Reverse and Render; Opinion Filed April 20, 2020




                                      In The
                            Court of Appeals
                     Fifth District of Texas at Dallas
                              No. 05-18-01527-CV

        TEXAS DEPARTMENT OF TRANSPORTATION, Appellant
                            V.
                   JIMMY DON IVES, Appellee

               On Appeal from the 416th Judicial District Court
                            Collin County, Texas
                   Trial Court Cause No. 416-02488-2017

                        MEMORANDUM OPINION
                  Before Justices Bridges, Whitehill, and Nowell
                            Opinion by Justice Nowell
      The Texas Department of Transportation (TxDOT) appeals the trial court’s

judgment based on an adverse jury verdict in favor of Jimmy Don Ives. Ives sued

TxDOT after he stepped into a drop inlet grate and injured his leg. In two issues,

TxDOT asserts the trial court lacked subject matter jurisdiction because the Texas

Tort Claims Act does not waive its immunity. We reverse the trial court’s judgment

and render judgment dismissing the case for want of jurisdiction.
                              FACTUAL BACKGROUND

      At approximately 9:00 p.m. on May 5, 2015, Ives ran out of gas while driving

in Collin County. Leaving his car on the shoulder, Ives began walking in the grass

along the road toward a gas station. Ives testified it was a dark, cloudy night, and

there were not any streetlights. Unable to see the path in front of him, Ives fell into

what was later determined to be a drop inlet grate and badly injured his leg. The

jury saw multiple photographs of the drop inlet grate.

      Gerald Waltman, a civil engineer for TxDOT, testified TxDOT “[m]ost

likely” owns the drop inlet grate. The grate was approximately twenty years old, it

was constructed according to specifications, and it did not appear to have been

modified. Although thousands of similar grates exist throughout Texas, he had not

heard about any other person falling into one. Waltman did not believe the drop

inlet grate was a dangerous condition. He explained the area where Ives was walking

was not designed for pedestrians; it was intended to facilitate water drainage. He

did not believe the area needed warnings for pedestrians about the drop inlet grate,

he would not have anticipated the accident, and he did not believe the grate posed

an unreasonable risk of harm to pedestrians.

      Following the jury trial, TxDOT filed a motion for judgment notwithstanding

the verdict arguing it retained its sovereign immunity. The trial court denied the

motion. This appeal followed.


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                                   LAW & ANALYSIS

      Whether a court has subject matter jurisdiction is a question of law that we

review de novo. See Sampson v. Univ. of Texas at Austin, 500 S.W.3d 380, 384

(Tex. 2016). Sovereign immunity protects TxDOT from lawsuits for damages

unless immunity has been waived. See Texas Dept. of Transp. v. York, 284 S.W.3d

844, 846 (Tex. 2009) (per curiam). The Texas Tort Claims Act (TTCA) waives

immunity in three areas when the statutory requirements are met: (1) use of publicly

owned automobiles; (2) injuries arising out of a condition or use of tangible personal

property; and (3) premises defects. Sampson, 500 S.W.3d at 384. An alleged

premises defect is at issue in this case.

      Under the TTCA, when a claim arises from a premises defect, the

governmental unit owes the claimant only the duty that a private person owes to a

licensee on private property, unless the claimant pays for the use of the premises.

TEX. CIV. PRAC. & REM. CODE § 101.022(a). The duty owed to a licensee requires

that a landowner not injure a licensee by willful, wanton, or grossly negligent

conduct, and that the owner use ordinary care 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; see also Tarrant Reg'l Water Dist. v. Johnson,

572 S.W.3d 658, 664 (Tex. 2019). Actual knowledge of the dangerous condition is

required. City of Dallas v. Freeman, No. 05-18-00961-CV, 2019 WL 3214152, at

*5 (Tex. App.—Dallas July 17, 2019, no pet.) (mem. op.) (citing Sampson, 500
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S.W.3d at 392). Constructive knowledge of the defect is insufficient. See Sampson,

500 S.W.3d at 392; see also Freeman, 2019 WL 3214152, at *5. Additionally,

“[a]wareness of a potential problem is not actual knowledge of an existing danger.”

Freeman, 2019 WL 3214152, at *5 (citing Reyes v. City of Laredo, 335 S.W.3d 605,

609 (Tex. 2010)). Courts generally consider whether the premises owner has

received reports of prior injuries or reports of the potential danger presented by the

condition. Sampson, 500 S.W.3d at 392.

      In its second issue, TxDOT argues there is no evidence it had actual

knowledge of the alleged danger posed by the drop inlet grate. We agree.

      It is uncontested TxDOT knew the drop inlet grate was installed at the location

where Ives fell. Waltman was the only witness to testify about what knowledge, if

any, TxDOT had about the grate, and his testimony was not contradicted. Waltman

testified the area where Ives walked was intended to facilitate water drainage and

was not intended for pedestrian traffic. Waltman was not aware of anyone else in

Texas falling into a drop inlet grate, and there was no evidence TxDOT ever received

reports of prior injuries or the alleged dangerous condition. Waltman did not believe

the inlet grate drop was a dangerous condition, and he also did not believe TxDOT

should have installed warnings around the inlet grate drop for pedestrians.

      To show TxDOT had actual knowledge the drop inlet grate was unreasonably

dangerous, Ives relies on a trial exhibit showing three orange traffic control panels

on the side of a road near a drop inlet grate. Ives’s counsel stated at trial that the
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image is “a Google image of [sic] 2017.” Waltman testified the photograph appeared

to show some traffic control devices, also called vertical panels, alongside a road.

He did not identify the location of the panels, and he did not know why the panels

were placed where they were when the image was taken. Ives argues these panels

show TxDOT attempted to warn of the dangerous condition, make it safe, or

maintain it in a reasonably safe manner by placing the vertical panels on either side

of the grate where he fell. We disagree.

         If we assume the traffic control devices are along the road and near the grate

where Ives was injured,1 there is no evidence showing the devices were placed in

that location to warn about the grate, make the grate safe, or maintain it in a

reasonably safe condition. Rather, Waltman opined the panels were placed near a

low area in the road that floods during high rains; he testified: “if there’s water, a lot

of water, standing in this low area, then maintenance crews could go out and put

these to divert traffic over to another lane.” He opined that once the excess water

cleared, someone “saw these out in the road and tossed them to the side.” No other

evidence about the panels was offered.

         This testimony does not show TxDOT had actual knowledge of the alleged

danger posted by the drop inlet grate. After reviewing the record, we conclude there




   1
       We also do not address the fact that the image is from 2017, two years or more after the incident.

                                                    –5–
is no evidence showing TxDOT had the requisite actual knowledge for its immunity

to be waived under the TTCA. We sustain TxDOT’s second issue.

      Based on our resolution of TxDOT’s second issue, we need not consider its

first issue: whether it is immune from suit because its conduct fell within the

discretionary function exception to the TTCA’s waiver of immunity. See TEX. CIV.

PRAC. & REM. CODE § 101.056; see also TEX. R. APP. P. 47.1.

                                  CONCLUSION

      We conclude the trial court erred by denying TxDOT’s motion for judgment

notwithstanding the verdict. The trial court lacked subject matter jurisdiction to

consider Ives’s premises liability claim against TxDOT. Accordingly, we reverse

the trial court’s judgment and render judgment dismissing the case for want of

jurisdiction.




                                         /Erin A. Nowell/
                                         ERIN A. NOWELL
                                         JUSTICE



181527F.P05




                                       –6–
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

TEXAS DEPARTMENT OF                            On Appeal from the 416th Judicial
TRANSPORTATION, Appellant                      District Court, Collin County, Texas
                                               Trial Court Cause No. 416-02488-
No. 05-18-01527-CV           V.                2017.
                                               Opinion delivered by Justice Nowell.
JIMMY DON IVES, Appellee                       Justices Bridges and Whitehill
                                               participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and judgment is RENDERED dismissing the case for want
of jurisdiction.

      It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 20th day of April, 2020.




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