Kristopher Lloyd Fraley v. Texas A&M University System

Supreme Court of Texas
══════════
No. 21-0784
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Kristopher Lloyd Fraley,
Petitioner,

v.

Texas A&M University System,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Seventh District of Texas
═══════════════════════════════════════

Argued November 29, 2022

JUSTICE BLAND delivered the opinion of the Court.

A driver proceeded straight through a T-shaped intersection,
leaving the roadway and landing in a shallow ditch on the other side. He
sued the university system charged with maintaining the road, claiming
that a lack of lighting, barricades, and warning signs around the
intersection caused his injuries. He further alleged that the Tort Claims
Act waived the university’s immunity from suit.
The university filed a jurisdictional plea, arguing that these
alleged facts demonstrated neither a special defect nor an unreasonably
dangerous condition. The alleged failure to provide adequate warning
signs and the overall design of the intersection are discretionary
decisions, it further argued, for which the Act expressly denies a waiver
of governmental immunity unless the facts demonstrate a special defect.
The court of appeals reversed the trial court’s denial of the university’s
jurisdictional plea and ordered the case dismissed.
We agree with the court of appeals that neither the driver’s
pleadings nor the evidence demonstrates a special defect under the Act.
We further conclude that the alleged dangerous conditions—grounded
in failures of design and lack of signage at the intersection—are
discretionary decisions for which immunity is not waived. We therefore
affirm.
I
Petitioner Kristopher Fraley drove straight through an
unfamiliar and unlit T-intersection at Sixth Street and Avenue B,
leaving the roadway and coming to rest in a ditch. The single-car
accident happened on Respondent Texas A&M University System’s
RELLIS Campus. The University owns and maintains the campus and
its roadways.
A month before the accident, the University converted the
intersection from a four-way intersection into a three-way
T-intersection. After the conversion, a sloped ditch running parallel to
Sixth Street and adjacent to the roadway remained.
A yield sign on Avenue B marked Fraley’s northbound approach
to the T-intersection. Other than the yield sign, the intersection had no

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streetlights or traffic control devices, and no guardrail or barricade
blocked the top of the T on the other side of the intersection.
Fraley sued the University, claiming that the intersection’s
dangerous condition caused his accident and resulting injuries. The
University responded with a jurisdictional plea, arguing that Fraley’s
pleadings failed to state facts showing that the intersection presented
an unreasonably dangerous condition or that the University was aware
of any such condition. The University’s immunity also was not waived
based on alleged failures in the intersection’s design, it argued, because
the Tort Claims Act expressly carves out from the waiver of immunity
negligence claims that are based on a government’s discretionary
decisions, particularly decisions about the initial placement of roadway
warning signs and signals—unless the facts alleged demonstrate a
special defect. 1 The University preemptively argued that Fraley’s
accident did not arise from a special defect.
In reply, Fraley filed his third amended petition, alleging a
special defect in addition to ordinary premises defects. In that petition,
he alleged that the University breached its duty of care by removing the
northern stretch of the road and:
• failing to warn drivers of the road’s alteration;
• failing to light the area;
• failing to guide drivers away from the area;
• failing to barricade or block off the area; and
• failing to make the intersection reasonably safe.

1 See Tex. Civ. Prac. & Rem. Code § 101.060.

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 Fraley filed two photographs and some deposition testimony with
the trial court in connection with the plea proceedings. The trial court
denied the plea. 2
The court of appeals reversed, holding that Fraley had not
pleaded facts sufficient to demonstrate a waiver of immunity under the
Tort Claims Act. 3 A ditch running along the roadway at the top of a
T-intersection is not a special defect, it held, and any allegedly
dangerous condition of the intersection resulted from discretionary
design decisions, like the failure to place signs and barricades, for which
the University retained its immunity. 4 We granted review.
II
Governmental immunity generally deprives a trial court of
subject-matter jurisdiction over suits against the government unless the
state consents to the suit. 5 For certain claims for personal injuries, the
Tort Claims Act waives governmental immunity. 6 Pertinent here, the
Act waives immunity for claims alleging that an unreasonably
dangerous condition of real property caused the plaintiff’s injuries. 7 For

This interlocutory appeal is permitted by Texas Civil Practice and
2

Remedies Code Section 51.014(a)(8).
3 ___ S.W.3d ___, 2021 WL 3282161, at *7 (Tex. App.—Amarillo July 30,
2021).
4 Id.
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224–25
5

(Tex. 2004).
6 Id.
7Tex. Civ. Prac. & Rem. Code § 101.021 (“A governmental unit in the
state is liable for . . . personal injury and death so caused by a condition or use

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an ordinary premises-defect claim, the Act waives immunity to the same
extent that the governmental unit would, were it a private person, be
liable to a licensee on private property. 8 The Act differentiates between
ordinary premises-defect cases and those arising from a governmental
unit’s duty to warn of “special defects such as excavations or
obstructions on highways, roads, or streets.” 9 In special-defect cases, the
government’s duty is that of a private landowner to an invitee. 10
The Act restricts its waiver of immunity to exclude certain types
of premises-defect claims. Immunity is not waived for claims based on
“a governmental unit’s decision not to perform an act . . . if the law
leaves the performance or nonperformance of the act to the discretion of
the governmental unit.” 11 In particular, the Act retains immunity for
claims based on a governmental unit’s decision not to place a sign,
signal, or warning device, unless the dangerous condition is a special
defect:
(a) This chapter [waiving immunity] does not apply to a
claim arising from:
(1) the failure of a governmental unit initially to
place a traffic or road sign, signal, or warning device
if the failure is a result of discretionary action of the
governmental unit;

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.”).
8 Id. § 101.022(a).
9 Id. § 101.022(b).
10State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,
237 (Tex. 1992).
11 Tex. Civ. Prac. & Rem. Code § 101.056(2).

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 (2) the absence, condition, or malfunction of a traffic
or road sign, signal, or warning device unless the
absence, condition, or malfunction is not corrected
by the responsible governmental unit within a
reasonable time after notice; or
(3) the removal or destruction of a traffic or road
sign, signal, or warning device by a third person
unless the governmental unit fails to correct the
removal or destruction within a reasonable time
after actual notice.
....
(c) This section does not apply to the duty to warn of special
defects such as excavations or roadway obstructions. 12
In responding to a jurisdictional plea, “the plaintiff must
affirmatively demonstrate the court’s jurisdiction by establishing a valid
waiver of immunity.” 13 We review de novo a challenge to the trial court’s
subject-matter jurisdiction based on a failure to demonstrate a waiver
of governmental immunity. 14 Appellate review parallels that of
summary judgment: a reviewing court should view the evidence in a
light favorable to the nonmovant, indulging reasonable inferences from
that evidence in the nonmovant’s favor. 15 To avoid dismissal, a plaintiff
must establish that jurisdiction exists as a matter of law or raise a fact
issue that overcomes the jurisdictional challenge that is intertwined
with the merits. 16

12 Id. § 101.060.
13 Gulf Coast Ctr. v. Curry, 658 S.W.3d 281, 284 (Tex. 2022).
14 Miranda, 133 S.W.3d at 226.
15 Id. at 228; see Tex. R. Civ. P. 166a(c).
16 Miranda, 133 S.W.3d at 221.

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 At the outset, Fraley observes that the University provided no
evidence to counter the allegations in his pleadings. He argues that it is
error for a reviewing court to consider evidence in a jurisdictional
challenge based on the pleadings. In responding to the plea, however,
Fraley provided two photographs of the scene and proffered some
deposition testimony. In that testimony, Fraley’s colleague said that the
recent campus construction required those attending a training exercise
to locate new paths to exit the campus, so participants were unfamiliar
with the intersection where the accident happened.
When either party adduces evidence in connection with a
jurisdictional plea, the trial court should consider that evidence in
addition to challenges to the pleadings in confirming its jurisdiction. 17
Thus, we too examine the pleadings and the evidence to ascertain
whether Fraley has alleged facts sufficient to establish a waiver of
immunity.
A
We first turn to the nature of the duty the University owed to
Fraley. The duty imposed on a governmental premises owner depends
in part on whether the alleged defect constitutes an ordinary defect or a
special defect. 18 In addition, the Act carves out from its waiver of
immunity premises claims based on the failure to place signs or signals
in the first instance, except when the defect alleged is a special defect. 19

17 See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
18 See Tex. Civ. Prac. & Rem. Code § 101.022.
19 Id. § 101.060.

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 For an ordinary premises-liability claim, the governmental unit
owes the duty that a private person would owe to a licensee. 20 The duty
owed is the duty to warn the licensee of a dangerous condition or to make
the condition reasonably safe, but only when the owner is aware of the
dangerous condition and the licensee is not. 21
When a plaintiff alleges a special defect, in contrast, the
government’s duty is expanded to the typical duty a private landowner
owes an invitee. 22 Thus, for a special defect, the duty is to warn of an
unreasonable risk of harm that the premises condition creates when the
government owner knows or reasonably should know of that condition. 23
In addition to the heightened duty to warn, if an alleged defect is a
special defect, then the limitation on the waiver of governmental
immunity to exclude discretionary decisions about design, signage, and
signals does not apply. 24 Whether a condition qualifies as a special defect
is a question of law. 25
B
The Tort Claims Act defines a special defect by listing examples:
special defects include “excavations or obstructions on highways, roads,
or streets.” 26 In applying this definition, our Court has held that a

20 Id. § 101.022(a).
21 Payne, 838 S.W.2d at 237.
22 Id. (citing Tex. Civ. Prac. & Rem. Code § 101.022(b)).
23 Id.
24 Tex. Civ. Prac. & Rem. Code § 101.060(c).
25 Payne, 838 S.W.2d at 238.
26 Tex. Civ. Prac. & Rem. Code § 101.022(b).

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special defect must be “of the same kind or class” as excavations or
obstructions. 27 Factors helpful to ascertaining whether a premises
condition is a special defect include the condition’s size, whether the
condition unexpectedly impairs a vehicle’s ability to travel on the road,
or whether it presents an unexpected and unusual danger to ordinary
users of the roadway. 28
An ordinary roadway user follows the normal course of travel. 29
An ordinary user does not “careen uncontrollably off the paved roadway
and into the adjoining grass.” 30 An ordinary user does not “miss a turn
and crash through a concrete guardrail.” 31
Fraley alleges that the ditch adjoining the roadway at the
converted T-intersection presented a special defect. 32 Fraley does not,
however, distinguish this ditch in kind or in character from many others
that run along Texas roads at the top of T-intersections. He instead
relies on the University’s decision a month earlier to convert the
intersection from a four-way intersection to a three-way intersection.

27 County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978).
28 Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010).
29 Denton County v. Beynon, 283 S.W.3d 329, 332 (Tex. 2009).
30 Id.
31 Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 656 (Tex. 2012).
32 While Fraley pleads that the entire intersection constitutes a special
defect, the only portion of the intersection that is in the nature of an excavation
or an obstruction is the ditch.

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 A premises-defect claim examines the condition of the premises
at the time of the alleged injury. 33 The University’s earlier decision to
convert the intersection does not change the nature of the premises or
its condition on the night in question. While information about the
construction of the intersection could inform whether a governmental
unit complied with its duty of care, that information does not change the
condition of this ditch from any other encountered by an ordinary user
of Texas roads. The jurisdictional evidence indicates that Fraley had not
traveled in this area of the campus before the accident.
Fraley further argues that the court of appeals erred in
categorically excluding dangers on the side of the roadway from the
types of defects that might constitute special defects under the Act. 34

33 See City of Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008)
(holding that the City retained immunity because no evidence showed that the
City had actual knowledge of flooding at the time of the accident; the City’s
awareness that the area flooded occasionally was insufficient).
34 Fraley relies on two court of appeals decisions, Harris County v.
Estate of Ciccia, 125 S.W.3d 749 (Tex. App.—Houston [1st Dist.] 2003, pet.
denied), and City of Houston v. Jean, 517 S.W.2d 596 (Tex. App.—Houston [1st
Dist.] 1974, writ ref’d n.r.e.), to argue that the ditch in this case is a special
defect. In Ciccia, the driver encountered a designated right turn lane, marked
with striping, arrows, and the words “right turn only” on the surface of the
road; these indicators directed the driver not to a right turn but into a ditch
containing a concrete culvert. 125 S.W.3d at 752–53. The culvert was not part
of the initial design but had been added later, with the County’s permission,
by a third party. Id. The court of appeals held that the County’s immunity was
waived for failure to warn of a special defect. Id. at 755. Because the driver in
Ciccia followed the lane of travel as directed, the ditch in that case presented
an excavation encountered on the roadway. In contrast, nothing alleged in this
case directed Fraley to a continuing lane of travel beyond the T-intersection.
In Jean, the court of appeals considered a challenge to the sufficiency
of the evidence and held that a jury reasonably could have found that a poorly

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The statutory text, however, likens special defects to excavations or
obstructions on roads. 35 While location is not determinative, 36
off-roadway obstructions are different in kind than those present on the
roadway, as the statute expressly contemplates. Ditches and
excavations are alike in that both are depressions in the ground’s
surface. An excavation on the road, however, presents a danger that
drivers cannot avoid without altering their normal course of travel. A
driver avoids a ditch adjacent to a roadway simply by remaining on the
road.
Neither the pleadings nor the evidence demonstrates that the
ditch in this case possessed an unusual quality that might impair an
ordinary driver from following the roadway. Drainage ditches along the
roadway—including alongside the top of T-intersections—are a common
feature of many Texas roads. Ordinarily, a ditch adjacent to a roadway
does not impair or obstruct the ordinary course of travel on the roadway.

lit T-intersection bordered by a ditch constituted a dangerous condition that
triggered the City’s duty to warn or protect drivers. 517 S.W.2d at 599. In a
footnote in Payne, we cited Jean as one example of a court recognizing an
off-road hazard as a special defect. 838 S.W.2d at 238 n.3. The point we made
in that footnote, however, was that the location on or off the roadway is not
dispositive of whether a condition is a special defect; rather, the pertinent
question is whether the condition poses a threat to ordinary users of the
roadway. Id. We later clarified as much in Perches when we concluded that the
special-defect status of an off-road condition depends on whether the condition
impedes travel for ordinary users of the road. 388 S.W.3d at 656.
35 Tex. Civ. Prac. & Rem. Code § 101.022(b).
36 Payne, 838 S.W.2d at 238 n.3.

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 Our decision in Texas Department of Transportation v. Perches
informs this analysis. 37 In that case, an elevated highway ramp ended
in a T-intersection; its signage directed drivers to turn left. 38 The driver
failed to make the turn and instead drove through a concrete guardrail. 39
We determined that the guardrail was not a special defect because it did
not pose a risk to ordinary users of the road; rather, it “became an
impediment only when [the driver] missed his turn and proceeded off
the road.” 40 We emphasized that ordinary users of the roadway are
expected to follow the normal course of travel. 41 Fraley, like the driver
in Perches, deviated from the normal course of travel when he
encountered the ditch.
Because ordinary users are not expected to travel beyond the
surface of the roadway under the circumstances alleged, 42 we conclude
that the ditch Fraley encountered when he left the roadway was not a
special defect. Thus, the University owed a duty to Fraley as a licensee,
and the Tort Claims Act’s limitation to its waiver of governmental
immunity for discretionary decisions about design and signage applies.
III
The exclusion of discretionary decisions about design and signage
precludes a waiver of governmental immunity in this case. The decision

37 388 S.W.3d 652.
38 Id. at 653.
39 Id.
40 Id. at 656.
41 Id.
42 See id.

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to redesign the intersection and place a yield sign—rather than a stop
sign or some other signal—was discretionary, at least as an initial
matter. The “[d]esign of any public work, such as a roadway, is a
discretionary function,” precluding a waiver of immunity under the Tort
Claims Act. 43 This retention of immunity for discretionary design
decisions extends to decisions about the installation of safety features. 44
Thus, immunity is not waived with respect to claims based on the
University’s initial omission of lights, barricades, or warning signs at
the intersection. Instead, the Act expressly recognizes that the initial
decision not to install traffic control devices cannot give rise to liability
for a premises defect, unless that defect is a “special” defect. 45 We hold
that the University’s alleged failures to make the intersection safe fall
within the well-recognized discretionary-function exception. 46
Our decision in Texas Department of Transportation v. Ramirez
involved allegations like Fraley’s. 47 In Ramirez, we considered whether
the Act waived the Department’s immunity based on its alleged
defective design of a narrow, sloped highway median that lacked
barriers or guardrails. 48 The plaintiff presented evidence of earlier

43 Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002)
(alteration in original) (quoting State v. Rodriguez, 985 S.W.2d 83, 85 (Tex.
1999)).
44 Id. (citing State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999)).
45 Tex. Civ. Prac. & Rem. Code § 101.060(a)(1), (c).
46 Id. §§ 101.056(2), .060(a)(1).
47 74 S.W.3d 864.
48 Id. at 867.

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accidents at that location and proffered an expert opinion that the
median was not safe. 49 Despite this evidence, we concluded that the Act
did not waive the Department’s immunity because “the median’s slope
and the lack of safety features, such as barriers or guardrails, reflect
discretionary decisions for which TxDOT retains immunity under the
Act’s discretionary-function exception.” 50
Like the plaintiff in Ramirez, Fraley similarly complains of the
intersection’s lack of safety features like lights, barricades, and warning
signs. The decision to omit these features from the design of the
intersection fell within the University’s discretion. Absent a special
defect, the Act’s discretionary-function exception precludes a waiver of
immunity based on such allegations.
Fraley further argues that, while design decisions are
discretionary and excluded from the waiver of immunity, the
University’s negligent implementation of a planned design is not. He
requests the opportunity to replead his case should additional discovery
reveal facts demonstrating that the intersection’s construction and
safety features did not conform to its design plans. Fraley observes that
the court of appeals, not the trial court, found his pleadings defective.
Negligent implementation is not a separate theory of liability
under the Tort Claims Act. Instead, it is a means to avoid the Act’s
discretionary-function exception that would otherwise retain the

49 Id.
50 Id.

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governmental unit’s immunity from a premises-defect claim. 51 Fraley’s
third amended petition, however, neither alleges negligent
implementation nor suggests that the University constructed the
intersection inconsistently with its design decisions. 52 Fraley does not
plead that the work done at the intersection was subpar, that existing
safety measures were not properly maintained, or that the
workmanship or materials of such measures were defective; he
complains only about the intersection’s design and the omission of safety
features.
When a plaintiff fails to plead facts sufficient to demonstrate the
trial court’s jurisdiction, courts generally should afford the plaintiff the
opportunity to replead unless “the pleadings affirmatively negate the
existence of jurisdiction.” 53 Once the defendant’s jurisdictional plea gives
notice of the jurisdictional defect, however, and the plaintiff responds
with an amended pleading that “still does not allege facts that would

See City of San Antonio v. Maspero, 640 S.W.3d 523, 533 (Tex. 2022)
51

(noting the distinction between negligent-formulation-of-policy claims, which
fall within the exception, and negligent-implementation claims, which do not).
Even if the University’s construction plan included additional signage
52

or barriers that had not yet been installed, our holding in City of Grapevine v.
Sipes, 195 S.W.3d 689 (Tex. 2006), precludes a negligent-implementation claim
for the delayed installation of planned safety features. “When the
[governmental unit] first installs a traffic signal is no less discretionary than
whether to install it” for purposes of immunity under Section 101.060(a)(1). Id.
at 694.
Miranda, 133 S.W.3d at 226–27 (citation omitted); accord Dohlen v.
53

City of San Antonio, 643 S.W.3d 387, 397 (Tex. 2022).

15
constitute a waiver of immunity,” then the trial court should order the
case dismissed with prejudice. 54
Ordinarily, a claim based on faulty implementation of a design
requires access to the design plans through appropriate discovery to
consider whether an alleged premises defect was the result of negligent
implementation, rather than negligent design. Fraley had that
opportunity. Fraley filed four total petitions against the University
alleging a premises defect, the last in response to the University’s
jurisdictional plea. The University raised the discretionary-function
exception to the Act’s waiver of immunity in its plea, and it argued that
Fraley’s alleged dangerous condition was not a special defect.
Twenty-two months passed between Fraley’s original petition and
the third amended petition filed in response to the University’s
jurisdictional plea. During that time, the parties conducted extensive
discovery. Dozens of witnesses were deposed or responded to written
questions. Fraley has not suggested that the University withheld
requested information or refused to cooperate in discovery. Further,
Fraley does not point to any discovery that reveals facts to avoid the
discretionary decision-making exception to the waiver of immunity the
Act provides. Given the opportunity to replead, Fraley did not raise

54Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004); see also Tex.
Dep’t of Crim. Just.–Cmty. Just. Assistance Div. v. Campos, 384 S.W.3d 810,
815 (Tex. 2012) (holding that the case should be dismissed if, “after having a
reasonable opportunity to conduct discovery directed to the issue and amend
the pleadings,” the plaintiff still fails to show facts overcoming the
governmental unit’s plea to the jurisdiction); Matzen v. McLane, 659 S.W.3d
381, 396 & n.18 (Tex. 2021) (noting that while the plaintiff did not seek to
replead, we would deny such a request after three amended pleadings failed to
invoke a waiver of sovereign immunity for ultra vires claims).

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negligent implementation. Because Fraley neither claimed negligent
implementation nor alleged facts to support it in pleadings filed after
the jurisdictional plea and twenty-two months of discovery, we conclude
that the court of appeals properly ordered the case dismissed rather
than remanding to the trial court for repleading.
* * *
The Tort Claims Act excludes from its waiver of immunity those
ordinary premises-defect claims based on the omission of “a traffic or
road sign, signal, or warning device,” when that omission “is a result of
discretionary action of the governmental unit.” 55 The court of appeals
correctly concluded that the claims alleged in this case fall within this
exclusion. Accordingly, we affirm its judgment.

Jane N. Bland
Justice

OPINION DELIVERED: March 24, 2023

55 Tex. Civ. Prac. & Rem. Code § 101.060(a)(1).

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