City of Houston v. Jennifer Crook

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-21-00036-CV

CITY OF HOUSTON, Appellant

V.

JENNIFER CROOK, Appellee

On Appeal from the 133rd District Court
Harris County, Texas
Trial Court No. 2019-74011

Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
 MEMORANDUM OPINION

Jennifer Crook was injured when she lost control of her vehicle after running over a

manhole on a city street in Houston.1 As a result, Crook sued the City of Houston (Houston)

under the Texas Tort Claims Act (TTCA) alleging a waiver of sovereign immunity for claims

involving personal injury caused by negligence resulting from an alleged premises defect and

special defect. Houston filed a motion for partial summary judgment on its plea to the

jurisdiction regarding Crook’s special defect allegation.2 Following a hearing, the trial court

denied Houston’s motion for partial summary judgment. This interlocutory appeal followed.

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (Supp.). Because Houston has proved its

entitlement to partial summary judgment, we reverse the trial court’s order and remand for

further proceedings.

Background

In her petition, Crook alleged that, on December 12, 2018, she was driving in the

eastbound outside lane of North Braeswood Boulevard when a front, passenger-side tire of her

car got stuck in an uncovered manhole, causing her car to spin out of control and hit a light pole.

The impact injured Crook and totaled her car. Crook further alleged that, at the time of the

incident, there was ongoing construction parallel to the site of the manhole, making it easily

1
Originally appealed to the First Court of Appeals in Houston, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the
precedent of the First Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
Houston has not challenged Crook’s premises-defect claim.
2
discoverable by Houston. According to Crook, there were no visible warning signs that an

uncovered manhole was ahead, resulting in a significant hazard to motorists.

In response, Houston alleged various things, including that, as a home-rule city, it was

immune from liability under the TTCA. Houston thereafter filed a motion for partial summary

judgment on its plea to the jurisdiction regarding Crook’s special defect allegation,3 challenging

the court’s subject-matter jurisdiction on the grounds of sovereign immunity. Houston’s motion

alleged that, as Crook was traveling east on North Braeswood heading toward West Loop 610

South, she drove over a utility (manhole) cover with the right front tire of her vehicle

immediately before entering the intersection. Houston claimed that the utility cover was on top

of the manhole and that Crook’s front passenger tire flipped the utility cover up, causing her tire

to strike the manhole. Houston agreed that Crook’s vehicle then spun and ended up striking a

freeway light pole on the opposite side of the intersection. Houston claimed that, based on these

allegations—supported by summary judgment evidence—it was entitled to summary judgment

as a matter of law, because a missing and/or unseated manhole cover is not a special defect, and

it was therefore immune from being sued on this claim.

Houston’s summary judgment evidence included:

• Crook’s second amended response to Houston’s first interrogatories in which Crook
described the accident as follows:

On December 12, 2018, Plaintiff was driving in the right lane on North
Braeswood when she approached an uncovered manhole on the road
which was designed, manufactured, maintained, controlled, installed,
and/or operated by Defendant City of Houston. While in the right lane,

3
In her amended petition, Crook also alleged a premises defect claim. The motion for partial summary judgment
was not directed at that claim.
3
 Plaintiff’s front passenger tire got stuck in an uncovered manhole. As a
result of the uncovered manhole, Plaintiff unavoidably lost control of her
vehicle as it kept spinning, until it hit a light pole. The impact caused
Plaintiff’s airbags to deploy and resulted in her car being totaled. As a
result of the accident, Plaintiff incurred severe injuries. At the time of the
incident, there was ongoing construction parallel to the site of the
manhole. The manhole could have easily been discovered by the City of
Houston and/or workers on the construction site. Additionally, all drivers
who were proceeding northbound on Braeswood road had no visible
warning signs that an uncovered manhole [was] up ahead, which is clearly
a significant hazard to Houston motorists. At the time the incident
occurred, the uncovered manhole was under the control of the City of
Houston or its agent. There were no signs of barricades warning
commuters of the uncovered manhole at all time [sic] when this incident
occurred.

• Photographs of the damage to Crook’s vehicle.

• A photograph of the manhole following the accident showing that it was partially covered
when the photograph was taken.

• The August 14, 2019, police report of the December 12, 2018, incident listing the
accident address as “4900 N BRAESWOOD BLVD” at the intersection of 9288 West
Loop South.

The report lists the “crash time” as 8:00 and states the investigator’s narrative opinion of
what happened:

“OPEN MAN HOLE COVER (FIXED OBJECT)”

“UNIT # EASTBOUND ON N BRAESWOOD WHEN HIT MANHOLE
COVER THAT WAS NOT SEATED IN HOLE FLIPED [sic] UP AND
DAMAGED VEHICLE.”

• The affidavit of Kathleen Korus, which stated, in pertinent part:

I was a witness to an accident involving Jennifer Crook. Since this
accident happened about a year ago, I do not remember all the details of
the accident. I do remember some things. . . .

On December 12, 2018, at approximately 8:00 a.m., I was driving in the
left-hand lane traveling eastbound on North Braeswood Boulevard
4
 (Braeswood), near the intersection with West Loop 610 West South . . . .
In the lane to my right, I saw a black Mercedes Benz SUV which was
traveling next to me on Braeswood. Suddenly, I saw the SUV spin and
slam into the right-hand curb on Braeswood. The accident caught me by
surprise; it appeared to me as if the SUV had hit a ghost car.

....

In looking back at where we had been when the SUV started spinning out
of control, I saw and realized that the manhole cover was not secure in the
manhole and when the SUV tire drove over the manhole cover, the
manhole cover popped or flipped up and off the top of the manhole.

• The unsworn declaration of Matthew J. Luke, which stated, in pertinent part:

On December 12, 2018, at approximately 8:00 a.m., I was driving
eastbound on North Braeswood Boulevard (N. Braeswood) in morning
traffic as we were approaching the intersection of the West Loop 610
South . . . . I saw that the light at the intersection was green for us and the
day was clear.

I saw a black . . . SUV . . . traveling in front of me in the right-hand lane
on N. Braeswood eastbound. I saw the SUV begin to enter the
intersection of the feeder of West Loop 610 South when the SUV’s front
right tire dipped down into a manhole in the center of the lane,
simultaneously as I saw the manhole cover flip up and from the manhole.
I then saw the driver of the SUV lose control of the SUV, watching it spin
and pull to the right up onto the curb on the other side of the intersection
and struck a freeway light pole.

....

Even though I saw the accident, I am not sure if the problem was that the
manhole cover was not was [sic] adjusted correctly inside the manhole
cover rim or that it was not properly laid on top of the manhole itself.

In response to Houston’s motion for partial summary judgment, Crook claimed that

Houston had actual and constructive knowledge about “the defective manhole cover” and that

the condition that caused the accident was a special defect as the manhole was uncovered at the

5
time of the accident. Alternatively, it argued that a jury must decide any dispute regarding the

question of whether the manhole was partially uncovered or fully uncovered.

Crook’s summary judgment evidence included:

• A work order dated December 7, 2018, regarding replacement of a storm drain manhole
cover at “4700 N BRAESWOOD BLVD & 9200 W LOOP FWY S.” The work order
type was listed as “Manhole Cover Missing.” The intake comments simply stated, “Open
manhole.” The work order indicated that the cover was replaced within hours of the
report that generated the work order.

• A December 12, 2018, report made at 6:53 a.m. memorializing a complaint of “ROW -
Manhole - Missing Cover ROW” at “4690 N BRAESWOOD BLVD & W LOOP FWY
S, 77096.” The intake comments state, “[M]anhole shifted, please assist.” The report
was referred for further investigation and stated that the “Location ha[d] been referred to
maintenance section on work order #13298254.”

• A December 12, 2018, work order with work order comments stating “ROW – Manhole -
Missing Cover ROW” at “4690 N BRAESWOOD BLVD & W LOOP FWY S.,
TX[]77096.” Intake comments state, “[M]anhole shifted, please assist.” Comments by a
worker who investigated at 10:02 a.m. stated, “The casting to Storm manhole #1861195
needs repairs to prevent this manhole from shifting. Appears to be a newer manhole
cover but continues to shift as vehicles drive over it. It’s on the eastbound side of N
Braeswood Blvd at the I-610 S Intersection.” Further comments indicate that the matter
was referred to the Texas Department of Transportation.

• The police report of the December 12, 2018, accident, as detailed above.

• The affidavit of Jennifer Crook, which stated, in pertinent part, that “[i]mmediately after
the accident, the manhole cover was completely off of the manhole and ended up on the
left side of the manhole.” Crook also verified that the photographs attached as summary
judgment evidence were taken by her daughter immediately after the accident. After
Crook’s daughter “took photographs of the accident, Officer T. Adams moved the
manhole cover back on the manhole and placed barriers, in an effort to protect other
drivers.”

• Photographs taken immediately after the accident showing that the manhole cover was
off the manhole.

6
 • A photograph of the manhole following the accident showing that it was partially covered
when the photograph was taken.

• Photographs of the damage to Crook’s vehicle.

At the conclusion of a hearing on Houston’s motion, the trial court denied the motion for

partial summary judgment, after which it entered a signed order. Neither the trial court’s oral

ruling nor its signed order indicated the basis of its denial.

Standard of Review

“A plea to the jurisdiction based on governmental immunity is a challenge to the trial

court’s subject[-]matter jurisdiction.” City of League City v. LeBlanc, 467 S.W.3d 616, 619

(Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing City of Waco v. Kirwan, 298 S.W.3d 618,

621 (Tex. 2009)). “[S]ubject-matter jurisdiction is essential to a court’s power to decide a case.”

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). When the absence of

subject-matter jurisdiction is raised by a motion for summary judgment, “[w]e construe the order

denying the motion for summary judgment as an order denying the plea to the jurisdiction.” UT

Health Sci. Ctr.-Houston v. Perkins, No. 01-16-00901-CV, 2017 WL 2774487, at *4 (Tex.

App.—Houston [1st Dist.] June 27, 2017, no pet.) (mem. op.) (citing Thomas v. Long, 207

S.W.3d 334, 340 (Tex. 2006)); see Bland, 34 S.W.3d at 554. “We review a trial court’s ruling on

subject-matter jurisdiction de novo.” Perkins, 2017 WL 2774487, at *4 (citing Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).

“When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts,

we ‘consider relevant evidence submitted by the parties when necessary to resolve the

jurisdictional issues raised,’ even where those facts may implicate the merits of the cause of
7
action.” LeBlanc, 467 S.W.3d at 619 (quoting Kirwan, 298 S.W.3d at 622 (quoting Miranda,

133 S.W.3d at 227)). When “the jurisdictional challenge implicates the merits of the plaintiffs’

cause of action and the plea to the jurisdiction includes evidence,” as in this case, “the trial court

reviews the relevant evidence to determine if a fact issue exists.” Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004). “[I]f the relevant evidence is undisputed or fails

to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law.” Id. at 228. When, however, “the evidence creates a fact

question regarding the jurisdictional issue, then the trial court cannot grant the plea to the

jurisdiction, and the fact issue will be resolved by the fact[-]finder.” Id. 227–28. “[A]fter the

state asserts and supports with evidence that the trial court lacks subject[-]matter jurisdiction, we

simply require the plaintiffs, when the facts underlying the merits and subject[-]matter

jurisdiction are intertwined, to show that there is a disputed material fact regarding the

jurisdictional issue.” Id. at 228 (citing Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d

413, 420 (Tex. 2000); Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999)).

Texas Tort Claims Act

“Under the TTCA, the government waives immunity from suit to the extent of liability

under the Act.” LeBlanc, 467 S.W.3d at 620–21. The TTCA provides that a governmental unit

is liable for “personal injury and death so caused by a condition or use of tangible personal or

real property if the governmental unit would, were it a private person, be liable to the claimant

according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). When a “claim

arises from a premises defect, the governmental unit owes to the claimant only the duty that a

8
private person owes to a licensee on private property, unless the clamant pays for the use of the

premises.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). When a premises-liability claim

involves a “special defect,” rather than a premises defect, the TTCA imposes on the

governmental unit the duty owed to an invitee. LeBlanc, 467 S.W.3d at 620 (citing TEX. CIV.

PRAC. & REM. CODE ANN. § 101.022(b)). So, although “[b]oth 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.” Smith v. City

of Houston, No. 01-03-00519-CV, 2005 WL 22953, at *2 (Tex. App.—Houston [1st Dist.]

Jan. 6, 2005, no pet.) (mem. op.) (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 237 (Tex. 1992) (op. on reh’g)). “Whether a premises defect is special or ordinary

is usually a question of law.” LeBlanc, 467 S.W.3d at 620 (citing Reyes v. City of Laredo, 335

S.W.3d 605, 607 (Tex. 2010) (per curiam)).

The Manhole Cover Did Not Present a Special Defect

The TTCA states that “special defects” include “excavations or obstructions on

highways, roads, or streets.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). “The Texas

Supreme Court has construed special defects to include other defects of the same kind or class as

the two expressly mentioned in the statute.” LeBlanc, 467 S.W.3d at 620 (citing Tex. Dep’t of

Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam)). “[T]o be considered a special

defect, the defect must be of the same kind or class as excavations or obstructions on a highway,

road, or street.” Madern v. City of Pasadena, No. 01-05-00337-CV, 2006 WL 560183, at *2

(Tex. App.—Houston [1st Dist.] Mar. 9, 2006, pet. denied) (mem. op.) (citing City of Grapevine

9
v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (per curiam)). Because a “special defect is

distinguished by some unusual quality outside the ordinary course of events . . . [a] longstanding,

routine, or permanent condition is . . . not a special defect. Id. (footnote omitted) (citations

omitted) (citing Harris Cty. v. Estate of Ciccia, 125 S.W.3d 749, 753–54 (Tex. App.—Houston

[1st Dist.] 2003, pet. denied); Stokes v. City of San Antonio, 945 S.W.2d 324, 326 (Tex. App.—

San Antonio 1997, no writ)). Although we find support in the caselaw for the proposition that an

uncovered or open manhole is a special defect, we find no support for the proposition that a

partially covered manhole or improperly seated manhole cover constitutes such a defect.

In Harris County v. Smoker, 934 S.W.2d 714 (Tex. App.—Houston [1st Dist.] 1996, pet.

denied), our sister court addressed a similar issue. In that case, a pedestrian sued Harris County

after having been injured by falling into an uncovered storm sewer. Id. at 716. In holding that

the trial court did not err by refusing to instruct the jury on premises defect, the court found that

“the uncovered storm sewer located where a pedestrian would normally walk on a street without

a sidewalk and in the absence of streetlights, constituted a special defect.” Id. at 719.

Other courts have reached similar conclusions. For example, in City of Austin v. Rangel,

184 S.W.3d 377 (Tex. App.—Austin 2006, no pet.), a pedestrian sued the City of Austin after

she was injured on a public sidewalk by stepping into an uncovered water meter box. Id. at 380.

The pedestrian was directed to the sidewalk by a uniformed police officer, did not see any

warning signs in the area, and failed to notice the hole. Id. The court concluded that the

uncovered water-meter box was a special defect, reasoning that:

A normal user of the roadway in this situation would be a pedestrian on the
sidewalk, as Rangel was at the time she stepped into the open meter box. An
10
 average pedestrian would not expect to encounter a hole of this size on a
downtown public sidewalk. Consequently, we hold that the uncovered meter box
was a special defect of the kind and class covered by the Act and that it posed an
unexpected and unusual danger to ordinary users of the sidewalk.

Id. at 384 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b); Payne, 838 S.W.2d at 238)

Similarly, City of Houston v. Kiju Joh, 359 S.W.3d 895 (Tex. App.—Houston [14th

Dist.] 2012, no pet.), involved an injured pedestrian who stepped into an uncovered utility hole

while in the pedestrian crosswalk. Joh sued the City of Houston, claiming that the uncovered

utility hole constituted a special defect under the TTCA for which the City’s governmental

immunity had been waived. Id. at 897. The city did not dispute that Joh “alleged all elements of

a claim regarding a special defect for which a waiver of immunity exists.” Id. at 898–99. The

city claimed, though, that Joh’s subjective knowledge of the defect removed her claim from the

arena of special defects. The court disagreed, concluding that the “ordinary user” is the proper

objective standard. Id. at 899 (citing Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex.

2009) (per curiam)). Because the City’s only argument on appeal for reversing the trial court’s

ruling on its plea to the jurisdiction was based on the pedestrian’s subjective knowledge, the

court overruled the City’s issue. Id. at 901.

Unlike the uncovered holes discussed in the foregoing cases, covered or improperly

covered manholes, or improperly seated manhole covers and sewer grates, have been held not to

fall within the narrow class of special defects contemplated by Section 101.022(b) of the Texas

Civil Practice & Remedies Code. In Madern, for example, a pedestrian stepped onto a manhole

cover, which slipped and caused his right leg to fall into the manhole, injuring him. Madern,

2006 WL 560183, at *1. Madern maintained, among other things, that the broken support ring of
11
the manhole was like an excavation in reliance on Harris County v. Smoker. Id. at *3. The court

distinguished Smoker because, in Madern, “the manhole was more than five feet from the

roadway and was in its permanent, covered condition. In contrast, the storm sewer in Smoker

was extended one and one-half to two feet into the street, and the absence of a storm cover was a

temporary condition.” Id. The court recognized that, because “[t]he manhole here was covered

and was, therefore, a permanent condition,” it was not a special defect. Id. (citing Mitchell v.

City of Dallas, 855 S.W.2d 741, 748 (Tex. App.—Dallas 1993), aff’d, 870 S.W.2d 21 (Tex.

1994) (“longstanding, routine, or permanent condition is not a special defect”).

Likewise, in LeBlanc, our sister court held that a storm sewer covered with a grate rather

than a solid cover did not constitute a special defect. LeBlanc, 467 S.W.3d at 622. In that case,

LeBlanc stepped onto a storm sewer covered with iron grid bars spaced in such a way that a

person could step into the hole, as she did. Id. at 619. In reliance on Smoker, LeBlanc claimed

that this condition was a special defect for which immunity was waived. Id. at 621. The court

distinguished Smoker on several bases, but concluded that, in Smoker, “[t]he absence of the

sewer cover was . . . not a longstanding or permanent condition[.]” Id. at 622 (alterations in

original) (quoting Smoker, 934 S.W.2d at 719). In LeBlanc, the court recognized that in that

case, “there never was a sewer cover—it was designed to have a grate rather than a solid cover.

A longstanding, routine, or permanent condition is not a special defect.” Id. (citing Mitchell, 855

S.W.2d at 748). Because of the permanency of its condition, the court determined that the grate-

covered storm sewer was not a special defect. Id.

12
 More recently, in 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.), the court determined that a partially

dislodged manhole cover was not a special defect. LaFlore alleged that, as he drove on a public

street, he ran over a manhole with a partially dislodged cover, lost control of his car, and hit a

tree. Id. at *1. The Dallas Court of Appeals stated, in LaFlore,

There are “several helpful characteristics” in “determining whether a particular
condition is like an excavation or obstruction and therefore a special defect,”
including:

(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.

Id. at *3–4 (quoting City of Denton v. Paper, 376 S.W.3d 762, 765 (Tex. 2012) (per curiam)).

Based on these factors, the court determined that “the partially dislodged manhole cover

[was] not of the same class as an excavation or obstruction.” Id. at *5 (citing City of Denton v.

Paper, 376 S.W.3d 762, 764 (Tex. 2012) (per curiam)4 (“The class of special defects

contemplated by the statute is narrow.”) (quoting The Univ. of Tex. at Austin v. Hayes, 327

S.W.3d 113, 116 (Tex. 2010) (per curiam)))). The Dallas Court relied on “the supreme court’s

clear direction to construe the [TTCA] narrowly . . . to hold that the manhole cover was not a

special defect” because it was not of the same class as an excavation or obstruction, was of

limited size, and straddled the center lane of the roadway. Id. at *5–6 (quoting City of Arlington

4
In Paper, a bicyclist was injured when her bicycle’s front wheel ran over a depression in the roadway causing her to
land on her chin and break several teeth. The court noted that the sunken area was two inches deep or more at its
deepest point and that “ample room existed for a bicycle to navigate around this hole without having to enter the
opposing traffic lane.” Paper, 376 S.W.3d at 765.
13
v. S.C., No. 02-17-00002-CV, 2017 WL 3910992, at *5 (Tex. App.—Fort Worth Sept. 7, 2017,

no pet.) (mem. op.) (concluding that improperly sized manhole cover that injured pedestrian

when it rotated and caused her to fall was not a special defect and collecting cases involving

defectively covered holes)).

The facts here line up with those in Leflore, and we agree with that court’s reasoning.

Further, the Houston First Court has determined that a grate-covered manhole and a manhole

with a broken support ring are not special defects, see LeBlanc, 467 S.W.3d at 622; Madern,

2006 WL 560183, at *3, but that an uncovered storm sewer located where a pedestrian would

normally walk on a street without a sidewalk and in the absence of streetlights was a special

defect, Smoker, 934 S.W.2d at 719. We must therefore decide whether, as Crook claims, she has

raised a genuine issue of material fact on the question of whether the manhole was uncovered.

The summary judgment evidence submitted by Houston included Luke’s sworn

declaration. Luke testified that he saw Crook’s right front tire dip down into a manhole in the

center lane and that, at the same time, he saw the manhole cover flip up from the manhole. The

fact that Luke was unsure whether the manhole cover was not adjusted correctly inside the rim or

whether it was improperly seated on top of the manhole is of no consequence to the issue of

whether the manhole was uncovered when Crook struck it.

A second witness, Korus, testified that the manhole cover popped or flipped up off the

top of the manhole when the sports utility vehicle’s tire rolled over the cover. The investigating

officer at the scene did not have the benefit of interviewing those witnesses. His report was

based on speaking with Crook, who stated that “something struck her vehicle” as she was driving

14
down Braeswood. The police report indicates that Crook was eastbound on North Braeswood

when she hit a manhole cover that was not seated in the hole and flipped up and damaged her

vehicle. The officer’s diagram of the accident scene indicates that the manhole was in the center

of the eastbound lane of North Braeswood, where Crook was traveling.

While Houston’s summary judgment evidence shows that the manhole cover was either

dislodged or unseated at the time Crook struck it, Crook’s summary judgment evidence fails to

raise a genuine issue of material fact on her claim that she drove over an open manhole. Crook’s

summary judgment evidence includes three photographs of the manhole taken after the accident.

One photograph depicts a partially open manhole cover at the accident scene. The other two

photographs depict an open manhole with the cover closely adjacent to the hole. Although

Crook testified that her daughter took the photographs immediately after the accident, the

photographs are not evidence of the condition of the manhole immediately before the accident.

In her affidavit, Crook did not claim that the manhole was open immediately before the accident.

Instead, she stated, “Immediately after the accident, the manhole cover was completely off of the

manhole and ended up on the left side of the manhole.” Crook’s affidavit and the attached

photographs fail to raise a genuine fact issue regarding the condition of the manhole before the

accident.5

5
Although Houston’s motion for summary judgment attached as evidence Crook’s second amended response to
Houston’s first interrogatories in which Crook states, “Plaintiff’s front passenger tire got stuck in an uncovered
manhole,” we cannot consider this evidence in our determination of whether Crook raised a genuine fact issue
regarding whether the manhole was uncovered. See Hoffman v. Mena, No. 03-19-00409-CV, 2021 WL 2460637, at
*5 (Tex. App.—Austin June 17, 2021, no pet.) (mem. op.) (“A party may not rely on its own interrogatory responses
to raise a fact issue in order to defeat summary judgment, even if the other party puts them into evidence.”) (quoting
Zarzosa v. Flynn, 266 S.W.3d 614, 619 (Tex. App.—El Paso 2008, no pet.)); Garcia v. Nat’l Eligibility Express,
Inc., 4 S.W.3d 887, 891 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (responding party may not rely on own
15
 The work orders Crook attached to her motion—assuming they refer to the manhole at

issue here—likewise do not raise such a fact issue.6 Although the December 7 work order

indicates that the manhole cover was missing, the order also indicates that the cover was replaced

within hours of the reported open manhole. The second work order was dated just before 7:00

a.m. on the accident date. It indicates “ROW - Manhole - Missing Cover.” The intake

comments listed on the same report at the same time reflect that assistance was needed because

the “manhole [had] shifted.” A worker who investigated the situation at 10:02 that same

morning indicated that the casting to the manhole needed to be repaired to keep the manhole

cover from shifting. This evidence does not indicate that the manhole at issue was open before

Crook’s accident at approximately 8:00 a.m. See Goodyear Tire & Rubber Co. v. Mayes, 236

S.W.3d 754, 755 (Tex. 2007) (per curiam).7

Because we believe—based on our previous analysis—that our sister court would

conclude that a partially dislodged or unseated manhole cover is not a special defect under the

facts of this case, and because we conclude there is no fact question regarding the issue of

whether the manhole was open at the time of the accident, the trial court erred in denying the

interrogatory answers to show fact issue); see also TEX. R. CIV. P. 197.3 (“Answers to interrogatories may be used
only against the responding party.”).
6
The accident report lists the accident as having occurred at the intersection of 4900 North Braeswood and 9288
West Loop South. The December 7 work order lists the “problem address” as “4700 N BRAESWOOD BLVD &
9200 W LOOP FWY S.” The December 12 work order lists the “problem address” as “4690 N BRAESWOOD
BLVD & W LOOP FWY S.”
7
“The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in
light of all of the summary-judgment evidence.” Davis v. Texas Farm Bureau Insurance, 470 S.W.3d 97, 103 (Tex.
App.—Houston [1st Dist.] 2015, no pet.) (citing Goodyear Tire & Rubber Co., 236 S.W.3d at 755).
16
plea to the jurisdiction.8 See LeBlanc, 467 S.W.3d at 622; Madern, 2006 WL 560183, at *3;

Brazoria Cty. v. Colquitt, 226 S.W.3d 551, 554 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(if relevant evidence is undisputed or fails to raise a fact question on jurisdictional issue, trial

court rules on plea to jurisdiction as matter of law).9

We reverse the trial court’s order and remand for further proceedings consistent with this

opinion.

Josh R. Morriss, III
Chief Justice

Date Submitted: September 21, 2021
Date Decided: October 15, 2021

8
In concluding that a partially dislodged or unseated manhole cover is not a special defect in this particular case, we
do not decide the question of whether an open manhole is a special defect.
9
Houston argues that even if a dislodged manhole cover were a special defect, it had no duty to warn because it had
no reason to know of the condition. Based on our disposition, we need not address this argument.
17