




02-10-239-CV
























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
OPINION[1]
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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 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 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
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 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
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,
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 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 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 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 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 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.
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




[1]See Tex. R. App. P. 47.4.


[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.”).


[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.


[5]The City’s “Issues
Presented” in its brief do not match the headings and analysis provided in the
remainder of its brief.


