COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

C ITY OF FREDERI CKSBURG

,

Appellant,

v.

S USANNA BOYER

,

Appellee

. §

§

§

§

§ No. 08

- 23

- 00236

- CV

Appeal from the

216 th Judicial D istrict Court

of Gillespie County, Texas

(TC# 17026)

O P I N I O N

Governmental immunity can shield a Texas city from premises liability claims unless

certain predicates are met, including that the city had actual knowledge of the dangerous condition

that caused an injury. That predicate is at issue in this appeal

. The injury at issue was caused when

a tree branch broke off and struck Appellee Susanna Boyer as she walked along South Main Street

in the City of Fredericksburg. 1 The City was responsible for maintain ing the tree —a Bradford

p ear

— and according to Boyer, the City failed to remove or warn of the offending branch before it

fell

. The City filed a plea to the jurisdiction, arguing that it is immune from suit under the Texas

1 This case was transferred from the Fourth Court of Appeals pursuant to a docket equalization order issued by the

Supreme Court of Texas. See T EX

. G OV ’ T C ODE A NN . § 73.001. We follow the precedent of the Fourth Court of

Appeals to the extent it might conflict with our own. See T EX

. R. A PP

. P . 41.32 Tort Claims Act, which provides a limited waiver of immunity for premises defect cases, because

it lacked actual knowledge of the tree ’ s dangerous condition at the time of the incident. T he trial

court denied its plea. We agree with the City, however, and dismiss the case for want of subject

matter jurisdiction.



### F ACTUAL AND 

### P ROCEDURAL 

### B ACKGROUND

On July 24, 2021, Susanna Boyer was walking on a sidewalk in Frederick s burg, Texas

when the branch of a Bradford p ear t ree fell and struck her in the head

, causing serious facial

injuries. She sued the City for its negligence in “ [ f ] ailing to maintain a safe public sidewalk ” ;

“ [ f ] ailing to maintain the large, aged Bradford Pear located on the public sidewalk ” ; “ [ f ] ailing to

maintain the public sidewalk free from unreasonable hazards ” ; “ [ f ] ailing to warn Plaintiff and the

public of an unreasonably dangerous condition ” ; and “ [ f ] ailing to remove, reduce [or] warn of the

unreasonable hazard. ” Boyer also alleged that the City owned and controlled the area where Boyer

was injured and that it breached its duty of care by failing to warn or make reasonably safe the

dangerous condition of which the City knew and Boyer did not.

The City filed a plea to the jurisdiction, arguing that it was immune from suit under

§ 101.022 of the Texas Tort Claims Act, which sets out a limited waiver of sovereign immunity

.

In support of its original plea, the City attached the affidavit of Garret Bonn, Assistant City

Manager (and Assistant City Engineer at the time of the incident)

, who stated that he investigated

the incident and found the tree limb was still green, with no indication of potential failure. Bonn

swore “ as the Assistant City Engineer at the time of the incident in question that the City of

Fredericksburg did not have knowledge that the tree limb in question was a danger to the public. ”3 In a supplemental plea, the City attached the deposition of Bonn

, a long with the deposition

of David Feller who is identified as the City ’ s “ foreman arborist. ” 2 B onn testified that he had no

previous report s of any branches falling at the place of this accident. He also testif ied that he was

unaware of any prior incidents with any of the Bradford p ear trees planted by the City. B oth Bonn

and Feller acknowledged that th e tree involved here was last trimmed by the City in late March

2020, a year before the incident

. Feller explained that the City has no set policy or maintenance

schedule for the trees, but his crew will trim them if they receive a complaint or notice something

themselves. Feller was also unaware of any prior incidents w ith any of the other Bradford p ear

trees.

In response to the original plea

, Boyer attached the City ’ s answers to interrogatories

explain ing that following the accident, a ssistant city s upervisor Brandon Vollmar was directed to

remove the broken branch

, which measured roughly eight to ten feet long. The interrogatory

answer claims there “ were no p r evious cut marks on the branch at the point from where it broke

due to previous trimming

, ” “ [ t ] he tree at the time of the accident was green and heathy ” and the

“ branch was not dead at the time it fell from the tree. ” In response to the City ’ s supplemental plea,

Boyer offered the affidavit of expert arborist Scott E. George, who stated that the Bradford p ear

trees are notorious for losing their limbs as they age. Additionally, Boyer stated that the City knew

it had planted a Bradford p ear tree and that the tree was at least 13 years of age

, old for that species

of tree

. Based on this information, Boyer argued there is a fact issue as to whether the City had

actual knowledge of the tree ’ s dangerous condition on the day of the incident.

2 The record does not suggest, however, that Feller is a degreed arborist, nor was he offered as an expert witness

.4 T he trial court denied the City ’ s plea to the jurisdiction

. In this appeal, the City raises one

issue claiming that there is no evidence it had actual knowledge of the dangerous condition the

Bradford p ear tree posed on the day of the incident.



### S TANDARD OF 

### R EVIEW AND 

### A PPLICABLE 

### L AW

When it applies, governmental immunity protects political subdivisions of the State,

including cities, from suit. See Wichita Falls State Hospital v. Taylor

, 106 S.W.3d 692, 694 n.3

( Tex. 2003) ; Tabrizi v. City of Austin

, 551 S.W.3d 290, 295

– 96 ( Tex. App.

— El Paso 2018, no

pet.)

. Immunity from suit divests a trial court of its subject matter jurisdiction. Tex as Dep ’ t of

Parks & Wildlife v. Miranda

, 133 S.W.3d 217, 224 ( Tex. 2004)

. “ Although the justifications for

its existence have evolved through the years, we have steadfastly retained it in modern times

precisely because it shields ‘ the public from the costs and consequences of improvident actions of

their governments[,] ’ and ensures that the taxes the public pays are used ‘ for their intended

purposes [.] ’” Hillman v. Nueces Cnty

. , 579 S.W.3d 354, 361 ( Tex. 2019)

, ( quoting Tooke v. City

of Mexia

, 197 S.W.3d 325, 332 ( Tex. 2006) and Reata Const. Corp. v. City of Dallas

, 197 S.W.3d

371, 375 ( Tex. 2006 ) ). Immunity defeats “ a cause of action without regard to whether the claims

asserted have merit. ” Bland Indep. Sch. Dist. v

. Blue

, 34 S.W.3d 547, 554 ( Tex. 2000)

. But inherent

in that principal is Justice Willett ’ s observation that “ just as immunity is inherent to sovereignty,

unfairness is inherent to immunity. ” City of Galveston v. State

, 217 S.W.3d 466, 480 n.38

( Tex. 2007) (Willett, J., dissenting).

Texas Courts have recognized that the legislature “ is best suited to make the policy

- laden

judgments as to if and how state government resources should be expended. ” Bacon v. Texas Hist.

Comm ’ n

, 411 S.W.3d 161, 172 ( Tex. App.

— Austin 2013, no pet.) ( citing Texas Dep ’ t of Transp.

v. Sefzik

, 355 S.W.3d 618, 621 ( Tex. 2011) and Tooke

, 197 S.W.3d at 331

– 32 )

. Th at policy5 judgment is in the Texas Tort Claims Act that waives sovereign immunity if the governmental unit

might be liable as prescribed in the Act. Miranda

, 133 S.W.3d at 224 ; see T EX

. C IV

. P RAC

. & R EM

.

C ODE A NN

. § 101.021 (delineating the areas of governmental liability). Relevant here, the Act

waives immunity for personal injuries caused by “ a condition or use of tangible personal or real

property if the governmental unit would, were it a private person, be liable to the claimant

according to Texas law. ” T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 101.021

. F or premises defects, a

governmental unit owes the same duty to a claimant that a private person owes to a licensee on

private property. Id. § 101.022(a)

. Thus, in premises defect cases like this one, the Texas Tort

Claims Act permits suits against a governmental unit if it would be liable under a licensee theory

of premises liability. See Miranda

, 133 S.W.3d at 230 (stating plaintiff ’ s claim involving fallen

tree branch is a premises defect claim).

Landowners owe licensees a duty not to injure them by willful, wanton, or grossly

negligent conduct, and to use ordinary care to warn or make reasonably safe a dangerous condition

of which the landowner is aware and the licensee is not. Sampson v. Univ. of Tex as at Austin

, 500

S.W.3d 380, 385 ( Tex. 2016)

. In other words, absent willful, wanton, or grossly negligent conduct,

the claimant must prove:

(a) A condition of the premises created an unreasonable risk of harm to the licensee;

(b) The owner had actual knowledge of the dangerous condition;

(c) The licensee did not actually know of the condition;

(d) The owner failed to exercise ordinary care to protect the licensee from danger; and

(e) The owner ’ s failure was a proximate cause of injury to the licensee.

Id. at 391

.6 Here, t he parties dispute only whether the City had actual kn owledge of the dangerous

condition the Bradford p ear tree posed to licensees. The actual

- knowledge element requires a

showing that the governmental unit actually knew of the dangerous condition. Id. at 392

.

Constructive or hypothetical knowledge will not suffice. Id. Additionally, the claimant must show

the landowner actually knew of the “ dangerous condition at the time of the accident, not merely

of the possibility that a dangerous condition c[ould] develop over time. ” Id. Actual knowledge can

be proved by circumstantial evidence, such as by a showing that the landowner received reports of

prior injuries or incidents caused by the dangerous condition. Id.

A government unit may raise its immunity through a plea to the jurisdiction. Miranda

, 133

S.W.3d at 225

– 26

. “ A jurisdictional plea may challenge the pleadings, the existence of

jurisdictional facts, or both. ” Alamo Heights Indep. Sch. Dist. v. Clark

, 544 S.W.3d 755, 770

( Tex. 2018)

. When jurisdictional facts are challenged

, courts review relevant evidence submitted

by the parties. Miranda

, 133 S.W.3d at 22 7

. In some cases, the jurisdictional evidence implicates

the merits. Town of Shady Shores v. Swanson

, 590 S.W.3d 544, 552 ( Tex. 2019)

. When a n

evidentiary challenge to jurisdiction i s properly supported, the burden shifts to the plaintiff to show

a fact issue on the jurisdictional issue. 3 Id. If there is no fact issue, the trial court must grant the

plea to the jurisdiction. Sampson

, 500 S.W.3d at 392

. If there is a fact issue, the trial court should

submit the case to the fact

- finder for resolution of the disputed evidence. Id. As with a motion for

summary judgment, we view the parties ’ evidence in a light most favorable to the nonmovant,

indulging every reasonable inference and resolving all doubts in the nonmovant ’ s favor. Id. at 384

.

We review issues of subject matter jurisdiction de novo. Id

.

3 The court in Swanson held that a governmental entity could also raise a jurisdictional challenge through a

Rule 166a(i) no evidence motion for summary judgment. Swanson

, 590 S.W.3d at 552

. The City did not r aise its

jurisdictional challenge through that kind of motion.7 

### D ISCUSSION

The City argues the trial court lacks jurisdiction because there is no evidence the City had

actual knowledge of the dangerous condition. It supported that claim through the affidavit of Garret

Bonn, current Assistant City Manager and then

- Assistant City Engineer on the day of the incident.

Its supplemental plea included the deposition of Bonn and City worker, Feller.

Boyer first contends that this evidence is insufficient to conclusively establish that the City

lacked actual knowledge of a defect in the tree, thus she had no burden to present any evidence in

response to the City ’s plea. The standard for a plea to the jurisdiction “ generally mirrors that of a

summary judgment under Texas Rule of Civil Procedure 166a(c)

. ” Miranda , 133 S.W.3d at 228.

So after the governmental entity “ asserts and supports with evidence that the trial court lacks

subject matter jurisdiction ” a plaintiff must show there is a disputed material fact on the

jurisdictional issue. Id

. Our first decision point is then whether the City sufficiently showed the

lack of actual knowledge— essentially proving a negative— and creating a burden for Boyer to

come forward with her own evidence. In this case, the City offered the affidavit of the Assistant

City Manager Bonn, who at the time of the accident, was the Assistant City Engineer. He swore

that “the City of Fredericksburg did not have knowledge that the tree limb in question was a danger

to the public. ” Both Bonn and Feller buttress that statement with their observation that they were

unaware of any prior incidents involving Bradford pear trees, and Bonn who testified there were

no previous incidents at the very location of this tree. 4

4 Boyer argues in part that the City never designated Assistant City Manager Bonn and foreman arborist Feller as

corporate representatives for the city. The Texas Rules of Civil Procedure prohibit a party who “ fails to make, amend,

or supplement a discovery response, including a required disclosure, in a timely manner ” from offering the “ testimony

of

a witness (other than a named party) who was not timely identified, ” unless certain exceptions apply. T EX

. R. C IV

. P. 193.6

. As stated, this rule does not apply when the witness is a party to the litigation. Corporations necessarily act

through human agents, and when those agents act on behalf of the corporate entity, “ that act is the act of the corporation

itself. ” Arshad v. Am. Express Bank, FSB

, 580 S.W.3d 798, 808 ( Tex. App.

— Houston [14th Dist.] 2019, no pet.)8 “ Although there is no one test for determining actual knowledge that a condition presents

an unreasonable risk of harm, courts generally consider whether the premises owner has received

reports of prior injuries or reports of the potential danger presented by the condition. ” Univ. of

Tex as v

. Aguilar

, 251 S.W.3d 511, 513

– 14 ( Tex. 2008) (per curiam) ( University supported its

claim of no evidence of actual knowledge that a hose across a sidewalk posed unreasonable risk

of harm through testimony that there had been no incidents of pedestrians tripping on water hoses

for the past five years ); see also Sampson

, 500 S.W.3d at 392 (stating knowledge of prior incidents

or reports of the potential danger is circumstantial evidence of actual knowledge of a dangerous

condition) ; City of Austin v. Credeur

, No. 03

- 19

- 00358

- CV, 2021 WL 501110, at *6 ( Tex. App.

—

Austin Feb. 11, 2021

, no pet. ) (mem. op.) ( detailing how the City of Austin showed no prior

knowledge of an allegedly defective valve cover through the lack of prior claims) ; Cnty. of El Paso

v. Baker

, 579 S.W.3d 686, 693 ( Tex. App.

— El Paso 2019, no pet.) ( demonstrating lack of notice

of defect in elevator through absence of prior claims).

The City also points us to Miranda

, a premises defect case involving fallen tree branches

.

There, the Texas Supreme Court found no evidence of actual knowledge of a dangerous condition

where a tree branch fell on a visitor to a state park. 5 133 S.W.3d at 231

– 32

. The state agency

supported its plea with testimony from an assistant park manager that “ tree limbs are only pruned

(citing Speedy Stop Food Stores, Ltd. v. Reid Rd. Mun. Util. Dist. No. 2

, 282 S.W.3d 652, 656 n.2 ( Tex. App.

—

Houston [14th Dist.] 2009)

, aff ’ d, 337 S.W.3d 846 ( Tex. 2011) ). Because both Bonn and Feller testified in their

capacity as employees of the City

— a party to the litigation

— it is inconsequential that they were not formally

designated as corporate representatives.

5 Miranda precisely decided the question of whether the Texas Department of Parks and Wildlife was subject to suit

whe re the plaintiff had to overcome the recreational use statute

. Miranda

, 133 S.W.3d at 225

. Under that statute, the

agency would not be liable unless the plaintiff could prove gross negligence with its objective test for an extreme

degree of risk and actual subjective awareness of the risk involved. Id

. So in that way the burden on the Miranda

plaintiff was higher than that here, where Boyer only needs to show actual knowledge of the d angerous condition

. Nonetheless, we find the similarity in proofs on actual knowledge instructive of what the City needed to show to meet

its initial burden

.9 or trimmed if they appear to be dead” and the tree limb there appeared to be living. Id. at 231.

Here, too, Feller testified that the City ’s trees are trimmed only if there is a complaint or his crew

notices a problem. Bonn’s testimony claimed a picture of the limb (not in our record) depicted a

live green branch

. One of the City ’s interrogatory answers attached to Boyer’s response stated that

the broken tree branch was not dead and that the tree was green and healthy. In Miranda , the state

agenc y’s proofs admitted that other limbs had fallen in the park on about twenty occasions, but no

one was injured. Id

. In this case, the City ’s witnesses were unaware of any prior issue with the

Bradford pear trees injuring anyone. In Miranda , the proofs showed the tree limb that injured the

plaintiff fell from fifty feet above the campsite and that park employees could not have seen the

limb, even if it were dead. Id

. There is no comparable evidence in our record, other than the tree

limb did not appear dead at all

. Nor did the City ha ve any scheduled inspection of the trees so that

a dead limb

, if it existed, would be seen.

We agree, therefore, that the City met its initial burden of showing that it had no actual

knowledge of the Bradford p ear tree ’s condition on the day of the incident, and the burden shifted

to Boyer to present a fact issue on the City ’s actual knowledge of a dangerous condition. To meet

that burden, Boyer presented the affidavit of her expert arborist, Scott E. George. According to his

affidavit, the Bradford p ear tree is notorious for its “ species

- specific failure profile, ” which refers

to the species ’ known failure s of its branches, trunk, or roots. George cited to an excerpt from the

Encyclopedia of Trees and Shrubs to explain the tree ’s defects:

Despite all of its desirable attributes, however, ‘ Bradford’ suffers from a fatal

genetic flaw that causes it to self

- destruct, literally falling apart with time -the many

branches will cause the tree to split in half after ten to 15 years. For short- term use,

it may be acceptable, but to plant entire streets with this cultivar is playing

biological Russian roulette

. [emphasis added ]10 Ge o rge claimed that a Bradford p ear tree has a short lifespan and becomes a known

dangerous condition after 10 to 15 years. The tree here was at least 13 years old, according to

photos from Google Earth. Consequently, George testified the tree should have been removed as

it approached 15 years of age.

But none of Boyer’s evidence rises to the level of actual knowledge required to establish a

fact issue. That the Bradford pear tree deteriorates over time and is susceptible to losing limbs

because of old age is like arguing that dangerous conditions might arise by the passage of time

—

the same argument courts have rejected many times. See City of Denton v. Paper , 376 S.W.3d 762,

767 ( Tex. 2012) (“ [T]he actual knowledge required for liability is of the dangerous condition at

the time of the accident, not merely of the possibility that a dangerous condition can develop over

time. ” ); See City of Dallas v. Thompson , 210 S.W.3d 601, 603 ( Tex. 2006) (same); Baker , 579

S.W.3d at 693 (same). Thus, while it may be true the Bradford p ear tree notoriously loses its limbs

over time and is therefore a poor choice for landscape in high- trafficked areas, this fact is not

evidence the City had actual knowledge that this tree posed a danger on the day of the incident.

Boyer’s evidence that the Bradford pear tree is inclined to “ split in half after 10 to 15 years” might

provide a window during which a dangerous condition might arise, but this only shows the City

should have known the tree posed a higher risk of injury during this time, not that it actually knew

the tree was dangerous in July 2021. See Paper , 376 S.W.3d at 767 (“ Awareness of a potential

problem is not actual knowledge of an existing danger.”) (quoting Reyes v. City of Laredo , 335

S.W.3d 605, 609 ( Tex. 2010) ).

Additionally, Boyer’s contention that the City actually knew of the dangerous condition by

knowing the species of tree it planted also fails. No evidence proves the City knew what the11 possible risks were of planting this type of tree. 6 Bonn testified he has no specialized knowledge

about the Bradford p ear tree. And even if the City knew of the species ’ genetic defects, “ [e]vidence

that an owner or occupier knew of a safer, feasible alternative design, without more, is not evidence

that the owner knew . . . that a condition on its premises created an unreasonable risk of harm. ”

Sampson , 500 S.W.3d at 396 (quoting City of Dallas , 210 S.W.3d at 604)

. As such, Boyer failed

to raise a fact issue on the City ’s actual knowledge of the dangerous condition.

Boyer also argues that the City was aware of the tree ’s dangerous condition because Feller

stated that in the absence of a maintenance schedule, the trees are trimmed only when a complaint

is made, and in this case, the Bradford pear tree was trimmed in 2020. Thus, Boyer reasons that

by way of inference, this tree must have been trimmed because there was a complaint about the

tree ’s dangerous condition. Even so, this is mere speculation, not actual knowledge that the tree

was trimmed due to a complaint made of its dangerous condition. 7 Courts have stated that

speculative knowledge does not meet the actual -knowledge standard required here. See Baker , 579

S.W.3d at 695 (“ [A]n inference is not reasonable if premised on mere suspicion—‘some suspicion

linked to other suspicion produces only more suspicion, which is not the same as some evidence. ’” )

(quoting Sampson , 500 S.W.3d at 395 )). Second, the fact that the tree was trimmed in 2020, even

if

due to its dangerous condition, does not mean the City had actual knowledge of its condition in

2021, a year later when the incident occurred. Knowledge of dangerous conditions at some remote

time in the past does not translate into actual knowledge of a dangerous condition existing at the

time of the incident. See Thompson , 210 S.W.3d at 603 (stating that reports of tripping in the same

6 Bo nn testified in his deposition that he was unsure if the City had planted the tree, as Main Street is a state highway

and the Texas Department of Transportation may have done the original landscaping.

7 Instead, David Feller guessed that the tree had been trimmed in 2020 because he or his colleagues had seen the tree ’s

limbs hanging low as they were driving.12 area plaintiff tripped, which were made three years before the incident, were too remote to impute

actual knowledge on the City). 8 Thus, Boyer failed to raise a fact issue on the actual -knowledge

element.

Having considered all the evidence in a light favorable to Boyer, we sustain the City ’s sole

issue.



### C ONCLUSION

Finding no evidence showing the City had actual knowledge of the tree ’s dangerous

condition, we reverse the trial court’s order and dismiss the case for want of jurisdict ion.

J EFF ALLEY, Chief Justice

January 9, 2024

Before Alley , C.J., Palafox, and Soto, JJ

.

8 Boyer ’s additional reliance on Simons v. City of Austin

, 921 S.W.2d 524 ( Tex. App.

— Austin 1996

, writ denied ) is

misplaced. In that case, the Austin court decided that a city employee had direct evidence acknowledging the

dangerousness of an unsupported wooden partition (that fell on the plaintiff) “ coupled with that of [] two expert

witnesses ” was more than a scintilla of evidence to show the city ’s actual knowledge of the dangerous condition. Id

.

at 528

. As we explain, what Boyer lacks here is the same kind of direct evidence of City ’s knowledge of a dangerous

limb with this tree at the time of the event.