting the State's and the County's pleas to the jurisdiction; and (3) by not allowing adequate time for discovery prior to granting the pleas to the jurisdiction. We affirm the trial court's dismissal of Wilkins's claims.
Procedural and Factual Background
Jeannette Wilkins, Wilkins's mother, was struck by an automobile and killed while crossing FM 1138 to reach a parking lot following a program at McClendon Elementary School in Nevada, Texas. Wilkins filed suit against the driver of the automobile, the State, the County, the City, and the School, alleging the governmental entities were negligent by failing to install warning devices to protect pedestrians crossing FM 1138. The governmental entities filed pleas to the jurisdiction, contending they had sovereign immunity from Wilkins's claims. The County also filed a motion for summary judgment based on sovereign immunity. After Wilkins dismissed her claims against the School, the trial court granted the pleas to the jurisdiction of the remaining governmental entities and the County's motion for summary judgment. The trial court then severed Wilkins's claims against the governmental entities. Wilkins appealed the dismissal of her claims against the State and the County.
Plea to the Jurisdiction
In her second point of error, Wilkins contends the trial court erred in granting the State's and the County's pleas to the jurisdiction because sovereign immunity is waived under section 101.060(a)(2) of the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code Ann. § 101.001-101.109 (Vernon 1997 & Supp. 2003). We review a trial court's ruling on a plea to the jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In determining whether jurisdiction exists, we accept the allegations in the pleadings as true and construe them in favor of the pleader. Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002) (per curiam). If necessary, we also consider any evidence relevant to the jurisdictional issue. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
As a general rule, a governmental entity is immune from suit unless immunity has been waived. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). The Texas Tort Claims Act waives sovereign immunity for personal injury or death caused by a condition of real property. Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon 1997). However, this waiver does not apply to: (1) the failure of a governmental unit to perform an act that the unit is not required by law to perform; or (2) a governmental unit's decision not to perform an act or on its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the discretion of the governmental unit. Id. at § 101.056.
Nor does the waiver apply to:
(1) the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit;
(2) the absence, condition, or malfunction of a traffic or road sign, signal, or warning device unless the absence, condition, or mal
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