REVERSED; and Opinion Filed August 22, 2019.




                                                                   In The
                                           Court of Appeals
                                    Fifth District of Texas at Dallas
                                                        No. 05-18-01424-CV

                      TEXAS DEPARTMENT OF TRANSPORTATION, Appellant
                                          V.
                                  GLENDA REID, Appellee

                                On Appeal from the 382nd Judicial District Court
                                            Rockwall County, Texas
                                       Trial Court Cause No. 1-18-0104

                                           MEMORANDUM OPINION
                        Before Chief Justice Burns and Justices Richter1 and Rosenberg2
                                           Opinion by Justice Richter
          In this interlocutory appeal, the Texas Department of Transportation (TxDOT) appeals the

trial court’s order denying its plea to the jurisdiction. Concluding TxDOT is entitled to relief, we

reverse the trial court’s order and render judgment dismissing the case for want of jurisdiction.

                                                             BACKGROUND

          Appellee Glenda Reid was injured when she fell from her bicycle after riding into a crevice

that had formed in a joint where the sidewalk meets a storm inlet drain structure along a four-lane,

divided highway in Heath, Texas. The joint was supposed to be filled with a fiberboard filler, but

the joint had expanded and the fiberboard was either missing or had dropped down, leaving a space



   1
       The Honorable Martin Richter, Justice, Retired, sitting by assignment.
   2
       The Honorable Barbara Rosenberg, Justice, sitting by assignment.
six inches deep, seventy-five inches long, and two inches wide. Although Reid had ridden before

over the section of sidewalk where she was injured, she was unaware of the crevice.

        During a deposition, the TxDOT area engineer with responsibility over the road agreed that

the crevice in the joint was a safety hazard and not one the public would expect to encounter. The

engineer also testified that TxDOT’s contract with the City of Heath assigned to the City the duty

to maintain the sidewalk. After Reid’s accident, the City of Heath notified TxDOT of the issue

and TxDOT repaired the condition. In an affidavit, the area engineer averred that TxDOT had no

actual knowledge of the crevice in the sidewalk at the time of Reid’s accident. It is undisputed

that TxDOT had no specific information of the existence of the crevice until it received notice

from the City of Heath.

        Reid sued TxDOT for negligence alleging TxDOT knew from the design chosen that the

sidewalk structures would eventually separate and cause gaps to open but it failed to inspect and

maintain the sidewalk. Reid alleged that the crevice created by the expansion of the joint was a

“special defect” for which TxDOT owed Reid a duty to warn and make the condition safe. TxDOT

responded that this suit is barred by its sovereign immunity, generally denied Reid’s claims, and

alleged Reid’s negligence caused or contributed to the accident. TxDOT filed a plea to the

jurisdiction asserting the trial court lacked subject matter jurisdiction because Reid’s cause of

action did not fall within the limited waiver of sovereign immunity set forth in the Texas Tort

Claims Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001 et seq. After conducting a short

hearing, the trial court denied the plea to the jurisdiction.

        On appeal, TxDOT contends the crevice is an ordinary defect rather than a special defect

requiring a higher duty of care, the defect arises from TxDOT’s exercise of discretion in the design

of the sidewalk which is exempted from suit, and Reid’s bicycling is a recreational use for which

TxDOT owes a more limited duty of care. Reid concedes that she does not claim that the design

                                                  –2–
of the sidewalk was a design defect. Because the designation of the crevice as an ordinary or

special defect is decisive, we need only discuss the State’s first contention.

                                            DISCUSSION

        Whether the trial court has subject matter jurisdiction is a question of law properly asserted

in a plea to the jurisdiction. Sampson v. Univ. of Tex., 500 S.W.3d 380, 384 (Tex. 2016). Whether

a pleader has alleged facts that affirmatively demonstrate a trial court’s subject matter jurisdiction

is a question of law that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 226 (Tex. 2004). Likewise, whether undisputed evidence of jurisdictional facts

establishes a trial court’s jurisdiction is also a question of law. Id. If the plaintiff’s factual

allegations are challenged with supporting evidence necessary to consideration of the plea to the

jurisdiction, to avoid dismissal the plaintiff must raise at least a genuine issue of material fact to

overcome the challenge to the trial court’s subject matter jurisdiction. Id. at 221. When the

evidence supporting the plea implicates the merits of the case, we take as true all evidence

favorable to the plaintiff and make every reasonable inference and resolve all doubts in the

plaintiff’s favor. Id. at 228.

        Sovereign immunity protects The State of Texas and its agencies, such as TxDOT, from

lawsuits for damages unless immunity has been waived. Texas Dept. of Transp. v. York, 284

S.W.3d 844, 846 (Tex. 2009) (per curiam). The Texas Tort Claims Act (TTCA) provides a limited

waiver of governmental immunity for claims of personal injury and death caused by a condition

or use of tangible personal or real property if a private person would be liable to the claimant under

the same circumstances. TEX. CIV. PRAC. & REM. CODE §§ 101.021(2); 101.025. The duty of care

the governmental entity owes to a claimant depends upon whether the condition of real property

causing the personal injury or death is a premises defect or a special defect. See id. § 101.022.




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       If the claim arises from a premises defect, the governmental unit owes the claimant the

duty that a private person would owe to a licensee on private property. See id. § 101.022(a).   That

duty requires the governmental unit to not injure the claimant through willful, wanton or grossly

negligent conduct; and to use ordinary care to either warn the claimant or to make reasonably safe

a dangerous condition of which the governmental entity is aware and the claimant is not. Sampson,

500 S.W.3d at 385.

       If the claim arises from a special defect, the governmental unit owes the duty that a private

landowner would owe to an invitee. See TEX. CIV. PRAC. & REM. CODE § 101.022(b). Under this

standard, the landowner owes the invitee the duty to use ordinary care to reduce or eliminate an

unreasonable risk of harm created by a premises condition of which the owner is aware or

reasonably should be aware. State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235,

237 (Tex. 1992).

       The TTCA does not define “special defect” but it does give, as examples, “excavations or

obstructions on highways, roads or streets. . . .” See TEX. CIV. PRAC. & REM. CODE § 101.022(b).

Thus, a defect must be in the same class as an excavation or obstruction in the roadway to qualify

as a special defect. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012). The class

of special defects is narrow. Id. In deciding whether a condition is “like an excavation or

obstruction,” the supreme court has mentioned the following helpful characteristics: “(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.” City of Denton v. Paper, 376 S.W.3d 762, 765 (Tex. 2012); see also York, 284 S.W.3d

at 847. Whether a defect should be classified as a premise defect or a special defect is a question

of law we review de novo. Perches, 388 S.W.3d at 655.

                                                –4–
                                           Special Defect

       TxDOT contends the crevice was neither an obstruction nor an excavation. It emphasizes

the first two factors identified in Paper and it argues that given the crevice’s size and position,

Reid could have simply pedaled around it. In making this argument, TxDOT relies primarily upon

Paper, this Court’s opinion in City of Lancaster v. LaFlore, and by way of contrast, the supreme

court’s opinion in County of Harris v. Eaton.

       In Paper, the plaintiff was injured when her bicycle rolled into a “sunken area” in the street

causing her to flip over the handlebars. See Paper, 376 S.W.3d at 764. The sunken area was

described as ranging from two inches to a pencil length deep and extended across a portion of the

right lane of the street. See id. at 764–65. Rejecting the court of appeals’s conclusion that the

sunken area constituted a special defect, the supreme court noted that photographs of the condition

showed the plaintiff had ample room to ride around the condition without entering the opposing

traffic lane. Id. at 765. Furthermore, the supreme court cited its prior opinions holding that

“variations in public roadways of a few inches are not the same as the excavations or obstructions

mentioned in the Act.” Id. In LaFlore, this Court determined that a partially dislodged manhole

cover was not a special defect because a manhole is not of the same class as an excavation or

obstruction, it is of limited size, and the manhole at issue straddled the center lane of the roadway,

thus not forcing the plaintiff to deviate from the normal course of the road to avoid it. See City of

Lancaster v. LaFlore, No. 05-17-01443-CV, 2018 WL 4907843, at *5 (Tex. App.—Dallas Oct.

10, 2018, no pet.) (mem. op.).

       Both Paper and LaFlore drew contrasts between their respective cases and Eaton. See

Paper, 376 S.W.3d at 766; LaFlore, 2018 WL 4907843, at *5. In Eaton, the plaintiff motorist and

her passengers were injured when her car flipped after striking a huge excavation that extended

across ninety percent of the roadway. See Cty. of Harris v. Eaton, 573 S.W.2d 177, 178–79 (Tex.

                                                 –5–
1978). Noting the size of the obstruction and characterizing it as “a ditch across the highway,” the

supreme court held the excavation was a special defect. See id. at 179–80.

       In response, Reid argues the crevice is an excavation, citing LaFlore for the proposition

that an “excavation” is a “cavity.” See LaFlore, 2018 WL 4907843, at *3. However, Reid seeks

to distinguish Paper and LaFlore on the basis that the hazards in those cases were clearly visible

and easily avoidable. Reid relies on affidavits she and her husband filed averring that the crevice

she encountered is not clearly visible because shadows create the appearance that it is filled and

no different from other sidewalk joints she routinely encounters on her bicycle rides. Reid urges

the Court to emphasize the last two factors identified in Paper and conclude that the crevice was

a special defect because it was unusual, unexpected, and dangerous. However, the Texas Supreme

Court has rejected the standard that simply being “an unusual or unexpected danger to the normal

users of roadways” is sufficient to establish a special defect. See City of Dallas v. Reed, 258

S.W.3d 620, 622 (Tex. 2008) (per curiam).

       Nevertheless, Reid cites Weston v. Gaudette and City of Austin v. Rangel to support her

position. First, the Rangel case was decided before Reed. Thus, the conclusion in Rangel, that an

eleven-inch wide hole in a sidewalk caused by a missing meter cover was such an unexpected and

unusual danger on a public sidewalk that it constituted a special defect, is no longer sufficient.

Compare Reed, 258 S.W.3d at 622, with City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex.

App.—Austin 2006, no pet.).

       Next, in Weston, a motorcyclist sued the City of Weston for personal injuries suffered in

an accident that occurred when he rounded a turn on a road and encountered a series of deep

potholes one of which measured five-to-six inches deep and ten feet wide, extending over the entire

traffic lane. See City of Weston v. Gaudette, 287 S.W.3d 832, 834, 838 (Tex. App.—Dallas 2009.

no pet.). Analogizing the series of potholes to the ditch in Eaton, this Court held the potholes were

                                                –6–
a special defect. See id. at 839. Certainly, the size and nature was the deciding factor in Weston

not just because the potholes were unusual, unexpected, and dangerous.

       Our view of the evidence is that the crevice in this case is much like the sunken area in the

road in Paper and not at all like the ditch across the road in Eaton or the unavoidable series of

massive potholes in Gaudet. Unlike the excavations and obstructions in Eaton and Gaudet, the

photographs show Reid could have easily avoided the clearly observable crevice by simply riding

around it on the sidewalk. Even giving credence to the affidavits of Reid and her husband that

shadows masked the true nature of the crevice, no reasonable cyclist paying attention to the course

of travel would fail to note the crevice as an area to avoid. Moreover, sidewalk joints are

commonly encountered. Reid admitted she rode her bicycle over sidewalk joints regularly. The

photographs submitted do not show an unexpected or unusual danger. See City of El Paso v.

Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam) (photographs and affidavit evidence show

worn and depressed area of sidewalk three feet by six feet with a depth of three inches was not

unexpected and unusual danger so as to qualify as special defect); Peterson v. City of Fort Worth,

966 S.W.2d 773, 774, 776 (Tex. App.—Fort Worth 1998, no pet.) (ten-inch crack in steel plate

covering drainage channel that traversed eleven-foot wide sidewalk was not special defect);

Hindman v. State Dept. of Highways & Public Transp., 906 S.W.2d 43, 45–46 (Tex. App.—Tyler

1994, writ denied) (rejecting injured bicyclist’s argument that difficulty in seeing bump on

shoulder of road made it dangerous enough to qualify as special defect when photographs show

bump was not hidden or obscured from vision of one approaching it and was easily avoided).

Considering the precedents cited by the parties, the characteristics of an excavation or obstruction

set forth in Paper, and the evidence the parties put forward before the trial court, we conclude the

crevice at issue was not a special defect. See Paper, 376 S.W.3d at 764–65; LaFlore, 2018 WL

4907843, at *5.

                                                –7–
                                         Premises Defect

       Reid further contends that, even if the Court determines the crevice was not a special defect,

that she pleaded sufficient jurisdictional facts to show TxDOT is liable for a premises defect and

thus give the trial court subject matter jurisdiction. Reid concedes that TxDOT did not have

specific knowledge that the sidewalk joint in question had separated and the crevice had formed.

Nevertheless, Reid contends TxDOT knew the sidewalk could separate if it was not properly

maintained and, because it chose a design that created the condition that allowed the crevice to

form, it should be considered to have actual knowledge of the condition sufficient to impose

premises liability. We disagree.

       To impose liability on TxDOT, Reid would have to show TxDOT had actual knowledge

of the existence of the crevice and not just constructive knowledge or the possibility that a

dangerous condition could develop over time. See Sampson, 500 S.W.3d at 392; City of Corsicana

v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008). In making a determination whether a premises

owner has actual knowledge of a dangerous condition, courts generally consider whether the owner

has received reports of prior injuries or reports about the potential danger of the condition.

Sampson, 500 S.W.3d at 392. The area engineer’s affidavit is undisputed evidence showing

TxDOT had received no reports about the expanded sidewalk joint before Reid’s accident. Thus,

we conclude Reid cannot show TxDOT had the necessary actual knowledge to impose liability for

a premises defect under the TTCA. Moreover, as the State points out, undisputed evidence shows

TxDOT’s agreement with the City of Heath showed it is the City that is required to monitor the

maintenance needs on the sidewalk.

                                          CONCLUSION

       We conclude Reid has not pleaded sufficient facts demonstrating a waiver of immunity

under the TTCA and that the trial court had subject matter jurisdiction with respect to her premises

                                                –8–
liability claim. Accordingly, we reverse the trial court’s order denying TxDOT’s plea to the

jurisdiction and render judgment dismissing the case for want of jurisdiction.




                                                  /Martin Richter/
                                                  MARTIN RICHTER
                                                  JUSTICE, ASSIGNED


181424F.P05




                                               –9–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       JUDGMENT

 TEXAS DEPARTMENT OF                                 On Appeal from the 382nd Judicial District
 TRANSPORTATION, Appellant                           Court, Rockwall County, Texas
                                                     Trial Court Cause No. 1-18-0104.
 No. 05-18-01424-CV          V.                      Opinion delivered by Justice Richter, Chief
                                                     Justice Burns and Justice Rosenberg
 GLENDA REID, Appellee                               participating.

        In accordance with this Court’s opinion of this date, the order of the trial court denying
appellant’s plea to the jurisdiction is REVERSED and judgment is RENDERED dismissing the
case for want of jurisdiction.



Judgment entered this 22nd day of August, 2019.




                                              –10–
