## IN THE SUPREME COURT O F TEX AS

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### C IT Y O F 

### D E N T O N 

### , P E T IT IO N E R

v . 

### R A C H E L 

### P A P E R 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E S E C O N D D I S T R I C T O F T E X A S

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P ER CURIAM

The Texas Tort Claims Act g ener ally limit s a g overnme ntal unit ’s p o t ential liability for premise- liability damag es by classify ing the user of the g overnme nt’s re al proper ty as a licensee rathe r than an invitee. T E X . C I V . P R A C . & R E M . C O D E § 101.022(a)

. This limit ation does not apply , howeve r, when the go v er n m en t’s duty to war n involves a specia l defe ct such as an excavation or obstruction on a highw ay , road, or street. Id

. § 101.022(b). The principal question in this premisesliability suit a g ainst a city is w hether a depre ssion or sunken ar ea in a roadw ay , a few inches deep, constitutes an ordinary premises defe ct or a specia l defe ct within the meaning of the T o rt C l ai ms Act. See id. § 101.022(a) –(b). The distinction is signific ant beca use, as noted, the Tort Claims Act imposes a lesser duty of car e on the g overnme nt when the premises claim does not involve a specia l defe ct.The court of appea ls held that the sunken are a in the road was a specia l defe ct beca use it “wa s in the same kind or class as an excavation or obstruction and po s ed an unexpected and unusual dang er to ordinary users (bicy clists) of the roadw ay .” ___ S.W .3d ___, ___ (Tex. App.—For t Worth 2011) (mem. op.). We, howeve r, di sag ree that the premises defe ct here i s o f the s ame class as an

ex ca vation or obstruction. We further conclude that there is no evidenc e that the City h ad ac t u al knowledg e of the dang erous condition a nd acc ording ly reve rse the court of appea ls’ judgme nt a nd dismiss the ca se. The City of Denton Waste Water Depa rtment excavate d a s ection of Wil lowwood Street while installing a sewe r tap. During the installation, the City ere cted barr icade s and war ned of the construction. Upon completing t he job, the C ity repa cked the excavated cut-out and removed t he barr icade s. Rache l Paper, who lives on Wil lowwood, was riding her bicy cle on the street about a wee k later. H er bike ’s front whe el enc ountere d a sunken a rea in the roadw ay , and she w as pitched ove r the handleba

rs, landing on her chin and brea king sever al teeth. The depre ssion or hole that cause d the ac cident wa s in the are a whe re the City had installed the sew er ta p. Paper sued the City , claiming that its neg lige nce in cre ating and failing to repa ir, or war n of, the stree t’s dang erous c ondition caused he r ac cident and injurie s. The Ci ty denied he r alleg ations and, afte r a discovery period, moved for summary judgme nt. The City arg ued that the street’ s condition was not a specia l defe ct but rathe r an ordinary premises defe ct of which Paper was awa re and the City was not. The trial court, howeve r, denied the City ’s traditional and no-evide nce summary judgme nt motions, concluding that the condition was indeed a specia l defe ct, which meant
2that the City owed Paper the same duty of car e as that owed an invitee. ___ S.W .3d at ___. The City

pursued an interlocutory appea l, T E X . C I V . P R A C . & R E M . C O D E § 5 1

. 0 1 4 (a)(8), and the court of appea ls aff

irmed the trial court’s order deny ing summary judgme nt. ___ S.W .3d ___. The City then petitioned for our revie w, and we reque sted briefs on the merits. T E X . R. A P P . P. 55. Although our jurisdiction over interlocutor y appea ls is limit ed, see City of Dallas v. Reed , 258 S.W .3d 620, 622 (Tex. 2008) (per curia

m), we have jurisdiction here beca use the court of appeal s ’ d ec i s ion is inconsistent with our specia l-defe ct jurisprudenc e, which we discuss below. See T E X . G O V ’ T C O D E §§ 22.225(b)–( c), 22.001( a)( 2). The Tort Claims Ac t g ener ally limit s the duty

of a g overnme ntal unit r eg arding a premises defe ct to the duty owed to a licensee on private proper ty

. T E X . C I V . P R A C . & R E M . C O D E § 101.022(a)

. When the premises-liability claim involves a specia l defe ct, howeve r, the g overnme nt’s duty is not so limit ed. See id

. § 101.022(b) (imposing invitee duty for specia l defe cts). The Tort Claims Act does not define the term “spec ial defe cts” except to state that they include “excava tions or obst ruct i o n s on highw ay s, roads, or streets.” Id

. We have construed special defects to include other defe cts of the same kind or class as the two expressly mentioned in the statute. Tex. Dep’ t of Transp. v. Y

ork , 284 S.W .3d 844, 847 (Tex. 2009) (per curia m). Whether a p re m i s es defe ct is specia l or ordinary is usually a question of law. Rey es v. City of Laredo , 335 S.W .3d 605, 607 (Tex. 2010) (pe r cur iam). After her acc ident, one of Paper’ s friends photogr aphed the acc ident scene and made a roug h estimate of the deepe st part of the sunken are a by placing a mecha nical pencil in the hole. The friend subsequently tes t i fi ed at h i s deposition that the depth of t he area in question was “a few i nches, a
3couple of inches” or “almost a pencil leng th deep.” No opi n i o n wa s gi ven as to the width of the

sunken are a. As the appea l conce rns a motion for summary judgme nt, we examine the evidenc e in the l ight most favor able to the nonm ovant. See Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 474 (Tex. 1995). We assume then that the depth of t h e s unken are a varie d from two inches to a few inches more at its deepe st point. The court of appea ls noted from photogr aphs in the rec ord that the “dee pest part of

the hol e” was “located severa l fee t into the right lane f rom the shoulder” and that “Paper could not have navig ated around the sunken are a . . . without crossing into the oncoming lane of traff ic.” ___ S.W .3d at ___. Whil e the photogr aphs confirm that the hole was near the cente r of the rig ht la

ne, they also indicate, contra ry to the court’s observa

tion, that ample room exis ted for a bicy cle to navig ate a

round this hole without having to e nter the opposing traff ic lane. I n concluding that the acc ident involved a specia l defe ct, the court of appea ls rea soned that the su n k en are a was “not analog ous to a pothole encounte red in the ordinary course of events” beca use it resulted from “the City ’s cutting a hole in the street.” ___ S.W .3d at ___. This rea soning sug g ests that a pothole simil ar to the condition here would not be a specia l defe ct but that the same h o l e ca u s ed by a g overnme ntal unit’s ineffe ctive repa ir would be. L iability for a premises defe ct under the Tort Claims Act, howeve r, “is predic ated not upon the actions of the g overnme ntal unit’s employ ees but by ref

ere nce to the duty of car e owed by the g overnme ntal unit to the claimant for premise and specia l defe cts

. . . .” DeW itt v. Harris Cnty. , 904 S.W .2d 650, 653 (Tex. 1995) (citing T E X . C I V . P R A C . & R E M . C O D E § 101.022). A condition’s quality as a specia l defe ct thus bear s not

so much upon the g overnme nt’s role in its cre ation as it does on the natur e of the condition itself. The c ircumstance s surrounding the g overnme ntal unit’s involvement in the cre ation of a pr emises
4defe ct may be rele vant to the issue of the g overnme nt’s knowledg e of the defe ct, but will not serve

to transfor

m an otherwise ordinary premises defe ct into a specia l one. The court o f appea ls sug g ested distinction thus finds no support in t he Ac t. I nstead, as we have said, “the centr al inquiry is whether the condition is of the same kind or falls within the same class as an excavation or obstruction.” Y ork , 284 S.W .3d at 847 (citing Cnty. of Harris v. Eaton , 573 S.W .2d 177, 179 (Tex. 1978)). I n deter mining whether a particula r condition is like an excavation or obstruction and there fore a specia l defe ct, we have mentioned sever al helpful char acte ristics, such as: (1) the siz e of the condition; (2) whether the condit i o n unexpectedly and phy sically impairs an ordinary user’ s ability to trave l on the road; (3) whether the condition prese nts

some unusual quality apar t from the ordinary course of events; and (4) whether the condition prese nts an unexpected and unusual dang er. The Univ. of Tex. at Austin v. Haye s , 327 S.W .3d 113, 116 (Tex. 2010) (per

curia m) (citing Y

ork , 327 S.W .3d at 847). We have held, howeve r, that varia tions in public roadw ay s of a few inches are not the same

as the excavations or obstructions mentioned in the Act. See, e.g., Ree d , 258 S.W .3d at 622 (holding that a two- to three -inch differ ence in eleva tion betwee n traff ic lanes was not a specia l defe ct); City of El P a s o v. Bernal , 986 S.W .2d 610, 611 (Tex. 1999) (per curia m) (holding that a worn or depre ssed are a of a sidewalk approximately three fee t by six fee t in siz e with a depth of three inches
was not a special defe ct). Simi larly , the s unken area or pot h o l e here, rang ing from t wo i nches to

a few inches more at its deepe st point and located in the cent er of one lane of traff ic is not the excavation or obstruction contemplated by the statute. The pot-hole-like condition here is nothing like the spec ial defe ct found to exist i n County of Harris v. Eaton

. 5Eaton involved an abnorma lly larg e hole in the road. This hole varie d from six to ten inches

in depth and was four- to nine-fe et wide, extending over ninety perc ent of the width of the highw ay . E a ton , 573 S.W .2d at 178. I ndeed, we commented that the conditi on “re ache d the proportions o f

a ditch acr oss the highw ay .” Id. at 179. We fu rt h er o b s er v ed t hat “one could not stay on the p a v e me n t a n d mi s s it , ” im

p li c a ti n g a n o th e r s p e c ia l-defe ct consideration—the condition une xp e c te d ly and phy sically

impaired the ve hicle’s a

bility to tr avel on the roa dway

. Id. Upon enc ountering the “ditch” in Eaton , the vehicle flipped comingto rest on its roof. Id . at 178. Unlike the roadw ay ’s conditi o n i n E aton , the sunken are a here did not phy sically impair Paper’ s ab ility to trave l. See State v. Rodriguez , 985 S.W .2d 83, 86 (Tex. 1999) (per curia m) (conc luding that “alleg ed desig n flaws did not unexpectedly and phy sically impair a vehicle’ s ability
to trave l on the roadw ay in the same way as a ditch in the road or a ten-inch drop along th e shoulder”)

. Rather, the photogr aphs indicate that the sunken are a could have been avoided without leaving the roadway or entering the oppos ing lane. Paper herse l f admits that she was not looking
at t he road immediately ahea d of her at t he ti me of the accident but instead was focuse d on a st op sign a t the end of the street. “The class of specia l de fec ts c ontemplated by the statute is na rrow.” Haye

s , 327 S.W .3d at 116. I t does not include common potholes or simil ar depre ssions in the roadw ay . See, e.g., Hindman

v. State Dep’ t of

Highways & Pub. Transp. , 906 S.W .2d 43, 46 (Tex. App.–Ty ler 1995, writ denied) (obser ving that specia l defe cts do not include “eve ry pothole or bump encounte re d o n a p u blic highw ay in Texas capa

ble of upsetting a cy clist”). Such irreg ularities in the roadw ay unfortunate ly

are to be expected. Ty

pically , they

will not present an unusua l dang er to the tra veler

. 6Although this is not a specia l defe cts case , Paper also contends that the City is liable here for

an ordinary premises defec t. The Tort Claims Act provides that, in an o rd i n ar y premises li ability claim, the g overnme ntal unit owes only the duty “that a private person owes to a licensee on private proper ty , unless the cla i m an t pay s for the use of the premises.” T E X . C I V . P R A C . & R E M . C O D E § 101.022(a)

. Under Texas law, a lice nsor of re al prope rty owes a duty not to injure the licensee by willful or wanton acts or omissions or g ross neg lige nce. State Dep’ t of Highways & Public Transp.

v. Payne , 838 S.W .2d 235, 237 (Tex. 1992). When the g overnme ntal unit has actua l knowledg e of a dange rous conditi on and the licensee does not , the gover nment must either warn t h e l i ce nsee or make the c ondition safe. State v. Tennison , 509 S.W .2d 560, 562 (Tex. 1974). Paper contends that the City knew a bout the hole on her street beca use the City cre ated the condition when it failed to make adequa te repa irs afte r installing the sewe r tap. The City , o n the other hand, arg ues that it completed repa irs to the street a wee k befor e Paper’ s acc ident and that the construction are a was level with the street at the time. The City attache d to its summary judgme nt

m o t i o n t h e aff

idavit of a Field Supervisor in the Wastewater Depa rtment who had personal knowledg e of the projec t. He aver red that the sew er t ap wa s installed and the street cut out was packe d to street level with back fill and flex base to cre ate a hard road surface on M ar ch 2 2

. The work cre w had to return the next day , howeve r, beca use the sewe r line sank slightly afte r pack down. The Field Supervisor avers that the s ewe r l ine was raised and t he st ree t cut out repa cked ag ain on Marc h 23. Finally , he swea rs that when his cre w left the projec t that day , “the are a of construction

was level with the street and was n o t h az ar d o u s .” The City provided additional aff idavits to demonstrate that it had not rec eived any complaints about the projec t or the street repa ir betwee n the

7projec t’s completion on Marc h 23 and Paper’ s acc ident a wee k later on April 1. See Univ. Of TexPan Am. v. Aguilar , 251 S.W .3d 511, 513 (Tex. 2008) (per curia m) (obser ving “that courts g ener ally consider whether the premises owner has rec eived repor ts of prior injuries or repor ts of the potential dang er r epre sented by

the condition”). To prove the actua l-knowledg e element of a viable premises-de fec t claim, the licensee must show that at the time of the incident, the landowner knew about the dang erous condition. See City of Corsicana v. Stewart , 249 S.W .3d 412, 413–15 (Tex. 2008) (per curia m). The City arg uably knew that the repa ired are a of the street might sink a g ain but “ the actua l know ledg e require d for liability is of the dang erous condition at the time of the acc ident, not m er el y o f the possibili ty that a dang erous condition c an develop over time.” Rey es , 335 S.W .3d at 608 (quoting City of Dallas v

. Thompson , 210 S.W .3d 601, 603 (Tex. 2006) (per curia m)). “Awa rene ss of a potential problem is not actual knowle dg e of a n exis ting da

ng er.” Rey es , 335 S.W .3d at 609. Her e, Paper prese nted no evidenc e that the City actua lly knew a dang erous condition exis ted afte r completion of i ts work on Paper’ s street the wee k b ef ore her accident. She assumes t hat t he City left the hole on her street afte r installing the sewe r tap or was otherwise awa re of the dang erous condition that subsequently develope d, but she provides nothing to contradic t the City ’s summary judgme nt evidenc e. Be cause Paper has no evidenc e that the City knew about this hazard befor e her

acc ident, it was err or to deny the City ’s motion for summary judgme nt. Acc ording ly , we gr ant t he petition for review, and without hear ing oral arg ument, T E X . R. A P P . P. 59.1, we re verse the cour t of appe als’ judg ment and dismiss the case.

8Opinion delivere d: Aug ust 17, 2012

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