REVERSE, RENDER, and DISMISS; and Opinion Filed July 8, 2019.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-18-00753-CV

                         CITY OF RICHARDSON, TEXAS, Appellant
                                         V.
                                 VAL PHELPS, Appellee

                        On Appeal from the County Court at Law No. 2
                                    Dallas County, Texas
                            Trial Court Cause No. CC-17-01642-B

                              MEMORANDUM OPINION
                         Before Justices Brown, Schenck, and Pedersen III
                                     Opinion by Justice Brown
       Val Phelps sued the City of Richardson, Texas, after he was injured while riding his bicycle

in a designated bike lane. Phelps alleged there was a hazardous condition in the bike lane that was

either a premises defect or a special defect. The City filed a plea to the jurisdiction, asserting that

governmental immunity barred Phelps’s claims. In this interlocutory appeal, the City challenges

the trial court’s denial of its plea. We conclude the City established as a matter of law that its

immunity was not waived. Accordingly, we reverse and render judgment dismissing the case for

lack of subject matter jurisdiction.

                                           BACKGROUND

       On the morning of October 23, 2016, Phelps was riding his bicycle in the City with a group

of about eighteen cyclists in a designated bike lane on Owens Boulevard. Pictures show the bike
lane was positioned in between a lane to the right for parked cars and a lane to the left for moving

vehicles. Phelps alleged there was a “lip or ‘heave’” in the bike lane which ran in the direction in

which the cyclists were traveling. As a result, the left side of the bike lane was higher than the

right. Phelps had not been on the road before and was unaware of the lip. He moved from right

to left to avoid a parked car and was “instantly thrown to the ground and injured.” Phelps does

not remember the crash or the few minutes leading up to it. Phelps alleged the City was liable

under two alternative theories: (1) the condition of the bike lane was a premises defect, or (2) the

condition constituted a special defect. Phelps sought to recover for property damage among other

things.

           The City filed a plea to the jurisdiction. The City asserted the alleged defect was not a

special defect and asserted it did not have actual knowledge of the condition, which is required for

a premises defect.               In support of its plea, the City submitted evidence, including Phelps’s

deposition and testimony from City employees. In response, Phelps acknowledged that had the

defect been on a normal street, it would not be a special defect. He argued that because the defect

was in a bike lane, it was a special defect because it created an unexpected and unusual condition

for cyclists. He also asserted the City had actual knowledge of the premises defect based on

previous repairs it made to the area and because of a previous complaint made by a cyclist named

Mark Ramsey. The trial court denied the City’s plea to the jurisdiction.1 The City raises four

issues challenging the trial court’s ruling.

                                                    GOVERNMENTAL IMMUNITY

           Governmental entities are immune from suit absent legislative consent. Tarrant Cty. v.

Bonner, No. 18-0431, 2019 WL 2256509, at *6 (Tex. May 24, 2019). If a governmental unit has


     1
        The City initially filed a document titled, “Defendant’s Initial Plea to the Jurisdiction and Tex. R. Civ. P. Rule 69 Pleading” in which it
raised its argument regarding the lack of a special defect. The City later filed a motion titled, “Defendant’s Dispositive Motion and Tex. R. Civ. P.
Rule 69 Supplemental Pleading.” This second motion addressed both the special defect and the premises defect and made clear it was intended as
a dilatory plea seeking dismissal of the case for lack of subject matter jurisdiction. The order from which the City appeals denied its “Dispositive
Motion.” We refer to the City’s motion as a plea to the jurisdiction.
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immunity from suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392

S.W.3d 88, 95 (Tex. 2012). The City’s immunity from suit for tort claims is waived to the extent

the tort claims act creates liability. TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a). The Act

provides a limited waiver of immunity for claims arising from a condition or use of real property.

Id. § 101.021(2); Zaidi v. N. Tex. Tollway Auth., No. 05-17-01056-CV, 2018 WL 6426798, at *2

(Tex. App.—Dallas Dec. 6, 2018, no pet.) (mem. op.). The Act recognizes potential liability for

two types of dangerous conditions of real property, premises defects and special defects. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022; Chambers v. Tex. Dep’t of Transp., No. 05-11-00519-

CV, 2012 WL 1744706, at *3 (Tex. App.—Dallas May 16, 2012, pet. denied) (mem. op.). The

Act imposes different standards of care depending on whether the condition is a premises defect

or a special defect. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022; Zaidi, 2018 WL 6426798, at

*3. Whether a condition is a premises or special defect is a question of law. State v. Burris, 877

S.W.2d 298, 299 (Tex. 1994); Chambers, 2012 WL 1744706, at *3.

        A governmental unit may assert its immunity from suit through a plea to the jurisdiction

which challenges the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep.

Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the trial court’s ruling on a plea

to the jurisdiction de novo. City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d

566, 575 (Tex. 2018). Here, the City’s jurisdictional plea challenged the existence of jurisdictional

facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional

summary judgment. Alamo Heights, 544 S.W.3d at 771. To avoid dismissal, a plaintiff must raise

at least a genuine issue of material fact to overcome the challenge to the trial court’s subject matter

jurisdiction. Id. In determining whether a material fact issue exists, we must take as true all

evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts

in the plaintiff’s favor. Id.

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Special Defect

         In its first issue, the City contends the trial court erred in denying the plea to the jurisdiction

regarding Phelps’s special defect claim because the alleged defect was not a special defect. We

agree.

         If a claim arises from a special defect, the governmental unit owes the same duty to warn

that a private landowner owes an invitee. Chambers, 2012 WL 1744706, at *4. That duty requires

a premises owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created

by a condition of which the owner is or reasonably should be aware. Id. The Legislature has not

defined “special defect,” but likens it to conditions “such as excavations or obstructions on

highways, roads, or streets.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). The supreme

court has construed special defects to include other defects of the same kind or class as the two

expressly mentioned in the statute. See Texas Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex.

2009) (per curiam). In determining whether a particular condition is like an excavation or

obstruction, we consider the following: (1) the size of the condition; (2) whether the condition

unexpectedly and physically impairs an ordinary user’s ability to travel on the road; (3) whether

the condition presents some unusual quality apart from the ordinary course of events; and (4)

whether the condition presents an unexpected and unusual danger. Univ. of Tex. at Austin v. Hayes,

327 S.W.3d 113, 116 (Tex. 2010) (per curiam).

         The class of special defects contemplated by the statute is narrow. City of Denton v. Paper,

376 S.W.3d 762, 766 (Tex. 2012) (per curiam); Hayes, 327 S.W.3d at 116. It does not include

common potholes or similar depressions in the roadway. Paper, 376 S.W.3d at 766. Such

irregularities in the roadway are unfortunately to be expected. Id. Typically they will not present

an unusual danger to the traveler. Id. While something like a “ditch across the highway” is a

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special defect, a two-inch drop in the roadway is not. Hayes, 327 S.W.3d at 116 (citing Harris

Cty. v. Eaton, 573 S.W.2d 177, 178, 180 (Tex. 1978) (oval-shaped hole, varying at places from six

to ten inches in depth and covering more than ninety percent of width of highway was special

defect)). Variations in public roadways of a few inches are not the same as the excavations or

obstructions mentioned in the Act. Paper, 376 S.W.3d at 765.

       The evidence showed that at the time of Phelps’s accident, the difference in height between

the left side of the bike lane and the right side was approximately two inches. The alleged defect

was at least twenty feet long; Phelps testified in his deposition that he was told he “went over 20

feet of crack.” Some cyclists in Phelps’s group warned of the crack. Phelps was certain he did

not hear their warnings because if he had he would have done something to avoid the crack. Phelps

stated that had he known of the defect, he could have easily avoided it. Phelps did not see the

crack because he was riding next to and behind others.

       In a case involving a motorcyclist who had an accident as he changed lanes, the supreme

court held that a two-inch difference in elevation between traffic lanes on a roadway is not a special

defect. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). We are not persuaded that the

result should be different in this case because it involves a bicyclist in a bike lane. There was no

evidence the lip presented a condition like an excavation or obstruction for cyclists. The other

cyclists with Phelps avoided the defect. Moreover, Phelps himself admitted that had he known

about the condition, he could easily have avoided it. A condition that can be easily avoided is not

in the nature of an excavation or obstruction on the roadway. See City of Austin v. Vykoukal, No.

03-16-00261-CV, 2017 WL 2062259, at *4 (Tex. App.—Austin May 10, 2017, pet. denied) (mem.

op.) (overgrown vegetation in bike lane was not special defect where vegetation could be avoided

by cyclists without leaving lane); Texas Dep’t of Transp. v. Womac, No. 13-11-00460-CV, 2012

WL 4854729, at *3–4 (Tex. App.—Corpus Christi–Edinburg Oct. 11, 2012, no pet.) (mem. op.)

                                                 –5–
(caved-in area spanning about one-third of bike lane not special defect). As a matter of law, the

alleged defect in this case was not a special defect. The trial court erred in denying the City’s plea

to the jurisdiction as to Phelps’s special defect claim. We sustain the City’s first issue.

Premises Defect

       In its third issue, the City challenges the denial of its plea to the jurisdiction regarding

Phelps’s premises defect claim. The City asserts it retains immunity because it lacked actual

knowledge of the alleged defect. Its position is that it knew of and repaired the vertical separation

in the roadway prior to Phelps’s accident and was unaware the condition had returned.

       Under the tort claims act, when a claim arises from a premises defect, 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). 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 v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016). Absent

willful, wanton, or grossly negligent conduct, a licensee must prove the following elements to

establish the breach of a duty owed to him: (1) the 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. Id. To prove actual knowledge, a licensee must show that the owner actually knew

of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous

condition could develop over time. Id. at 392. Courts generally consider whether the premises




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

condition. Reed, 258 S.W.3d at 622.

        To show it lacked actual knowledge of the condition of the bike lane at the time Phelps

was injured, the City relied on the deposition and affidavit testimony of several of its employees.

Mark Titus, the City’s transportation engineering manager, testified that to the best of his

knowledge, no one in his department drove the road regularly. Eric Robison, the City’s street

maintenance superintendent, testified that he is the person responsible for street repairs and

maintenance. Unless matters are reported to him, the City has no knowledge it can act on. Robison

had no knowledge of the defect made this basis of this lawsuit prior to the incident. Robison

reviewed the City’s records and they reflect that on October 23, 2016, any defects in the area had

been repaired sufficiently. According to Dave Carter, assistant director of development services

and transportation, if someone with the City had seen this problem before the accident, they would

have reported it to streets and had it fixed.

        The City had been aware in 2014 of a defect in the same area of the bike lane, but the City’s

evidence showed it repaired that defect prior to Phelps’s crash. The City did not have a work order

for the repair and could not pinpoint when it was done. Carter said it was “[s]ometime after the

bicycle lane was installed, late August or after in 2014.” The City repaired the hazard with an

asphalt patch. Robison believed the patch was older than the shift because the patch “coloration”

did not indicate a new patch. Carter indicated that following the complaint from cyclist Ramsey,

“streets went out and did some asphalt work.” Carter believed the work was to level vertical

separation. He stated that when they put the asphalt in, it would have been level. The pavement

had dropped since that repair was done. According to Carter, defects in roadways can happen very

gradually or overnight.




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       Phelps argues there is ample evidence the City had actual knowledge. In his response to

the City’s jurisdictional plea, he asserted that a “prior repair showed the City was aware of the

hazard where the incident occurred at least 2 years prior.” Phelps relied on a photo taken the day

of the accident that shows a “tar patch” done after the bike lane was created. He also relied on the

testimony of City employees Carter and Titus showing their awareness and repair of defects at an

earlier time. But evidence the City had repaired the bike lane prior to Phelps’s accident does not

show the City’s actual knowledge of the condition of the lane when Phelps crashed in October

2016. It shows merely the City’s knowledge of the possibility that a dangerous condition could

develop over time, which is insufficient. See Sampson, 500 S.W.3d at 392.

       Phelps also contends the City had actual knowledge of the condition based on the previous

complaint from Ramsey. Over two years before Phelps’s accident, on July 16, 2014, Ramsey e-

mailed Carter about the bike lane on Owens Boulevard and attached a photograph. Ramsey told

Carter he appreciated the attentiveness to his concerns about the road surface on the bike lane and

had noticed that crews applied asphalt to some cracks. Ramsey said however that the “biggest

hazard” had not yet been worked on. He explained that the “right half of the two sections of

concrete has risen up above the left half, creating a gap large enough to trap a bicycle tire.”

       Phelps does not argue that the City failed to repair the defect that was the subject of

Ramsey’s e-mail. Phelps contends that when the City made that repair, the defect that caused him

to crash existed and the City would have certainly seen it. As proof, Phelps relies on a 2018

affidavit from Ramsey in which he provided additional information about the 2014 condition of

the bike lane. In his affidavit, Ramsey stated there were two defects in the bike lane in 2014—a

large gap between sections of concrete and a height difference between two sections of pavement.

He said the gap defect was repaired in the fall of 2014, but the height defect was not. Ramsey

further stated in the affidavit that the photo he sent the City in the summer of 2014 depicted the

                                                –8–
gap defect, but did not show the area where the height difference defect was. Nevertheless, he

said it was his intent to indicate cycling safety hazards along the whole 2300 block of Owens, not

just the area in the photo. Ramsey stated that when the City repaired the gap defect, it “certainly

would have been aware of the height defect that was just a few yards” away.

         The Ramsey evidence does not raise a fact issue on actual knowledge. Ramsey’s e-mail

informed the City in July 2014 about one defect. The City repaired that defect before October 23,

2016. Phelps’s reliance on Ramsey’s later affidavit is unavailing. That Ramsey intended to inform

the City of a different “height difference defect” not mentioned in his e-mail or depicted in the

photo he sent is not relevant to the issue of actual knowledge. Nor is evidence that the City “would

have been” aware of the height difference defect because it was a few yards away from where it

made other repairs. Actual knowledge, rather than constructive knowledge, is required. Zaidi,

2018 WL 6426798, at *3. At most, Phelps’s evidence shows constructive knowledge. Viewing

the evidence in the light most favorable to Phelps, he has not raised a fact issue on the City’s actual

knowledge of the dangerous condition. The City established it was immune from Phelps’s

premises liability claim and the trial court erred in ruling otherwise. We sustain the City’s third

issue.

         We need not address the City’s two remaining issues. In issue two, the City argues the trial

court erred in denying its plea to the jurisdiction regarding Phelps’s claim for property damage. In

his appellate brief, Phelps concedes that immunity was not waived for his property damage claim.

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (governmental unit liable for property

damage arising from operation or use of motor-driven vehicle). In issue four, the City contends

the trial court erred in denying its plea to the jurisdiction regarding its premises liability claim

because open and obvious conditions are not actionable. We have resolved Phelps’s premises

liability claim on other grounds.

                                                 –9–
       We reverse the trial court’s order denying the City’s plea to the jurisdiction and render

judgment dismissing Phelps’s claims for lack of subject matter jurisdiction.




                                                  /Ada Brown/
                                                  ADA BROWN
                                                  JUSTICE



180753F.P05




                                              –10–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 CITY OF RICHARDSON, TEXAS,                           On Appeal from the County Court at Law
 Appellant                                            No. 2, Dallas County, Texas
                                                      Trial Court Cause No. CC-17-01642-B.
 No. 05-18-00753-CV          V.                       Opinion delivered by Justice Brown,
                                                      Justices Schenck and Pedersen III
 VAL PHELPS, Appellee                                 participating.

       In accordance with this Court’s opinion of this date, the trial court’s order denying
appellant’s plea to the jurisdiction is REVERSED and judgment is RENDERED that:

       The case is DISMISSED for lack of subject matter jurisdiction.

        It is ORDERED that appellant CITY OF RICHARDSON, TEXAS recover its costs of
this appeal from appellee VAL PHELPS.


Judgment entered this 8th day of July 2019.




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