Court of Appeals of Texas, Fourth District, San Antonio
the 81st Judicial District Court, Karnes County, Texas Trial
Court No. 15-08-00191-CVK Honorable Walden Shelton, Judge
Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza
A. Rodriguez, Justice
Canales was injured when he lost control of his sport utility
vehicle after its front right tire fell into a pothole that
was at least seven to twelve inches deep. Canales sued the
Texas Department of Transportation ("TxDOT") for
premises liability, alleging the pothole was a special
defect. In response, TxDOT asserted the trial court had no
subject-matter jurisdiction over Canales's suit because
sovereign immunity was not waived. In a plea to the
jurisdiction, TxDOT urged the trial court to dismiss
Canales's suit. The trial court denied the plea to the
jurisdiction, and TxDOT appealed.
appeal, TxDOT argues the trial court erred in denying the
plea to the jurisdiction. In three issues, TxDOT argues
sovereign immunity was not waived because (1) the pothole was
not a special defect; (2) even if the pothole was a special
defect, the evidence conclusively established that TxDOT
adequately warned of the pothole; and (3) no evidence was
presented to show that the pothole posed an unreasonable risk
of harm. We affirm.
petition, Canales alleged he was driving on F.M. 81 in Karnes
County, Texas, when his 2005 Jeep Cherokee "struck"
one or more unusually large potholes in the road, causing him
to lose control of his vehicle, and sending him across the
opposing lane of traffic and into a nearby fence post.
Canales also alleged he was severely injured in the accident;
TxDOT possessed, managed, and maintained the road where the
accident occurred; the pothole in question was a special
defect; and the pothole posed an unreasonable risk of harm to
the public. Canales further alleged TxDOT knew or should have
known of the special defect, and it breached its duty of
ordinary care by neither adequately warning of the special
defect nor making the special defect reasonably safe.
Finally, Canales alleged sovereign immunity was waived
because under the circumstances presented, a private person
would be liable to Canales under Texas law.
plea to the jurisdiction, TxDOT asked the trial court to
dismiss Canales's suit based on sovereign immunity.
According to TxDOT, sovereign immunity was not waived because
the evidence failed to show that a private person would be
liable to Canales under Texas law. TxDOT argued there was no
evidence the condition Canales encountered was anything more
than a common pothole; that the condition was not a special
defect because it was not like an obstruction or excavation;
that TxDOT did not have actual knowledge of the condition;
that even if the condition was a special defect, the evidence
conclusively established that TxDOT adequately warned of the
condition; and there was no evidence that the condition posed
an unreasonable risk of harm.
filed a response to the plea to the jurisdiction, asserting
immunity was waived because the condition he encountered was
a special defect, TxDOT should have known of the condition,
TxDOT did not adequately warn of the condition, and the
condition posed an unreasonable risk of harm.
TxDOT filed a reply to Canales's response, and Canales
filed a sur-reply.
TxDOT and Canales submitted evidence to support their
jurisdictional arguments. This evidence included
post-accident photographs of F.M. 81 and Canales's
vehicle, the Texas Peace Officer's Crash Report
("crash report"), and the deposition testimony of
various individuals, including Canales, the Department of
Public Safety ("DPS") trooper who investigated the
accident, a TxDOT maintenance supervisor, and a TxDOT
Immunity and Premises Liability Claims
State of Texas and its departments, like TxDOT, generally
enjoy sovereign immunity from suit unless immunity has been
waived. Tex. Dep't of Transp. v. York, 284
S.W.3d 844, 846 (Tex. 2009); Tex. Civ. Prac. & Rem. Code
Ann. § 101.001(3). The Texas Tort Claims Act
("TTCA") provides a limited waiver of immunity for
tort claims arising from either premises defects or special
defects. Univ. of Tex. at Austin v. Hayes, 327
S.W.3d 113, 115-16 (Tex. 2010). The TTCA waives immunity for
claims arising from "personal injury . . . caused by a
condition or use of . . . real property if the governmental
unit would, were it a private person, be liable to the
[plaintiff] according to Texas law." Tex. Civ. Prac.
& Rem. Code Ann. §§ 101.021(2), 101.025.
the complained-of condition is an ordinary premises defect, a
governmental unit's duty is limited to the duty owed a
licensee on private property. City of Denton v.
Paper, 376 S.W.3d 762, 764 (Tex. 2012). But when the
complained-of condition is a special defect, a governmental
unit's duty is not so limited. Id. "Where a
special defect exists, the [governmental unit] owes the same
duty to warn as a private landowner owes to an invitee, one
that requires the [governmental unit] to use ordinary care to
protect an invitee from a dangerous condition of which the
[governmental unit] is or reasonably should be aware."
Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 (Tex.
2009) (internal quotations omitted). In a "special
defect" case, the governmental unit owes a duty either
to make the roadway reasonably safe or to adequately warn of
the hazard. TXI Operations L.P. v. Perry, 278 S.W.3d
763, 765 (Tex. 2009). The elements of proof required to
establish a breach of this duty are: (1) a condition of the
premises created an unreasonable risk of harm to the
plaintiff; (2) the governmental unit knew or reasonably
should have known of the condition; (3) the governmental unit
failed to exercise ordinary care to protect the plaintiff
from danger; and (4) the governmental unit's failure to
exercise ordinary care was a proximate cause of injury to the
plaintiff. State Dep't of Highways & Public
Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
to the Jurisdiction Standards
immunity deprives a trial court of subject matter
jurisdiction and is properly raised in a plea to the
jurisdiction. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004).
"Whether a court has subject matter jurisdiction is a
question of law." Id. at 226. When, as here,
the jurisdictional challenge implicates the merits of the
plaintiff's cause of action and the plea to the
jurisdiction includes evidence, the trial court's review
generally mirrors the summary-judgment standard. Tarrant
Reg'l Water Dist. v. Johnson, 572 S.W.3d 658, 664
(Tex. 2019); Miranda, 133 S.W.3d at 227-28. If the
evidence creates a fact question on the jurisdictional issue,
then the trial court cannot grant the plea to the
jurisdiction, and the factfinder must resolve the fact
question. Johnson, 572 S.W.3d at 664 (citing
Miranda, 133 S.W.3d at 227-28). On the other hand,
if the relevant evidence is undisputed or fails to create a
fact question on the jurisdictional issue, then the trial
court rules on the plea to the jurisdiction as a matter of
law. Id. (citing Miranda, 133 S.W.3d at
appeal, we review the trial court's ruling on a plea to
the jurisdiction de novo. Johnson, 572 S.W.3d at
664. We consider the plaintiff's pleadings construed in
his favor and any evidence relevant to the jurisdictional
issue. Miranda, 133 S.W.3d at 226-27.
second issue, TxDOT argues the trial court erred in denying
its plea to the jurisdiction because the complained-of
condition was not a special defect and because it did not
have actual knowledge of the condition as required for an
ordinary premises defect, and therefore, Canales failed to
establish a waiver of sovereign immunity.
a premises defect is special or ordinary is usually a
question of law." Paper, 376 S.W.3d at 764.
However, when the facts surrounding the condition are
disputed, the factfinder must resolve the disputed facts
before the trial court can determine if the condition is a
special defect as a matter of law. Villegas v. Tex.
Dep't of Transp., 120 S.W.3d 26, 32 (Tex. App.-San
Antonio 2003, pet. denied); see Tex. Dep't of Transp.
v. Lopez, 436 S.W.3d 95, 105 (Tex. App.- Eastland 2014,
pet. denied) (citing Miranda, 133 S.W.3d at 227-28).
We review a trial court's special defect determination de
novo. Tex. Dep't of Transp. v. Perches, 388
S.W.3d 652, 655 (Tex. 2012).
TxDOT's special defect argument is that the trial court
erred by predicating its special defect ruling on a
spoliation presumption. A party who establishes that
spoliation has occurred may be entitled to a presumption that
the destroyed evidence would have been unfavorable to the
party who destroyed it. Rico v. L-3 Commc'n
Corp., 420 S.W.3d 431, 437 (Tex. App.-Dallas 2014, no
pet.). However, in this case, the record does not demonstrate
that the trial court's ruling was predicated on a
spoliation presumption. At the plea to the jurisdiction
hearing, the trial court expressed concern that the pothole
was not measured and photographed before it was repaired, but
the trial court did not file findings of fact and conclusions
of law explaining the basis of its ruling. A trial
court's comments are not a substitute for findings of
fact and conclusions of law, and we are not entitled to
consider them in conducting our review. In re
W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); Garcia v.
Maverick Cnty., 850 S.W.2d 626, 628 (Tex. App.-San
Antonio 1993, writ denied). Furthermore, when findings of
fact and conclusions of law are not properly requested and
filed, we affirm the trial court's ruling if it can be
upheld on any legal theory that is supported by the evidence.
In re W.E.R., 669 S.W.2d at 716.
even if the record demonstrated that the trial court applied
a spoliation presumption, it would not affect our review in
this case. Our standard of review is de novo. See
Perches, 388 S.W.3d at 655. As will be discussed in
greater detail below, considerable evidence was presented
regarding the size of the pothole. We base our review on the
evidence presented without applying a spoliation presumption.
TTCA does not define 'special defect' but likens it
to 'excavations or obstructions' that exist
'on' the roadway surface." Beynon, 283
S.W.3d at 331. To constitute a special defect, the condition
must be in the same class as an excavation or obstruction on
a roadway. Perches, 388 S.W.3d at 655. The Texas
Supreme Court has identified some "helpful
characteristics" in making a special defect
determination, including (1) the condition's size, (2)
whether it unexpectedly and physically impairs an ordinary
user's ability to travel on the roadway, (3) whether it
presents some unusual quality apart from the ordinary course
of events, and (4) whether it presents an unexpected and
unusual danger to the ordinary users of the roadway.
Paper, 376 S.W.3d at 765; Hayes, 327 S.W.3d
County of Harris v. Eaton, the Texas Supreme Court
held a "hole" in the road "varying at places
from six to ten inches in depth and extending over ninety
percent of the width of the highway" constituted a
special defect. 573 S.W.2d 177, 178 (Tex. 1978). In its
analysis, the supreme court described the hole as
oval-shaped, four-feet to nine-feet wide, and deepest
"astride the center stripe." Id. The
supreme court also observed that "one could not stay on
the pavement and miss [the hole]," and an approaching
driver could see the hole from two hundred feet away
"but could not tell its depth from that distance."
City of Denton v. Paper, the Texas Supreme Court
held that a sunken area in the road, that varied from
"two inches to a few inches more at its deepest point[,
]" was not a special defect within the meaning of the
TTCA. 376 S.W.3d at 765-66. There, the plaintiff sued the
city for injuries she sustained when her bike's front
wheel encountered the sunken area in the road, and she was
"pitched over the handlebars." Id. at 764.
The supreme court noted that unlike the roadway condition in
Eaton, the sunken area, which was located near the
center of the right lane, did not physically impair the
plaintiff's ability to travel the road, noting that
"ample room existed for a bicycle to navigate around
this hole without having to enter the opposing traffic
lane" and "the photographs indicate[d] that the
sunken area could have been avoided without leaving the
roadway or entering the opposing lane." Id. at
765-66. The supreme court recognized that the class of
special defects is narrow and does not include common
potholes or similar depressions in the roadway. Id.