1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________ NO . 09
- 1 5
- 00 093
- C V



### ____________________ CITY OF BEAUMONT , Appellant
V. CODY GARRETT AND CH E RRY JONES GATES , Appellee s

_______________________________________________________ ______________ On A ppeal from the County Court at Law No. 1 Jefferson County, Texas Trial Cause No . 124 , 331

________________________________________________________ _____________ OPINION This is an interlocutory accelerated appeal from a trial court ’s order denying the City of Beaumont’s plea to the jurisdiction. We affirm. Background
The ruling on appeal relates to a suit that Cody Garrett filed against the City

ar ising from an intersectional collision that occurred in February 2012

. Cars driven by Garrett and Cherry Jones Gates collided in an intersection that is normally controlled by a light ; however, on the morning their cars were in the accident, the2 lig ht controlling the intersection was out. 1 Gates, who was driving her car in a north erly direction on Pennsylvania Street, struck the car being driven by Garrett , who was westbound on Emmett Avenue

. Gates testified 2 that she did not stop before entering the intersection even though she knew the stop light at the intersection was not working

. Garrett testified 3 that when he approached the intersection, he noticed that the traffic light was not working and that he stopped bef ore entering the intersection . However, in her testimony , Gates suggested that Garrett did not stop before attempting to cross the intersection

. In 2013, Garrett sued Gates and the City claiming they were negligent

. With respect to his claim against the City, Garrett asserte d that the City failed to rep air the stoplight at the intersection even though it had been notified that the stoplight

was out

. When the City answered, it asserted it was immune from Garrett ’s clai ms under the doctrine of governmental immunity

.

1 The evidence in the record does not indicate why the light was out

. However , before the hearing on the City’s motion, the City admitted that , approximately thirty to ninety minutes before the accident, it had received notice that the light at the intersection of Emmett and Pennsylvania was not working

.
2 The City included Gates’ deposition as an exhibit to support its request to dismiss Garrett’s claims

.
3 Garrett’s deposition was also included as an exhibit to the City’s motion

.3 In 2015, the City filed a plea to the jurisdiction , challeng ing the trial court’s exercise of jurisdiction over Garrett’s claims . In its plea, the City asserted that Garrett could not establish that the malfunction in the signal created an unreasonable risk of harm, could not establish that he did not have actual knowledge that the light had malfunctioned, could not establish that the City had breached a duty of ordinary care, and could not establish that the City’s acts or omissions proximate ly cause d the collision

. Garrett ’s respon se to the City’s plea includes his affidavit , in which he state d that he knew the light facing him wa s not working as he approached the intersection ; however , Garrett denied kn owing that
the light facing Gates was out

. In March 2015, without stating a basis for its ruling, t he trial court denied the City’s plea. Subsequently, t he City timely perfected an interlocutory appeal to challenge whether the trial court properly denied its plea

. Tex. Civ. Prac. & Rem. Code Ann. § 51.014(8) (West Supp. 2015 ). 4 Waiver of Immunity The City challenged the trial court’s jurisdiction through a plea to the jurisdiction

. A plea to the jurisdiction is a dilatory plea that challenges a court’s power to decide a dispute. See Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554

4 We cite to the current version of the statute, as the 2015 amendment s do not affect the City ’s right to an interlocutory appeal.4 (Tex. 2000). Generally, in the absence of the S tate’s permission allow ing a
gove rnmental unit to be sued, a trial court lack s subject

- matter jurisdiction over the governmental unit that has been sued

. See Fed

. Sign v. Tex

. S. Univ ., 951 S.W.2d 401, 403 (Tex. 1997); Duhart v. State , 610 S.W.2d 740, 741 (Tex. 1980). For cases involving torts, t he Tort Claims Act controls whether a court has been given permission by the Legislature to adjudicate a dispute against a governmental unit

. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021

- .029 (West 2011 & Supp. 201 5 ). Under section 101.025 of t he Tort Claims Act , a government al unit can be sued for damages only to the extent that the Tort Claims
Act creates liability for the governmental entity’s acts or omissions

. See Tex. Civ. Prac. & Rem. Code Ann. § 101.025 (West 2011). With respect to the liability of municipalities for operat ing and maintain ing traffic signals , the Tort Claims Act creates liability only if the malfunction in the signal “is not corrected by the responsible governmental unit within a reasonable time after notice [

. ] ” Tex. Civ. Prac. & Rem. Code Ann. § 101.060(a)(2) (West 2011); see also Tex. Civ. Prac. & Rem. Code Ann. § 101.0215(31) (West Supp. 2015) , § 101.025

. In this case, the evidence before the trial court indicates that the City had notice of the malfunction of the signal before the collision between the cars driven by Gates and Garrett occurred

. However, t here was no evidence before the trial5 court showing the exact nature of the problem with the light, and no evidence explaining how long it should have taken a reasonably prudent governmental entity
to correct such a problem. Given th at the City acknowledged that it received notice of the malfunction before the collision occurred , and given the complete lack of evidence about whether the City acted unreasonably by failing to correct the malfunction within a thirty to ninety minute period before the collision occurred , the trial court had the authority to allo w the parties more time to develop whether the City acted unreasonably given the notice it had about the problem with the light before the collision occurred

. See Blue , 34 S.W.3d at 554; Capshaw v. Tex

. Dep ’ t of Transp. , 988 S.W.2d 943, 946 (Tex. App.

— El Paso 1999, pet. denied).
T he City maintains that its plea should have been granted for several additional reasons

. According to the City , the hazard posed at the intersection by the malfunction in the light was not unreasonable, Garrett knew the light facing him was out, and its acts and omissions did not proximate ly cause the accident. With respect to these argument s , the City asserts that the duty it owed to Garrett
was “ only the duty that a private person owes to a licensee on private property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(c) (West 2011)

. We disagree with the City’s argument that its duties to Garrett are equivalent to the duties owed to licensee s. When a traffic signal malfunction s, and the6 municipality that is responsible for the signal has notice of the malfunction, the duty the municipality owes to the travelling public is to use ordinary care to reduce
or eliminate the unreasonable risk of harm posed by the malfunction within a reasonable time after being notified of the absence, condition, or malfunction of a traffic signal. Id

. § 101.022(b) (West 2011) , id

. § 101.060 (West 2011)

. I n cases involving malfunctioning signals , a city’s duty is not limited to the duties owed to licensee s . Compare id. § 101.022(c) (limiting a governmental unit’s duties for clai m s arising from conditions categorized as premises defect s to the duty owed to a licensee ) , with id. § 101.022 ( b) (explaining that the limitations in section 101.022
do not apply in cases where the governmental unit has knowledge of the absence, condition, or malfunction of a traffic signal)

. We are also not persuaded that the trial court abused its discretion by failing to accept the City’s arguments on the degree of the ha zard posed by the light and causation. The proper function of a plea to the jurisdiction “does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.” S ee Blue , 34 S.W.3d at 554.
B ased on the pleadings and the jurisdictional evidence before it, and given the lack of evidence as to whether a thirty to ninety minute delay in correcting the hazard posed by the malfunction in the light would be un reasonable, the trial court did not7 abuse its discretion by allowing the parties additional time to fully develop whether the City ’s failure to respond and repair the stop light or otherwise reduce the hazard posed by the malfunction in the stoplight was negligen t

. Id. We overrule the City’s sole issue, and we affirm the trial court’s ruling denying the City’s plea.
A FFIRMED

.

________________________________ HOLLIS HORTON Justice

Submitted on June 5, 2015 Opinion Delivered December 10, 2015 Before Kreger, Horton , and Johnson , JJ.