Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 382nd Judicial District Court Rockwall
County, Texas Trial Court Cause No. 1-18-0104
Chief Justice Burns and Justices Richter  and Rosenberg
RICHTER, JUSTICE ASSIGNED
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.
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.
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.
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.
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.
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.
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.
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.
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 §
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 ...