COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00239-CV
CITY OF DENTON APPELLANT
V.
RACHEL PAPER APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an interlocutory appeal by Appellant City of Denton from the trial
court=s denial of its motion for a traditional and a no-evidence summary judgment
based on the City‘s assertion that governmental immunity bars the premise
1
See Tex. R. App. P. 47.4.
liability suit filed against it by Appellee Rachel Paper.2 In three issues, the City
claims that the trial court erred by denying its motion for summary judgment
because the defect at issue was not, as a matter of law, a special defect;
because the City conclusively proved that it had no actual knowledge of the
premise defect; and because Paper failed to raise fact issues regarding the City‘s
actual knowledge of, and Paper‘s lack of knowledge of, the premise defect. For
the reasons set forth below, we will affirm the trial court‘s denial of summary
judgment for the City.
II. FACTUAL AND PROCEDURAL BACKGROUND
On March 19, 2007, the City‘s wastewater department began installation of
a sewer tap and manhole on a section of Willowwood Street in Denton. City
employees excavated a portion of the street by cutting a large area out of the
street, and they placed barricades around the construction area. They installed
the sewer tap on March 22, 2007, and packed the excavated cut-out area with
backfill so that it was street level again. The barricades were removed that day.
The next day, City employees returned to raise the sewer line, which had sunk
from the backfill. They raised the sewer line by packing additional backfill under
2
See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008)
(providing for interlocutory appeals from denials of pleas to the jurisdiction by
governmental units); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338,
349 (Tex. 2004) (―[A]n interlocutory appeal may be taken from a refusal to
dismiss for want of jurisdiction whether the jurisdictional argument is presented
by plea to the jurisdiction or some other vehicle, such as a motion for summary
judgment.‖).
2
it, and then they repacked the excavated cut-out area of the street until it was
level. At that point, the installation of the sewer tap and manhole was complete.
A little over a week later, on April 1, 2007, Paper was riding her bicycle on
Willowwood Street when her bicycle‘s tire entered a sunken area of the street
where the street had been cut away and excavated for installation of the sewer
tap. After entering the sunken area of the street, Paper‘s front bicycle tire struck
the hard edge of the existing roadway that had not been cut away and that had
remained at street level. She flipped over the front of her bicycle and landed on
her chin and hands. The fall knocked out several of her teeth. There were no
barricades around the area.
Later that day, Paper‘s friend Joseph Wilson went to the accident site and
took photographs of the condition of the street. Wilson rested a mechanical
pencil ―right up against the wall of the hole‖ where the sunken portion of the cut-
out area abutted the uncut, hard edge of the existing street and took photographs
showing the pencil sticking out to demonstrate the depth of the hole. Wilson later
testified at his deposition that the hole was ―a few inches, a couple of inches‖ or
―almost a pencil length deep.‖ The photographs show the ―wall of the hole,‖ a
steep drop-off or edge, existing between the uncut portion of the street at street
level and the sunken hole where the street had previously been cut away and
excavated.
Paper sued the City, claiming that it was negligent and failed to warn of or
repair the dangerous condition on the street. The City filed a motion for summary
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judgment, alleging the affirmative defense of governmental immunity from suit
under the Texas Tort Claims Act (the TTCA)3 because the road condition
constituted an ordinary premise defect, rather than a special defect, and alleging
that no evidence existed that the City was actually aware of, and that Paper was
not aware of, the premise defect. The City attached affidavits, deposition
excerpts, and the City‘s work orders for the sewer tap installation project as
evidence. Paper filed a response and supplemental response to the City‘s
motion, countering that the street condition was a special defect and that,
alternatively, it was a premise defect of which the City had actual knowledge.
Paper attached deposition excerpts and the City‘s work orders as evidence.
After the City filed a reply, the trial court denied the City‘s motion for summary
judgment, specifically ruling that the street condition was a special defect. The
City appealed.
III. STANDARD OF REVIEW
We review a summary judgment de novo. 4 Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
3
See Tex. Civ. Prac. & Rem. Code Ann. § 101.001–.109 (Vernon 2011).
4
Because, as explained in greater detail below, we do not reach the City‘s
no-evidence summary judgment challenges to Paper‘s ordinary premise defect
claim, we will not set forth the no-evidence summary judgment standard of
review.
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nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
Governmental immunity is an affirmative defense. See EPGT Tex.
Pipeline, L.P. v. Harris Cnty. Flood Control Dist., 176 S.W.3d 330, 335 (Tex.
App.—Houston [1st Dist.] 2004, pet. dism‘d). A defendant is entitled to summary
judgment on an affirmative defense if the defendant conclusively proves all the
elements of the affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508–09 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ.
P. 166a(b), (c); Sipes v. City of Grapevine, 146 S.W.3d 273, 279 (Tex. App.—
Fort Worth 2004), rev’d in part, 195 S.W.3d 689 (Tex. 2006). To accomplish this,
the defendant-movant must present summary judgment evidence that
conclusively establishes each element of the affirmative defense. See Chau v.
Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
IV. SPECIAL DEFECT: WAIVER OF GOVERNMENTAL IMMUNITY
A. Governmental Immunity and the TTCA
Generally, sovereign immunity protects the state against lawsuits for
money damages unless the state has consented to suit. See Mission Consol.
Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Tex. Dep’t of
Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Governmental
immunity operates like sovereign immunity to afford similar protection to
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subdivisions of the state, including counties, cities, and school districts, unless
that immunity has been waived. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638
(Tex. 2004); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283
(Tex. 1996). The TTCA establishes a limited waiver of this immunity and
authorizes suits to be brought against governmental units in certain narrowly-
defined circumstances. Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 846
(Tex. 2009); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021.
B. Special Defects and Premise Defects
The TTCA recognizes personal injury claims arising from both premise and
special defects, and the proof required to establish a breach of the duties owed
for each claim depends on the type of defect alleged. See Tex. Civ. Prac. &
Rem. Code Ann. § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.
2008); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237
(Tex. 1992) (op. on reh‘g). Under either theory, the claimant must prove the
condition created an unreasonable risk of harm. Payne, 838 S.W.2d at 237.
If a claim involves a premise defect under section 101.022(a) of the TTCA,
the governmental unit owes to the claimant only the duty that a private person
owes to a licensee on private property, unless the claimant pays for the use of
the premises. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). Under a
licensee standard, a plaintiff must prove that the governmental unit had actual
knowledge of a condition that created an unreasonable risk of harm, and also
that the licensee did not have actual knowledge of that same condition. Payne,
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838 S.W.2d at 237. But if a claim involves a special defect under section
101.022(b), a more lenient invitee standard applies. York, 284 S.W.3d at 847;
Payne, 838 S.W.2d at 237. Under an invitee standard, a plaintiff need prove only
that the governmental unit should have known of a condition that created an
unreasonable risk of harm. York, 284 S.W.3d at 847; Payne, 838 S.W.2d at 237.
The TTCA does not define the term ―special defect,‖ but it does give
guidance by likening special defects to ―excavations or obstructions on highways,
roads, or streets.‖ Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); York, 284
S.W.3d at 847; Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 n.11 (Tex. 2009)
(―[T]he statutory test is simply whether the condition is of the same class as an
excavation or obstruction.‖). Conditions can be special defects like excavations
or obstructions ―‗only if they pose a threat to the ordinary users of a particular
roadway.‘‖ Beynon, 283 S.W.3d at 331 (quoting Payne, 838 S.W.2d at 238 n.3).
The supreme court recently explained,
Webster’s defines an excavation as a cavity and an obstruction as
an impediment or a hindrance, but not every hole or hindrance is
special; otherwise, the statutory limitation on the government‘s duty
would amount to little. We have described the class of conditions
intended by the statute as those which, because of their size or
―some unusual quality outside the ordinary course of events,‖ pose
―‗an unexpected and unusual danger to ordinary users of
roadways.‘‖ Thus, for example, a layer of loose gravel on the
roadway surface, while a hindrance, is not a special defect because
it does not ―physically block the road,‖ or ―present the same type of
‗unexpected and unusual danger to ordinary users of roadways‘‖
intended by the statute. But ―a sizeable mound of gravel . . . left on
the roadway‖ could be a special defect. A two- to three-inch
difference in elevation between lanes is not a special defect, Reed,
258 S.W.3d at 622 (―[T]here is nothing unusually dangerous about a
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slight drop-off between traffic lanes in the roadway. Ordinary
drivers, in the normal course of driving, should expect these slight
variations on the road caused by normal deterioration.‖ (citation
omitted)), nor is a sharp turn in a road construction detour, State v.
Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999) (per curiam) (―This
detour‘s sharp turn and other alleged design flaws did not
unexpectedly and physically impair a vehicle‘s ability to travel on the
roadway in the same way as a ditch in the road or a ten-inch drop
along the shoulder.‖)[, abrogated on other grounds by Beynon, 283
S.W.3d at 329], nor is a stopped car, State v. Burris, 877 S.W.2d
298, 299 (Tex. 1994) (per curiam) (―A fully operational motor vehicle,
making an illegal movement or momentarily stopped on a highway,
is neither a defect in the highway premises nor an excavation or
obstruction or similar condition.‖). But ―a ditch across the highway‖
is a special defect, [Cnty. of Harris v.] Eaton, 573 S.W.2d [177,] 178–
79 [(Tex. 1978)] (―Witnesses described the hole as oval shaped,
varying at places from six to ten inches in depth and extending over
ninety percent of the width of the highway. The hole was four feet
wide at some points and nine feet wide at others.‖), as is a large sign
lying face down in the middle of the road, State v. Williams, 940
S.W.2d 583, 585 (Tex. 1996) (per curiam).
Reyes v. City of Laredo, No. 09-1007, 2010 WL 4909963, at *2 (Tex. Dec. 3,
2010) (some internal citations omitted).
Some characteristics of defects that fall into the same class as excavations
and obstructions include, for example, the size of the dangerous condition, see
Eaton, 573 S.W.2d at 179, some unusual quality outside the ordinary course of
events, see Reed, 258 S.W.3d at 622, something that ―unexpectedly and
physically impair[s] a car‘s [or bicycle‘s] ability to travel on the road,‖ see
Rodriguez, 985 S.W.2d at 85, and an unexpected and unusual danger to
ordinary users of roadways, see Payne, 838 S.W.2d at 238. York, 284 S.W.3d at
847. We must look to ―the objective expectations of an ‗ordinary user.‘‖ Beynon,
283 S.W.3d at 332. A bicyclist is an ordinary user of a roadway and enjoys the
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same rights to use public roads as do motorists. See Hindman v. State Dep’t of
Highways & Pub. Transp., 906 S.W.2d 43, 43 (Tex. App.—Tyler 1994, writ
denied). Whether a condition is a special defect or a premise defect is a
question of law for the court to decide. Payne, 838 S.W.2d at 238.
C. Defect was Special Defect
Here, the summary judgment evidence establishes that the road defect at
issue was an almost-pencil-length-deep sunken hole that abutted with a sharp
vertical edge of the uncut, existing street; the road defect was located in the
middle of a two lane street (one lane each direction) and was caused by the
City‘s excavation of the street for installation of a sewer tap and manhole just one
week earlier. Unlike the cases relied on by the City, the defect here was more
than a slight variation between lanes and was not caused by normal
deterioration, cf. Reed, 258 S.W.3d at 621–22 (holding that two-inch drop-off
between traffic lanes was not unusually dangerous and that such ―slight
variations on the road caused by normal deterioration‖ should be expected); it
was more than a minor flaw in a road shoulder, cf. Hindman, 906 S.W.2d at 43–
45 (holding that bump on road shoulder was an imperfection that cyclists could
and should anticipate when riding on the shoulder of a road); and it was more
than a worn or eroded area in the road, cf. City of El Paso v. Bernal, 986 S.W.2d
610, 611 (Tex. 1999) (holding that eroded, worn sidewalk was not an unexpected
and unusual danger). The defect was not analogous to a pothole encountered in
the ordinary course of events; rather, the almost-pencil-length-deep sunken
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hole‘s intersection with the sharp, vertical edge of the existing, uncut area of the
street was an unexpected and unusual danger that had existed for less than a
week, that was the result of the City‘s cutting a hole in the street, and that an
ordinary bicyclist of the road, like Paper, would not expect to encounter. See City
of El Paso v. Chacon, 148 S.W.3d 417, 425 (Tex. App.—El Paso 2004, pet.
denied) (―This defect was a hole, located where a pedestrian would normally
walk and not expect to encounter it.‖); cf., e.g., Villarreal v. State, 810 S.W.2d
419, 422 (Tex. App.—Dallas 1991, writ denied) (holding that median cut was
long-standing modification in roadway and, consequently, not a special defect);
Tarrant Cnty. Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d
427, 433 (Tex. App.—Fort Worth 1989, writ denied) (explaining that special
defect must be something out of the ordinary course of events rather than a long-
standard, routine, or permanent defect).
The City focuses almost exclusively on the size of the road defect, arguing
that ―the alleged dangerous condition is a depression of a few inches in the
roadway.‖ But size is only one consideration to take into account in determining
whether the defect is in the same class as an excavation or obstruction. See City
of Weston v. Gaudette, 287 S.W.3d 832, 837 (Tex. App.—Dallas 2009, no pet.).
And contrary to the City‘s assertion, the defect was more than a simple
―depression‖ in the road; it was a sunken depressed hole that abutted a steep
―wall‖ or ledge of the uncut street. Although the summary judgment record does
not include the exact measurements of the defect, the color photographs taken
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by Wilson, which are attached to his deposition excerpts as part of the City‘s
summary judgment evidence, show that the cut-out portion of the road extends
several feet from the shoulder of the road out into the right lane and show the
sharp, steep drop-off from the road grade to a hole several inches below street
level. Wilson testified at his deposition that he rested a mechanical pencil ―right
up against the wall of the hole‖ and that the hole was ―a few inches, a couple of
inches,‖ ―almost a pencil length deep.‖ Wilson‘s photographs show the ―wall‖ of
the hole with a pencil sticking up on the edge. The deepest part of the hole
(where the pencil was resting against the edge) is located several feet into the
right lane from the shoulder, where ordinary users of the road, including
bicyclists, would travel. See Chacon, 148 S.W.3d at 425; cf. Beynon, 283
S.W.3d at 332 (holding that floodgate arm located off the road did not pose threat
to ordinary users of road). And Paper could not have navigated around the
sunken area and subsequent sharp edge without crossing into the oncoming lane
of traffic.
We hold that the defect in this case, which was caused by the City‘s
excavation of and cutting away the street about a week prior to Paper‘s accident
and which was an ―almost pencil length deep‖ sunken area of a street abutting a
steep, vertical edge of the uncut, existing street was in the same kind or class as
an excavation or obstruction and posed an unexpected and unusual danger to
ordinary users (bicyclists) of the roadway such that it constituted a special defect.
See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). Thus, we hold that the trial
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court did not err by determining that the defect was a special defect. We overrule
the City‘s first two issues to the extent that it argues that the defect was not a
special defect as a matter of law and that the trial court erred by so finding.
Broadly construing the City‘s entire brief,5 the City does not assert that
Paper failed to present any evidence of, or that the City conclusively negated the
element of, the City‘s knowledge on Paper‘s special defect claim. See York, 284
S.W.3d at 847; Payne, 838 S.W.2d at 237. Instead, the remainder of the City‘s
issues, arguments, and analysis challenge Paper‘s ordinary premise defect
claim. Because we have held that the trial court did not err by determining that
the road condition constituted a special defect, we need not address the
remainder of the City‘s issues asserting that it was entitled to summary judgment
because Paper had no claim for an ordinary premise defect. See Tex. R. App. P.
47.1.
5
The City‘s ―Issues Presented‖ in its brief do not match the headings and
analysis provided in the remainder of its brief.
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V. CONCLUSION
Having overruled the City‘s dispositive issues, we affirm the trial court=s
order denying summary judgment for the City.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: May 19, 2011
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