Opinion issued January 6, 2005
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00519-CV
ELZA SMITH AND BEVERLY SMITH, Appellants
V.
CITY OF HOUSTON AND MEB ENGINEERING, INC., Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Cause No. 2000-38077
MEMORANDUM OPINION
This is an appeal from the trial court’s judgment in which it granted defendant/appellee City of Houston’s plea to the jurisdiction and defendant/appellee MEB Engineering, Inc.’s motion for summary judgment after both were sued by appellants, Elza and Beverly Smith, who were injured in a motorcycle accident on a Houston street under construction. In two issues, the Smiths contend the trial court erred (1) in granting the City’s plea to the jurisdiction because sovereign immunity was waived and (2) in rendering summary judgment for MEB because there are genuine issues of material fact precluding summary judgment. We affirm.
Facts
In April 1999, the Smiths were riding their motorcycle at night heading west on Polk street in downtown Houston when they drove into the intersection of Polk and San Jacinto streets, hit a manhole cover that was recessed from the roadway grade by approximately three inches, were thrown from the motorcycle, and sustained serious injuries.
The City hired MEB to resurface several downtown streets, and one of MEB’s crews was working on the east side of Polk when the Smiths had their accident on the west side of the street. At the time of the accident, MEB had not yet begun any work on the west side of Polk. The Smiths sued the City, MEB, and the Metropolitan Transit Authority (MTA), alleging that MEB, in its work as a subcontractor for the MTA, had created either a special defect or a premises defect, seeking $250,000 in damages plus pre-and-post judgment interest, and seeking joint and several liability for damages from the City and MTA under the doctrine of respondeat superior.
After the trial court rendered summary judgment for MTA, granted the City’s plea to the jurisdiction, and rendered summary judgment for MEB, this appeal ensued.
The City’s Plea to the Jurisdiction
In their first issue, the Smiths contend that the trial court erred in granting the City’s plea to the jurisdiction and that, if their pleadings were defective, they should have been given an opportunity to amend them. We need not consider the issue of whether the Smiths should have been permitted to amend their pleadings because they did, in fact, amend their pleadings after the City had filed its plea to the jurisdiction. In their live pleadings, the Smiths contended that their accident resulted from crashing their motorcycle when they hit a recessed manhole on a city street that was under construction. They contend that this condition of the road was either a premises defect or a special defect, for which the City was not immune from suit.
Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction. Id. at 225-26.
Standard of Review
Whether a court has subject-matter jurisdiction is a question of law, and whether a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction is a question of law that we review de novo. Id. In some cases, disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact. Id. When we review a plea to the jurisdiction, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. at 228.
Principles of Sovereign Immunity
In general, governmental entities are immune from tort liability under the doctrine of sovereign immunity unless the Legislature has waived immunity. Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998). The Texas Tort Claims Act waives sovereign immunity under certain circumstances. Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon Supp. 2004-2005). If a negligent act occurs during the performance of a governmental function, sovereign immunity is waived only if the negligence falls under the waiver of immunity set out in section 101.021. Id.; City of Houston v. Rushing, 7 S.W.3d 909, 913-14 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). The State is liable for torts committed by its employees when performing proprietary functions. State v. Terrell, 588 S.W.2d 784, 788 (Tex. 1979). Maintenance activities undertaken at the operational level are not discretionary functions; thus, a governmental unit is not immune from liability when performing maintenance activities. City of Fort Worth v. Gay, 977 S.W.2d 814, 817 (Tex. App.—Fort Worth 1998, no pet.). Street maintenance, including the duty to warn of defects in the street, is considered one of the proprietary functions for which the City is not immune from suit. See Turvey v. City of Houston, 602 S.W.2d 517, 519 (Tex. 1980).
Both an ordinary premises defect and a special defect can, and often do, constitute dangerous conditions; the legal distinction between the two defects lies in the duty owed to the person injured as a result of the defect. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g). Under the Texas Tort Claims Act, if a claim arises from a premises defect, a governmental unit owes a claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays to use the premises. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon Supp. 2004-2005). This limitation does not apply, however, to the duty of a governmental unit to warn of “special defects such as excavations or obstructions on highways, roads, or streets.” Id. § 101.022(b) (emphasis added); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999). Taking as true all evidence favorable to the Smiths, indulging every reasonable inference, and resolving any doubts in the Smiths’ favor, we must determine whether, as a matter of law, the recessed manhole cover that the Smiths struck constituted a special defect, a premises defect, or neither. If it was neither a special defect nor a premises defect, the Smiths cannot prevail.
Was this a Special Defect?
The Texas Tort Claims Act waives a governmental unit’s immunity to liability based on violation of “the duty to warn of special defects such as excavations or roadway obstructions.” Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c) (Vernon Supp. 2004-2005); Rodriguez, 985 S.W.2d at 85. When a special defect exists, the governmental unit owes the same duty to users that a private landowner owes to an invitee. Payne, 838 S.W.2d at 237. That is, the governmental unit must exercise ordinary care to protect the user from a dangerous condition of which the governmental unit is or reasonably should be aware. Id.
Whether a condition is a special defect is a question of law. Rodriguez, 985 S.W.2d at 85; Payne, 838 S.W.2d at 238. A “special defect” is a condition of the same kind or class as “excavations or obstructions on highways, roads, or streets” that unexpectedly and physically impairs a vehicle’s ability to travel on the roadway. Rodriguez, 985 S.W.2d at 85; Payne, 838 S.W.2d at 238. For a condition to rise to the level of a special defect, it must not only present a threat to the ordinary user of a roadway, but the threat posed must also be unexpected and unusual. State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993). The dangerous condition need not have been created or caused by the governmental unit to constitute a special defect for which the governmental unit has a duty to warn. County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978).
Texas courts sometimes consider holes in the road to be special defects. See, e.g., Stambaugh v. City of White Oak, 894 S.W.2d 818, 820 (Tex. App.—Tyler 1994, no writ) (10' x 15'caved-in portion of road was special defect); State v. Nichols, 609 S.W.2d 571, 573 (Tex. Civ. App.—Waco 1980, writ ref’d n.r.e.) (3-4' caved-in portion of highway was special defect); Eaton, 573 S.W.2d at 178-79 (Tex. 1978) (hole in road six to ten inches deep extending across ninety percent of the roadway was special defect); Sutton v. State Dep’t of Highways, 549 S.W.2d 59, 60-61 (Tex. Civ. App.—Waco 1977, writ ref’d n.r.e.) (severe depression in highway where asphalt sunk below abutting concrete bridge was special defect). In determining whether a hole in the road constitutes a special defect, Texas courts generally evaluate two factors: (1) the size of the hole, see Eaton, 573 S.W.2d at 179, and (2) whether such a hole could be considered a routine road hazard, see Durham v. Bowie County, 135 S.W.3d 294, 297 (Tex. App.—Texarkana 2004, pet. denied) (noting that potholes and ruts on unpaved rural road should be expected).
The size of the defect here is not comparable to the sizes of the holes in the foregoing cases. The cover of the manhole was not missing, and the diameter of the hole was no more than the usual size of a manhole (perhaps 18") and the depth was only three to four inches. The pictures of the recessed manhole in the record show nothing unusual about the depth in relation to the grade of the road, i.e., there is no gaping hole or recess that is easily observed by the naked eye.
Nor can the defect here be considered anything but routine. As a practical matter, Houston streets are full of potholes. In deposition, when Elza Smith was questioned about the conditions of Houston streets, he responded as follows:
Q:Have you ever seen any chuckholes or potholes in the road?
A: This is Houston.
Q: They’re all over the place, right? Is that correct?
A: Yes.
Q: Especially downtown?
A: At this time.
Given the reality of Houston streets and Smith’s awareness of that reality, we conclude that the road condition here did not rise to the level of a special defect for which the City had a duty to warn drivers because the recessed manhole cover was neither unusually large nor out of the ordinary.
Was This a Premises Defect?
If this condition was a premises defect, the City owed the Smiths the same duty that a private landowner owes a licensee, i.e. the duty of ordinary care to protect the licensee from danger. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); Eaton, 573 S.W.2d at 178. To establish premises liability, a licensee must prove that (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; and (5) the owner’s failure was a proximate cause of injury to the licensee. Payne, 838 S.W.2d at 237.
Based on the pictures and Elza Smith’s deposition testimony, we conclude that a manhole cover that is recessed not more than four inches in a location where potholes are frequently encountered does not pose an unreasonable risk of harm. In addition, the Smiths did not offer any evidence to show that the City had actual knowledge of this condition, even if the condition had posed an unreasonable risk. Therefore, we hold that this was not a premises defect for which the City’s immunity is waived by the Texas Tort Claims Act. We hold that the trial court did not err in granting the City’s plea to the jurisdiction.
We overrule the first issue.
Summary Judgment
In their second issue, the Smiths contend the trial court erred in rendering summary judgment for MEB because MEB was in control of the roadway where the accident occurred.
Standard of Review
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates an essential element of a plaintiff’s claim is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). Whether a defendant has a legal duty is a question of law. Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). In its motion for summary judgment, MEB attached an affidavit from the company’s president, Masood E. Bhatti, in which he swore:
MEB Engineering, Inc. was not and had never been in control of the portion of the road surface where the Plaintiffs claim the defective condition existed. Neither MEB Engineering, Inc. or [sic] its subcontractors had not [sic] done any excavation and/or road work on the road surface where the Plaintiffs claim the defective condition existed. MEB Engineering did not created [sic] the allegedly defective condition on the road surface where the Plaintiffs claim the road was defective.
The Smiths reiterate the facts of the accident and contend that MEB’s legal duty was established because the record contains (1) the contract between the City and MEB governing the road reconstruction; (2) Bhatti’s deposition testimony that the project involved replacing the entirety of San Jacinto street, including intersections; (3) the inference that heavy road machinery would be used in and around the construction area; (4) the City’s answer to interrogatories confirming the existence of the construction project; and (5) photographs showing the extent of the construction site. We cannot agree. These allegations are merely conclusory. None of this evidence or reasonable inferences from it rebuts Bhatti’s affidavit swearing that MEB had no control over the side of the street where this accident occurred and denying that MEB had created the defect in the first place. In fact, the pictures in the record demonstrate the opposite—that any control that MEB exercised was on the opposite side of the road from the manhole.
Accordingly, we hold there was no genuine issue of material fact and MEB was entitled to summary judgment as a matter of law.
We overrule the second issue.
We affirm the trial court’s judgment.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Keyes and Alcala.