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City of San Antonio v. Parra11/16/2005
xt of whether the defect is a premises defect or a special defect, both of which relate to a premises liability claim. See, e.g., City of McAllen v. Hernandez, No. 13-04-182-CV, 2005 WL 2000818, at * 6-8 (Tex. App.---Corpus Christi Aug. 22, 2005, no pet. h.) (shop-made lid resembling manhole cover did not constitute a special defect); City of El Paso v. Chacon, 148 S.W.3d 417, 422-425 (Tex. App.---El Paso 2004, pet. denied) (hole created by removal of utility pole or traffic control device in area of sidewalk pedestrians normally walk constituted a special defect); Purvis v. City of Dallas, No. 05-00-01062-CV, 2001 WL 717839, at *2-4 (Tex. App.---Dallas June 27, 2001, no pet.) (open manhole cover constituted premises defect not special defect); Bueno v. City of San Antonio, No. 04-00-00597-CV, 2001 WL 328553, at *1 (Tex. App.---San Antonio Apr. 4, 2001, no pet.) (analyzing premises liability claim arising from jogger falling into open manhole); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.---Houston [1st Dist.] 1996, writ denied) (uncovered storm sewer located in roadway where pedestrians normally walk constituted a special defect).
Parra contends that because the manhole cover is tangible personal property that is removable from the real property, he has a viable negligence claim in addition to his premises liability claim. We disagree. In Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 526-27 (Tex. 1997), Olivo sued for injuries sustained when he slipped and fell on his back on one of several drill pipe thread protectors that had been left on the ground during the previous shift. The thread protectors were even more "removable" from the real property than the manhole cover in this case. The Texas Supreme Court held that the claim was for a premises defect not a negligent activity "because Olivo allege that he was injured by thread protectors previously left on the ground, not as a contemporaneous result of someone's negligence." Id. at 527. The same reasoning applies in this case, and Miranda precludes Parra from recasting his claim as one involving the condition or use of tangible personal property. Miranda, 133 S.W.3d at 233.
Because Parra cannot establish an independent waiver of sovereign immunity under the Texas Tort Claims Act, he cannot advance his negligent supervision and negligent implementation of policy theories. City of Laredo v. New Yorkers Apparel, Inc., No. 04-04-00887-CV, 2005 WL 1458248, at *4 (Tex. App.---San Antonio June 22, 2005, no pet.); City of Garland v. Rivera, 146 S.W.3d 334, 338 (Tex. App.---Dallas 2004, no pet.); Guadalupe-Blanco River Auth. v. Pitonyak, 84 S.W.3d 326, 342 (Tex. App.---Corpus Christi 2002, no pet.). Furthermore, Parra's general claim that the City negligently failed to cover the storm sewer fails to allege facts to demonstrate how immunity is waived under any of the three applicable areas for which immunity is waived under the Act. See Miranda, 133 S.W.3d at 224-26.
Conclusion
The trial court's order is reversed, and Parra's claims against the City for personal injury caused by the use or condition of tangible personal property, negligent supervision and implementation of policy, and general negligence are dismissed for lack of jurisdiction.
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