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Gustovich v. Dallas Area Rapid Transit7/29/2005
Before Justices Whittington, Moseley, and Lang-Miers
Gus Gustovich sued Dallas Area Rapid Transit (DART) for property damages sustained when a DART bus stop sign fell into his driving path and damaged his pickup truck. In one issue, Gustovich contends that the trial court erred in granting DART's plea to the jurisdiction and no evidence motion for summary judgment because DART is not entitled to governmental immunity and because DART is liable under the Texas Tort Claims Act (TTCA). We affirm. Because the issues in this appeal are well-settled, we issue this memorandum opinion. Tex. R. App. P. 47.4.
Background
Gustovich claimed that he was driving his pickup truck when a DART bus stop sign that had been dug up and leaned against a telephone pole fell into his driving path, causing damage to his pickup. He alleged that DART was negligent in failing to (1) properly care for its pole and property, (2) properly maintain the pole so that it would not fall, (3) remove the pole from its location so it would not fall, (4) inspect the pole prior to its collision with his truck, and (5) remove the pole from its dangerous position. He did not mention governmental immunity in his petition.
After filing its original answer, DART filed a Plea to the Jurisdiction and/or in the alternative, No Evidence Motion for Summary Judgment. DART contended that the case should be dismissed because DART is a governmental entity and Gustovich did not plead or allege a waiver of governmental immunity. Alternatively, DART contended that it was entitled to summary judgment because there was no evidence that (1) DART's sovereign immunity from suit was waived, (2) DART's immunity from liability was waived, (3) DART is liable in the capacity in which it was sued, or (4) Gustovich is able to recover from DART in the capacity in which he sued. Gustovich did not file a reply. The trial court granted both the Plea to the Jurisdiction and the No Evidence Motion for Summary Judgment.
Plea to the Jurisdiction
A party may contest a trial court's subject matter jurisdiction by filing a plea to the jurisdiction. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). We review a challenge to a trial court's subject matter jurisdiction de novo. Texas Dep't. of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). To prevail on a plea to the jurisdiction, a party must show that even if all the allegations in the plaintiff's pleadings are taken as true, an incurable defect apparent on the face of the pleadings makes it impossible for the pleadings to confer jurisdiction on the trial court. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.-Austin 2000, no pet.).
Governmental Immunity
As a general rule, the State, its agencies, and political subdivisions are immune from tort liability based on the doctrine of governmental immunity. Travis v. City of Mesquite, 830 S.W.2d 94, 104 (Tex. 1992). Governmental immunity from suit defeats a court's subject matter jurisdiction, and, absent the government's consent to suit, the trial court has no jurisdiction. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003);Jones, 8 S.W.3d at 638. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's jurisdiction by alleging a valid waiver by the government. Whitley, 104 S.W.3d at 542; Jones, 8 S.W.3d at 638.
If the plea challenges the pleadings, we determine whether the pleadings allege facts affirmatively demonstrating the court's jurisdiction. Miranda, 133 S.W.3d at 227-28; City of Paris v. Floyd, 150 S.W.3d 224, 226-27 (Tex.App.-Texarkana 2004, no pet.). We construe pleadings
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