Opinion
NO. 01-11-00318-CV
03-19-2013
CITY OF HOUSTON, Appellant v. EDMUND L. COGBURN, Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2010-47056
MEMORANDUM OPINION
The City of Houston appeals the trial court's denial of its plea to the jurisdiction based on governmental immunity. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2012). We affirm.
Background
Plaintiff Edmund Cogburn sued the City of Houston over injuries he sustained from tripping and falling against a city-owned parking meter. The following factual allegations relevant to Cogburn's claims against the City are taken from his live pleadings.
Plaintiff's First Amended Original Petition
On January 31, 2009, Mr, Cogburn and his wife parked their car at a city parking meter on the South side of the 1200 block of Ewing Street, Houston, Texas. Mr. Cogburn deposited the required sum of money in the city owned and operated parking meter and station. Upon returning to their car Mr. Cogburn tripped and fell at the parking meter on exposed roots and other corruption excavated at the site of the parking meter. He sustained a broken femur and knee damage. Since then, he has undergone surgeries, extended hospitalization and rehabilitation. He will never recover totally from his injuries.
The parking meter site was under the ownership and/or control of the defendant city and presented an unreasonable risk of harm, which was known and/or should have been known by defendant city.
The defendants owed Mr. Cogburn, a business invitee, and others the duty to use ordinary care to ensure that the premises did not present a danger [to] its invitees, including the duty to inspect, warn and or cure. The defendants breached their duties by failing to inspect, warn or to cure the defect. Defendants were negligent.
Plaintiff's First Supplemental Petition
The parking space and meter where plaintiff parked his car was only accessible by crossing an area of excavation and exposed roots and pipes and other hazards from the curb to the sidewalk. Indeed the parking meter itself is set in the excavated area and exposed roots.
The only lawful means of accessing the parking meter is for a person to walk (not levitate) on the area of exposed roots. Indeed, the payment side of the meter faces the sidewalk away from the street, and one must stand on the hazardous roots and be exposed to the protruding obstructions in order to feed the meter. Otherwise parking patrons would have to illegally jaywalk in the street, but then would have to walk across and stand on the roots to pay the meter. When plaintiff tripped and fell, his leg fell against the parking meter and it was the parking meter iron post which broke his fall and broke his leg. The defendants knew of the hazards but chose to ignore them Moreover, the defendants knew that in order to park at the meter, pay the meter, and return to the car that a patron such as plaintiff would have to cross the hazardous area which was almost like an obstacle course.
At the time that plaintiff was injured the entire area was covered with leaves and debris and the exposed roots were not open and obvious nor were they readily apparent or even visible to a reasonably prudent person.
The parking space, meter and area of access all constitute the premises which is used in order to park and for which the City charged.
The City filed a plea to the jurisdiction, asserting governmental immunity. The trial court denied the plea. The City appealed.
Applicable Law
A. Plea to the Jurisdiction
A plea to the jurisdiction based on governmental immunity is a challenge to the trial court's subject matter jurisdiction. See City of Waco v. Kirwan, 298 S.W.3d 618, 621 (Tex. 2009); Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). Whether the trial court has subject matter jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). We therefore review a trial court's ruling on a plea to the jurisdiction de novo. Id.
Sovereign immunity generally protects the state against lawsuits for money damages; governmental immunity provides protection to subdivisions of the state, including cities. Smith v. Galveston Cnty., 326 S.W.3d 695, 6998 (Tex. App.— Houston [1st Dist.] 2010, no pet.) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008) and Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004)).
When a plea to the jurisdiction challenges the sufficiency of plaintiff's jurisdictional pleadings, we must determine whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction. See Miranda, 133 S.W.3d at 226. We construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697-98 (Tex. App.—Houston [1st Dist.] 2010, no pet.). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend its petition. Smith, 326 S.W.3d at 698 (citing Miranda, 133 S.W.3d at 227). If the pleadings neither affirmatively demonstrate nor negate jurisdiction, "it is an issue of pleading sufficiency and the plaintiff should be given an opportunity to amend the pleadings." Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133 S.W.3d. at 227).
When a plea to the jurisdiction challenges the existence of jurisdictional facts, we "'consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised,' even where those facts may implicate the merits of the cause of action." Id. (quoting Miranda, 133 S.W.3d. at 227). When reviewing the evidence, we must take as true all evidence in favor of the nonmovant "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Id. (quoting Miranda, 133 S.W.3d. at 228). If the evidence creates a fact issue as to the jurisdictional issue, then the fact-finder will decide that issue. Id. (citing Miranda, 133 S.W.3d. 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. (quoting Miranda, 133 S.W.3d. at 228).
B. Premises Liability
In a premises liability suit, the duty that the owner or occupier of the premises owes to the plaintiff depends on the plaintiff's status at the time of the accident. The Tort Claims Act provides that "if a claim arises from a premises 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." TEX. CIV. PRAC. & REM. CODE ANN. §101.022(a) (West 2011). If the claimant pays for the use of the premises, the governmental entity owes the claimant the duty owed to an invitee. Tex. S. Univ. v. Gilford, 277 S.W.3d 65, 69-70 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (citing State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). A claimant is also treated as an invitee if the condition complained of amounts to a "special defect." Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (citing TEX. CIV. PRAC. & REM. CODE ANN. §101.022(b) (West 2011)).
If the claimant is an invitee, the owner or occupier must use reasonable care to protect the invitee from a condition on the premises that creates an unreasonable risk of harm of which the owner or occupier knew or through the exercise of reasonable care should have known. CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 101 (Tex. 2000); Mayer v. Willowbrook Plaza Ltd. P'ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.). If the claimant is a licensee, then the owner or occupier "must refrain from injuring a licensee willfully, wantonly, or through gross negligence; the owner or occupier who has actual knowledge of a dangerous condition unknown to the licensee must warn of or make safe the dangerous condition." Mayer, 278 S.W.3d at 910.
The claimant's status as a licensee or an invitee thus provides a different burden concerning the knowledge of the parties. A licensee must prove both that the owner or occupier had actual knowledge of the condition and that the condition was unknown to the licensee. Id. In contrast, an invitee need only prove that the owner or occupier knew or should have known of the condition. Id.
Issue on Appeal
In a single issue, the City of Houston argues that the trial court erred by denying its plea to the jurisdiction because (1) Cogburn failed to plead a valid waiver of immunity, regardless of whether he was an invitee or licensee, (2) the City's "uncontroverted evidence demonstrates no jurisdiction," and (3) tree maintenance is a discretionary act for which immunity is retained as a matter of law.
A. Was Cogburn a licensee or invitee?
The City first contends that it owed Cogburn the duty owed to a licensee, not to an invitee. The City acknowledges that if "a person pays for the use of the governmental unit's premises where they were injured, that person becomes an invitee," and, in that circumstance, the City "would have been required to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware." But the City points out that "Cogburn does not allege he tripped and fell in the parking space," i.e., the premises he paid to use. Rather, "Cogburn claims he tripped and fell on tree roots which are axiomatically not in the parking space, but between the curb and sidewalk." Thus, according to the City, because the area in which Cogburn allegedly tripped "is not located in the 'rented' area," he is not afforded invitee status.
Cogburn's response is two-fold. First, he argues that the City too narrowly defines the area he paid to use. The parking meter faces away from the street and is physically located in the strip of land between the street and sidewalk. Thus, he reasons, "[p]atrons had to ingress and egress through the site to pay the meter," and "Cogburn required lawful access to and from his car to pay the meter and to return to his car." He asserts that the "access contemplated by and provided by the City was across the area from the curb to the sidewalk" such that "effectively the City exercised control over this area and invited Congburn and others to use it in patronizing the parking space and meter." In sum, because "the parking space and meter where the Cogburns parked their car and paid the parking fee was only accessible by crossing an area of excavation and exposed roots and pipes and other hazards from the curb to the sidewalk," the "parking space, meter and area of access all constitute the premise which is used for parking and for which the City charged." Accordingly, he argues, he is entitled to invitee status because he paid for use of the area where he was injured.
Second, Cogburn argues that, regardless of whether he paid to use the City's premises, the City owed him the same duty as owed to an invitee because the dangerous condition that caused his injury qualifies as a "special defect."
We need not decide precisely which area Cogburn paid to use because we agree that he has sufficiently pleaded a special defect. See TEX. CIV. PRAC. & REM. CODE ANN. §101.022(b). Determining whether an alleged condition is a special defect or an ordinary premises defect is a question of law. Payne, 838 S.W.2d at 238. The Tort Claims Act does not specifically define "special defects" but describes them as "defects such as excavations or obstructions on highways, roads, or streets." TEX. CIV. PRAC. & REM. CODE ANN. §101.022(b). "The examples in the statute are not exclusive, and courts are to construe 'special defects' to include defects of the same kind or class as the ones expressly mentioned in the statute." City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
Several courts of appeals have recognized that obstructions and excavations on sidewalks that cause unexpected and unusual danger to pedestrians can be special defects. E.g., City of El Paso v. Chacon, 148 S.W.3d 417, 423 (Tex. App.—El Paso 2004, pet. denied) ("All pedestrians wishing to walk up or down that side of the street must use the sidewalk. We conclude the defect was related to a street."). Courts have likewise recognized that certain conditions in the area immediately abutting a roadway can amount to a special defect, if it is an area that pedestrians would be expected to use. Compare Harris Cnty. v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (holding that uncovered, unmarked storm sewer hole located both in and immediately adjacent to street "where a pedestrian would normally walk on a street without a sidewalk and in the absence of streetlights constituted a special defect"), with Bishop v. City of Big Spring, 915 S.W.2d 566, 571 (Tex. App.—Eastland 1995, no pet.) (holding that water meter box hole located between street and fence was not a special defect because it was not in area that would normally be encountered by users of the road).
The Texas Supreme Court has indicated that a special defect need not necessarily occur on the surface of a road but has declined to create a bright-line rule. In Payne, the supreme court noted that the "courts of our state have recognized that conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road." 838 S.W.2d at 238-39 n.3; see also id. ("Whether on a road or near one, however, conditions can be 'special defects such as excavations or obstructions on highways, roads, or streets' only if they pose a threat to the ordinary users of a particular roadway." (emphasis added)). But in Denton County v. Beynon, the supreme court expressly declined to decide whether, or under what circumstances, "an off-road hazard can constitute a special defect" reasoning that "fact patterns obviously vary from case to case." 283 S.W.3d 329, 333 n.18 (Tex. 2009). With regard to sidewalks, the supreme court has twice rejected arguments that conditions amounted to a special defect, not because the sidewalks were outside the roadway, but because complained-about conditions were not unexpected or unusually dangerous. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) ("eroded place in the flat surface of sidewalk" was ordinary, not special, defect because it did not present unexpected and unusual danger); Roberts, 946 S.W.2d at 843 (crumbled sidewalk steps leading to street were not special defect because condition was not comparable to "excavation or obstruction" such that it "pose[d] a threat to the ordinary users of the abutting roadway").
In this case, Cogburn has pleaded, and the City does not dispute, that Cogburn fell in an area immediately adjacent to the road that users of the City's parking meters were not only expected, but were required, to traverse. The alleged defect is thus in an area that users of the road and users of the parallel sidewalk can be expected to use. Smoker, 934 S.W.2d at 719; see also City of Austin v. Rangel, 184 S.W.3d 377, 384 (Tex. App.—Austin 2006, no pet.) ("A normal user of the roadway in this situation would be a pedestrian on the sidewalk" who would "not expect to encounter a hole of this size.").
The next question is then whether Cogburn pleaded a defect that is "of the same kind or class as the ones expressly mentioned in the statute," City of Grapevine, 946 S.W.2d at 843, i.e., "defects such as excavations or obstructions on highways, roads, or streets." TEX. CIV. PRAC. & REM. CODE ANN. §101.022(b). Cogburn pleaded that he tripped on "exposed roots and other corruption excavated at the site of the parking meter," and his pleading described the area where he fell and where the parking meter is located as "an area of excavation and exposed roots and pipes and other hazards." The City has not challenged either the sufficiency of Cogburn's allegations concerning the "excavation" or the fact that an area of excavation and other hazards existed where Cogburn fell. See Miranda, 133 S.W.3d at 226-27. As section 101.022(b) expressly contemplates waiver of immunity for excavations and obstructions, we hold that Cogburn sufficiently pleaded a special defect, granting him invitee status for purposes of evaluating the sufficiency of his pleading a waiver of immunity.
The Texas Supreme Court has identified several relevant considerations: (1) the size of the condition; (2) whether the condition unexpectedly and physically impairs normal use of the road by ordinary users; and (3) whether the condition presents some unusual quality apart from the ordinary course of events. Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009).
B. Did Cogburn sufficiently plead his claim?
The general elements of a claim based on a special defect are:
(1) a condition of the premises created an unreasonable risk of harm to the invitee;Chacon, 148 S.W.3d at 425 (citing Payne, 838 S.W.2d at 237.) "We thus look to [Cogburn's] petition to determine if it sufficiently pleads facts which, if taken as true, will support jurisdiction." Id. (citing Texas Ass'n of Bus. v. Tex. Air Control Bd., 85 S.W.2d 440, 446 (Tex. 1993). We then look to whether there is evidence that conclusively disproves jurisdiction. Brazoria Cnty. v. Van Gelder, 304 S.W.3d 447, 451 (Tex. App.—Houston [14th Dist.] 2009, pet. filed).
(2) the owner knew or should have known of the condition;
(3) the owner failed to exercise ordinary care to protect the invitee from danger; and
(4) the owner's failure was a proximate cause of injury to the invitee.
1. Possession or Control of the Premises by the City
As a threshold matter, we must determine whether Cogburn adequately pleaded that the City owned or occupied the property where Cogburn was injured. Sepulveda v. County of El Paso, 170 S.W.3d 605, 615 (Tex. App.—El Paso 2005, pet. denied) ("A premises-defect claim[ant] generally must show that the defendant possessed—that is, owned occupied, or controlled—the premises where the injury occurred.").
While the City's brief argues that it did not "possess" the area in which Cogburn was injured, it does not explain who owns the property or under what right it placed its meters there. It appears from the parties' filings in the trial court that another defendant, HCP Medical Office Buildings, L.P., owns the property between the street and the sidewalk, and that the City owns a right-of-way over the property.
Cogburn added HCP as a defendant in his First Amended Original Petition. The City's answer avers that Cogburn's injuries were caused by a party "over whom this Defendant had no supervision or control, namely the abutting property owner." In its plea to the jurisdiction, the City states "While Houston had the right of way to place the meter, it does not follow that Houston was required to maintain the tree roots located between the curb and the sidewalk."
"Even if a defendant did not own or physically occupy the property, it may be held liable for a dangerous condition on the property if it assumed control over and responsibility for the premises." Tex. Dep't of Family & Protective Servs. v. Atwood, 176 S.W.3d 522, 532 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (citing Cnty. of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002)). "The relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it." Id. In the case of a special defect, the governmental unit that owns or controls the premises need not be the one that caused the defect for the duty to warn to arise. Sepulveda, 170 S.W.3d at 616 (citing Harris Cnty. v. Eaton, 573 S.W.2d 177, 179-80 (Tex. 1978)).
Cogburn stated, in his First Amended Original Petition, that he "fell at the parking meter" and that "[t]he parking meter site was under the ownership and/or control of the defendant city." His First Supplemental Petition asserts, "The parking space, meter and area of access all constitute the premises which is used in order to park and for which the City charged."
The City argues that Cogburn judicially admitted that the City did not own the site. It argues that Cogburn's initial pleading only claimed that Cogburn tripped at "the site of the parking meter," which is not the rented parking space. Although Cogburn's supplemental petition added the allegation that the "parking space, meter and area of access all constitute the premises which is used in order to park and for which the City charged," the City asserts that these new allegations do not supersede the admissions from the early pleadings.
"Assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001). "An admission in a pleading must be deliberate, clear, and unequivocal to constitute a judicial admission." Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 344 (Tex. App.—Houston [1st Dist.] 2011, no pet.).
The City does not identify any deliberate, clear, and unequivocal assertion of fact made by Cogburn that conflicts with his supplemental petition. More importantly, the City overlooks Cogburn's assertion that "[t]he parking meter site was under the ownership and/or control of the defendant city."
The City also argues that it "produced uncontroverted evidence that it maintains trees in certain rights of way, but 1200 Ewing Street is not included in the properties maintained." Accordingly, it contends, because it "does not maintain the area, and does not charge for anything but the parking space, . . . [the City] is not the 'possessor' of the premises where Cogburn fell."
Cogburn adequately pleaded that the City exercised control over the site at which he was injured by placing a meter there and requiring those using the parking space and meter to traverse the site. Given that the City has a right of way over the area and that it occupies the site for its meter and its customers' use to access both the meter and their vehicles, the City's evidence that it does not maintain trees in the right of way does not conclusively prove that it does not possess or control the site.
B. Unreasonable Risk of Harm
The City next argues that, even if Cogburn is an invitee, a tree root is a "naturally occurring condition" that does not pose an unreasonable risk of harm sufficient to support a premises liability claim as a matter of law under the supreme court's decision in Scott and White Mem'l Hosp. v. Fair. See 310 S.W.3d 411, 413-14 (Tex. 2010) (conditions such as naturally occurring ice, naturally accumulating mud, and dirt in its natural state are not unreasonable risks of harm for premises liability claims); see also id. at 413 ("[I]nvitees are often better positioned to avoid the dangers associated with muddy walkways."). The City provided evidence with its plea to the jurisdiction that "[t]ree roots coming to the surface is naturally occurring in Houston due to our climate and soil." Thus, the City contends, "the tree root on which Cogburn allegedly tripped was a naturally occurring condition" that cannot, as a matter of law, pose an unreasonable risk of harm. Lastly, the City asserts that "Cogburn, just like the Fairs [in Scott and White who slipped on the ice], was in a position to avoid the danger altogether, as he had traversed the area once before without tripping, and could have avoided the area entirely."
In response, Cogburn argues that Scott and White is distinguishable because in that case there was uncontroverted evidence that the ice—the actual hazard— had occurred naturally without manmade interference. 310 S.W.3d at 414 ("[W]e hold that naturally occurring ice that accumulates without the assistance or involvement of unnatural contact is not an unreasonably dangerous condition sufficient to support a premises liability claim.") In contrast, here, Cogburn points out, while "above surface roots of certain trees may be a naturally occurring condition for some trees as one of the City's affiants has posited, there is no evidence that these roots in this case were exposed to the surface under naturally occurring conditions." He also emphasizes that his petition alleges that roots, pipes and other obstructions were exposed as a result of excavation and then hidden by leaves and debris.
We agree with Cogburn that Scott and White is not dispositve. The supreme court in Scott and White specifically limited its holding and reasoning to situations involving a "natural accumulation" of things like ice or mud. 310 S.W.3d at 414-15. Here, Cogburn asserted that the area was excavated, "a term generally used to refer to a hole," Van Gelder, 304 S.W.3d at 452, but there is no evidence about whether that excavated area was caused by work done by someone in the area or occurred naturally. See City of Houston v. Kiju Joh, 359 S.W.3d 895, 901 n.7 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (recognizing that "in almost every instance in which a court has examined an uncovered, man-made hole on a public street or a sidewalk adjacent to a street, those courts have determined that hole to be a special defect").
In addition, Cogburn alleged that he tripped on "exposed roots and other corruption excavated at the site of the parking meter," that the area where he fell was "an area of excavation and exposed roots and pipes and other hazards" and that the parking meter was "in the excavated area." (emphasis added). Assuming without deciding that Scott and White's rationale about ice and mud would extend to tree roots, it would only apply to a "naturally occurring" tree root, not pipes and other debris. See 310 S.W.3d at 414.
The City has not addressed the alleged presence of the pipes and other hazards, nor does it address the allegation that the area was excavated; instead, it only argues that tree roots above the surface would be a naturally occurring condition. We conclude that the trial court did not err by determining that Cogburn's allegations of a condition posing an unreasonable risk of harm were sufficient.
C. Knowledge of the Alleged Dangerous Condition
The City contends that Cogburn fails to sufficiently allege that the City had knowledge of the alleged condition. It acknowledges that Cogburn's First Supplemental Petition states that the City "knew of the hazards," but argues that we must disregard that assertion because Cogburn's earlier pleading, the First Amended Original Petition, stated instead that the City "knew or should have known," which is not the applicable standard for a licensee. It further contends that it provided uncontroverted evidence that it lacked actual knowledge of the dangerous condition in the form of five affidavits from various City employees of different departments.
While the City is correct that "knew or should have known" is not the standard applicable to a licensee, it is the standard applicable to an invitee. See CMH Homes, Inc., 15 S.W.3d at 101; Mayer, 278 S.W.3d at 909. We have previously concluded that Cogburn sufficiently pleaded a special defect, to which the "knew or should have known" invitee status applies. Cogburn sufficiently pleaded the applicable standard, and the City does not argue that it presented evidence related to whether it "should have known" of the allegedly unsafe condition. The City also asserts that Cogburn "failed to sufficiently plead that he was unaware of the alleged danger." Specifically, the City quotes this Court's opinion in Graf v. Harris County, that "[a] licensee cannot expect the landowner to warn [him] of conditions that are perceptible to [him]." 877 S.W.2d 82, 86 (Tex. App.—Houston [1st Dist.] 1994, writ denied). The City contends that because Cogburn walked across the area near the meter once without falling, he must have gained knowledge of the dangerous condition before he fell. Relatedly, the City claims that Cogburn's pleading that he tripped on "exposed" roots is a judicial admission that he was aware of the roots.
We also note that the City's evidence does not, as it contends, disprove its "actual knowledge." As the City noted in its plea to the jurisdiction, actual knowledge is "information concerning a fact actually communicated to or obtained by a City employee responsible for acting on the information so received or so obtained." City of Dallas v. Donovan, 768 S.W.2d 905, 908 (Tex App.—Dallas 1989, no writ). The City presents several affidavits from various City employees claiming that they have no record of receiving a complaint about the area in which Cogburn fell, but nowhere in its plea, the attached evidence, or its brief here does it identify who the "City employee responsible for acting" on or receiving that information would be.
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While lack of knowledge of the danger is an element of a licensee claim, it is not an element of an invitee's claim. Payne, 838 S.W.2d at 237 ("A licensee must prove that he did not know of the dangerous condition, while an invitee need not do so."). Thus, Cogburn's lack of knowledge is not an element of his claim. We also conclude that the City's argument is not premised on a fair reading of Cogburn's pleadings. See Smith, 326 S.W.3d at 697-98 (We construe the pleadings liberally in favor of the plaintiff . . . .). Cogburn pleaded that "the entire area was covered with leaves and debris and the exposed roots were not open and obvious nor were they readily apparent or even visible to a reasonably prudent person." Taken in context and in light of the entire pleadings, the fact that Cogburn walked near the meter once without falling once does not establish his knowledge of the allegedly dangerous condition, nor does his use of the word "exposed" rise to the level of a judicial admission that he was aware of the condition.
D. Discretionary function
Finally, the City argues that tree maintenance is a discretionary act for which the Tort Claims Act does not waive immunity. TEX. CIV. PRAC. & REM. CODE ANN. §101.056 (West 2011). The existence of a special defect, however, is an exception to the rule that a governmental entity does not waive immunity for a discretionary act. See State v. Wollesen, 93 S.W.3d 910, 913 (Tex. App.—Austin 2002, no pet.) (stating that "regardless of whether the governmental act was discretionary, the State waives its immunity for the duty to warn of special defects") (citing State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999), abrogated on other grounds by Denton Cnty. v. Beynon, 283 S.W.3d 329 (Tex. 2009)); see also Kelly v. City of La Marque, No. 01-00-01068-CV, 2002 WL 1435924, at *3 (Tex. App.—Houston [1st Dist.] July 3, 2002, pet. denied) (not designated for publication) ("Even if the decision in question is discretionary, when a resulting condition constitutes a special defect, the governmental unit has an obligation to place a warning device; otherwise, it waives its immunity.").
Conclusion
We affirm the trial court's order.
Rebeca Huddle
Justice
Panel consists of Justices Jennings, Massengale, and Huddle.