### OPINION
N o. 04

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- CV Reynaldo YBARRA , Appellant

v. The COUNTY OF HIDALGO , Appellee From the 131st Judicial District Court , Bexar County, Texas Trial Court No. 2010

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- 07674 Honorable Janet P. Littlejohn , Judge Presiding Opinion by: Sandee Bryan Marion, Justice Sitting: Sandee Bryan Marion, Justice Phylis J. Speedlin, Justice Marialyn Barnard, Justice Delivered and Filed: November 16, 2011
AFFIRMED Ap pellant, Reynaldo Ybarra, appeals the trial court’s orders granting a motion to dismiss for lack of jurisdiction and a motion for traditional and no

- evidence summary judgment in favor of appellee, the County of Hidalgo. We affirm. BACKGROUND On February 18, 2000, appellant, a postal worker, was delivering mail to the Hidalgo County Administrative Building, which is owned by appellee. While walking down a hallway04

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- after exiting the elevator, appellant was struck and injured when an emergency st airwell door was opened by Ricardo Ramos, an occupant of the building. Appellant sued appellee for injuries under the Texas Tort Claims Act. Appellee filed a motion to dismiss for lack of jurisdiction, asserting governmental immunity. Appellee also file d a motion for summary judgment asserting governmental immunity. The trial court granted the motions. STANDARD OF REVIEW In his sole issue on appeal, appellant argues the trial court erroneously granted appellee’s motions because appellant produced mo re than a scintilla of evidence creating a genuine issue of material fact. Appellant and appellee both agree the motions essentially argue the same point

— there is less than a scintilla of evidence supporting appellant’s claims. In this case, the motion to dismiss for lack of jurisdiction, or plea to the jurisdiction, implicates both subject

- matter jurisdiction and the merits of the case. “[I] f a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence subm itted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. ” Tex

. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 227 (Tex. 2004) . If no question of fact exists as to the jurisdiction, then the trial court must rule on the plea to the jurisdiction as a matter of law; however, if a fact question is raised, then the jurisdictional issue must be resolved by the fact finder. City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009). This st andard of review mirrors our review of summary judgments. T EX
. R. C IV
. P. 166a(c); Miranda , 133 S.W.3d at 228. Thus, on our review of both the plea to the jurisdiction and the summary judgment motion, we take as true all evidence favorable to appellant a nd indulge every reasonable inference and resolve any doubts in his favor. Heinrich , 284 S.W.3d at 378 (citing Miranda , 133 S.W.3d at 228).04

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- GOVERNMENTAL IMMUNITY A municipality such as the County of Hidalgo is immune from liability for governmental funct ions unless that immunity is waived. See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. §§ 101.001(3)(A)

– (B), 101.025 (W est 2010). However, waiver is limited to certain instances set out in Texas Civil Practice and Remedies Code section 101.021, which provides:
A governmental unit in the state is liable for: (1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if: (A) the property damage, personal injury, or death arises from the operation or use of a motor

- driven vehicle or motor

- driven equipment; and (B) the employee would be personally liable to the claimant according to Texas law; and (2) personal injury and death so caused by a condition or u se 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. Id. § 101.021 . Subsections one and two provide separate and distinct requirements before sovereign immuni ty is waived. Under subsection one, a governmental unit is liable if an employee negligently operated or used a motor vehicle and “the employee would be personally liable to the claimant according to Texas law.” Id. ; see also DeWitt v. Harris County , 904 S.W.2d 650, 653 (Tex. 1995). Under subsection two, a governmental unit may be liable for the use or condition of tangible personal property or real property. DeWitt , 904 S.W.2d at 653. If an employee misuses tangible personal property, the governmental unit’s liability is based on principles of respondent superior. Id. However, the condition of real property, unlike tangible personal property, is not dependent on principles of respondent superior. Id. Instead, liability is based on the duty of care owed by the governmental unit to the claimant for premises and special04

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- defects as explained in the Texas Tort Claims Act. T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.022 (“Duty Owed: Premise and Special Defects”). Here, appellant argues the employment status of Ricardo Ramos is important in determining whether a fact issue exists as to appellee’s liability. Appellant argues Ramos is an employee of the County of Hidalgo, while appellee argues Ramos is an employee of the State because he is a probation officer em ployed by a district judge and paid from State funds. However, we decline to decide whether Ramos is an employee of the county because it does not guide our review of appellant’s claim. Appellant does not argue that Ramos was driving a vehicle, nor does appellant argue the door was tangible personal property owned by appellant and used by Ramos. Instead, appellant’s claims are based on premises and special defects to real property. Id. § 101.021(2). Thus, if the county is liable, it is not based on the “wrongful act or omission or the negligence of” its employee. Id. § 101.021(1). SPECIAL DEFECT OR PREMISES DEFECT Appellant contends the door was defective, and thus unreasonably dangerous, because it lacked an important safety device that regulated the speed and force by which it opened. Appellant asserts a safety device on the inside of the door was removed before his injury. Hence, appellant argues this is a premises defect on real property belonging to appellee. Alternatively, appellant claims the defect in the door is a special defect. The Texas Tort Claims Act provides different standards of care depending o n whether a claim arises from an ordinary premises defect or a special defect. Id. § 101.022. If the condition is a premises defect, then the county owes the same duty that a private landowner owes a licensee, unless the claimant paid for the use of the premises. Id. § 101.022(a). This basic duty is to avoid injuring the claimant willfully, wantonly, or through gross negligence. State Dep’t of04

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- Highways & Pub. Transp. v . Payne , 838 S.W.2d 235, 237 (Tex. 1992). The duty also requires ordinary care eithe r to warn a licensee of a dangerous condition, or to make reasonably safe, if the county has actual knowledge of a dangerous condition and the licensee does not. Id. (emphasis added). If the condition is a special defect, then the county owes the same du ty a private landowner owes an invitee. T EX
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. P RAC
. & R EM
. C ODE § 101.022(b). This higher duty of care requires the county to use ordinary care to warn of a dangerous condition or to make the condition reasonably safe if it knows of or should have kn own of the defect. Payne , 838 S.W.2d at 23 7 (emphasis added). A. Special Defect While the Legislature does not specifically define special defects, it compares them to “excavations or obstructions on highways, roads, or streets.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.022(b). “Special defects are unexpected and unusual dangers to ordinary users of the roadway or sidewalk.” City of El Paso v. Chacon , 148 S.W.3d 417, 422 (Tex. App.

— El Paso 2004, pet. denied). Additionally, while the condition on the pr operty does not necessarily have to be on the roadway, it must be “close enough to present a threat to normal users of the road.” Id. Here, the door and pedestrian walkway complained of was located inside a building and not outside, near a road. Likewis e, appellant has presented no evidence that the door presented an excavation or obstruction on an actual highway, road, or street. Thus, the defect, if any, with the door was not a special defect. B. Premises Defect Next, we must determine whether app ellant has produced more than a scintilla of evidence of a premises defect. Because appellant did not pay for the use of the premises, he is only a licensee. The elements for a premises liability cause of action involving a licensee are: (1)04

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- a condition on the premises posed an unreasonable risk of harm; (2) the defendant had actual knowledge of the danger; (3) the plaintiff did not have actual knowledge of the danger; and (4) the defendant breached its duty of ordinary care by either failing to warn of t he condition or failing to make the condition reasonably safe. State v. Williams , 940 S.W.2d 583, 584 (Tex. 1996). Here, as previously mentioned, appellant argues the safety device designed to regulate the speed by which the door opened and closed was e ither not attached or had been removed, thus posing an unreasonable risk of harm to anyone on the outside of the door. As proof of the missing device, appellant offers an affidavit by Elvira Garza, a county employee who worked in the building, and deposit ion testimony by Jose Cantu, Sr., a former postal worker who delivered mail in the building before appellant. Garza claims the door lacked a safety device because she could see and hear the door slam “hard continuously.” Cantu asserts the door had no res istance and that the device used to slow the door down was not attached “half the time.” Additionally, appellant argues the county knew the door was in disrepair by offering his own deposition in which he claims Ramos told him right after the accident tha t the door “got away from me.” However, there was no evidence Garza, Cantu, or Ramos reported the broken or missing device to county officials. As such, appellee argues the evidence presented by appellant does not by itself establish that the safety devi ce was not properly attached at the time of the accident or that county officials knew the device was not attached at the time of the accident. We agree. In City of Dallas v. Thompson , the evidence established the city knew a cover plate would come loose from the floor and that employees would tighten the plate when this happened. 210 S.W.3d 601, 603 (Tex. 2006). One of the times when the plate was loose, a pedestrian walking over the cover plate fell. Id. The Supreme Court upheld the city’s summary j udgment04

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- determining that the appellant had not presented evidence of the city’s actual knowledge of the condition at the time of the incident. Id. at 604 (emphasis added); see also Univ. of Tex. at Austin v. Hayes , 327 S.W.3d 113, 117 (Tex. 2010). Similarly, in this case, appellant has not presented evidence showing the county actually knew of the missing or broken safety device on the day appellant was injured

— or for that matter

— the county knew the device was mis sing or broken at any time in the past. Appellant also claims appellee knew of the dangerous condition of the door because a sign was posted on the inside warning persons to open the door slowly. However, this evidence does not present a fact issue as t o whether the door needed repair or whether it was missing a safety feature regulating how fast the door would swing open. Consequently, appellant has not produced evidence that the door posed an unreasonable risk of harm or that appellee actually knew o f the danger. The evidence produced by appellant only “contemplates the hypothetical knowledge of a dangerous condition, not actual knowledge of a dangerous condition.” Hayes , 327 S.W.3d at 117. Because there is no evidence showing the county had actual knowledge of a dangerous condition at the time of the incident, appellant failed to establish the elements for a premises defect case. CONCLUSION For the reasons stated above, appellant’s claim is precluded by the Texas Tort Claims Act. Therefore, we a ffirm the trial court’s orders granting appellee’s motion to dismiss for lack of jurisdiction and motion for summary judgment.
Sandee Bryan Marion, Justice