## In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 21

- 00036

- CV

CITY OF HOUSTON , Appellant

V. JENNIFER CROOK , Appellee

On Appeal from the 133rd District Court Harris County, Texas Trial Court No. 2019

- 74011

Before M orriss, C.J., Burgess and Stevens, JJ. Memorandum Opinion by Chief Justice Morriss2 

### ME MORANDUM OPINION
Jennifer Crook was injured when she lost control of her vehicle after running over a manhole on a city street in Houston. 1 As a result, Crook sued the City of Houston (Houston) under the Texas Tort Claims Act (TTCA) alleging a waiver of sovereign immunity for claims involving personal injury caused by neg ligence resulting from an alleged premises defect and special defect. Houston filed a motion for par tial summary judgment on its plea to the jurisdiction regarding Crook ’ s special defect allegation. 2 Following a hearing, the trial court denied Houston ’ s motion for partial summary judgment. This interlocutory appeal followed.
See T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 51.014 (a ) ( 8) (Supp.)

. Because Houston has proved its entitlement to partial summary judgment, we reverse t he trial court ’ s order and remand for further proceedings. Background In her petition, Crook alleged that , o n December 12, 2018, she was driving in the eastbound outside lane of North Braeswood Boulevard when a front , passenger - side tire of her car got stuck in an uncovered manhole, causing her car to spin out of control and hit a light pole. The impact injured Crook and totaled her ca r. C r ook further alleged that , at the time of the incident, there was ongoing construction parallel to the site of the manhole, making it easily

1 Originally appealed t o the First Court of Appeals in Houston , this case was transferred to this Court by the Tex as Su pr em e Cour t pursuant to its docket equ alization efforts. See T EX
. G OV ’ T C ODE A NN
. § 73 .001. We follow the precedent of the Firs t Court of Appeals in deciding this case. See T EX
. R. A PP
. P . 41.3.

2 H ouston has not challenged Crook’s premis es - defect claim

.3

discoverable by Houston. According to Crook, t here were no visible warning signs tha t an uncovered manhole w a s ah e ad, resulting in a significant hazard to motorists. In response, Houston alleg ed various thin gs , including that , as a home

- rule c ity , it was immune from liability under the TTCA. Houston thereafter filed a motion for partial summary judgment o n it s pl e a to the jurisdiction regarding Crook ’ s special defect allegation , 3 challenging the court ’ s subject

- matter jurisdiction on the grounds of sovereign immunity. Houston ’ s motion alleged that , as Crook was traveling east on North Braeswood headin g to w ard W est Loop 610
S outh , she drove over a utility (manhole) cover with the r ight front tire of her vehicle immediately before entering the intersection. Houston claimed that the utility cover was on top of the manhole and that Crook ’ s front passenger tir e fl ipped t he utility cover up, causing her tire to strike the manhole. Houston a greed that Crook ’ s vehicle then spun and ended up striking a freeway light pole on the opposite side of the intersection. Houston claimed that, based on these allegation s

— su p por ted b y summary judgment evidence

— it was entitled to summary judgme nt as a matter of law , because a missing and/or unseated manhole cover is not a special defect, and it was therefore immune from being sued on this claim.
Houston ’ s summary judgme nt e v ide nce i n c luded:

• Crook ’ s second amended response to Houst on ’ s first interrogatories in which Crook described the accident as follows : O n December 12, 2018, Plaintiff was driving in the right lane on North Braeswood when she approached an uncovered manh o le on th e road which was designed, manufactured, maintain ed, controlled, installed, and/or operated by Defendant City of Houston. While in the right lane,

3 I n h e r amended petition, Crook a lso alleged a premises defect claim. The motion f or partial summary judgment was not direct ed at that claim.4 Plaintiff ’ s front passenger tire got s t uck in an uncovered manhole. As a result of the uncover ed m a nho le, P l a intiff unavoidably lost control of her vehicle as it kept spinning, until it hit a light pole. The impact caused Plaintiff ’ s airbags to deploy and resulted in her car being totaled. As a result of the accident, Plaintiff incurred severe in juri e s. At t h e time of the incident, there was ongoing constru ction parallel to the site of the manhole. The manhole could have easily been discovered by the City of Houston and/or workers on the construction site. Additionally, all drivers who were pro ceed i ng north b o und on Braeswood road had no visible warning sig ns that an uncovered manhole [was] up ahead, which is clearly a significant hazard to Houston motorists. At the time the incident occurred, the uncovered manhole was under the control of th e City o f H ouston o r its agent. There were no signs of barricades wa rning commuters of the uncovered manhole at all time [sic] when this incident occurred.

• Photographs of the damage to Crook ’ s vehicle.

• A photograph of the manhole following the accid ent sho w ing that it w as partially covered whe n the photograph was taken.

• The August 14, 2 019, police report of the December 12, 2018, incident listing the accident address as “ 4900 N BRAESWOOD BLVD ” at the intersection of 9288 Wes t Loop South. The report lists th e “ c r a sh time ” as 8:00 and states the investigator ’ s narrative opinion of what happened:

“ OPEN MAN HOLE COVER (FIXED OBJECT) ”

“ UNIT # EASTBOUND ON N BRAESWOOD WHEN HIT MANHOLE COVER THAT WAS NOT SEATED IN HOLE FLIP ED [s ic] UP AND DAMAGED VEHICLE. ”

• Th e aff

i dav i t of Kathleen Korus, which stated, in pertinent part: I was a witness to an accident involving Jennifer Crook. Since this accident happened about a year ago, I do not remember all the details of the accident. I do remember some things. . . .
On De c emb e r 12, 2018, at approximately 8:00 a.m., I was driving in the left

- hand lane traveling eastbound on North Braeswood Boulevard5 ( Braeswood ), near the intersection with West Loop 610 West South

. . . . In the lane to my right, I saw a black Mercedes Be nz S UV w h ich was traveling next to me on Braeswood. Suddenly, I saw the SU V spin and slam into the right

- hand curb on Braeswood. The accident caught m e by surprise; it appeared to me as if the SU V had hit a ghost ca r.

. . . . In looking back at where w e h a d b e e n when the SUV started spinning out of contr ol, I saw and realized that the manhole cover was not secure in the manhole and when the SUV tire drove over the manhole cover, the manhole cover popped or flipped up and off the top of the manhole.

• T he u nsw o r n declaration of Matthew J. Luke, which stated, in pertinent part:

On December 12, 2018, at approximately 8:00 a.m., I was driving eastbound on North Braeswood Boulevard (N. Braeswood) in morning traffic as we were approaching the interse ction of th e We s t Loop 610 South . . . . I saw that the light at the intersection was green for us and the day was clear. I saw a black . . . SUV

. . . traveling in front of me in the right

- hand lane on N. Braeswood eastboun d. I saw the SUV begin to enter the in ter s ect i o n of the feeder of West Loop 610 South when the SU V ’ s front right tire dipped down into a manhole in the center of the lane, simultaneously as I saw the manhole cover flip up and from the manhole. I then saw the driver of the SUV lose control o f the SUV , watching it spin and pull to the right up onto the cur b on the other side of the intersection and struck a freeway light pole.

. . . . Even though I saw the accident, I am not sure if the problem was that the manhole cover was not was [sic] ad jus t ed c o rrectly inside the manhole cover rim or that it was not properly laid on top of the manhole itself. In response to Houston ’ s motion for partial summary judgment , Crook claimed that Houston had actual and c onstructive k nowledge about “ the defe ct ive man h o le cover ” and that the condition that caused the accident was a special defect as the manhole was uncovered at the6

time of the accident. Alternatively, it argued that a jury must decide any dispute reg arding the questio n of whether the manhole w as p a rt i a lly uncovered or fully uncovered. Crook ’ s summary judgment evidence included:

• A work order dated December 7, 2018, regarding replacement of a storm drain manhole cover at “ 4700 N BRAESWOOD BLVD & 920 0 W LOOP FWY S

. ” The work order type was l i sted a s “ M anhole C over M issing

. ” The intake comments simply state d , “ O pen manhole. ” The work order indicate d that the cover was replaced within hours of the report that generated the work order.

• A December 12, 2018, report made at 6:53 a.m. m emorializi ng a c o mp laint o f “ ROW

- M a nhole

- Missing Cover ROW ” at “ 4690 N B RAESWOOD BLVD & W L OOP FWY S, 77096

. ” The intake comments state, “ [M] anhole shifted, please assist. ” The re port was referred for further investigation and stated that the “ Location ha [d] b een r e fer r ed to main t enance se c tion on work order #13298254. ”

• A December 12, 2018, work order with work order comments stating “ ROW

– Manhole

- Missing Cover RO W ” at “ 4 690 N BRAESWOOD BLVD & W LOOP FWY S., TX [ ] 77096

. ” Intake comments state , “ [M] anhole shi ft e d, please assis t. ” Comment s by a worker who investigated at 10:02 a.m. stated , “ T he casting to Storm manhole #1861195 needs repairs to prevent this manhol e f rom shifting. Appears to be a newer manhole cover but continues to shift as vehicles drive o ve r i t. It ’ s on the ea stbound s i de of N Braeswood Blvd at the I

- 610 S Intersection. ” Further comments indicate that the matter was referred to the T exas Depar tment o f Transportation.

• The police report of the December 12, 2018, accident , as detai le d a bove.

• T he affidavit of Jen nifer Cro o k, which stated, in pertinent part, that “ [i] mmediately after the accident, the manhole cover was completely off of the man hole and ended up on the left side of the manhole. ” Crook also verified that the photogra ph s a ttach e d a s summary judgme nt evidence w ere taken by her daughter immediately after the accident. After Crook ’ s daughter “ took photographs of the accident, Off ice r T. Adams moved the manhole cover back on the manhole and placed barriers, in an effort t o pro tect o the r drivers. ”

• Ph oto graphs ta k en immediately after the accident showing that the manhole cover was off the manhole.7

• A photograph of the manhole foll owing the accident showing that it was partially covered when the photograph was taken.

• P hot og r aphs o f t he damage to Crook ’ s vehicle. At the conclusion of a hearing on Houston ’ s motion, the t rial court denied the motion for partial summary judgment, after which it entered a signed order. Neither the trial court ’ s oral ruling nor its signed o rd e r ind i cat ed the basis of it s d enial. S t andard of Review

“ A plea to the jurisdiction based on governmental immunity is a challenge to the trial
court ’ s subject [

- ] matter jurisdiction. ” City of League City v. LeBlanc , 467 S.W.3d 616, 619 (Tex. App.

— Housto n [1st Dis t.] 2015, no pet.) ( cit ing City o f Waco v. Kirwan , 298 S.W.3d 618, 621 (Tex. 2009) )

. “ [S]ubject

- matter jurisdiction is essential to a court ’ s power to decide a case. ” Bland I ndep

. S ch

. D ist . v. Blue , 34 S.W.3d 547, 553

– 54 (Tex. 2000). When the a bsen c e o f subject

- matter jur isd iction is ra i sed by a motion for summary jud gment , “ [ w ] e construe the order denying the motion for summary judgment as an order denying the plea to the jurisdiction. ” UT Health Sci

. C t r . - Houston v. Perkins , N o . 01

- 16

- 00901

- C V , 2 0 17 WL 2774487 , at *4 (T ex. App.

— Hou s ton [1st Dist.] June 27, 2017, no pet.) (mem. op.) (citing Thomas v. Long , 207 S.W.3d 334, 340 (Tex. 2006)) ; see Bland , 34 S.W.3d at 554. “ We review a trial court ’ s ruling on subject

- matter jurisdiction de novo. ” Perk i ns , 2017 WL 2774487, at *4 (citing T ex. Dep ’ t of
P arks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ).

“ When, as here, a plea to the j urisdiction challenges the existence of jurisdictional facts,

we ‘ consider relevant evidence submitte d by the p a rti es when necessary to re solve the jurisdictiona l issues raised, ’ even where those facts may implicate the merits of the cause of8

action. ” LeB lanc , 467 S.W.3d at 619 ( quoting Kirwan , 298 S.W.3d at 622 (quoting Miranda , 133 S.W.3d at 227 ) )

. When “ t he ju r isd ictional challenge i mpl icates th e merits of the plaintiffs ’ cause of action and the plea to the jurisdiction includes evidence, ” as in this c ase, “ the trial court reviews the relevant evidence to determine if a fact issue exists. ” Tex

. Dep ’ t of P arks & Wi ldlife v. Miranda , 1 33 S.W.3d 21 7 , 22 7 (Tex. 2004)

. “ [ I ] f the relevant evidence is undisputed or fails to raise a fact question on the juris dictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. ” I d

. a t 228. When, how ever, “ the evidence cre ates a fa c t quest ion regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdictio n, and the fact issue will be resolved by the fact [

- ] finder

. ” Id

. 227

– 28. “ [A]fter the
state a sserts and supp o r ts with evidence that the trial co u rt lacks subject [

- ] matte r jurisdiction, we simply require the plaintiffs, when the facts underlying the mer its and subject [

- ] matter jurisdiction are intertwined, to show that there is a disputed material fa ct regar ding t he ju risdictional iss ue. ” Id

. at 228 ( c iting Huckabee v. Time Warner Entm ’ t Co. L.P

. , 19 S.W.3d 413, 420 (Tex. 2000); Phan Son Van v. Pena , 9 90 S.W.2d 751, 753 (Tex. 1999) )

. Texas Tort Claims Act

“ Under the TTCA, the government waives immun it y from suit to the exten t of liab ility und er the Ac t

. ” LeBlanc , 467 S.W.3d at 620

– 21

. The TTCA provides that a governmental unit is liable for “ personal injury and death so caused by a condition or use of tangible personal or real property if the gove rn mental unit w oul d, were i t a priva te person , be liab l e to the claimant according to Texas law. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.021(2). When a “ cl aim arises from a premises defect, the governmental unit owes to the claimant only the duty that a9

pr ivate p erson owe s to a li censee on private property, unless the clamant pays for the use of the premises. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.022(a). When a premises

- liability claim involves a “ special defect, ” rather than a premises defect, the TT CA impose s on t he
governmen tal unit the duty owed to a n invitee. LeBlanc , 467 S.W.3d at 620 (citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.022(b)). So, alt hough “ [b]oth an ordinary premises defect and a special defect can, and often do, constitute danger ou s condi tions [ ,] the legal distinct ion betwe en the tw o defects lies in the duty owed to the person injured as a result of the defect. ” Smith v. City of Hou ston , No. 01

- 03

- 00519

- CV , 2005 WL 22953 , at *2 (Tex. App.

— Houston [1st Dist.]
Jan. 6, 2005, no pet. ) (mem. o p.) ( c iti ng State Dep ’ t of Hi ghways & Pub. Tr a nsp. v. Payne , 838 S.W.2d 235, 237 ( Tex. 1 992) (op. on reh ’ g) )

. “ Whether a premises defect is special or ordinary is usually a question of law. ” LeBlan c , 467 S.W.3d at 620 (citing Reyes v. City of La re do , 335
S.W. 3 d 6 05, 607 (Tex. 2010 ) (per cu riam) )

. T h e Manhole Cover Did N ot Present a Special Defect The TTCA states that “ special defects ” include “ excav ations or obstructions on highways , roads, or stree ts. ” T EX
. C IV
. P RAC
. & R EM
. C ODE A NN
. § 101.022 (b ). “ Th e Tex a s S upreme Court has c on strued special d e fects to include other defects of the same kind or class as the two expressly mentioned in the statute

. ” LeBlanc , 467 S.W.3d at 620 (citing Tex. Dep ’ t of Transp. v. York , 284 S.W.3d 844, 847 (Tex. 200 9) (per c uriam ) )

. “ [T]o be consider ed a spec ial defec t , the defect must be of the same kind or class as excavations or obstructions on a highway, road, or s treet. ” Madern v. City of Pasadena , No. 01

- 05

- 0033 7

- CV , 2006 WL 56018 3, at * 2 (Tex. App.

— Houston [ 1s t Dist. ] Mar

. 9, 2006, pet. denied ) (mem. o p.) (citi n g City of Grapevine10

v. Roberts , 946 S.W.2d 841, 843 ( Tex. 1 997) (per curiam) ). Because a “ special def ect is distinguished by some unusual quality outside the ordinary course of events . . . [a] longst an ding,

r outin e , o r permanent condit ion is . . . not a special defect. Id

. (footnote omitted ) (citations omitted) (citing Harris Cty. v. Estate of Ciccia , 1 25 S.W.3d 749, 753

– 54 (Tex. App.

— Houston [1st Dist.] 2003, pet. denied); Stokes v. City of S an Antonio , 945 S.W.2 d 32 4, 326 ( Tex. App.

— San Anton io 1997, n o writ) )

. Although we find support in the caselaw f or the proposition that an uncovered or open manho le is a special defect, we find no support for the proposition that a partially covered manh ol e or improperl y sea t ed manhole cover cons titutes s uch a def e ct.
In Harris County v. Smoker , 934 S.W.2d 714 (Tex . App.

— Houston [1st Dist.] 1996, pet. denied), our sister court addressed a similar issue. In that case, a pedestrian sued Harris County afte r h aving been in

jured by falling into an un covered s torm sewe r . Id

. at 716. In holding that the trial court did not err by refusing to instruct the jury on premis e s defect, the court found that

“ the uncovered storm sewer located where a pedestrian would n or m ally walk on a st r eet without a sidewalk and in t he absenc e of streetlights, constituted a special defect. ” Id

. at 719. Other courts have reached similar concl usions. For example, in City of Austin v. Rangel , 184 S.W.3d 377 (Tex. App.

— Austin 2006, no pe t .), a pedest rian s ued the City of Austin after sh e was in

j u red on a public sidewalk by stepping into an uncover ed water meter box. Id

. at 380. The pedestrian was directed to the sidewalk by a uniformed police officer, did not see any warning signs in th e area, and f ailed to notice the hole. I d

. The c ourt conc l uded that the uncovered water

- meter box was a specia l defect , reasoning that:
A normal user of the r oadway in this situation would be a pedestrian on the sidewalk, as Rangel was at the time she st e pped into th e ope n me ter box. An11

avera ge pedestr ian would not expect to encounter a hole of this size on a dow ntown public sidewalk. Consequently, we hold th at the uncovered meter box was a special defect of the kind and class covered by the Act and t ha t i t posed an unex p ect ed and unusual dan ger to ord inary use r s of the sidewalk. Id

. at 384 (citing T EX
. C IV
. P RAC
. & R EM
. C ODE A NN . § 101.022(b); Payne , 838 S.W.2d at 238 ) Similarly, City of Houston v. Kiju Joh , 359 S.W.3d 895 (Tex. App.

— Houston [14th
D ist .] 2012, n o pet

. ) , involved an injur ed pedestr ian who s t epped into an uncovered utility hole while in the pedestr ian crosswalk. Joh sued the City of Housto n, claiming that the uncovered utility hole constituted a special defect under the TTCA for which th e City ’ s g overn m ent al immunity had b een waived

. Id

. at 897

. The c ity did not dispute that Joh “ alleged all elemen ts of a claim regarding a special defect for which a waiver of immunity exists. ” Id

. at 898

– 99. The city claimed, though, that Joh ’ s sub jec t ive knowl edge o f t he defect removed her claim from the arena of special defects

. The court disagreed, concluding t hat the “ ordinary user ” is the proper ob jective standard. Id

. at 899 (citing Tex. Dep ’ t of Transp. v. York , 284 S.W.3d 844, 847 (Tex.
20 09 ) ( per curi am) ). Be cause the City ’ s only argum ent on ap p eal for reversing the trial court ’ s ruling on its plea to th e jurisdiction was based on the pedestri an ’ s subjective knowledge, the court overruled the City ’ s issue. Id

. at 901. Unlike the uncover ed holes disc ussed in the foregoing cas es , covere d or impr o perly covered manholes , or improperly seated manhole cover s and sewer grates , have been held not to fall within the narrow class of special defects contemplated by S ection 101.022(b) of the Texas Civil Practice & Re m edi es Code . I n Mad ern , fo r e x ample, a pedestrian stepped onto a manhole cover, whic h slipped and caused his right leg to fall into the man hole, injuring him. Madern , 2006 WL 56018 3, at *1. Madern maintained, among other things, that the broken sup port r ing of12

the manhole was lik e a n excavation in reliance on Harris County v. Smoker

. I d

. at *3. The court distinguished Smoker because , in Made rn , “ the manhol e was more than five feet from the roadway and was in its permanent, covered condition. In c ontra s t, the storm sewer in Smok er

w as extended one and one

- half to two feet into the stre e t, and the absence of a storm cover was a
tem porary conditio n. ” Id

. The court recognized that , because “ [ t ] he manhole here was covered and was, therefore, a perman ent c o ndi tion, ” it was no t a spe cia l defect. Id

. (citing Mitchell v. City of Dallas , 855 S

. W.2d 741, 7 48 ( Tex. App.

— Dallas 1993), aff ’ d , 870 S.W.2d 21 ( Tex. 1994) ( “ longstanding, routine, or permanent condition is not a special defect ” ). Likewise, in LeB lanc , o ur sister court held t hat a stor m sewer covered with a grate rather than a solid cover did not constitute a special defect. LeBla nc , 467 S.W.3d at 62 2

. In that case, LeBlanc stepped onto a storm sewer covered with iron grid bars spaced in such a w ay t ha t a person could step i nto the ho le, as she did. Id

. at 619. In reliance on Smoker , L e Blanc claimed that this condition was a spe cial defect for which immunity was waived. Id

. at 621. The court distinguished Smoker on several bases, but concluded that , in Smoker , “ [t]he ab sen ce of the sewer cover was . . . not a longstanding or permanent c ondition[.] ” Id

. at 622 (alteration s in

o riginal ) ( quoting Smoker , 934 S.W.2d at 719) . In LeBlanc , the court recognized that in that

case, “ there never was a s ewer c o ver

— it was designed to have a grate ra th e r than a sol i d cover. A longstanding , routine, or permanent c ondition is not a s pecial defect. ” Id

. (citing Mitchell , 855
S. W.2d at 748 ). Because of the permanency of its condition, the court determined th at the gra te

covered storm sewer was not a special defe ct. Id

.13

More recently, in City of Lancaster v. LaFlo r e , No. 05

- 17

- 01443

- CV, 2018 WL 4907843, at *5 (Tex. App.

— Dallas Oct. 10, 20 18, no pet.) (mem. op.) , the cou rt determined that a partially dislodge d manh o le cover was not a special defect

. LaFlore alle ged that , as he drove on a public street, he ran over a man hole with a par tially dislodged cover, lost control of his car, and hit a
tree. Id

. at *1. The Dallas C our t of Appeals stated , in LaFlore , T here a re “ several helpful characteristics ” in “ determining whet her a particul ar condi tion is like an excavation or obstruction and t her efore a special defect, ” including : (1) the size of the condition; (2) whether the condition unexpec ted ly and physicall y impa i rs an ordinary user ’ s ability to travel on the road; (3) whether the co nditi on presents some unusual quality apart from the o r din ary course of events; and (4) whether the condition presents an unexpec ted and unusual danger. Id

. a t * 3

– 4 (quoting Cit

y of D e nto n v. Paper , 376 S.W.3d 762, 765 (Tex. 2012) (per curia m) ). Based on th ese factors , the court determined that “ the part i a lly dislodged manhole cover [ was ] not of the same class as an excavation or obstruction. ” Id

. at *5 (citing City of Denton v. Pa p er , 376 S.W.3d 762, 76 4 (Tex. 2012) (per curiam) 4 ( “ The class of speci al de fects
conte mplated by the statute is narrow

. ” ) (q u o ting The Univ. of Tex. at Austin v. Hayes , 327 S.W.3d 113, 11 6 (Tex. 2010) (per curiam) ) ) )

. T he Da llas Court relied on “ th e supr e me court ’ s clear direction to construe the [TTCA] narrowly

. . . to hold th at the manhole cov er was not a special defect ” becau s e it was not of the same class as an excavation or obstruction, was of limited size, and s tradd led the center lane of the roadw a y. Id

. at * 5

– 6 (quoting City of Arlington

4 In Paper , a bicyclist was injured when her bicycle’s front wheel ran over a depression in t he roadway caus in g h e r t o land on her chin and break several teeth. The court noted that the sunken a rea was two inches deep or more at its dee pest point and that “ample ro o m existed for a bicycle to navigate around this hole without having to enter the opposing t raffic l an e . ” P aper , 376 S.W.3d at 765

.14

v. S.C

. , No. 02

- 17

- 00002

- CV, 2017 WL 3910992, at * 5 (Tex. App.

— Fort Worth Sept. 7, 201 7, no pet.) (mem. op.) (concluding that improperly sized manhole cover that injured pedestrian when it rotated and cause d her t o f all was not a special defect and collecting case s involvin g defectively cov ered holes) )

. The facts here line up with those in Lefl o re , and we agree with th at court ’ s reasoning. Further, the Houston First Court has determ ined t hat a grate

- covere d manh o le and a manhole with a broken support ring are no t special defects , s ee LeBla nc , 467 S.W.3d at 622 ; Madern , 2006 WL 56018 3, at *3 , bu t that an uncovered storm sewer located where a pedestrian would normally walk on a street witho ut a s idewalk and i n the a bse nce of streetlights was a special defect , S moker , 934 S.W.2d at 719. We must therefore decide whe ther, as Crook claims, she has raise d a genuine issue of material fact on the question of whether the manhole was uncovered. The s ummary judgment evide n ce submitted by Houston included Luke ’ s sworn declaration

. Luk e testified that h e saw Crook ’ s right f ront tire dip down into a manhole in the center lane and that, at the same time , he saw the manhole cover flip up from the manhole. The fa ct that Luke w a s u nsure whether the manhole cover was no t adjusted correc tly inside the rim or whe ther it w as improperly seated on top of the manhole is of no c ons equence to the issue of whether the manhole was uncovered when Crook struck it.
A sec ond wi tness, K orus , t est ified that the manhole cover popp ed or flipped up off the top of the manhol e when th e sports utility vehicle ’ s tire rolled over the cover. The i nvestigating

o ffi cer at the scene did not have the benefit of interviewing th o se witnesses. His repo rt wa s ba s ed on speaking with Cr ook, who stated that “ something struck her vehicle ” as she was drivin g15

down Braeswood. The police report indicates that Crook wa s eastb o und on North Braeswood when she hit a manhole cover that was not seated in the hole and fl ip p e d u p and damaged her vehi cle. The officer ’ s d iagram of the accident scene indicates that the manhole was in the center of the eastbound lane of North Br a eswood , where Crook was traveling. While Houston ’ s summary judgment evidence shows that the m anho l e co ver was either dislod ged or unseate d at the time Crook struck it, Crook ’ s summary j udgment evidence fails to raise a genuine issue of material fact o n her claim that she drove over an open manhole. Crook ’ s summary judgment evidence includes thre e pho t o gra phs of the man hole ta ken after the accident. One photograph depicts a partially op en manhole cover at the accident scene. The other two phot ographs d epict an open manhole with the cover closely adjacent to the hole. Although Crook testifi ed t h a t he r dau ghter took the photographs immediat ely after the accident, the photographs are not evidence of the condition of the manhole immediately before the acc i dent. In her affidavit, Crook did not claim that the manhole was open immediately before the a ccid e n t

. Instead, she s tated , “ I mmediately after the accident, the manhole cover was compl etely off of the manhole and ended up on the left side of t he manho l e. ” Crook ’ s affidavit and the attached photographs fail to raise a genuine fact i ssue reg arding the c o n dit ion of the manhole before the

acc ident. 5

5 Although Houston ’ s motion for summary judgment attached as evidence Crook ’ s second amended response to Houston ’ s first interrogator ies in which Cr o ok states , “ Plaintiff ’ s front passenger tire got s t uck in an uncovere d m anhol e , ” w e cannot consider this evidence in our determination of whether Crook r aised a genuine fact issue regarding whether the manhole was uncovered. See Hoffman v. Mena , N o . 03

- 19

- 00409

- CV , 2021 WL 2460637 , at *5 (Tex. App.

— Austin June 17, 2021, no pe t

. ) (m em. op.) ( “ A party may not rely on its own interrogatory responses to raise a fact issue in order to defeat summary judgment, even if the other party puts them into evidence

. ” ) (quoting Zarzosa v. Flynn , 266 S. W.3d 614, 619 (Tex. App.

— El Paso 2008 , n o pet. ) ) ; Garci a v. Nat ’ l Eligibility Express, Inc

. , 4 S.W.3d 887, 891 (Tex. App.

— Houston [1st Dist.] 1999, no pet.) ( responding party may not rel y on own16

The work orders Crook attached to her motion

— assuming they refer to the manhole at is sue here

— likewise do not raise such a fact issue. 6 Although the December 7 work order indicates that the manh ole cov er w as m issi ng, t he order also indicates th at the cover was replaced within hours of the rep orted open manhole. The second work order was dated just before 7: 0 0 a.m. on the accident date . It indicates “ ROW

- Manhole

- Missing C over . ” T he intake

c omments l is te d on t he sa me report at the same time reflect that assistance was needed because the “ manhole [had] shifted. ” A worker who investigated the situation at 1 0:02 that same morning indicated that the casting to the manhole needed to be repaired to keep t h e ma n h ole cover from shifting. This evidence does not indicate that the manhole at is sue was open bef ore Crook ’ s a ccident at approximately 8:00 a.m. See Goo d year Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (per curiam )

. 7
Bec ause we be li ev e

—

b a sed on our previous analysis

— th at our sister court would conclude that a partial ly dislodged or unseated manh ole cover is not a special defect under the facts of this case , and because we conclude there is no fact question regarding the i ssue of wh et he r t h e ma nhole was open at the time of the accident, the trial court erred in denying the

interrogatory answers to show fact issue); see also T EX
. R. C IV
. P . 197.3 ( “ Answers to interrogatorie s may be u sed onl y ag ainst the responding party. ” ).

6 The accident report lists the accident as havi ng occurred at the intersection of 4900 North Braeswood and 9288 West Loop S outh. The December 7 work order lis ts the “pr oblem address” as “ 4700 N BRAESWOO D BLVD & 9 200 W L OOP F W Y S. ” The December 12 work or der lists the “prob lem address” as “ 4690 N BRAESWO OD BLV D & W LOOP FWY S. ”

7 “The evidence r aises a ge nuine issue of fact i f reasonable and fair

- minded jurors could differ in their conclusions in light o f all of t he s um m ary - j u d g ment evidence.” Davis v. Te xas Farm Bu reau Insurance , 470 S.W.3d 97, 103 (Tex

. App.

— Houston [1st Dist.] 201 5, no pet.) (citing Goodyear Tire & R ubber Co. , 236 S.W.3d at 755 )

.17

plea to the jurisdiction

. 8 See LeBla nc , 467 S.W.3d at 622; Madern , 2006 WL 560183, at *3 ; Brazoria C ty. v. Colquitt , 226 S.W.3d 551, 554 (Tex. App.

— Houston [1 st Dis t. ] 2 0 07, no pet.) (if relevant evide nce is undisputed or fails to raise a fact questi on on jurisdictional issue, trial
court ru les on plea to jurisdiction as matter of law)

. 9
We reverse the trial court ’ s order and remand for further proce edings con sisten t wi t h thi s opinion.

Josh R. M orriss, III Chief Justice
Date Submitted: September 21, 2021 Date Decided: October 15 , 2021

8 I n concluding that a partially dislodged o r unseated manhole co ver i s not a special defect in this partic ular case, we do not decide the question of wh ethe r an open manhole is a special defect.

9 Houston argues that even if a dislodged manhole cover were a special defect, it had no duty to warn be cause it h a d no reaso n t o k now o f the condition. Based on our disposition, we need not address this argument

.