Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-15-000533, HONORABLE TIM SULAK, JUDGE PRESIDING
Chief Justice Rose, Justices Goodwin and Bourland.
Melissa Goodwin, Justice.
Vykoukal and Eliezer Perez brought suit against the City of
Austin and Austin Energy (jointly, the City) pursuant to the
Texas Tort Claims Act (TTCA) for personal injury damages
sustained in a motor vehicle accident caused by an alleged
special defect. See Tex. Civ. Prac. & Rem. Code
§§ 101.001-.109. In this interlocutory appeal, the
City challenges the trial court's denial of its Plea to
the Jurisdiction and Motion for Summary Judgment based on
governmental immunity. See id. § 51.014(a)(8).
For the reasons that follow, we reverse the trial court's
order and dismiss Vykoukal's and Perez's claims for
lack of jurisdiction.
and Perez were riding their bicycles in the bike lane
westbound on Rosewood Avenue in Austin, Texas, during the
middle of the day. As they approached the intersection of
Rosewood Avenue and Bedford, not far from where a right turn
lane begins, they came across a portion of the bike lane that
was partially encroached upon by overgrown vegetation on the
property of the homeowners at 2500 Rosewood Avenue. They
stopped in the bike lane in the shade provided by the
overgrown vegetation to have a drink of water. Shortly after
they stopped, a westbound driver approached, left the portion
of the road designated for automobile travel, drove across
the solid white line into the bike lane, and struck Vykoukal
and Perez, who were seriously injured and taken to the
hospital by ambulance. According to Vykoukal and Perez, the
driver told investigating police officers that she had not
seen Vykoukal and Perez and did "not know if the sun was
in her face or what." One of the officers replied,
"But it's 11:30 . . . and the sun rises in the
and Perez sued the City alleging that the overgrown
vegetation constituted a special defect and that the City had
breached its duty to maintain the right of way and keep it
free of obstruction. The City filed a Plea to the Jurisdiction
and Motion for Summary Judgment, arguing that it retained its
immunity because the overgrown vegetation was not a special
defect and that Vykoukal and Perez could not amend their
pleadings to establish a premises defect. The City attached
evidence to its motion, including excerpts from the
depositions of Vykoukal and Perez and photographs of the
scene of the accident. Vykoukal and Perez filed a response
and also presented evidence, including an affidavit of
Vykoukal, photographs of the scene, and the police report and
dash cam video. Following a hearing, the trial court
denied the City's Plea to the Jurisdiction and Motion for
Summary Judgment, and this appeal followed.
OF REVIEW AND APPLICABLE LAW
review a trial court's ruling on a plea questioning the
trial court's subject matter jurisdiction de novo.
See Texas Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). We focus
first on the plaintiff's petition to determine whether
the facts that were pled affirmatively demonstrate that
subject matter jurisdiction exists. Id. at 226. We
construe the pleadings liberally in favor of the plaintiff.
Id. If a plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court may
consider evidence and must do so when necessary to resolve
the jurisdictional issues raised. Id. at 227 (citing
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555
evidence is submitted that implicates the merits of the case,
as is the case here, our standard of review generally mirrors
the summary judgment standard under Texas Rule of Civil
Procedure 166a(c). Id. at 227-28; see Tex.
R. Civ. P. 166a(c). The burden is on the governmental unit to
present evidence to support its plea. Miranda, 133
S.W.3d at 228. If the governmental unit meets this burden,
the burden shifts to the nonmovant to show that a disputed
material fact exists regarding the jurisdictional issue.
Id. We take as true all evidence that is favorable
to the nonmovant and indulge every reasonable inference and
resolve any doubts in the nonmovant's favor. Id.
If the evidence creates a fact issue as to jurisdiction, the
trial court cannot grant the plea to the jurisdiction, and
the fact issue must be resolved by the fact finder at trial.
Id. at 227-28; University of Tex. v.
Poindexter, 306 S.W.3d 798, 807 (Tex. App.-Austin 2009,
no pet.). On the other hand, if the undisputed evidence
establishes that there is no jurisdiction or fails to raise a
fact issue, the trial court rules on the plea to the
jurisdiction as a matter of law. Miranda, 133 S.W.3d
at 228; Poindexter, 306 S.W.3d at 807.
immunity deprives a trial court of subject matter
jurisdiction in suits against political subdivisions of the
state, including cities, unless the political subdivision
consents to suit and is therefore properly asserted in a plea
to the jurisdiction. Rolling Plains Groundwater
Conservation Dist. v. City of Aspermont, 353 S.W.3d 756,
759 n.4 (Tex. 2011) (per curiam) (distinguishing between
sovereign immunity, which protects State and its divisions
from suit and liability, and governmental immunity, which
affords like protection to political subdivisions, including
counties, cities, and school districts); Miranda,
133 S.W.3d at 225-26. The TTCA provides a limited waiver of
immunity for two categories of claims that allege dangerous
conditions on real property-"premises defects" and
"special defects." See Tex. Civ. Prac.
& Rem. Code §§ 101.022(a) (providing for
governmental unit's liability for premises defects), (b)
(providing for governmental unit's liability for special
defects), .025 (waiving sovereign immunity to suit "to
the extent of liability created by this chapter" and
allowing person with claim under TTCA to sue governmental
unit for damages); University of Tex. at Austin v.
Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010) (per curiam).
"'Premises defects' may be defined generally as
defects or dangerous conditions arising from conditions of a
premises. 'Special defects' are a subset of premises
defects and include conditions such as excavations or
obstructions on highways, roads, or streets."
University of Tex. at Austin v. Sampson, 488 S.W.3d
332, 338-39 (Tex. App.-Austin 2014), aff'd, 500
S.W.3d 380 (Tex. 2016) (internal citations and quotations
Texas law, whether the complained-of condition is classified
as a premises defect or a special defect determines the
entrant's status and, in turn, the duty of care owed to
the entrant by the governmental unit. See Tex. Civ.
Prac. & Rem. Code § 101.022; City of Dallas v.
Reed, 258 S.W.3d 620, 622 (Tex. 2008) (per curiam). If
the claim arises from a special defect, the governmental unit
owes the claimant the same duty of care that a private
landowner owes an invitee. See Tex. Civ. Prac. &
Rem. Code § 101.022(b); Texas Dep't of Transp.
v. Perches, 388 S.W.3d 652, 654-55 (Tex. 2012) (per
curiam) (citing State Dep't of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).
Under this standard, the governmental unit must use ordinary
care to reduce or eliminate an unreasonable risk of harm
which the governmental unit knew or should have known about.
Payne, 838 S.W.2d at 237. If the condition alleged
is a premises defect, the governmental unit owes the claimant
only the duty of care that a private landowner would owe a
licensee. See Tex. Civ. Prac. & Rem. Code §
101.022(a); Perches, 388 S.W.3d at 656. That duty
would require the City here (1) not to injure the licensee by
willful, wanton, or grossly negligent conduct, and (2) to use
ordinary care to warn of or make reasonably safe a dangerous
condition of which the City was aware and the licensee was
not. See Perches, 388 S.W.3d at 656 (citing
Payne, 838 S.W.2d at 237). Whether a condition is a
premises defect or a special defect is a question of law,
which we review de novo. Texas Dep't of Transp. v.
York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam)
(citing Payne, 838 S.W.2d at 238).