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Texas Department of Transportation v. Canales

Court of Appeals of Texas, Fourth District, San Antonio

January 8, 2020

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant
v.
Rodolfo CANALES, Appellee

          From the 81st Judicial District Court, Karnes County, Texas Trial Court No. 15-08-00191-CVK Honorable Walden Shelton, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice

          MEMORANDUM OPINION

          Irene Rios, Justice

         Rodolfo 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.[1] The trial court denied the plea to the jurisdiction, and TxDOT appealed.

         On 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.

         Background

         In his 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.

         In its 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.

         Canales 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.

         Thereafter, TxDOT filed a reply to Canales's response, and Canales filed a sur-reply.

         Both 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 engineer.

         Sovereign Immunity and Premises Liability Claims

         The 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.

         When 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).

         Plea to the Jurisdiction Standards

         Sovereign 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 228).

         On 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.

         Special Defect

         In its 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.[2]

         "Whether 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).

         Spoliation Argument

         Part of 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.

         But 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.

         Special Defect Law

         "The 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 at 116.

         In 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." Id.

         In 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. at 766.

         Special ...


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