REVERSED AND RENDERED; Opinion Filed March 1, 2021

In t he 

### Court of Appeals Fifth District of Texas at Dallas No. 05
- 20
- 00636
- CV CITY OF DALLAS , Appellant

V. SERENA MARIE DE GARC IA , Appellee On Appeal from the 191st Judicial District Court

Dallas County, Texas Trial Court Cause No. DC
- 19
- 05374 MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Carlyle The City of Dallas appeals the trial court ’ s order de nying its plea to the jurisdiction. We reverse and render judgment dismissing Serena Marie de Garcia ’ s claims against the City. B ecause the legal issues are settled, we issue this memorandum opinion. See T EX
. R. A PP
. P. 47.4. Ms. d e Garcia suffered injurie s when she tripped over a piece of metal pipe protruding from a sidewalk she alleges i s owned or controlled by the City

. She sued the City for premises liability, and later amended her petition to include the Texas Department of Transportation (TxDOT) as a defendant. T he City filed a plea to the ju risdiction contending i t i s immune from suit both b ecause it is not responsible for– 2

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maintaining the sidewalk and because it was unaware of the sidewalk ’ s defective condition at the time of Ms. de Garcia ’ s injury

. In support of its plea, t he City provid ed evidence of a contract it has with TxDOT which, according to the City,

s hows TxDOT i s responsible for maintaining the sidewalk

. TxDOT filed a response denying responsibility under the contract and is not a party to this appeal

. At the hearing on the plea , the trial court expressed its belief that, because there was a factual dispute as to who , between the City and TxDOT , was responsible for maintaining the sidewalk, there was also a factual dis pute as to who would have received notice of the hazardous condition. After the hearing, the court entered an ord er denying the City ’ s plea without specifying any reasons for doing so, which it was empowered to do

. T he City contends the trial court erred b y denying the plea because the evidence established the City lacked actual knowledge of the sidewalk ’ s hazardous condition regardless of who was responsible for maintaining the sidewalk

. 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). “ In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court ’ s jurisdiction by alleging a valid waiver of immunity. ” Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 54 0, 542 (Tex. 2003). Ms. de Garcia brought claims under the Texas Tort Claims Act (TTCA) , which waives immunity for personal injuries caused by the condition of real property if a governmental unit would, were it a private person, be liable under– 3

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Texas law. City of Dallas v. Davenport , 418 S.W.3d 844, 847 (Tex. App.

— Dallas 2013, no pet.) (citing T EX
. C IV
. P RAC

. & R EM
. C ODE § 101.021(2)). For purposes of this appeal, the City does not dispute that it owed Ms. de Garcia a duty as the party responsible for the sidewalk

. And M s. de Garcia concedes both that she did not pay to access the sidewalk and that the protruding pipe was not

a “ special defect ” under the TTCA. See T EX
. C IV
. P RAC

. & R EM
. C ODE § 101.022(a), (b) ; see also City of Dallas v. Freeman , No. 05

- 18

- 00961

- CV, 2019 WL 3214152, at *3

– 5 (Tex. App.

— Dallas July 17, 2019, no pet.) (mem. op.) (explaining the difference between ordinary and special defects, concluding that a three

- inch difference in elevation between a sidewal k and a n abutting curb wa s not a special defect under the TTCA)

. The City therefore owed Ms. de Garcia “ only the duty that a private person owes to a licensee on private property. ” Id. § 101.022(a). That duty requires an owner to “ use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not. ” Sampson v. Univ. of Tex. at Austin , 500 S.W.3d 380, 391 (Tex. 2016) (quoting State Dep ’ t of Highways & Pub. Transp. v. Payne , 838 S.W. 2 d 235 , 237 (Tex. 1992 ))

. Ms. de Garcia does not allege the City ’ s conduct was willful, wanton, or grossly negligent. Thus, to maintain her claims under the TTCA, she must prove the City actually knew about the sidewalk ’ s dangerous condition at the ti me of her injury

. Id. “ Actual knowledge, rather than constructive knowledge of the dangerous condition is required , ” and “[ h]ypothetical knowledge will not suffice. ” Id. at– 4

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392 (quoting State v. Tennison , 509 S.W.2d 560, 562 (Tex. 1974)). Accordingly , i f
t he evidence establishes that the City lacked actual knowledge of the sidewalk hazard , then immunity is not waived, and the City ’ s plea must be granted. Id. at 391

– 92. Because the City ’ s challenge is based on evidence purporting to negate the basis for the trial court ’ s jurisdiction, the City ’ s burden is similar to that of a movant for summary judgment. Id. (citing Miranda , 133 S.W.3d at 227

– 28). The City has the initial burden of presenting evidence sufficient to negate jurisdiction. If it meets that burden, the burden shifts to Ms. de Garcia to demonstrate a factual dispute on the jurisdictional issue. Id. at 391

– 92. In determining whether either party satisfied its bur den, we take as true all evidence favorable to Ms. de Garcia, drawing every reasonable inference and resolving all doubts in her favor. Id. “ Although there is no one test for determining actual knowledge that a condition presents an unreasonable risk of ha rm, courts generally consider whether the premises owner has received reports of prior injuries or reports of the potential danger presented by the condition. ” Id. at 392 (quoting Univ. of Tex.

– Pan Am. v. Aguilar , 251 S.W.3d 511, 513 (Tex. 2008) (per curia m)). With respect to whether the City was aware of the sidewalk ’ s defective condition, the City provided an affidavit from Sheila Gray, a records custodian for its 311 Customer Service Center. She explained that the 311 Customer Service Center maintains r ecords concerning reports of any allegedly hazardous conditions– 5

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within the City. Based on a diligent search of those records, Ms. Gray testified the City did not receive any reports of a dangerous condition on the sidewalk in the two years before Ms. de Ga rcia ’ s injury. Binding p recedent in this court

— where w e have held that evidence similar to the City ’ s , testimony stating that a governmental unit did not receive reports of a hazardous condition in the two years before the injury

— requires us to conclude t he City ’ s evidence is sufficient to demonstrate a lack of actual knowledge. See City of Dallas v

. Kennedy , No. 05

- 19

- 01299

- CV, 2020 WL 3286515, at *3 (Tex. App.

— Dallas June 18, 2020, no pet.) (mem. op.); Freeman , 2019 WL 3214152, at *5

– 6

. Thus, t he City having met its initial burden, the burden shifted to Ms. de Garcia to demonstrate a fact issue as to whether the City had actual knowledge

. See Sampson , 500 S.W.3d at 391

– 92. Ms. de Garcia points to no direct evidence of the City ’ s knowledge. As she argued below, Ms. de Garcia argues the City must have been aware of the dangerous condition because it appeared the protruding pipe was part of a sign that had been removed from the sidewalk. She extrapolates that, because the City allegedly owned the sidewalk, it must have been responsible for removing the sign. And because the City removed the sign, she argues, it must have known it left a piece of pipe protruding. Although circumstantial evidence can be used to establish actual knowledge, evidence that merely raises a suspicion that the governmental unit had actual– 6

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knowledge is insufficient

. See id. at 394. T here is no record evidence suggesting t he City , rather than a third party, removed whatever sign was once located on the sidewalk . And we cannot reasonably infer the City removed the sign base d solely on the fact that it owned or controlled the property

. Thus, we cannot infer the City had actual knowledge of the condition created by the sign ’ s removal. See id. Because Ms. de Garcia faile d to point to any evidence suggesting the City had actual knowledge of the sidewalk ’ s d angerous condition at the time of her injury, the City ’ s evidence was sufficient to negate jurisdiction under the TTCA

. See Kennedy , 2020 WL 3286515, at *3; Freeman , 2019 WL 3214152, at *5

– 6 . We reverse the trial
court ’ s order denying the City ’ s plea and render judgment dismissing Ms. de Garcia ’ s claims for lack of jurisdiction.

200636F.P05 /Cory L. Carlyle/ CORY L. CARLYLE JUSTICE– 7

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### Court of Appeals Fifth District of Texas at Dallas

JUDGMENT CITY OF DALLAS, Appellant
No. 05

- 20

- 00636

- CV V. SERENA MARIE DE GARCIA, Appellee On Appeal from the 191st Judicial District Court, Dallas County, Texas Trial Court Cause No. DC

- 19

- 05374. Opinion delivered by Justice Carlyle. Justices Myers and Osborne participating. In accordance with this Court ’ s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that: Serena Marie de Garcia ’ s claims against the City of Dallas are dismissed for lack of jurisdiction. It is ORDERED that appellant City of Dallas recover its costs of this appeal from appellee Serena Mareie de Garcia.
Judgment entered this 1st day of March, 2021.