Court of Appeals of Texas, Fifth District, Dallas
Appeal from the County Court at Law No. 2 Dallas County,
Texas, Trial Court Cause No. CC-17-01642-B
Justices Brown, Schenck, and Pedersen III.
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.
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
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. The City raises four issues challenging
the trial court's ruling.
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.
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
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.
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).
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 ...