Opinion issued May 1, 2014




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00318-CV
                           ———————————
                    THE CITY OF HOUSTON, Appellant
                                       V.
                      EDMUND L. COGBURN, Appellee


                   On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Case No. 2010-47056



               MEMORANDUM OPINION ON REHEARING

      In this personal injury case, the City of Houston appealed the trial court’s

denial of its plea to the jurisdiction based on governmental immunity. See TEX.

CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2013). On original

submission, we affirmed the trial court’s order on the basis that appellee Edmund
L. Cogburn had sufficiently pleaded a special defect. The City has moved for

rehearing. We requested a response, and although we granted Cogburn’s request

for an extension of time to file his response, Cogburn failed to respond.

      We grant the City’s motion, withdraw our opinion and judgment of

March 19, 2013, reverse the trial court’s order denying the City’s plea to the

jurisdiction, and render judgment granting the plea and dismissing Cogburn’s

claims against the City for want of jurisdiction.

                                    Background

      Cogburn sued the City over injuries he sustained when he tripped and fell

against a city-owned parking meter. The following factual allegations relevant to

Cogburn’s claim are taken from his First Amended Original Petition, which he

filed on January 9, 2011.

             On January 31, 2009, Mr. Cogburn and his wife parked their
      car at a city parking meter on the South side of the 1200 block of
      Ewing Street, Houston, Texas. Mr. Cogburn deposited the required
      sum of money in the city owned and operated parking meter and
      station. Upon returning to their car Mr. Cogburn tripped and fell at
      the parking meter on exposed roots and other corruption excavated at
      the site of the parking meter. He sustained a broken femur and knee
      damage.       Since then, he has undergone surgeries, extended
      hospitalization and rehabilitation. He will never recover totally from
      his injuries.

            The parking meter site was under the ownership and/or control
      of the defendant city and presented an unreasonable risk of harm,
      which was known and/or should have been known by defendant city.




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            The defendants owed Mr. Cogburn, a business invitee, and
      others the duty to use ordinary care to ensure that the premises did not
      present a danger [to] its invitees, including the duty to inspect, warn
      and or cure. The defendants breached their duties by failing to
      inspect, warn or to cure the defect. Defendants were negligent.

      On February 16, 2011, the City filed a plea to the jurisdiction, asserting

governmental immunity. In it, the City argued that immunity was not waived

because Cogburn’s injury occurred when he tripped over exposed tree roots, which

are a naturally occurring condition that was open and obvious.

      The City attached evidence to its plea to the jurisdiction. Exhibit 1 was

Cogburn’s sworn interrogatory responses. One interrogatory asked Cogburn to

“[p]lease state briefly how this incident occurred.” Cogburn’s sworn response

stated:

      On January 31, 2009, I was returning to my car, accompanied by my
      wife Marilyn, which was parked at a metered parking space for which
      I had paid on the North side of the 1200 block of Ewing Street in
      Houston. When I approached my metered parking space I tripped on
      some exposed roots and fell into the parking meter. I broke my right
      femur and was taken by ambulance to Saint Luke’s Episcopal
      Hospital.

The City also attached six affidavits from various city employees regarding the tree

roots at the site where Cogburn was injured. One of the affiants, Victor Cordova,

averred that, because of the nature of the soil and level of precipitation in Houston,

tree roots naturally move to the surface to obtain air, water, and nutrients. In sum,




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Cordova averred that tree roots “coming to the surface is naturally occurring in

Houston due to our climate and soil.”

      In response, on March 11, 2011, Cogburn filed a supplement to his First

Amended Original Petition. This pleading alleged that the area in which Cogburn

tripped contained not only “exposed roots,” “corruption,” and an excavated area,

but also “pipes and other hazards.”

             The parking space and meter where plaintiff parked his car was
      only accessible by crossing an area of excavation and exposed roots
      and pipes and other hazards from the curb to the sidewalk. Indeed the
      parking meter itself is set in the excavated area and exposed roots.
      The only lawful means of accessing the parking meter is for a person
      to walk (not levitate) on the area of exposed roots. Indeed, the
      payment side of the meter faces the sidewalk away from the street,
      and one must stand on the hazardous roots and be exposed to the
      protruding obstructions in order to feed the meter. Otherwise parking
      patrons would have to illegally jaywalk in the street, but then would
      have to walk across and stand on the roots to pay the meter. When
      plaintiff tripped and fell, his leg fell against the parking meter and it
      was the parking meter iron post which broke his fall and broke his leg.
      The defendants knew of the hazards but chose to ignore them
      Moreover, the defendants knew that in order to park at the meter, pay
      the meter, and return to the car that a patron such as plaintiff would
      have to cross the hazardous area which was almost like an obstacle
      course.

            At the time that plaintiff was injured the entire area was
      covered with leaves and debris and the exposed roots were not open
      and obvious nor were they readily apparent or even visible to a
      reasonably prudent person.

            The parking space, meter and area of access all constitute the
      premises which is used in order to park and for which the City
      charged.



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      On the day he filed this supplemental petition, Cogburn also filed a response

to the plea to the jurisdiction. In it, he argued that the factual allegations in his

petition and its supplement, together, were sufficient to establish jurisdiction.

Cogburn’s response to the City’s plea complained that the City was improperly

attempting to use the plea to the jurisdiction to obtain summary judgment on his

premises defect claim.     Notably, Cogburn failed to adduce any evidence in

response to the City’s plea. The trial court denied the plea. The City appealed.

                                    Discussion

A.    Plea to the Jurisdiction

      A plea to the jurisdiction based on governmental immunity1 is a challenge to

the trial court’s subject matter jurisdiction. See City of Waco v. Kirwan, 298

S.W.3d 618, 621 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 225–26 (Tex. 2004). Whether the trial court has subject matter

jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007). We therefore review a trial court’s ruling on a plea to the jurisdiction de

novo. Id.



1
      Sovereign immunity generally protects the state against lawsuits for money
      damages; governmental immunity provides protection to subdivisions of the state,
      including cities. Smith v. Galveston Cnty., 326 S.W.3d 695, 698 (Tex. App.—
      Houston [1st Dist.] 2010, no pet.) (citing Mission Consol. Indep. Sch. Dist. v.
      Garcia, 253 S.W.3d 653, 655 (Tex. 2008) and Harris Cnty. v. Sykes, 136 S.W.3d
      635, 638 (Tex. 2004)).

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      When a plea to the jurisdiction challenges the sufficiency of a plaintiff’s

jurisdictional pleadings, we must determine whether the plaintiff has alleged facts

that affirmatively demonstrate the court’s jurisdiction. See Miranda, 133 S.W.3d

at 226. We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). “If the pleadings affirmatively negate

the existence of jurisdiction, then a plea to the jurisdiction may be granted without

allowing the plaintiff an opportunity to amend its petition.” Smith, 326 S.W.3d at

698 (citing Miranda, 133 S.W.3d at 226). If the pleadings neither affirmatively

demonstrate nor negate jurisdiction, “it is an issue of pleading sufficiency and the

plaintiff should be given an opportunity to amend the pleadings.” Kirwan, 298

S.W.3d at 622 (citing Miranda, 133 S.W.3d. at 226–27).

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, we “‘consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised,’ even where those facts may implicate the

merits of the cause of action.” Id. (quoting Miranda, 133 S.W.3d. at 227). The

plea to the jurisdiction standard mirrors that of a traditional motion for summary

judgment. Miranda, 133 S.W.3d at 228; Ross v. Linebarger, Goggan, Blair &

Sampson, L.L.P., 333 S.W.3d 736, 744 (Tex. App.—Houston [1st Dist.] 2010, no

pet.). When reviewing the evidence, we must “‘take as true all evidence favorable



                                         6
to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133

S.W.3d. at 228). If the evidence creates a fact issue as to the jurisdictional issue,

then the fact-finder will decide that issue. Id. (citing Miranda, 133 S.W.3d. at

227–28). “‘However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the

jurisdiction as a matter of law.’” Id. (quoting Miranda, 133 S.W.3d. at 228).

B.    Premises Liability

      Under the Texas Tort Claims Act (TTCA), the government waives immunity

from suit to the extent of liability under the Act. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.025 (West 2011); Kirwan, 298 S.W.3d at 622. Governmental entities

are liable under the TTCA for “personal injury . . . caused by a condition or use of

tangible personal or 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(2) (West 2011)).

      The TTCA provides that “if 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,” in which case the duty owed is that owed to an invitee. See TEX. CIV.

PRAC. & REM. CODE ANN. §101.022(a) (West 2011); Tex. S. Univ. v. Gilford, 277



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S.W.3d 65, 69–70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing State

Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).

But regardless of whether a claimant is an invitee or licensee, the first element of a

premise defect claim requires that the complained-of premises condition create an

unreasonable risk of harm. Payne, 838 S.W.2d at 237; City of Dallas v. Giraldo,

262 S.W.3d 864, 869 (Tex. App.—Dallas 2008, no pet.).

      Texas courts have consistently held that, as a matter of law, naturally

occurring conditions that are open and obvious do not create an unreasonable risk

of harm for purposes of premises liability. See Scott & White Mem’l Hosp. v. Fair,

310 S.W.3d 411, 412–14 (Tex. 2010) (naturally occurring ice does not pose an

unreasonable risk of harm); M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex.

2004) (“Ordinary mud that accumulates naturally on an outdoor concrete slab

without the assistance or involvement of unnatural contact is, in normal

circumstances, nothing more than dirt in its natural state and, therefore, is not a

condition posing an unreasonable risk of harm.”); Johnson Cnty. Sheriff’s Posse,

Inc. v. Endsley, 926 SW.2d 284, 287 (Tex. 1996) (natural state of dirt, that it may

be slippery when wet or may contain small rocks, does not pose unreasonable risk

of harm); Eubanks v. Pappas Rests., Inc., 212 S.W.3d 838, 840–41 (Tex. App.—

Houston [1st Dist.] 2006, no pet.) (slime or mud accumulating naturally is not

unreasonably dangerous condition); Gagne v. Sears, Roebuck & Co., 201 S.W.3d



                                          8
856, 858 (Tex. App.—Waco 2006, no pet.) (“the natural accumulation of ice on a

sidewalk near the entrance of a business does not pose an unreasonable risk of

harm to invitees”); Wal-Mart Stores, Inc. v. Surratt, 102 S.W.3d 437, 445 (Tex.

App.—Eastland 2003, pet. denied) (premises owner “does not have a duty to

protect its invitees from conditions caused by a natural accumulation of frozen

precipitation on its parking lot because such an accumulation does not constitute an

unreasonably dangerous condition”).

C.     Analysis

       In a single issue, the City of Houston argues that the trial court erred by

denying its plea to the jurisdiction because (1) Cogburn failed to plead a valid

waiver of immunity, regardless of whether he was an invitee or licensee, (2) the

City’s “uncontroverted evidence demonstrates no jurisdiction,” and (3) tree

maintenance is a discretionary act for which immunity is retained as a matter of

law.   On rehearing, the City argues that, because the City challenged the

jurisdictional facts supporting Cogburn’s claim, we are required to review the

relevant evidence submitted to determine whether a fact issue exists. Miranda,

113 S.W.3d at 227. We agree. As discussed above, under the framework set forth

in Miranda, a plea to the jurisdiction may attack a plaintiff’s pleadings, the

jurisdictional facts, or both. See id. at 226–27. If a plea challenges jurisdictional

facts, review of the plea mirrors that of a traditional motion for summary judgment.



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Id. at 228. After Miranda, “[i]t is unquestionably [the] plaintiff[’s] burden” to

adduce evidence to demonstrate the existence of a fact issue if a governmental

entity introduces evidence controverting jurisdictional facts in support of its plea.

City of Houston v. Harris, 192 S.W.3d 167, 175 (Tex. App.—Houston [14th Dist.]

2006, no pet.).

      Here, the City argued in its plea to the jurisdiction that the evidence showed

that Cogburn’s injury occurred when he tripped on exposed tree roots, and that this

could not form the basis for waiver of the City’s immunity, because the tree roots

were a naturally occurring condition that were open and obvious and thus, as a

matter of law, could not create an unreasonable risk of harm, regardless of whether

Cogburn was a licensee or invitee. See Giraldo, 262 S.W.3d at 869 (to establish

premise defect claim, plaintiff must prove condition on premises created

unreasonable risk of harm). The City supported its plea with evidence showing

that, due to soil conditions and precipitation in the Houston area, the movement of

tree roots to the surface of the ground is a naturally occurring condition. The City

submitted photographs of the site of Cogburn’s injury, which showed tree roots

that were exposed and uncovered.         Also included in the City’s proof was

Cogburn’s sworn interrogatory response, which stated that he fell because he

“tripped on some exposed roots.” Taken together, this evidence conclusively

proved that the cause of Cogburn’s injury—the exposed tree roots—was an open



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and obvious naturally occurring condition, and, therefore, as a matter of law, could

not create an unreasonable risk of harm. See Fair, 310 S.W.3d at 412–14; Rape,

139 S.W.3d at 676; Endsley, 926 SW.2d at 287; Eubanks, 212 S.W.3d at 840–41;

Gagne, 201 S.W.3d at 858; Surratt, 102 S.W.3d at 445.

      On appeal, Cogburn cites two cases to support his contention that exposed

tree roots can create an unreasonable risk of harm. In Hamric v. Kansas City

Southern Railway Co., 718 S.W.2d 916 (Tex. App.—Beaumont 1986, writ. ref’d

n.r.e.), the Beaumont Court of Appeals held that the obligation to maintain the

right-of-way on a highway included the duty to ensure that grass and weeds did not

obstruct a driver’s ability to see down the right-of-way.        Id. at 918–19.    In

McVicker v. Johnson County, 561 S.W.2d 610 (Tex. App.—Waco 1978, writ ref’d

n.r.e.), the Waco Court of Appeals held that, where there was evidence that

employees of the county knew that a certain part of a county road flooded in heavy

rain, and there was a fact question regarding whether this danger was open and

obvious, there was a fact question regarding whether the county had a duty to warn

motorists about flooding. Id. at 611. Neither of these cases suggests that naturally

occurring exposed tree roots that are open and obvious can create an unreasonable

risk of harm.

      Cogburn adduced no evidence in his response to the City’s plea.              He

adduced no evidence to raise a fact issue regarding whether the tree roots at the site



                                         11
of his injury were open and obvious or were a naturally occurring condition. And,

although he pleaded in his supplemental petition that the area in which he tripped

contained tree roots, an excavation, a pipe and corruption, he failed to adduce any

evidence that his injury was caused by anything other than the exposed tree roots

alone.

         In his response to the City’s plea, Cogburn complained that he had not yet

been able to obtain certain discovery and depositions from the City. However, at

least with respect to the question of whether Cogburn tripped over exposed tree

roots alone, on the one hand, or a pipe or other non-naturally occurring conditions,

on the other, the evidence Cogburn needed to defeat the City’s plea was squarely

within his control. Cogburn could have raised a fact issue on this question by

merely adducing some evidence, by amended interrogatory or affidavit, to the

effect that he tripped over something other than exposed tree roots alone.

         We are mindful that, when reviewing the evidence related to jurisdictional

facts, we must “‘indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d.

at 228). Here, however, the City’s evidence conclusively showed that Cogburn’s

injury was caused when he tripped over exposed tree roots and that these tree roots

were open and obvious and were a naturally occurring condition. Therefore, the

burden shifted to Cogburn to adduce evidence sufficient to raise a fact issue on the



                                         12
question of whether his injury was caused by something other than, or in addition

to, the exposed tree roots, or whether exposed tree roots are open and obvious and

a naturally occurring condition. See Miranda, 133 S.W.3d at 232. Because the

City’s plea challenged Cogburn’s pleadings and jurisdictional facts with evidence,

Cogburn’s supplementation of his pleadings with additional factual allegations

about the cause of his injury in response to the plea was insufficient to defeat it.

Since the City adduced evidence conclusively negating jurisdictional facts,

Cogburn also bore the burden to adduce evidence raising a fact issue on the

jurisdictional facts in question.    See Harris, 192 S.W.3d at 175 (“[i]t is

unquestionably [the] plaintiff[’s] burden” to adduce evidence to demonstrate

existence of a fact issue if governmental entity introduces evidence controverting

jurisdictional facts); see also Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer,

904 S.W.2d 656, 660 (Tex. 1995) (generally, pleadings are not competent

evidence, even if sworn or verified). Cogburn failed to adduce any evidence

raising a fact issue regarding whether a private person could be liable to him under

Texas law, as required by the TTCA. See Miranda, 133 S.W.3d at 232; see also

City of Houston v. Ranjel, 407 S.W.3d 880, 893 (Tex. App.—Houston [14th Dist.]

2013, no pet.) (amended pleading could not create jurisdiction in the face of

conclusive jurisdictional evidence); Harris, 192 S.W.3d at 175 (dismissing case for

lack of subject-matter jurisdiction because although plaintiffs might have been able



                                        13
to amend pleadings to sufficiently allege City’s knowledge regarding premise

defect on remand, plaintiffs had failed to controvert or otherwise demonstrate a

fact issue regarding City’s knowledge of alleged premise defect in response to

City’s evidence challenging jurisdictional facts).

      The City’s sole issue is sustained.

                                    Conclusion

      Having sustained the City’s sole issue, we reverse the trial court’s order

denying the City’s plea to the jurisdiction and render judgment granting the City’s

plea to the jurisdiction and dismissing Cogburn’s claims against the City with

prejudice.




                                                 Rebeca Huddle
                                                 Justice

Panel consists of Justices Jennings, Massengale, and Huddle.




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