                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                                __________________

                                NO. 09-19-00451-CV
                                __________________

                     THE CITY OF BEAUMONT, Appellant

                                          V.

                              RAUL ISERN, Appellee

__________________________________________________________________

                On Appeal from the 136th District Court
                       Jefferson County, Texas
                      Trial Cause No. D-204,407
__________________________________________________________________

                           MEMORANDUM OPINION

      In one issue on appeal, the City of Beaumont (“the City”) argues that the trial

court erred in denying its plea to the jurisdiction. Raul Isern contends that his live

pleading is adequate to waive the City’s sovereign immunity, and if the issue is one

of pleading insufficiency, he should be afforded an opportunity to amend his

pleading. We affirm the trial court’s order denying the City’s plea to the jurisdiction

on Isern’s premises defect claim, and reverse and render as to all Isern’s other claims.



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                                      Background

      In August 2019, Isern filed suit against the City for injuries he allegedly

sustained when he struck a water valve street cover on the roadway while riding his

bicycle. According to Isern, he was upended and sustained severe and disabling

personal injuries due to the unreasonably dangerous condition of the roadway, and

that despite having had actual and/or constructive knowledge of the dangerous

condition, the City failed to eliminate, reduce, or warn of said condition. Isern

alleged that the City failed to properly inspect, repair, and maintain its public streets,

and his personal injuries were caused by the City’s wrongful act or omission or the

negligence of a City employee acting within the scope of his employment. Isern

further alleged that the incident was caused by a condition or use of tangible personal

or real property, and if the City were a private person, it would be liable under Texas

law. According to Isern, the City has waived immunity and is liable under the Texas

Tort Claims Act (TTCA).

      The City filed a plea to the jurisdiction, arguing that Isern cannot establish a

premises liability claim, show that his injuries were caused by the use of tangible

personal property or real property by a City employee, or maintain a general

negligence claim. The City argued that Isern failed to assert a premises liability claim

under the licensee standard, because Isern failed to show how the valve cover created

an unreasonable risk of harm. The City further argued that Isern failed to (1) establish

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that it had actual and/or constructive knowledge that the valve cover in its existing

state created an unreasonable risk of harm, (2) asserted that the City’s actions or

failure to act were the proximate cause of Isern’s injuries, and (3) alleged facts

supporting a conclusion of a premises defect against the City. According to the City,

the valve cover was not cracked, damaged, or concealed in the roadway, and the

valve cover does not qualify as a special defect because it is a permanent fixture that

only creates a slight elevation in the roadway.

      The City also argued that Isern failed to show that his injuries were caused by

a condition or use of tangible personal or real property by a City employee, because

the City’s employees were not putting or bringing the valve into action or service

when Isern was injured. According to the City, Isern’s claims of general negligence

are also insufficient to support a premises defect claim, because Isern may not assert

a general negligence theory after asserting a premises liability claim. The City

argued that the trial court should dismiss Isern’s claims against the City, because

Isern failed to plead facts establishing the City’s waiver of immunity for each cause

of action.

      In his reply to the City’s plea to the jurisdiction, Isern argued that his first

amended original petition alleges a cause of action that implicates the waiver of the

City’s governmental immunity under the TTCA. Isern’s amended petition alleges

that the City waived liability under the TTCA and that the condition of the roadway

                                          3
that caused the incident constituted (1) an unreasonably dangerous condition that

posed an unreasonable risk of harm, (2) a special defect, and a (3) premises defect.

According to Isern, the City allowed the condition of the roadway to deteriorate and

become unsafe, causing the valve cover, which was once “flush” or level with the

street, to protrude from the buckled, cracked, split, uneven, and unsafe pavement.

Isern alleged that the City had actual and constructive knowledge of the

unreasonably dangerous condition and defect, because when the City repaved the

area in 2016, it left the valve cover above pavement grade in violation of its own

specifications. According to Isern, the City had received prior reports of injuries and

the potential danger of the condition, and the City was negligent in failing to

eliminate, reduce, or warn of the condition. Isern alleged that the City’s ordinary and

gross negligence proximately caused the incident, and the City failed to warn him of

the dangerous condition or to make the condition reasonably safe. Isern further

alleged that the incident was caused by a condition or use of tangible personal or real

property for which the City would be liable. Isern maintained that he was unaware

of the dangerous condition, which presented an unexpected and unusual danger to

him, and the condition involved a significant and substantial change in the road’s

elevation and was not a longstanding or permanent feature.

      The trial court conducted a hearing on the City’s plea, and after hearing the

parties’ arguments and reviewing Isern’s pleadings, the trial court found that the

                                          4
pleadings were sufficient and that they fit within the statutory exceptions to the

sovereign immunity provisions outlined by the Texas Legislature. The trial court

denied the City’s plea to the jurisdiction. The City appealed.

                                       Analysis

      In its sole issue, the City complains that the trial court erred in denying its plea

to the jurisdiction. The City argues that Isern cannot maintain a claim against the

City for the use or misuse of tangible personal or real property because the City’s

employees were not installing or using the valve cover when Isern struck it. The City

further argues that Isern cannot establish a premises defect or special defect claim,

and that Isern’s claims of general negligence are insufficient to overcome the City’s

immunity. Isern contends that he has clearly and specifically pleaded the City’s

waiver of immunity under the TTCA.

      A plea to the jurisdiction is a dilatory plea, which governmental entities may

use to challenge a court’s power to resolve the merits of a plaintiff’s claims. See

Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Generally, trial

courts do not possess subject-matter jurisdiction over a suit against a governmental

entity unless the Legislature has enacted a statute waiving the entity’s immunity for

the type of claim the plaintiff has asserted in the suit. See Fed. Sign v. Tex. S. Univ.,

951 S.W.2d 401, 403 (Tex. 1997); Duhart v. State, 610 S.W.2d 740, 741 (Tex. 1980).

In cases involving torts, the Legislature waived the immunity that governmental

                                           5
entities, such as municipalities, otherwise enjoy if the plaintiff’s claim is one that

falls within the requirements of the statutory waiver. See Tex. Civ. Prac. & Rem.

Code Ann. §§ 101.021-.029. Section 101.025 of the TTCA allows a plaintiff to sue

a governmental entity for damages if the requirements in the TTCA apply to the

plaintiff’s claim. See id. § 101.025.

       “When a plea to the jurisdiction challenges the pleadings, we determine if the

plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction to

hear the case, construing the pleadings liberally in favor of the plaintiff and

considering the plaintiff’s intent.” Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477,

486 (Tex. 2018). “Whether a pleader has alleged facts that affirmatively demonstrate

a trial court’s subject matter jurisdiction is a question of law reviewed de novo.” Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the

plaintiff’s pleadings fail to contain sufficient facts that affirmatively demonstrate the

trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in

jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be given

an opportunity to amend. Id. at 226-27. If the pleadings affirmatively negate the

existence of jurisdiction, we may grant the plea to the jurisdiction and dismiss the

plaintiff’s suit without allowing the plaintiff the opportunity to amend. Id. at 227.

       We first determine whether Isern’s pleadings are sufficient to raise a claim

for use of property within the TTCA’s purview. The City argues that Isern cannot

                                           6
maintain a claim for the use or misuse of tangible personal or real property because

the City’s employees were not installing or using the valve cover when Isern struck

it. Isern maintains that he clearly and specifically pleaded the City’s waiver of

immunity under section 101.021(2). See Tex. Civ. Prac. & Rem. Code Ann. §

101.021(2).

      The TTCA waives a municipality’s immunity from suits if the suit arose from

a condition or the municipality’s use of tangible personal or real property, and the

municipality was engaged in a governmental function when the plaintiff’s injury

occurred. Id. §§ 101.021(2), 101.0215(a). Additionally, for the use-of-property

waiver to apply, a plaintiff must show that the municipality “would, were it a private

person, be liable to the claimant according to Texas law.” Id. § 101.021(2). The term

“use” in section 101.021 of the TTCA means “‘to put or bring into action or service;

to employ for or apply to a given purpose.’” Tex. Dep’t of Criminal Justice v. Miller,

51 S.W.3d 583, 588 (Tex. 2001) (quoting Tex. Nat. Res. Conservation Comm’n v.

White, 46 S.W.3d 864, 869 (Tex. 2001)). “[M]ere involvement of tangible personal

property in an injury will not, in and of itself, waive liability.” Tex. Tech Univ.

Health Sci. Ctr. v. Jackson, 354 S.W.3d 879, 884 (Tex. App.—El Paso 2011, no

pet.). The tangible personal property must do more than merely furnish the condition

that makes the injury possible. Id. “A plaintiff must show that the tangible personal

property was the instrumentality of harm.” Id. By its express language, the TTCA

                                          7
limits the waiver of sovereign immunity to injuries proximately caused by a

condition or use of personal property. Id. at 885; see also Tex. Civ. Prac. & Rem.

Code Ann. § 101.021(2). To state such a claim, the injury must be contemporaneous

with the use of the property and using that property must have actually caused the

injury. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 388-89 (Tex. 2016). We

conclude that Isern’s pleadings fail to allege facts that affirmatively demonstrate that

his injuries arose from the City’s use of tangible personal property. See Tex. Civ.

Prac. & Rem. Code Ann. § 101.021(2); Sampson, 500 S.W.3d at 389; Jackson, 354

S.W.3d at 884.

       Next, we determine whether Isern’s pleadings are sufficient to raise a claim

for a premises defect within the TTCA’s purview. The City contends that Isern failed

to meet his burden of proving every element of a premises defect claim. Isern argues

that he specifically pleaded that the City failed to warn about the condition despite

having had actual knowledge that the condition was both unreasonably dangerous

and posed an unreasonable risk of harm, and Isern also pleaded that he was unaware

and had no knowledge of the dangerous condition. Isern further pleaded that the

condition was not a longstanding or permanent fixture of the roadway, and that the

incident was proximately caused by the City’s negligence when it repaved the area

and left the valve cover above pavement grade. According to Isern, the dispute

concerns the physical characteristics of the defect. Isern contends that the defect

                                           8
violates the City’s own internal specifications as to what constitutes a safe condition,

and the defect is a condition that unexpectedly and physically impaired his and other

ordinary users’ ability to travel on the road, creating an unexpected and unusual

danger. According to Isern, the City had a duty to make the condition reasonably

safe or to adequately warn of the dangerous condition, and Isern maintains that he

pleaded the existence and breach of that duty.

      The TTCA provides a limited immunity waiver for tort claims arising from

either a premises defect or a special defect. Tex. Civ. Prac. & Rem. Code Ann. §

101.022(a), (b). Generally, premises defects are defined as defects or dangerous

conditions arising from conditions of a premises, while special defects, a subset of

premises defects, include conditions such as obstructions on a street. Univ. of Tex.

at Austin v. Sampson, 488 S.W.3d 332, 338-39 (Tex. App.—Austin 2014), aff’d, 500

S.W.3d 380. If the alleged condition is a premises defect, the governmental unit

owes the plaintiff the duty of care that a private landowner would owe a licensee,

and that duty requires that the City (1) not injure the licensee by willful, wanton, or

grossly negligent conduct, and (2) use ordinary care to warn of or make reasonably

safe a dangerous condition of which the City was aware and the licensee was not.

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

1992); see Tex. Civ. Prac. & Rem. Code. Ann. § 101.022(a). If the alleged condition

is a special defect, the City owes the plaintiff the same duty of care that a private

                                           9
landowner owes an invitee, and the City must use ordinary care to reduce or

eliminate an unreasonable risk of harm about which the City knew or should have

known. Payne, 838 S.W.2d at 237; see Tex. Civ. Prac. & Rem. Code. Ann. §

101.022(b). Whether a condition is a premises defect or a special defect is a question

of law that we review de novo. Payne, 838 S.W.2d at 238.

      Under the TTCA, an item of tangible personal property may create a condition

of the premises, resulting in a premises defect claim. See Sampson, 500 S.W.3d at

389. In a defective condition claim, there must be an allegation of defective or

inadequate property, and that defect must have posed a hazard in the intended and

ordinary use of the property. Id. at 388. Generally, a licensee asserting a premises-

defect claim must show that (1) a condition of the premises created an unreasonable

risk of harm to the licensee, (2) the owner actually knew of the condition, (3) the

licensee did not actually know of the condition, (4) the owner failed to exercise

ordinary care to protect the licensee from danger, and (5) the owner’s failure was a

proximate cause of injury to the licensee. Payne, 838 S.W.2d at 237; Cty. of

Cameron v. Brown, 80 S.W.3d 549, 554 (Tex. 2002). To prove the actual-knowledge

element, the licensee must show that the owner actually knew of a dangerous

condition when the accident occurred, as opposed to constructive knowledge which

can be established by facts or inferences that a dangerous condition could develop

over time. City of Corsicana v. Stewart, 249 S.W.3d 412, 413-15 (Tex. 2008). In

                                         10
determining actual knowledge that a condition presents an unreasonable risk of

harm, courts generally consider whether the premises owner had received reports of

prior injuries or of the potential danger presented by the condition. Sampson, 500

S.W.3d at 392.

      Isern alleged that the City had received prior reports of accidents at the

location where the incident occurred. In its response, the City produced no evidence

of its lack of knowledge of the condition. We conclude that Isern’s pleadings are

sufficient to meet his burden of showing a waiver of sovereign immunity. We further

conclude that the trial court correctly denied the City’s plea to the jurisdiction as to

Isern’s premises defect claim.

      Isern also alleges that the valve cover is a special defect. The City argues that

Isern cannot establish a special defect claim, because the valve cover creates a slight

elevation in the roadway and only causes a “mere bump” in the road, and road bumps

are not considered special defects. The City further argues that the valve cover

cannot qualify as a special defect because it is a permanent fixture in the roadway.

      In a claim alleging a special defect, an invitee must prove that (1) a condition

of the premises created an unreasonable risk of harm to the invitee, (2) the owner

knew or reasonably should have known of the condition, (3) the owner failed to

exercise ordinary care to protect the invitee from danger, and (4) the owner’s failure

was a proximate cause of the injury to the invitee. Payne, 838 S.W.2d at 237. Special

                                          11
defects are defects such as “excavations or obstructions on highways, roads, or

streets[,]” and courts are to construe special defects to include defects of the same

kind or class as the ones expressly mentioned in the statute. See Payne, 838 S.W.2d

at 238; see also Tex. Civ. Prac. & Rem. Code. Ann. § 101.022(b); Cty. of Harris v.

Eaton, 573 S.W.2d 177, 180 (Tex. 1978). We do not agree that in creating an

exceptional class of road defects for which the State carries a higher degree of

liability the Legislature meant to include every pothole or bump capable of upsetting

a cyclist, or to impose a duty to warn of such conditions. See Hindman v. State Dept.

of Highways & Pub. Transp., 906 S.W.2d 43, 46 (Tex. App.—Tyler 1994, writ

denied).

      We agree with the City that the valve cover is not a special defect. Construing

the valve cover to be an excavation or obstruction which presents an unexpected and

unusual danger to the ordinary user of the roadway strains the definition of those

conditions. See Payne, 838 S.W.2d at 238-39; see also Tex. Civ. Prac. & Rem. Code

Ann. § 101.022(b). Because a special defect must have some unusual quality outside

the ordinary course of events, we cannot conclude that the valve cover, which

presents only a slight variation on the road, is a special defect. See City of Dallas v.

Reed, 258 S.W.3d 620, 621-22 (Tex. 2008) (concluding that a two-inch difference

in elevation between traffic lanes is not a special defect as a matter of law).

Accordingly, we conclude that the valve cover is not a defect of the same kind or

                                          12
class as the excavations or obstruction the statute contemplates. See id.; City of

Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997); Payne, 838 S.W.2d at 238-

39; Eaton, 573 S.W.2d at 179-80. We further conclude that because Isern failed to

plead a special defect claim, section 101.022(b) of the TTCA does not waive the

City’s immunity from suit. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b).

      Lastly, we address the City’s argument that Isern’s negligence claims are

insufficient to overcome the City’s immunity. The City argues that section 101.022

does not create a general negligence claim, and that a plaintiff is prohibited from

bringing a general negligence claim once he has asserted a premises defect claim.

The record shows that Isern pleaded that the City was negligent because it failed to

eliminate, reduce, or warn of the condition, and to properly inspect, repair, and

maintain the public street where the condition was located. Isern alleged that the City

failed to use ordinary care to either warn him of the dangerous condition or to make

the dangerous condition reasonably safe, and that the City’s negligence, which

constituted gross negligence, was the proximate cause of the incident.

      Except as provided by the TTCA, governmental entities are immune from

prosecution for negligence. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021. The

TTCA waives a municipality’s immunity for claims involving personal injuries

caused by a condition or use of tangible personal or real property. See id. §

101.021(2). We have already concluded that Isern’s pleadings fail to allege facts that

                                          13
affirmatively demonstrate that his injuries arose from the City’s use of tangible

personal property. See id.; Sampson, 500 S.W.3d at 389; Jackson, 354 S.W.3d at

884. We have also concluded that Isern has failed to show that his claim arises from

a special defect. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022. The TTCA’s

premises liability provision imposes heightened requirements for liability, which

cannot be avoided by recasting a premises defect claim as one for general

negligence. Sampson, 500 S.W.3d at 385-86. Because Isern cannot establish an

independent waiver of sovereign immunity under the TTCA, he cannot plead a

general negligence claim to circumvent the true nature of his claim. See Sampson,

500 S.W.3d at 389; Miranda, 133 S.W.3d at 233; City of San Antonio v. Parra, 185

S.W.3d 61, 64 (Tex. App.—San Antonio 2005, no pet.). Accordingly, we conclude

that Isern’s negligence claims are insufficient to overcome the City’s immunity.

      Having concluded that the trial court correctly denied the City’s plea to the

jurisdiction as to Isern’s premises defect claim, we affirm the trial court’s order

denying the City’s plea in part. Because the trial court correctly denied the City’s

plea to the jurisdiction as to that claim only, we reverse the trial court’s order denying

the City’s plea in part, and render judgment dismissing Isern’s remaining claims

against the City for lack of subject-matter jurisdiction.




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      AFFIRMED IN PART; REVERSED AND RENDERED IN PART.



                                            ______________________________
                                                   STEVE McKEITHEN
                                                       Chief Justice




Submitted on March 12, 2020
Opinion Delivered August 13, 2020

Before McKeithen, C.J., Kreger and Horton, JJ.




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