Plaintiff brought a lawsuit for the wrongful death of a close relative who was killed when his motorcycle collided with a horse at night on a public highway. The lawsuit was brought against the City of Lufkin and the County of Angelina on the theory that the presence of the horse had before the accident been reported to the law enforcement agencies of both and neither had removed the horse from the highway or taken steps to warn motorists of the horse.
The trial court granted the defendants motion for summary judgment because both the City and County are immune from lawsuit under the doctrine of sovereign immunity. While that immunity is waived by the State of Texas under the Tort Claims Act, this accident did not fall within the scope of that waiver. The presence of horses on a highway is not a defect in premises that comes within the statute. Accordingly, the Court of Appeals agrees with the decision of the trial court and affirms the granting of summary judgment.
This wrongful death case presents questions related to the waiver of sovereign immunity under the Texas Tort Claims Act. Tex.Civ.Prac. & Rem.Code Ann. §§ 101.001-101.109 (Vernon 1997 & Supp.2000). The appellants complain that the trial court erred in granting the City of Lufkin's plea to the jurisdiction and Angelina County's motion for summary judgment.
Appellants are constrained to avoid the burden of proving actual knowledge imposed by § 101.022(a). See State Dep't of Highways and Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992). To that end they raise several questions in their brief. Three dispose of the issues on appeal: did the presence of horses on or near a public road constitute a special defect under § 101.122(b); did loose horses on the highway constitute a condition of property, other than one involving a defect, actionable under § 101.021(2); and did statutes addressing the responsibility of the appellees to control estrays waive statutory immunity under the facts of this case? We conclude the answer to each question is "no." Accordingly, we overrule both of the appellants' complaints and affirm the judgment.
The appellants are the survivors of Tommie Lee Williams, Jr. who died after his motorcycle collided with a horse on a highway, Loop 287. The collision happened at night. There is evidence that the presence of horses on Loop 287 had been reported earlier that night to both appellees, the city and county. City police had chased the horses away from the highway.
Appellants sued the appellees alleging that the presence of the horses created an unreasonable risk of harm and that both appellees failed to use ordinary care to protect Williams either by warning him of the dangerous condition or by removing the horses from the area. Appellants further alleged that sovereign immunity was waived because the presence of the horses constituted a use of tangible personal or real property under § 101.121(2). Appellants alleged that, to the extent their claim involved a premises defect, the presence of horses on Loop 287 constituted a special defect under § 101.022(b). Both appellees pleaded sovereign immunity as a defense and pressed that defense with the city's plea to the jurisdiction and the county's motion for summary judgment. The trial court summarily sustained both appellees' sovereign immunity pleas and entered a take nothing judgment against the appellants.
Appellants first argue the presence of horses on or near Loop 287 constituted a special defect. We overrule this argument because we are obliged to conclude that a live horse, like a fully operational motor vehicle, is not a defect in the highway premises. See State v. Burris, 877 S.W.2d 298, 299 (Tex.1994).
Alternatively, appellants argue that the facts of this case present a case of liability under § 101.021(2) caused by a condition of Loop 287. As a part of this argument appellants urge that § 101.021(2) does not limit conditions of real property to premise defects or special defects. Appellants argument fails because a cause of action involving a condition of real property does not exist separate and distinct from a cause of action for a premises defect. See Laman v. Big Spring State Hosp., 970 S.W.2d 670, 671-72 (Tex.App.--Eastland 1998, pet. denied). As the only defect in this case must be the presence of a horse on Loop 287, this alternative argument fails for the same reason as the appellants' first argument.
Appellants also argue that § 101.0215(a) imposed a duty upon the city to control animals while the Agriculture Code imposes a duty upon the county to impound estrays. See Tex.Agric.Code Ann. §§ 142.001-142.011 (Vernon 1982 & Supp.2000). While the statutes appellants cite may recognize or impose responsibilities upon the appellees, they do not extend the limited waiver of appellees' sovereign liability. Where the Tort Claims Act does not waive immunity, immunity remains the rule. See Miller v. City of Fort Worth, 893 S.W.2d 27, 32 (Tex.App.--Fort Worth 1994, writ dism'd by agr.).
Both of appellants' complaints are overruled, and the judgment is affirmed.
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