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Texas Department of Transportation v. Reid

Court of Appeals of Texas, Fifth District, Dallas

August 22, 2019


          On Appeal from the 382nd Judicial District Court Rockwall County, Texas Trial Court Cause No. 1-18-0104

          Before Chief Justice Burns and Justices Richter [1] and Rosenberg [2]



         In this interlocutory appeal, the Texas Department of Transportation (TxDOT) appeals the trial court's order denying its plea to the jurisdiction. Concluding TxDOT is entitled to relief, we reverse the trial court's order and render judgment dismissing the case for want of jurisdiction.


         Appellee Glenda Reid was injured when she fell from her bicycle after riding into a crevice that had formed in a joint where the sidewalk meets a storm inlet drain structure along a four-lane, divided highway in Heath, Texas. The joint was supposed to be filled with a fiberboard filler, but the joint had expanded and the fiberboard was either missing or had dropped down, leaving a space six inches deep, seventy-five inches long, and two inches wide. Although Reid had ridden before over the section of sidewalk where she was injured, she was unaware of the crevice.

         During a deposition, the TxDOT area engineer with responsibility over the road agreed that the crevice in the joint was a safety hazard and not one the public would expect to encounter. The engineer also testified that TxDOT's contract with the City of Heath assigned to the City the duty to maintain the sidewalk. After Reid's accident, the City of Heath notified TxDOT of the issue and TxDOT repaired the condition. In an affidavit, the area engineer averred that TxDOT had no actual knowledge of the crevice in the sidewalk at the time of Reid's accident. It is undisputed that TxDOT had no specific information of the existence of the crevice until it received notice from the City of Heath.

         Reid sued TxDOT for negligence alleging TxDOT knew from the design chosen that the sidewalk structures would eventually separate and cause gaps to open but it failed to inspect and maintain the sidewalk. Reid alleged that the crevice created by the expansion of the joint was a "special defect" for which TxDOT owed Reid a duty to warn and make the condition safe. TxDOT responded that this suit is barred by its sovereign immunity, generally denied Reid's claims, and alleged Reid's negligence caused or contributed to the accident. TxDOT filed a plea to the jurisdiction asserting the trial court lacked subject matter jurisdiction because Reid's cause of action did not fall within the limited waiver of sovereign immunity set forth in the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. § 101.001 et seq. After conducting a short hearing, the trial court denied the plea to the jurisdiction.

         On appeal, TxDOT contends the crevice is an ordinary defect rather than a special defect requiring a higher duty of care, the defect arises from TxDOT's exercise of discretion in the design of the sidewalk which is exempted from suit, and Reid's bicycling is a recreational use for which TxDOT owes a more limited duty of care. Reid concedes that she does not claim that the design of the sidewalk was a design defect. Because the designation of the crevice as an ordinary or special defect is decisive, we need only discuss the State's first contention.


         Whether the trial court has subject matter jurisdiction is a question of law properly asserted in a plea to the jurisdiction. Sampson v. Univ. of Tex., 500 S.W.3d 380, 384 (Tex. 2016). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law that we review de novo. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. Id. If the plaintiff's factual allegations are challenged with supporting evidence necessary to consideration of the plea to the jurisdiction, to avoid dismissal the plaintiff must raise at least a genuine issue of material fact to overcome the challenge to the trial court's subject matter jurisdiction. Id. at 221. When the evidence supporting the plea implicates the merits of the case, we take as true all evidence favorable to the plaintiff and make every reasonable inference and resolve all doubts in the plaintiff's favor. Id. at 228.

         Sovereign immunity protects The State of Texas and its agencies, such as TxDOT, from lawsuits for damages unless immunity has been waived. Texas Dept. of Transp. v. York, 284 S.W.3d 844, 846 (Tex. 2009) (per curiam). The Texas Tort Claims Act (TTCA) provides a limited waiver of governmental immunity for claims of personal injury and death caused by a condition or use of tangible personal or real property if a private person would be liable to the claimant under the same circumstances. Tex. Civ. Prac. & Rem. Code §§ 101.021(2); 101.025. The duty of care the governmental entity owes to a claimant depends upon whether the condition of real property causing the personal injury or death is a premises defect or a special defect. See id. § 101.022.

         If the claim arises from a premises defect, the governmental unit owes the claimant the duty that a private person would owe to a licensee on private property. See id. § 101.022(a). That duty requires the governmental unit to not injure the claimant through willful, wanton or grossly negligent conduct; and to use ordinary care to either warn the claimant or to make reasonably safe a dangerous condition of which the governmental entity is aware and the claimant is not. Sampson, 500 S.W.3d at 385.

         If the claim arises from a special defect, the governmental unit owes the duty that a private landowner would owe to an invitee. See Tex. Civ. Prac. & Rem. Code ยง 101.022(b). Under this standard, the landowner owes the invitee the duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is aware or reasonably ...

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