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Click here for the full text of this decision FACTS:In this accelerated interlocutory appeal, the University of Texas at El Paso and the University of Texas System (UTEP/UTS) appeal from the trial court’s order denying UTEP/UTS’s plea to the jurisdiction and motion to dismiss. In November 2000, the appellee attended a UTEP football game. The UTEP team won. Immediately after the game, attendees, including the appellee, streamed onto the football field. The appellee proceeded to hang from the goal post. While the appellee was hanging from the goal post, unknown persons began to shake the goal post, tearing it down. The appellee was allegedly injured as a result of the incident and brought suit. UTEP/UTS filed special exceptions, which were granted. The appellee filed an amended petition under the Texas Tort Claims Act alleging that the goal post constituted a premises-defect liability based upon a failure to erect barriers to control the crowd as well as gross negligence. UTEP/UTS filed their plea to the jurisdiction and motion to dismiss. After a hearing, the trial court denied the motion. This appeal follows. HOLDING:The order of the trial court denying the plea to the jurisdiction and dismissing suit is reversed and judgment is rendered in favor of the appellants. As a governmental unit, UTEP/UTS is immune from both suit and liability unless the Tort Claims Act has waived that immunity. The appellee relies upon broad, general allegations of negligence which, in essence, contend that UTEP/UTS are liable for the injuries suffered by the appellee as a result of the over-zealous conduct of out-of-control football fans knocking down a football goal post. Other than a contention that he is pursuing his claim under 101.021and 101.0215, et seq., the appellee pleads a series of factual allegations related to UTEP/UTS’s failure to control the crowd with a few additional statements that the goal post was defective. Nothing in his petition alleges any facts to show how the goal post was defective, the court finds. Despite the broad, general language contained in his petition, the appellee concedes that he is suing for UTEP/UTS’s failure to control the crowd. The appellee’s amended petition contends that UTEP/UTS was negligent in failing to install football goal posts that were free from defects and in failing to control the crowd through the use of fences or security devices. The appellee’s claims are, in substance, claims that UTEP/UTS is liable for the injuries suffered by the appellee while he participated in what amounted to the out-of-control tortious conduct of individuals seeking to destroy university property, the court states. The court rejects the appellee’s attempt to plead that the defective condition of the goal posts was a proximate cause of his injuries, thus creating a basis for a cause of action under 101.021 involving either the use or misuse of tangible property or as a premises defect. A cause of action based upon the negligent use of real property or a cause of action involving a condition of real property does not exist separately from a cause of action for a premises defect. The appellee has not stated a cause of action for a premises defect because he has not alleged a defect, shortcoming or physical imperfection of the property which was a proximate cause of his injuries. Despite his statements that the goal post was defective, his deposition testimony and pleadings establish that his only complaint regarding the goal posts is that they were torn down by the unruly crowd. Such does not amount to an allegation that satisfies the premises defect limitations on sovereign immunity under the Texas Tort Claims Act, the court concludes. The appellee also has not alleged a condition or use of real property or tangible personal property within the meaning of 101.021(2). In order to state a claim for which immunity is waived, usage of the property itself must have actually caused the injury. Incidental involvement of the property is insufficient, the court states. The appellee also contends, in substance, that UTEP/UTS breached its ministerial duty by failing to control the crowd at the game. If the negligence causing an injury lies in the formulation of policy, i.e., the determination of the method for providing police protection, the government remains immune from liability, the court states, rejecting the appellee’s argument. The court notes that the injuries the appellee suffered were the result of criminal acts of third parties. The state is immune from liability for intentional torts committed by third parties, the court concludes. OPINION:Barajas, C.J.; Barajas, C.J., McClure and Ables, JJ.

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