## In the C ourt of Appeals Se cond Appellate District of Tex a s

at Fort Worth

___________________________ No. 02

- 22

- 00326

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 330806

- 21

Before Kerr, Bassel, and Womack, JJ

. Memorandum O pinion by Justice Womac k 

### C ITY OF 

### A RLINGTON 

### , Appellant

V



### . S TACY 

### W ESSON



### - P ITTS AND 

### B ENARD 

### P ITTS 

### , Appellees2 MEMORANDUM OPINION
I. I NTRODUCTION Appellees Stacy Wesson

- Pitts and Benard Pitts were involved in a car accident
with another vehicle near the intersec tion of Abram Street and Osler Drive in Arlington

. 1 Appellees s ued Appe llant City of Arl i ngton ( City) , alleging that the City
was liable for their damages stemming from the car acci dent because the City had failed to proper l y maintain a yield s ign near the intersection

— a yield sign that had previou sly been located nea r the in tersection but tha t was missing at the ti me of th e accident

. The City filed a plea to the jurisdiction, arguing that it was immune from Appellees ’ lawsuit

. F ollowing a h earing , t he trial court denied the City ’ s p lea to the jurisdiction. In one i ssue on appeal, the City ar gues tha t the trial court erred by denying its plea to the jurisdiction b ecause (1) its discretionary decisions as to whether
and wh en to in stall a yield sign do not waive governmental im munity and (2) it had no

o bl igation to mai ntai n or replace the yield sign bec ause it n either owned nor exercised
control over the sign. Because there is a fact issue as to whether the City had exercised control over the yi eld sign and k new of the dangerous conditi on posed by
the mi ssing yield sig n but did not co rrect it within a reasonable time after notice , w e will affirm

.

1 The rel ationship between Wesson

- Pitts and Pitts is unclear from the record.3 II. B ACKGROUND A. The July 7, 2021 Car Acciden t and Appellees ’ Lawsuit As alleged in Appellees ’ petiti on, on the even ing of July 7, 2021, Pitt s was driving a vehicle east bound on Abram S treet while Wesson

- Pitts was his passenger. At the same time, Artwavion Brown was also driving a vehicle eas tbound on Abram
Street

. Notably, as Abram Street lead s up to Osler Drive, the outside right lane of
Abr am Street is split fr om the i ns ide two lanes of Abram Street , with the three lanes coming together just prior to the intersection

. Before the collision, the vehicle driven by Pitts was in the split , outside lane of Abra m Street , while the vehi cle driven by
Brown w as in th e rightmos t inside la ne of Abram Street. As alleged by Appellees,
when t he two vehicles approached the interse ction and the outside lane came together
with the two inside lanes , Brown failed to acknowledg e that Appe llees ’ vehicle was to
the right of h is vehicle , an d Brown attempted to turn right onto Osler Drive, turning his vehicle directly in fron t of Appellees ’ vehicle, which caused Appellees ’ vehicle to
collide with the side of Brown ’ s v ehicle. In their peti tion, Appellees maint ained th at a yield sign had pre viously been
located to the right of the outside lane of Abram Street, just before the intersection
with Osler Drive

. Appellees alleged, however, that the yield sign became missin g “ as of March 2 021 ” and that it rema ined mis si ng at the time of the July 20 21 car accident. Appellees further alleged that the City replaced the missing yield sign in December
2021. Appellees contended that the City was liable for their da mages stemming f rom4

the car accident under th e Texas Tort Claims Act (TTCA) because the Ci ty had failed to maintain the yield sign and properly regulate tr affic at the intersection and that such
failure s had created a dangerous situation that resulted in t he ir accident wi th Brown. 2
Se e Tex. C iv . Prac. & Rem. Code Ann. § 101.0215 (a) ( 3), (4), (2 0), (21), (31)

. B. The City ’ s Plea to th e Jurisdiction The City answered Appellees ’ lawsuit , a nd it filed a plea to the jur isdiction

. In its pl ea , the City arg ued that i t was entit led to g ov ernmental immunity as to Appellees ’
claims because it “ d [id] n ot own, did not install and had n ot exercised any control or maintenance responsibility over the yield sign that was mi ssing at the time of [Appell ees ’ ] vehicular accident , ” contending that th e missing yield sign and the property on which the sign was loca ted had been owned and controlled by the Texas Department of Transportation (TxDOT). The City further ar gued that “ [e]ven if the City ha d the discretion ary authority to main tain a s ig n owned by [ TxDOT ], the City ’ s governmental immunity is not waived becau se the City did not exercise that discretionary authority. ” The City attached three affidavits from C ity employees

— Julius White, Alex Busken, and Justin Simp son

— to it s plea t o support its arguments concerning governmental immunity.
In his affida vit, Whi te, the Operations Manager of the Traffic Operations
Divis ion with the City ’ s P u blic Works Depar tment , stated , in pe rtinent part,

2 A p pellees also sued Brow n for dama ges stemming from the car accident. Brown is not a party to this appeal.5

The yield sign and the locatio n of the a c cident are owned an d controlled by [TxDOT]

. The City of A rlington does not own and d id not exercise any control of the property or sign on or before July 7, 2021.
I have no knowle dge of any contract between the City of Arli ngton and [TxDOT] th at would a l low the City of Arling ton to accept, share, or participate in the maintenance or cont rol of the stree t signs at the location. [

Neither ] I nor anyone I know at the City of Arlington thought of or treated the l ocati on of the a ccident and its sign s as Cit y p roperty before August 11, 2021. The property and yield sign
w [ere] always recognized by the City of Arling ton as belonging to [ T x DOT ] and being under the con t rol of [ T x DOT ]

. In his affidavit, Busken, the City Secret ary and R ecords R et e ntion Of fi c er for the City , stated , in pert

ine nt part , I am the records retention officer for the City [,] and I retain all City ordinances and resolutions. I have researched all City ordinanc es and resol utions prior to July 7, 2021, an d t he City of Arlin g t on did no t enter into any contract with [

T x DOT], or any other government al entity, that involved the [ C] ity accepting, sharing, or participat ing in the maintenance or control of the 2800 bloc k of East Ab ram Street at it s in tersection w

ith 200 Osler Dri ve , or of a ny street sign at this location

. In his affidavit, Simpson, the Field Operations Crew Chief of the Traffi c Operations Division with in the City ’ s Public Works Department, 3 stat ed , in pertinent
part,
I hav e read the Texas Peace Officer ’ s C rash Repo rt
. . . which reports a vehicular acci de nt involving [ Appellee s] and [Brown], and I am familiar with th e yield sign and location of 2800 East Abram Street at the intersection of 200 Os ler Drive ( “ the location ” ), cited in the rep ort.

3 Simps on stated that h e had hel d th e position of Field Operations Crew Chief

“ since the end of May 2022 ” and that he “ was the Field Operations Crew Leader before that for eleven yea r s. ” Simpson said that as Crew Leader, he “ was re sponsible for overs eeing the installa tion and mai nt en an ce program for [the City ’ s] street signs. ”6 In February of 2021, I r eceived an online request that someone had reported to the City that a yield sign at the location wa s missing. I was the cre w leader responsible for responding to that request.
I wen t to the location and fo und the pole wit h the mis s ing yiel d sign. Fr om my experience, I could tell that the bracket and pole for the sign had been installed by [ T x DOT ]

. Also, when I returned to the office, I looked at Google images of the yield sign at the location and was able to recognize, b ased on my ex perie nce, that t he sticker on the back of the yield sign me ant that it was n ot a Ci ty of Arling ton sign.
S ince th e y

ield sign was not a City of Arlington asset, on February 22, 2 021, I emailed Ralp h Garza at [ T x DOT ] . Mr. G ar za was the City of Arlington ’ s con tact at [

T x DO T ] . A true and correct copy of my email to Mr. Garza is attached to this affidavit and marked as Ex hibit A. The exhibit attached to Simpson ’ s affidavit was a copy of an email that Simpson sent
Gar za on February 2 2, 2021. T he email st at ed, “ We received a request about a missing Yield s ign. It is a TxDOT sign. See pic [.] 4 The missing sign is loc ate d at Abram/Osler for eastbo u nd traffic. ” C. Appellees ’ Response to the City ’ s Plea to the Jurisdic tion
In thei r res ponse to th e City ’ s plea to the jurisdiction, Appellees argued that the City was liable under the TTCA because the City had exercised con trol and
maintenance responsibility o ver the yield sign , contending that the City had installed, insp ected, and had res ponsibili ty f or maintenanc e of the yield si gn prior to Appellees ’ car accident and that the City had failed to reasonably maintain the yi eld sign despite

4 The email included an attache d picture that showed t he pole with the missing yield sign.7

complaints and actual knowledge of a dan gerous condition posed by th e missing yield sign.
To su pp or t their argument that the City had exercised control and maintenance responsibility over the yield sign, Appe llees attached an “ Asset Sum mary ” page pertaining to the yield sign that was part of the City ’ s reco rds. Th e “ Asset Summary ”
page indi ca te d that the yield sign had been repl aced on January 1, 2000 ; inspected by Michael McLarry 5 on January 7, 2014 , whe n it was given a rating of “ 8 4.0 0 ” ; inspected by Jimmy Espinoza 6 on July 12, 2021 , whe n it was g iven a rating of “ 0 .00 ” ; noted a s being “ k n oc k [ ed

]

- down ” on July 16, 2021; and replaced on August 16, 2021. 7 The

“ Asset Summary ” page further reflected that the “ cost to date ” pertaining t o t he sign

5 In their respon se to the City ’ s plea, Appellees des cribed McLarry as a “ Cit y of Arlingto n employee/ co nt ra ctor. ” At the hearing on the City ’ s plea, Appellees reiterated that McLarry was a “ City of Arlin gton employee. ” The City did not refute that McLarry was a City emp l oyee . In discussing McLarry ’ s January 2014 inspection of the yield sign in its brief, the City acknowledge s that McLarry was its employee, not ing that “ [t]he fact that a City emp l oyee inspected a traffic sign on a public road located with [

i n] the city lim it s is not evidence of ownership or the exercise of control. ”

6 In their respon se to the City ’ s plea, A ppellees desc ribed Espino za a s a “ City of Arlington employee/ c o ntractor. ” At the hearing on the City ’ s plea, Appellees reiterated that Espi n oza was a “ Ci ty of Arlington employee. ” The City did not refute that Espi noza was a City employee

.

7 As to the August 2021 re pl ac ement, Appe llees also attached to their response a photograph depicting the back of the replaced yield sign. The back of the replaced yield s ign contain ed a sticker labeling it as a City sign.8

was $68.70, a nd the page a lso indicated that the “ custodia n ” o f the sign was the

“ State. ” Appellees also attached to their response a subpoena they issued on TxDOT as part of the litigation , requiring TxDOT to pro duce “ all record s . . . regar din g the yield sign at t he intersection of 2800 East Abra [m] Stree t and 200 Osler
Dr ive

. . . i nc l ud ing, but not limited to, correspondence between TxDOT and the City of Arlington regarding responsibility, ownership, and maintenance of said yield sign

. ”
A ppe llees a lso attached to their response TxD OT ’ s letter respon se to the subpoena , in whic h Tx DOT ’ s Open Records Coordinator stated, “ Enclosed is [a] subpoena submitted for records regarding the yield sign at the intersection of 2800 East Abra[m] and 200 Os ler Drive in Arlington. These streets ar e city streets and no t
TxDOT [ ’ s] , therefore TxDOT ha s no records for the yield sign. ” Appellees further
attached a business

- record affidavit from TxD OT ’ s Open Record s Co ordinator, who
stated in the affidavit that z ero p ages were attached to the af fidavit , noting that “ [t] he
location is not TxD OT [ ’ s]

. ” To support their argument that the City had a ctual knowledge of the missing yield sign and yet did nothing about it until after their car accident, Appellees atta ch ed

t o their response a Goo gle screenshot showing that t he yield sign was present a t th e inter section in December 2020 and a nother Google screenshot showing that the yield sign was missing in March 2021

. Appellees also attached a “ Request De tail ” page from th e City ’ s r ecords pertaining to a reques t the City receive d from an a n o nymous9

requester pertaining to the missing sign on February 22, 202 1

. The “ Reque st Detail ” page notes that the issue reported was “ Street Sign Down or Missing ” at 2760 East
Abram S tr eet
. The description of t he r equest is as f ollows:
M IS SI NG YIELD SIGN

. . . I called none mergency 911 3 weeks ago with police confirmation & ca l l l og, before the artic weather and im seeing other signs just knocked down from the storm in other places b ein g r epaired faster, somethi ng is wrong here. It is ve ry d angerous driving from under 360 t rying to turn onto Osler without the yield sign and ca r s zooming up the side [.]

. . . Do i take it to the news next ?
The “ Re quest Detail ” page states th at the req ues t was “ [s] ent to C rew l eader
for res olution ” on F ebruary 22, 2021. The page also reflects that Simpson, the Crew Leader at the time, exchanged further comments with the requester on Feb ruary 22,
2021. Simpson commented, “ Upon i nspection, we found that t his issue affects an
asset tha t is owned by TxDOT and have forwar ded your request. If you would like to
check the statu s, please contact the Tarrant County TxDOT office

. ” The requester
then co mmen ted , “ Very poor[. ] I t [ ’ ] s not a road con[ ] s truction sign [, ] i t [ ’ ]s no t a highw ay s ign[,] it [ ’ ]s not a temporary, it [ ’ ]s a city yield sign concreted down on a permanent pol [e] that [ ’ ]s missing

. ” Simp son responded, “ This is not a COA sign. It
b elongs to [TxDOT] . I ha ve E

- Mailed my contact at TxD OT to make them a w ar e of
th e mi ssing sign. ”
D. The Trial Co urt ’ s Ruling on the City ’ s Plea to the Jurisdiction The City ’ s plea to the jurisdiction was later set for a hearing. At the conclusion
of the heari ng, the trial court indicated t hat there was a fa ct issue on w het her the City10

owned or controlled the yield sign , and it d enied the City ’ s plea to the jurisdiction. The trial court later signed an order denying the City ’ s plea. This int erlo c utory appeal
followed

. III
. D ISCUSSION
In one issu e, t he City argues th at th e trial court erred by denying its plea to the jurisdiction. The City contends that it is entitled to governm ental immunity as t o Appellees ’ claims because it neither ow ned the sign nor exercised control over the sign and therefore had no obli gation to ma intain or repla ce it

. 8 In response, Appellees contend that the evidence proves, or at the very least creates a substan tial fact issue regardi ng , the City ’ s cont rol and m ai nt enance responsibility over the missing yiel d sign
and that the City knew of t he da ngerous condition posed by the missing sign but did
not correct it within a reasonable time after notice

. A. Standa rd of Rev iew A p l e a to th e ju ri sdiction is a dilator y plea that seeks dismissal of a ca se for lack of subject

- matter jur i sdiction. H ar ris C n ty. v. Sykes

, 136 S.W.3d 635 , 638 (

Tex. 2004).
A ple a to the jurisdiction may be ut i lized to challenge whethe r a p laintiff ha s met its
bu rd en o f allegi ng jurisdicti onal facts or to challenge the existence of jurisdictional

8 The City also argues that i ts discreti on ar y decisions as to whether and when t o in stall the yield sign do not waive gover nmental immunity

. But Appellees do not seem to dispute any disc r etionary deci si o n s made by the City with respect to t he initial d ec is io n to install the yield sign. Rather, Appellees focus on the decisions made by the City once it had knowledge that the sign was missing an d o n whether the City
ex ercised contr ol and ma int en an ce res p on sibility over the sign.11

facts. S e e Tex. Dep ’

t o f Pa r ks a nd Wildlife v. Miranda , 133 S.W.3d 217, 22 6

– 27 (Tex.
20 04). W hether a trial cour t h as s ub ject

- matter jurisdiction is a ques t i on o f law tha t

we r eview de novo

. S ta te v. Holl and , 221 S. W. 3d 639, 642 (Tex. 2007). In deciding a plea t o the jurisdi c t ion , a court may not weigh the merits of a plaintiff ’ s case but must consi der onl y th e pla i ntif f ’ s pleadings and the evid ence pertinent t o the jur is di ct

ional inquiry. C

n ty. of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002) ; Bland Indep. Sch. Dist. v. Bl ue , 34 S.W.3d 547, 554

– 55 (Tex. 2000)

. When considering a trial cour t ’ s ruling on a p lea t o the jurisdiction , we constru e the pleadings liberally i n th e plaintiff ’ s favor , taking all factual as sertions as true, and l ook
to the plaintiff

’ s intent. Heckm an v. Williamson Cnty. , 369 S.W.3d 137, 150 (Tex. 20 12)

. If the evidence creates a fact ques tion r egarding the jurisdictio nal issue, then the trial

c ou rt cannot gra nt the plea to the jurisdiction, and the fact issue will be resolved by
the factfinder. Mi

ra nda , 133 S .W.3d at 227

– 28. But if the relevant evidence is undisputed or fails to raise a fact q uestion on t he j urisdict ional issue, the trial co ur t

ru les on the plea to the jurisdiction as a matter of law. Id. Th is standard mirrors our
review of summ ar y j udgments; thus, we take as true all evidence favorable to the nonmovant, indul ging every reaso nable infere nce and reso lving any doubts in the

n on mo va nt ’ s favor. City of El Paso v. Heinrich , 284 S.W.3d 366, 378 (Tex. 2009).
B. Applicable Law
S overei g n imm unity deprives a trial court of jurisdiction for lawsuits in whic h
the S t at e has bee n su ed unl ess the State consents t o the suit. Mir anda , 133 S .W .3 d at12

22 4

. P olit

ical subdivisi ons of the S t a te, including cities, are ent itled to such
imm unit y
— refer r ed to as “governmental immunity ”

— unle ss it has been waived.
Reata Con str. Co r

p. v. City of D allas

, 197 S.W .3d 371, 374 (Te x. 2006) ; Wichit a Falls S t a te
H osp. v. Tay l or , 106 S.W.3d 692 , 694 n.3 (Te x . 2003)

. Under the TTCA , the Legis l atu re has provided a li mi ted w aiver of governmental immunity from suit for certai n tort c la ims. See Tex. Civ. Prac. & Rem

. Code Ann. § 101.025. The TTCA waives gove rnmen ta l im munity for personal injury or death caused by a condition or use of tangible personal or real property u nde r
circumstances in which a private person similarly situate d would be liabl e . Id. § 101 .0 21 (a)

. Section 101.0215 ( a) , on e of the section s Appelle es r el y on for their argument that the City has waive d its govern mental immunity from suit , provides that

a mu nicipality is liable under the TTCA for damages arising from its gov ernmental
functions , including its regulati on of traffic an d the mai nt en an ce of traffic signs. Id. § 101 .0 21 5 (a) (21), (31)

. Section 101.060(a)(2) , another section Appellees rely on fo r

t heir argument tha t the City has waived its governmental immunity, li mits that waiver , retaining i mm un ity for claims arising from “ the absence, condition, or malfunction of
a traffic or r oad sign, signal, or warning device un less the absence, condition , or malfunction is not corrected by the responsibl e governmental unit wi th in a reasonable
time af te r no ti ce . ” 9 Id. § 101 .0 60(a) (2)

.

9 Section 101.060 (a)(1) provides another limitation on a governmental unit ’ s waiver of immunity, retaining immunity for claims arising from “ the failu re of a13

C. Analysis In their briefs, b oth the City and Appellees cite our prior decision in City of
Wichita Falls v. Romm , No. 2

- 09

- 23 7

- CV , 2010 WL 598678 (Tex. App.

— Fort Worth Feb. 18, 2010, no pet. ) (mem. op.). In Romm , a motorcycle driver was leaving a highway ex it ramp and entering a n eastbound street when another vehicle su ddenly merged into the motorcycle ’ s lane, striking th e m otorcycl e. Id. at *1. Accord in g to
the mo torcy cle drive r, t he City of Wichita Falls failed to maintain a road sign directing
the lanes of travel for the highway exit ramp , with the motorcycl e driver ’ s petition noting that the subject sign was “ turn e d in the wron g direction

. ” Id. Af te r it was sued, t he City o f Wi ch ita Falls filed a plea to the jurisdiction asserting governmental immunity. Id. The City of Wichita Falls included in its jurisdictional evidence an affidavit
from the Traffic Superinten de nt for the city, who averred that t he street sign a nd highwa y ex it ramp cited in the motorcycle driver ’ s petition were owned and controlled by TxDOT. Id

. at *3. The Traffic Superintendent further stated that he had no knowledge of any contract between th e c ity and TxDOT that would allow t he c ity to

governmental uni t initia lly t o place a t r af fi c or road si gn, signal, or w arning d evice if the failure is a result of discretionary action of the governmental unit

. ” Id. § 101 .0 60(a) ( 1 ) ; see also id. § 101 .0 56 (concerning application of TTCA to dis cretionary powers of gov ernmental uni ts)

. But, a ga in , Appellees do not seem to d ispute a ny discr etionary decision s made by the City with respect to the initial decision to install the yield sign but instead focus on the City ’ s decisions once it had knowle dge that the sign was mi ssing

.14

accep t, share, o r pa rticipate in the m aintenance or control of the subject street sign
and that the subject property had always been recog nized by the c ity as bel onging to TxDOT and being under the control of T xDO T. Id. The city also include d in it s jurisdictional evidence a n af fidavit from its City Clerk, who stated that she was the records retention officer for the city, that she had researched all of the city ’ s ordinance s and resolutions prior to the date o f t he motorcy cle crash, a nd that the cit y had not entere d into an y co nt ract with TxDOT , or any other governmental entity,
that involved the c ity ’ s accepting, sharing, or participating in the maintenance or control of the subject street sign or exit ramp. Id. at *4. Notabl y, t he motorcyc le
driver “ did not submit any ju ri sd ic ti onal evidence in response to the [ c ] ity ’ s plea , ” and
the driver “ acknowledged at the hearing that she had no proof to support her allegation. ” Id. Neverthe less, the trial court de ni ed the city ’ s plea to the jurisdi ction.
I d. at *1. On ap peal, we re ve rs ed the trial court ’ s den ial. Id. at *4. We noted that the motorcycle driver “ put forth no evidence raising a fact question in regard to the [c]ity ’ s jurisdictional evidence that i t exe rcised or assum ed no control o ver the s ign or exit ramp

. ” Id. Ac co rd ingly, because the only jurisdictional evidence before the trial
court demon strated that the city did not have cont rol over the sign or exit ramp, we
held that the motorcycle driver h ad failed to asser t a claim suffi cient to invoke a

wa iver of the c i ty ’ s g overn mental immunity under the TTCA. Id. (citing Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.021(a), .060( a)(2) )

.15

Appellees argue that Romm is distinguishable because the p laintiff the re offered
no evi dence to contro vert the affi davits submi tted by t he C it y of Wichita F alls regarding the ownership and control of the subject sign and exit ramp, while here, Appe llees did offer evidence to controvert the City ’ s claims regarding the ownersh ip
and control of the missing yi eld sign and property
. We agree

. 10 Here, Appellees pres ented an “ Asset Summ ary ” page pertaining to the yield sign that was part of the City ’ s records. That page indicated that the yield sign had
been installed on January 1, 2 000 , and tha t it had been in spected a nd r at ed by a City employe e in January 2014 and on behalf of the C ity in July 2021. Moreover, while the
affidavits attached to the City ’ s p lea to the jurisdiction maintained that the City did

not own or control th e m is sing y ield sign or the locatio n of the acciden t, TxDOT ’ s

re sp onse to Appellees ’ subpoena paints a different picture. TxDOT ’ s Open Records
Coordinator stated in his respo nsive letter that, regardi ng the subject yield sign at the
inter section of Abram Str ee t and O sler Drive , “ [t]hese str eets are city streets an d not

10 In its reply brief, the City ar gues that Appe ll ees have “ mistakenly emphasize[ d] an immaterial difference between

. . . Romm and the case at bar, ” ar guing that while the plaintiff in Romm had fa iled to prov ide an y evidence in response to the City o f Wichita Falls ’ s plea to the jurisdict ion, here, App el lees “failed to provide any relevant evidence in res ponse to the [City ’s ] plea to the jurisdiction. ” W e disagree with the City ’ s characteriza tion o f the evidence prov ided by Appelle e s . Evidence that the City had in its possession concerni ng the inspect io n of t he yield sign by at least one City employee

—

in a record labele d an “ Asset Summary, ” no less

— along with other
reco rd s indicating t hat TxDOT considered the location of the accide n t to be “ city streets and not TxD OT [ ’ s ] , ” coupled with an other reco rd i nd icating that someone had complained almost five months prior to the acci dent about the danger s p resented by the missing yie ld s ign , are relevant to the City ’ s p lea to the jurisdictio n .16

TxD OT [ ’ s] , the refore Tx DO T ha s no records for the yield sign. ” In a business

records affid avit providing ze ro pages in response to Appellees ’ subpoena, TxDOT ’ s Open Records Coordinator reitera ted th at “ [t]he location is n ot TxDOT [ ’ s]

. ” Taki ng as true all e vidence f

av or ab le to the nonmovant s and indulging every reasonable inference and resolving any doubt s in their favor, we hold that this ev idence presents
a fact issue on whether th e City exer cised cont rol and mainten ance res ponsibility over the missing yie ld sign. S ee H einrich , 284 S.W.3d at 378. Here, Appellees also pr es ented evidence that the City failed to reasonabl y maintain the yield sign despite complaints and actual know le dg e that it p resented a dangerous cond ition. Appellees presen ted Google scree nshots sh ow in g that the yield sign was present at the intersection in December 2020 but was missing in March 2021. Moreover, Appe llees attached a “ Request Detail ” pag e from the City ’ s record s indicati ng that an anonymous perso n had c omp lained about th e mi ss ing yield sign and the dangers i t presented on February 22, 2021

— almos t five months before the

acc ident. That person note d that “ [i]t is very dangerous driv ing from unde r 360 trying

to tur n on to Osl er without the yie ld sign and car s zooming up t he side

. ” Despite that warning, the City did not replace the yield sign until after Appellees ’ July 2021
accident. Taking as true all evidence favorable to t he nonmovant s and indulging every

reason able infer ence and resolving any d oubt s in th ei r favor, we hold that this

ev idence presents a fact issue on whether the City is liable to Appellees under the17

TTCA and therefore immune from suit

. See Heinrich , 284 S. W.3d at 378 ; see also Tex.
Civ. Prac. & Rem. Code Ann. §§ 101.021 (a), .02 15(a)(2 1), (31), .060(a)(2)

. Bec ause a fa ct i ss ue exist s regarding whether the City is liable to Appellees
under the TTCA and therefore imm une from suit , w e overrule the City ’ s sole i s su e.
IV. C ONCLUSION Having overruled the City ’ s sole issue, we affirm the trial court ’ s denia l of the City ’ s plea to the jurisdiction

. /s/ Dana Womack
Dana W om ac k Justice
De livere d: Jan uary 26, 2023