Court of Appeals of Texas, Second District, Fort Worth
THE 48TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
LIVINGSTON, C. J; GABRIEL and KERR, JJ
MEMORANDUM OPINION 
ELIZABETH KERR JUSTICE
a recurring issue whose contours remain murky even after
several decades of judicial mulling: analyzing what
constitutes a special defect for Texas Tort Claims Act
purposes, this time a missized manhole cover that badly
injured S.C. when she stepped on it and the cover rotated
vertically, causing her to slip straight down onto its
upright edge. Though not challenging the cover's status
as an ordinary premises defect, the City of Arlington appeals
the denial of its partial-summary-judgment motion on
S.C.'s special-defect claim. Despite this particular
defect's close proximity to the roadway-mere inches,
despite its integration into a stormwater-inlet top connected
directly to the road's curb, and despite the danger it
posed to people who might be doing nothing more unusual than
stepping out of a car or up onto the curb from the street,
precedent requires us to hold that the trial court should
have granted the City's motion. We therefore reverse and
early January 2015, SC and her family were moving into a house in
Arlington that her parents (the owners) had leased to them.
S.C. parked her car at the curb in front of the house; the
driveway was taken up by a U-Haul truck. As shown in the
below photograph-which at the City's request S.C.
illustrated during her deposition-S.C. got out of her car on
the street side and started to walk up the driveway. After
realizing that her car was unlocked, rather than go back into
the street S.C. simply walked behind the mailbox and stepped
onto the concrete stormwater-inlet cover, or top, that was
basically an extension of the curb; S.C. intended to lock her
car on the passenger Side.
from the street was a manhole cover embedded in the
stormwater-inlet top that extended from the curb into the
yard and within the City's right-of-way. That cover lined
up "exactly, " in S.C.'s words, with her
car's passenger-side door. Because the manhole cover was
the wrong size for its opening, when S.C. stepped on it the
cover rotated vertically, causing her right leg to plunge
into the hole. Gravity then took the right side of her body
down onto the leading edge of the manhole cover, and S.C.
seriously injured her pubic bone and groin area as she was
left straddling the now-perpendicular manhole cover. After
S.C.'s husband and stepson lifted her out of the hole,
S.C.'s mother drove her to the emergency room at
Arlington Memorial Hospital, where S.C. remained hospitalized
for four to six days.
City's designated representative acknowledged in his
deposition that the improperly sized manhole cover was a
"hazard" and that the City "should have
known" that the cover was undersized.
both a special defect and an ordinary premises defect in her
live pleading, SC sued the City of Arlington under the Texas
Tort Claims Act. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 101.021, 101.022 (West 2011). S.C.'s
husband (T.C.), T.C.'s minor son B.C., and S.C.'s
three minor children pleaded bystander injuries. The City
moved for partial summary judgment only on the special-defect
claim; the trial court denied the motion after a hearing, and
this appeal followed.
governmental entity such as the City of Arlington may
challenge subject-matter jurisdiction by a variety of
procedural vehicles, including by moving for summary
judgment. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d
547, 554 (Tex. 2000) ("The absence of subject-matter
jurisdiction may be raised by a plea to the jurisdiction, as
well as by other procedural vehicles, such as a motion for
summary judgment."). Because subject-matter jurisdiction
and related issues of governmental immunity are questions of
law, they are appropriately decided on summary judgment.
Tex. Dep't of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004); Wichita Cty. v.
Bonnin, 268 S.W.3d 811, 815 (Tex. App.-Fort Worth 2008,
pet. denied) (citing Rhone-Poulenc, Inc. v. Steel,
997 S.W.2d 217, 223 (Tex. 1999)). We review such matters-as
well as the purely legal question of whether something is an
ordinary premises defect or a special defect-de novo.
Tex. Dep't of Transp. v. York, 284 S.W.3d 844,
847 (Tex. 2009).
Texas Tort Claims Act and Premises Liability:
vs. special defects; proximity to a roadway; excavation
Texas Tort Claims Act has been described as providing a
"limited waiver of sovereign immunity, allowing suits to
be brought against governmental units only in certain,
narrowly defined circumstances." Tex. Dep't of
Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001)
(citing Dallas Cty. MHMR v. Bossley, 968 S.W.2d 339,
341 (Tex.) ("[T]he Legislature intended the waiver in
the Act to be limited."), cert. denied, 525
U.S. 1017 (1998)). One of those narrow circumstances involves
personal-injury claims arising from premises defects.
See Tex. Civ. Prac. & Rem. Code Ann. §
101.021(2) (stating that a "governmental unit" is
liable for personal injury ...