                              NUMBER 13-09-122-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

CAMERON COUNTY, TEXAS,                                                        Appellant,

                                            v.

JUANITA E. PATTERSON,                                                          Appellee.


                 On appeal from County Court at Law No. 2
                       of Cameron County, Texas.


                         MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Vela
                  Memorandum Opinion by Justice Vela
      This is an appeal from the trial court‟s denial of a plea to the jurisdiction filed by

Cameron County, Texas (“the County”). Juanita E. Patterson, the appellee, sued the
County, alleging that she was injured while traveling on a road owned and maintained by

the County. By two issues, the County claims that it owes no duty to maintain rural

roads, so the trial court lacked subject matter jurisdiction. Alternatively, the County

argues that there was no waiver of immunity because the potholes that Patterson claimed

were the cause of her injuries were not special defects. We affirm.

                                     I. BACKGROUND

       Patterson filed suit against the County, alleging that the road she was traveling on

when the accident occurred was “owned and maintained by the Defendant.”                She

claimed she was unable to steer the vehicle as it went from “deep pothole to deep

pothole.” She pleaded that “the road condition, which was not known to plaintiff at the

time of the accident, was in a dangerously poor and unsafe condition.” The pleadings

described the condition of the road as a special defect.

       The County filed a plea to the jurisdiction, claiming that the particular road in

question is a rural, unpaved caliche road that has a blacktop spray, but is not asphalted.

The County pointed out that Patterson lives and works on the road where the accident

occurred.    The County urged that counties have never been vested with the

responsibility of street maintenance, which is a proprietary function. However, at the

hearing, counsel for the County stated that the County is liable for a premises defect if it

was a special defect. The County also argued that potholes on rural roads are not

special defects. As such, the County claimed that Patterson was required to plead and

prove that the County had actual knowledge of the dangerous conditions she alleged in

her pleadings.


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       Patterson responded by alleging that the County maintained and controlled the

road, the road is not under the control of any city municipality, the county road was in

disrepair and there were no warnings of any kind, and the County knew or should have

known that the condition of the road posed a danger to the public. She pleaded that

“these potholes are not ordinary potholes as the Defendant would have this Court believe

but were of such size and depth” that they caused her to lose control of her vehicle.

       The trial court held a hearing at which Patterson introduced photographs of the

potholes she claims constitute a special defect. The County argued that it had no duty to

fix the road. No other evidence was offered. The trial court denied the plea to the

jurisdiction at the close of the hearing.

                                     II. APPLICABLE LAW

       Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the state

consents to suit. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex.

2004). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction

and is properly asserted in a plea to the jurisdiction. Id. at 225-26. The Texas Tort

Claims Act provides a limited immunity waiver for torts arising from either premises

defects or special defects. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a), (b) (Vernon

Supp. 2010). When a plea to the jurisdiction challenges the jurisdictional facts, the trial

court must review the relevant evidence to determine if a fact issue exists. Miranda, 133

S.W.3d at 226. The plaintiff bears the burden to allege facts demonstrating jurisdiction

and the pleadings are construed liberally in plaintiff‟s favor. Id. If the pleadings do not


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affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

deficiency and the plaintiff should be given the opportunity to amend. Id. at 226-27. If

the evidence raises a fact issue on jurisdiction, the trial court may not grant the plea, and

the issue must be resolved by the trier of fact. Id. When reviewing a trial court‟s ruling

on a challenge to its jurisdiction, we consider the plaintiff‟s pleadings as well as the factual

assertions, and any other evidence in the record that is relevant to the jurisdictional issue.

City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). If the evidence is undisputed

or fails to raise a fact issue, the trial court must rule on the plea as a matter of law. Id. at

228.

       Section 101.022(a) of the Texas Tort Claims Act limits the government's duty to

prevent injury from premise defects to those of which it has actual knowledge. See TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022(a) (“Except as provided in Subsection (c)

[pertaining to toll roads], if a claim arises from a premise 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.”); State Dep't of Highways

& Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (“[A] licensee must prove that

the premises owner actually knew of the dangerous condition, while an invitee need only

prove that the owner knew or reasonably should have known.”). But the limitation does

not apply to “special defects such as excavations or obstructions on highways, roads, or

streets.” TEX. CIV. PRAC. & REM. CODE § 101.022(b); Denton County v. Beynon, 283

S.W.3d 329, 331 (Tex. 2009) (“Where a special defect exists, the State owes the same

duty to warn as a private landowner owes to an invitee, one that requires the State „to use


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ordinary care to protect an invitee from a dangerous condition of which the owner is or

reasonably should be aware.‟” (quoting Payne, 838 S.W.2d at 237) (footnotes omitted)).

The Legislature does not define a special defect, but discusses conditions “such as

excavations or obstructions on highways, roads or streets.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(b); Univ. of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010).

Conditions may be special defects only if they pose a threat to ordinary users of a

particular roadway. Beynon, 283 S.W.3d at 331. Whether a condition is a special

defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999).

       The supreme court has stated that the class of special defects is narrow. Hayes,

327 S.W.3d at 116. For instance, an oval pothole covering ninety percent of the highway

is a special defect, while a two-inch drop in a roadway is not. Id. The issue of whether a

defect is a “special defect” “turns on the objective expectations of an „ordinary user‟ who

follows the „normal course of travel.‟”      Id. (citing Beynon, 283 S.W.3d at 332).

Conditions can be special defects only if they pose a threat to the ordinary users of a

particular roadway. Beynon, 283 S.W.3d at 332. The central inquiry is whether the

condition is of the same kind or falls within the same class as an excavation or

obstruction. Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009). The

supreme court has traditionally distinguished special defects by “some unusual quality

outside the ordinary course of events.” Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.

2008). A gaping, impassable hole is outside the ordinary course of events, unlike the

expectation of potholes and ruts on an unpaved rural road. See Durham v. Bowie

County, 135 S.W.3d 294, 297 (Tex. App.–Texarkana 2004, no pet.). When determining


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if a condition is a special defect, courts consider: (1) the size of the condition, (2)

whether the condition unexpectedly and physically impairs the vehicle‟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 to the ordinary users of the roadway. Hayes, 327 S.W.3d at 116.

                                        III. ANALYSIS

       In our review, we determine only if Patterson stated a claim upon which relief can

be granted. We construe the facts in the plaintiff‟s favor, but note that it is clearly her

burden to allege facts showing jurisdiction. Miranda, 133 S.W.3d at 226. Patterson‟s

pleadings allege that the County controlled and maintained the road upon which she was

injured. While the County argues that municipalities are charged with the responsibility

of maintaining the roads, it did not deny that it maintained this road. Nor does the County

offer any contrary evidence regarding which entity was actually charged with maintaining

the road in issue. Looking at the plaintiff‟s pleadings in the light most favorable to her, we

conclude that she has properly pleaded that the County maintains the road.

       Patterson has also pleaded that the potholes in question were deep and were of

such a size and depth that they caused her to lose control of her vehicle.             In her

amended pleadings, which she verified, she asserted that “Plaintiff . . . was unable to

steer her motor vehicle as it went from deep pothole to deep pothole. . . . The road

condition, which was not known to Plaintiff at the time of the accident, was in a

dangerously poor and unsafe condition. This special defect or condition on the road

proximately caused the accident in question. . . .”


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       Patterson did not allege that the potholes were either obstructions or excavations,

or allege facts to show the depth or width of the potholes. However, she asserted that

the potholes were not ordinary potholes.         She claimed that she did not know the

condition of the road at the time and alleges that the County knew or had reason to know

“of the unsafe and dangerous condition of the road.” There is an expectation of potholes

and ruts on unpaved rural roads. Special defects are traditionally distinguished by some

“unusual quality outside the ordinary course of events.” Reed, 258 S.W.3d at 622.

Patterson pleaded the fact that the potholes in question were not ordinary, they were

deep, and she asserted that she went from pothole to pothole before hitting a utility pole.

At the hearing, she introduced photos of a road showing what appear to be deep

potholes. We have no idea of the potholes‟ width, depth, or even if they represent the

condition of the road at the time this accident occurred. But, we recognize that those

photos were before the trial court when it ruled.

       The pleadings filed by Patterson assert that the potholes were out of the ordinary

and of such size and depth that they caused her to lose control of her vehicle.

Construing the pleadings in Patterson‟s favor and considering the evidence in the record

that is relevant to the jurisdictional issue, Patterson has pleaded sufficient facts

demonstrating jurisdiction. We overrule the County‟s issues.




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                                  IV. CONCLUSION

      We affirm the judgment of the trial court.




                                                   ROSE VELA
                                                   Justice

Delivered and filed the
10th day of March, 2011.




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