Opinion
01-20-00700-CV
08-30-2022
MATTIE JONES, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF ALVIN JONES, DECEASED, Appellant v. HARRIS COUNTY, Appellee
On Appeal from the 164th District Court Harris County, Texas Trial Court Case No. 2020-48838
Panel consists of Justices Kelly, Goodman, and Guerra.
MEMORANDUM OPINION
Amparo Guerra, Justice
Mattie Jones, individually and as representative of the estate of her late husband Alvin Jones, appeals the trial court's order dismissing her wrongful death and survival claims against Harris County on its plea to the jurisdiction. Jones contends the trial court erroneously concluded that her pleading failed to allege facts affirmatively demonstrating a waiver of the County's governmental immunity. Because we conclude the issue is one of pleading sufficiency and not an incurable jurisdictional defect, we reverse and remand for Jones to amend her petition.
Background
Jones's husband Alvin, who relied on a wheelchair for mobility, died after he was struck by a vehicle while crossing a Harris County road. Jones alleged:
Alvin . . . [was] attempting to cross Oakwood Glen Boulevard at its intersection with Stuebner Airline Road (the "Subject Intersection"). After crossing from the West to the East side of Stuebner Airline, [Alvin] was unable to exit the crosswalk (the "Subject Crosswalk") due to the absence of the ramp or curb cutback. Consequently, [he] was forced to continue south on Stuebner Airline in a poorly lit stretch of the road until the next driveway, which was approximately 100 [feet] South of the Subject Intersection. Before [he] was able to reach the closest driveway and exit the street, he was struck by a vehicle . . . . This collision caused Alvin [] to be ejected from his wheelchair approximately ten feet forward, where he struck his head on the roadway. As a result of the collision, Alvin [] was rushed to the nearest hospital but succumbed to his injuries approximately 48 hours later.
Jones filed wrongful death and survival claims against the County and two companies she alleged are the property owners on either side of the Subject Intersection. Jones's petition included photographs purporting to depict the Subject Intersection and show the lack of curb ramps at the end of the Subject Crosswalk:
The company defendants are Phillips Edison Grocery Operating Partnership I, L.P. and Virgata Property Company, LLC. Although defendants below, they are not parties to this appeal.
(Image Omitted)
Jones pleaded causes of action for (1) "negligence under the Texas Accessibility Standards [(TAS)]," (2) negligence, and (3) gross negligence against all defendants. For the most part, her allegations relevant to these causes of action were not specific to any one defendant. Instead, her pleading generally referenced the defendants collectively, with few exceptions.
The TAS were adopted by the Texas Commission of Licensing and Regulation pursuant to the Architectural Barriers Act. See 16 Tex. Admin. Code § 68.100(a) (adopting 2012 TAS pursuant to Chapter 469 of the Texas Government Code, Elimination of Architectural Barriers). The TAS are administered by the Texas Department of Licensing and Regulation and are available on the Department's website. See Tex. Dep't of Licensing & Regul., Texas Accessibility Standards (2012), https://www.tdlr.texas.gov/ab/2012TAS/2012tascomplete.pdf.
Under her cause of action for "negligence under the [TAS]," Jones alleged that Alvin "was a person with a disability," as defined by Chapter 121 of the Texas Human Resources Code, and that the defendants, "collectively," violated the TAS for public facilities. According to Jones, the TAS required the County to provide disabled persons, like Alvin, a "clear path of travel through the crosswalk." Jones pleaded that the TAS established a "standard of care" for defendants, and that their "unexcused violation" of that standard constituted negligence per se that was a proximate cause of Alvin's injuries and death.
Chapter 121 of the Texas Human Resources Code requires that "[p]ersons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state." Tex. Hum. Res. Code § 121.003(a); see generally id. §§ 121.001-.011.
In her claim for negligence per se, Jones also pleaded that the company defendants' retail businesses were public facilities and that these defendants "failed to design, construct, and maintain the sidewalks so as to be accessible to [Alvin] or other such disabled individuals in violation of Texas Human Resources Code Section 121.003(d)." See id. § 121.003(d) (listing failure to comply with Chapter 469, Government Code as type of disability discrimination prohibited by Chapter 121). Jones did not plead a Section 121.003(d) violation against the County.
Under her negligence cause of action, Jones alleged that the defendants owed a "duty to exercise ordinary care in constructing, operating, managing, and monitoring the Subject Sidewalk and/or Intersection in a reasonable, safe, and prudent manner," and that they breached that duty in numerous ways, including by failing to comply with the TAS requirements for walking surfaces, changes in level, and curb ramps. Jones also alleged negligence based on the defendants' failure to (1) properly train and supervise their "employees, agents, contractors, or servants who maintained the Subject Sidewalk and/or Intersection" and (2) adopt "policies and procedures" for avoiding unreasonable risks of harm to persons on "their business premises."
A "curb ramp" is a "short ramp cutting through a curb or built up to it." Texas Accessibility Standards 106.5.23, at 13.
Jones sought to overcome the County's governmental immunity under the Texas Tort Claims Act (TTCA) by alleging that Alvin's death was caused by a use or condition of the County's real property. See Tex. Civ. Prac. & Rem. Code § 101.021(2). Specifically, she pleaded:
[The] County either knew or should have known of the unreasonably dangerous condition created by the lack of a ramp for access at the Subject Intersection. Pedestrians, bicyclists, and anyone using the clearly marked crosswalks did not have a safe way to get out of the street and onto the adjacent property. The crosswalks led to essentially dead ends instead of ramps or a sidewalk. [The] County did not provide any warning of the dangerous condition and could not have discharged its duty in this manner. [The] County's failure to correct the condition constituted negligence, and such negligence was a proximate cause of the occurrence in question . . . . Moreover, [the] County should have known of the dangerous condition at the Subject Intersection and should have been further aware that said dangerous condition constituted a special defect within the meaning of the [TTCA].
Jones further alleged the County was negligent in the design, construction, and control of the Subject Intersection.
The County filed a combined answer and plea to the jurisdiction. The County asserted that Jones had not alleged facts demonstrating a valid waiver of its governmental immunity and that her claims, as articulated in the petition, arose from acts for which it retained immunity under the TTCA's discretionary function exception. See id. § 101.056. The County summarized its position as follows:
[Jones] is alleging a premises defect claim arguing [the] County should provide sidewalk ramps. [The] County is entitled to [s]overeign [i]mmunity because the design and safety decisions regarding public works by governmental entities are discretionary decisions for which the government cannot be sued. Further, when a fact situation involves a premises defect a plaintiff cannot allege other negligence causes of action. Immediate dismissal is appropriate.
The County also argued that Jones's pleading did not fall within the TTCA's immunity waiver for ordinary premise defect and special defect claims.
Jones responded that the facts alleged in her petition affirmatively demonstrated the trial court's jurisdiction over her claims. She argued that the TTCA's discretionary function exception did not apply because the Americans with Disabilities Act (ADA) and TAS mandated that the County "make pedestrian crossings accessible to people with disabilities by providing curb ramps." In other words, according to Jones, the County had no discretion but to install curb ramps at the Subject Intersection under the law and regulations governing the accessibility of public facilities.
Although Jones cited the ADA requirements as a reason to deny the County's plea to the jurisdiction, she did not amend her petition to include her allegation that the County's road was not in compliance with the ADA regulations. But she did request "time to amend her petition for any alleged technical deficiencies."
Jones attached exhibits to her response, including the affidavit of a safety engineer, Kelly Golda, who opined that the lack of curb ramps presented an "unreasonable risk of harm" because it forced a wheelchair-bound pedestrian "to continue within the vehicular lanes of travel toward the next available driveway to the adjacent retail property." According to Golda, the applicable disability law and building standards mandated the installation of a ramp at the Subject Intersection. In addition, Jones attached copies of several documents referenced by Golda, including (1) the "ADA Tool Kit: Curb Ramps and Pedestrian Crossings Under Title II of the ADA"; (2) the "ADA Curb Ramp and Sidewalk Guidance" sheet published by the Texas Department of Transportation; and (3) the standard plan published by the County Engineering Department for "accessible curb ramps and landings."
Although the County replied in support of its jurisdictional plea, it did not submit any evidence controverting the jurisdictional facts alleged by Jones or otherwise challenge the existence of such jurisdictional facts.
Without a hearing and before discovery, the trial court granted the plea to the jurisdiction and dismissed Jones's claims against the County.
In total, Jones's claims against the County were pending for a little over one month before they were dismissed. Jones filed her original petition on August 14, 2020, and the trial court granted the County's plea to the jurisdiction on September 22.
Standard of Review
A plea to the jurisdiction challenges the trial court's authority to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000). Because governmental immunity from suit defeats a trial court's subject matter jurisdiction, it is "properly asserted in a plea to the jurisdiction." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether the trial court has subject matter jurisdiction is a question of law reviewed de novo, Tex. Nat. Res. Conservation Comm'n v. IT-Davy 74 S.W.3d 849, 855 (Tex. 2002), and the plaintiff bears the burden of affirmatively demonstrating the trial court's jurisdiction. See Miranda, 133 S.W.3d at 226.
A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). When, as here, the plea to the jurisdiction challenges only the pleadings, "we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Miranda, 133 S.W.3d at 226. To determine whether the plaintiff met her burden, "we liberally construe the pleadings, taking all factual assertions as true and looking to [the plaintiff's] intent." City of Ingleside v. City of Corpus Christi, 469 S.W.3d 589, 590 (Tex. 2015) (per curiam). "If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court['s] jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff[] should be afforded the opportunity to amend [her pleadings]." Miranda, 133 S.W.3d at 226- 27. But if the pleadings affirmatively negate the existence of jurisdiction, the plea to the jurisdiction must be granted without giving the plaintiff an opportunity to amend. Id. at 227.
Plea to the Jurisdiction
In her sole issue on appeal, Jones argues that the trial court erred by granting the County's plea to the jurisdiction because the facts alleged in her pleading affirmatively demonstrated a waiver of the County's governmental immunity. In the alternative, she argues that her pleading does not affirmatively negate the trial court's jurisdiction and, therefore, she should have been given an opportunity to amend her petition before the trial court dismissed the County.
A. Governmental Immunity
Under the common law, a governmental defendant is immune from suit and liability unless the state consents. Univ. of Tex. SW. Med. Ctr. at Dallas v. Estate of Arancibia, 324 S.W.3d 544, 546 (Tex. 2010); see also Dewitt v. Harris Cnty., 904 S.W.2d 650, 652 (Tex. 1995) ("[W]aiver of sovereign immunity is a matter addressed to the Legislature."). Consequently, in a suit against a governmental defendant, the plaintiff must affirmatively demonstrate the trial court's jurisdiction by alleging a valid waiver of immunity. See Tex. Dep't of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). A statute "must contain a clear and unambiguous expression of the Legislature's waiver of immunity." Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003); see also Tex. Gov't Code § 311.034 ("In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and unambiguous language."). The meaning and scope of statutory immunity waivers are questions of law that we consider de novo. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006).
B. Chapter 121 of the Human Resources Code
Although Jones relied exclusively on the TTCA to demonstrate the trial court's subject matter jurisdiction below, the County argued for the first time during oral argument that the trial court lacks jurisdiction for the additional reason that "governmental immunity is not waived for suits seeking relief due to disability discrimination." The County contends that Chapter 121 of the Human Resources Code is Jones's "exclusive remedy for violations of disability discrimination laws," and that it requires dismissal of Jones's claims because it does not waive governmental immunity and Jones has not complied with a jurisdictional notice requirement. Jones responds that we should reject the County's new jurisdictional contention for three reasons: (1) she is not seeking relief against the County under Chapter 121, (2) she pleaded notice, and (3) the statute provides for a plea in abatement if notice is deficient, rather than dismissal on a plea to the jurisdiction.
We recognize the County is entitled to make immunity-based jurisdictional arguments for the first time on interlocutory appeal. See Rusk State Hosp. v. Black, 392 S.W.3d 88, 94-95 (Tex. 2012) (immunity from suit is issue of subject matter jurisdiction that may be raised for first time on appeal). Because the parties did not address Chapter 121 in the briefs filed before oral argument, this Court asked for and received post-submission briefing from both parties on the County's new jurisdictional contention.
We begin with an overview of the statutory provisions relevant to our Chapter 121 analysis. See Tex. Hum. Res. Code §§ 121.001-.011. Chapter 121 embodies the purpose of "encourag[ing] and enabl[ing] persons with disabilities to participate fully in the social and economic life of the state, to achieve maximum personal independence, . . . and use all public facilities available within the state." Id. § 121.001. The Legislature has instructed that Chapter 121's provisions are to be "construed in a manner compatible with other state laws relating to persons with disabilities." Id. § 121.009. In addition, the statute "shall be liberally construed to achieve [its] purpose and to promote justice." Tex. Gov't Code § 312.006(a).
Section 121.003(a) provides that "[p]ersons with disabilities have the same right as persons without disabilities to the full use and enjoyment of any public facility in the state." Tex. Hum. Res. Code § 121.003(a). A "public facility" is statutorily defined to include:
a street, highway, sidewalk, walkway, common carrier, airplane, motor vehicle, railroad train, motor bus, streetcar, boat, or any other public
conveyance or mode of transportation; a hotel, motel, or other place of lodging; a public building maintained by any unit or subdivision of government; a retail business, commercial establishment, or office building to which the general public is invited; a college dormitory or other educational facility; a restaurant or other place where food is offered for sale to the public; and any other place of public accommodation, amusement, convenience, or resort to which the general public or any classification of persons from the general public is regularly, normally, or customarily invited.Id. § 121.002(5).
The types of discrimination prohibited by Section 121.003 include a failure to comply with the architectural barrier standards in Government Code, Chapter 469. Id. § 121.003(d)(1). Chapter 469--the Architectural Barriers Act-expresses the Legislature's intention to both "ensure that each building and facility subject [thereto] is accessible to and functional for persons with disabilities without causing the loss of function, space, or facilities" and "eliminate, to the extent possible, unnecessary barriers encountered by persons with disabilities[.]" Tex. Gov't Code § 469.001(a), (c); see City of Dallas v. Patrick, 347 S.W.3d 452, 459 (Tex. App.- Dallas 2011, no pet.) (Chapter 469 "and the standards promulgated under it are clearly intended to prevent injury to and discrimination against disabled persons"). The TAS implement Chapter 469 and, described generally, provide standards for the accessibility of certain sites, facilities, and buildings. See, e.g., Texas Accessibility Standards 101.1, 206.1, at 5, 24; see also Tex. Gov't Code § 469.052 (assigning obligations related to adoption of standards and specifications); 16 Tex. Admin. Code § 68.100 (adopting TAS pursuant to Chapter 469 of Government Code).
"[A] person, including a firm, association, corporation, or other public or private organization, or the agent of the person, who violates the provisions of Section 121.003 is deemed to have deprived a person with a disability of his or her civil liberties." Tex. Hum. Res. Code § 121.004(b). Relevant here: "Subject to Section 121.0041, if applicable, the person with a disability deprived of his or her civil liberties may maintain an action for damages in a court of competent jurisdiction, and there is a conclusive presumption of damages in the amount of at least $300." Id. (emphasis added). Section 121.0041 states that it "applies only to":
[A]n action under Section 121.004(b) alleging a failure to comply with applicable design, construction, technical, or similar standards required under Chapter 469, Government Code, or other applicable state or federal laws that require compliance with specified design, construction, technical, or similar standards . . . to accommodate persons with disabilities.Id. § 121.0041(b).
When Section 121.0041 applies, it requires notice of the alleged noncompliance to the person against whom the action is filed or intended to be filed and an opportunity to correct the alleged violation. See id. §§ 121.0041(c), (d). Specifically, "[n]ot later than the 60th day before the date an action to which [Section 121.0041] applies is filed," the plaintiff must give written notice of the claim that, among other things, states "in reasonable detail, each alleged violation[.]" Id. § 121.0041(c)(1)(B). The notice recipient then may "correct the alleged violation before the earliest date" on which the action against it may be filed. Id. § 121.0041(d). If an action is filed, the plaintiff "must establish by a preponderance of the evidence that the [person against whom the action is filed] has not corrected one or more of the alleged violations stated in the written notice[.]" Id. § 121.0041(f).
The County argues that Chapter 121 deprives the trial court of subject matter jurisdiction because it is Jones's exclusive remedy and there is no waiver of governmental immunity expressed therein. Because Jones disavows that she brought or has any intention to bring a Chapter 121 claim, this argument matters only if Jones was required to bring her claims under that statute. But the County has not identified any statutory language to that effect.
She states in her post-submission briefing that the issues regarding the TAS "arise only because the TTCA excludes claims involving discretionary acts or omissions by the government entity. The disability statutes establish that curb ramps were non-discretionary, but [she] is not bringing a claim under those statutes. Her claim arises under the TTCA."
The County cites the bill analysis prepared for legislative committees as establishing the exclusivity of Chapter 121's remedy because it suggests that Section 121.0041 was adopted to reduce the "negative impact" of "frivolous lawsuits" seeking to force settlements of claims for "minor violations" of state laws prohibiting disability discrimination by "requiring a claimant to give notice" and "providing the [defendant] entity an opportunity to correct the violation before judicial intervention." See House Comm. on Jud. & Civil Juris., Bill Analysis, Tex. H.B. 1463, 85th Leg., R.S. (2017); Sen. Comm. on State Affairs, Bill Analysis, Tex. H.B. 1463, 85th Leg., R.S. (2017). But our analysis must be guided by the actual text of the statute. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 442 (Tex. 2009). We do not resort to extrinsic aids, like legislative history, unless the plain language of the statue is ambiguous. Id.; see, e.g., In re Est. of Nash, 220 S.W.3d 914, 917 (Tex. 2007) ("If a statute is clear and unambiguous, we apply its words according to their common meaning without resort to rules of construction or extrinsic aids."). And here, no ambiguity has been argued or identified. Nor have we found any. Although Section 121.0041's notice-and-cure requirements create a framework that may have the effect of reducing litigation over noncompliance with accessibility standards, the statute does not state anywhere that its remedy is exclusive. See, e.g., Tex. Hum. Res. Code §§ 121.001-.011.
In sum, because Jones disavows a claim under Chapter 121 and we do not read Chapter 121 to be an exclusive remedy for the wrongful death and survival claims she alleges, we hold that Chapter 121 is not a jurisdictional bar here without expressing any opinion as to whether that statute contains a waiver of immunity.
C. TTCA
Jones rests her jurisdictional defense exclusively on the TTCA. The TTCA provides a limited waiver of immunity for political subdivisions, including counties. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see Tex. Civ. Prac. & Rem. Code § 101.001(3)(B). Relevant here, immunity is waived for "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 § 101.021(2); Cnty. of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002).
1. Discretionary Function Exception
The County argued in its plea to the jurisdiction that the trial court lacks subject matter jurisdiction because the Legislature excepted from the TTCA's immunity waiver and preserved immunity for claims based on a governmental defendant's discretionary functions. See Tex. Civ. Prac. & Rem. Code § 101.056; Tarrant Reg'l Water Dist. v. Johnson, 572 S.W.3d 658, 662 (Tex. 2019) (recognizing legislature excepted from waiver and preserved immunity for claims based on government's discretionary functions); City of League City v. LeBlanc, 467 S.W.3d 616, 621 (Tex. App.-Houston [1st Dist.] 2015, no pet.) ("[T]he TTCA does not waive sovereign immunity for the discretionary actions of a governmental unit."). Under the discretionary function exception, the TTCA's immunity waiver does 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.Tex. Civ. Prac. & Rem. Code § 101.056; see also Johnson, 572 S.W.3d at 662; LeBlanc, 467 S.W.3d at 621.
The touchstone of the exception is discretion. Johnson, 572 S.W.3d at 667- 68. "The exception 'avoid[s] judicial review or interference with those policy decisions committed to the other branches of government.'" Id. at 665 (quoting Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007)). It also preserves immunity for a governmental entity's "failure to act, when no particular action is required by law." Id. Thus, if the complained-of governmental activity is discretionary, the TTCA does not waive immunity. State v. Rodriguez, 985 S.W.2d 83, 85 (1999) (per curiam), overruled on other grounds by Denton Cnty. v. Beynon, 283 S.W.3d 329 (Tex. 2009). "An act is discretionary if it requires exercising judgment and the law does not mandate performing the act with such precision that nothing is left to discretion or judgment." Id. Whether a governmental activity is discretionary is a question of law. State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999).
The County argued in its plea to the jurisdiction that Jones's pleadings affirmatively negate the existence of jurisdiction because her curb-ramp complaint relates to roadway design, a matter Texas courts have determined falls within a governmental entity's discretion. For instance, in Rodriguez, a truck driver died when he hit a bridge abutment on the side of a highway detour. See 985 S.W.2d at 85. The detour, which routed traffic onto a frontage road to circumvent a highway construction project, involved a 90-degree turn. Id. The driver failed to make the turn, instead side-swiping the bridge abutment, which caused his truck to roll over. Id. The driver's widow alleged the detour was unreasonably dangerous and had inadequate warning signs. Id. The Texas Supreme Court concluded that "[u]nder section 101.056, the State retained its immunity for the detour design because the design was a discretionary act." Id. at 86. Further, the Court held that "[d]esign of any public work, such as a roadway, is a discretionary function involving many policy decisions, and the governmental entity responsible may not be sued for such decisions." Id. at 85.
Likewise, in Texas Department of Transportation v. Ramirez, the Texas Supreme Court held that TxDOT was immune from a suit alleging a dangerous highway median because "the median's slope and the lack of safety features, such as barriers or guardrails, reflect discretionary decisions for which TxDOT retains immunity under the Act's discretionary-function exception." 74 S.W.3d 864, 867 (Tex. 2002) ("[D]ecisions about installing safety features are discretionary decisions for which the State may not be sued."); accord City of San Antonio v. Herrera, No. 04-18-00881-CV, 2019 WL 3937279, at *3-4 (Tex. App.-San Antonio Aug. 21, 2019, no pet.) (mem. op.) (in personal injury suit alleging that paint on curb and ramp concealed elevation change and thus was unreasonably dangerous, question was "whether the law mandates a particular color configuration or contrast between the curb and the flares" and concluding that, because it did not, "the [c]ity's painting of the curb, ramp, and flares . . . is an exercise of its discretionary power to determine whether and what type of safety features to use"); City of Austin v. Silverman, No. 03-06-00676-CV, 2009 WL 1423956, at *3 (Tex. App.-Austin May 21 2009, pet. denied) (mem. op.) (plaintiff's complaint about curb and sidewalk design and lack of lighting, warning signs, or yellow paint "related solely to the [c]ity's decisions about whether to install safety features" and, therefore, city retained immunity for those discretionary decisions).
Although Jones does not dispute the general holdings of these cases, she responds that they do not require dismissal of her claims against the County because her pleadings raise a question whether installation of curb ramps at the Subject Intersection was required by law and therefore not a discretionary function. See Johnson, 572 S.W.3d at 666 (TTCA's discretionary function exception does not "protect a governmental entity's failure to act when a particular action is 'required by law'"); see also Tex. Civ. Prac. & Rem. Code § 101.056. Specifically, Jones argued in her response to the County's plea and in her briefing on appeal that the County had no discretion not to install curb ramps at the Subject Intersection because two federal statutes-the ADA and the Rehabilitation Act-require public facilities, including roadways, to be accessible to people with disabilities. See, e.g., 42 U.S.C. § 12132 (providing no person with disability shall "be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity"); 29 U.S.C. § 794 (providing no person with disability shall "be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance"). In addition, Jones asserted that the County was obligated by certain ADA regulations and the TAS to install curb ramps. See, e.g., 28 C.F.R. § 35.151(i); Texas Accessibility Standards 206, 406, at 24-33, 94-96.
The TAS consist of more than 100 sections, many with multiple subparts, organized in 10 chapters. In her initial briefing on appeal, Jones did not identify the specific TAS she contends establish the County's obligation to install a curb ramp; instead, she cites the TAS only generally. See Tex. R. App. P. 38.1(i) (stating brief should contain citations to authorities). In supplemental briefing, she cites the TAS general provisions which require "accessible routes" at all facilities, including accessible routes to and from sidewalks and streets. See TAS §§ 206.1, 206.2.1. She also specifically identified TAS Section 406 as eliminating the County's discretion regarding curb ramps.
Considering the ADA, we note its purpose of remedying "widespread discrimination against disabled individuals." PGA Tour, Inc. v. Martin, 532 U.S.661, 674 (2001); see also 42 U.S.C. § 12101(a)(7) (stating "the Nation's proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."). To effectuate its purpose, "the ADA forbids discrimination against disabled individuals in major areas of public life," including in the provision of public services. PGA Tour, 532 U.S. at 675. Pertinently, the ADA establishes a general rule that:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.42 U.S.C. § 12132. But the ADA itself does not set forth implementing standards, and thus it says nothing specific about the County's obligation to install curb ramps at the Subject Intersection. Instead, the ADA entrusts the Department of Justice (DOJ), through the Attorney General, with the responsibility of promulgating implementing regulations. See id. § 12134(a) (requiring Attorney General to promulgate regulations implementing Section 12132). The implementing regulations are codified at 28 C.F.R., pt. 41.
Under the implementing regulations, when and where curb ramps are required depends on the location and the age of streets and sidewalks. See id. § 35.150 (governing accessibility of existing facilities); 28 C.F.R. § 35.151 (governing accessibility of new construction and alterations). Jones relies on the regulation applicable to new construction and alterations commenced after January 26, 1992, which provides:
(i) Curb ramps.
(1) Newly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.Id. § 35.151(i); see also id. § 35.151(a)(1) (stating regulation applies to construction commenced after January 26, 1992).
Jones's petition does not allege sufficient facts to permit this Court to determine whether this regulation applies to mandate curb ramps at the Subject Intersection. That is, it does not allege when the Subject Intersection was constructed or altered or the extent to which there are "street level pedestrian walkways" at the Subject Intersection beyond the Subject Crosswalk, such as sidewalks adjacent to the roadway which might intersect with the Subject Crosswalk. Consequently, we conclude that Jones's pleading is insufficient to affirmatively demonstrate that the County did not retain immunity under the TTCA's discretionary function exception. But we also conclude that Jones's pleading does not affirmatively negate the potential of facts requiring curb ramps at the Subject Intersection under the ADA's implementing regulation. Because this pleading defect is one for which Jones should be afforded an opportunity to amend, we hold the trial court erred by dismissing Jones's claims against the County for lack of jurisdiction without affording Jones an opportunity to amend her pleading. See Tex. A&M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007) (explaining that plaintiff deserves opportunity to amend pleadings if defects can be cured).
Because we conclude Jones should be afforded the opportunity to replead under at least the ADA implementing regulation, we do not address the other regulations she cites pending repleading.
2. Elements of premises defect
The County also argued in its plea to the jurisdiction that, even if the TTCA's discretionary function exception does not apply, Jones's petition does not allege a claim within the TTCA's immunity waiver because she failed to allege facts necessary for a premises defect claim. The TTCA subjects a governmental defendant to different standards of care for negligence claims based on "a condition or use of tangible personal property" and claims based on a "premises defect." See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 385 (Tex. 2016) (citing Tex. Civ. Prac. & Rem. Code §§ 101.021(2), 101.022(a)). A claim cannot be both a premises defect claim and a claim relating to a condition or use of tangible property. See id. at 385- 86; Miranda, 133 S.W.3d at 233 ("The [TTCA's] scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in [S]ection 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of tangible property."). "Whether a claim is based on a premises defect is a legal question." Sampson, 500 S.W.3d at 385.
When "liability is predicated not upon the actions of the governmental unit's employees but by reference to the duty of care owed by the governmental unit to the claimant for premise and special defects as specified in [S]ection 101.022 of the [TTCA]," the claim is based on an allegation of premises liability. DeWitt, 904 S.W.2d at 653; see Sampson, 500 S.W.3d at 388. Premises liability "encompasses a nonfeasance theory based on the owner's failure to take measures to make the property safe." Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010).
Here, although her petition casts her claims against the County as negligence related to the design, construction, operation, and control of the Subject Intersection and Subject Crosswalk, Jones alleges facts that attribute Alvin's personal injuries and wrongful death to the condition of the Subject Intersection and Subject Crosswalk. See Sampson, 500 S.W.3d at 388 (when distinguishing between negligent activity and premises defect, we must focus on "whether the injury occurred by or as a contemporaneous result of the activity itself-a negligent activity-or rather by a condition created by the activity-a premises defect"); see also Tex. Parks & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 389 (Tex. 2011) ("real substance" of claims, not pleading labels, determines immunity and jurisdiction).
The County and Jones disagree on the duty owed to Alvin under the TTCA and, consequently, also disagree on what facts are required to affirmatively demonstrate the trial court's jurisdiction. The County contends that its duty is limited to that owed by a private landowner to a licensee for an ordinary premises defect- to not injure the licensee willfully, wantonly, or through gross negligence-and that Jones's pleading is insufficient to affirmatively demonstrate a waiver of immunity under that standard. See Tex. Civ. Prac. & Rem. Code § 101.022(a); Sampson, 500 S.W.3d at 385 (duty owed to licensee consists of not injuring licensee through willful, wanton, or grossly negligent conduct, and to either warn licensee or make reasonably safe an unreasonably dangerous condition about which owner has actual knowledge and licensee does not). But Jones contends that this limitation of duty does not apply because the termination of the Subject Crosswalk at a curb, rather than a curb ramp, is a special defect which triggers an alternative standard. See Tex. Civ. Prac. & Rem. Code § 101.022(b); see also Tex. Facilities Comm'n v. Speer, 559 S.W.3d 245, 250-51 (Tex. App.-Austin 2018, no pet.) (invitee standard, rather than licensee standard, applies when premises defect claim arises from "special defects").
Even assuming without deciding that Jones is required to satisfy the licensee standard, her pleadings do not affirmatively negate the existence of jurisdiction under that standard. We therefore would give her the opportunity to amend her pleading. See Miranda, 133 S.W.3d at 226-27. We have already concluded that Jones should be given a chance to amend her factual allegations to include additional details about the condition of the Subject Intersection and Subject Crosswalk, which will also be relevant to the duty inquiry. We therefore decline to resolve the parties' disagreement on this matter pending repleading.
We sustain Jones's sole issue.
Conclusion
We reverse the trial court's order dismissing Jones's claims against the County and remand to allow Jones the opportunity to amend her pleading.