                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00239-CV


CITY OF DENTON                                                      APPELLANT

                                       V.

RACHEL PAPER                                                         APPELLEE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION

      This is an interlocutory appeal by Appellant City of Denton from the trial

court=s denial of its motion for a traditional and a no-evidence summary judgment

based on the City‘s assertion that governmental immunity bars the premise




      1
       See Tex. R. App. P. 47.4.
liability suit filed against it by Appellee Rachel Paper.2 In three issues, the City

claims that the trial court erred by denying its motion for summary judgment

because the defect at issue was not, as a matter of law, a special defect;

because the City conclusively proved that it had no actual knowledge of the

premise defect; and because Paper failed to raise fact issues regarding the City‘s

actual knowledge of, and Paper‘s lack of knowledge of, the premise defect. For

the reasons set forth below, we will affirm the trial court‘s denial of summary

judgment for the City.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On March 19, 2007, the City‘s wastewater department began installation of

a sewer tap and manhole on a section of Willowwood Street in Denton. City

employees excavated a portion of the street by cutting a large area out of the

street, and they placed barricades around the construction area. They installed

the sewer tap on March 22, 2007, and packed the excavated cut-out area with

backfill so that it was street level again. The barricades were removed that day.

The next day, City employees returned to raise the sewer line, which had sunk

from the backfill. They raised the sewer line by packing additional backfill under


      2
       See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Vernon 2008)
(providing for interlocutory appeals from denials of pleas to the jurisdiction by
governmental units); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338,
349 (Tex. 2004) (―[A]n interlocutory appeal may be taken from a refusal to
dismiss for want of jurisdiction whether the jurisdictional argument is presented
by plea to the jurisdiction or some other vehicle, such as a motion for summary
judgment.‖).


                                     2
it, and then they repacked the excavated cut-out area of the street until it was

level. At that point, the installation of the sewer tap and manhole was complete.

      A little over a week later, on April 1, 2007, Paper was riding her bicycle on

Willowwood Street when her bicycle‘s tire entered a sunken area of the street

where the street had been cut away and excavated for installation of the sewer

tap. After entering the sunken area of the street, Paper‘s front bicycle tire struck

the hard edge of the existing roadway that had not been cut away and that had

remained at street level. She flipped over the front of her bicycle and landed on

her chin and hands. The fall knocked out several of her teeth. There were no

barricades around the area.

      Later that day, Paper‘s friend Joseph Wilson went to the accident site and

took photographs of the condition of the street. Wilson rested a mechanical

pencil ―right up against the wall of the hole‖ where the sunken portion of the cut-

out area abutted the uncut, hard edge of the existing street and took photographs

showing the pencil sticking out to demonstrate the depth of the hole. Wilson later

testified at his deposition that the hole was ―a few inches, a couple of inches‖ or

―almost a pencil length deep.‖ The photographs show the ―wall of the hole,‖ a

steep drop-off or edge, existing between the uncut portion of the street at street

level and the sunken hole where the street had previously been cut away and

excavated.

      Paper sued the City, claiming that it was negligent and failed to warn of or

repair the dangerous condition on the street. The City filed a motion for summary

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judgment, alleging the affirmative defense of governmental immunity from suit

under the Texas Tort Claims Act (the TTCA)3 because the road condition

constituted an ordinary premise defect, rather than a special defect, and alleging

that no evidence existed that the City was actually aware of, and that Paper was

not aware of, the premise defect.       The City attached affidavits, deposition

excerpts, and the City‘s work orders for the sewer tap installation project as

evidence.   Paper filed a response and supplemental response to the City‘s

motion, countering that the street condition was a special defect and that,

alternatively, it was a premise defect of which the City had actual knowledge.

Paper attached deposition excerpts and the City‘s work orders as evidence.

After the City filed a reply, the trial court denied the City‘s motion for summary

judgment, specifically ruling that the street condition was a special defect. The

City appealed.

                            III. STANDARD OF REVIEW

      We review a summary judgment de novo. 4 Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

      3
       See Tex. Civ. Prac. & Rem. Code Ann. § 101.001–.109 (Vernon 2011).
      4
       Because, as explained in greater detail below, we do not reach the City‘s
no-evidence summary judgment challenges to Paper‘s ordinary premise defect
claim, we will not set forth the no-evidence summary judgment standard of
review.


                                    4
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

      Governmental immunity is an affirmative defense.        See EPGT Tex.

Pipeline, L.P. v. Harris Cnty. Flood Control Dist., 176 S.W.3d 330, 335 (Tex.

App.—Houston [1st Dist.] 2004, pet. dism‘d). A defendant is entitled to summary

judgment on an affirmative defense if the defendant conclusively proves all the

elements of the affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508–09 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ.

P. 166a(b), (c); Sipes v. City of Grapevine, 146 S.W.3d 273, 279 (Tex. App.—

Fort Worth 2004), rev’d in part, 195 S.W.3d 689 (Tex. 2006). To accomplish this,

the   defendant-movant   must   present    summary   judgment    evidence   that

conclusively establishes each element of the affirmative defense. See Chau v.

Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

           IV. SPECIAL DEFECT: WAIVER OF GOVERNMENTAL IMMUNITY

                  A. Governmental Immunity and the TTCA

      Generally, sovereign immunity protects the state against lawsuits for

money damages unless the state has consented to suit. See Mission Consol.

Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Tex. Dep’t of

Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Governmental

immunity operates like sovereign immunity to afford similar protection to

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subdivisions of the state, including counties, cities, and school districts, unless

that immunity has been waived. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638

(Tex. 2004); San Antonio Indep. Sch. Dist. v. McKinney, 936 S.W.2d 279, 283

(Tex. 1996).    The TTCA establishes a limited waiver of this immunity and

authorizes suits to be brought against governmental units in certain narrowly-

defined circumstances.    Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 846

(Tex. 2009); see Tex. Civ. Prac. & Rem. Code Ann. § 101.021.

                   B. Special Defects and Premise Defects

      The TTCA recognizes personal injury claims arising from both premise and

special defects, and the proof required to establish a breach of the duties owed

for each claim depends on the type of defect alleged. See Tex. Civ. Prac. &

Rem. Code Ann. § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.

2008); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237

(Tex. 1992) (op. on reh‘g). Under either theory, the claimant must prove the

condition created an unreasonable risk of harm. Payne, 838 S.W.2d at 237.

      If a claim involves a premise defect under section 101.022(a) of the TTCA,

the governmental unit owes to 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 Ann. § 101.022(a).           Under a

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

knowledge of a condition that created an unreasonable risk of harm, and also

that the licensee did not have actual knowledge of that same condition. Payne,


                                    6
838 S.W.2d at 237.     But if a claim involves a special defect under section

101.022(b), a more lenient invitee standard applies. York, 284 S.W.3d at 847;

Payne, 838 S.W.2d at 237. Under an invitee standard, a plaintiff need prove only

that the governmental unit should have known of a condition that created an

unreasonable risk of harm. York, 284 S.W.3d at 847; Payne, 838 S.W.2d at 237.

      The TTCA does not define the term ―special defect,‖ but it does give

guidance by likening special defects to ―excavations or obstructions on highways,

roads, or streets.‖ Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); York, 284

S.W.3d at 847; Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 n.11 (Tex. 2009)

(―[T]he statutory test is simply whether the condition is of the same class as an

excavation or obstruction.‖). Conditions can be special defects like excavations

or obstructions ―‗only if they pose a threat to the ordinary users of a particular

roadway.‘‖ Beynon, 283 S.W.3d at 331 (quoting Payne, 838 S.W.2d at 238 n.3).

The supreme court recently explained,

      Webster’s defines an excavation as a cavity and an obstruction as
      an impediment or a hindrance, but not every hole or hindrance is
      special; otherwise, the statutory limitation on the government‘s duty
      would amount to little. We have described the class of conditions
      intended by the statute as those which, because of their size or
      ―some unusual quality outside the ordinary course of events,‖ pose
      ―‗an unexpected and unusual danger to ordinary users of
      roadways.‘‖ Thus, for example, a layer of loose gravel on the
      roadway surface, while a hindrance, is not a special defect because
      it does not ―physically block the road,‖ or ―present the same type of
      ‗unexpected and unusual danger to ordinary users of roadways‘‖
      intended by the statute. But ―a sizeable mound of gravel . . . left on
      the roadway‖ could be a special defect. A two- to three-inch
      difference in elevation between lanes is not a special defect, Reed,
      258 S.W.3d at 622 (―[T]here is nothing unusually dangerous about a

                                    7
      slight drop-off between traffic lanes in the roadway. Ordinary
      drivers, in the normal course of driving, should expect these slight
      variations on the road caused by normal deterioration.‖ (citation
      omitted)), nor is a sharp turn in a road construction detour, State v.
      Rodriguez, 985 S.W.2d 83, 86 (Tex. 1999) (per curiam) (―This
      detour‘s sharp turn and other alleged design flaws did not
      unexpectedly and physically impair a vehicle‘s ability to travel on the
      roadway in the same way as a ditch in the road or a ten-inch drop
      along the shoulder.‖)[, abrogated on other grounds by Beynon, 283
      S.W.3d at 329], nor is a stopped car, State v. Burris, 877 S.W.2d
      298, 299 (Tex. 1994) (per curiam) (―A fully operational motor vehicle,
      making an illegal movement or momentarily stopped on a highway,
      is neither a defect in the highway premises nor an excavation or
      obstruction or similar condition.‖). But ―a ditch across the highway‖
      is a special defect, [Cnty. of Harris v.] Eaton, 573 S.W.2d [177,] 178–
      79 [(Tex. 1978)] (―Witnesses described the hole as oval shaped,
      varying at places from six to ten inches in depth and extending over
      ninety percent of the width of the highway. The hole was four feet
      wide at some points and nine feet wide at others.‖), as is a large sign
      lying face down in the middle of the road, State v. Williams, 940
      S.W.2d 583, 585 (Tex. 1996) (per curiam).

Reyes v. City of Laredo, No. 09-1007, 2010 WL 4909963, at *2 (Tex. Dec. 3,

2010) (some internal citations omitted).

      Some characteristics of defects that fall into the same class as excavations

and obstructions include, for example, the size of the dangerous condition, see

Eaton, 573 S.W.2d at 179, some unusual quality outside the ordinary course of

events, see Reed, 258 S.W.3d at 622, something that ―unexpectedly and

physically impair[s] a car‘s [or bicycle‘s] ability to travel on the road,‖ see

Rodriguez, 985 S.W.2d at 85, and an unexpected and unusual danger to

ordinary users of roadways, see Payne, 838 S.W.2d at 238. York, 284 S.W.3d at

847. We must look to ―the objective expectations of an ‗ordinary user.‘‖ Beynon,

283 S.W.3d at 332. A bicyclist is an ordinary user of a roadway and enjoys the

                                    8
same rights to use public roads as do motorists. See Hindman v. State Dep’t of

Highways & Pub. Transp., 906 S.W.2d 43, 43 (Tex. App.—Tyler 1994, writ

denied).   Whether a condition is a special defect or a premise defect is a

question of law for the court to decide. Payne, 838 S.W.2d at 238.

                         C. Defect was Special Defect

      Here, the summary judgment evidence establishes that the road defect at

issue was an almost-pencil-length-deep sunken hole that abutted with a sharp

vertical edge of the uncut, existing street; the road defect was located in the

middle of a two lane street (one lane each direction) and was caused by the

City‘s excavation of the street for installation of a sewer tap and manhole just one

week earlier. Unlike the cases relied on by the City, the defect here was more

than a slight variation between lanes and was not caused by normal

deterioration, cf. Reed, 258 S.W.3d at 621–22 (holding that two-inch drop-off

between traffic lanes was not unusually dangerous and that such ―slight

variations on the road caused by normal deterioration‖ should be expected); it

was more than a minor flaw in a road shoulder, cf. Hindman, 906 S.W.2d at 43–

45 (holding that bump on road shoulder was an imperfection that cyclists could

and should anticipate when riding on the shoulder of a road); and it was more

than a worn or eroded area in the road, cf. City of El Paso v. Bernal, 986 S.W.2d

610, 611 (Tex. 1999) (holding that eroded, worn sidewalk was not an unexpected

and unusual danger). The defect was not analogous to a pothole encountered in

the ordinary course of events; rather, the almost-pencil-length-deep sunken

                                     9
hole‘s intersection with the sharp, vertical edge of the existing, uncut area of the

street was an unexpected and unusual danger that had existed for less than a

week, that was the result of the City‘s cutting a hole in the street, and that an

ordinary bicyclist of the road, like Paper, would not expect to encounter. See City

of El Paso v. Chacon, 148 S.W.3d 417, 425 (Tex. App.—El Paso 2004, pet.

denied) (―This defect was a hole, located where a pedestrian would normally

walk and not expect to encounter it.‖); cf., e.g., Villarreal v. State, 810 S.W.2d

419, 422 (Tex. App.—Dallas 1991, writ denied) (holding that median cut was

long-standing modification in roadway and, consequently, not a special defect);

Tarrant Cnty. Water Control & Improvement Dist. No. 1 v. Crossland, 781 S.W.2d

427, 433 (Tex. App.—Fort Worth 1989, writ denied) (explaining that special

defect must be something out of the ordinary course of events rather than a long-

standard, routine, or permanent defect).

      The City focuses almost exclusively on the size of the road defect, arguing

that ―the alleged dangerous condition is a depression of a few inches in the

roadway.‖ But size is only one consideration to take into account in determining

whether the defect is in the same class as an excavation or obstruction. See City

of Weston v. Gaudette, 287 S.W.3d 832, 837 (Tex. App.—Dallas 2009, no pet.).

And contrary to the City‘s assertion, the defect was more than a simple

―depression‖ in the road; it was a sunken depressed hole that abutted a steep

―wall‖ or ledge of the uncut street. Although the summary judgment record does

not include the exact measurements of the defect, the color photographs taken

                                     10
by Wilson, which are attached to his deposition excerpts as part of the City‘s

summary judgment evidence, show that the cut-out portion of the road extends

several feet from the shoulder of the road out into the right lane and show the

sharp, steep drop-off from the road grade to a hole several inches below street

level. Wilson testified at his deposition that he rested a mechanical pencil ―right

up against the wall of the hole‖ and that the hole was ―a few inches, a couple of

inches,‖ ―almost a pencil length deep.‖ Wilson‘s photographs show the ―wall‖ of

the hole with a pencil sticking up on the edge. The deepest part of the hole

(where the pencil was resting against the edge) is located several feet into the

right lane from the shoulder, where ordinary users of the road, including

bicyclists, would travel.   See Chacon, 148 S.W.3d at 425; cf. Beynon, 283

S.W.3d at 332 (holding that floodgate arm located off the road did not pose threat

to ordinary users of road). And Paper could not have navigated around the

sunken area and subsequent sharp edge without crossing into the oncoming lane

of traffic.

       We hold that the defect in this case, which was caused by the City‘s

excavation of and cutting away the street about a week prior to Paper‘s accident

and which was an ―almost pencil length deep‖ sunken area of a street abutting a

steep, vertical edge of the uncut, existing street was in the same kind or class as

an excavation or obstruction and posed an unexpected and unusual danger to

ordinary users (bicyclists) of the roadway such that it constituted a special defect.

See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). Thus, we hold that the trial


                                     11
court did not err by determining that the defect was a special defect. We overrule

the City‘s first two issues to the extent that it argues that the defect was not a

special defect as a matter of law and that the trial court erred by so finding.

        Broadly construing the City‘s entire brief,5 the City does not assert that

Paper failed to present any evidence of, or that the City conclusively negated the

element of, the City‘s knowledge on Paper‘s special defect claim. See York, 284

S.W.3d at 847; Payne, 838 S.W.2d at 237. Instead, the remainder of the City‘s

issues, arguments, and analysis challenge Paper‘s ordinary premise defect

claim. Because we have held that the trial court did not err by determining that

the road condition constituted a special defect, we need not address the

remainder of the City‘s issues asserting that it was entitled to summary judgment

because Paper had no claim for an ordinary premise defect. See Tex. R. App. P.

47.1.




        5
       The City‘s ―Issues Presented‖ in its brief do not match the headings and
analysis provided in the remainder of its brief.


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                                V. CONCLUSION

      Having overruled the City‘s dispositive issues, we affirm the trial court=s

order denying summary judgment for the City.




                                                 SUE WALKER
                                                 JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

DELIVERED: May 19, 2011




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