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                                   DISSENTING OPINION

                                        No. 04-07-00837-CV

                                    CITY OF SAN ANTONIO,
                                           Appellant

                                                   v.

               TEXAS MUTUAL INSURANCE COMPANY & Fernando Hernandez,
                                   Appellees

                     From the 131st Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2005-CI-11523
                       Honorable David A. Berchelmann, Jr., Judge Presiding

Opinion by: Steven C. Hilbig, Justice
Dissenting opinion by: Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: January 14, 2009

           Taking all evidence favorable to the appellees as true and indulging every reasonable

inference in their favor, the evidence raises a fact question with regard to the City’s actual knowledge

of the sinkhole that caused Hernandez’s injury. See Texas Dept. of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 227-28 (Tex. 2004). As the majority notes, when the City did its “patch job” on

the drain that caused the first sinkhole, David Ibanez, the high school’s chief of maintenance,

informed the City workers that the entire pipe needed to be replaced because it was collapsed in other

areas than the area that was being patched. Ibanez also testified, “And knowing about [the first]
                                                                                        04-07-00837-CV

sinkhole, yes, I knew there was going to be another sinkhole because of the amount of dirt that was

missing from around the building. I finally concluded that this can’t be the glory hole, this is just

one of the holes.” Ibanez also testified that he told the City workers, “That pipe is broken all the way

through. Dirt is going – or there is another big cavern down there, and all it takes is for something

to be above it, walking on it for it to cave in.” (emphasis added)

       The majority concludes that the City was warned only that a second sinkhole was likely;

however, I believe a jury could find from Ibanez’s testimony that he warned the City that a second

sinkhole actually existed. Accordingly, I respectfully dissent.



                                               Catherine Stone, Chief Justice




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