Date: 10-12-2017

Case Style:

Case Number: 02-16-00436-CV

Judge: Elizabeth Kerr

Court: Texas Court of Appeals, Second District on appeal from the 17th District Court, Tarrant County

Plaintiff's Attorney: Steve Samples

Defendant's Attorney: William W. Krueger, III

Description: Appellee Leah Smith lived at The Arbors of Central Park, an apartment
complex in Bedford, Texas. In July 2015, as she was walking across the grass to
reach a sidewalk in front of her apartment, she stepped onto a manhole lid
covering a water-meter box within an easement owned by Appellant City of
Bedford. The lid flipped open, and Smith fell into the manhole and was injured.
1See Tex. R. App. P. 47.4.
2
Smith sued the City, and the City filed a plea to the jurisdiction claiming the
protections of governmental immunity. The trial court overruled the City’s plea
and gave Smith additional time to amend her pleadings and conduct discovery.
The City appealed; we affirm in part and reverse and render in part.
Background
Smith initially sued the City2 in early 2016 in county court, but she
nonsuited those claims. On August 31, 2016, Smith sued the City3 in district court
under the Texas Tort Claims Act (the TTCA), alleging that the “manhole cover
was broken, defective, and/or improperly secured, which caused it to flip open.”
She asserted claims for premises defect, special defect, negligence, and
respondeat superior and claimed that the City’s acts or omissions had
proximately caused her injuries. Smith specifically pleaded that the City’s
governmental immunity was waived under the TTCA because her injuries were
caused by the condition or use of tangible personal or real property. See Tex.
Civ. Prac. & Rem. Code Ann. § 101.021(2) (West 2011).
On October 17, 2016, the City filed a combined answer, special
exceptions, and plea to the jurisdiction. In its jurisdictional plea, the City asserted
that Smith had failed to plead and could not prove claims for which the City’s

2Smith also sued Avenue5 Holdings, Inc. (the apartment complex’s owner
and operator) and Olameter Corporation (a company that used the manhole
cover for meter-reading services).
3Smith also sued Avenue5 Holdings and Olameter in district court, but they
are not parties to this appeal.
3
governmental immunity was waived under the TTCA. The City set its plea for
hearing on Monday, October 31, 2016. At around 4:30 p.m. the Friday before the
hearing, the City filed a brief in support of its plea along with affidavits from
(1) Mike Green, a crew leader for the City’s water department; (2) Kenneth
Overstreet, the Interim Director and Field Operations Manager for the City’s
public-works department;4 and (3) Charles Carlisle, the City’s Fleet and Facilities
Manager and Risks and Contractual Services Manager. Each of these City
employees averred that, among other things, neither they nor the City was
“aware of the allegedly defective/unreasonable [sic] lid/meter box prior to
Plaintiff’s fall.” After an evidentiary hearing at which the three affidavits were
admitted into evidence without objection, the trial court overruled the City’s plea,
stating that
[a]fter due consideration of the pleadings, the Plea, the Response,
the arguments of counsel[,] and the evidence submitted at the
hearing, this Court is of the opinion that such Plea should be
OVERRULED without prejudice. However, the Court finds the
incident in question does not involve a special defect. Plaintiff may
amend her pleadings and conduct discovery in an attempt to prove
her premises liability claim or other claims as pled.
IT IS THEREFORE ORDERED that Defendant’s Plea to the
Jurisdiction is OVERRULED without prejudice.
4The City’s water department is a part of its public-works department.
4
The City has appealed,5 asserting two issues: (1) the City’s governmental
immunity barred Smith’s claims, and (2) the trial court erred by finding it had
jurisdiction over Smith’s claims.
Smith’s Special-Defect Claim
Governmental immunity protects political subdivisions of the State,
including cities, from lawsuits for money damages unless immunity has been
waived. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006)
(op. on reh’g). The TTCA provides a limited waiver of immunity for personal
injuries arising from premises defects. See Tex. Civ. Prac. & Rem. Code
§ 101.021(2) (stating that a “governmental unit” is liable for personal injury
“caused by a condition or use of . . . real property” if Texas law would impose
liability on a private person for the same condition or use); § 101.025 (West
2011) (providing that “sovereign immunity to suit is waived and abolished to the
extent of liability created by this chapter” and that “[a] person having a claim
under this chapter may sue a governmental unit for damages allowed by this
chapter”); see also id. § 101.001(3)(B) (West Supp. 2016) (defining
“governmental unit” to include cities). The TTCA imposes different standards of
care depending on whether the condition is a premises defect (the licensee
standard) or a special defect (the more lenient invitee standard). See id.
5Section 51.014(a)(8) of the civil practice and remedies code gives us
jurisdiction over this interlocutory appeal. See Tex. Civ. Prac. & Rem. Code Ann.
§ 51.014(a)(8) (West Supp. 2016).
5
§ 101.022(a), (b) (West 2011); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113,
116 (Tex. 2010); Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009)
(op. on reh’g); see also State Dep’t of Highways & Pub. Transp. v. Payne,
838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g) (comparing standards of care).
Whether a condition is a special defect is a legal question that we review
de novo. York, 284 S.W.3d at 847. The legislature did not define “special defect,”
but the TTCA likens them to “excavations or obstructions on highways, roads, or
streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). The supreme court
long ago decided that “[u]nder the ejusdem generis rule, we are to construe
‘special defect’ to include those defects of the same kind or class” as excavations
or obstructions. Harris Cty. v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978). The
supreme court has described the narrow class of conditions contemplated by
section 101.022(b) as those that, because of their size or some unusual quality
outside the ordinary course of events, pose an unexpected and unusual danger
to ordinary users of roadways. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d
652, 655 (Tex. 2012); Reyes v. City of Laredo, 335 S.W.3d 605, 607 (Tex. 2010).
But the only “express statutory requisite is that the defect be ‘a condition of the
same kind or class as an excavation or roadway obstruction.’” City of Houston v.
Joh, 359 S.W.3d 895, 898 (Tex. App.—Houston [14th Dist.] 2012, no pet.)
(quoting Denton Cty. v. Beynon, 283 S.W.3d 329, 331 n.11, 332 n.15 (Tex.
2009)).
6
We review de novo a trial court’s ruling on a plea to the jurisdiction. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004). The City
asserts that the trial court should have granted its plea as to Smith’s special defect
claim rather than simply finding that “the incident in question does not
involve a special defect.” Smith does not challenge this finding on appeal.
Moreover, this court has recently held that an improperly sized manhole cover
was not a special defect under the TTCA because it does not fall within the
“excavation” class. City of Arlington v. S.C., No. 02-17-00002-CV,
2017 WL 3910992, at *5 (Tex. App.—Fort Worth Sept. 7, 2017, no pet. h.) (mem.
op.) (citing Peterson v. City of Fort Worth, 966 S.W.2d 773, 774, 776 (Tex.
App.—Fort Worth 1998, no pet.)). In light of the trial court’s finding and our recent
precedent, we hold that the “broken, defective, and/or improperly secured”
manhole cover in this case is not special defect. See id.
Accordingly, we sustain the City’s first and second issues as to Smith’s
special-defect claim.
Smith’s Premises-Defect and Negligence Claims
The City also complains that the trial court erred by overruling its
jurisdictional plea because Smith did not plead or prove premises-defect or
negligence claims6 for which the City’s governmental immunity has been waived.
6Without citing any authority, the City claims that Smith abandoned her
negligence claim. Smith pleaded a negligence claim, but she stated in her
response to the City’s plea that her petition “does not contain any allegation of
negligence” by the City. At the hearing, Smith’s counsel stated that he did not
7
With respect to Smith’s premises-defect claim, the City asserts that it
conclusively proved that it did not know about a “defect involving a meter box/lid
and/or manhole cover” at The Arbors before Smith was injured, a fact that, if true,
would be fatal to that claim. See, e.g., Hayes, 327 S.W.3d at 117 (stating that the
owner’s actual knowledge of the dangerous condition is required to establish an
immunity waiver for a premises-defect claim). Smith counters that the trial court
was required to allow her to amend her pleadings and had discretion “to await
further development of the case before ruling on a jurisdictional challenge that
requires the evaluation of evidence.”
A plea to the jurisdiction can make two types of challenges: a challenge to
pleading sufficiency or a challenge to the existence of jurisdictional facts.
Miranda, 133 S.W.3d at 226–27. Here, the City challenges both. We discuss
each separately.
The sufficiency of the pleadings
When a plea challenges the pleadings, we determine whether the plaintiff
has met her burden of alleging facts affirmatively demonstrating that the trial
court has subject-matter jurisdiction. See id. at 226. We construe the pleadings
intend to bring a negligence claim and that he would “be happy to amend to take
the respondeat superior part out.” But he later asked that if the trial court did
dismiss the negligence claim, it would do so without prejudice so that if discovery
revealed some negligence by the City, Smith could later bring that claim. Based
on this record, we cannot conclude that Smith abandoned her negligence claim.
See, e.g., In re J.M., 352 S.W.3d 824, 826–27 (Tex. App.—San Antonio 2011, no
pet.) (discussing claim abandonment); In re C.C.J., 244 S.W.3d 911, 921–
22 (Tex. App.—Dallas 2008, no pet.) (same).
8
liberally in the plaintiff’s favor, accept all factual allegations as true, and look to
the plaintiff’s intent. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex.
2012). If the pleadings are insufficient to establish the trial court’s jurisdiction but
do not affirmatively demonstrate an incurable defect in jurisdiction, the issue is
one of pleading sufficiency, and the plaintiff should be given an opportunity to
amend. Miranda, 133 S.W.3d at 226–27. But if the pleadings affirmatively negate
the existence of jurisdiction altogether, then a plea to the jurisdiction may be
granted without allowing a (necessarily futile) chance to amend. See id. at 227.
The City argues that Smith has not pleaded sufficient facts supporting an
immunity waiver for her premises-defect claim. In such a case, as noted, the
governmental unit owes the duty of care “that a private person owes to a licensee
on private property.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). This
standard requires a plaintiff to plead and prove the following: (1) a condition of
the premises created an unreasonable risk of harm to the licensee; (2) the owner
actually knew of the condition; (3) the licensee did not actually know of the
condition; (4) the owner failed to exercise ordinary care to protect the licensee
from danger; and (5) the owner’s failure was a proximate cause of injury to the
licensee. Payne, 838 S.W.2d at 237; see also Sampson v. Univ. of Tex. at Austin,
500 S.W.3d 380, 391 (Tex. 2016) (citing Payne, 838 S.W.2d at 237).
In her live pleading, Smith alleged that the City’s immunity is waived for
personal injuries caused by the condition or use of real property. But even
9
construing Smith’s pleadings liberally in her favor, they do not contain sufficient
allegations to support a premises-defect claim against the City.
As to Smith’s negligence claim, the TTCA waives immunity for personal
injuries “caused by a condition or use of tangible personal . . . property.” Tex. Civ.
Prac. & Rem. Code Ann. § 101.021(2). As the City points out, a claim cannot be
both a premises-defect claim and a claim relating to a condition or use of tangible
property. See Rogge v. City of Richmond, 506 S.W.3d 570, 575 (Tex. App.—
Houston [1st Dist.] 2016, no pet.) (citing Sampson, 500 S.W.3d at 385–86). The
TTCA’s “limited waiver of immunity from suit does not allow plaintiffs to
circumvent the heightened standards of a premises defect claim contained in
section 101.022 by re-casting the same acts as a claim relating to the negligent
condition or use of tangible property.” Miranda, 133 S.W.3d at 233.
Here, Smith alleged that the City’s immunity is waived for personal injuries
caused by the condition or use of tangible personal property. She also alleged
that the City was liable for the negligent acts or omissions of its agents, servants,
and employees under the doctrine of respondeat superior. See, e.g., Dewitt v.
Harris Cty., 904 S.W.2d 650, 653 (Tex. 1995) (“There is no question that [section
101.021(2)] provides for governmental liability based on respondeat superior for
the misuse by its employees of tangible personal property.”); Harrison v. Univ. of
Tex. Health Sci. Ctr. at Houston, No. 01-12-00980-CV, 2013 WL 4680407, at
*3 (Tex. App.—Houston [1st Dist.] Aug. 29, 2013, no pet.) (mem. op.) (“In order
to state a claim under the TTCA based upon the use or misuse of tangible
10
personal property, a plaintiff must allege that the property was used or misused
by a governmental employee acting within the scope of his or her employment.”
(citing Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 33 (Tex.1983))). But
Smith has not pleaded any facts apart from those alleging a premises defect to
support a claim that a condition or use of tangible personal property caused her
injuries, nor has she pleaded any facts supporting a City employee’s use or
misuse of tangible personal property.
At this point, then, Smith’s pleadings do not state a claim for which
immunity is waived under the TTCA. See Tex. Dep’t of Transp. v. Ramirez,
74S.W.3d 864, 867 (Tex. 2002) (“To sue the State for a tort, the pleadings must
state a claim under the [TTCA]. Mere reference to the [TTCA] is not enough.”
(citations omitted)). As noted, if the pleadings do not contain sufficient facts to
affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively
reveal incurable jurisdictional defects, the appropriate remedy is to grant leave to
amend rather than to dismiss. See Miranda, 133 S.W.3d at 226–27. Because
Smith’s pleadings do not affirmatively demonstrate incurable jurisdictional
defects, she may amend her pleadings to attempt to cure her pleading defects.7
See id.; Ramirez, 74 S.W.3d at 867 (“A plaintiff has a right to amend her
pleadings to attempt to cure pleading defects if she has not alleged enough
7The City also asserts that because Smith had previously sued in county
court and amended her petition in that forum, she has already had an adequate
opportunity to amend. But the City cites no authority supporting this proposition.
11
jurisdictional facts.”). Accordingly, the trial court did not err by denying the City’s
plea to give Smith the opportunity to replead.
The existence of jurisdictional facts
The City further complains that the trial court erred by overruling its plea
because the jurisdictional facts show that it did not have actual knowledge of any
“defect involving a meter box/lid and/or manhole cover” at The Arbors before
Smith was injured and because there are no facts supporting her negligence
claim.
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the trial court must consider relevant evidence submitted by the parties to
resolve the jurisdictional issues raised. Miranda, 133 S.W.3d at 227. If the
evidence raises a fact question on jurisdiction, the trial court must deny the plea
and let the factfinder resolve the question. Id. at 227–28. In contrast, if the
evidence is undisputed or fails to raise a fact question regarding jurisdiction, the
trial court must rule on the jurisdictional plea as a matter of law. Id. at 228.
But when a plea to the jurisdiction requires examining evidence, a trial
court has the discretion to decide “whether the jurisdictional determination should
be made at a preliminary hearing or await a fuller development of the case.” Id. at
227; see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)
(“Whether a determination of subject-matter jurisdiction can be made in a
preliminary hearing or should await a fuller development of the merits of the case
must be left largely to the trial court’s sound exercise of discretion.”). A trial court
12
may postpone its consideration of a jurisdictional plea so that the plaintiff has
sufficient opportunity to produce evidence that might raise a fact issue. Combs v.
City of Webster, 311 S.W.3d 85, 91 n.1 (Tex. App.—Austin 2009, pet. denied)
(citing Miranda, 133 S.W.3d at 227; Hendee v. Dewhurst, 228 S.W.3d 354,
369 (Tex. App.—Austin 2007, pet. denied) (op. on reh’g)). Because a trial court
should make a jurisdictional determination as early as practicable, the court
should allow “reasonable opportunity for targeted discovery” if necessary to
illuminate jurisdictional facts. Hearts Bluff Game Ranch, Inc. v. State, 381 S.W.3d
468, 491 (Tex. 2012) (quoting Miranda, 133 S.W.3d at 233), cert. denied,
133 S. Ct. 1999 (2013). Whether to allow such discovery and to give the parties
more time to gather evidence and prepare for the hearing on the plea is within
the trial court’s broad discretion. Mission Consol. Indep. Sch. Dist. v. Garcia,
372 S.W.3d 629, 642–43 (Tex. 2012) (citing Miranda, 133 S.W.3d at 229, 233).
The supreme court has also stated that the procedure for addressing a
plea to the jurisdiction “does not dramatically differ from that outlined in Texas
Rule of Civil Procedure 120a governing special appearances.” Miranda,
133 S.W.3d at 229; see Tex. R. Civ. P. 120a. The supreme court also recognized
that rule 120a allows the trial court to order a continuance and allow time for
discovery if the development of the case requires it, see Tex. R. Civ. P. 120a(3),
and that “[n]othing prevents a trial court from doing the same with a plea to the
jurisdiction where evidence is necessary.” Miranda, 133 S.W.3d at 229. “[T]he
Texas civil procedural scheme entrusts many scheduling and procedural issues
13
to the sound discretion of the trial court.” Id. Additional time to prepare for
hearings or to conduct discovery may be permitted upon a showing of sufficient
cause, and the trial court’s ruling on such a motion is reviewed for an abuse of
discretion. Id. (citing Tex. R. Civ. P. 166a(g), 247, 251, 252).
The City contends that because Smith had conducted discovery in the
(nonsuited) county-court suit and because the City had filed the same affidavits
in that suit in March 2016, Smith had ample opportunity to conduct discovery and
respond to the City’s affidavits before the October 2016 district-court hearing.
During that hearing, Smith’s counsel admitted that he had not served the City
with any written discovery because he had not finished drafting it, but complained
that he had not had adequate time to conduct discovery and asked for time to
serve written discovery and take depositions. Counsel did not, though, move for
a continuance or question the City’s affiants, who were in the courtroom during
the hearing.
But based on the record before us, we cannot conclude that the trial court
abused the discretion it had to decide “whether the jurisdictional determination
should be made at a preliminary hearing or await a fuller development of the
case.” Id. at 227; see Bland, 34 S.W.3d at 554. This case was new to the districtcourt
judge, who heard the City’s plea to the jurisdiction only two months after
suit was filed in that court and a mere two weeks after the City appeared in the
case and filed its plea. Also, the City filed its affidavits at around 4:30 p.m. the
14
Friday before the Monday hearing. All in all, the decision to give Smith additional
time for discovery was within the trial court’s discretion.
We overrule the City’s first and second issues as to Smith’s premisesdefect
and negligence claims.

Outcome: Having sustained the City’s first and second issues as to Smith’s specialdefect
claim, we reverse the trial court’s order overruling the City’s plea to the
jurisdiction as to Smith’s special-defect claim, and we render judgment
dismissing that claim with prejudice. Having overruled the City’s first and second issues as to Smith’s premises-defect and negligence claims, we affirm the
remainder of the trial court’s order overruling the City’s plea.

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