the City of Austin v. Brandy Credeur

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00358-CV

The City of Austin, Appellant

v.

Brandy Credeur, Appellee

FROM THE 26TH DISTRICT COURT OF WILLIAMSON COUNTY
NO. 18-0786-C26, THE HONORABLE DONNA GAYLE KING, JUDGE PRESIDING

MEMORANDUM OPINION

After she was injured walking along a sidewalk in front of Linda Riedel’s house,

appellant Brandy Credeur sued appellee the City of Austin, along with Riedel and Corix Utilities,

neither of whom is a party to this appeal. Credeur asserted a claim for premises defect under the

Texas Tort Claims Act (the Act) against the City. See Tex. Civ. Prac. & Rem. Code §§ 101.001-

.109. The City filed a plea to the jurisdiction, which the trial court denied. The City then filed

this interlocutory appeal. See id. § 51.014(a)(8) (allowing interlocutory appeal from order

granting or denying governmental unit’s plea to jurisdiction). We reverse the trial court’s denial

of the plea to the jurisdiction and render judgment dismissing Credeur’s claim against the City.

BACKGROUND

Credeur alleged that she was injured while “walking over property owned and/or

maintained by” the City, explaining that when she stepped off a sidewalk to cross the street, she
stepped on a cement block covering a pipe and then onto an “adjacent, improperly sealed water

valve cover,” both of which were obscured by Riedel’s “overgrown lawn.” Credeur “lost her

balance from stepping on the cement block, landed on the improperly sealed water valve cover,

attempted to regain her balance but was unable to do so and fell,” breaking her arm in the fall.

Credeur alleged that Riedel had “placed the cement block over the pipe due to the missing

cover,” that the cover “had been missing for some time,” and that Riedel had complained to the

City about the cover. Credeur sued the City for negligence, asserting it had failed to use ordinary

care in “one or more of the following ways”: creating, maintaining, failing to remedy, or failing

to warn of a hazardous condition; or creating, maintaining, or failing to warn of a special defect.

She pled both that the trial court had jurisdiction over her claims under section 101.021 of the

Act, which provides a waiver of immunity for injury “caused by a condition or use” of real

property,1 and that the defect that caused her fall constituted a special defect.2

The City filed a plea to the jurisdiction, arguing: (1) that the alleged defect was

not a special defect but was instead an ordinary premises defect, and (2) that the City could be

held liable for such a defect only if it had actually knowledge of it before the accident. The City

asserted that it had “competent evidence” that it lacked actual knowledge of the defect,

explaining that it had found no results when it searched its databases for reports made to the

City’s 3-1-1 telephone line or mobile application related to a valve cover or cement block on or

near the sidewalk, for any valve-cover-related work orders or service requests at the location, and

1
See Tex. Civ. Prac. & Rem. Code § 101.021(2) (governmental unit is liable for injury or
death caused by “condition or use of tangible personal or real property,” if governmental unit
would be liable if it were private person).
2
See id. § 101.022(b) (if claim arises from premises defect and claimant did not pay for
use of premises, governmental unit’s duty is that owed to licensee on private property, but that
limitation does not apply to duty to warn of special defects on highways, roads, or streets).

2
for any service requests at the address made to Austin Water. Because it had no knowledge of

the defect before the accident, the City argued, Credeur’s claim was barred by governmental

immunity. The trial court held a hearing on the City’s plea and later signed an order denying the

plea. This appeal followed.

STANDARD OF REVIEW AND APPLICABLE STATUTES

A trial court’s subject-matter jurisdiction is a question of law that we review de

novo. Sampson v. University of Tex., 500 S.W.3d 380, 384 (Tex. 2016). Our review generally

“mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id.

(quoting Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004)). If the

governmental unit challenges the plaintiff’s factual allegations and provides supporting evidence

negating jurisdiction, the plaintiff must raise a genuine issue of material fact on the issue. Id.

(quoting Miranda, 133 S.W.3d at 221). “When the evidence submitted to support the plea

implicates the merits of the case, we take as true all evidence favorable to the plaintiff, indulging

every reasonable inference and resolving any doubts in the plaintiff’s favor.” Id.

“Generally, ‘immunity from suit implicates courts’ subject-matter jurisdiction’ for

lawsuits in which the state or certain governmental units have been sued, unless the state

consents to suit.” Id. (quoting Rusk State Hosp. v. Black, 392 S.W.3d 88, 91 (Tex. 2012)); see

Rolling Plains Groundwater Conservation Dist. v. City of Aspermont, 353 S.W.3d 756, 759

(Tex. 2011) (“The City, as a political subdivision of the state, is entitled to governmental

immunity from a suit for money damages unless it has been waived.”). Absent consent, a

governmental unit can be sued “only if the Legislature waives immunity in ‘clear and

unambiguous language.’” Sampson, 500 S.W.3d at 384 (quoting Tex. Gov’t Code § 311.034).

3
Under the Act, which waives sovereign immunity under certain circumstances, see id., if the

plaintiff’s claim “arises from a premise defect, the governmental unit owes to the claimant only

the duty that a private person owes to a licensee on private property,” Tex. Civ. Prac. & Rem.

Code § 101.022(a). The duty owed to a licensee on private property is that the landowner “not

injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary

care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the

owner is aware and the licensee is not.” Sampson, 500 S.W.3d at 385 (quoting State Dep’t of

Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). However, the limitation

of duty set out in section 101.022(a) of the Act “does not apply to the duty to warn of special

defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn

of the absence, condition, or malfunction of traffic signs, signals, or warning devices.” Tex. Civ.

Prac. & Rem. Code § 101.022(b).

DISCUSSION

Which Section of the Tort Claims Act Applies?

Credeur both pled a waiver of immunity under section 101.021 of the Act, which

allows for claims arising out of a condition or use of tangible personal property or real property,

id. § 101.021(2), and asserted that “the defect which caused her to fall constitutes a ‘special

defect’ as contemplated in § 101.022(b),” concluding her petition by pleading her claim as one

for negligence arising out of a hazardous condition or a special defect. However, the Act’s

“scheme of a limited waiver of immunity from suit does not allow plaintiffs to circumvent the

heightened standards of a premises defect claim contained in section 101.022 by re-casting the

same acts as a claim relating to the negligent condition or use of tangible property.” Miranda,

4
133 S.W.3d at 233. Instead, Texas courts “consistently treat[] slip/trip-and-fall cases as

presenting claims for premises defects.” Sampson, 500 S.W.3d at 386. Under the guidance

provided by the Supreme Court, we view Credeur’s claim as one for premises liability and not

for negligence arising out of the use or condition of real property. See id.; Miranda, 133 S.W.3d

at 233.3 We sustain the City’s first issue and dismiss Credeur’s claim to the extent it might also

be asserting a claim related to the condition or use of real property.

Thus, unless Credeur can show that her claim falls within the Act’s waiver related

to premises-defect claims, the City is immune from suit. See Sampson, 500 S.W.3d at 386-87

(premises-defect liability is determined by reference to duty of care owed to claimant for premise

and special defects as specified in section 101.022); City of Bastrop v. Bryant, No. 03-14-00591-

CV, 2015 WL 5097250, at *2 (Tex. App.—Austin Aug. 27, 2015, no pet.) (mem. op.) (although

claim was asserted in terms of both premises-liability and arising-from-use-of-property theories,

claimant could not circumvent heightened premises-defect standards by re-casting claim as

relating to negligent condition or use of property and thus had to satisfy “the elements of the

statutory waivers that govern premises-liability claims”). Viewed in that light, we must consider

whether the condition constituted a special defect, and if not, whether the City established a lack

of actual knowledge and whether Credeur should be allowed to conduct further discovery related

to the issue.

3
“The distinction between a use or condition of tangible personal property claim as
opposed to a premises defect claim, however, is whether it was the contemporaneous, affirmative
action or service (use) or the state of being (condition) of the tangible property itself that
allegedly caused the injury, or whether it was a condition created on the real property by the
tangible personal property (a premises defect).” Sampson v. University of Tex., 500 S.W.3d 380,
390 (Tex. 2016).
5
Was the Alleged Defect a Special Defect?

Credeur describes her accident as follows in her live petition: she was “walking to

her house with her son and left the sidewalk to cross to the other side of the street,” and while

walking the “short distance between the sidewalk and street, she stepped onto a cement block

covering a pipe and then stepped onto the adjacent, improperly sealed water valve cover.”

Credeur alleged that both the water-valve cover and the cement block were obscured by the

overgrown lawn and that she “lost her balance from stepping on the cement block, landed on the

improperly sealed water valve cover, attempted to regain her balance but was unable to do so and

fell.” Credeur provided the following photograph of the area:

Credeur notes that courts have held that a defect on a sidewalk may constitute a

special defect because a sidewalk is sufficiently related to a roadway. See, e.g., City of Austin v.

Rangel, 184 S.W.3d 377, 383-84 (Tex. App.—Austin 2006, no pet.) (describing sidewalk as

6
portion of street between curb and adjacent property and “intended for pedestrian use” (quoting

Tex. Trans. Code § 541.302(16)); City of El Paso v. Chacon, 148 S.W.3d 417, 423 (Tex. App.—

El Paso 2004, pet. denied). Assuming that the sidewalk in this case was “sufficiently related to

the street” to come within the realm of special defects, see Rangel, 184 S.W.3d at 383, the

alleged defect in this case was not on the sidewalk itself but in the grass near the sidewalk. The

Supreme Court has explained that “conditions can be special defects ‘only if they pose a threat to

the ordinary users of a particular roadway.’” University of Tex. v. Hayes, 327 S.W.3d 113, 116

(Tex. 2010) (quoting Denton County v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009)). Credeur

stepped off the sidewalk to cross the street, walking through an area not intended for pedestrian

use, and thus the defect she encountered cannot be considered to have posed a danger to the

ordinary users of the sidewalk. See id. The condition that caused Credeur’s injury is less like

those described in Rangel4 or Chacon5 and more like the one described in Purvis v. City of

Dallas, in which the plaintiff fell into a manhole located “a few feet west” of a sidewalk “in a

narrow, grassy area between a parking lot and the public sidewalk” running alongside the street.

No. 05-00-01062-CV, 2001 WL 717839, at *2-4 (Tex. App.—Dallas June 27, 2001, no pet.) (not

designated for publication) (holding that condition did not “meet statutory definition of a special

4
City of Austin v. Rangel involved an open, uncovered meter box located on a sidewalk,
which we held was a special defect, noting that it was unexpected, located on a downtown public
sidewalk, and eleven inches wide. 184 S.W.3d 377, 384 (Tex. App.—Austin 2006, no pet.).
5
In City of El Paso v. Chacon, our sister court similarly concluded that an uncovered
utility junction box located on a city sidewalk was a defect “related to a street” because any
pedestrian who wished to walk along the “busy public thoroughfare” had to use the sidewalk.
148 S.W.3d 417, 423 (Tex. App.—El Paso 2004, pet. denied). The court of appeals held that the
defect was analogous to an excavation and thus a special defect because it was not merely an
eroded or cracked and crumbling surface, was not a defective covering, and was not permanent
but instead was unexpected, unusual, and posed a danger to normal users. Id. at 424-25.

7
defect”).6 We hold that the condition alleged in this case was not a special defect under the Act

and instead was an ordinary premises defect. We sustain the City’s second issue on appeal.

Did the City Have Actual Notice?

When a claim arises from a premises defect, a governmental unit owes a claimant

“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 § 101.022(a). The governmental

unit’s duties are thus: (1) not to injure a licensee by willful, wanton, or grossly negligent

conduct, and (2) to use ordinary care either to warn of or to make reasonably safe a dangerous

condition that the governmental unit is aware of and the licensee is not. Sampson, 500 S.W.3d at

391 (quoting Payne, 838 S.W.2d at 237). There are no allegations or indications of willful,

wanton, or grossly negligent conduct. Therefore, if the City showed that there was no evidence

of its awareness of the defect, its plea to the jurisdiction should have been granted. See id.

The City insists that it established that it did not have actual notice of the defect

before Credeur’s accident. As evidence of its lack of actual knowledge, the City provided

6
See also City of Dallas v. Freeman, No. 05-18-00961-CV, 2019 WL 3214152, at *4
(Tex. App.—Dallas July 17, 2019, no pet.) (mem. op.) (no special defect when alleged defect
“exist[ed] where the sidewalk meets the curb and [did] not extend to any of the traversable part
of the sidewalk, and thus, [did] not physically impair a pedestrian or bicyclist from traveling on
the sidewalk itself”); City of Arlington v. S.C., No. 02-17-00002-CV, 2017 WL 3910992, at *1
(Tex. App.—Fort Worth Sept. 7, 2017, no pet.) (mem. op.) (improperly sized manhole cover
located on concrete apron that was “basically an extension of the curb” on city’s right-of-way in
front of residence was not special defect); Duenes v. City of Littlefield, No. 07-05-0420-CV,
2007 WL 270415, at *2-3 (Tex. App.—Amarillo Jan. 31, 2007, no pet.) (mem. op.) (meter box
near residence, about seventeen feet from street, and in area where there were no curbs that
plaintiff argued was “akin to a public sidewalk” was not special defect); Madern v. City of
Pasadena, No. 01-05-00337-CV, 2006 WL 560183, at *3 (Tex. App.—Houston [1st Dist.] Mar.
9, 2006, pet. denied) (mem. op.) (no special defect when manhole was “located more than five
feet away from the road, so that vehicular passengers and other normal users of the roadway
were unlikely to encounter it. Only a pedestrian whose destination required him to leave the
proximity of the road was ever likely to walk on the manhole.”).
8
declarations by Christopher Ahrens, a City employee who was a Business Process Specialist in

the City’s 3-1-1 Division in August 2018; Justin Norvell, an engineer employed in the City’s

Public Works Department; and Scott Morrow, the “Division Manager for Pipeline Maintenance

in the City of Austin Water.” Ahrens stated that the City relies on reports made to its “main

number, 311, or 512-974-2000 and a mobile application” for knowledge of “any issues,

complaints, or service requests about sidewalk and roadway conditions. Said reports are

recorded in the 311 Customer Service Request Database, which is maintained in the regular

course of business.” Ahrens further explained that in August 2018, he “conducted a complete

and thorough search of all reports made” between October 2013 and August 2018 “for any

incident within a 500 foot radius of 12336 Deerbrook Trail” and located no records indicating

that the City had received “any reports pertaining to an unsecured cover to a manhole or water

valve at or near 12336 Deerbrook Trail.” Norvell stated that the Public Works Department

“maintains records of service requests and work orders assigned to the Public Works Department

in a database called Maximo” and that “[a]ll work orders from mid-2014 and all service requests

from September 2015 onward are included in Maximo and searchable by address and/or date.”

In September 2018, Norvell “conducted a complete and thorough search in Maximo of all

service requests and work orders at the address of 12336 Deerbrook Trail from September 2015

to September 11, 2018,” and found “no records or service requests or work related to missing

valve covers at 12336 Deerbrook Trail during that time period.” Finally, Morrow declared that

Austin Water also maintains a database of records of all service requests dating back to 2008 and

that in October 2018, he conducted a “complete and thorough search of the Austin Water

database for service requests at the address of 12336 Deerbrook Trail.” Morrow found three

service requests: one from October 9, 2008, was related to a sewer line backup; a second from

9
October 10, 2008, was related to “a sewer line stopped”; and a third from April 2, 2011, was a

meter cut for repair. He did not find service requests or work related to missing valve covers at

12336 Deerbrook Trail.7

Credeur, on the other hand, asserts that the City had refused her “attempts to

determine what knowledge the City had of the defect.” Credeur contends that the City does not

know who was reading the meter in the months leading up to the accident, that the City had only

identified Corix Utilities as its meter-reading subcontractor at the hearing on the City’s plea to

the jurisdiction, and that Corix had denied in its discovery responses that it was responsible for

maintenance or water reading in the area.8 She argues that the City “stifled discovery” and that

[w]hile it may be true that notices were not made to non-emergency services or to
other government services, it also could be that whoever the City contracted with
did make a complaint directly to the City. However, The City of Austin does not
even know who to ask to see whether a report was ever made.

7
In her petition, Credeur alleged that Riedel “had placed the cement block over the pipe
due to the missing cover,” that the cover had been missing “for some time,” and that Riedel “had
previously complained to Defendant The City of Austin about the missing cover.” She did not,
however, support those allegations with any form of evidence. For its part, although denials of
requests for admission are not competent summary judgment evidence, Americana Motel, Inc. v.
Johnson, 610 S.W.2d 143, 143 (Tex. 1980), the City provided Riedel’s discovery responses, in
which she denied that she had complained to the City about the uncovered pipe or a loose metal
grate. Riedel further denied that she knew that there was a loose grate, an uncovered pipe, or a
cinderblock placed on top of the pipe; had placed the cinderblock on top of the pipe; or had made
any complaints to the City about the alleged defect.
8
Although Credeur asserts that the City did not identify Corix as a meter-reading
subcontractor until the hearing, Credeur’s live petition, filed about five months before the
hearing, named Corix as a defendant. At the hearing, Credeur stated that although the City had
not listed Corix as a responsible third party, she had sued Corix “because we understand that
Corix may be responsible for the maintenance in that area.” The City said that it “does have a
contract with Corix for meter reading” but that it “didn’t receive any reports from Corix. They
can tell us when they do—they can report maintenance issues just like any person could.”
Credeur, for her part, stated at the hearing that “Corix denies any knowledge” and “has denied
ever doing any work on that.”

10
Credeur contends that the trial court properly denied the City’s plea so that further discovery

could be conducted as to “who had control over the water meter, when the manhole cover was

moved, when the brick was placed, and when, if ever, it was reported to the City or the City’s

contractor.”

At the hearing, the City argued that “all the evidence shows that the City of

Austin did not know of this condition beforehand.” It further asserted that it had “provided

affidavits from every department that could possibly have any notification,” explaining that

Austin Water, 3-1-1, and the Public Works Department had each conducted searches going back

several years and had found no relevant reports. In asking the trial court to stay non-

jurisdictional discovery, the City asserted that it had “provided the jurisdictional discovery” and

responded to “requests that are related to jurisdiction, many of them.” The City’s attorney

explained that in response to Credeur’s request “for all complaints and maintenance requests or

communications with other companies from the last five years regarding this address,” “[w]e

don’t really have anything at all. We did a search and can’t find anything.” The City sought a

stay of Credeur’s other discovery requests because some of them “have been quite overbroad

such as all slip and fall lawsuits in the last five years, all documents that the City has regarding

policies and procedures and maintenance of underground utilities. I don’t even know how many

pages that would be.” Counsel stated that the City had provided its protocols for responding to

3-1-1 service requests; its procedures “on installation and meter reading, manhole requirements,

the plat of the area”; the standard operating procedures for the Public Works Department, the

applicable wastewater service permit; and “everything that Austin Water had, every work order

Austin Water has from this address which are from 2011—well, 2007, 2008. . . . There just

aren’t any. I’m not sure how else the City could prove a negative in this case, your Honor.”

11
 Credeur responded that she was simply being told “to take their word for it” that

the City had not received any reports and that she should be allowed to conduct discovery about

“how complaints are made, where they are made to, how they are recorded, who keeps track of

them,” whether there are “alternate ways people can notify the City,” or whether the City

conducted regular inspections or subcontracted that to other people, saying, “We just don’t know

what we don’t know.” At the conclusion of the hearing, held seven months after Credeur filed

her original petition and five months after the City filed its plea to the jurisdiction, the trial court

took the City’s plea under advisement and issued a temporary stay of further discovery, stating

that there could be “no further discovery requirement propounded upon the City of Austin and no

further duty. They have fully satisfied those jurisdictional issues that are being addressed

through the discovery.”

“Although there is no one test for determining actual knowledge that a condition

presents an unreasonable risk of harm, courts generally consider whether the premises owner has

received reports of prior injuries or reports of the potential danger presented by the condition.”

University of Tex. v. Aguilar, 251 S.W.3d 511, 513-14 (Tex. 2008) (per curiam) (no evidence of

actual knowledge that hose across sidewalk posed unreasonable risk of harm when University’s

Director of Health and Safety testified “that there had been no incidents of pedestrians tripping

on water hoses on the campus in the past five years” and Assistant Director for Facilities,

Operations and Maintenance testified there were no rules about use or placement of water hoses

“because they had never been a problem on campus”). Although Credeur insists that the City

“does not even know who to ask to see whether a report was ever made,” the City presented

declarations about fruitless searches conducted by the three departments or units that it explained

might have received reports related to the alleged defect—Ahrens, who searched the system the

12
City uses to receive general reports of issues, complaints, or service requests related to sidewalks

and road conditions; Norvell, who searched for all requests made to the Public Works

Department at the address; and Morrow, who searched Austin Water’s records for any service

requests at the address and who found only three requests, made in 2008 and 2011 and none of

which were related to a missing valve cover.

Credeur has not identified another City employee or department that might have

received a report about the alleged defect, simply saying there might have been another recipient,

and has not explained what relevant discovery the City resisted. The City, for its part, asserted

that it had responded to discovery relevant to jurisdiction and produced evidence that no reports

were made to its relevant departments. The trial court stated that the City had produced all

discovery relevant to the issue of jurisdiction, Credeur does not argue that that statement was

erroneous, and we will not second-guess that determination. We hold that Credeur did not raise

a fact issue as to the City’s actual knowledge of the alleged defect. See id. We sustain the City’s

third issue.

CONCLUSION

We have sustained the City’s issues on appeal. We thus reverse the trial court’s

order denying the City’s plea to the jurisdiction. Because the City’s lack of actual knowledge

affirmatively negates jurisdiction under the Act, we render judgment dismissing Credeur’s claim

against the City. See City of Waco v. Kirwan, 298 S.W.3d 618, 628-29 (Tex. 2009) (dismissing

claims when evidence did “not rise to the necessary level” to waive city’s immunity).

__________________________________________
Darlene Byrne, Chief Justice

13
Before Chief Justice Byrne, Justices Triana and Smith

Reversed and Rendered

Filed: February 11, 2021

14