CITY OF SAN ANTONIO BY AND THROUGH CITY PUBLIC SERVICE BOARD OF SAN ANTONIO d/b/a CPS Energy, Appellant v. Chris SMITH, Appellee

No. 04-17-00572-CV

Court of Appeals of Texas, San Antonio.

Delivered and Filed: August 22, 2018

APPELLANT ATTORNEY: Shawn K. Fitzpatrick, Fitzpatrick & Kosanovich, P.C., P.O. Box 831121, San Antonio, TX 78283-1121, William Logan Lewis, City of San Antonio, Frost Bank Tower, 100 W. Houston St. Ste 18th Floor, San Antonio, TX 78205, Matthew Swantner, Matthew Swantner, Jackson Walker L.L.P., 112 E Pecan St Ste 2400, San Antonio, TX 78205-1510.

APPELLEE ATTORNEY: Thomas J. Henry, Law Offices of Thomas J. Henry, Reggie Blakeley, Thomas J. Henry & Associates, 521 Starr Street, Corpus Christi, TX 78401, Jeffrey T. Harvey, Jackson Walker L.L.P., 112 East Pecan Street, Suite 2100, San Antonio, TX 78205.

Sitting: Karen Angelini, Justice, Patricia O. Alvarez, Justice, Irene Rios, Justice

Opinion by: Karen Angelini, Justice

The City of San Antonio by and through City Public Service Board of San Antonio d/b/a CPS Energy appeals the trial court's order denying, in part, its plea to the *79jurisdiction based on governmental immunity. We reverse and render.

**BACKGROUND**

The City of San Antonio by and through City Public Service Board d/b/a CPS Energy (hereinafter, "CPS Energy") was sued by Christopher Smith for damages he sustained in a motorcycle accident. In his petition, Smith alleged that he was driving his motorcycle on an exit ramp from Interstate Highway 10 to Interstate Highway 37 when he struck a light pole that had fallen onto the roadway. Smith also alleged that he was unable to avoid the light pole and was thrown from his motorcycle and sustained serious injuries. According to Smith's petition, the downed light pole created a driving hazard and CPS Energy was negligent in failing to timely remove the light pole blocking the roadway and in failing to warn him of the light pole blocking the roadway. Smith asserted negligent activity, premises liability, and gross negligence claims against CPS Energy.

CPS Energy filed a plea to the jurisdiction and a supplemental plea to the jurisdiction (collectively, "the plea to the jurisdiction"), asserting that it was entitled to governmental immunity because the Texas Tort Claim Act's ("TTCA's") waiver of immunity did not apply. Specifically, CPS Energy argued Smith's claims did not fall within the limited waiver of immunity provided by section 101.021 of the TTCA. Additionally, CPS Energy argued that even if Smith had alleged facts that brought his claims within section 101.021's limited waiver of immunity, his claims were barred by statutory exceptions for emergencies provided under sections 101.055(2) and 101.062(b) of the TTCA. Finally, CPS Energy argued that it was immune from suit under section 101.056 of the TTCA because any act on its part regarding the downed light pole was a discretionary act for which the Legislature had not expressly waived immunity.

In his response to the plea to the jurisdiction, Smith argued that CPS Energy shared with the City of San Antonio responsibility for the maintenance and removal of downed light poles in emergency situations under a joint enterprise theory; that CPS Energy and the City's light pole maintenance was a proprietary function that was not protected by immunity; that CPS Energy was not protected by immunity because immunity does not extend to private companies exercising independent discretion; and that even if immunity did apply, it would be waived because the light pole obstructing the roadway was a special defect under the TTCA.

After a hearing, the trial court granted CPS Energy's plea to the jurisdiction as to Smith's negligent activity claims, but denied its plea to the jurisdiction as to Smith's premises liability and gross negligence claims. CPS Energy appealed.

**DISCUSSION**

The only part of the trial court's ruling challenged on appeal is the denial of CPS Energy's plea to the jurisdiction as to Smith's premises liability and gross negligence claims. Thus, our review is limited to this part of the trial court's ruling.

***Appellate Standard of Review***

Whether the trial court had subject-matter jurisdiction over Smith's claims is a question of law that we review de novo. *See**Texas Dep't of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 226 (Tex. 2004) ; *City of San Antonio v. Cervantes* , 521 S.W.3d 390, 394 (Tex. App.-San Antonio 2017, no pet.). Our ultimate inquiry is whether the particular facts presented affirmatively demonstrate a claim within the trial court's subject-matter jurisdiction.

*80*Bacon v. Texas Historical Comm'n* , 411 S.W.3d 161, 171 (Tex. App.-Austin 2013, no pet.).

***Governmental Immunity***

Under the common-law doctrine of sovereign immunity, the sovereign cannot be sued without its consent. *City of Houston v. Williams* , 353 S.W.3d 128, 134 (Tex. 2011). "Governmental immunity operates like sovereign immunity to afford similar protection to subdivisions of the State, including counties, cities, and school districts." *Harris Cnty. v. Sykes* , 136 S.W.3d 635, 638 (Tex. 2004). The Texas Supreme Court has explained that "[t]he City of San Antonio acts by and through CPS Energy, so CPS Energy is treated as a municipality" for purposes of the TTCA. *Wheelabrator Air Pollution Control, Inc. v. City of San Antonio* , 489 S.W.3d 448, 450 n.1 (Tex. 2016).

A party suing a governmental entity must establish the state's consent, which may be alleged either by reference to a statute or to express legislative permission. *Texas Dep't of Transp. v. Jones* , 8 S.W.3d 636, 638 (Tex. 1999). Absent the state's consent to suit, a trial court lacks subject-matter jurisdiction. *Id.* Section 101.021 of the TTCA provides a limited waiver of immunity if certain conditions are met. TEX. CIV. PRAC. & REM. CODE ANN. 101.021 (West 2011). Section 101.021 has been interpreted to waive immunity in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. *Texas Dep't of Transp. v. Able* , 35 S.W.3d 608, 611 (Tex. 2000).

***Application of Governmental Immunity***

We first address Smith's argument that governmental immunity does not apply here because the activities that form the basis of his claims were proprietary in nature. A governmental entity like CPS Energy does not have immunity when it engages in a proprietary function. *Wheelabrator* , 489 S.W.3d at 451. A municipality's operation of its own public utility is a propriety function. *Id.* at 452. However, the fact that CPS Energy primarily functions as a public utility does not prevent it from performing activities that are governmental in nature. *See**City of San Antonio v. BSR Water Co.* , 190 S.W.3d 747, 753 (Tex. App.-San Antonio 2005, no pet.) ; *City of San Antonio v. Butler* , 131 S.W.3d 170, 177-78 (Tex. App.-San Antonio 2004, pet. denied). In section 101.0215 of the TTCA, the legislature provided a nonexclusive list of activities by a municipality that are categorized as governmental in nature. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) (West Supp. 2017). "Although the operation of a public utility is a proprietary function, a municipality's proprietary functions do not include those activities listed as governmental in section 101.0215(a)." *BSR Water Co.* , 190 S.W.3d at 753. "This court has held that all activities associated with the operation of one of the governmental functions listed in section 101.0215(a) are governmental and cannot be considered proprietary regardless of the city's motive for engaging in the activity." *Butler* , 131 S.W.3d at 177-78.

The activities listed in section 101.0215(a) include "regulation of traffic" and "maintenance of traffic signals, signs, and hazards." TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215 (21), (31) (West Supp. 2017). In his petition, Smith alleged a light pole fell on the roadway and created a driving hazard. Smith further alleged that CPS Energy was negligent in failing to timely remove the light pole blocking the roadway and in failing to warn him of the light pole blocking the roadway. The activities that form the basis of Smith's claims involve CPS Energy's response to a traffic hazard either by removing the hazard from *81the roadway or by warning drivers of the hazard. We conclude that these activities qualify as governmental functions. *See**Ethio Exp. Shuttle Serv., Inc. v. City of Houston* , 164 S.W.3d 751, 756 (Tex. App.-Houston [14th Dist.] 2005, no pet.) (holding city's activities were governmental in nature when they were well-aligned with functions the legislature had designated as governmental in section 101.0215(a) ). Therefore, we reject Smith's argument that governmental immunity does not apply here because the activities that form the basis of his claims were proprietary in nature.

***Plea to the Jurisdiction***

Because immunity from suit defeats a trial court's subject-matter jurisdiction, it may be raised in a plea to the jurisdiction. *Miranda* , 133 S.W.3d at 225-26. A plaintiff bears the burden of affirmatively demonstrating a trial court's jurisdiction. *Heckman v. Williamson Cnty.* , 369 S.W.3d 137, 150 (Tex. 2012) ; *Cervantes* , 521 S.W.3d at 394. "[A] court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." *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, the trial court considers the relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised. *Univ. of Texas v. Poindexter* , 306 S.W.3d 798, 806 (Tex. App.-Austin 2009, no pet.). "Such cases fall into two categories: (1) those in which the jurisdictional issue or facts do not substantially implicate the merits of the plaintiff's case, but rather are, for the most part, separate and distinct from the merits; and (2) those in which the jurisdictional issue or facts do implicate the merits of the plaintiff's case." *Id.* "Courts treat these two categories of cases in markedly different ways." *Id.* A jurisdictional issue implicates the merits of a case when the determination of many, if not most, of the challenged jurisdictional facts will also determine whether the plaintiff is entitled to relief on the merits. *Id.* at 807.

The first category, cases in which the jurisdictional issue or facts *do not* implicate the merits of the plaintiff's case, contains two types of cases: (1) cases in which the relevant jurisdictional facts are disputed, and (2) cases in which the relevant jurisdictional facts are undisputed. *See**id.* at 806. When the relevant jurisdictional facts are disputed, the trial court-not the jury-makes the necessary fact findings to resolve the jurisdictional issue. *Id.* (citing *Miranda* , 133 S.W.3d at 226 ); *Cervantes* , 521 S.W.3d at 394. Stated another way, "[w]hen a jurisdictional issue is not intertwined with the merits of the claims ... disputed fact issues are resolved by the court, not the jury." *Vernco Constr., Inc. v. Nelson* , 460 S.W.3d 145, 149 (Tex. 2015). However, when the relevant jurisdictional facts are undisputed, the trial court makes the jurisdictional determination as a matter of law based solely on those undisputed jurisdictional facts. *Poindexter* , 306 S.W.3d at 806.

As to the second category, cases in which the jurisdictional issue or facts *do* implicate the merits of the plaintiff's case, the trial court does not act as a factfinder. *Id.* at 807. Instead, the defendant is put to a burden very similar to that of a summary judgment movant. *Id.* If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the factfinder at trial. *Id.* (citing *Miranda* , 133 S.W.3d at 227-28 ). However, if the relevant *82evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. *Poindexter* , 306 S.W.3d at 806 (citing *Miranda* , 133 S.W.3d at 227-28 ). As with a summary judgment, the trial court's determination in such a case is a purely legal one. *Id.* (citing *Miranda* , 133 S.W.3d at 228 ). Furthermore, the appellate court reviews the trial court's determination de novo, indulging every reasonable inference and resolving any doubts in the nonmovant's favor. *Id.* (citing *Miranda* , 133 S.W.3d at 228 ).

As will be discussed in more detail below, the relevant jurisdictional facts in this case do not implicate the merits of Smith's claims and are undisputed. Therefore, the trial court was required to make the jurisdictional determination as a matter of law based solely on those undisputed jurisdictional facts. *See**Poindexter* , 306 S.W.3d at 806.

***The "Emergency Exception" under Section 101.055(2)***

We next address CPS Energy's argument that the trial court erred in denying its plea to the jurisdiction because, even if immunity was waived under the TTCA, the undisputed evidence established that the "emergency exception" to any waiver of immunity barred Smith's claims.1

The TTCA waives immunity from suit in a number of circumstances. *City of San Antonio v. Hartman* , 201 S.W.3d 667, 671-72 (Tex. 2006). The TTCA also includes a subchapter entitled "Exceptions and Exclusions," which lists circumstances in which its waiver provisions do not apply. *Id.* One section in this subchapter, section 101.055(2), excludes any waiver of immunity for

> a claim arising ... from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others....

TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) (West 2011). Thus, under section 101.055(2), commonly called the "emergency exception," immunity is not waived for a claim arising from the action of an employee while responding to an emergency call or reacting to an emergency situation, if the action was in compliance with the laws and ordinances applicable to the situation. *Id.* If no law or ordinance is applicable to the situation, then the "emergency exception" will apply if the employee's action was not taken with conscious indifference or reckless disregard for the safety of others. *Id.*

The statute does not define the terms "emergency call" or "emergency situation," but the Texas Supreme Court has interpreted the term "emergency" broadly. *See**Hartman* , 201 S.W.3d at 672-73 (concluding that section 101.055(2) applied to suit involving the city's reaction to roadway flooding). As the Texas Supreme Court stated in *Hartman* : "[B]ecause the [TTCA] creates liability where it would not otherwise exist, we cannot construe section 101.055(2) to exclude emergencies the Legislature might have intended to include." *Id.* at 673. "While the statute certainly has been applied to traffic accidents, it also has been applied in other circumstances...." *Id.* at 672-73. Additionally, Texas appellate courts have concluded that claims arising *83from objects blocking lanes on highways were emergency situations, and the actions of government employees in response to these emergency situations fell within the scope of section 101.055(2). *See**City of College Station v. Kahlden* , No. 10-12-00262-CV, 2014 WL 1269026, at *5-6 (Tex. App.-Waco 2014, pet. denied) (holding that an officer who stopped to remove debris from the roadway was reacting to an emergency situation under section 101.055(2) ); *City of El Paso v. Segura* , No. 08-02-00240-CV, 2003 WL 1090661, at *1-3 (Tex. App.-El Paso 2003, pet. denied) (recognizing that actions of city employees who arrived on the scene where light generator was blocking two lanes of traffic fell within the scope of section 101.055(2) ).

In *Hartman* , the Texas Supreme Court explained the interaction between the plaintiff's pleadings and the burden of proof when determining if the emergency exception applies. *Texas Dep't of Public Safety v. Little* , 259 S.W.3d 236, 238 (Tex. App.-Houston [14th Dist.] 2008, no pet.). Once the governmental entity asserts and presents evidence to support the application of the "emergency exception" under section 101.055(2), the plaintiff has the burden to plead and prove that the emergency exception does not apply. *See**Hartman* , 201 S.W.3d at 672 ; *Quested v. City of Houston* , 440 S.W.3d 275, 284 (Tex. App.-Houston [14th Dist.] 2014, no pet.) ; *City of San Antonio v. Rosenbaum* , No. 04-11-00498-CV, 2011 WL 6739583, at *2 (Tex. App.-San Antonio 2011, no pet.) ("Once the City asserted the two emergency exceptions, the [plaintiffs] had the burden to plead and prove that the actions taken by [the city employee] violated a law or ordinance in order for immunity to be waived under these emergency exceptions.... Alternatively, the [plaintiffs] would be required to present some evidence showing that [the city employee] was not reacting to an emergency situation or responding to a 9-1-1 emergency call."); *Little* , 259 S.W.3d at 238-39. To do so, the plaintiff has the burden to plead and present evidence of at least one of the following: (1) the entity was not responding to an emergency call or reacting to an emergency situation; (2) the entity was not in compliance with the laws and ordinances applicable to the emergency action; or (3) the entity's actions were taken with conscious indifference or reckless disregard for the safety of others. *See**Hartman* , 201 S.W.3d at 672 ; *Quested* , 440 S.W.3d at 284 ; *Rosenbaum* , 2011 WL 6739583, at *2 ; *Little* , 259 S.W.3d at 238-39.

• ***Application of the Law to the Present Case***

We believe the jurisdictional issue in this case did not implicate the merits of Smith's claims because the determination of the relevant jurisdictional facts-whether CPS Energy was responding to an emergency call or reacting to an emergency situation-would not determine whether Smith was entitled to recover on his premises liability and gross negligence claims. *See**Poindexter* , 306 S.W.3d at 807-08 (noting that a jurisdictional issue implicates the merits of a case when the determination of many, if not most, of the challenged jurisdictional facts will also determine whether the plaintiff is entitled to relief on the merits). Thus, the trial court was required to consider the relevant evidence and resolve the jurisdictional issue based either on the facts it found or those that were undisputed. *See**Cervantes* , 521 S.W.3d at 394. In this case, the relevant jurisdictional facts were undisputed. Therefore, the trial court was required to make the jurisdictional determination as a matter of law based solely on those undisputed jurisdictional facts. *See**Poindexter* , 306 S.W.3d at 806.

*84In this case, Smith alleged in his petition that a light pole fell on the roadway and created a driving hazard. Smith further alleged that CPS Energy was negligent in failing to timely remove the light pole blocking the roadway and in failing to warn him of the light pole blocking the roadway. In its plea to the jurisdiction, CPS Energy contended that Smith's claims regarding its failures to report, warn, remove, or make safe the roadway after the light pole was struck and knocked down by another driver constituted complaints about the manner in which it responded to an emergency call or reacted to an emergency situation and fell within the scope of section 101.055(2) of the TTCA. CPS Energy presented evidence to support its contention that section 101.055(2) applied. Smith, however, did not file any pleadings asserting that the emergency exception did not apply.

The evidence before the trial court included the undisputed testimony of Jose Guadalupe Trevino, CPS Energy's Director of Construction and Maintenance. In his deposition testimony, Trevino testified that CPS Energy employs first responders called "troublemen." CPS Energy's troublemen are dispatched to emergencies throughout the city. According to Trevino, a downed light pole blocking a lane of highway at an interchange would be considered an emergency once it was reported to CPS Energy. Once a downed light pole is reported to CPS Energy, it dispatches a troubleman to patrol the area to find it. If a troubleman arrives at the scene of a downed light pole and decides that it is too dangerous to get the pole out of the road on his own, he will try to set up cones or at least alert drivers to the downed pole so they will be more cautious. And, if CPS Energy's troubleman cannot remove the downed pole himself, he will call for assistance from the police department or a crew to help him get the downed pole out of the way.

In his affidavit, Trevino testified CPS Energy's dispatch records and audio recordings showed that at about 3:49 p.m. on the day of Smith's accident, CPS Energy received a call from the San Antonio Police Department ("SAPD") stating that a light pole had been knocked down and was in the middle of the highway. The caller specified that the downed light pole was located at Eastbound IH-10 and Pine. CPS Energy dispatched a troubleman to look for the downed light pole located at Eastbound IH-10 and Pine. At approximately 4:26 p.m., the troubleman contacted the dispatcher and advised that he had "been from Hackberry all the way to Walters on both sides of 10" and was "not seeing anything." At approximately 4:27 p.m., CPS Energy's dispatcher called SAPD to request clarification about the downed light pole and was told that the light pole was actually located at Eastbound 10 to Northbound 37 and that the police had already left the scene.

Other undisputed evidence showed the downed light pole near Pine Street and IH-10 was not the one struck by Smith. Smith's accident occurred at approximately 4:46 p.m. when he struck the downed light pole located at Eastbound 10 to Northbound 37. Thus, the evidence showed that on the afternoon of Smith's accident CPS Energy was informed of two downed light poles located in the same vicinity.

In sum, the undisputed evidence showed that CPS Energy considered a downed light pole blocking the roadway to be an emergency and it employed first responders, troublemen, who responded to this type of emergency. The undisputed evidence also showed that on the day of Smith's accident CPS Energy was notified of a downed light pole in the middle of the *85highway near Pine Street and IH-10 and it responded by sending a troubleman to locate the downed light pole. When the troubleman was unable to locate the downed light pole, he contacted the dispatcher who sought clarification of the location of the downed light pole. At this point, the dispatcher was informed of another downed light pole, the downed light pole involved in Smith's accident. We conclude that the evidence established that Smith's claims arose from CPS Energy's response to an emergency call or reaction to an emergency situation.

Once CPS Energy presented evidence establishing that the emergency exception applied, Smith was required to plead and present evidence of at least one of the following: (1) CPS Energy was not responding to an emergency call or reacting to an emergency situation; (2) CPS Energy was not in compliance with the laws and ordinances applicable to the emergency action; or (3) CPS Energy's actions were taken with conscious indifference or reckless disregard for the safety of others. *See**Hartman* , 201 S.W.3d at 672 ; *Quested* , 440 S.W.3d at 284 ; *Rosenbaum* , 2011 WL 6739583, at *2 ; *Little* , 259 S.W.3d at 238-39. Smith failed to do so.

Smith did not plead or prove that CPS Energy was not responding to an emergency call or reacting to an emergency situation. Smith did not plead or prove that CPS Energy violated a statute or ordinance. *See**Hartman* , 201 S.W.3d at 672 (providing that emergency exception under section 101.055(2) applied when the plaintiffs did not assert that any law or ordinance applied to the activity). Nor did Smith, in response to the plea to the jurisdiction, plead or prove that CPS Energy acted with conscious indifference or reckless disregard in responding to the emergency situation. *See**id.* (providing that emergency exception under section 101.055(2) applied when the plaintiffs did not assert that the city's acts or omissions showed that it did not care what happened to motorists). A showing of conscious indifference or reckless disregard in responding to an emergency situation requires proof that a party knew the relevant facts but did not care about the result. *Id.* n.19. Here, the undisputed evidence showed that, upon notification of a downed light pole near Pine Street and IH-10, CPS Energy dispatched a troubleman to locate the downed light pole. Unable to locate the downed light pole, the troubleman called the CPS Energy dispatcher and advised the dispatcher that he had been searching for the pole and had not been able to locate it. The dispatcher sought clarification of the location of the downed light pole. At this point, the dispatcher was informed of another downed light pole, the light pole involved in Smith's accident.2 We conclude the evidence does not show that CPS Energy acted with conscious indifference or reckless disregard in responding to an emergency call or reacting to an emergency situation.

• ***Smith's Argument***

In his appellate briefing, Smith offers only one argument for why the emergency exception did not apply. According to Smith, the emergency exception did not apply here because there was "no evidence that CPS Energy ever responded to the scene of the wreck involving [him.]" We reject this argument for several reasons. First, Smith cites no authority to support this argument. Second, whether or not CPS Energy arrived at the scene of *86Smith's accident is irrelevant. Smith's claims involve CPS Energy's response or reaction to the downed light pole that he struck, a light pole that had been knocked down by another motorist prior to Smith's accident. Finally, Smith's argument conflicts with the Texas Supreme Court's broad construction of section 101.055(2) articulated in *Hartman.*201 S.W.3d at 672-73. In *Hartman* , the Texas Supreme Court acknowledged that section 101.055(2) applied to a variety of circumstances, refused to construe section 101.055(2)"to exclude emergencies the Legislature might have intended to include," and emphasized that the "statute exempts governments reacting to an emergency *situation* ...." *Id.* at 673 (emphasis in original). In *Hartman* , the plaintiffs sued the city after their family members drowned when their car drove into a flooded street and was swept away by the current. *Id.* at 669. The crux of the plaintiffs' lawsuit was that the city's placement of barricades around the flooded street was inadequate. *See**id.* at 673. The Texas Supreme Court held that an emergency situation existed, and the trial court had no subject-matter jurisdiction over the plaintiffs' claims because the city retained its governmental immunity under the emergency exception. *Id.* at 669, 673. Similarly, in this case, the crux of Smith's lawsuit is that CPS Energy's response or reaction to the downed light pole was inadequate. Furthermore, the evidence in this case conclusively established that Smith's claims arose from CPS Energy's response to an emergency call or a reaction to an emergency situation. Therefore, the emergency exception applies and the trial court has no subject-matter jurisdiction over Smith's claims against CPS Energy.

• ****City of San Antonio v. Torres****

Although the dissent asserts otherwise, our reasoning in this case is consistent with our reasoning in *City of San Antonio v. Torres* , No. 04-17-00309-CV, 2017 WL 5472537, at *1 (Tex. App.-San Antonio Nov. 15, 2017, no pet.). In *Torres* , the jurisdictional facts overlapped with the merits of the plaintiffs' case, and the evidence was disputed as to (1) whether the officer's actions were in compliance with the applicable statutes and ordinances, and (2) whether the officer did not act with conscious disregard for the safety of others. *Id.* at *5. Therefore, in *Torres* , the trial court was required to analyze the plea to the jurisdiction under a summary judgment-like framework. *See**Poindexter* , 306 S.W.3d at 806 (noting that when the jurisdictional issue or facts do implicate the merits of the plaintiff's case, the trial court does not act as a factfinder and the defendant is put to a burden very similar to that of a movant in a summary judgment; that is, if the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the factfinder at trial). Our reasoning in *Torres* was necessarily guided by these circumstances. *See**id.* at *3 (stating that because the "immunity inquiry is inextricably bound to the merits of [the plaintiffs'] claim, the burdens and our review mirror summary judgment practice."). Here, by contrast, the jurisdictional facts do not overlap with the merits of Smith's claims and the jurisdictional evidence is undisputed. *See**Poindexter* , 306 S.W.3d at 806 (noting that when the jurisdictional issue or facts do not implicate the merits of the plaintiff's case and the relevant jurisdictional facts are undisputed, the trial court makes the jurisdictional determination as a matter of law based solely on those undisputed facts).3

*87**CONCLUSION**

Because Smith's claims arise from CPS Energy's actions in responding to an emergency call or reacting to an emergency situation, they are barred by section 101.055(2) of the TTCA.4*See* TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2). We, therefore, conclude the trial court erred by not granting CPS Energy's plea to the jurisdiction as to all of Smith's claims.

We reverse the portion of the trial court's order denying CPS Energy's plea to the jurisdiction, and render judgment granting CPS Energy's plea to the jurisdiction in its entirety and dismissing all of Smith's claims against CPS Energy.

The City of San Antonio by and through City Public Service Board of San Antonio d/b/a CPS Energy ("CPS Energy") appeals the trial court's denial of its plea to the jurisdiction as to Smith's premises liability and gross negligence claims. Smith was driving his motorcycle on an exit ramp from Interstate Highway 10 to Interstate Highway 37 near downtown San Antonio in the afternoon when he unexpectedly encountered a fallen light pole obstructing his travel lane. The evidence shows material fact issues exist as to whether CPS Energy waived its immunity by failing to warn of or make safe this special defect on the roadway. Although the majority opinion decides CPS Energy had governmental immunity, it skips over the issue of whether CPS Energy waived its immunity and instead concludes that even if it did, Smith's suit must be dismissed because the emergency exception applies to this case. Because I conclude the emergency exception does not apply, I respectfully dissent.

**WAIVER OF IMMUNITY**

I agree with the majority opinion's conclusion that CPS Energy is entitled to immunity in the first instance because this lawsuit implicates CPS Energy's governmental functions. However, Smith argues that CPS Energy's immunity is waived in this case under the TTCA waiver provisions for injuries arising from conditions of real property. I conclude genuine issues of material fact exist as to whether CPS Energy's immunity is waived in this case.

**Texas Tort Claims Act**

Under the Texas Tort Claims Act ("TTCA"), the legislature has waived immunity for tort claims arising from "personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2011). With regard to claims arising from premises defects generally, a governmental entity owes to the claimant only the duty that a private person owes to a licensee on private property, which requires the plaintiff show the governmental unit had actual knowledge of the condition. *Id.*

*88§ 101.022(a); *Texas Dep't of Transp. v. York* , 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). "However, this limitation does not apply to 'special defects such as excavations or obstructions on highways, roads, or streets.' " *Texas Dep't of Transp. v. Perches* , 388 S.W.3d 652, 654 (Tex. 2012) (per curiam). (quoting § 101.022(b) ). When a special defect exists, the invitee standard applies, under which "a plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm." *Id.* at 654-55.

**Fallen Light Pole on the Roadway was a Special Defect**

"The TTCA does not define 'special defect' but likens it to 'excavations or obstructions' that exist 'on' the roadway surface." *Denton Cty. v. Beynon* , 283 S.W.3d 329, 331 (Tex. 2009)*see* TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). Thus, to constitute a special defect, the condition must "be in the same class as an excavation or obstruction on a roadway." *Perches* , 388 S.W.3d at 655 ; *see also**Beynon* , 283 S.W.3d at 331. To determine whether a condition is a special defect, the supreme court has "considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle's ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway." *Id.* "[C]onditions can be special defects like excavations or obstructions 'only if they pose a threat to the ordinary users of a particular roadway.' " *Beynon* , 283 S.W.3d at 331 (quoting *State Dep't of Highways & Public Transp. v. Payne* , 838 S.W.2d 235, 238 n.3 (Tex. 1992) (op. on reh'g) ). When determining whether a condition poses a threat to ordinary users of a particular roadway, we consider "the objective expectations of an 'ordinary user' who follows the 'normal course of travel.' " *The University of Texas at Austin v. Hayes* , 327 S.W.3d 113, 116 (Tex. 2010) (quoting *Beynon* , 283 S.W.3d at 332 ).

The fallen light pole in this case fits squarely within the definition of "special defect" as articulated by the supreme court. The fallen light pole, which obstructed a sizable portion of the right travel lane,1 presented an unexpected and unusual danger to ordinary users of the roadway in the normal course of travel. This is evidenced by the facts that between the time the light pole fell and Smith's collision, numerous drivers called 911 to report the condition and at least one other driver hit the fallen light pole. Lisa Castilleja-Rodriguez, who hit the light pole prior to Smith's collision, testified that although she tried to avoid the light pole, the light pole "knocked out" both of her right-side tires that hit it and that she then had to exit the highway and call 911. Smith testified he applied his brakes upon seeing the light pole directly ahead of him and "attempted to swerve" and "get out of the way," but the light pole was unavoidable. Thus, the evidence shows the fallen light pole was a special defect.

**Fact Issues Exist as to Duty and Breach**

"[A] premises liability defendant may be subject to liability if it has a right to *89control the premises, which 'may be expressed by contract or implied by conduct.' " *United Scaffolding, Inc. v. Levine* , 537 S.W.3d 463, 473 (Tex. 2017) (quoting *Gen. Elec. Co. v. Moritz* , 257 S.W.3d 211, 214 (Tex. 2008) ). "[A] premises-liability defendant may be held liable for a dangerous condition on the property if it 'assum[ed] control over and responsibility for the premises,' even if it did not own or physically occupy the property." *Cty. of Cameron v. Brown* , 80 S.W.3d 549, 556 (Tex. 2002) (quoting *City of Denton v. Van Page* , 701 S.W.2d 831, 835 (Tex. 1986) ). "Thus, the duty to make the premises safe or warn of dangerous conditions generally runs with the ownership or control of the property, and a defendant's liability under a premises liability theory rests on the defendant's assumption of control of the premises and responsibility for dangerous conditions on it." *United Scaffolding* , 537 S.W.3d at 474 (quotations omitted). "The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it." *Brown* , 80 S.W.3d at 556.

CPS Energy argues it did not owe a legal duty in this case because the interstate highway on which the collision occurred is owned by the State. Although it is undisputed the interchange between I-10 and I-37 is owned by TxDOT, ownership is not the only means by which a party may have a duty regarding a premises defect. *See id.* Smith alleged CPS Energy owed a duty "by contract or by undertaking" to maintain the light poles and warn of and remove the light pole that fell onto the roadway and to make such a condition safe. The jurisdictional evidence shows the City and the State entered into a contract whereby the City agreed to maintain and operate the lighting system along the interstate highways within the City, "including the furnishing of all materials, equipment, and labor which may become necessary to maintain the system." The evidence also shows, via a contract between CPS Energy and an independent contractor, that CPS Energy had a duty to maintain the lighting systems within the City, which included "state-owned expressway lighting systems." This evidence reasonably gives rise to an inference that the City delegated its duty to maintain the lighting system along the interstate highways to CPS Energy. The evidence also suggests the duty to maintain and operate the lighting system encompasses a responsibility to remove light poles when they fall onto the highway. Joel Nelson, an SAPD senior management analyst, testified when asked who is responsible to get fallen light poles off the highway and out of traffic, "TxDOT ... has the responsibility for all things on the highway with the exception of the light poles. I think that belongs to CPS." Jose Trevino, an employee at CPS Energy, testified when asked who is responsible for removing a fallen light pole on the roadway, "It could be either SAPD, or they could ask for assistance from CPS."

Smith produced evidence showing the following: At 3:00 p.m., a driver lost control and hit a light pole while driving on the ramp from eastbound I-10 to northbound I-37; SAPD received a call at 3:31 p.m. reporting a light pole was laying in the lane on the ramp from I-10 to I-37; SAPD received a phone call at 3:49 p.m. reporting that "a large pipe is in [the] lane of traffic causing a hazard" on the ramp from eastbound I-10 to northbound I-37; SAPD received a phone call at 3:50 p.m. reporting that a "big light pole [was] in [the] lane" on the ramp from eastbound I-10 to northbound I-37; SAPD received Castilleja-Rodriguez's call at 4:26 p.m. reporting her collision with the light pole;

*90SAPD received a call at 4:37 p.m. reporting a pole was laying on the highway on eastbound I-10 causing a traffic hazard; and SAPD received a call at 4:46 p.m. reporting Smith's collision. Castilleja-Rodriguez testified that upon being notified of a fallen pole on the roadway, she would expect SAPD to "take it as an immediate hazard ... and put flares to let people know ahead of time that there's a major obstacle in the road," and CPS Energy to "go and take care of it, get it out of the roadway." Castilleja-Rodriguez testified that after she called SAPD via 911, and within five to ten minutes after hitting the pole, she called CPS Energy to report the fallen light pole. Castilleja-Rodriguez related she told CPS Energy personnel the exact location of the fallen light pole, and that she was told CPS Energy "already [had] a call on that." When asked whether an hour and forty-six minutes is too long for a pole to be down and blocking a lane of traffic on an interchange like the one between I-37 and I-10, the City's corporate representative replied, "I mean, if it's blocking a lane, absolutely ... that would be too long."

Viewing the evidence in the light most favorable to Smith and indulging in every reasonable inference and resolving any doubts in Smith's favor, I conclude genuine issues of material fact exist as to whether CPS Energy had control over the highway with regard to the lighting system and thus had a duty to warn of or remove the light pole when it fell onto the roadway and created a dangerous condition, whether CPS Energy knew or should have known about the fallen light pole, and whether CPS Energy breached its duty by failing to remove or warn of the fallen light pole. *See**Suarez v. City of Texas City* , 465 S.W.3d 623, 633 (Tex. 2015) (where plea to the jurisdiction challenges existence of jurisdictional facts, we take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor); *see also**Brown* , 80 S.W.3d at 556 ; *Strunk v. Belt Line Rd. Realty Co.* , 225 S.W.3d 91, 100 (Tex. App.-El Paso 2005, no pet.). "If the evidence raises a fact question on jurisdiction, the trial court cannot grant the plea, and the issue must be resolved by the trier of fact." *Hayes* , 327 S.W.3d at 116.

**DISCRETIONARY AND EMERGENCY EXCEPTIONS DO NOT APPLY**

CPS Energy contends that even if its immunity is waived in this case, it retains its immunity under the discretionary and emergency exceptions to the TTCA.

Although the TTCA waives governmental immunity in certain circumstances, it also provides that exceptions may apply that render the TTCA inapplicable to a claim, meaning, as relevant here, the governmental entity could retain its immunity despite a plaintiff's ability to show a fact issue exists as to waiver. *See generally* TEX. CIV. PRAC. & *Rem. Code Ann.* §§ 101.051 - 101.067.

**Discretionary Exception**

The TTCA provides its waiver provisions do not apply "to a claim based on: (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.* § 101.056. CPS Energy argues it retains its immunity because it had no legal obligation to remove the fallen light pole from the roadway. As explained above, the evidence shows a question of fact exists on whether CPS Energy had a legal duty to maintain *91the light poles along the highway, which included removing them from the roadway when they fall.

Thus, the discretionary exception does not afford CPS Energy any retainer of immunity in this case. This leaves the emergency exception, which the majority finds persuasive and determinative of this case. For the following reasons, I disagree.

**Emergency Exception**

The TTCA provides it "does not apply to a claim arising ... from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, if the action is not taken with conscious indifference or reckless disregard for the safety of others." *Id.* § 101.055(2). The majority concludes that "because Smith's claims arose from CPS Energy's actions in responding to an emergency call or reacting to an emergency situation, they are barred by section 101.055(2) of the TTCA." For the following reasons, I disagree with the majority's analysis and conclusion.

**A. Pleas to the Jurisdiction Invoking the Emergency Exception Should be Analyzed under the Traditional Summary Judgment Framework Because the Application of the Emergency Exception Implicates the Merits**

The supreme court has instructed that our review of a plea to the jurisdiction that challenges the existence of jurisdictional facts and that implicates the merits of the case should "mirror[ ] that of a traditional summary judgment motion." *Mission Consol. Indep. Sch. Dist. v. Garcia* , 372 S.W.3d 629, 635 (Tex. 2012). The supreme court articulated the standard as follows:

> Initially, the ***defendant carries the burden*** to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction. If it does, the plaintiff is then required to show that a disputed material fact exists regarding the jurisdictional issue. If a fact issue exists, the trial court should deny the plea. But if the relevant evidence is undisputed or the plaintiff fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea as a matter of law.

*Id.* (emphasis added).2 Where a plaintiff presents evidence raising a genuine issue of material fact in response to a defendant's plea to the jurisdiction challenging the existence of jurisdictional facts and the jurisdictional issue implicates the merits of the case, the resolution of the disputed facts is reserved for the factfinder. *Univ. of Texas v. Poindexter* , 306 S.W.3d 798, 807 (Tex. App.-Austin 2009, no pet.). In such a case, the trial court's determination on appeal is "reviewed de novo, with the appellate court indulging every reasonable inference and resolving any doubts in the nonmovant's favor." *Id.* On the other hand, where the defendant presents evidence showing a lack of jurisdiction and the jurisdictional issue does *not* implicate the merits of the case, the trial court-not the jury-must act as the factfinder and resolve disputed and conflicting evidence, and the trial court's resolution thereof may be challenged on appeal for legal and factual sufficiency. *Id.* at 806.

The majority concludes that determining whether the emergency exception applies to this case "[does] not implicate the merits of Smith's claims." I respectfully disagree. The majority's conclusion that the *92application of the emergency exception does not implicate the merits of the case conflicts with a holding by this court just last year. In *City of San Antonio v. Torres* , a negligence suit against the City arising from an automobile collision with a City employee, this court held the application of the emergency exception "is inextricably bound to the merits of appellees' claim."*See**City of San Antonio v. Torres* , No. 04-17-00309-CV, 2017 WL 5472537, *3 (Tex. App.-San Antonio Nov. 15, 2017, no pet.) (mem. op.) This court thus concluded that "the burdens and our review [of whether the emergency exception applied] mirror summary judgment practice." *Id.* Applying the summary judgment burden shifting framework and review, this court stated: "To meet its initial burden, the City was required to present evidence establishing [the City employee] was responding to an emergency call, complied with the laws applicable to an emergency, and did not [act] recklessly or with conscious indifference to the safety of others." *Id.* This court went on to hold the "City's evidence [was] insufficient to meet its burden to negate that [government employee acted] recklessly or with conscious disregard for the safety of others," and that "[plaintiffs] were required to submit evidence only if the City presented evidence establishing immunity." *Id.* at *5.

The application of the emergency exception implicates the merits of a case because the emergency exception under § 101.055(2) practically operates as a defense to claims asserted under the immunity-waiver provisions of the TTCA by requiring, where a claim arises from the action of a public employee while reacting to an emergency situation, the defendant to show either that the employee's action complied with applicable laws or was not taken with conscious indifference or reckless disregard for the safety of others. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2) ; *Torres* , 2017 WL 5472537, at *3 ; *see also**Durham v. Bowie Cty.* , 135 S.W.3d 294, 298 (Tex. App.-Texarkana 2004, pet. denied) (noting emergency exception operates as an affirmative defense). Thus, when a defendant meets its burden by presenting evidence the emergency exception applies, the plaintiff, in order to succeed on the merits of his claim, must convince the finder of fact via controverting evidence that some element of the emergency exception was not met. *See, e.g.,**Lucker v. Tex. Dep't of Transp.* , No. 13-16-00380-CV, 2017 WL 3304178, at *2 (Tex. App.-Corpus Christi-Edinburg Aug. 3, 2017, pet. denied) (mem. op.) (noting in a suit in which TxDOT asserted the application of the emergency exception, the jury charge asked whether the TxDOT employee who had taken action at the scene of a flooded roadway was reacting to an emergency situation and whether the accident was proximately caused by the employee's conscious indifference or reckless disregard of the safety of others). The application of the emergency exception is not like those jurisdictional issues that do not implicate the merits of a case, such as whether the plaintiff satisfied a statutory prerequisite to filing suit; rather, the application of the emergency exception implicates the merits of the plaintiff's case because it affects what the plaintiff must show in order to recover. *See**Torres* , 2017 WL 5472537, *3 ; *cf.**Poindexter* , 306 S.W.3d at 807-08 (holding jurisdictional issue of plaintiff's compliance with statutory prerequisite to filing suit did not implicate the merits of the case).

Because the issue of whether the emergency exception applies necessarily implicates the merits of the case, I believe this court's analysis in *Torres* was correct and followed the supreme court's standard of review set forth in *Garcia.* Accordingly, I would analyze this issue under the traditional *93summary judgment framework.3*See**Garcia* , 372 S.W.3d at 635.

The difference in the standards of review employed is not determinative of the outcome in this case because the relevant jurisdictional evidence is undisputed, and thus whether the emergency exception applies should be decided as a matter of law. *See**Garcia* , 372 S.W.3d at 635 ; *City of San Antonio v. Mendoza* , No. 04-17-00168-CV, 2017 WL 4014617, at *2 (Tex. App.-San Antonio Sept. 13, 2017, no pet.) (mem. op.). However, in other cases where the relevant jurisdictional evidence ***is*** disputed-such as regarding whether a governmental employee was reacting to an emergency, whether that employee complied with applicable law, or whether the employee acted with conscious indifference or reckless disregard for the safety of others-the issue of whether the application of the emergency exception implicates the merits of a claim will affect who resolves the disputed facts and the deference this court gives to the trial court when reviewing a trial court's ruling on a plea to the jurisdiction. *See**Poindexter* , 306 S.W.3d at 806-07.

**B. CPS Energy Failed to Show Smith's Claims Arise from the Action of an Employee Reacting to An Emergency**

Applying the standard of review used by this court in *Torres* , I look first to whether CPS Energy met its initial burden to present evidence showing that Smith's claims arise from the action of an employee while responding to an emergency call or reacting to an emergency situation and that the action was in compliance with the laws and ordinances applicable to emergency action, or in the absence of such a law or ordinance, that the action was not taken with conscious indifference or reckless disregard for the safety of others. *See* TEX. CIV. PRAC. & REM. CODE ANN. § 101.055(2).

Viewing the evidence in the light most favorable to Smith and indulging in every reasonable inference and resolving any doubts in Smith's favor, I conclude CPS Energy failed to show Smith's premises liability claim arises from the action of an employee while responding to an emergency call or reacting to an emergency situation. The origination of Smith's injuries was the condition of the highway-not an action taken by an employee while responding or reacting to an emergency. *See**Lancer Ins. Co. v. Garcia Holiday Tours* , 345 S.W.3d 50, 54 (Tex. 2011) (noting "arise" means to originate in, have its origin in, grow out of, or flow from).

The most recent supreme court case to address the emergency exception is *City of San Antonio v. Hartman* , 201 S.W.3d 667, 672 (Tex. 2006) ( *Hartman II* ).4 There, the City was hit by a "rainstorm of historic proportions," causing the City to be "declared a disaster area." *Id.* at 669. City officials responded to the widespread flooding by placing barricades and flares on roads and highways throughout the city, including at least one barricade on the east side of a flooded portion of Rigsby *94Avenue.5*Id.* The Hartmans sued the City for premises liability after their relatives drove through the flooded portion of the street and drowned. *Hartman I* , 155 S.W.3d at 464-65. The supreme court held the emergency exception applied to more than traffic accidents involving government employees, and that the widespread flooding throughout the City, caused by "rainfall totals [that] exceeded those expected in a 100-year flood," constituted an emergency situation. *Hartman II* , 201 S.W.3d at 672-73. Thus, the supreme court concluded the Hartmans' premises liability suit arose out of City employees' actions while responding to an emergency situation. *Id.* at 673.

Noting the supreme court in *Hartman II* "interpreted the term 'emergency' broadly," the majority proceeds to apply the emergency exception to the facts of this case, concluding Smith's claims arose from CPS Energy's response to an emergency call or in reaction to an emergency situation. However, the majority's expansive application of the emergency exception to the facts of this case is not warranted by either § 101.055 's language or the supreme court's interpretation thereof. The emergency exception applies to claims ***arising from*** the action of a government employee while responding to an emergency call or reacting to an emergency situation. TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.055(2). In *Hartman II* , the suit arose from the actions of City employees because City employees had placed barricades throughout the City, including the roadway in question. *See**Hartman II* , 201 S.W.3d at 669 ; *Hartman I* , 155 S.W.3d at 463. Thus, the Hartmans' suit did not merely implicate the City's failure to warn of or make safe the premises defect of the flooded roadway; rather, the suit also implicated the City employees' actions in placing barricades on some parts of the roadway and not others. In this case, however, no government employee had taken any action at the scene with respect to the fallen light pole on the highway.

The other cases cited by the majority to support its conclusion that the emergency exception applies to this case involve actions taken by government employees at the scene of a roadway condition. *See**City of Coll. Station v. Kahlden* , No. 10-12-00262-CV, 2014 WL 1269026, at *5 (Tex. App.-Waco Mar. 27, 2014, pet. denied) (mem. op.); *City of El Paso v. Segura* , No. 08-02-00240-CV, 2003 WL 1090661, at *3 (Tex. App.-El Paso Mar. 13, 2003, pet. denied) (mem. op.). In *Kahlden* , the plaintiff brought suit against the city after her mother was hit from behind after stopping behind a police car that had stopped on the roadway to remove debris. *Kahlden* , 2014 WL 1269026, at *1. The court noted the patrol officer stopped on the highway with his emergency lights activated to remove the debris, and thus "took action" in response to a situation he considered an emergency. *Id.* at *5. In *Segura* , a motorist crashed into a construction barricade, knocking a directional light generator onto the roadway. *Segura* , 2003 WL 1090661, at *1. Police officers responding to the scene positioned their police vehicle near the wrecked vehicle and activated its flashing emergency lights; nonetheless, the plaintiff drove past the positioned police vehicle and crashed into the generator. *Id.* at *1-*2, *4. Thus, Segura's suit implicated an action taken by government employees upon arrival at the scene. *See id.*

*95In this case, however, at the time Smith collided with the light pole on the highway, no government employee had taken any action at the scene, or even arrived at the scene for that matter. At most, the evidence shows CPS Energy had actual knowledge of the fallen light pole and were in the process of responding to the dangerous condition on the roadway. The majority focuses on the fact that CPS Energy, after receiving a call from SAPD, dispatched a troubleman to locate the fallen light pole. But this lawsuit does not arise from any action taken by the CPS Energy troubleman that was driving around looking for the pole. Rather, this suit arises from the existence of a light pole in the roadway to which no government employee had responded at the time the incident occurred.

In the TTCA context, the supreme court has interpreted the term "arises from" as requiring a nexus. *See**LeLeaux v. Hamshire-Fannett Indep. Sch. Dist.* , 835 S.W.2d 49, 51 (Tex. 1992). Accordingly, in the context of the application of the TTCA's emergency exception the term "arises from" requires "a nexus" between the injury and the action of a government employee. *See**LeLeaux* , 835 S.W.2d at 51. This nexus requires more than mere involvement of governmental employees in the events leading up to the injury; rather, "the [employee's action] must have actually caused the injury." *Dallas Area Rapid Transit v. Whitley* , 104 S.W.3d 540, 543 (Tex. 2003) (internal quotations omitted). Although this principle has been applied primarily to the issue of whether a plaintiff's claim arises from the use of a vehicle or a condition or use of property, the same logic applies to the issue of whether a plaintiff's claim arises from an action of an employee while responding to an emergency call or reacting to an emergency situation. Because Smith's claims were not actually caused by any action of a government employee, the emergency exception does not apply.

In *Dominguez v. City of Fort Worth* , the Fort Worth Court of Appeals considered a premises liability suit against a city with similar facts as *Hartman* but with a crucial distinction that is instructive in this case. No. 2-06-196-CV, 2008 WL 623583, at *3 (Tex. App.-Fort Worth Mar. 6, 2008, pet. denied) (mem. op.). *Dominguez* involved a premises liability suit where the police redirected traffic because a street was beginning to flood due to heavy rains. *Id.* at *1. The driver turned the vehicle around and, without any further redirecting, made several turns onto different streets and successfully traversed two low water crossings. *Id.* However, in his third attempt at crossing a low water crossing, the vehicle was swept away and both occupants drowned. *Id.* Unlike in *Hartman* however, no city employee had arrived at or taken any action with regard to the particular flooded roadway crossing at which decedents drowned. *Id.* The court held the emergency exception was inapplicable because the officers' actions did not cause the decedents' deaths, i.e., the suit did not arise from an action taken by a government employee. *Id.* at *3. This distinction is also applicable in this case, where Smith's actions were not caused by any action taken by a government employee, but by a fallen light pole on the roadway. I am not aware of ***any*** case where a court has applied the emergency exception to a premises liability suit where no government employee had arrived and taken any action on the scene, and I would not do so here.6

*96Moreover, the fact that government employees merely have actual knowledge of a dangerous condition on the roadway and are in the process of reacting or responding to it cannot and does not mean the claim "aris[es] ... from the ***action*** of an employee while responding to an emergency call or reacting to an emergency situation." TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.055(2) (emphasis added). If this were so, all special defect claims would trigger the emergency exception where the governmental defendant had actual knowledge of the condition, thus allowing it to claim it was in the process of reacting to it. Such an extension of the emergency exception would effectively rewrite the TTCA to alter what a plaintiff must show to succeed on a special defect claim where it is undisputed the governmental unit had actual knowledge of the condition.

When interpreting and applying a statutory provision, we "must consider the statutory scheme as a whole" and "strive to give the provision a meaning that is in harmony with other related [provisions]." *Fort Worth Transportation Auth. v. Rodriguez* , 547 S.W.3d 830, 839 (Tex. 2018). "[W]hen the Legislature has enacted a comprehensive statutory scheme," we should avoid interpreting provisions in ways that "may upset the Legislature's careful balance of policies and interests." *Ritchie v. Rupe* , 443 S.W.3d 856, 880 (Tex. 2014). Rather, we should "consider the context and framework of the entire statute and meld its words into a cohesive reflection of legislative intent." *Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage Comm'n* , 518 S.W.3d 318, 326 (Tex. 2017).

An excavation or obstruction-like condition on a well-trafficked highway that presents an unusual and unexpected danger to ordinary drivers is, by nature, an emergency. *See**City of Denton v. Paper* , 376 S.W.3d 762, 765-66 (Tex. 2012) (per curiam); *Beynon* , 283 S.W.3d at 331 (explaining special defects); *see also* BLACK'S LAW DICTIONARY (10th ed. 2014) (defining "emergency" as "[a] sudden and serious event or an unforeseen change in circumstances that calls for immediate action to avert, control, or remedy harm."). The legislature decided as a matter of policy that it was important that the state's governmental units have an incentive to cure dangerous premises conditions, and that governmental units, to an extent,7 should be held legally responsible for injuries arising out of such conditions where the governmental unit with control over the premises has actual knowledge of the condition. *See* TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2), 101.022(a). Recognizing the heightened danger to the travelling public presented by the existence of dangerous conditions on the roadway, the legislature chose as a matter of policy to place a heightened duty on governmental units with respect to special defects, providing that a governmental unit should be held legally responsible for such roadway conditions merely when it should have known of the condition. *See**id.* § 101.022(b).

The effect of the majority's conclusion that the emergency exception applies in this case is to open the door to allow governmental units to seek refuge under the emergency exception whenever, as here, it is undisputed the unit had actual knowledge of the dangerous condition, thus allowing it to claim it was in the process of responding or reacting to an *97emergency. This would mean that whenever a governmental unit in a special defect case8 had actual knowledge of the condition, the plaintiff must not merely show that the governmental unit knew or should have known of the condition and breached its duty of care, as § 101.022(b) provides, but that, in the absence of laws or ordinances applicable to the governmental unit's response to the condition, the plaintiff would also have to show the governmental unit reacted with "conscious indifference or reckless disregard for the safety of others," i.e., gross negligence.9*Id.* § 101.055(2). Such a sweeping application of the emergency exception that changes the burden placed on plaintiffs where a governmental unit has actual knowledge of the roadway condition does not square with the legislature's intent that governmental units should be liable for dangerous premises conditions generally and have a heightened duty regarding special defects.

Commenting on the purpose of the emergency exception, the supreme court in *Hartman II* stated, "The Legislature has determined that the public good will be better served by encouraging public employees to take immediate action in emergency situations, rather than by suing them later if their actions were imprudent." *Hartman II* , 201 S.W.3d at 673. This purpose is furthered when the emergency exception is applied only to claims arising from actions taken by public employees, such as in premises liability suits where government employees have responded to and taken action at the scene. *See**id.* at 672 ; *Durham* , 135 S.W.3d at 299 ; *Segura* , 2003 WL 1090661, at *3 ; *Whitaker* , 977 S.W.2d at 744. It is not furthered however, where, as here, an ordinary user of the roadway comes upon a dangerous obstruction and no government employee was at the scene or had taken any prior action at the scene regarding the condition. *See**Dominguez* , 2008 WL 623583, at *3. Extending the emergency exception to cases where the governmental unit's employees know about the condition and are merely in the process of responding to it does nothing to further this purpose.

The issue in this case is not whether a special defect in the form of a fallen light pole on the roadway is an emergency. The issue is whether CPS Energy met its burden to show Smith's claims arise from the action of an employee while responding or reacting to an emergency. The plain language of the statute and case law indicate that CPS Energy failed to meet its burden. The majority repeatedly states Smith did not plead or prove that the emergency exception did not apply; however, Smith was only required to plead and prove the emergency exception did not apply once CPS Energy met its initial burden to present evidence showing the emergency exception applied to the facts of the case, which it failed to do. *See**Garcia* , 372 S.W.3d at 635 ; *Torres* , 2017 WL 5472537, at *3, *5.

Accordingly, I conclude the emergency exception does not apply to this case and *98therefore does not provide a basis for reversing the trial court's order.

**CONCLUSION**

For the foregoing reasons, I do not believe the emergency exception provides a basis for reversing the trial court's order and dismissing Smith's claims, and because the evidence raises fact issues as to CPS Energy's liability, I would affirm the trial court's order. Because the majority concludes otherwise, I respectfully dissent.

1

For purposes of analyzing this appeal, we will assume, without deciding, that immunity was waived under the TTCA.

2

The evidence also includes a police report which indicates that the San Antonio Fire Department removed the downed light pole from the roadway while at the scene of Smith's accident.

3

We recognize that even if the jurisdictional issue in this case did implicate the merits of Smith's claims, thus requiring the use of a summary judgment-like framework, the trial court was still required to rule on the plea to the jurisdiction as a matter of law because the relevant jurisdictional facts were undisputed. *See**Univ. of Texas v. Poindexter* , 306 S.W.3d 798, 806 (Tex. App.-Austin 2009, no pet.) (citing *Texas Dep't of Parks & Wildlife v. Miranda* , 133 S.W.3d 217, 227-28 (Tex. 2004) ).

4

When applicable, the emergency exception overrides any waiver of immunity *See**City of San Antonio v. Hartman* , 201 S.W.3d 667, 671 (Tex. 2006). Because we have determined that the emergency exception applies here, we need not address whether CPS Energy's immunity was waived because the issue is unnecessary to the disposition of this appeal. *See* Tex. R. App. P. 47.1 (requiring appellate courts to address only issues necessary to the final disposition of an appeal).

1

The evidence is unclear as to precisely how much of the roadway the light pole obstructed. Smith testified the light pole "[took] up most of the road," Castilleja-Rodriguez testified it was "almost three-quarters of the way into the lane," and the SAPD crash report stated it was "about half-way" into the lane.

2

This standard has since been reaffirmed by the supreme court in *Alamo Heights Indep. Sch. Dist. v. Clark* , 544 S.W.3d 755, 771 (Tex. 2018).

3

*Torres* is not the only case from this court applying the traditional summary judgment analysis where the governmental entity claimed it retained immunity under the emergency exception. *See**City of San Antonio v. Reyes* , No. 04-16-00748-CV, 2017 WL 3701772, at *3 (Tex. App.-San Antonio Aug. 23, 2017, no pet.) (mem. op.); *City of Laredo v. Varela* , No. 04-10-00619-CV, 2011 WL 1852439, at *3 (Tex. App.-San Antonio May 11, 2011, pet denied) (mem. op.). Other courts have employed this analysis as well. *See, e.g.* , *Texas Dep't of Pub. Safety v. Sparks* , 347 S.W.3d 834, 842 (Tex. App.-Corpus Christi 2011, no pet.).

4

I refer to the supreme court opinion as Hartman II and the court of appeals opinion as Hartman I.

5

Part of the City's argument was that the barricades present on the roadway at the time of the accident were adequate to warn the decedents. *See**City of San Antonio v. Hartman* , 155 S.W.3d 460, 469 (Tex. App.-San Antonio 2004), *rev'd* , 201 S.W.3d 667 (Tex. 2006) (*Hartman I* ).

6

In every other case where a court of appeals applied the emergency exception to a premises liability suit, the suit implicated an action taken by a government employee at the scene. *See**Durham* , 135 S.W.3d at 299 ; *City of Arlington v. Whitaker* , 977 S.W.2d 742, 744 (Tex. App.-Fort Worth 1998, pet. denied).

7

*See*Tex. Civ. Prac. & Rem. Code Ann. §§ 101.023, 101.024 (limiting the amount of liability of governmental units).

8

This problem would also apply to ordinary premises defect claims under § 101.022(a).

9

*See**City of N. Richland Hills v. Friend* , 337 S.W.3d 387, 396 (Tex. App.-Fort Worth 2011), *rev'd on other grounds* , 370 S.W.3d 369 (Tex. 2012) (noting the "conscious indifference" or "reckless disregard for the safety of others" language in § 101.055(2) equates to the state of mind required for gross negligence); *see also*Tex. Civ. Prac. & Rem. Code Ann. § 41.001 (defining gross negligence as an act that "involves an extreme degree of risk" and "of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others").