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City of Richardson v. Phelps

Court of Appeals of Texas, Fifth District, Dallas

July 8, 2019

VAL PHELPS, Appellee

          On Appeal from the County Court at Law No. 2 Dallas County, Texas, Trial Court Cause No. CC-17-01642-B

          Before Justices Brown, Schenck, and Pedersen III.



         Val Phelps sued the City of Richardson, Texas, after he was injured while riding his bicycle in a designated bike lane. Phelps alleged there was a hazardous condition in the bike lane that was either a premises defect or a special defect. The City filed a plea to the jurisdiction, asserting that governmental immunity barred Phelps's claims. In this interlocutory appeal, the City challenges the trial court's denial of its plea. We conclude the City established as a matter of law that its immunity was not waived. Accordingly, we reverse and render judgment dismissing the case for lack of subject matter jurisdiction.


         On the morning of October 23, 2016, Phelps was riding his bicycle in the City with a group of about eighteen cyclists in a designated bike lane on Owens Boulevard. Pictures show the bike lane was positioned in between a lane to the right for parked cars and a lane to the left for moving vehicles. Phelps alleged there was a "lip or 'heave'" in the bike lane which ran in the direction in which the cyclists were traveling. As a result, the left side of the bike lane was higher than the right. Phelps had not been on the road before and was unaware of the lip. He moved from right to left to avoid a parked car and was "instantly thrown to the ground and injured." Phelps does not remember the crash or the few minutes leading up to it. Phelps alleged the City was liable under two alternative theories: (1) the condition of the bike lane was a premises defect, or (2) the condition constituted a special defect. Phelps sought to recover for property damage among other things.

         The City filed a plea to the jurisdiction. The City asserted the alleged defect was not a special defect and asserted it did not have actual knowledge of the condition, which is required for a premises defect. In support of its plea, the City submitted evidence, including Phelps's deposition and testimony from City employees. In response, Phelps acknowledged that had the defect been on a normal street, it would not be a special defect. He argued that because the defect was in a bike lane, it was a special defect because it created an unexpected and unusual condition for cyclists. He also asserted the City had actual knowledge of the premises defect based on previous repairs it made to the area and because of a previous complaint made by a cyclist named Mark Ramsey. The trial court denied the City's plea to the jurisdiction.[1] The City raises four issues challenging the trial court's ruling.

         Governmental Immunity

         Governmental entities are immune from suit absent legislative consent. Tarrant Cty. v. Bonner, No. 18-0431, 2019 WL 2256509, at *6 (Tex. May 24, 2019). If a governmental unit has immunity from suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). The City's immunity from suit for tort claims is waived to the extent the tort claims act creates liability. Tex. Civ. Prac. & Rem. Code Ann. § 101.025(a). The Act provides a limited waiver of immunity for claims arising from a condition or use of real property. Id. § 101.021(2); Zaidi v. N. Tex. Tollway Auth., No. 05-17-01056-CV, 2018 WL 6426798, at *2 (Tex. App.-Dallas Dec. 6, 2018, no pet.) (mem. op.). The Act recognizes potential liability for two types of dangerous conditions of real property, premises defects and special defects. Tex. Civ. Prac. & Rem. Code Ann. § 101.022; Chambers v. Tex. Dep't of Transp., No. 05-11-00519-CV, 2012 WL 1744706, at *3 (Tex. App.-Dallas May 16, 2012, pet. denied) (mem. op.). The Act imposes different standards of care depending on whether the condition is a premises defect or a special defect. Tex. Civ. Prac. & Rem. Code Ann. § 101.022; Zaidi, 2018 WL 6426798, at *3. Whether a condition is a premises or special defect is a question of law. State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994); Chambers, 2012 WL 1744706, at *3.

         A governmental unit may assert its immunity from suit through a plea to the jurisdiction which challenges the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the trial court's ruling on a plea to the jurisdiction de novo. City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018). Here, the City's jurisdictional plea challenged the existence of jurisdictional facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional summary judgment. Alamo Heights, 544 S.W.3d at 771. To avoid dismissal, a plaintiff must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction. Id. In determining whether a material fact issue exists, we must take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff's favor. Id.

         Special Defect

         In its first issue, the City contends the trial court erred in denying the plea to the jurisdiction regarding Phelps's special defect claim because the alleged defect was not a special defect. We agree.

         If a claim arises from a special defect, the governmental unit owes the same duty to warn that a private landowner owes an invitee. Chambers, 2012 WL 1744706, at *4. That duty requires a premises owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of which the owner is or reasonably should be aware. Id. The Legislature has not defined "special defect," but likens it to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). The supreme court has construed special defects to include other defects of the same kind or class as the two expressly mentioned in the statute. See Texas Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam). In determining whether a particular condition is like an excavation or obstruction, we consider the following: (1) the size of the condition; (2) whether the condition unexpectedly and physically impairs an ordinary user'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. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (per curiam).

         The class of special defects contemplated by the statute is narrow. City of Denton v. Paper, 376 S.W.3d 762, 766 (Tex. 2012) (per curiam); Hayes, 327 S.W.3d at 116. It does not include common potholes or similar depressions in the roadway. Paper, 376 S.W.3d at 766. Such irregularities in the roadway are unfortunately to be expected. Id. Typically they will not present an unusual danger to the traveler. Id. While something like a "ditch across the highway" is a special defect, a two-inch drop in the roadway is not. Hayes, 327 S.W.3d at 116 (citing Harris Cty. v. Eaton, 573 S.W.2d 177, 178, 180 (Tex. 1978) (oval-shaped hole, varying at places from six to ten inches in depth and covering more than ninety percent of width ...

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