Julia P. Diaz, Individually & Representative of the Estate of Juan Diaz, Michael Brashear & Deborah Stayton, Individually and Representatives of the Estate of Patrick Brashear, Bernardo Diaz, Individu

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Laws-info.com » Cases » Texas » 10th District Court of Appeals » 2005 » Julia P. Diaz, Individually & Representative of the Estate of Juan Diaz, Michael Brashear & Deborah Stayton, Individually and Representatives of the Estate of Patrick Brashear, Bernardo Diaz, Individu

State: Texas

Court: Texas Northern District Court

Docket No: 10-04-00112-CV

Case Date: 09/14/2005

Plaintiff: David Beddingfield

Defendant: The State of Texas--Appeal from 241st District Court of Smith County

Preview:Julia P. Diaz, Individually & Representative of the
Estate of Juan Diaz, Michael Brashear & Deborah
Stayton, Individually and Representatives of the Estate
of Patrick Brashear, Bernardo Diaz, Individually &
Representative of the Estate of Juan Diaz v. Ellis
County, Texas--Appeal from 40th District Court of Ellis
County
IN THE
TENTH COURT OF APPEALS
No. 10-04-00112-CV
Julia P. Diaz, Individually and AS
Representative of the Estate of
Juan Diaz, Michael Brashear and
Deborah Stayton, Individually
and AS Representatives of the
Estate of Patrick Brashear, AND
Bernardo Diaz, Individually and
AS Representative of the Estate
of JaUn Diaz,
Appellants
v.
Ellis County, Texas,
Appellee
From the 40th District Court
Ellis County, Texas
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Trial Court No. 66466
MEMORANDUM Opinion
The trial court granted Ellis County s plea to the jurisdiction in a suit claiming that the County was liable for the death
of two teenagers when their car fell off a bridge. We reverse.
Background
Juan Carlos Diaz was driving on Stacks Road in Ellis County with his friend and passenger, Patrick Wayne Brashear.
Apparently in an attempt to avoid hitting an animal, Diaz abruptly turned the car. The car struck the leading edge of a
wooden bridge, flipped over, and landed upside down in the creek below. Both boys drowned.
Appellants[1] filed suit individually and on behalf of Diaz and Brashear alleging that a premise defect and/or a special
defect on the bridge proximately caused the boys death. Ellis County filed a plea to the jurisdiction, which was
granted.
On appeal, Appellants argue that the trial court erred in (1) granting the County s plea to the jurisdiction because there
is sufficient evidence to waive immunity; (2) granting the County s plea to the jurisdiction on the basis that the County
had no notice; and (3) preventing Appellants from conducting discovery by denying their motion to compel and
motion for continuance. The County brings a cross appeal arguing that the trial court erred in denying the County s
objections to the Appellants evidence brought in response to the County s plea.
The Appellants Evidence
In its cross appeal, the County argues that the trial court erred in denying the County s objections to the Appellants [2]
evidence because the affidavits submitted were improper. Appellants submitted several photographs of the accident
scene and the affidavit of Michael Brashear purporting to identify the photographs. Appellants also submitted several
newspaper articles reporting on the investigation of the accident and the affidavit of Robert K. Dowd, one of the
Appellant s attorneys, attesting that the County had notice of the accident. Both of the affidavits fail to state that the
facts recited therein are true. In both instances the affiant states that he will testify as to the truth of the matters stated
herein if called upon to do so.
We apply an abuse-of-discretion standard in reviewing whether a trial court erred in admitting or excluding evidence.
See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). An affidavit must be based on the affiant s
personal knowledge and must state that the recited facts are true. Majeski v. Estate v. Majeski, 163 S.W.3d 102, 107
n.1 (Tex. App. Austin 2005, no pet.) (citing Humphreys v. Caldwell, 888 S.W.2d 469, 470 (Tex. 1994)); Youngblood v.
U.S. Silica Co., 130 S.W.3d 461, 467-68 (Tex. App. Texarkana 2004, pet. denied); Adams v. Reynolds Tile and
Flooring, Inc., 120 S.W.3d 417, 423 (Tex. App. Houston [14th Dist.] 2003, no pet.). Any qualification of the affiant s
personal knowledge will invalidate the affidavit. Majeski, 163 S.W.3d at 107 n.1; see Humphreys, 888 S.W.2d at 470-
71. Similarly, any qualification regarding the truth of the statements in the affidavit, as in this case, will invalidate the
affidavit. Exito Electronics, Co., Ltd. v. Trejo, 99 S.W.3d 360, 372 (Tex. App. Corpus Christi 2003) rev d on other
grounds 142 S.W.3d 302 (Tex. 2004) ( an affidavit is legally insufficient if it does not positively and unqualifiedly
represent the facts as disclosed in the affidavit to be true ); Teixeira v. Hall, 107 S.W.3d 805, 810 (Tex. App.
Texarkana 2003, no pet.) (affidavit must show that the affirmation is so positive as to allow perjury to lie ). Therefore,
we find that the trial court abused its discretion in considering the Appellants evidence. See Alvarado, 897 S.W.2d at
753. We sustain the County s cross issue.
Plea to the Jurisdiction
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Appellants argue in their first issue that the trial court erred in granting the County s plea to the jurisdiction because
their pleadings allege a valid waiver of immunity under the Texas Tort Claims Act (TTCA) and because fact issues
remain as to whether the roadway condition at issue is a premise defect or a special defect.
Whether a trial court has subject matter jurisdiction is a question of law reviewed de novo. Tex. Nat. Res.
Conservation Comm n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In general, governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the
legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341
(Tex. 1998). Sovereign immunity has two components: immunity from liability and immunity from suit. Wichita Falls
State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003). Immunity from suit is waived to the extent of liability created
by the TTCA. Tex. Civ. Prac. & Rem. Code Ann 101.025(a) (Vernon 1997); Tex. Dept. of Parks and Wildlife v.
Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The TTCA waives a governmental unit's immunity to liability based on
violations of the duty to warn of special defects such as excavations or roadway obstructions. Tex. Civ. Prac. & Rem.
Code Ann. 101.060(c) (Vernon 1997).
In a suit against a governmental entity, the plaintiff must affirmatively demonstrate the court s jurisdiction by alleging
a valid waiver of immunity, and pleading facts showing that the trial court has jurisdiction. Miranda, 133 S.W.3d at
226. When deciding whether to grant a plea to the jurisdiction, the trial court looks to the allegations in the petition
together with any relevant jurisdictional evidence. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
When a plea to the jurisdiction challenges the existence of jurisdictional facts, implicating 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.
Special defects unexpectedly and physically impair a vehicle s ability to travel on the road. Harris County v. Est. of
Ciccia, 125 S.W.3d 749, 754 (Tex. App. Houston [1st Dist.] 2003, pet. denied) (quoting State v. Rodriguez, 985 S.W.2d
83, 85 (Tex. 1999)). The condition of the road must be analogous to and of the same degree as excavations or
obstructions on highways, roads, or streets. Tex. Civ. Prac. & Rem. Code Ann. 101.022(b) (Vernon 1997). It must
present an unusual and unexpected danger to ordinary users of roadways. State Dept. of Highways & Public Transp. v.
Payne, 838 S.W.2d 235, 238 (Tex. 1992); City of Mission v. Cantu, 89 S.W.3d 795, 809 (Tex. App. Corpus Christi
2002, no pet.). The dangerous condition need not have been created or caused by the government unit to constitute a
special defect for which the governmental unit has a duty to warn. Est. of Ciccia, 125 S.W.3d at 754 (citing County of
Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)).
Pictures of the wooden bridge were introduced into evidence by the County. They depict a significant hole in front of
the bridge. Portions of the bridge surrounding the depression appear to have rotted away, and erosion has occurred
immediately before the edge of the bridge. One of the wooden planks appears to have been removed from the edge of
the bridge. Appellants argue that the vehicle struck this depression, causing the tires to hit the front edge of the bridge
and flip over. The County argues that this depression is not a special defect because it is not an unusual or unexpected
danger to ordinary users of the road. They argue that the ordinary use of the road is to travel on the center of the
bridge, and not to drive off it. However, the depression, while not in the middle of road, is still within the parameters
of the driving portion of the bridge and can be considered an obstruction. In one of the County s photographs, traffic
cones surrounding the depression are some feet away from the edge of the bridge. See e.g. Morse v. State, 905 S.W.2d
470, 475 (Tex. App. Beaumont 1995, writ denied) (10 inch drop-off along shoulder that prevented car s left wheels
from reentering roadway once they slipped off was special defect); Stambaugh v. City of White Oak, 894 S.W.2d 818,
820 (Tex. App. Tyler 1994, no writ) (caved-in portion of road 15 feet by 10 feet special defect); State v. Nichols, 609
S.W.2d 571, 573 (Tex. Civ. App. Waco 1980, writ ref'd n.r.e.) (3-4 foot caved-in portion of highway special defect);
State v. McBride, 601 S.W.2d 552, 558 (Tex. Civ. App. Waco 1980, writ ref'd n.r.e.) (slick, muddy excavation special
defect); Miranda v. State, 591 S.W.2d 568, 569 (Tex. Civ. App. El Paso 1979, no writ) (flood water two feet deep
across highway special defect).
Because there is conflicting evidence as to the character of the depression, fact issues exist as to whether the
depression is a special defect. Miranda, 133 S.W.3d at 227-28 ( if the evidence creates a fact question regarding the
jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact
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finder ). Accordingly, we sustain Appellants first issue.
Conclusion
Because Appellant s first issue is dispositive of the case, we need not address their other issues. We reverse the
judgment of the trial court and remand for further proceedings consistent with this opinion.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissents to this opinion issued after rehearing without a separate opinion. See withdrawn opinion in
this appeal issued April 6, 2005).
Reversed and remanded
Opinion delivered and filed September 14, 2005
[CV06]
[1] Appellants include Julia P. Diaz, individually and on behalf of Diaz, her son, and Michael Brashear and Deborah
Stayton, individually and on behalf of Brashear, their son. Afterwards, Bernardo Diaz, Diaz s father, filed a plea in
intervention.
[2] Bernardo Diaz, the intervenor, did not submit evidence in response to the County s plea.
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