Opinion issued October 8, 2015




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-15-00542-CV
                            ———————————
                       BRAZORIA COUNTY, Appellant
                                        V.
         EUGENE ELDRIDGE AND RAYMOND PERRY, Appellees


                    On Appeal from the 149th District Court
                           Brazoria County, Texas
                         Trial Court Case No. 69510


                          MEMORANDUM OPINION

      This is premises liability case. Eugene Eldridge and Raymond Perry sued

Brazoria County for personal injuries they sustained in a car accident on County

Road 128. Brazoria County filed a plea to the jurisdiction, seeking dismissal of the
suit. The trial court denied the County’s plea. In one issue on appeal, the County

asserts that the trial court erred by denying its plea to the jurisdiction.

      We reverse the trial court’s order denying the County’s plea to the

jurisdiction and render judgment dismissing the claims.

                               Background Summary

      As part of a federally-funded program to replace deficient bridges, the Texas

Department of Transportation (“TxDOT”), acting on behalf of the State of Texas,

entered into an Advance Funding Agreement with Brazoria County in 2005 to

replace a county-owned bridge, which crossed a drainage ditch on County Road

128. The Advance Funding Agreement states that “[the County] authorizes the

State, its consultant, contractor, or other designated representative to enter the

site(s) of said bridge(s) and adjacent right of way or relocation right of way to

perform surveys, inspections, construction and other activities necessary to replace

or rehabilitate said bridges and approaches.” The agreement provides that “[t]he

State shall advertise for construction bids, issue bid proposals, receive and tabulate

the bids and award and administer the contract for the construction of the Project.

Administration of the contract includes the responsibility for the construction

engineering and for issuance of any change orders. . . .” Under the heading

“Responsibilities of the Parties,” the document states: “The parties to this

Agreement agree that no party is an agent, servant, or employee of the other party



                                            2
and each party agrees it is responsible for its individual acts and deeds as well as

the acts and deeds of its contractors, employees, representatives, and agents.”

      In March 2010, TxDOT sent a letter to Brazoria County, stating that TxDOT

had developed the construction plans for the bridge project on CR 128. TxDOT

informed the County that it expected to let the contract for the bridge

reconstruction in July 2010. TxDOT notified the County that it expected CR 128

to be closed for four months during the bridge reconstruction. Along with the

letter, TxDOT provided to the County TxDOT’s construction schedule and

schematics, depicting TxDOT’s traffic control plan for the bridge reconstruction

project.   The schematics showed where signage, such as detour and “bridge

closed” signs, would be placed.

      By April 2012, the bridge reconstruction project was underway. At that

time, the bridge crossing the drainage ditch on CR 128 had been removed. Traffic

control signs warning of the bridge outage had been posted. On Friday, April 20,

2012, the area experienced storms, including gusting wind. As a result of the

storms, the traffic control signs, warning of the bridge outage, were blown over. In

the early morning hours of Monday, April 23, 2012, Eugene Eldridge and

Raymond Perry were traveling in their car on CR 128. When they came to the

location where the bridge had been removed, their car fell into the drainage ditch.




                                          3
      Eldridge and Perry sued Brazoria County for the personal injuries they

allegedly sustained in the car accident. In their live petition, Eldridge and Perry

pleaded the following factual allegations:

             The bridge on CR 128 was torn out to be rebuilt or to be
             replaced. The County posted warning signs for the hazardous
             condition posed by the missing bridge. On April 20, 2012, the
             area experienced severe storms, with gusting winds. All
             warning signs were blown over, or lost in the storm. The
             County was notified of the dangerous condition posed by the
             bridge being removed, and the absence of warnings. Thin
             barricades were placed at the immediate entrance to the pit, but
             no warnings were posted along the road to give drivers advance
             notice of the bridge being out.

             On April 23, 2012, Plaintiffs were driving on CR 128. There
             were no advance warning signs. Plaintiffs did not know that
             the bridge was out. Plaintiffs saw the barricades only
             immediate [sic] to colliding with them. Plaintiffs were unable
             to stop before pitching over the embankment and onto the
             stream bed below.

             Plaintiff K.C. Eldridge was driving. Plaintiff Perry was a
             passenger in the vehicle. Both plaintiffs were severely injured
             in the wreck.

      The petition averred that the County was negligent because it had failed “to

provide any warning of the hazardous condition of the premises defect created by

the removal of the bridge” and “by the debris remaining from [its] removal.”

Eldridge and Perry allege that the County was negligent because it failed “to

replace road signs, or warning devices after notice and within a reasonable time.”




                                         4
        Eldridge and Perry claim that the County’s immunity from suit was waived

by certain provisions of the Texas Tort Claims Act. Particularly, they alleged that

their claims fall within the limited waiver of governmental immunity set out in

sections 101.021(2) and 101.022(a) of the Act for claims arising from premise

defects or special defects. They further alleged that the County’s immunity from

suit was waived pursuant to Texas Tort Claims Act section 101.060(a)(2) because

the County “did not replace the warning signs within a reasonable time after being

notified of their absence due to the storm.”

        During the pendency of this case, the County has filed two pleas to the

jurisdiction. In its first plea, the County asserted that it retained its governmental

immunity from suit because neither the pleadings nor the jurisdictional evidence

showed that the alleged personal injuries had been caused by an act or omission of

a County employee. The trial court granted the County’s plea and dismissed the

suit. Eldridge and Perry appealed, asserting that it was not necessary for them to

show that their premises-defect claims were derived from an act or omission of a

county employee. We agreed, reversing the dismissal judgment and remanding the

case to the trial court. Eldridge v. Brazoria Cty., No. 01-13-00314-CV, 2014 WL

1267055, at *6 (Tex. App.—Houston [1st Dist.] Mar. 27, 2014, no pet.) (mem.

op.).




                                          5
        Once the case was remanded, the County filed a second plea to the

jurisdiction with supporting jurisdictional evidence. The County acknowledges

that, under the Tort Claims Act, it waived its governmental immunity for the

premises-liability claims to the extent that a similarly-situated private party would

be liable. See TEX. CIV. & PRAC. REM. CODE ANN. § 101.021 (Vernon 2011).

        In its plea, the County claims that it retains its governmental immunity from

suit because it owed no legal duty to plaintiffs Eldridge and Perry with respect to

their alleged injuries. The County asserts that the plaintiffs did not allege that the

County was “the actual owner or possessor” of the property where the accident

occurred. Pointing to its proffered jurisdictional evidence, the County claims that

it did not control the premises at the time of the accident. Rather, the County avers

that the Texas Department of Transportation (TxDOT), and the contractor hired by

TxDOT to complete the bridge-replacement project, controlled the premises at that

time.

        Among its evidence, the County offers the Advance Funding Agreement

between the County and TxDOT. It also offers the March 2010 letter from TxDOT

to the County with the attached construction schedule and traffic control plans,

including the schematics showing placement of traffic control and warning signs

for the project.




                                          6
       As a facet of its jurisdictional argument, the County asserts that it had no

awareness or notice that the signs, warning motorists of the missing bridge, were

no longer in place at the time of the accident. The County offers evidence to show

that this lack of awareness of the missing signs derived from its lack of control

over the bridge reconstruction work and the attendant activity of posting warning

signs to inform motorists of the missing bridge. In support of its position, the

County offers the affidavit of its assistant county engineer, Michael Shannon, who

testified, in part, as follows:

       3. . . . Under the [Advance Funding Agreement], the County had pre-
       construction responsibilities of securing the right-of-way and
       adjustment, removal and relocation of utilities and post construction
       responsibilities of accepting the project once it was completed and
       maintaining it. TxDOT was responsible for architectural [sic],
       engineering and construction. TxDOT provided the Brazoria County
       Engineering Department a copy of the architectural plans, its proposed
       construction schedule, and its traffic control plan. The County did not
       create or design any of these plans or schedules. TxDOT was not
       acting as an agent of the County during the demolition/reconstruction
       of the bridge on CR 128[.]

       4. Brazoria County did not participate in any manner in the
       demolition/reconstruction of the bridge, this included the hiring of the
       contractor, marking the traffic route detours, deciding which signs, if
       any would be used, if/where they would/would not be placed nor
       if/how they would be maintained. The County did not have a crew on
       the site, nor did not direct the day to day activities of the construction
       company. Under the provisions of TxDOT’s Advanced Funding
       Agreement which Brazoria County followed, the County accepted
       possession of the project once it was completed.

       5. Brazoria County Engineering Department has a system by which it
       documents complaints, questions, or concerns The Engineering

                                           7
      Department did not receive any complaints regarding missing warning
      signs related to demolition/reconstruction of the bridge on County
      Road 128 during the demolition/reconstruction process.

      The County also offers the affidavit of a resident, Lang Smith, who lived

near the bridge.1 Smith stated that the accident occurred on an early Monday

morning in May 2012, around 4:30 or 5:00 a.m. 2 According to Smith, the car had

crashed into “the ditch, across the creek from [his] house” where the bridge had

been removed. Smith stated that it appeared the car had been traveling eastward on

CR 128, from the direction of CR 99, when it came to the ditch where the bridge

was missing. Smith testified that, after the accident, he went to the intersection of

CR 128 and CR 99, the direction from which the car had traveled, to determine

whether there were any warning signs regarding the missing bridge. Smith stated

that, “[a]pproximately 50 feet or so from CR 99 on CR 128 there was a sign in the

ditch parallel to the road which was a detour sign with an arrow.”                Smith

continued, “I was trying to find signs that they [sic] could be placed for traffic

control, that is when I noticed the sign in the ditch. The sign was not visible to

traffic unless you stopped to read it.”

      Smith indicated that, before the accident, the construction company had

placed flashing warning signs near the bridge site “to show traffic that the bridge

1
      Smith’s affidavit had originally been offered by the plaintiffs in support of their
      response to the County’s first plea to the jurisdiction.
2
      It is not in dispute that the accident occurred in April 2012.

                                             8
was out.” He testified that “the Friday before the accident there was a very hard

wind and rain storm. I recall the signs on the east side of the bridge, which I could

describe as my side of the bridge had blown down.” Smith stated that, at the time

of the accident, he, the owner of the construction company, and one of the

occupants of the car were talking about the accident. Smith testified,

      The owner [of the construction company] told us he had been around
      on Sunday (which was the day before the accident) and saw the sign
      on my side of the bridge had been blown down. He told us he didn’t
      pick up the sign because he didn’t think he needed the sign down
      there. He also said he not tell if the signs on the CR 99 side [where
      the accident later occurred] were down because the crane was in the
      way and he could not see them.

      Smith’s affidavit also indicated that he had previously discussed deficiencies

regarding the traffic control devices with TxDOT and with the construction

company. However, Smith did not indicate that he had discussed any deficiencies

with the County.

      Eldridge and Perry (hereinafter “Appellees”) filed a response to the

County’s second plea to the jurisdiction. In the response, Appellees assert that the

County, as the premises owner, had a duty to warn of the missing bridge.

Appellees claim, “As shown by [Smith’s affidavit], the County of Brazoria was

actually providing safety and traffic controls, but when notified that the traffic

controls were blown away by inclement weather, failed to replace the traffic

controls.” Appellees had made a similar allegation in their petition, in which they



                                         9
alleged that the County had posted the warning signs regarding the missing bridge

and had been notified that the signs were blown down in the storm. In their

response to the County’s plea, Appellees further assert that they filed suit because

“the County of Brazoria failed to re-post warning signs of a bridge that had been

removed for reconstruction.”

      The trial court denied the County’s second plea to the jurisdiction. This

interlocutory appeal followed. In one issue, the County asserts that the trial court

erred when it denied its plea.

                                 Plea to the Jurisdiction

A.    Standard of Review

      Whether subject-matter jurisdiction exists is a question of law that can be

challenged, as it was here, by a plea to the jurisdiction. Bland Indep. Sch. Dist. v.

Blue, 34 S.W.3d 547, 554 (Tex. 2000). We review de novo the disposition of

Texas City’s jurisdictional plea. Tex. Dept. of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Because we address a plea to the jurisdiction in

which disputed evidence implicates both the court’s subject-matter jurisdiction and

the merits of the case, we consider relevant evidence submitted by the parties to

determine if a fact issue exists. Id. at 227. We take as true all evidence favorable

to the nonmovant, indulge every reasonable inference, and resolve any doubts in

the nonmovant’s favor.      Id. at 228.     If the evidence creates a fact question



                                           10
regarding jurisdiction, the plea must be denied pending resolution of the fact issue

by the fact finder. Id. at 227–28. If the evidence fails to raise a question of fact,

however, the plea to the jurisdiction must be granted as a matter of law. Id. at 228.

B.    Governmental Immunity

      Without a valid statutory or constitutional waiver, a trial court lacks subject-

matter jurisdiction to adjudicate a lawsuit against a political subdivision, such as

Brazoria County.     See Suarez v. City of Tex. City, No. 13–0947, 2015 WL

3802865, at *5 (Tex. June 19, 2015); Kirby Lake Dev., Ltd. v. Clear Lake City

Water Auth., 320 S.W.3d 829, 836 (Tex. 2010). The Texas Tort Claims Act

waives a governmental unit’s immunity from suit but only “to the extent of liability

created by [the Act].” TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a) (Vernon

2011). The immunity waiver is therefore intertwined with the merits of a claim

under the Tort Claims Act. Suarez, 2015 WL 3802865, at *5.

      The Act further provides that a governmental unit is liable for “personal

injury and death so caused by a condition or use of . . . 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 (Vernon

2011); see State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). Here, Appellees

allege that the bridge outage constituted an ordinary and a special premises defect

of which the County, as owner of the property, had a duty to warn.



                                         11
      In ordinary premises-defect cases, the governmental unit owes “only the

duty [of care] that a private person owes to a licensee on private property.” TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022(a) (Vernon 2011). Under Texas law, a

licensor of real property owes a duty not to injure the licensee by willful or wanton

acts or omissions or gross negligence. City of Denton v. Paper, 376 S.W.3d 762,

766 (Tex. 2012) (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 237 (Tex. 1992)). When the governmental unit has actual knowledge

of a dangerous condition and the licensee does not, the government must either

warn the licensee or make the condition safe. Paper, 376 S.W.3d at 766 (citing

State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974)).

      When a special premises defect exists, the government owes the same duty

to users that a private landowner owes to an invitee. Tex. Dep’t of Transp. v.

Perches, 388 S.W.3d 652, 654–55 (Tex. 2012). Generally, premises owners have a

duty to invitees to make the premises safe or to warn against any concealed,

unreasonably dangerous conditions of which the landowner is, or reasonably

should be, aware but the invitee is not. Austin v. Kroger Texas, L.P., 465 S.W.3d

193, 203 (Tex. 2015); Henkel v. Norman, 441 S.W.3d 249, 250 (Tex. 2014).




                                         12
C.    Analysis

      The record shows that the County owns the bridge.3 Resultantly, Appellees

base their claims against the County on a landowner’s general duty either to make

safe the premises defect or to warn of hidden, unsafe conditions known to the

landowner.    See Henkel, 441 S.W.3d at 251.            Appellees’ allegations and the

County’s jurisdictional evidence show that warning signs notifying motorists of the

bridge outage were, in fact, erected. Appellees’ allegations and the jurisdictional

evidence further show that some, or all, of these warning signs were blown down

by the storm on Friday night, April 20, 2012. The signs had not been re-erected by

the early morning hours of Monday, April 23, 2012, when Appellees’ car happened

upon the site of the missing bridge and fell into the creek bed below.

      Unlike many cases, this is not one in which the plaintiffs claim that no

warnings of the premises defect were ever given. Nor is it a case in which the

posted warnings were alleged to be inadequate to notify the invitee of the danger.

A different issue is presented here. As framed, the dispute is whether the County

had a duty to re-post the warning signs after they were blown down by the storm.

In such a dispute, the missing signs themselves become akin to a premises defect,

3
      The County asserts that Appellees failed to allege in their petition that the County
      is the premises owner. We note that Appellees allege in their petition the duty of
      care a landowner owes a licensee, and in so doing specifically references the term
      “landowner.” Moreover, the Advance Funding Agreement, offered by the County
      to support its plea to the jurisdiction, expressly states that the County is the owner
      of the bridge.

                                            13
which Appellees assert the County had a duty to remedy. The County asserts that

it owed no duty to Appellees to re-post the warning signs, claiming that TxDOT

and its contractor, who had posted the warning signs, controlled the premises

during the bridge reconstruction. As a corollary to this assertion, the County avers

that it was not aware that the signs were blown down by the storm.

      For argument’s sake, we assume, without deciding, that the missing bridge

was a special defect and that, consequently, Appellees were invitees. We thus

apply the corresponding heightened duty of care owed to an invitee as compared to

the lesser duty owed to a licensee.

      A landowner owes an invitee a duty to exercise ordinary care to protect them

from those risks of which the owner is actually aware and also those risks of which

the owner should be aware after reasonable inspection. Motel 6 G.P., Inc. v.

Lopez, 929 S.W.2d 1, 3 (Tex. 1996). However, a landowner’s duty to an invitee is

not absolute. Austin, 465 S.W.3d at 203. A landowner is not the insurer of an

invitee’s safety. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 769 (Tex.

2010). Rather, a landowner’s premises-liability duties, like its negligence duties,

are limited to a duty to exercise ordinary, reasonable care. Austin, 465 S.W.3d at

203. To prevail on a premises liability claim against a landowner, a plaintiff-

invitee must prove that (1) the landowner had actual or constructive knowledge of

some condition on the premises, (2) the condition posed an unreasonable risk of



                                        14
harm, (3) the landowner failed to exercise reasonable care to reduce or eliminate

the risk, and (4) the landowner’s failure to use such care proximately caused the

plaintiff’s injuries. Motel 6 G.P, Inc., 929 S.W.2d at 3.

      The existence of actual or constructive knowledge of a premises defect is a

threshold requirement for a premises liability claim. Id. An invitee must show that

a landowner either knew or, after reasonable inspection, should have known of an

unreasonably dangerous condition before asserting that the landowner breached a

duty by failing to take precautions. Id. at 3–4. The plaintiff’s failure to meet the

threshold burden of demonstrating the owner actually knew or through the exercise

of reasonable care should have known of an unreasonably dangerous condition

defeats his claim. See id. at 4. A landowner does not owe a duty to remedy a

defect of which it is not and should not be aware; and a landowner cannot breach a

duty that it does not owe. See id.

      Appellees have made certain allegations that are relevant to whether the

County had actual or constructive awareness that the warning signs were missing.

They assert that it was the County that posted the warning signs and that the

County had been notified that the signs were blown down by the storm.

Specifically, Appellees allege, “The County had posted warning signs for the

hazardous condition posed by the missing bridge.” They further claim, “[T]he

County did not replace the warning signs within a reasonable time after being



                                         15
notified of their absence due to the storm. . . .” Similarly, when they responded to

the County’s plea, Appellees averred that “the County of Brazoria was actually

providing safety and traffic controls, but when notified that the traffic controls

were blown away by inclement weather, failed to replace the traffic controls.”

      The County asserts that it was not aware that the warning signs had been

blown down during the storm. In support of this assertion, the County offered the

affidavit of its assistant county engineer, Michael Shannon.         His testimony

indicates that the County had not been notified that the warning signs were

missing.   Shannon testified that the County “did not receive any complaints

regarding missing warning signs related to demolition/reconstruction of the bridge

on County Road 128 during the demolition/reconstruction process.” Appellees

offered no evidence to controvert Shannon’s affidavit testimony.

      The County also points to the affidavit of Lang Smith, the resident who lives

near the bridge. Smith stated that the owner of the construction company told him,

at the accident scene, that he had been to the location the day before the accident.

The owner told Smith he had seen that the warning signs on the other side of the

bridge were down, but he had decided that they were not needed.             Smith’s

testimony did not indicate that the County was aware that any warning signs were

missing.   Smith’s testimony further indicated that he had spoken with either




                                        16
TxDOT or the construction contractor in the past regarding issues relating to the

traffic-control signs, but Smith did not mention the County.

      The jurisdictional evidence also refutes Appellees’ claim that the County—

either directly or through the hiring or control of the construction contractor—had

posted the warning signs. In his affidavit, Shannon testified,

      3. . . . Under the [Advance Funding Agreement], the County had pre-
      construction responsibilities of securing the right-of-way and
      adjustment, removal and relocation of utilities and post construction
      responsibilities of accepting the project once it was completed and
      maintaining it. TxDOT was responsible for architectural [sic],
      engineering and construction. TxDOT provided the Brazoria County
      Engineering Department a copy of the architectural plans, its proposed
      construction schedule, and its traffic control plan. The County did not
      create or design any of these plans or schedules. TxDOT was not
      acting as an agent of the County during the demolition/reconstruction
      of the bridge on CR 128[.]

      4. Brazoria County did not participate in any manner in the
      demolition/reconstruction of the bridge, this included the hiring of the
      contractor, marking the traffic route detours, deciding which signs, if
      any would be used, if/where they would/would not be placed nor
      if/how they would be maintained. The County did not have a crew on
      the site, nor did not direct the day to day activities of the construction
      company. Under the provisions of TxDOT’s Advanced Funding
      Agreement which Brazoria County followed, the County accepted
      possession of the project once it was completed.

(Emphasis added.)

      Appellees offered no evidence to controvert Shannon’s testimony.             In

addition, consistent with Shannon’s testimony, the Advance Funding Agreement

between TxDOT and the County provides, “The parties to this Agreement agree



                                         17
that no party is an agent, servant, or employee of the other party and each party

agrees it is responsible for its individual acts and deeds as well as the acts and

deeds of its contractors, employees, representatives, and agents.”

      We recognize that a landowner has a duty to “take whatever action is

reasonably prudent under the circumstances to reduce or to eliminate the

unreasonable risk from that condition.”       Corbin v. Safeway Stores, Inc., 648

S.W.2d 292, 295 (Tex. 1983). The landowner’s duty to an invitee requires the

owner to make such an inspection of the premises to discover hidden dangers as

would be made by a reasonably prudent person in the exercise of ordinary care.

City of Beaumont v. Graham, 441 S.W.2d 829, 834 (Tex. 1969). Here, the County

asserts that it had no control over the bridge reconstruction work, including the

posting and maintenance of the warning signs; rather, those aspects of the project

were implemented and controlled by TxDOT and the construction contractor hired

by TxDOT. This assertion implicates the inquiry whether the County had a duty to

inspect the site during the weekend following the storm.

      As discussed, Shannon’s affidavit shows, with respect to the bridge

reconstruction project, the County did not hire the construction contractor, did not

mark the traffic route detours, did not decide which signs, if any, would be used,

and did not decide where the signs would be placed or how they would be




                                         18
maintained. The County also did not have a crew on site or “participate in any

manner in the demolition/reconstruction of the bridge.”

      Shannon’s testimony is corroborated by other jurisdictional evidence in the

record, including the Advance Funding Agreement, which provides that “[t]he

State [TxDOT] shall advertise for construction bids, issue bid proposals, receive

and tabulate the bids and award and administer the contract for the construction of

the Project. Administration of the contract includes the responsibility for the

construction engineering and for issuance of any change orders. . . .” 4 Similarly,

the March 2010 letter from TxDOT to the County, indicating that a construction

contract would soon be let, informed the County that CR 128 would be closed for

four months during the project and provided the County with TxDOT’s schematics

for the project, including its traffic control plans and signage.

      In addition, Smith’s affidavit further corroborates Shannon’s testimony.

Smith testified that the owner of the construction company admitted to being at the

site on Sunday, the day before the accident. The contractor had noticed a warning

sign was down, but he had decided not to repost the sign because he did not think
4
      Appellees assert that a resolution, passed by the County and made part of the
      Advance Funding Agreement, creates a fact issue regarding whether the County
      had control over the bridge reconstruction in this case. Appellees point to
      language in the resolution stating that the County assumed “all responsibilities for
      engineering and construction” for “the structures being improved.” However, this
      portion of the County’s resolution pertains to bridge reconstruction projects
      defined as “equivalent-match projects.” Under the terms of the resolution, the
      bridge reconstruction project involved in this case was not an equivalent-match
      project.

                                           19
that it was needed. 5 Smith also testified that, in the past, he had spoken with

TxDOT and with the construction contractor about the traffic control signs for the

project. Smith did not indicate that he had spoken with the County or that the

County had been present at the construction site at any time. In short, Smith’s

affidavit indicates that TxDOT and its construction contractor were maintaining

and controlling the site, including the warning signs.

      “[L]liability to an invitee depends on whether he acted reasonably in light of

what he knew or should have known about the risks accompanying a premises

condition, not on whether a specific set of facts or a specific breach of duty is

established.” Motel 6 G.P., Inc., 929 S.W.2d at 4 (citing Corbin, 648 S.W.2d at

295). Here, the County offered jurisdictional evidence showing that it was not in

control of the work to reconstruct the bridge, including the attendant placement and

maintenance of the warning signs.         Appellees have offered no evidence to

controvert this. Further, it is undisputed that, before the storm, warning signs were

in fact posted to notify motorists of the bridge outage.

      Appellees offer no evidence to otherwise demonstrate that, under these

circumstances, a prudent landowner acting with ordinary care would have

nonetheless inspected the premises following the storm. Nothing in the record

indicates that, after the storm, the County had any reason to believe that TxDOT or

5
      The record indicates that the warning sign the contractor had noted as being blown
      down was on the opposite side of the bridge from where the accident occurred.

                                          20
the construction contractor would not continue to maintain the site, including the

warning signs, as they had done before the storm. Indeed, the record shows that

the contractor visited the site after the storm, on Sunday, the day before the

accident and had noted a warning sign down but had decided not to re-post it. No

evidence was presented to show that the County was aware of the contractor’s

discovery or of his decision.

      Given that warning signs had been posted and that the County was not in

control of the work or the signage, the situation did not suggest to the County that

an investigation or an inspection was needed during the weekend following the

storm. In this regard, the evidence establishes that, under the circumstances, a

reasonably prudent person—in the County’s position exercising ordinary care—

would not have inspected the premises after the Friday night storm and before the

Monday morning accident. No evidence shows to the contrary. Thus, the County

had no duty to inspect the premises during the relevant time frame.

      In sum, there is no evidence that the County had actual knowledge that the

warning signs were knocked over by the storm. In addition, even though an

inspection likely would have revealed the missing signs, the evidence shows that

the County had no duty, as a matter of law, to inspect the premises to determine

whether the storm had knocked the signs down. Without a duty to inspect, there is

no evidence that the County had constructive knowledge that the signs were



                                        21
missing. See Farrar v. Sabine Mgmt. Corp., 362 S.W.3d 694, 700 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (“Constructive knowledge, which is defined as

knowledge that a person, after reasonable inspection, ought to have or has reason

to have, may be imputed when the premises owner-operator had a reasonable

opportunity to discover and to remedy an allegedly dangerous condition.”

(emphasis added)).

      Construing the evidence and every reasonable inference in Appellees’ favor,

we conclude that there is no evidence on which a reasonable factfinder could

conclude that the County had actual or constructive knowledge of the missing

warning signs. As a result, the County had no duty to Appellees, as either invitees

or licensees, to repost the warning signs at the time of the accident. See Tex. Dep’t

of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (explaining that under

licensee standard, “a plaintiff must prove that governmental unit had actual

knowledge of a condition,” whereas under invitee standard, a plaintiff need only

prove that governmental unit should have known of the condition). Because the

evidence fails to raise a genuine and material fact issue concerning the duty owed

to support either ordinary or special premises liability, we hold that the County

retains immunity from suit and thus the trial court lacks jurisdiction over

Appellees’ claims.

      We sustain the County’s sole issue.



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                                   Conclusion

      We reverse the order of the trial court denying the County’s plea to the

jurisdiction and render judgment dismissing Appellees’ claims against Brazoria

County.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Brown.




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