Affirmed and Memorandum Opinion filed September 8 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00086

- CV

CITY OF HOUSTON , Appellant

V.
CHRISTYN BRECKENRID GE , Appellee

On Appeal from the 80th District Court Harris County, Texas Trial Court C au s e No. 2019

- 22876

MEMORANDUM OPINION

T his is a personal injury case arising from Appellee Christyn Brecken ridge ’ s fall into a water utility hole in the sidewalk in downtown Houston . T he City of
Houston appeals the denial of its summary judgment moti on s , argu in g in three
issues that the trial court erred by denying its summary judgment motions because (1 ) “ an uncovered water meter box in a side walk is not a special defec t ” ; (2) one of its inspector ’ s place ment of a cone inside the water utility hole s hi elds the City
from Breckenridge ’ s claim ; and (3) had Breckenridge pled a n or dinary premises2

defect claim, she admitted that nothing prevented her from seeing the water utility
hole in the side walk. We affirm.

B ACKGROUND On July 26, 2018, Breckenridg e w as walking on a pede stri an sidewalk on 1515 Pease Street in downtown Houston , when she “ stepped into an uncovered
hole in a pedestrian sidewalk, causing her foot, ankle, and heel to get stuck in the
hole and fall. ” 1 Breckenridge sued the City on March 29, 2 019, plead ing a

ne gligence cause of action based on special defect , alleging that the “ uncovered hole in the pedestria n sidewalk con stituted a special defect. ” The City answered, asserting governmental immunity as a bar to suit and as an affirmative def en se to liability as well as official immunity as a n affirmative defense. In September 2020, t he City filed its Hybrid Traditional and No

- Evidence Motion for Final Summary Judgment on Immunity, Causation, and Damages

. 2 As relevant to this appeal, the Cit y argu ed that it was shielded by immun ity from suit
and the trial court lacked subject matter jurisdiction o ver Breckenridge ’ s suit because ( 1) th e water utility hole i s not a special defect and therefore Breckenrid ge failed to plead a valid waiver of the Ci ty ’ s immunity under the Texas To rt Claims
Act ; ( 2) Breckenridge “ had actual knowledge of the condition ” admitt ing that nothing prohibited her from seeing the water utility hole ; and ( 3) the City did not
breach its duty to warn Breckenridge about the wate r utility hole because its
i nspect or , Donnell Kennedy , had placed a n orange cone inside the water utility

1 T he parties us e “ ho le ” , “ water meter box ” , “ uncovered man

- made utility hole ” , a nd

“ uncovered wate r utili ty hole ” t o refer to the water utility hole at iss ue in this case . For the sake of uniformity, we will use the t erm “ water u tility hole. ”

2 Although the City filed a hybrid summa ry judgment motion, it only mo ved on no

evidence groun ds regarding causa tion and dam ages, arguing Bre ckenridge has no evidence of
caus ation or dama ges “ due to multiple gaps in treatment and [her] failur e to designate causation experts. ” These grounds are ne ither presented n or at issue in this appeal.3

hole in February 2018. A few days later, the City filed its First Amended Hybrid
Traditional and No

- Evidence Motion for Final Summary Judgment on Imm un ity, Causation, and Damages only to subs titute the transcript excerpts of Kennedy’s deposition in place of the video deposition.

I n October 2020 , Breckenridge filed a response to the City ’ s first amended hybrid summary judgment motion, contending tha t (1 ) she “ pled a nd presented

s ufficient evi dence that the subject un c overed water utility hole constituted a special defect which proximately caused ” her injur ies so that the Cit y ’ s immunity is waived by the Texas Tort Claims Act ; (2) the water utility ho le i s a special
defect because “ it is like a n excavation or obstruction on the road, street, or sidewalk ” ; (3 ) there is no evidence that she knew of the water utility hole ; and (4) the City breached its duty to warn because (a ) there is a fact question whe th er Kennedy in fact p laced a cone in the wa ter utility hole , and ( b) leaving a lightweight cone and expecting it to stay i n place for months is inadequ a te

. In support of her response, Breckenridge attached nu merous exhibits, including Kennedy ’ s depos itio n t e stimony excerpts, the video deposition of City inspector
Pa trick Riley who had secured the water utility hole at issue in the summer of
2017 , Breckenridge ’ s deposition testimony excerpts, 3

- 1

- 1 complaints about the water utility hole at issue, and photos

. Two days later, the City filed it s r eply arguing it is entitled to summary judgment on Breckenridge ’ s sole cause of action because the water utility hole i n the sidewal k does not constitute a special defect and , even if it were a sp ecial
defec t, B reckenr id ge “ presented no evidence to refute that [the City] d id not breach its duty to ” warn of the alleged defe c t. That same day, t he City also filed its Second Traditional Motion for Final Summary Judgment on Official Immunity , arguing it “ is shield ed b y the o ff icial4

immunity of its employee ” Kenn edy. In that regard, t he City as serted that Kennedy was (1) acting with in the scope of his authority when he placed the cone in the water utility hole becau se he “ was discharging the duties generally assign ed

t o him ” ; ( 2) “ performing a dis cretionary duty when the accident occurred ” because

“ Kennedy testified that what it means to secure an area depends on the
circumst ances and inspectors can use their individual judgment when determining how to secure an are a ” ; and (3) “ acting in good faith when the accide nt occurred ”
because “ Kennedy testified that in his experience, he would expect a two to three

pound cone placed inside the water meter to stay there for a period of six or seven
months on its own if no one remo ved it ” a nd he “ also opined that a reasonably prudenc e [sic] inspector under the same or similar circumstances could have believed that his actions to secure the area by placing a cone in the uncovered [water utility hole] were justified based upon his per ception o f t he facts at the
time. ” To support its motion , t he Cit y attached Kennedy ’ s affidavit in which he
stated that he “ believe [d] that a reasonably prudent inspector under the same or similar circumstances could have believed that [his] actions t o se cure th e area by placing a cone in the uncovered meter box were ju stified based on [his] perception
of the facts at the time. ” In January 2021, Breckenrid g e filed a response to the City ’ s Second Traditional Motion for Final Summary Judgment on Official Imm unity

. S he argued that the trial court has subject matter jurisdi ction in this case because (1)

s he “ pled and presented sufficient evidence that the subject condition constituted a special defect such that Defendant’s immunity is waived ” ; (2) “ the Cit y de spite

a rg uments related to Donnell Kennedy ’ s capacity as an emplo y ee, the [C]ity is NOT entitled to immunity related to premises defect ” ; and (3) the City failed to
fol low its own procedur es and “ warn patrons of the danger prior to [her] trip and5

fall. ”

On Januar y 29, 2021, t h e trial court held a hearing on the City ’ s su mmary judgment motions and signed an order denying t he City ’ s Second Traditional Motion for Final Summary Judgment on Official Immunity . On February 1, 2021, the trial court signed an o rder deny in g the City ’ s First Amended Hybrid
Traditional and No

- Evide n ce Motion for Final Summary Judgment on Immunity, Causation, and Damages

. The City filed a timely interlocutory appeal

. 3

A NALYSIS
I. The City ’ s Issues

T he City challenges the trial cou rt ’ s o rders d enying summary judgment in
three issues:

1. Did the tria l court err in denying Houston’s First Amended Traditional Motion for Final Summary Judgment on Immunity because an uncovered water meter box in a sidewalk is not a special defect? 2. Did the trial co urt err in denying Houston’s motions because Inspector K e nnedy’s placement of an orange safety cone inside the water meter box shields Houston from Breckenridge’s claim? 3. To the extent Breckenridge had pled an ordinary premises defect, did t he t rial co ur t err in denying Houston’s First Amended Tra ditional Mot i on for Final Summary Judgment on Immunity because Breckenridge admitted nothing prevented her from seeing the uncovered water meter box? II. Standard of Review Subject matter jurisdictio n is necess ar y to a court ’ s authority to decide a

3 This court has ju risdicti on to cons ider an interlocu tory appeal from th e denia l of a summary judgment moti on by a governmental unit seekin g a dismissal based on governmental immunity. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8); Oakbend Med. Ctr. v

. Martinez , 515 S.W.3d 5 36, 541 (T ex. App.

— Houston [14th Dist.] 2017, no pet. ).6

case. Tex. Ass ’

n o f Bus. v. Tex . Air Control Bd. , 852 S.W.2d 440, 443 (Tex. 1993); City of Houston v. Manning , No. 14

- 20

- 00051

- CV, 2021 WL 1257295, at *4 (Tex. App.

— Houston [14th Dist.] Apr. 6, 2021, pet. deni ed) (me m. op.). A plaintiff must allege facts affirmatively show i ng the trial court has subject matter jurisdiction. Tex. Air Control Bd. , 852 S.W.2d at 446; Manning , 2021 WL 1257295, at *4. A party may challenge the lack of subject matter jurisdict ion by a pl ea to the jurisdiction or by other procedural vehicles, su c h as a motion f or summary judgment filed in this case. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000); Buzbee v. Clear Channel Outdoor, LLC , 616 S.W.3d 14, 21 (Tex. App

. — Ho uston [ 14 th Dist.] 2020, no pet.). Because subject matter jurisd i ction is a questi on of law, we review the trial court ’ s ruling de novo

. Tex. Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004); Manning , 2021 WL 1257295, at *4.

To o btai n a tra di tional summary judgment based on a lack of subject matte r jurisdiction, a m ovant must produce evidence showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Town of Sha dy Shores v. Swanson , 590 S.W.3d 544, 551 (Tex. 2019). A n onmovant may raise a genuine issue of material fact by producing

“ ‘more than a scintilla of evidence establishing the existence of the challenged element.’ ” Swanson , 590 S.W.3d at 551 ( quot ing For d Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004)). While the City asser ted immunity by way of a traditional summary judgment motion, the applicable standards generally mirror those governing review of an order denying a plea to the juris dict ion. M an ning , 2021 WL 1257295, at *4; see also Miranda , 133 S.W. 3 d at 228. A defendant ’ s jurisdictional plea may challenge either the plaintiff ’ s pleadings or the existence of jurisdictional facts. Miranda , 133 S.W.3d at 228; Manning , 2021 WL 125729 5, a t7

*4.

Th e City challenged the existence of jurisdictional facts; therefore, “we
consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do.” See Miranda , 133
S. W.3d at 227

. “In both traditional summary judgment and plea to the j u risdiction
contexts, we ta ke as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts arising from such evidence in
the nonmovant's f

avor .” Man ni ng , 2021 WL 1257295, at *4; see also Miranda , 133 S.W.3d at 228. If the relevant evi dence is undisputed or does not raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Mira nda , 13 3 S.W.3d at 228; Manning , 2021 WL 1257295, at *4. If the e vidence creates a fact questio n regarding the jurisdictional issue, the trial court may not grant the plea, and the fact issue will be resolved by
the factfinder. Miranda , 133 S.W.3d at 227

- 28.

II I. Governmental Immunity The City argues in its first iss u e that the trial court erred in denying its First Amended Traditional Motion for Final Summary Judgment on Immunity because a water utility hole in a sidewalk is not a special defect.

A. Ap plic able La w
The T exas Tort Claims Act (the “ Act ” ) waives the City ’ s g overnmental immunity for suits for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. City of G rape vine v. R oberts , 946 S.W.2d 841 , 843 (Tex. 1997) (per c uriam) ; see also Tex. C i v. Prac. & Rem. Code Ann. § 101.021 ; Tex. Dep ’ t of Crim

. Just

. v. Miller , 51 S.W.3d 583 , 587 (Tex. 2001)

. Under the Act, a claim based on a8

condition of real property is a prem ise def ec t cl aim

— e it her ordinary or special

. Sampson v. Univ. o

f Tex. at Austin , 500 S.W.3d 380, 385

- 87 (Tex. 2016). The Act provides di fferent standards of care depending on whether the claim arises from an ordinary premise defect or a special defect

. Robe rt s , 9 46 S.W. 2d at 843 ; see also Tex. Civ. Prac. & Rem. Cod e Ann. § 101.02 2

. When there is an ordinary premise defect, a governmental unit owes the duty that a private person owes to a licensee : not to injure the licensee by willful, wanton, or gro ss ly

ne g ligent condu ct and to use ordinary care in warning a licens e e of a dangerous condition, or making the condition safe, th at is actually known to the owner but not
to the licensee. Sam

pson , 500 S.W.3d at 385 ; State Dep ’ t of Highways & Pub. Transp. v . Payne , 838 S .W.2d 23 5 , 237 (Tex. 1992) (op. on reh ’ g)

. On the oth e r hand, if the condition i s a special defect, the go vernmenta l unit has the same duty to warn as a private landowner owes to an invitee: to use ordinary care to reduce or eliminate an unr eas onab l e risk of ha rm created by a premises condition of which th e owner is or reasonably should be aware. Roberts , 946 S.W.2d at 843; Payne , 838 S.W.2d at 237; see also Tex. Civ. Prac. & Rem.
Code Ann. § 101.022(b).

B. Special Defect
In its first issue, the Cit y conte nds th at the t rial court err on e ou sly den ied its
Firs t Amended Traditional Motion for Final Summary Judgment on Immunity
because it establis hed that the water utility hole in the sidewalk in which Breckenridge fell is not a special defect so t hat it r etaine d its go ve rnmental immunity

. Whether a condi tion of r eal property is an ordinary premise defect or a special defect is a question of law for the court to decide. Roberts , 946 S.W.2d at9

843; Payne , 838 S.W.2d at 23 8; City of Houston v. Joh , 3 59 S.W. 3 d 895 , 898 ( Te x. App.

— Houston [14th Dist.] 2012, no pet.) ; see also Sampson , 500 S.W.3d at 385

. The Act does not define “ special defects” except to state that they include “excavations or obstructions on highways, roads, or str eets.” Te x

. Dep ’ t of Transp

.

v . Pe rche s, 3 88 S.W.3d 652, 655 (Tex. 2012) (per curiam) ; City of Denton v. Paper , 376 S.W.3d 762, 763 (Tex. 2012) (per curiam)

. The supreme court has construed special defects to include other defects of the same kind or class as the two express ly ment ioned in the s tatute

. Pap er , 376 S.W.3d at 763; Tex. Dep ’ t of Transp. v

. York , 284 S.W.3d 844, 847 (Tex. 2009) (per curiam) ; Roberts , 946 S.W.2d at 843 (“The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to includ e defects of t he sam e kind o r class as the ones expressly mentioned in t h e statute.”). “ Defects on a sidewalk may be within the
class ‘ because a sidewalk is sufficiently related to a roadway. ’ ” City of Austin v. Furtado , No. 03

- 21

- 00083

- CV, 2021 W L 61943 65 , at *3 (Tex . App.

— Austi n Dec. 31, 2021, pet. denied) (mem. op.) (quot i ng City of A ustin v. Credeur , No. 03

- 19

- 00358

- CV, 2021 WL 501110, at *3 (Tex. App.

— Austin Feb. 11, 2021, no pet.) (mem. op.) ) ; see also City of El Paso v. Chacon , 148 S.W.3d 41 7 , 422 (Tex. App.

— E l Paso 2004, p et . denied )

. Deciding whether an alle ged def ect is within the special defect class is
determined on a case

- by

- case basis. Furtado , 2021 WL 6194365 , at *3

. In de ciding this q uestion, courts previously have considered char acteris tics of the
class of speci al defect, such as (1) the size of the condition, (2) whether the

co nditio n unexpectedly and physically impairs the ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordin ary cou rse of even ts, and (4) whe th er the condition presents an unexpected and unusual danger to th e ordinary users of the roadway. See Univ. of Tex. at Austin v. Hayes ,10

327 S.W.3d 113 , 116 (Tex. 20 10) (per c uriam) . Texas ’ “ special

- defect jurisprudence t urns on the objective expectat ions of an ‘ ordi na ry user ’ who follows
the ‘ normal course of travel. ’ ” Id

. (quoting D enton C ty. v. Beynon , 283 S.W.3d
329 , 332 (Tex. 2009) ). Citing cases f

rom the Eastland, Fort Wor th , and Ama r illo c ourts of appeals,

t he City first contends that it was en titled to summar y judgment because “ [ t ] he majority of courts deciding this issue have held that an uncovered water meter box is not a special defect. ” We reject the City ’ s contentio n. First, we no te that w hile we respect our sister courts ’ decisions as p ersuasi ve author it y , we are not bound by their precedent. Second, these op i ni ons are f a c t u a l l y d istinguishable. See City of Bedford v. Smith , No. 02

- 16

- 00436

- CV, 2017 WL 4542858, at *1, 3 (Tex. App.

— Fort Worth Oct. 12, 2017, n o pet .) (mem. op.) (plaintiff was walking ac ro ss the grass to reach a sidewalk in front of her apartment when she stepped onto a
manhole lid c overing a water meter box and the lid flipped open causing plaintiff to fall into the manhole; court h eld the “‘ br oken, defective, and/or improperly secured’ ma nhole cover in this case is not s pecial defect”); Bustillos v. City of
Midland , No. 11

- 07

- 00038

- CV, 2008 WL 2058551, at *1, 3 (Tex. App.

— Eastland May 15, 2008, no pet.) (mem. op.) (finding open wate r meter bo x did n ot constitute a special defect in the c as e because box “was located adjace nt to dumpsters that lined the side of the alley” and “appellan t was not an ordinary user of the alley at the time” she stepped into the box since an “ordinary user of the all ey woul d not
encounter the hole because the du mp sters located on the side of the alley precluded users from traveling in a path parallel to the alley”); Duenes v. City of Littlefield , No. 07

- 05

- 0420

- CV, 2007 WL 270415, at *1, 3 (Tex. App.

— Amarill o Jan. 31,
2 007, no pet.) (mem. op.) (when plaintiff ste pp ed on an unsecured meter box in a grassy area, the cast iron lid flipped and caused plaintiff’s leg to fall into the box;11

court held the unsecured meter box was not a special defect because it was

a pproximate ly seve nteen and a half feet from the resident ia l street and not located
in an ar ea where users of the roadway would normally travel); Martinez v. City of
Lubbock , 993 S.W.2d 882, 884

- 85 (Tex. App.

— Amarillo 1999, pet. denied) (instead of using th e road abo ut two feet away, plaintiff walked along a dir t path in a vacant lot when he step ped into an uncovered water meter hole; court concluded
the hol e “was outside the path of those normally traveling on the road”, did not pose a threat to ordinary us ers of the r oad, and did not constitute a special defect ); Bishop v. City of Big Spring , 91 5 S.W.2d 566 , 571 (Tex. App.

— Eastland 1995, no writ) (finding the wa ter meter box hole was not a special defect because the “normal users of the road would not normally t ravel closer to the house than the
mailbox and would not e ncounter the hole” so that “the c ondition of the hole did not create a hazard or danger to the n ormal users of the road as contemplated by Section 101.022(b)” to make it a special defect). The City also conten ds that it was entitled to summary judgment be cause it
demonstrated that the wa ter utility hole was located in the sidewalk and “ not the
surface of th e roadway itself ” and any defect cannot be a special defect unless it is
on the road itsel f. Ag ain , w e di sagree . First, the cases the City cites to su pport its
contention do not hold that a defect cannot be a special defect unless it is on a road versus a sidewalk , nor was such a question presented

. See Tex. Dep ’ t of Transp. v.
Ives , No. 05

- 18

- 0 1527

- C V, 202 0 WL 2715367 , at * 1, 3 (Tex. App.

— Dallas May
2 6, 2020, pet. denied) (mem. op.) ( plaintif f walked at n ight in the grass several feet

o f f the roadway and fell into a drop inlet grate ; court conclude d the drop inlet grate in the grass beside the r oad is not i n the same class as a n excavation or obstruc ti on on a roadway so that the grate in this case cannot be placed within the class of special defects ); Camarena v. City of Weslaco , No. 13

- 17

- 00243

- CV, 2018 WL12

4143764 , at *1, 4 (Tex. App.

— Corpus Chr isti Aug. 30 , 2018, no p et.) (mem. op.) ( canal wa s not a speci al defect because plaintiff, “ travel ing approxim ately ten feet
off th e roadway before driving into the canal, is not an ordinary user under the special defect analysis ” ); City o f McAllen v. H

ernandez , No. 1 3

- 04

- 182

- CV, 2005
WL 2000818 , at *1 , 8 (Tex. App.

— Corpus Christ i Aug. 22, 200 5, pet. deni ed) (mem. op.) ( court concluded that lid on drainage box was not a special defect
because i t was not “ a condition that presents an unexpected a nd unusual danger to
ord inary users of the roadway ” ; court stated that plaintiff “ left the sidewalk a nd
crossed t he grass and the drai nage box in order to get to the street rather than continuing on the sidewalk to the corner and approaching the street fro m there , ” when “ she step ped on the shop

- made lid, it gave way and tilted, c ausing her to
fall , ” and w he n she “ left th e sidewalk instead of continuing on the sidewalk to the corner in order to get to the crosswalk and cross the street, she was not an ‘ ordin ary

user ’ as the law pro vides ” )

. Second, we agree t hat a d efect on a sidewalk may be a special defec t because
a side walk is sufficiently related to a roadway

. 4 See Furtado , 2021 WL 6194365 , at *3 ( not readily apparent sunken area on a pu blic sidewalk fou nd to be a special
defec t) ; City of Austin v. Cred eu r , No. 03

- 19

- 00358

- CV, 2021 WL 501110 , at *3 (Tex . App.

—

Austi n Fe b. 11, 2021, no pet.) (mem. op.) ( sidewalk wa s sufficiently related to the street to come within the realm o f speci al defects , but court he ld the improperly sealed water valve cover was not a special defect because plaintiff

encount er ed it off the sid ewalk in an area not intended for ordi nary pedestrian use ) ; City of Austin v. Rangel , 184 S.W.3d 377 , 383

- 84 (Tex. App.

— Austin 2006, no

4 W e note that we stated in City of Houston v. Joh that “ in almost every instance in which a court has examined an uncovered, man

- m ade hole on a public stre et or a sidewalk adjacent to a street, those co urts ha ve determined tha t hole to be a spec ial def ect in the same class ‘ as ex cavations or obstructions. ’ ” 35 9 S.W.3d at 901, n.7.13

pet.) ( a defect need not be on t he surface of the road its el f but the condition m ust be sufficientl y related to the stre et to constitute a special defect ; court held that uncovered meter box on downtown sidewalk was a special defect of the kind and
class covered b y the Act and that it po sed an unexpected and unus ua l danger to ordinary users of the sidew alk ); Chacon , 148 S.W.3d at 425 (a defect need not occur upon the road surface itself to constitute a special defect and a condition on a sidewalk can b e a special d efect ; court held that u tility pole hole located i n sidewalk where a pede strian would norma lly walk and not expect to enc ounter it

was a special defect ) ; see also Martinez , 993 S.W.2d at 88 4 ( “ it must be noted that the excavation, obstruction, or the like need not b e on the surfa ce of the road
itself ” ); B is hop , 915 S.W.2d at 57 1 ( “ conditions thr eatening normal use of a road may be ‘ special defects ’ even though they do not occur on the surface of the
road ” ).

A dditionally, we note that a sidewalk is defined as that portion of a str eet that is between a cu rb o r lateral line of a r oadway and the adj acent property line and is intended for pedestrian use. Tex. Transp. Code Ann. § 541.302 ( 1 6). Keeping in mind that whether an alle ged defect is within the special defect class is
determin ed on a case

- by

- case bas is , we turn to analyz ing whether the water utility hole in this case constitutes a special defect.

T he parties presented several pictures ( taken from different angles ) of the
water utili ty hol e , the sidewalk , and the roadway close to the sidewalk whi ch
sh ow ed the hole ’ s location and size. The clo seup pictures show ed that the water utility hole was about ten inches deep, oval

- shaped , and a bit larger than a stand ard

- sized cinderblock

. Th e hole was located in that part of the sidewa lk
where pedestr ian s wou ld l ikely walk a s well as step into the cro s swalk to cross the

street

. The hole was not readily apparent or expected and changed the “ essential14

structure ” of the part of the sidewalk where Breckenridge stepp ed and fell. See Robert s , 946 S.W.2d at 84 3; Furt ad o , 2021 WL 6194365, a t *4. Evidence al so showed that C ity inspector Riley , who had requested that a lid be placed on th at

s ame water utility hole over a year before Breckenridge ’ s fall , wrote in his repo rt that action was immed iately re quir ed as it was a h azard to pedestri ans.
A normal user of the roadway in this case would be a pedestrian on the sidewalk, just as Breckenri dge was when she stepped into the water utility hole.
See Range l , 184 S.W.3d at 3 84

. Considering that “ s pecial

- defect juris prudenc e turns on the objec tive expectati ons of an ‘ ordinary user ’ who follows the ‘ normal course of travel , ’ ” a n average pedestrian would not expect to encounter a hole of
th is particu l a r size on a downtown publi c side walk. See Hayes , 327 S.W.3d at 116 ( quoting B eynon , 283 S.W.3d at 332 ); Range l , 184 S.W.3d at 3 84 ; Chacon , 148 S.W.3d at 425

. Based on the evidence presented, we conclude that this water utility hole posed an unexpected and unusual danger to ordina ry users of th is sidewal k and was a special defect o f the kin d and class envisio n ed by the Act

. See Furtado , 2021 WL 6194365, at *4 ; Rangel , 184 S.W.3d at 3 84 ; Chacon , 148 S.W.3d at 425

. Becau se the water utility ho le in this case constitute d a s pecial defect as a

m a tter of la w , the City was not entitl ed to summa ry judgment in that regar d and the
trial court therefore did not err in denying the C ity ’ s Firs t Amended Traditional Motion for Final Summary Judgment on Immunity . Accordingly, we overrule the
C ity ’ s f irst issue.

C. Duty to Warn

In its seco nd issu e , t he Ci ty contends that even if th e water utility hole is a special de fect, the trial court nonetheless erred in denying its Firs t Amended Traditional Motion for Final Summary Judgment on Immunity because the City15

established th at it did not breac h its d ut y to warn of the special def ect wh en there is unrefuted evidence that Ke nn edy placed a cone in the water utility hole and the City is therefore shielded from Breckenridge ’ s claim

. Because the water utili ty hole was a special de fect, the City ha d a duty to

warn o f that defect. S ee Payne v. City of Galveston , 772 S.W.2d 473 , 476 (Tex. Ap p.

— Houston [14th Dist.] 1989, writ denied)

. The City claims that it discharged its duty o f c a r e to warn of the special d efect because Kennedy pl aced a cone inside
the wat er utilit y hole on Februar y 13, 20 18. I t is undisputed that there was no cone
or any thing else t ha t could have warned pedestria ns of the water utility hole on July 26, 2018, when Breckenridge stepped into the hole and fell

. In i ts brief, t he City provide s no expl a nation or author ity to s upport its assertion that it conclusively warned pedestrians of the hole because Kennedy allegedly placed a

cone weighin g about two to three pounds in the hole almost six m onths before Breckenridg e fell

. Because Breckenri dge presented evidence that no warning cone was present on the day of the accident, w e conclude that t he City failed to establi s h
that it is entitled to summary judgme nt because a genuine fact issue exists whether
it discharged it s duty of care by warning of the danger the water utility hole posed. Accordingly, w e overrule the City ’ s second issue with regard to this a ssertion. 5

D. Official Immunity

In its seco nd issue, the City also contends tha t the trial c o u rt er r oneou s l y denie d its Second Traditional M otion for Final Summary Judgment on Official Immunity because Kennedy ’ s official immunity shields the Ci ty from Breckenridge ’ s suit. In t hat regard, the City claims that Kennedy is enti tled to
offici al imm un ity b ecaus e it establi shed Kennedy was (1) “ act i ng within the scope

5 Within its second issue, t he City also makes a n official immunity argument ; however,
we addre ss tha t argu ment in sectio n D below.16

of his authority [ when ] he placed the cone ” in the water utility hole ; (2)

“ performing a discretionary duty when the a ccident occurred ” ; an d (3) “ acting in good faith when the accident o cc u rred

. ”

O fficial immu nity is an affirmative def ense that protects a governmental employee from personal liability and thereby preserves a governmental employer ’ s governmental immunity f rom suit for vicariou s liability. Tex. Dep ’ t of Pub. Safety
v. Boni ll a , 48 1 S.W .3d 640, 642 (Tex. 2015) (per curiam). A governmental employee is entitled to official immunity for his good faith performance of discretionary duties within the scope of the employee ’ s authority. Id . at 642

- 43; Gomez v. City of Houston , 587 S. W .3d 891, 89 7 (Tex. Ap p.

— Houston [14th Dist.]
20 19, pet. denied) (en banc)

. While governmental immunity and official immunity are distinct concepts , they become intertwined in certain c ircumstances through s ection 101.021 of the Texas Tort Claims Act

. C i t y of Bayt own v. People s , 9 S.W.3d 391 , 395 (Tex. App.

— Houston [14th Dist.] 1999, no pet.) ; s ee DeWitt v. Harris C ty ., 904 S.W.2d
650 , 653

- 54 (Tex. 1995)

. For example, in section 101.021(1), a government al u nit is not liable if its employee is entitled t o offic ial immunity. Pe oples , 9 S.W.3d at 395; se e DeWitt , 904 S.W.2 d at 653. This same result may occur in section 101.021(2) if a governmental unit ’ s liability is based on respondeat superior. Peoples , 9 S.W.3d at 395; see DeWitt , 904 S.W.2 d at 653. H oweve r , s ection
101.02 1(2) is broader than secti on 101.021(1) because section 101.021(2) encompasses not only liability based on res pondeat superior but also liability based on premise and special defects. Peoples , 9 S.W.3d at 395; see DeWitt , 904 S.W.2 d
at 65 3. When liabilit y is based on a premise or special defect, the governm ental unit is not shielded by its employee ’ s official im munity. S ee DeWitt , 904 S.W.2 d
at 653 ; Peoples , 9 S.W.3d at 395

. “ With pr emise defects, liability is predicated not17

upon the ac ti ons of the gove rnmental unit ’ s employees but by reference to the duty of care owed by the governmental unit to the claimant f or premise and special defects as specified in section 101.022 of th e Texas Tort Claims Act. ” DeWitt , 904
S.W.2 d at 653 ( c iting Te x. Civ. Prac. & Rem. Cod e Ann. § 101.02 2 )

. Based on the pleadings here , this is a special defect case . Further, the City

sta ted repeatedly that Breckenridge “ exclusively pled special defect. ” Theref ore, because the City ’ s alleged liability is ba s ed on a special defect , the City is not
shielded by its empl oyee ’ s alleged official immun ity

. S ee DeWitt , 904 S.W.2 d at 653 ; Peoples , 9 S.W.3d at 395

- 96 ; see also Gaffney v. TDCJ

- ID , No. 14

- 00

- 00572

- CV, 2001 WL 1249756 , at *2 (Tex. App.

— Houston [ 1 4th Dis t .] Oct . 18, 2001, no
pe t.) (mem. op. , not designa ted for publication) ( hold ing that “ official immunity provides no basis for affirming the trial court ’ s judgm ent . . . [because] the TDCJ may be liable under G affney ’ s premises

- liability theory, eve n if [ TD C J ’ s

em ployees] are [shi elded] from liability ” by official immuni ty ). Accordingly, we overrule the City ’ s second issue.

E. O rdinary Premise Defect
In its third issue, the City argues that “ [ e ] ven if Breckenr idge had pled ordinary premises defect i n the a lternat ive, the trial co urt erred in denying ” its Firs t Amended Traditional Motion for Final Summary Judgment on Immunity bec ause Breckenrid ge admitted nothing prevented her from seeing the wat er utility hole

. Th e Ci ty acknowledges that Breckenrid ge “ exclu sively pled special defe ct ” , and we have concluded that the water utility hole in this case was a special defect

as a matter of law. Therefore, we do not address the City ’ s alternative argumen t. See Tex. R. App. P. 47.1 (“ The court of appeals mu st hand d own a w ritten opinion
th at is as brief as practica ble but that addresses every issue raised and necessary to final dispositio n of the appeal. ” ) Ac cordingly, we overrule the C ity ’ s third issue.18 C ONCLUSION

We affirm the trial court ’ s January 29, 2 02 1 order denyin g t he City ’ s Seco nd
Traditional Motion for Final Summary Judgment on Official Immunity an d the
trial court ’ s February 1, 2021 order deny ing the City ’ s First Amended Hybrid
Traditional an d No

- Evide nce Mo tion for Final Summary Judgment on Imm un ity,
Ca usation , and Damages

.

/s/ Me a gan Hass a n Justice

Pa n el consist s of Justice s Wise, Jewell , and Hassan.