Hous. Auth. of City of Austin v. Garza

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Housing Authority of the City of Austin, Appellant v. Julia Garza, Appellee

No. 03-22-00085-CV

Court of Appeals of Texas, Third District, Austin

July 31, 2023

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO D-1-GN-18-005431, THE HONORABLE KARIN CRUMP, JUDGE PRESIDING

Before Justices Baker, Triana, and Theofanis

MEMORANDUM OPINION

Gisela D. Triana, Justice

Appellee Julia Garza sued the Housing Authority of the City of Austin under the Texas Tort Claims Act (TTCA), seeking damages related to injuries from a fall that she asserts was caused by a premises defect created during a construction project at her residence. See generally Tex. Civ. Prac. &amp Rem. Code §§ 101.001-.109 (TTCA). The Housing Authority filed a plea to the jurisdiction, arguing that its governmental immunity has not been waived under the TTCA because Garza cannot establish that the allegedly dangerous condition constitutes a premises defect for which the Housing Authority would be liable to Garza if the Housing Authority were a private person. The trial court denied the Housing Authority's plea to the jurisdiction, and the Housing Authority filed this interlocutory appeal.

The issue in this case is whether the Housing Authority owed Garza a duty to exercise reasonable care to protect her from dangerous conditions that were either known or reasonably discoverable. Because we conclude that Garza did not raise a fact issue about whether the Housing Authority exercised sufficient control over the contractor's work on the premises to give rise to a duty of care, we reverse the trial court's order and render judgment dismissing the case against the Housing Authority.

BACKGROUND^[1]

On September 5, 2017, Garza fell when she was outside near the back porch of her apartment unit located in the Pathways at Georgian Manor apartment complex (the "Property"). The Housing Authority owns and manages the Property. The Housing Authority operates under the U.S. Department of Housing and Urban Development (HUD) to implement, administer and oversee housing assistance programs to people who qualify for rental assistance under the HUD guidelines.

In 2017, the Housing Authority began an extensive nine-month renovation project at multiple complexes it owned, including the Property (the "Project"). As part of the Project, several units at the Property, including Garza's unit, were renovated to comply with the Americans with Disabilities Act (ADA). The Housing Authority entered into the "Prime Contract" with Austin Affordable Housing Corporation (AAHC), which is an affiliate of the Housing Authority and is also the project developer and prime contractor, to provide all construction services and materials on the properties for the Project. As allowed by the Prime Contract, AAHC entered into a "Subcontract" with S. Cook Construction Company, L.P. to provide all construction services and materials on the Project. Cook Construction in turn subcontracted with Specialty Tractor Landscaping, L.L.C. to provide landscaping and construction of porches for several units at the Property. Under the contracts, Specialty Tractor was responsible for providing "a sufficient number of properly qualified workmen, a sufficient amount of materials, adequate tools, appliances, equipment, and supplies of proper quality to prosecute said work efficiently, promptly and in accordance with [Cook Construction's] schedule for the Work." The contracts also required Specialty Tractor to directly supervise its work and to conform to the safety policies and programs of Cook Construction and AAHC and all safety laws, regulations, ordinances, and requirements promulgated by any governmental authority with jurisdiction over the Project. In addition, the contracts established that Specialty Tractor's work was to be performed under the direction of Cook Construction, but that notwithstanding Specialty Tractor's agreement to abide by Cook Construction's direction, "it is agreed and understood that [Specialty Tractor] is an independent contractor, and [Specialty Tractor] shall be responsible for all means, methods and techniques for performance of the Work."

Before the Project began, the Housing Authority hosted multiple community meetings at the Property to inform residents of the construction process. The Housing Authority continued to hold community meetings throughout the duration of the Project to keep residents informed on the status of the construction and any new developments and to answer residents' questions. Translators also attended the community meetings to assist residents who did not speak English. In addition to the community meetings, Property residents received several written notices throughout the construction process advising of construction concerning the resident's specific unit and the Property in general.

Garza's unit was one of several units at the Property undergoing renovations to comply with ADA standards. Garza acknowledged receiving several notification letters from Housing Authority personnel advising of upcoming construction on her unit and the apartment complex in general. At least forty-eight hours before construction began, the Housing Authority sent Garza written notice that contractors would be performing work on her back porch and that Garza needed to remove all items from her back porch and porch storage closet. The written notice also advised her that the construction would be completed by September 8, 2017. In addition, a construction worker orally notified Garza of the upcoming construction and instructed her to remove her items from her back porch and storage closet. Garza removed her belongings from her back porch and storage closet as instructed.

Specialty Tractor began construction on Garza's back porch on September 5, 2017. Garza testified as follows about the events of that day. She could hear the ongoing construction from within her unit, and she observed the construction while traveling to and from the parking lot. After leaving for the day to visit friends, Garza returned to her residence after Specialty Tractor had finished working for the day. While she was in the parking lot, she could see her back porch and noticed that a plastic tarp that she had used to cover the belongings she had removed from her storage closet had blown off. Garza went into her apartment "through the front door because there was no construction on the front door," then went back outside through her front door because she wanted to put the plastic cover back over her belongings. It was still light outside. She had no problems with her vision, and she was able to see everything as she was walking to her back porch. She walked around the side of her unit towards her back porch, and as she approached her porch, she observed "some loose dirt" along the side of the concrete pad that had been poured. She knew the concrete pad had not yet dried because the wooden stakes used to pour the concrete pad were still in place. She nevertheless proceeded towards her back porch to cover up her belongings and "stepped on some of that loose dirt" that was unstable, which caused her to fall.

Garza subsequently filed suit against the Housing Authority, Cook Construction, and Specialty Tractor. In her live petition (her Fourth Amended Original Petition), Garza asserts a premises-liability claim against the Housing Authority under the TTCA and alleges that the statute waives sovereign immunity for personal-injury claims caused by a special defect or premises defect if the Housing Authority would be liable under Texas law if it were a private person. See Tex. Civ. Prac. & Rem. Code §§ 101.021(2), .022(a). She also asserts that after her fall, "[i]t was determined that construction/landscaping crews had placed thin, wooden planks over the construction/landscaping trenches and covered them with dirt making them invisible to [Garza];" "[s]upportive materials or structures underneath the wooden planks were nonexistent;" and "[t]here were no warning signs or barriers that prevented [Garza] from entering her backyard prior to her fall."

The Housing Authority filed a plea to the jurisdiction, asserting that Garza could not establish a waiver of its governmental immunity under the TTCA. The Housing Authority argued that the alleged defect was not a special defect as defined by Texas law. To address Garza's premises-defect claim, the Housing Authority attached evidence to show that (1) it was not in possession of the part of the construction site where the injury occurred, (2) it did not have actual or constructive knowledge of the allegedly dangerous condition, and (3) the condition on the premises did not pose an unreasonable risk of harm. Garza filed a response to which she attached evidence in support of her claim. The Housing Authority filed a reply, and Garza filed a response to the reply. The trial court conducted a hearing on the plea to the jurisdiction on January 31, 2022.

On February 2, 2022, the trial court signed its order denying the plea to the jurisdiction. This interlocutory appeal followed.

ANALYSIS

On appeal, the Housing Authority challenges the trial court's denial of its plea to the jurisdiction in two issues. In its first issue, it asserts that it is a governmental entity entitled to immunity under the TTCA unless immunity has been waived. In its second issue, it contends that its sovereign immunity has not been waived based on the facts of this case, arguing that Garza did not present sufficient evidence to raise a fact issue on any of the three elements of her premises-defect claim. We turn first to the issue of whether the Housing Authority is a governmental entity entitled to sovereign immunity under the TTCA.

I. Sovereign Immunity

"Sovereign immunity protects the...