REVERSED; and Opinion Filed August 22, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-01424-CV
TEXAS DEPARTMENT OF TRANSPORTATION, Appellant
V.
GLENDA REID, Appellee
On Appeal from the 382nd Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 1-18-0104
MEMORANDUM OPINION
Before Chief Justice Burns and Justices Richter1 and Rosenberg2
Opinion by Justice Richter
In this interlocutory appeal, the Texas Department of Transportation (TxDOT) appeals the
trial court’s order denying its plea to the jurisdiction. Concluding TxDOT is entitled to relief, we
reverse the trial court’s order and render judgment dismissing the case for want of jurisdiction.
BACKGROUND
Appellee Glenda Reid was injured when she fell from her bicycle after riding into a crevice
that had formed in a joint where the sidewalk meets a storm inlet drain structure along a four-lane,
divided highway in Heath, Texas. The joint was supposed to be filled with a fiberboard filler, but
the joint had expanded and the fiberboard was either missing or had dropped down, leaving a space
1
The Honorable Martin Richter, Justice, Retired, sitting by assignment.
2
The Honorable Barbara Rosenberg, Justice, sitting by assignment.
six inches deep, seventy-five inches long, and two inches wide. Although Reid had ridden before
over the section of sidewalk where she was injured, she was unaware of the crevice.
During a deposition, the TxDOT area engineer with responsibility over the road agreed that
the crevice in the joint was a safety hazard and not one the public would expect to encounter. The
engineer also testified that TxDOT’s contract with the City of Heath assigned to the City the duty
to maintain the sidewalk. After Reid’s accident, the City of Heath notified TxDOT of the issue
and TxDOT repaired the condition. In an affidavit, the area engineer averred that TxDOT had no
actual knowledge of the crevice in the sidewalk at the time of Reid’s accident. It is undisputed
that TxDOT had no specific information of the existence of the crevice until it received notice
from the City of Heath.
Reid sued TxDOT for negligence alleging TxDOT knew from the design chosen that the
sidewalk structures would eventually separate and cause gaps to open but it failed to inspect and
maintain the sidewalk. Reid alleged that the crevice created by the expansion of the joint was a
“special defect” for which TxDOT owed Reid a duty to warn and make the condition safe. TxDOT
responded that this suit is barred by its sovereign immunity, generally denied Reid’s claims, and
alleged Reid’s negligence caused or contributed to the accident. TxDOT filed a plea to the
jurisdiction asserting the trial court lacked subject matter jurisdiction because Reid’s cause of
action did not fall within the limited waiver of sovereign immunity set forth in the Texas Tort
Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001 et seq. After conducting a short
hearing, the trial court denied the plea to the jurisdiction.
On appeal, TxDOT contends the crevice is an ordinary defect rather than a special defect
requiring a higher duty of care, the defect arises from TxDOT’s exercise of discretion in the design
of the sidewalk which is exempted from suit, and Reid’s bicycling is a recreational use for which
TxDOT owes a more limited duty of care. Reid concedes that she does not claim that the design
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of the sidewalk was a design defect. Because the designation of the crevice as an ordinary or
special defect is decisive, we need only discuss the State’s first contention.
DISCUSSION
Whether the trial court has subject matter jurisdiction is a question of law properly asserted
in a plea to the jurisdiction. Sampson v. Univ. of Tex., 500 S.W.3d 380, 384 (Tex. 2016). 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. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226 (Tex. 2004). Likewise, whether undisputed evidence of jurisdictional facts
establishes a trial court’s jurisdiction is also a question of law. Id. If the plaintiff’s factual
allegations are challenged with supporting evidence necessary to consideration of the plea to the
jurisdiction, to avoid dismissal the plaintiff must raise at least a genuine issue of material fact to
overcome the challenge to the trial court’s subject matter jurisdiction. Id. at 221. When the
evidence supporting the plea implicates the merits of the case, we take as true all evidence
favorable to the plaintiff and make every reasonable inference and resolve all doubts in the
plaintiff’s favor. Id. at 228.
Sovereign immunity protects The State of Texas and its agencies, such as TxDOT, from
lawsuits for damages unless immunity has been waived. Texas Dept. of Transp. v. York, 284
S.W.3d 844, 846 (Tex. 2009) (per curiam). The Texas Tort Claims Act (TTCA) provides a limited
waiver of governmental immunity for claims of personal injury and death caused by a condition
or use of tangible personal or real property if a private person would be liable to the claimant under
the same circumstances. TEX. CIV. PRAC. & REM. CODE §§ 101.021(2); 101.025. The duty of care
the governmental entity owes to a claimant depends upon whether the condition of real property
causing the personal injury or death is a premises defect or a special defect. See id. § 101.022.
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If the claim arises from a premises defect, the governmental unit owes the claimant the
duty that a private person would owe to a licensee on private property. See id. § 101.022(a). That
duty requires the governmental unit to not injure the claimant through willful, wanton or grossly
negligent conduct; and to use ordinary care to either warn the claimant or to make reasonably safe
a dangerous condition of which the governmental entity is aware and the claimant is not. Sampson,
500 S.W.3d at 385.
If the claim arises from a special defect, the governmental unit owes the duty that a private
landowner would owe to an invitee. See TEX. CIV. PRAC. & REM. CODE § 101.022(b). Under this
standard, the landowner owes the invitee the duty to use ordinary care to reduce or eliminate an
unreasonable risk of harm created by a premises condition of which the owner is aware or
reasonably should be aware. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,
237 (Tex. 1992).
The TTCA does not define “special defect” but it does give, as examples, “excavations or
obstructions on highways, roads or streets. . . .” See TEX. CIV. PRAC. & REM. CODE § 101.022(b).
Thus, a defect must be in the same class as an excavation or obstruction in the roadway to qualify
as a special defect. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012). The class
of special defects is narrow. Id. In deciding whether a condition is “like an excavation or
obstruction,” the supreme court has mentioned the following helpful characteristics: “(1) the size
of the condition; (2) whether the condition unexpectedly and physically impairs an ordinary user’s
ability to travel on the road; (3) whether the condition presents some unusual quality apart from
the ordinary course of events; and (4) whether the condition presents an unexpected and unusual
danger.” City of Denton v. Paper, 376 S.W.3d 762, 765 (Tex. 2012); see also York, 284 S.W.3d
at 847. Whether a defect should be classified as a premise defect or a special defect is a question
of law we review de novo. Perches, 388 S.W.3d at 655.
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Special Defect
TxDOT contends the crevice was neither an obstruction nor an excavation. It emphasizes
the first two factors identified in Paper and it argues that given the crevice’s size and position,
Reid could have simply pedaled around it. In making this argument, TxDOT relies primarily upon
Paper, this Court’s opinion in City of Lancaster v. LaFlore, and by way of contrast, the supreme
court’s opinion in County of Harris v. Eaton.
In Paper, the plaintiff was injured when her bicycle rolled into a “sunken area” in the street
causing her to flip over the handlebars. See Paper, 376 S.W.3d at 764. The sunken area was
described as ranging from two inches to a pencil length deep and extended across a portion of the
right lane of the street. See id. at 764–65. Rejecting the court of appeals’s conclusion that the
sunken area constituted a special defect, the supreme court noted that photographs of the condition
showed the plaintiff had ample room to ride around the condition without entering the opposing
traffic lane. Id. at 765. Furthermore, the supreme court cited its prior opinions holding that
“variations in public roadways of a few inches are not the same as the excavations or obstructions
mentioned in the Act.” Id. In LaFlore, this Court determined that a partially dislodged manhole
cover was not a special defect because a manhole is not of the same class as an excavation or
obstruction, it is of limited size, and the manhole at issue straddled the center lane of the roadway,
thus not forcing the plaintiff to deviate from the normal course of the road to avoid it. See City of
Lancaster v. LaFlore, No. 05-17-01443-CV, 2018 WL 4907843, at *5 (Tex. App.—Dallas Oct.
10, 2018, no pet.) (mem. op.).
Both Paper and LaFlore drew contrasts between their respective cases and Eaton. See
Paper, 376 S.W.3d at 766; LaFlore, 2018 WL 4907843, at *5. In Eaton, the plaintiff motorist and
her passengers were injured when her car flipped after striking a huge excavation that extended
across ninety percent of the roadway. See Cty. of Harris v. Eaton, 573 S.W.2d 177, 178–79 (Tex.
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1978). Noting the size of the obstruction and characterizing it as “a ditch across the highway,” the
supreme court held the excavation was a special defect. See id. at 179–80.
In response, Reid argues the crevice is an excavation, citing LaFlore for the proposition
that an “excavation” is a “cavity.” See LaFlore, 2018 WL 4907843, at *3. However, Reid seeks
to distinguish Paper and LaFlore on the basis that the hazards in those cases were clearly visible
and easily avoidable. Reid relies on affidavits she and her husband filed averring that the crevice
she encountered is not clearly visible because shadows create the appearance that it is filled and
no different from other sidewalk joints she routinely encounters on her bicycle rides. Reid urges
the Court to emphasize the last two factors identified in Paper and conclude that the crevice was
a special defect because it was unusual, unexpected, and dangerous. However, the Texas Supreme
Court has rejected the standard that simply being “an unusual or unexpected danger to the normal
users of roadways” is sufficient to establish a special defect. See City of Dallas v. Reed, 258
S.W.3d 620, 622 (Tex. 2008) (per curiam).
Nevertheless, Reid cites Weston v. Gaudette and City of Austin v. Rangel to support her
position. First, the Rangel case was decided before Reed. Thus, the conclusion in Rangel, that an
eleven-inch wide hole in a sidewalk caused by a missing meter cover was such an unexpected and
unusual danger on a public sidewalk that it constituted a special defect, is no longer sufficient.
Compare Reed, 258 S.W.3d at 622, with City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex.
App.—Austin 2006, no pet.).
Next, in Weston, a motorcyclist sued the City of Weston for personal injuries suffered in
an accident that occurred when he rounded a turn on a road and encountered a series of deep
potholes one of which measured five-to-six inches deep and ten feet wide, extending over the entire
traffic lane. See City of Weston v. Gaudette, 287 S.W.3d 832, 834, 838 (Tex. App.—Dallas 2009.
no pet.). Analogizing the series of potholes to the ditch in Eaton, this Court held the potholes were
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a special defect. See id. at 839. Certainly, the size and nature was the deciding factor in Weston
not just because the potholes were unusual, unexpected, and dangerous.
Our view of the evidence is that the crevice in this case is much like the sunken area in the
road in Paper and not at all like the ditch across the road in Eaton or the unavoidable series of
massive potholes in Gaudet. Unlike the excavations and obstructions in Eaton and Gaudet, the
photographs show Reid could have easily avoided the clearly observable crevice by simply riding
around it on the sidewalk. Even giving credence to the affidavits of Reid and her husband that
shadows masked the true nature of the crevice, no reasonable cyclist paying attention to the course
of travel would fail to note the crevice as an area to avoid. Moreover, sidewalk joints are
commonly encountered. Reid admitted she rode her bicycle over sidewalk joints regularly. The
photographs submitted do not show an unexpected or unusual danger. See City of El Paso v.
Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam) (photographs and affidavit evidence show
worn and depressed area of sidewalk three feet by six feet with a depth of three inches was not
unexpected and unusual danger so as to qualify as special defect); Peterson v. City of Fort Worth,
966 S.W.2d 773, 774, 776 (Tex. App.—Fort Worth 1998, no pet.) (ten-inch crack in steel plate
covering drainage channel that traversed eleven-foot wide sidewalk was not special defect);
Hindman v. State Dept. of Highways & Public Transp., 906 S.W.2d 43, 45–46 (Tex. App.—Tyler
1994, writ denied) (rejecting injured bicyclist’s argument that difficulty in seeing bump on
shoulder of road made it dangerous enough to qualify as special defect when photographs show
bump was not hidden or obscured from vision of one approaching it and was easily avoided).
Considering the precedents cited by the parties, the characteristics of an excavation or obstruction
set forth in Paper, and the evidence the parties put forward before the trial court, we conclude the
crevice at issue was not a special defect. See Paper, 376 S.W.3d at 764–65; LaFlore, 2018 WL
4907843, at *5.
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Premises Defect
Reid further contends that, even if the Court determines the crevice was not a special defect,
that she pleaded sufficient jurisdictional facts to show TxDOT is liable for a premises defect and
thus give the trial court subject matter jurisdiction. Reid concedes that TxDOT did not have
specific knowledge that the sidewalk joint in question had separated and the crevice had formed.
Nevertheless, Reid contends TxDOT knew the sidewalk could separate if it was not properly
maintained and, because it chose a design that created the condition that allowed the crevice to
form, it should be considered to have actual knowledge of the condition sufficient to impose
premises liability. We disagree.
To impose liability on TxDOT, Reid would have to show TxDOT had actual knowledge
of the existence of the crevice and not just constructive knowledge or the possibility that a
dangerous condition could develop over time. See Sampson, 500 S.W.3d at 392; City of Corsicana
v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008). In making a determination whether a premises
owner has actual knowledge of a dangerous condition, courts generally consider whether the owner
has received reports of prior injuries or reports about the potential danger of the condition.
Sampson, 500 S.W.3d at 392. The area engineer’s affidavit is undisputed evidence showing
TxDOT had received no reports about the expanded sidewalk joint before Reid’s accident. Thus,
we conclude Reid cannot show TxDOT had the necessary actual knowledge to impose liability for
a premises defect under the TTCA. Moreover, as the State points out, undisputed evidence shows
TxDOT’s agreement with the City of Heath showed it is the City that is required to monitor the
maintenance needs on the sidewalk.
CONCLUSION
We conclude Reid has not pleaded sufficient facts demonstrating a waiver of immunity
under the TTCA and that the trial court had subject matter jurisdiction with respect to her premises
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liability claim. Accordingly, we reverse the trial court’s order denying TxDOT’s plea to the
jurisdiction and render judgment dismissing the case for want of jurisdiction.
/Martin Richter/
MARTIN RICHTER
JUSTICE, ASSIGNED
181424F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
TEXAS DEPARTMENT OF On Appeal from the 382nd Judicial District
TRANSPORTATION, Appellant Court, Rockwall County, Texas
Trial Court Cause No. 1-18-0104.
No. 05-18-01424-CV V. Opinion delivered by Justice Richter, Chief
Justice Burns and Justice Rosenberg
GLENDA REID, Appellee participating.
In accordance with this Court’s opinion of this date, the order of the trial court denying
appellant’s plea to the jurisdiction is REVERSED and judgment is RENDERED dismissing the
case for want of jurisdiction.
Judgment entered this 22nd day of August, 2019.
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