### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 23
- 00376
- CV

City of Austin , Appellant

v. Caroline Nelson, Appellee

FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1- GN -22-004053 , THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Caroline Nelson sued the City of Austin for personal injuries she sustained when she fell into a dislodged t ree grate on a downtown sidewalk. In a plea to the jurisdiction, the City
assert ed that Nelson ’ s suit is bar re d by governmental immunity , wh ich t he trial court denie d

. The City app eals

. See Tex. C iv. Prac. & Rem. Code § 51.014(a)(8) (permitting interlocutory appeal of order denying governmental unit ’ s pl ea to jurisdiction )

. W e will affirm the trial cour t’ s orde r denying the City ’ s plea.

BAC K GROU ND In her li ve pe tition, Nelson alleges that on May 20, 2022 , she was walking southbound on the sidewalk of Rio Grande Street when she “ fell into a dislodged tree g rate/metal casing ” near 2100 Rio Grande. She broke h er ankle as a result of the fall

. Be low is a picture that2 Nelson all eges accurately depicts the premises taken immediately after her fall, which p icture she attached to her response to the City ’ s plea

.

Nelson brings a cause of action again st the City for premises liab ility

. 1 Sh e alleges that the City had actual and constructive know ledge of the dislodged or “ dis located ” tree grate by vi rtue of several facts: the presence of over ten different City p arking

- e nforcement o fficers who

1 She al so lis ts res ipsa loquitur ( m eaning “ the thing speaks for itself ” ) as a “ cause of action , ” but th at doctrine is not a separate or independent ca use of action from negligence

. Instead, it is a rule of evidence by w hich negligence may be inferred by the fac tfinder when (1) the character of the accident, or the injury, is a type that w ould not ordinarily occur in the absence of n egligence; and (2) th e instrumentality causing the in jury was under the defendant ’ s management and control. See Haddock v. Arnspige r , 793 S.W.2d 948, 950 (Tex. 1990).3 issued ab ou t seve nty

- five parking tickets i n the 2 100 block of Rio Grande between March 31,
2022 , and the date of her injury ; the C ity ’ s relocation of a bench near the grate several m onths bef ore her injury; and the City ’ s “ performance of construction and/or mainte na nce and/or code enforcement ” near the grate in the months before her injury

. 2 Nelson alleges that the City neglige ntly r epai red the grate about a year before her injury but t hat so on there after the grate again became dislodged and remained so until her in jury. Sh e alleges that the grate had remained dislodged and in its partially collapsed state for at least fifty days bef ore her inju ry, supporting her allegation with Google M aps p ho t ograph s of the premises taken Marc h 30, 202 2 , and produced by Google p ur suant to subpoe na
. She additionally alleges that th e City ’ s failure to inspect or properly maintain the grate after its prev ious dislodgment c onstituted willful, wanton, or gross negl igenc e. In its plea to the jurisdiction, the City first argued that it is protected from suit by governmental immunity and that Nelson cannot demonstrate that her claim falls within t he scope of the Texas Tort Claims Act ’ s waiver of governmental immunity. Specifically, the City argued that the dis lodged grate, assuming it w as defec tive at all, wa s an ordi n ary prem ises defect rather than a sp ec ial defect and the City had no actual kno wledge of its condition prior to Nelson ’ s injury. The City next argued that, assuming the dislodged grate was a special defect, Nelson could no t show t hat the City should have known of its condi ti on. Lastly, the C ity argu ed that ( a)

2 In her declaration and response to the City ’ s plea to the jurisdiction, Nelson refers to the tree grate as “ dislocated ” rather than “ dislodged , ” and in her appellate briefing sh e refers to the grate as having “ collap sed. ” We think the se mantic distinction is immaterial for purposes of our appellate analysis bec ause

— as the adage goes

— the photograph reprod uce d herein is “ wor th a thousand words. ” However, f or consistency in this o pinion and because we need to identify the pr emises condition somehow , we defer to and employ the term used in Nelson ’ s live pleading ( “ dislodged ” ) even though, as explained below, th at term conjure s a more beni g n c ondition than that which t he photograph d epicts.4 it was not grossly negligent in failing to repair the dislodged grate , (b ) Nelson ’ s claims fail because the City ’ s decision to use removable t ree grat es is a discr et ionary d ecis ion for which immunity is not waived , and (c) the dis lodged grate was not unreasonably dangerous as a matter of law

. The City argued in its plea to the jurisdiction that it relies on reports people make to 31 1 to know i f there are any issu e s r elated to t he public right of way . It a ttached e vi dence from its 311 datab ase showing it had received six total se rvice requests between May 1, 2021 , and June 30, 20 22 , in the vicinity of the dislodged grate

. The first thre e were from May 2021 and inv olv ed repo rts that the same tree grate was dislodged

— the City resolved th is complaint by

“ pu tting the grates back in place

. ” O ne May 2021 service request cited the citiz en ’ s report as,

“ 2100 Rio grande. West c [urb]. Tree gra[t]e fallen in to the hole. A 1 3in hole

. In the dark somebody can fall in and hur t themselves. Needs to b e put back in place. ” The p hotograph attached to that report depicted a partial collapse of the grate on the north side , like its condition when Nelson ’ s injury occurred

. A not her May 2021 r eport indicated that the grate s “ covering the sidewalk tree surroundings have been removed and rearranged to form ramps for skateboarding/bikes. Easy to fall into area around trees or run into metal grates. ” Two reports from May 2021 pertai ned to bolts protruding from the s idewalk near th e tree grate

— the City resolved that complaint by removing the bo lts. The final report was filed by Nelson just a few days after her injury. In her response to the City ’ s plea to the jurisdiction , Nel son attac hed the following

ev idenc e in a ddition t o the Google

- produced photographs : City

- produced records of service requests pertaining to the grate and photographs of prior repairs to the grate ; records of parking tickets fro m the vici nity obtained pursu ant to op en - r ecords requests ; reco rds pe rt a ining to a5 Notice of Code V iolation issued by the City of Austin for the propert y at 2100 Rio Grande Street with a January 5, 2022 ob servation date ; Nel son ’ s declaration ; and a February 2022 Google
M aps ph otograph of t he tree gr ate tha t Ne lson “ p ulled fro m the Internet directly ” depi cting the

s ame tree grate in the same dislodged condition with a bench directly to the south of it (the March 2022 Goo gle M aps photograph does not d epict the bench)

. In her dec larat ion, Nel son avers that it was nighttime when she sustained he r injur y , that there was “ little or no light ” in the vici nity, and that the p hotograph rep roduced above is a true and correct copy o f her self taken near the grat e immediately after the injur y.

DISCUS SION We review de novo the tr ial court ’ s r uling on th e City ’ s plea to the jurisdiction

. Sampson v. Unive rsity of Tex. at Aus tin , 500 S.W.3d 380, 384 (Tex. 2 016). We focus first on the plaintiff ’ s petition to determ ine whether the facts that we re ple a d e d af firmatively demonstrate that subject

- matter jurisdiction exists. Texas Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3d
217 , 226 (Tex. 2004). We construe the pleadings liberally in favor of the plaintiff. Id. I f , as here, a plea to the jur isdiction cha llenges the existence of jurisdictional facts, the trial court may consider evidence and must do so when necessary to resolve the jurisdictional issues raised. See
i d. at 227 . When the defendant ’ s plea to the jur isdiction challenges the exis tence of jurisdictional fact s that implicate the mer its of the plaintiff ’ s claim and the defendant presents evidence to support its plea, the trial court is required to review the relevant evidence to det ermine if a fact issue exi sts. See id. If a fact i ssue ex is ts, the plea cannot be granted, and the fact question will be resolved by the factfinder. I d. a t 227

– 28.6 Although the City is a governmental un it t hat would typically enjoy immunity from suit, t he Texas Tort Claims A ct ( TTCA) expressly wai ves government al immunity when conditions are met, including releva ntly here for premises d efects. See Tex. Civ. Prac. & Rem

. Code § § 101. 021 (governmental unit ’ s liability for injury or death caused by condition or use of tangi ble or personal pro perty) , . 02 2 (duty owe d by governmental un it for premise and spec ial defects) , .025 (w aiver of gove rnmental immunity) ; Sam pson , 500 S.W.3d at 384

. In four issues, the City argues t hat the TTCA does not apply to waive its immunity under the facts alleged a nd

ev idence adduced.
W

as the dislodged tree grate a special defect? In its first issue, the City contends that the dislo dged tree grate

— to the ext ent it is

a premises de f ect at all

— is merely a n ordinary defe ct rather than a special def ect. The distincti on is signi ficant beca use the TTCA imposes a higher duty on a governmental un it for the existence of special defects versu s ordinary defects. See Tex. Civ. Prac . & Rem. Co de § 101.022 (a), (b) ; Frale y v . Texas A&M Univ. Sys. , 664 S.W.3d 91, 98 (Tex. 2023 )

. For a
spe cial defect , the governmental unit o wes the s ame du ty that a pr ivate landowner owes an invitee : to warn of an u nreasonable risk of harm th at the premises conditi on creates when the governmental owner knows or reaso nably should know o f that co ndi tion. Fral ey , 664 S.W .3d at
98 ; see also United Supermarkets, LLC v. McIntire , 646 S.W.3d 800, 802 (Tex. 2022) ( re cognizi ng that property owner owes invitee duty to “ make safe or warn against any concealed, unreasonably dangerous condit ion s of which [it was] , or rea sonably sho uld [have been], a ware but [of] which [ invi tee ] was not ” ) (citations omitted) )

. For a n ordinary def ect, t he govern mental uni t ’ s duty is the same as a private landowner to a licensee: to war n of a dangerous conditio n or to make the condition rea sonably saf e, but only when t he g overnm ental unit is aware of the7 dangerous condition and the licensee is not. Id. Whether a premi ses defect is special or ordi nary is a question of law. Fraley , 664 S.W.3d at 98 ; see also Te xas Dep ’ t of T ransp. v. Per che s , 388 S.W. 3d 652, 655 ( Tex. 2012) ( noting that app ellate courts review de novo tr ial court ’ s determi natio n of spec ial

- defect status)

. Special defects includ e “ excavations or obstru ctions on highways, roads or
streets. ” T ex. Civ. Prac. & Rem. Code § 1 01 .022(b) ; Fr aley , 664 S .W.3d at 98. The supreme court has h eld th at a special defect must b e “ of the same kin d or class ” as ex cavations or obstructions. Frale y , 664 S.W.3d at 98 (cit ing County of Harris v. Eaton , 573 S.W.2d 177, 179 (Tex. 1978)). Facto rs helpful to ascertaini ng whethe r a premises condition is a special defect include the condi tion ’ s size, wheth er the condition unexpectedly impairs an ordinary user ’ s ability to travel on the road, and whether the condition p resents an unexpected and unus ual danger to ordinary users of the road. Id

. Deciding whether an alleged defect is within the special

- defect s class is determined on a case

- by

- case basis. Ci ty of Austin v. Vykoukal , No. 03

- 16

- 00261

- CV, 2017 WL 2062259, at *3 (T ex. App.

— A u stin May 10, 2017, pet. de nied) (mem. op.). Conditions can be special defects only if they pose a thre at to the ordinary users of a par ticular roadwa y, who follow the nor mal course of travel. Univ ersity of Tex . at Austin

v. Hayes , 327 S.W.3d 113, 116 (Tex. 2010). For purposes o f the TTC A, a “ roa d ” may include a sidewalk, and an ordinary user of a “ roadway ” may include a pedestrian on the sidewalk. City of
Austin v. Credeur , No. 03

- 19

- 00358

- CV, 2021 WL 501110, at *3 (Tex. App.

— A u s tin Feb. 11, 2021, no pet.) (mem. op .) ; Ci ty of A ustin v. Rangel , 1 8 4 S.W.3d 377, 383

– 84 ( Tex. App.

— Austin 2006, no pet.) ( emplo ying Section 541.302 of the Transportation Code ’ s definition of8 sidewalk : “ the portion of the street that is between a curb or l ateral line of a roadway and the

a djacent propert y line and is in tended for ped estrian use ” )

. In Rangel , this Cou rt determ ined that a hole in the sidewalk caused by a n absent

cover for a wa ter

- meter box was a special defect. 18 4 S.W.3d at 384. The hole in Rangel was an eleven

- inch open ing located abo ut twenty fee t from the curb and two feet from the building adjacent to the sid ewalk. Id. Concluding that a “ normal user of the roadway ” in that situation would be a pedestrian on the sidewalk , who would n ot expect to encounter a hole of t hat size on a d owntown public sidewalk, th is Court determined that the uncovered water

- meter b ox was a
spec ial defect that posed an “ unexpected and unusua l d anger to ordinary user s of the sidewalk. ” Id. (citing State Dep ’ t of Highways v. Payne , 838 S.W .2d 23 5, 23 8 (T ex. 1992)). The dislodged tree grate here created a very similar hazard to t hat in Rangel. T he photogr aph above depicts t hat t he entirety of t he tree grate occup i es a significant portion

— more than half

— of th e sidewalk ’ s width , with the tree trunk at the cen ter of the grate constituting what appears to be a mere 10

- 15% of the tree grate ’ s total wi dth

. The h alf of the tree grate fur thest from the street had partially fallen into the ground below , creating a ga ping hole on the north side

. R ep orts of the grate ’ s simil ar displacement in previous years reveal that the ground below was about eleven inc hes below the paved sidewalk surface . Ordinary us e rs of the sidewalk include pedestrians, and a pedestrian would n ot expect to have to avoid walkin g o n the tree
gra tes (several of which appear along the same stre tch of sidewalk) when there are no warning signs advising them not to walk on t he grates and when the grates occupy more than half of the area between the cur b and the adjacent property line. Ordinary users of the s idewalk also would not expect for a large, deep hol e to appear in the middle of the sid ewalk without w arning , especially while walkin g along an unlit or poorly lit sidewalk at night

. See id. ; see H arris9 Cou nty v. Smoker , 934 S.W.2 d 714, 719 (Tex. App.

— Houston [1 st Dist.] 1996, writ denied ) ( holding that uncovered storm s ewer on portion of street that pedestri ans normally used due to ab sence of side walk constituted special defect, especially consider ing absenc e of streetl ights).
T h e City attempts t o distinguish Rangel by making several arguments: (1) t he tree grate was “ adjacent ” to the sidewalk beca use an “ ordinary user ” followi ng the “ nor mal course of travel ” would not have s t epped on the gr ate ; (2) the dislodged grate was more akin to an

“ impro p erly secured cover ” rather than a hole or excavation, see , e.g. , Credeur , 2021 WL 501 110, at *3 (ho lding that improperly sealed water

- m eter cover c reating uneven surface in grass near sidewalk was not special defec t) ; and (3) that th e dislodged gra te , unli k e a

“ sunken area ” of a sid ewalk, would have been “ readily apparent ” to a pedestrian , cf. City of Austin v. Furtado , No. 03

- 21

- 00083

- CV , 2021 WL 6194365, at *4 (T ex . A pp.

— Austin Dec. 31, 2021, pet. de nied) ( mem. op.) (h olding that su nken area of sidewalk w a s special defect in part because its extent of disrepair was not readily apparent fr om pede strian ’ s vantage )

. We are no t
p ersuaded by any of thes e arguments.
We have already determined that the undisputed allegations and evidence show that the di slod ge d tree grate was on the sidewalk, not adjacent to i t, and we are not persuaded by
t he City ’ s a rgument that the “ normal course of travel ” for pedestri ans requires them to avoid walking on tree grates, especially when a series of grate s occup y more than half the wid th of the sidewalk. Although the City a rgues that Nelson should have avoided walking on the grates be cause the tree itself created a “ natura l barricade ” and an “ obstruction ” to the normal co urse of travel, the photo graph dep icted above belies this content ion : t he large majority of the tree grate ’ s width

— assuming it is not dislo dged a s it was on the date of Nelson ’ s injury

— w ould normally provid e a mple walking surface area for a pedestrian to e asily avoid walking into the tree. Cf.10 Hayes , 327 S.W.3d at 116 (holding that metal chain stretched acr oss driveway and located behind large barricade placed t o prevent veh icle access was not special defect be cause users of road in n ormal course of travel , including bicycli sts, should tur n back or take alternat e route when confronted with larg e barricade rather than travel ling beyond barricade )

. As for the Ci ty ’ s second a rgument, Crede ur and the other “ impro perly secured

cover ” cases the City cites are distinguishable bec ause , quite sim ply, th ose cases did not involve partially collapsed covers that created a ho le existing a t the time of the injury

. Instead, they involved manhole covers that wer e im properly seated and that then shifted upon the pedestrian or driver ’ s cont act. See City of Houston v. Crook , No. 06

- 21

- 00036

- CV , 2021 WL 480445 3, at * 7 (Tex. A pp.

— Texarkana Oct. 15, 2021, no pet.) ( m em. op.) ( notin g distinction between uncovered manholes (which ma y constitute special defects because t hey fall within limited cla ss of “ excavati ons ” ) and improperly se a ted manhole covers (which m ay constitute at most only ordinary defects ) ) ; id. ( con cluding there was no fact question regarding whether manhole was compl etely open at time of accident or whether its cover was merely pa r tially unseate d and thus trial court s hould have gra nted plea to jurisdiction ) ; City of Lancaster v. LaFlore , No. 05

- 17

- 01443

- CV, 2018 WL 49 07843, at *5 (T ex. App.

— Dallas Oct. 10, 2018, no p et. ) (mem. op.) (ho lding that partially dislodged and “ protruding ” manhole cover that allegedly caused d river to lose control of v eh icle when he drove over it was not special defect); City of Arlingto n v. S .C. , No. 02

- 17

- 00002

- CV , 2017 WL 3910992, at * 3

– 5 (Tex. App.

— Fort Worth Sept. 7, 2017, no pet. ) (mem. o p .) ( conclud ing that imp rop erly sized ma nhole cover on sidewalk that rota ted ver tically when plaintiff stepped on it was not special defec t )

. The dislodged , p ar tially collap sed tree grate here w as more like the cases involving completely missing manhole
or water

- m eter covers than t h ose with slightly offse t or uneven ly seated covers. Moreover, in11 Credeur t he imp roperly secured water

- meter cover was in the grass adjacent to the sidewalk, and an ordinary use r of t he sid ewalk would not be expec ted to step off th e sidewal k and into the
grass. See Crede ur , 202 1 WL 501110, at * 3

. Finall y, we disagree with the City that the dislodged tree grate should have be en

“ readily apparent ” a nd “ open and o bvious ” to Nelson. T he allegations and evidence establish that it was nighttime and t he area was poorly lit. As we h ave already expl ained, a pedestrian following the ordinary path of travel on the sidewalk, especia lly under low

- light conditions, would not expect to have a hole of this size suddenly appear in front of them

. Cf. Furtad o , 2 021 WL 6194365, at *4 (noting th at depth of sunken are a of sidewalk was not “ readily apparent ” to pedestrians walking in same direction as pl aintiff) ; Rangel , 184 S.W.3d at 384 ( noting, in opinion that does not recoun t time of day or lighting conditions at time o f plaintiff ’ s injury, tha t “ nor mal user of ” sidewalk would “ not expect to encounter a hole of this si ze on a downtown public sidewalk ” )

. F or pede strians walking southbound as Nelson was, the d islodged grate creates a sudden and deep hole while appea ring t o pro trude just a n inch o r two from the ground on the opposite end

. We conclude that based on the allegations and evidence in t he record, the dislodged tree grate was a special defect

. We acc ordingly overrule the City ’ s first iss ue. Did th e City have ac t ual or constructive knowl edge of the dislodged tree grate?
I n its second issue, the City contends that even if the di slodged tree grate was a special defe c t, Nelson did no t raise a fact issu e on whether the City knew or should h ave known of it

— that is, that the City h ad actual o r constructive knowledge. See Furtado , 2021 W L 6194365, at * 6 ; Rangel , 184 S.W.3d at 385

. A plaintif f can allege facts supporting constructive kno wledge with facts s howing either that the defendant cause d the allege d defect to12 e xist or that the alleged d efect e xisted for so long that the defendant had a reasonable oppor tunity to dis cover it , as w ell as wi th facts from which a rea sonable inference could be drawn that th e d efe ndant should have known about th e allege d de fect before the plaintiff ’ s injury. F urtado , 2021 WL 6194365, at * 5

– 6

. Such facts may be alleged in the plainti ff ’ s petition or ma y appear in the record evidence attached to the plea to the jurisdiction o r response. See id

. at *6. Additionally, a pl ain tiff can est ablish actual notice of a dangerous condition with circumstantial evidence. City of Gainesville v. Sharp , No. 02

- 22

- 00061

- CV, 20 22 WL 11456903, at *7 (Tex. App.

— Fo rt Worth Oct. 20, 2022, no pet .) (mem. op.). The s upreme court has recogniz ed th at the lon gstanding “ time

- notice rul e ”

—

“ f

irmly rooted in our jurisprudence ”

— requires proof that a dangerous condition existed for some
l ength of time before a premises owner may be charged with constru ctive notice thereof.
Wa l

- Mart Stores, Inc. v. Re ece , 81 S.W.3d 812, 815 (Tex. 2002)

. Wha t constitutes a “ reasonable time ” for a premises owner to disco ver a dangerous condition will vary d ependi ng on the fact s and cir cumstances presented, and proximity evidence (i.e., how close to the condition an owne r ’ s employee is ) “ will often be relevant to the analysis. ” I d. at 816.
Here , there was evid ence that the tree grate had been in its disl odged and partially collapsed state for at least fifty days and p ossibly at least eighty days ( acc ording to the Feb ruary 2022 Goog le M aps photograph that Nels on “ pulled directly from the internet ” ). Nelson allege s that the City had removed a b ench that ha d been located directly to the south of the tree grate during the period when the grate was in its dislodged state, and that over ten different traffic

enforc ement officers had been on the same block issuing over seventy tickets in the months
prece ding her inj ury

— both of which demon strate physical pr oximity of several C ity employees d

uring the period the grate was dislodge d. Th e rec ord shows that the tra ffic

- e nforcement officers13 are employees of the City ’ s Tr anspor tation Department, and that the Right of W ay Management Division ( within the Austin Transportation Department ) maintains safety for sidewalks. Further , there was evi de nce of prior reports t o the City of that particular grate being similarly dislodged or displaced , the most recent being only a year before Nel son ’ s injury. The City argues that it is impractical and unreasonable for it to monitor the “ vast network of s idewa lks ” in the City , which span 2,800 miles , and that conducting regular inspections of all the sidewalks would require the City to inspect them at a rate of a bout 56 miles per day to identify a p articular dislodged tree grate in 50 days. However, this par ti cular grate (1) had actually collapsed on the south side , creating a deep hole on that side ; (2) was rel ati vely large

— occupying more than 50% of the sidewal k; and (3) was on a centrally located downtown

s idewalk just a few blocks from the Unive rsity of Tex as at Austin

. D ue to these f actors, the dislodged grate ’ s dangerous condition w ould have been conspicuous to City employ ees during daylight hours (when most, if not all, of the parking tickets were issued) , and a condition ’ s conspi c uousness reduces the ne cessary time period to establ ish constructive notice. Wal

- Mart
S

tores, Inc. v. S pates , 186 S.W.3d 566, 567 (Tex. 200 6). And we have alre ady noted Nel son ’ s alle gations and evid ence of City emp loyees having been in the immediate vicinity i n the few months leading up to her inj ury , inc luding an inspection of the premises at 2100 Rio Grande in January 2022 , and pr evious di slodgment of this tree grate

. Our ultimate inquiry i n revi ewing a trial court ’ s ruling on a plea to the jurisdiction is whether the plain tiff ’ s p leaded and un

- negated facts, taken as true and liberally construed with an eye to the pleader ’ s i ntent, would affirmat ively demonstrate a claim within the tria l court ’ s subject

- matter jurisdiction. See Brantley v. Texas Youth Comm ’ n , 365 S.W.3d 89 , 94 (Te x. App.

— Austin 2011, no pet.)

. W e conclude that Nelson met this burden on the issue of the City ’ s14 constructi ve knowledge and that her specific allegations , su pp orted by evidence , created a fact iss ue on whether the City knew or should h ave known o f the tr ee grate ’ s condition

. Cf. Furtado , 2021 W L 6194365, at * 6 (c oncluding that plaintiff h ad not referenced any evidence to support her mere assertion that City h ad constructive knowledge of sunken sidewalk , including h ow long condition had existed, b ut deter mining that plaintiff could cure defect by repleading) ; Rangel , 184 S.W.3d at 385 (hold ing that plaintiff had not created fact issue on City ’ s constructive kno wledge because nothing in record sho wed how long li d had been missing , there were no
repo rts rega rding the missi ng lid in two years , and no other recent service reports of any kind in

area )

. We accordingly overrule the City ’ s second issue.
Does the T TCA ’ s “ discretionary function exception ” apply ? As best we can understand the City ’ s ar gument o n its third issue ( totalin g half a page of its brief ’ s argument section) , the City conten ds that its decision to use removable ,

u nsecured tree grates was a dis c retionary de sign decision for which the TT CA expressly does not waive its immunity . It exp lains that w hen the tree grates “ become dislodged, this is not because they have been ‘ neglige ntly repaired ’ ” but because “ they are designed to be removable. ” It c ites Section 101.056 of the TTCA, which prov ides ,

This chapter does not apply to a claim based o n: (1) t he failure of a govern mental unit to perform an act that the unit is not required by law to perform; or
(2) a governme ntal unit ’ s decision not to pe rform an ac t or on its failure to make a decision on the performance or nonperf ormance of an act if the law lea ves the performance or nonperformance of the act to the discretion of the governmental unit.15 Tex. Civ. Prac. & Rem. Code § 101.056

. We fail to see how t his statu te applies under the circum stances, and the City does not further explain its si gnifican ce except to cite Tarrant Re gion al Water Dist rict v. Johnson , 572 S.W.3d 658, 670 (Tex. 2019 )

. But that case , while re affirming the rule that governmental bod ies are immu ne from liability for the discretionary d ecisions they make concerning the de sign of public works , recognizes tha t a governmental bod y ’ s failure to maintain a public w ork consistent with its design is not necessarily discretionary. See id. Thus, to t he extent that the City is arguing that its decision to install removable grates on sidew alks is protected b y immunit y, such argument is inapposite to Nelson ’ s premises

- liability clai m based on the special defect created by the dislodged gr ate. Nelson is not complaining about the City ’ s d e sign decision to employ removable grates. She is comp laining that the City failed to warn citiz ens about or to remedy an unreaso nably dang erous condition of whi ch it had actual or constructive knowledge

. In other words, she all ege s that the City negligently maintained the grate at issue or negligent ly imple mented its decision to emplo y the grates. See Stephen F. Austin State Univ.

v. Flynn , 228 S.W.3 d 653, 657 (Tex. 200 7) (distinguishing between p olicy

- l evel decisions that pertain to de sign of public work s or fo rmulation of policy and operational

- le vel deci sions that pertain to maint e nance of public work s or negligent implementation of policy ). The City ’s assertion that it in tentionall y designed the tree grates to be removable does not , without more, bring Section 101.056 into play. W e overrule the City ’ s thir d issue.
W

as the dislodg ed g rate unreasonably dangerous as a matter o f law? In its fourth issue, t he City argues that the dis lodged tre e grate is a “ commonplace hazard ” that is not unreasonably dangero us as a m atter of law and that the tria l court therefore

s h ould hav e granted its plea to the jurisdiction

. See United Supermarkets , 646 S.W.3d at 80216 ( rec ognizing that although whether specific con dition is unr e asonably dangerous is “ ordinarily a fact question, ” supreme court ha s h eld that “ some parti cularly innocuous or commonpla ce h azards ar e not unreasonably dangerous as a mat ter of law ” ) ; see id. at 802 n.4 (noting that proof of “ u n r easonably da ngerous condition ” is element of invitee ’ s premises

- lia bility claim)

. Exampl es the supreme court c ited i n United Superma rkets as “ part icularly innocuous or commonplace haz ards ” i nclude patches of ice on a sid ew alk, a pedestrian ramp, naturally accumulated m ud, and a wet floor in front of a self

- serve soft

- drin k display. See id. at 80 3. In United Supe rmarke ts , the supreme court simi larl y determined that a 3 /4

- inch divot in the pavement of a parking lot was “ p rofoundly ord inary , ” did not pose an unreasonab le risk of harm, and was not unu sual rela tive to other small pavement defects

— “ [t]iny sur face defec ts in pavement are ubiquitous and na turally occurring. ” Id. Factors courts may consider in m aking the “ un rea sonably dange rous ” determination include the co ndition ’ s size and whether it is clearly marked, whether it had pr eviously caused injuries or gener ated c omplaints, whether it substant ially differe d from conditions in the same class of object s, and whether i t was natura l ly occurring. Id.
In contr ast to the divot in United Supermarkets and the exam ples cited therein , and viewing the pleadings a nd evi dence in Nelson ’ s favor, the tree g rate occ upied at l east 60% of the sidewalk , and t he hole created by i ts dislodgement a ppears from the photograph s to be at least a foot deep and between eighte en inches wide and several feet long (a service

- request report from May 2021 indicates that the s ame dislodged tree grate had created a “ 13in h ole , ” that in the dark “ somebody can fall in an d hurt themse lves , ” and that the dis lodged grate was rec tified by the City a month later ). No signs or markings warn pede strian s not to walk on the gr ates ( despit e multiple successive tree grates being installed on the same sidewalk), the other grates on th e17 block at the relevant time appeared to be level with the sidewalk and were not dislod ged, and at l east two prior repor ts of the grate ’ s dislodg ment or partial collapse had been filed with the City withi n a bou t a year of Nelson ’ s fall

. T he dislodged tr ee grate is not i nnocuous or commonplace , and w e decline to hol d as a matter of law that it is not unreasonably dangerou s

— such determination is for the factfinder

. W e accordingly overrule the City ’ s fourth issue.

CONCLUSION Havin g overruled the Cit y ’ s i ssues , w e affirm the trial court ’ s denial of th e City ’ s
p lea to the jurisdiction

.

_____________________________________ _____ Thomas J. Baker , J ustice
B efore Justices Baker, Triana, and Smith Affirmed Filed: December 22, 2023