NUMBER 13-09-122-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

 

CAMERON COUNTY, TEXAS, Appellant,

v.

JUANITA E. PATTERSON, Appellee.

 

On appeal from County Court at Law No. 2

of Cameron County, Texas.

 

MEMORANDUM OPINION

Before Justices Garza, Benavides, and Vela

Memorandum Opinion by Justice Vela

This is an appeal from the trial court‟s denial of a plea to the jurisdiction filed by 

Cameron County, Texas (“the County”). Juanita E. Patterson, the appellee, sued the 
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County, alleging that she was injured while traveling on a road owned and maintained by 

the County. By two issues, the County claims that it owes no duty to maintain rural 

roads, so the trial court lacked subject matter jurisdiction. Alternatively, the County 

argues that there was no waiver of immunity because the potholes that Patterson claimed 

were the cause of her injuries were not special defects. We affirm.

I. BACKGROUND

Patterson filed suit against the County, alleging that the road she was traveling on 

when the accident occurred was “owned and maintained by the Defendant.” She 

claimed she was unable to steer the vehicle as it went from “deep pothole to deep 

pothole.” She pleaded that “the road condition, which was not known to plaintiff at the 

time of the accident, was in a dangerously poor and unsafe condition.” The pleadings 

described the condition of the road as a special defect. 

The County filed a plea to the jurisdiction, claiming that the particular road in 

question is a rural, unpaved caliche road that has a blacktop spray, but is not asphalted. 

The County pointed out that Patterson lives and works on the road where the accident 

occurred. The County urged that counties have never been vested with the 

responsibility of street maintenance, which is a proprietary function. However, at the 

hearing, counsel for the County stated that the County is liable for a premises defect if it 

was a special defect. The County also argued that potholes on rural roads are not 

special defects. As such, the County claimed that Patterson was required to plead and 

prove that the County had actual knowledge of the dangerous conditions she alleged in 

her pleadings. 
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Patterson responded by alleging that the County maintained and controlled the 

road, the road is not under the control of any city municipality, the county road was in 

disrepair and there were no warnings of any kind, and the County knew or should have 

known that the condition of the road posed a danger to the public. She pleaded that 

“these potholes are not ordinary potholes as the Defendant would have this Court believe 

but were of such size and depth” that they caused her to lose control of her vehicle. 

The trial court held a hearing at which Patterson introduced photographs of the 

potholes she claims constitute a special defect. The County argued that it had no duty to 

fix the road. No other evidence was offered. The trial court denied the plea to the 

jurisdiction at the close of the hearing. 

II. APPLICABLE LAW

Sovereign immunity from suit deprives a trial court of subject-matter jurisdiction for 

lawsuits in which the state or certain governmental units have been sued unless the state 

consents to suit. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 

2004). Sovereign immunity from suit defeats a trial court's subject-matter jurisdiction 

and is properly asserted in a plea to the jurisdiction. Id. at 225-26. The Texas Tort 

Claims Act provides a limited immunity waiver for torts arising from either premises 

defects or special defects. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a), (b) (Vernon 

Supp. 2010). When a plea to the jurisdiction challenges the jurisdictional facts, the trial 

court must review the relevant evidence to determine if a fact issue exists. Miranda, 133 

S.W.3d at 226. The plaintiff bears the burden to allege facts demonstrating jurisdiction 

and the pleadings are construed liberally in plaintiff‟s favor. Id. If the pleadings do not 
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affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading 

deficiency and the plaintiff should be given the opportunity to amend. Id. at 226-27. If 

the evidence raises a fact issue on jurisdiction, the trial court may not grant the plea, and 

the issue must be resolved by the trier of fact. Id. When reviewing a trial court‟s ruling 

on a challenge to its jurisdiction, we consider the plaintiff‟s pleadings as well as the factual 

assertions, and any other evidence in the record that is relevant to the jurisdictional issue. 

City of Elsa v. Gonzalez, 325 S.W.3d 622, 625 (Tex. 2010). If the evidence is undisputed 

or fails to raise a fact issue, the trial court must rule on the plea as a matter of law. Id. at 

228.

Section 101.022(a) of the Texas Tort Claims Act limits the government's duty to 

prevent injury from premise defects to those of which it has actual knowledge. See TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022(a) (“Except as provided in Subsection (c) 

[pertaining to toll roads], if a claim arises from a premise defect, the governmental unit 

owes to the claimant only the duty that a private person owes to a licensee on private 

property, unless the claimant pays for the use of the premises.”); State Dep't of Highways 

& Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (“[A] licensee must prove that 

the premises owner actually knew of the dangerous condition, while an invitee need only 

prove that the owner knew or reasonably should have known.”). But the limitation does 

not apply to “special defects such as excavations or obstructions on highways, roads, or 

streets.” TEX. CIV. PRAC. & REM. CODE § 101.022(b); Denton County v. Beynon, 283 

S.W.3d 329, 331 (Tex. 2009) (“Where a special defect exists, the State owes the same 

duty to warn as a private landowner owes to an invitee, one that requires the State „to use 
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ordinary care to protect an invitee from a dangerous condition of which the owner is or 

reasonably should be aware.‟” (quoting Payne, 838 S.W.2d at 237) (footnotes omitted)). 

The Legislature does not define a special defect, but discusses conditions “such as 

excavations or obstructions on highways, roads or streets.” TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(b); Univ. of Tex. v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). 

Conditions may be special defects only if they pose a threat to ordinary users of a 

particular roadway. Beynon, 283 S.W.3d at 331. Whether a condition is a special 

defect is a question of law. City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999).

The supreme court has stated that the class of special defects is narrow. Hayes, 

327 S.W.3d at 116. For instance, an oval pothole covering ninety percent of the highway 

is a special defect, while a two-inch drop in a roadway is not. Id. The issue of whether a 

defect is a “special defect” “turns on the objective expectations of an „ordinary user‟ who 

follows the „normal course of travel.‟” Id. (citing Beynon, 283 S.W.3d at 332). 

Conditions can be special defects only if they pose a threat to the ordinary users of a 

particular roadway. Beynon, 283 S.W.3d at 332. The central inquiry is whether the 

condition is of the same kind or falls within the same class as an excavation or 

obstruction. Tex. Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009). The 

supreme court has traditionally distinguished special defects by “some unusual quality 

outside the ordinary course of events.” Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 

2008). A gaping, impassable hole is outside the ordinary course of events, unlike the 

expectation of potholes and ruts on an unpaved rural road. See Durham v. Bowie 

County, 135 S.W.3d 294, 297 (Tex. App.–Texarkana 2004, no pet.). When determining 
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if a condition is a special defect, courts consider: (1) the size of the condition, (2) 

whether the condition unexpectedly and physically impairs the vehicle‟s ability to travel on 

the road, (3) whether the condition presents some unusual quality apart from the ordinary 

course of events, and (4) whether the condition presents an unexpected and unusual 

danger to the ordinary users of the roadway. Hayes, 327 S.W.3d at 116.

III. ANALYSIS

In our review, we determine only if Patterson stated a claim upon which relief can 

be granted. We construe the facts in the plaintiff‟s favor, but note that it is clearly her 

burden to allege facts showing jurisdiction. Miranda, 133 S.W.3d at 226. Patterson‟s 

pleadings allege that the County controlled and maintained the road upon which she was 

injured. While the County argues that municipalities are charged with the responsibility 

of maintaining the roads, it did not deny that it maintained this road. Nor does the County 

offer any contrary evidence regarding which entity was actually charged with maintaining 

the road in issue. Looking at the plaintiff‟s pleadings in the light most favorable to her, we 

conclude that she has properly pleaded that the County maintains the road. 

Patterson has also pleaded that the potholes in question were deep and were of 

such a size and depth that they caused her to lose control of her vehicle. In her 

amended pleadings, which she verified, she asserted that “Plaintiff . . . was unable to 

steer her motor vehicle as it went from deep pothole to deep pothole. . . . The road 

condition, which was not known to Plaintiff at the time of the accident, was in a 

dangerously poor and unsafe condition. This special defect or condition on the road 

proximately caused the accident in question. . . .” 
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Patterson did not allege that the potholes were either obstructions or excavations, 

or allege facts to show the depth or width of the potholes. However, she asserted that 

the potholes were not ordinary potholes. She claimed that she did not know the 

condition of the road at the time and alleges that the County knew or had reason to know 

“of the unsafe and dangerous condition of the road.” There is an expectation of potholes 

and ruts on unpaved rural roads. Special defects are traditionally distinguished by some 

“unusual quality outside the ordinary course of events.” Reed, 258 S.W.3d at 622. 

Patterson pleaded the fact that the potholes in question were not ordinary, they were 

deep, and she asserted that she went from pothole to pothole before hitting a utility pole. 

At the hearing, she introduced photos of a road showing what appear to be deep 

potholes. We have no idea of the potholes‟ width, depth, or even if they represent the 

condition of the road at the time this accident occurred. But, we recognize that those 

photos were before the trial court when it ruled.

The pleadings filed by Patterson assert that the potholes were out of the ordinary 

and of such size and depth that they caused her to lose control of her vehicle. 

Construing the pleadings in Patterson‟s favor and considering the evidence in the record 

that is relevant to the jurisdictional issue, Patterson has pleaded sufficient facts 

demonstrating jurisdiction. We overrule the County‟s issues.
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IV. CONCLUSION

We affirm the judgment of the trial court. 

ROSE VELA

Justice

Delivered and filed the 

10th day of March, 2011.