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City of Dallas v. Freeman

Court of Appeals of Texas, Fifth District, Dallas

July 17, 2019

THE CITY OF DALLAS, Appellant
v.
WILLIAM CLINTON FREEMAN, Appellee

          On Appeal from the County Court at Law No. 3 Dallas County, Texas Trial Court Cause No. CC-16-00805-C

          Before Justices Bridges, Osborne, and Reichek

          MEMORANDUM OPINION

          DAVID L. BRIDGES JUSTICE

         Appellee William Clinton Freeman sued the City of Dallas after he wa s i njured while riding a bicycle on a City sidewalk. Freeman alleged he was injured as a result of a hazardous condition that was either a special defect or an ordinary-premises defect. The City filed a plea to the jurisdiction asserting immunity under the Texas Tort Claims Act. The trial court denied the City's plea to the jurisdiction. On appeal, the City argues the trial court erred by denying its plea to the jurisdiction because the three inch elevation change between the sidewalk and the abutting curb, about which Freeman complains, was not a special defect, and the City did not have actual knowledge of the elevation change prior to Freeman's accident. We reverse the trial court's order denying the City's plea to the jurisdiction and dismiss Freeman's claim for want of subject-matter jurisdiction. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Background

         On November 14, 2014, at approximately 12:15 p.m., Freeman was riding his bicycle on the sidewalk on the west side of the 15700 block of Preston Road, [1] just south or Arapaho Road in Dallas. At that time, there was some debris on the sidewalk due to a storm the weekend before. Freeman swerved to avoid the debris and the side of the bicycle's front wheel hit the curb, and he fell into the street. Freeman was taken to the hospital where he was treated for multiple fractures and a concussion.

         Freeman filed suit against the City asserting the Texas Tort Claims Act (the "Act") waived the City's immunity from suit for his premises-liability claim. He alleged an elevation difference between the sidewalk and the curb[2] was a special defect and the City failed to exercise ordinary care to protect him from the condition of which it was aware or reasonably should have been aware. Freeman alternatively alleged, if the condition was not a special defect, it was a premises defect and the City had actual knowledge of the complained of condition, and he did not.

         The City filed a plea to the jurisdiction and a supplemental plea asserting Freeman could not establish a waiver of governmental immunity under the Act because the condition at issue was not a special defect and the City did not have actual knowledge of the complained of condition, which is required to establish a waiver of immunity for Freeman's premises-defect claim. The City attached to its plea to the jurisdiction: photographs of the location where the accident occurred; the affidavits of Robert Miranda, a Manager in the City's Department of Mobility and Street Services, and Sheila Gray, the City's 3-1-1 Configuration Manager; portions of Freeman's interrogatory responses; and excerpts from the transcripts of Freeman's and Miranda's depositions.

         In his affidavit, Miranda averred that he conducted a search of the City's Citizen Request Management System (CRMS), a system that stores calls or complaints for service regarding any hazardous condition that may exist in the City. The search revealed that no work had been performed by the City at the location of Freeman's accident, and that the City had not received any reports or complaints regarding a depressed, unrepaired, uneven, cracked, or sunken sidewalk, an elevated curb, or any other defects or dangerous conditions at the location of the accident for a period of two years prior to Freeman's accident.

         In her affidavit, Gray averred that complaints or calls for City services regarding dangerous conditions are received through the 3-1-1 reporting system. The information is entered into the City's CRMS system and is routed to the appropriate department. Gray conducted a search of the CRMS records and found that the City had not received any calls, reports, or complaints of a depressed, unrepaired, uneven, cracked, or sunken sidewalk, an elevated curb, or any other defects or dangerous conditions at the location of Freeman's accident for a period of two years prior to Freeman's accident.

         The City also relied on Freeman's deposition testimony and interrogatory responses as further support for its position that the City had no knowledge of the condition of the sidewalk prior to Freeman's accident. Freeman admitted during his deposition that he had no evidence the City had knowledge of any issue with the sidewalk prior to his accident.

         In response to the City's plea, Freeman argued that the condition was a special defect and that the City breached the duty it owed to Freeman as an invitee. He alternatively argued that, in the event the condition was an ordinary-premises defect, the City breached the duty owed to Freeman as a licensee. Freeman attached to his response, and supplement thereto: excerpts from the transcript of his deposition; photographs of the area where his accident occurred; a copy of the City of Dallas' Sidewalk Replacement Program, setting forth a cost share program with property owners; Freeman's original petition; and the City's responses to discovery requests. Freeman asserted that because the intersection where the incident occurred is one of the busiest intersections in the City and because the City has a sidewalk replacement program, whereby it offers to share the cost of repairs with property owners, there is circumstantial evidence of the City's actual knowledge of the condition of the sidewalk at issue in this case. Freeman also argued that, pursuant to the Dallas City Code, the Director of the Mobility and Street Services Department had police powers regarding roads and sidewalks, including the power to conduct inspections and notify the owner of the abutting property that the sidewalk was in need of repair. Finally, Freeman argued that because the City built the sidewalk, it can be inferred that the City knew the sidewalk had an inadequate foundation and would at some point in time sink.

         The trial court held five hearings on the City's plea to the jurisdiction before denying same. This appeal followed.

         Standard of Review

         A plea to the jurisdiction is a dilatory plea in which a party challenges a court's authority to determine the subject matter of the action. Rawlings v. Gonzalez, 407 S.W.3d 420, 425 (Tex. App.-Dallas 2013, no pet.). The existence of subject-matter jurisdiction is a question of law; therefore, we review de novo the trial court's ruling on a plea to the jurisdiction. Id.

         The plaintiff bears the burden to plead facts affirmatively demonstrating governmental immunity has been waived and the court has subject-matter jurisdiction. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007). A governmental entity's plea to the jurisdiction can be based on pleadings or evidence. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, a plea to the jurisdiction challenges the existence of ...


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