Opinion
06-21-00101-CV
03-31-2022
CITY OF DAINGERFIELD, TEXAS, Appellant v. DONALD SNYDER, Appellee
Submitted: February 23, 2022.
On Appeal from the 276th District Court Morris County, Texas Trial Court No. 26937.
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice.
Uncontradicted evidence attached to a plea to the jurisdiction filed by the City of Daingerfield (the City) in defense of a personal injury lawsuit filed by Donald Snyder showed that Snyder was walking along Farm-to-Market Road 130 (FM 130) in Daingerfield between 3:20 a.m. and 4:00 a.m. on September 1, 2018. Snyder's path took him along the edge of the pavement until a truck came toward him in the middle of the road, at which time, to be safe, he moved out into the grass to a location he estimated to be six to ten feet off the pavement. He fell into an uncovered manhole and later sued the City for injuries received in the incident. From a denial of its plea to the jurisdiction, the City urges this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (Supp.), § 101.001(3)(B).
The trial court denied the plea to the jurisdiction without stating any grounds and apparently without a hearing.
We reverse the trial court's denial of the City's plea to the jurisdiction and dismiss Snyder's case against the City for lack of jurisdiction because (1) the uncovered manhole was not a special defect and (2) no evidence shows the City's actual knowledge of the uncovered manhole.
Snyder's lawsuit asserted that the City was liable because the uncovered manhole was either a special defect or a premises defect. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a), (b). Snyder alleged that he fell about fifteen feet into an unmarked, uncovered manhole belonging to the City; that the manhole was located between the edge of the paved roadway and a barbed-wire fence that roughly marked the boundary of the state-owned right-of-way (the ROW); and that pedestrians routinely walk, jog, and run in the unpaved, grassy shoulder of the FM 130 ROW. The City filed a general denial of Snyder's allegations and asserted several defenses, including that Snyder's causes of action were barred by governmental immunity. In its plea to the jurisdiction, the City argued that no waiver of its governmental immunity had been shown because (1) due to the manhole's location (i.e., fifteen feet from the edge of the roadway), it did not present an unexpected or unusual danger to an ordinary user of FM 130 and therefore was not a special defect and (2) the City did not have actual knowledge that the dangerous condition (i.e., that the manhole's cover was missing) existed at the time of the incident as is required for it to be liable for a premises defect.
"A plea to the jurisdiction challenges a trial court's subject[-]matter jurisdiction." City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010) (per curiam) (citing Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)). "The plaintiff bears the initial burden to allege facts affirmatively demonstrating the trial court's jurisdiction to hear a case." Tex. Dep 't of Transp. v. Ingram, 412 S.W.3d 129, 134 (Tex. App -Texarkana 2013, no pet.) (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004)). "Generally speaking, a 'plea should be decided without delving into the merits of the case,' but the claims may provide 'the context in which a . . . plea is raised.'" Id. (quoting Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)).
A plea to the jurisdiction may challenge either the plaintiffs pleadings or the existence of jurisdictional facts. See Miranda, 133 S.W.3d at 226-27. Where, as here, the plea challenges the existence of jurisdictional facts, "disputed evidence of jurisdictional facts that also implicate the merits of the case may require resolution by the finder of fact." Ingram, 412 S.W.3d at 134 (quoting Miranda, 133 S.W.3d at 226). After the party challenging subject-matter jurisdiction "asserts and supports with evidence that the trial court lacks subject[-]matter jurisdiction," the plaintiff is required "to show that there is a disputed material fact regarding the jurisdictional issue." Miranda, 133 S.W.3d at 228 (citing Huckabee v. Time Warner Entm't Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000)). When the trial court exercises its discretion and makes the jurisdictional determination at a preliminary hearing, "the trial court reviews the relevant evidence to determine if a fact issue exists." Id. at 227. "If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact-finder." Id. 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. at 228.
We review the trial court's ruling on a challenge to its subject-matter jurisdiction de novo. Id. at 228. In our review, "we take as true all evidence favorable to the nonmovant" and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)).
"In Texas, sovereign immunity 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." Id. at 224 (citing Jones, 8 S.W.3d at 638). "The Texas Tort Claims Act [the TTCA] provides a limited waiver of sovereign immunity." Id. (citing Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (Supp.)). The City "is immune from suit as a governmental entity unless the [TTCA] expressly waives immunity." See id; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001(3)(B), 101.021, 101.025.
"A governmental unit in the state is liable for . . . (2) personal injury . . . so 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." Ingram, 412 S.W.3d at 134 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2)). "Liability for premise defects is implied under section 101.021(2) because a premise defect arises from a condition existing on real property." Id. at 134-35 (quoting City of Haltom City v. Aurell, 380 S.W.3d 839, 845 (Tex. App -Fort Worth 2012, no pet.) (quoting Perez v. City of Dallas, 180 S.W.3d 906, 910 (Tex. App -Dallas 2005, no pet.))). "Thus, the TTCA expressly waives sovereign immunity for premise defects and injuries arising out of conditions or use of property." Id. at 135 (citing Miranda, 133 S.W.3d at 225).
"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." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). "A party owing that duty with respect to a premise defect must not 'injure a licensee by willful, wanton or grossly negligent conduct, and . . . [must] use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.'" Ingram, 412 S.W.3d at 135 (quoting State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).
"However, Section 101.022's limitation of the government's duty does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets." Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b)). "Thus, if the defect is a special defect, the claimant is treated as an invitee, and sovereign immunity is waived under the TTCA for injury resulting from that special defect of which the governmental entity is or should be aware." Id. (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (per curiam); Denton Cty. v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009)).
The City's evidence showed that the City had an easement for placing underground sewage pipe running parallel to FM 130 and fifteen feet from the south edge of FM 130 and that the subject manhole was located a little over fifteen feet from the edge of FM 130's roadway. Photographic evidence and affidavit testimony also showed that there were no signs of a path or trail on or near the manhole or in the grassy ROW.
Affidavit evidence from the City's public works director, Gatlin Moore, showed that, between October 2010 and June 2013, the City received a few reports that the manhole cover was missing and, each time, the cover had been quickly placed back on the manhole. Moore's affidavit, as well as the affidavit of the city manager, Rocky Thomasson, showed that, between March 2015 and September 1, 2018, there had been no reports to the City that the manhole's cover was missing or had been removed. The affidavit from Thomasson, as well as affidavits from the City's water operator and two employees of the City's Public Works Department, also showed that they had no knowledge that the manhole was open or that its cover was missing or had been removed, on or before September 1, 2018.
The evidence also showed that Myron Thomas, who resides near the subject manhole, was aware that the cover was off before September 1, 2018, but that he did not report it to the City. Also, in 2012, Michelle Cocker, who resides at 75 County Road 4108 in Daingerfield, reported to the highway department that a manhole near her house had a missing cover, but did not report it to the City.
There is no evidence in the record that showed that Cocker's house was located near the subject manhole.
In his response opposing the City's plea to the jurisdiction, Snyder argued that there was sufficient evidence to create a fact issue as to (1) whether the uncovered manhole was located where ordinary pedestrians would encounter it such that it would be a special defect and (2) whether, because the manhole was repeatedly uncovered, the City had actual knowledge that the manhole had a tendency to become uncovered.
The uncontradicted evidence attached to Snyder's response showed that the Texas Department of Transportation (TxDOT) is responsible for the inspection and maintenance of FM 130, including the grassy ROW, and that the City is responsible for the manhole. In addition, the City had no written policies relating to regular inspection of its rights-of-way or manholes, but the City's personnel inspect and repair the City's rights-of-way and manhole covers in the regular course of their duties or when a problem or issue is reported. In his deposition, Thomasson acknowledged that the City's unwritten policy was to keep manholes covered and acknowledged the possibility that, if a manhole were left uncovered, someone might fall into it. Moore also acknowledged in his deposition that it was possibly foreseeable that, if a manhole were left open with no barricade around it, somebody walking in the area might fall into it and affirmed as common understanding that the manholes should remain covered unless someone was working in them. Moore also testified that he had installed three yellow poles around the manhole after Snyder's accident, because it had been hit by mowers in the past and he did not want it to happen again.
Snyder's evidence also showed that TxDOT was not aware of any reports of an open manhole in the FM 130 ROW from September 1, 2015, to September 1, 2018, and that it had no knowledge of mowing crews inadvertently uncovering manholes in the FM 130 ROW during that time period. Also, Carl Peters, maintenance supervisor in the Daingerfield office of TxDOT, testified that, for twenty years before the Snyder incident, he had no knowledge that there were any manhole covers in the rights-of-way that he supervised and did not know that the cover had been displaced. Peters, as well as Jason Dupree, the director of maintenance for the Atlanta District of TxDOT, testified that it is the practice, if not the policy, of TxDOT that, if a caller reports a problem with a city-owned improvement in a TxDOT right-of-way, the caller should be referred to the City and then TxDOT should make a follow-up call to the City.
In contrast, Snyder's evidence showed that, on some unspecified day before Snyder fell into the uncovered manhole, Steve Mallory, working in the natural gas industry, was inspecting a natural gas pipeline in the same area where the manhole was located. Mallory testified that he nearly fell into the manhole, which was uncovered and partially concealed in tall grass. He also testified that he called and reported the manhole's uncovered condition and that workers arrived and replaced the cover before he left the scene.
Regarding Snyder's fall into the manhole, the evidence showed that Tyann Foster called the Daingerfield Police Department at 8:37 a.m. on September 1, 2018, and reported that she heard someone calling for help in the vicinity of 1000 East Georgia Pacific Drive (also known as FM 130).
(1) The Uncovered Manhole Was Not a Special Defect
The City claims error in the denial of its plea to the jurisdiction as to Snyder's special defect claim. "The Legislature does not define special defect but likens it to conditions 'such as excavations or obstructions on highways, roads, or streets.'" Hayes, 327 S.W.3d at 116 (quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b)). "A condition must therefore be in the same class as an excavation or obstruction on a roadway to constitute a special defect." Tex. Dep 't of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012) (per curiam) (citing Denton Cty. v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009)).
"Whether a condition is a special defect is a question of law." Hayes, 327 S.W.3d at 116 (citing City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam)). In deciding whether a condition is a special defect, courts consider
(1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a 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.Id. (citing Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam)). The Texas Supreme Court has explained that, "'whether [the condition is] on a road or near one,' 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 State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992)). Further, "special- defect jurisprudence turns on the objective expectations of an 'ordinary user' who follows the 'normal course of travel.'" Hayes, 327 S.W.3d at 116 (citing Beynon, 283 S.W.3d at 332).
In this case, the parties agree that open man-made holes, e.g., manholes and water meter boxes, can be special defects. See City of Houston v. Kiju Joh, 359 S.W.3d 895, 897, 901 (Tex. App -Houston [14th Dist] 2012, no pet.) (uncovered utility hole in pedestrian crosswalk); City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex. App-Austin 2006, no pet.) (uncovered water meter box, which formed a hole in downtown public sidewalk); City of El Paso v. Chacon, 148 S.W.3d 417, 424-25 (Tex. App-El Paso 2004, pet. denied) ("large" and "gaping" hole in public sidewalk that previously contained a utility pole or traffic control device); Harris Cty. v. Smoker, 934 S.W.2d 714, 718-19 (Tex. App-Houston [1st Dist.] 1996, writ denied) (uncovered storm sewer located alongside road without sidewalk where a pedestrian normally would walk). In all such cases, the uncovered hole was either in the roadway or near it where an ordinary user of the roadway or adjacent sidewalk would encounter it in the normal course of travel. The parties' central dispute is whether the uncovered manhole in this case, located in a grassy area over fifteen feet from the roadway, would be encountered by and pose a threat to ordinary users of the roadway.
The City argues that the manhole was not in a position to be encountered by, and pose a threat to, ordinary users of the roadway, including pedestrians. Rather, the City argues, Snyder had to stray fifteen feet off the roadway into a grassy area to encounter the manhole. In support of its argument, the City relies on Payne and Beynon. See State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992); Beynon, 283 S.W.3d 329.
In Payne, the plaintiff sued the State after he sustained injuries when he walked off the end of a culvert built and maintained by the State. The culvert ran perpendicular to and beneath the road and ended about twenty-two feet from the roadbed. Payne, 838 S.W.2d at 236. The Texas Supreme Court held that it was not a special defect because (1) "[t]he end of the culvert was located far enough from the paved surface that vehicular passengers and other normal users of the roadway were unlikely to encounter it," and (2) only a pedestrian like Payne "whose destination required him to leave the proximity of the road, was ever likely to fall off the end of the culvert." Id. at 239.
In Beynon, the plaintiff, who was a passenger in a vehicle, suffered injuries when the driver of her vehicle lost control of the vehicle when his right wheels crossed over a large dropoff at the pavement's edge as he sought to avoid colliding with an on-coming vehicle. The vehicle slid sideways into the grass where it was punctured by a seventeen-foot floodgate arm owned and maintained by Denton County. The metal floodgate arm was unsecured and improperly pointed toward oncoming traffic, with the tip of the arm about three feet from the edge of the roadway. Beynon, 283 S.W.3d at 330-31. The Texas Supreme Court held that the floodgate was not a special defect because, since it was located three feet off the road, it did not pose a threat to the ordinary users of the road or prevent ordinary users from traveling on the road (as opposed to skidding off the road). Id. at 332.
In Martinez, the plaintiff fell into a hole that once contained a water meter box located three to five feet from the curb of Avenue M in Lubbock. At the time, Martinez was walking on a path that generally ran parallel to Avenue M and three to five feet from its curb. Martinez, 993 S.W.2d at 884-85. The court of appeals held that it was not a special defect because (1) the hole was two to five feet away from the road, (2) Martinez was not walking on the road when he encountered it, (3) the conditions were not such that it would induce one traveling on the street to believe the street encompassed the area of the hole, and (4) the hole was not created for a purpose inherently intertwined with the use of the road. Id. at 885. In Bishop, the plaintiff fell into a hole containing a water meter box with a defective lid while she walked to her car. The hole was located on the city's property between a fence and a mailbox that was situated on the side of a road. The court of appeals agreed that it was not a special defect, reasoning that, since normal users of the road would not travel closer to the fence than the mailbox, a normal user would not encounter the hole and the hole did not create a danger to such user of the road. Bishop, 915 S.W.2d at 571. The City also points to three opinions by our sister courts of appeals: Purvis v. City of Dallas, No. 05-00-01062-CV, 2001 WL 717839 (Tex. App.-Dallas June 27, 2001, no pet.)(mem. op.)); Martinez v. City of Lubbock, 993 S.W.2d 882 (Tex. App.-Amarillo 1999, pet. denied); and Bishop v. City of Big Spring, 915 S.W.2d 566 (Tex. App.-Eastland 1995, no pet.). In Purvis, the plaintiff suffered injuries when he stepped into an uncovered manhole in a grassy area in Dallas between a sidewalk bordering Coit Road and a parking lot. Purvis, 2001 WL 717839, at *2. Although Purvis alleged that traversing the grassy area was the only way to access the sidewalk from the parking lot, and although the court of appeals agreed that an open manhole presented an unusual and unexpected danger, it held that its location did not represent a danger to ordinary users of Coit Road because the normal user of Coit Road would traverse the roadway or its sidewalk in either a northerly or southerly direction, but Purvis was walking west, away from the roadway, when he fell into the manhole. Consequently, he was not an ordinary user of Coit Road at the time of his fall. Id. at *3. In addition, since the manhole was in the grassy area, and a normal user would walk on the sidewalk and not in the grassy area, a normal user of Coit Road would not have encountered the open manhole, and the manhole did not pose a threat to such user. Id. at *3-4. Consequently, it was not a special defect.
While he acknowledges that the TTCA does not define "highway," "road," or "street," Snyder nevertheless argues that, by definition, the open manhole was a special defect. He argues that the definitions of "highway" and "street" are provided by the Texas Transportation Code where those terms are defined as "the width between the boundary lines of a publicly maintained way any part of which is open to the public for vehicular travel." Tex. Transp. Code Ann. § 541.302(5). Snyder asserts that Texas courts routinely look to the definitions provided in the Transportation Code, citing University of Texas at Austin v. Hayes, 279 S.W.3d 877, 890 (Tex. App-Austin 2009), rev'd on other grounds, 327 S.W.3d 113 (Tex. 2010), which cites Range l, Chacon, and City of Wichita Falls v. Ramos, 596 S.W.2d 654, 657 (Tex. App-Fort Worth 1980, writ ref d n.r.e.). He then points to the City's acknowledgment in its interrogatory answers and the depositions of its city manager and public works director that the uncovered manhole was located in the FM 130 ROW and concludes that the uncovered manhole was a special defect by definition and as a matter of law.
In Hayes, the University of Texas contended at the court of appeals that the driveway involved in that case was not a road, street, or highway. Hayes, 279 S.W.3d at 889. The Austin Court of Appeals used the Texas Transportation Code's definitions of "highway or street," "private road or driveway," and "roadway" in determining whether the driveway involved in that case was functionally a "private road or driveway." Id. at 890-91. At the Texas Supreme Court, the University did not raise this issue, and the court assumed, without deciding, that the driveway was a road, street, or highway. Hayes, 327 S.W.3d at 117 n.1. Nevertheless, the court reversed the court of appeals holding that the chain across the driveway was a special defect because it "would not pose a threat to an ordinary user in the normal course of travel." Id. at 116-17. In both Rangel and Chacon, the courts of appeals used the Transportation Code's definition of "sidewalk" in determining that a sidewalk was a portion of a street that is intended for pedestrian use. Rangel, 184 S.W.3d at 383; Chacon, 148 S.W.3d at 423. Nevertheless, the courts of appeals in both of those cases determined that the holes in those cases were special defects because they posed a danger to ordinary users of the sidewalk. Rangel, 184 S.W.3d at 384; Chacon, 148 S.W.3d at 425. In Ramos, the court of appeals never referenced the TTCA in determining the city's duty toward the plaintiff. Ramos, 596 S.W.2d at 656-57. Further, Ramos predated the Supreme Court decision in Payne that clarified that, whether the condition is on a road or near one, it can only be a special defect if it "pose[s] a threat to the ordinary users of a particular roadway." Payne, 838 S.W.2d at 238 n.3.
However, as Snyder appropriately acknowledged at oral argument, the Supreme Court has never used the definitions of "highway" or "street" in the Transportation Code in determining whether a condition is a special defect. Rather, while noting that the Legislature did not define "special defect" in the TTCA, the court has construed the use of the phrase "such as excavations or obstructions on highways, roads, or streets" in Section 101.022(b) as describing those "kinds of dangerous conditions against which the legislature intended to protect the public." Harris Cty. v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). Although the examples used in the statute are not exclusive, a special defect must be "of the same kind or class as the ones expressly mentioned." Id. Consequently, for a condition to be a special defect it must "be in the same class as an excavation or obstruction on a roadway." Perches, 388 S.W.3d at 655 (citing Beynon, 283 S.W.3d at 331). "'Whether on a road or near one,' 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 331-32 (quoting Payne, 838 S.W.2d at 238 n.3).
Even if we were to accept Snyder's invitation to engage in statutory construction of the Legislature's use of "highway," "street," or "road," there is little to indicate that the Legislature intended the definitions used in the Texas Transportation Code to apply to the TTCA. First, in the present version of the Transportation Code, Section 541.302 provides that its definitions are applicable to "this subtitle," i.e., subtitle C, entitled "Rules of the Road." Tex. Transp. Code Ann. § 541.302. When the TTCA was first enacted in 1969, the Uniform Act Regulating Traffic on Highways, which contained similar definitions. provided that its definitions were applicable "for the purpose of this Act.'" Act of June 3, 1947, 50th Leg., R.S., ch. 421, §§ 1, 13(a), 1942 Tex. Gen. Laws 967, 969, 1002 (repealed 1995). Second, in statutory construction, we apply the plain meaning of the Legislature's chosen words "unless (1) the Legislature has prescribed definitions, (2) the words have acquired a technical or particular meaning, (3) a contrary intention is apparent from the context, or (4) a plain-meaning construction leads to nonsensical or absurd results." In re Tex. Educ. Agency, 619 S.W.3d 679, 687 (Tex. 2021). The plain meaning of "highway" is "a public way" or "a main direct road." Highway, Merriam-Webster's Collegiate Dictionary (11th ed. 2006). The plain meaning of "street" is "a thoroughfare esp. in a city, town, or village that is wider than an alley or lane and that usu. includes sidewalks." Street, Merriam-Webster's Collegiate Dictionary (11th ed. 2006). The plain meaning of "road" is "an open way for vehicles, persons, and animals; esp: one lying outside of an urban district." Road, Merriam-Webster's Collegiate Dictionary (11th ed. 2006). Although the plain meaning of all of these terms would include the roadway over which vehicles and persons travel, and perhaps an adjoining sidewalk or shoulder, none of them include the entire grassy area that may be within the right-of-way.
While the Supreme Court has not foreclosed the possibility that a special defect may be located off the roadway, it has not expanded the "like an excavation or obstruction on a roadway" description of the class of conditions that may be special defects to include the entire area that is off the roadway but within the street or highway's right-of-way. For instance, in Beynon, although normally secured with a lock and chain and pointed away from traffic, at the time of the incident, the floodgate arm was unsecured and pointed toward traffic with its tip about three feet from the roadway. Id. at 330-31 n.1. After outlining the requirements of a special defect noted above, the Supreme Court explained:
The floodgate arm that injured . . . Beynon is not of the same kind or class as an excavation or obstruction, nor did it pose a threat to "ordinary users" in the manner that an excavation or obstruction blocking the road does. It thus falls outside the TTCA's narrow special-defect class as a matter of law . . . . [The floodgate arm] was in a resting position roughly three feet off the roadway, albeit unsecured and facing the wrong direction. Even still, the arm did not "pose a threat to the ordinary users of [Old Alton Road]," (Payne, 838 S.W.2d at 239 n.3) or prevent ordinary users from traveling on the road (as opposed to skidding off the road). Our cases rest on the objective expectations of an "ordinary user," and
such a driver would not be expected to careen uncontrollably off the paved roadway and into the adjoining grass.Id. at 332. Thus, although a special defect must be like an excavation or obstruction on a roadway, an obstruction or excavation's location, whether on or off the roadway, is significant only because it impacts the collateral questions of whether it posed a threat to the ordinary users of the roadway and what were the objective expectations of an ordinary user of the roadway. See also Perches, 388 S.W.3d at 656 (concrete guardrail bordering road not special defect because "[a]n ordinary user of the roadway would not be expected to miss a turn and crash through a concrete guardrail," which became an obstruction "only when Perches missed his turn and proceeded off the road").
Even when there is an obstruction or excavation on the roadway, the court still focuses on whether the obstruction or excavation posed a threat to an ordinary user and the objective expectations of an ordinary user of the roadway. In Hayes, the University of Texas closed a service driveway that connected Winship Circle to Gregory Gymnasium in preparation for a football game. The University stretched a chain across the entrance to the driveway and placed an orange and white barricade in front of the chain. That evening, Hayes rode his bicycle toward the service driveway, and even though he saw the barricade, he veered to the left side of the barricade and suffered injuries when he was stopped short by the chain. Hayes, 327 S.W.3d at 115. Even though the chain was an obstruction that stretched across the roadway, the Supreme Court held that it was not a special defect because "[r]oad users in the normal course of travel should turn back or take an alternate route when a barricade is erected to alert them of a closed roadway." Id. at 116. Consequently, "[t]his location-a chain across a barricaded and closed driveway-would not pose a threat to an ordinary user in the normal course of travel because an ordinary user would not have traveled beyond the barricade." Id. at 116-17.
In this case, Snyder alleged that the uncovered manhole posed a threat to ordinary pedestrian users of the highway. However, the City produced uncontested contrary evidence. Both photographic evidence and affidavit testimony showed that the manhole was located in a grassy area over fifteen feet from the edge of FM 130 and that there were no paths or trails near the manhole suggesting that pedestrians ordinarily traveled near the manhole; and Snyder testified that, on the morning of the accident, he was walking or jogging on the concrete until a vehicle was traveling toward him in the middle of the road and he moved to the middle of the grassy area to be safe.
Since the City challenged the jurisdictional facts and produced evidence showing that the manhole did not pose a threat to ordinary users of the roadway, Snyder had the burden of producing some evidence that it did pose such a threat. However, when we construe all evidence favorable to Snyder as true and indulge all reasonable inferences and resolve any doubts in Snyder's favor, none of the evidence Snyder either produced or relied on raises a material fact question on this issue. Although Thomas knew the manhole was uncovered, he did not indicate that he traveled in the area of the manhole. Although Crocker reported an uncovered manhole in 2012, she did not state that she or her son ever traveled in the area of the subject manhole. The offense/incident report did not state what Foster was doing at the time she heard yelling on the morning of the incident. Finally, although Mallory encountered the uncovered manhole sometime before the incident, his affidavit showed that he did not encounter it as an ordinary pedestrian using the roadway, but rather as he was inspecting a natural gas pipeline located in the same area as the manhole.
An ordinary pedestrian user of the roadway, whether walking or jogging, would generally follow the roadway by either traveling on the roadway or close by the side of the roadway, not over fifteen feet away from the roadway in an unmown, grassy area. While there may be an occasion in which a pedestrian is forced to travel several feet into the grassy area to avoid a careless driver, this would be analogous to the driver in Beynon being forced to the side of the road to avoid a collision with an oncoming vehicle-it is not the objective expectation of an ordinary user who follows the normal course of travel. Consequently, we find that the uncovered manhole did not pose a threat to the ordinary pedestrian user of the roadway.
Based on this record, since the uncovered manhole was not a special defect, we hold that Section 101.022(b) of the TTCA does not waive the City's immunity from suit. Hayes, 327 S.W.3d at 117. Therefore, it was error to deny the City's plea to the jurisdiction as to Snyder's claims based on special defect. We sustain this issue.
We do not decide whether the uncovered manhole in this case would be a special defect if the evidence showed a worn path or trail near the manhole or other evidence of frequent use near the manhole.
(2) No Evidence Shows the City's Actual Knowledge of the Uncovered Manhole
Since the open manhole was not a special defect, Snyder's hope to prosecute his claims against the City rests on his claim that the manhole was a premises defect. To establish a waiver of immunity for a premises-defect claim, Snyder must show that the City "failed to either (1) use ordinary care to warn [Snyder] of a condition that presented an unreasonable risk of harm of which the [City was] actually aware and [Snyder was] not, or (2) make the condition reasonably safe." Id. To show the actual-knowledge element, Snyder was required to show that the City "had actual knowledge 'of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.'" City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 (Tex. 2008) (quoting City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006)). "Hypothetical knowledge will not suffice." Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 392 (Tex. 2016) (citing Hayes, 327 S.W.3d at 117). The Supreme Court has noted that, "[a]though there is no one test for determining actual knowledge that a condition presents an unreasonable risk of harm, courts generally consider whether the premise owner has received reports of prior injuries or reports of the potential danger presented by the condition." Id. at 392 (quoting The Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam)); City of Dallas v. Reed, 258 S.W.3d 620, 623 (Tex. 2008). However, "[circumstantial evidence establishes actual knowledge only when it 'either directly or by reasonable inference' supports" the conclusion that the governmental entity actually knew of the dangerous condition at the time of the accident. Stewart, 249 S.W.3d at 415 (quoting State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)); Sampson, 500 S.W.3d at 394. As a result, "constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time" is not sufficient. Id. (citing Thompson, 210 S.W.3d at 603).
In Stewart, Stewart's car stalled when he attempted to cross a low water crossing on a road in Corsicana, which was flooded by heavy rains. Stewart left his children in the car and went to seek help but returned to find that his car had been swept away and his children had drowned. Stewart and the children's mother sued Corsicana for premises defect under the TTCA. Id. at 413. It was undisputed that there was no direct evidence that the city had actual knowledge that the crossing was flooded at the time of the accident. Id. at 414. The circumstantial evidence included:
(1) testimony from Lynch that the crossing "sometimes" flooded during heavy rains, that the crossing was designed to allow water to flow over it during heavy rains, and that the City closed the crossing on several prior occasions due to flooding; (2) a study commissioned by the City several years before the accident identifying the crossing as vulnerable to future flooding; (3) a former City Council member's testimony that she informed City personnel of "dangerous conditions" at the crossing during "light and heavy rains"; (4) the National Weather Service's issuance of four pertinent severe weather warnings on the afternoon and night preceding the accident; (5) evidence that the Texas Department of Transportation (TxDOT) closed a road one mile upstream from the crossing several hours before the accident due to flooding; and (6) the responding officer's statement that he had just assisted another officer apprehend a murder suspect before being dispatched to Stewart's 911 call . . . [as well as] statements in the responding officer's report at the evidentiary hearing that the rain was intense as he drove to assist Stewart, that local dispatch was inundated with calls for help from stranded motorists and flooded homeowners, and that many officers could not reach those in need due to high water.Id. The Supreme Court held that this "evidence [was] insufficient to support an inference of actual knowledge of a dangerous condition at the time it was occurring," id. at 416, and explained:
Plaintiffs' evidence indicates that there was inclement weather in the vicinity of Corsicana on the night of the accident, that a road one mile upstream was closed due to flooding, that the City knew the crossing tended to flood during heavy rains, and that the City was aware of heavy rains and flooding after the accident occurred. Neither this evidence nor the inferences arising therefrom raise a fact question on the City's actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident. There was evidence that TxDOT, a different governmental entity, had closed a different road due to flooding several hours before the accident, but Plaintiffs did not present evidence that the City knew of the road closure. Additionally, the responding officer's statements regarding the road conditions he encountered en route to Stewart and the numerous flood-related calls the City received after he left the scene of the
accident describe the City's knowledge of the weather and road conditions after the accident occurred, not before. Finally, Plaintiffs have not identified any City official likely to have made a similar connection.Id. at 415-16.
The City asserts in its second issue that the trial court erred in denying its plea to the jurisdiction as to Snyder's premise-defect claim because there was no evidence that the City had actual knowledge that the manhole was uncovered at the time of the incident. Because there is no direct evidence that the City knew that the manhole was uncovered at the time of Snyder's accident, the City argues that the circumstantial evidence in this case also does not support this conclusion. The City relies on Stewart to demonstrate that even compelling evidence showing the governmental entity's notice that a dangerous condition could develop is insufficient to support a conclusion that it had actual knowledge that a dangerous condition existed at the time of the accident.
Relying on the Supreme Court's statement that "courts generally consider whether the premise owner has received reports of prior injuries or reports of the potential danger presented by the condition," Reed, 258 S.W.3d at 623, Snyder argues that Gatlin's and Thomasson's testimony shows the City's actual knowledge of the potential danger presented by the uncovered manhole, given Crocker's testimony that she reported an uncovered manhole to TxDOT around 2012, and given Mallory's testimony that, when he reported the manhole was uncovered, workers came to cover it while he was still in the area. He also notes Moore's testimony that he put poles around the manhole after Snyder's accident because it had been hit before and he did not want it to be hit again. Snyder argues that this evidence shows that "the City had actual knowledge of the manhole repeatedly coming uncovered, had an unwritten, common sense policy to keep manholes covered to prevent the risk of injury, had actual knowledge that Mallory almost fell into the uncovered manhole, and had actual knowledge that it is foreseeable that individuals could fall" and that the City simply ignored the danger rather than remedying it.
Although the Supreme Court has made this statement in several cases, neither Reed nor any of the cases cited by Snyder have applied the standard and concluded that the evidence was sufficient to hold the defendant liable.
"[T]hat the owner could have done more to warn the licensee is not direct evidence to show that the owner had actual knowledge of the dangerous condition." Sampson, 500 S.W.3d at 392 (citing Hayes, 327 S.W.3d at 117-18).
Since the City challenged the jurisdictional facts and produced evidence showing that it did not have actual knowledge that the manhole was uncovered at the time of Snyder's accident, Snyder had the burden of producing some evidence that it did. To satisfy the actual knowledge requirement, the evidence must show the City's "actual knowledge 'of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition c[ould] develop over time.'" Stewart, 249 S.W.3d at 413-14.
The evidence in this case showed that:
1. Between 2010 and 2013, the City received at least three reports that the cover to the manhole had been removed or knocked off;
2. Each time it was reported, the City quickly replaced the cover;
3. From March 2015 until Snyder's accident on September 1, 2018, the City had not received any report that the manhole cover was missing or removed;
4. The City did not know the manhole cover was missing or removed on September 1, 2018, before Snyder's accident;
5. The City had an unwritten policy to keep manholes covered;
6. Crocker reported an uncovered manhole to TxDOT in 2012;
7. If TxDOT received a report of an uncovered manhole belonging to the City and located in one of its ROWs, it would have referred the caller to the City and followed up with the City; and
8. Mallory nearly fell into the uncovered manhole before he reported it to the City.
The evidence arguably demonstrates the City's knowledge that, if a manhole was uncovered, it would create a danger that a person might fall into it and that, on several occasions in the past, mowers had knocked off this manhole cover, but it was quickly replaced whenever the City learned it was missing. Yet, knowledge that a dangerous condition could develop is not enough. Rather, the evidence must show that the City had actual knowledge, at the time of the accident, that the manhole was uncovered. Construing all the evidence favorable to Snyder as true and indulging all reasonable inferences and resolving any doubts in Snyder's favor, we conclude that the City had no such knowledge.
The evidence in Stewart showed that the City of Corsicana knew that the low water crossing would flood during heavy rains, that it had been raining heavily, and that it had received many calls throughout the night from stranded motorists and flooded homeowners. Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (discussing Stewart). Evidence also showed that, on the night the children were drowned in the flooded crossing, TxDOT had, because of flooding, closed a nearby intersection an hour before the accident. Stewart, 249 S.W.3d at 414. Nevertheless, the Supreme Court concluded that "[n]either this evidence nor the inferences arising therefrom raise a fact question on the City's actual knowledge that a dangerous condition existed at or near the crossing at the time of the accident." Id. at 416; see also City of Denton v. Paper, 376 S.W.3d 762, 767 (Tex. 2012) (per curiam) (showing that knowledge that repacking an excavation in street might allow later subsidence is insufficient to show actual knowledge of dangerous condition at time of accident because "[a]wareness of a potential problem is not actual knowledge of an existing danger") (citing Reyes, 335 S.W.3d at 609).
Likewise, the evidence favorable to Snyder and the reasonable inferences from it are insufficient to raise a material fact issue as to whether the City knew at the time of Snyder's accident that the manhole was uncovered. Although this evidence may show the City's awareness of a potential problem, that will not suffice to show it had actual knowledge of an existing danger. See Paper, 376 S.W.3d at 767.
In this record, there is no evidence that the City had actual knowledge, at the time of the accident, that the manhole was uncovered. For that reason, Snyder has not shown that the City has waived its immunity for his premises defect claim. See Hayes, 327 S.W.3d at 117. Therefore, it was error to deny the City's plea to the jurisdiction as to Snyder's premises defect claim. We sustain this issue.
For the reasons stated, we reverse the judgment below and dismiss Snyder's case against the City for lack of jurisdiction.
CONCURRING OPINION
Jack Carter Justice.
More than likely, a person walking or driving, when faced with oncoming traffic that has veered into the wrong lane, will deviate onto the shoulder or to an unpaved area to avoid being struck. That is the action reasonably expected of an ordinary user of the highway.
The majority opinion states, "While there may be an occasion in which the pedestrian is forced to travel several feet into the grassy area to avoid a careless driver," such action would be analogous to the facts in Benyon. Benyon held that an obstruction located three feet (one step) off the highway posed no threat to an ordinary user of the highway. Benyon, 283 S.W.3d at 332.
Consequently, the majority opinion appears to conclude (as in Benyon) that, if a vehicle or pedestrian veers one step from the main traveled roadway, even to avoid a collision, the driver or pedestrian is not acting as an ordinary user of the roadway. I would disagree with such conclusion.
In this case, the pedestrian moved fifteen feet into the grassy right-of-way where he encountered the open manhole. I agree that is too far removed from the main traveled portion of the roadway to pose a threat to an ordinary user of the roadway. No paths or trails were nearby. So, I agree with the majority opinion that, in this instance, the manhole was not located in an area that posed a threat to the ordinary user of a roadway. I concur in the judgment of the Court.
[*]Jack Carter, Justice, Retired, Sitting by Assignment