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Click here for the full text of this decision FACTS:Keith Butler was seriously injured at the Alamodome when a drunken concert-goer fell or jumped over a railing at a KISS concert and fell on Butler. Butler sued the concert-goer, who was later non-suited, the concert production company, the concession company, and the City of San Antonio, which owns and operates the Alamodome. The city filed a plea to the jurisdiction on governmental immunity grounds, but the trial court denied it. HOLDING:Reversed and rendered. The Butlers counter the city’s assertion of governmental immunity on three main grounds: (1) the city’s immunity from suit has been waived by Local Government Code � 51.075 and the City Charter; (2) the city was performing a proprietary rather than governmental function by selling alcohol; and (3) the Butlers’ alternate claims, i.e., the city’s misuse of alcohol, failure to correct a dangerous condition on the property (by removing the man who fell), and improper configuration of the Alamodome, fall within the exceptions to the Texas Tort Claims Act. Section 51.075 says that a home-rule city, such as San Antonio, “may plead and be impleaded in any court,” and the San Antonio city charter says the city may “sue and be sued, plead and be impleaded in all courts.” The court notices that after the Texas Supreme Court’s ruling in Missouri Pacific v. Brownsville Navigation District, 453 S.W.2d 812 (Tex. 1970), that the language “sue and be sued” could serve to waive immunity, the appellate courts have split on how far that ruling extends. The court sides with those courts that have said the Texas Tort Claims Act trumps �51.075 and the city charter, and the TTCA says immunity is waived only in tort claims of a particular type. As immunity has not been waived by the general statute or the city charter, the court next considers whether immunity is waived under the TTCA. Immunity can be waived under the act when the city is exercising a proprietary function. The city argues that owning and operating the Alamodome is a governmental function of owning, operating or maintaining a civic or convention center, one of the governmental functions listed within the TTCA. The court rejects the Butlers’ claim that the characterization of the activity as governmental or proprietary should be made based on the discrete functions, like selling concessions and alcohol, rather than the general function of operating the facility as a whole. “If we accept the Butlers’ contention, every contract that the City enters for the purpose of making a profit would constitute a proprietary function, potentially subjecting the City to liability for torts committed by the vendors. By classifying many previously proprietary functions as governmental, the Legislature clearly intended to limit cities’ liability except as allowed by the exceptions in the TTCA. . . . The Butlers’ argument would undermine that intent.” The court then turns to consider whether the city committed an act for which TTCA expressly waives immunity from liability. One type of act is for the use of tangible property. The Butlers claim that the city had the right to stop the concessions vendor from selling more beer. But the court points out that the city did not require the vendor to sell beer to the man who fell, nor did it provide beer to the man directly; no employee was involved with the sale. Therefore, the city did not “use” alcohol as contemplated by the TTCA. Immunity from liability can be waived when the injury arises from a defect or condition of the Alamodome’s premises. A claim for lack of security has never been accepted as a premiss defect. Though a premises defect claim could arise out of defective configuration, no evidence was offered that the rail construction. And a complaint about the design of the Alamodome would be immune as a discretionary function. OPINION:Green, J.; Stone, Green and Angelini, JJ.

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