## In the Court of Appeals Sec ond Ap pella te District of Texas at Fort Worth

___________________________ No. 02

- 24

- 00037

- CV

___________________________

On Appeal from the 481st District Court Denton County, Texas Trial Court No. 21

- 0866

- 16

Before Kerr, Wallach, and Walker , JJ. Memorandum Opinion by Just ice Wallach 

### C ITY OF 

### D ENTON 

### , Appellant

V



### . A NGELA 

### R AGAS 

### , Appellee2 MEMORANDUM OPINION
A ngela Ragas (Ragas) fell while crossing a street in Dent on, Texas, and sued the City of Denton (City) seeking damages for her personal injuries

. Ragas alleged that
the re was a defect in the street ’ s p avement that proxima tel y caused her fall, tha t the
de fec t was a “ special defect , ” and that City was n egli gent in main taining the street.
Alterna tively, Ragas alleged that the defect was a n ordinary premises defect , that City
had act ual knowledge of its existe nce , and that City f ailed to warn her of its exis tence

or rem edy the condition. City raised governmental immunit y as a defense and moved
to dismiss the case due to lack of subject matter juris diction. The tri al court denied City ’ s moti o n to dismiss for la ck of sub ject matter jur isd iction , and this interlocutory appeal ensued

. We hold that Ragas ’ claims are b arred by governmental immuni ty , and
we will reverse the judgment of the trial court an d dismiss the case for want of subje ct

matter jurisdiction.
I. Backgrou nd
On the morni n g of November 15, 2019, Ragas walked her granddaughter to
her school bus stop. It was early morning, just before 7 a.m. Ragas recalled that it was
cool but “ d [ id not ] recall [ t he pavement ] be ing wet. ” There was a street light n ea r by , but R agas did not rec all if it was working at the time of the incident. While returning
home f rom the bus stop , Ragas crossed the street in the vicinity of 1520 Mosscreek
Drive , a res idential street in City near H ighway 377 , also known as For t Worth Dri ve . Ragas ’ foot got caught i n a hol e or crack ( the defect) in the street, causing her to fall3 and fracture her left elbow. It is undisputed that she did not pay a fee to use the road in que stion.
Pictures of the defect taken shortly after th e incident are below.

Ragas described the defect in her r esponse to City ’ s plea to the jurisdic tion as a “ large
hole that covered a significant p o rtion of Moss C r e e k [ 1 ] Drive , ” “ c ontained loos e rocks and dirt , ” had a “ j a gged an d unev en ” surface, and was “ deep enough for her
foot to become stu ck and cause her to fall. ” She believed that the defect had been
caused by heavy trucks using the street for nearby construction wo rk. Rogelio San Mig uel , who had wo rked for City fo r thirty

- two years, was City ’ s Field Services Supervisor for the street dep artment . He testified that his duties included responding to reports, calls , and comp laints o f hazardous conditions on

1 Through out the record, the stree t name is sp elled alternatively as “Mosscreek ” and “Moss Creek. ”4 r o adways and sidewalks and repai ring them. Acc or ding t o S an Miguel, o n December 4, 201 9, City received a service re quest from Ragas throu gh its online public engagement platform known as Engage Denton . She reported that s he had falle n on November 1 5, 2019 due to a hole i n the street a t 151 6 M osscreek Drive. San Mig uel testified that the condition reported t o be a hol e (see photos above) was approximately two to four inches wi de and one to two inches deep and had been

c aused by nor mal deterior ation from weat her and vehicles passing through the area

. 2 Regar ding notice t o City of the defect in the street, San Miguel testifi ed fro m his knowledge as well as a review of City ’ s records for this location that City had n ot generated any service requests or re ceived any c alls , reports , or complaints f rom R a gas

or an yone else rega rding a hole or crack in the road at 1516 Moss c reek Drive between November 15, 201 6 and November 15, 2019. He testified that City does no t have a
for mal policy, ordinance , or d irective mandatin g that City employees visually insp ect

r oads and sidew alks for defects. R a ther, City pri marily r elies on reports, calls, a nd

2 Ragas objected to San Miguel ’ s statements about the dimensions of the hole as
c onclusory a nd lack ing found ation and also objected that City failed to show that the statements were within his personal knowledge. Tex. R. Evid. 602. The tr ial court
n ever ruled on these objec tions. Assuming they are substantive objections, which we do, t hey may be presented o n app eal without a ruling. Seim v. Allstate Tex

. Lloyds , 551 S.W.3d 161, 166 (Tex. 2018 ). Even so, they are with out merit as San Mi gue l ’ s testimon y st ated that his m easu r ement s were “ [ b ] ased on [his] observation , ” he was the supervisor for City ’ s stre et departmen t , and he ha d been employed by City for thirty

- two years. See Montez v. Bailey C nty

. E l ec. Co

- op , 397 S.W.2d 108, 111 (Tex. App

. — Am arillo 1 965, wri t ref ’ d n.r.e. )

.5 complaints submitted through the Engage Denton online platform and on support staff to ad dres s and res olve any rep orted defects on roa dways and sidewalks.
S a ra B onehi ll , City ’ s cla ims administrator for the Office of Risk M anagement , testified that her duties include processin g and re sol v

i n g incid ents reported through Eng age Denton

. She explained that a ll onli ne complaints or verbal calls f or C ity

s ervices for ha zardous conditions are processed through the Engage Denton system and routed to the appropriate City departments for handling. She te stified that she is
the records cus todian for Engage Denton ; t h at s he ma de a diligent searc h of the
system ’ s records for calls, reports , or comp laints from Ragas and anyone else for holes
or cracks in the r oad at or near Moss c reek Drive ( a s well as for non

- operable

street lights in the are a ) between No vember 15, 2016 a nd N ovemb er 15, 2019 ; an d
that none were there. Ragas never reported the defect in the road prior to her fall

. She also was not aware of anyone else having reported it t o City p rior to her fall , nor did she have any
evidence th at Ci ty had actual or const r uctive kn ow ledge of the defect before her fall.
II. Standards of Revie w Governmental immunity is properly asserted in a plea to the jurisdiction , and

we review a trial court ’ s ruling on a plea to the jurisdiction de nov o. Tex. Dep ’ t of Parks
& Wild l ife v. M i rand a , 133 S.W.3d 2 17, 228 (Tex. 2004). In City of Wichita Falls v.
Preston , we summarized the standards of review in reviewin g a plea to the jurisdic tion as follows,6 A p lea to the jurisdiction chal lenges whether a plai ntiff has a lleged facts tha t affirmat ively demonstrate the trial court ’ s jurisdiction to hear the
case. Mission Consol. ISD v. Garcia , 372 S.W.3d 629, 635 (Tex. 20 12) (stating that a plea to t he jurisdiction ’ s purpose generally is to d efeat an action “with out regard to whether the c l aims asse rted have merit”) (quoting Bland ISD v. Blue , 34 S.W.3d 547, 554 (Tex. 2000)). Whether a trial court has subject matter jurisd iction and whether a pla intif f has alleged f acts that affirmatively demo nstrate that jurisdic tion are qu estions of law t h at we rev iew de novo. Miranda , 133 S.W.3d at 226. We consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues. I d. at 227. The stand ard of rev iew for a plea to the jurisdiction gene rally mirro rs that of summa r y judgmen t under Rule of Civil Procedure 166a(c). Id . at 228. When the jurisdictional challenge implicates the merits of the plaintiff ’ s cause of action and t he pl ea to the jurisd iction inc ludes evidence, the trial court reviews the releva nt evidence to d e termine i f a fact issue exists. Id. at 227. If the evidence creates a fact question regarding the jurisdictional issue, then the tri al court cannot grant th e ple a to the jurisdic tion, and t he fact issue will be resolved by the factfinder. Id . at 227

– 28. H owever, i f the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court should rule on the plea to the juris diction as a matt er of law. Id . at 228. Ac cordingly, after the gov ernmental e ntity asserts th a t the tri al court lacks subject matter jurisdiction and supports that assertion with evidence, a plaintiff is required, “when the fa cts underlying the merit s and subject matter ju risdiction are intertwine d, to show that there is a disputed material fact r e garding t he jurisdictional issue.” Id. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submit ted t o support the plea that impli cates the meri ts of the case, we take as true all evidence favora b le to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant ’ s favor. Id. No. 02

- 22

- 00265

- CV , 2023 WL 2033775 , at *1

– 2 (Tex. App.

— Fort Worth Feb. 16,
20 23, no pet.) (mem. op.)

. I n this case, the p lea t o the juri s dicti o n chal l enges the
existence of jurisdic tional facts.7 III. Analysis City presents two issues. The first generally asserts t hat the tri al court erred in denying its plea to the jurisdiction. The sec ond specifically contends that the re is no subje ct matter jurisd i c tion u nder the Texas Tort Claims Act (TTCA) because the record conclusively establishes that (1) the crack in the ro ad was not a special defect, (2) Ragas was a l icensee, ( 3 ) the crack was o pen and obvious and k nown to Ragas , 3 and ( 4 ) Cit y did not have p r ior act ual or constru ctive knowledge of the crack. Governmental immunity protects a cit y when it exercises discretionary powers
of a public nature involving judicial or legislative functions. City of Tyler v. Likes , 962 S.W.2d 489, 501 (T ex. 1997)

. A mun i cipalit y is gene rally immune from suit and liability for torts arising from the exercise of its governmental functions, except for
the limited waiver provided by the TTCA

. Tex. Bay Cherry Hill , L.P. v. City of Fort
Worth , 257 S. W.3d 379, 3 89 (Tex . Ap p.

— Fo rt Wo rth 2008, no pet.). Maintenance of

3 The “ open and obvious ” argument was not presented to the trial c ourt. So , R agas argues that it w as w aived. Ragas cites Tex as R ule of App ellate Procedure 33.1(a)(1) and three cases in her brief. See Tex. R. App. P . 33.1(a)(1). Only one of those case s de als with an issue involving a jurisdict ional argument be ing made fo r the fir st time on appeal. In Obasogie v. H arris County Hospital Dist rict , N o . 14

- 19

- 00316

- CV , 2021 WL 1184913 , at *4 (Tex. App.

— Houston [14 th Dist. ] March 30, 2021, pet. denied) (m em. o p.) , the cour t act ually rejected the argument that a new j urisd iction al argume nt on g overnmental immunity could not be addressed for the first time on appeal . Curiously, Ragas references footnote 3 in that opinion , which dealt with an issue of ultra vires act s be ing improperly raise d for the first time on app eal. See id. at *3 n.3. City co ntends the “ open and obvious ” argument is part of its jurisdictional challenge and may be asserted for the first time on appeal. Regardless, we need not decide whether the defect was open and o bvio u s based on ou r disp ositi on of th e case. See Tex. R

. App. P. 47.1.8 city streets is a governmental function. Tex. Civ. Prac. & Re m. Code Ann. § 101.0215(a)(4). Hence , City may be sued and be held liable for damag es only i f City ’ s immunity is w aived under th e TTCA

. See Kownsl ar v. Cit y of Houston , 6 54 S.W.3d 472,
47 5

– 7 6 (Tex. App.

— Houston [14 th Dist.] 2 022, pet. denied). Ragas ’ claim is based o n premises liability. The TTCA provides a li mited waiver of immunity for premises liability. See Tex. Civ. Pr a c. & Rem. Code A nn. § 101. 021(2) ( p roviding th at the governmental unit is liable for personal injury and death caused by
a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liabl e to the cl aimant acco rding to Texas l aw ).
Se ction 101.02 2 sets out the governmental unit ’ s duties of car e . I d

. § 101.022.
Subsec tion (a) provides that in claims arising from premises defects , the governmental
unit owes the duty to the cla imant that a private person owe s to a l icense e on p riva te property unless the claimant paid for the use of the property
. Id

. § 101.022(a) ; City of Grapevine v. Ro berts , 946 S.W. 2 d 841, 843 (Tex. 1997)

. Generally, the duty a landowner
owes a licensee is not to injure the licensee thro ugh willful , want on, or gro ssly

n egligent conduct. City of Grapevine , 946 S.W. 2 d at 843

. An exception to the general
rule is that when the landowner has knowledge of a dangerous condition that t he
licensee does not have , the lan downer has a duty either to warn the li cense e or to mak e the condition reasonably safe

. Id

. I f the condition i s a “ special defect, ” the City owe s the claimant the same duty that a private lan downer owes an invitee. Id .; see also T ex . C iv . P rac . & R em . C ode9 Ann. § 10 1.022(b). That du ty requires the l andowner t o use ordinary care to reduce or
eli minate an unr easonable risk of harm created by a condition of the premises of
which the owner is or reason ably should be aware. City of Grapevine , 946 S.W. 2 d at 843

. Likewise, if the claimant p aid for the use o f the prop erty, the claimant is owed the duty owed to a n invitee. Ci ty of Fort Wo rth v. Posey , 593 S.W.3d 924, 92 7 (Tex. App.

— Fort Worth 2020, no pet.).
The ex istence of a special defect is a question of law, whi ch we review de novo. City of Dallas v . Reed , 258 S.W. 3d 620, 622 (Tex. 2008). The TTCA does not define the

ter m “ special defect s ” but states that they include “ excavations or obstructions on highways, ro ads , or streets. ” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). Thus, our Supr eme Court h as hel d that “ sp e cial defects ” include other defects of the same
kind or class as the two spe cifically menti oned in the TT CA. City of Den ton v. Pa per , 376 S.W.3d 762, 765 (Tex. 2012). Based on the photogr aphs in th e re cord and the testimony, we conclude th at the defec t in this case is not a special defect but m ore like
the defects found to be ordi nary premises d efects in othe r c ases. Se e id. at 765

– 66; City of Dallas , 258 S.W.3d at 622; City of El Paso v. Bernal , 986 S. W.2d 610, 611 (Tex. 1999) ( per curiam)

. 4
Hav ing determ ined that the defect was not a special defect, City owed Ra gas the duty owed to a licen see on p rivate property , i.e. , not to injure her through willful,

4 Since Ragas did not pay for use of the roadway , she is not entitled to treatment
as a n invitee under that theory.10 wanton , or grossly negligent co nduct. See City of Grapevin e , 946 S.W. 2 d at 8 4 3. Absent
willfu l, wanton , or grossly negligent conduct, a licensee must prove the following
elements to establish a breach of duty : (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the o wner actually knew of the

c ondition; ( 3) the licensee did not actually know of the condition; (4) t he owner failed
to exercise ordin ary care to protect the licensee from danger; and (5) the owner ’ s failure was a proximate cause of injury to the licensee. S am pson v. Univ. of Texas at
Austin , 50 0 S.W. 3d 38 0, 391 (Tex. 2016) (citing State Dep ’ t of Highways & Pub

. Transp. v . Payne , 838 S.W.2d 235, 237 (Tex. 1992) )

. In this case, Ragas did not plead that Cit y acted with willful, wanton , or gr ossly negligent con d uc t , only that City had actu al knowledg e of t he defect and Ragas did

not , that such defect constituted an unreasonably dang ero us conditi on , and that City
failed to e xercise ordinary care in remedying the defect or warning Ragas. City
established that it re li ed on its online Engage De nton platfo rm for notificat ion of problems by the public or its staff and that reports made to City were r ecorded in this system and handled through the system by assi gning appropriate City departments to investigate a nd respon d to complai nts. City also es tablished t hat it conducted a diligent search of its system and that no records were fou nd of complaints or rep orts of street defects or lighting problems in t he are a for t hree years prior to the incident. Ragas brought forth no evid ence that City had actu al knowledg e of t he defect. Therefore, City conclusively established that an essential element of Ragas ’ cause of11 actio n, i. e., City ’ s actual knowledge of a dangerous condition at the tim e of the
incident , was lacking and that C ity was entitled to dis missa l of Ragas ’ claim for la ck o f subject matter jurisdiction. See City of Austin v . Rangel , 184 S.W.3d 377, 385 (Tex. App.

— Austin 2006, no pet.) ; see als o Univ

. of Texas at Austin v. Hayes , 327 S.W.3d 113, 117 (Tex. 2010) . We su sta in City ’ s two issues.
IV. Conc lusion
Havi ng sustained Cit y ’ s issues , w e r everse the trial court ’ s “ Orde r Denying
Def endant ’ s Plea to the Jurisdic tion ” and dismiss the case for want of subject matter jurisdic tion. See Hayes , 327 S.W.3d at 118; City of Austin , 1 84 S.W.3d at 385.

/s/ Mike Walla ch Mike Wal lach Justice
De livered: May 16 , 2024