REVERSE, RENDER, and DISMISS; and Opinion Filed July 8, 2019.

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-18-00753-CV

CITY OF RICHARDSON, TEXAS, Appellant

V.

VAL PHELPS, Appellee

On Appeal from the County Court at Law No. 2

Dallas County, Texas

Trial Court Cause No. CC-17-01642-B

MEMORANDUM OPINION

Before Justices Brown, Schenck, and Pedersen III

Opinion by Justice Brown

Val Phelps sued the City of Richardson, Texas, after he was injured while riding his bicycle 

in a designated bike lane. Phelps alleged there was a hazardous condition in the bike lane that was 

either a premises defect or a special defect. The City filed a plea to the jurisdiction, asserting that 

governmental immunity barred Phelps’s claims. In this interlocutory appeal, the City challenges 

the trial court’s denial of its plea. We conclude the City established as a matter of law that its 

immunity was not waived. Accordingly, we reverse and render judgment dismissing the case for 

lack of subject matter jurisdiction.

BACKGROUND

On the morning of October 23, 2016, Phelps was riding his bicycle in the City with a group 

of about eighteen cyclists in a designated bike lane on Owens Boulevard. Pictures show the bike 
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lane was positioned in between a lane to the right for parked cars and a lane to the left for moving 

vehicles. Phelps alleged there was a “lip or ‘heave’” in the bike lane which ran in the direction in 

which the cyclists were traveling. As a result, the left side of the bike lane was higher than the 

right. Phelps had not been on the road before and was unaware of the lip. He moved from right 

to left to avoid a parked car and was “instantly thrown to the ground and injured.” Phelps does 

not remember the crash or the few minutes leading up to it. Phelps alleged the City was liable 

under two alternative theories: (1) the condition of the bike lane was a premises defect, or (2) the 

condition constituted a special defect. Phelps sought to recover for property damage among other 

things. 

The City filed a plea to the jurisdiction. The City asserted the alleged defect was not a 

special defect and asserted it did not have actual knowledge of the condition, which is required for 

a premises defect. In support of its plea, the City submitted evidence, including Phelps’s 

deposition and testimony from City employees. In response, Phelps acknowledged that had the 

defect been on a normal street, it would not be a special defect. He argued that because the defect 

was in a bike lane, it was a special defect because it created an unexpected and unusual condition

for cyclists. He also asserted the City had actual knowledge of the premises defect based on 

previous repairs it made to the area and because of a previous complaint made by a cyclist named 

Mark Ramsey. The trial court denied the City’s plea to the jurisdiction.

1

 The City raises four 

issues challenging the trial court’s ruling.

GOVERNMENTAL IMMUNITY

Governmental entities are immune from suit absent legislative consent. Tarrant Cty. v. 

Bonner, No. 18-0431, 2019 WL 2256509, at *6 (Tex. May 24, 2019). If a governmental unit has 

 

1 The City initially filed a document titled, “Defendant’s Initial Plea to the Jurisdiction and Tex. R. Civ. P. Rule 69 Pleading” in which it 

raised its argument regarding the lack of a special defect. The City later filed a motion titled, “Defendant’s Dispositive Motion and Tex. R. Civ. P. 

Rule 69 Supplemental Pleading.” This second motion addressed both the special defect and the premises defect and made clear it was intended as 

a dilatory plea seeking dismissal of the case for lack of subject matter jurisdiction. The order from which the City appeals denied its “Dispositive 

Motion.” We refer to the City’s motion as a plea to the jurisdiction.
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immunity from suit, a trial court lacks subject matter jurisdiction. Rusk State Hosp. v. Black, 392 

S.W.3d 88, 95 (Tex. 2012). The City’s immunity from suit for tort claims is waived to the extent 

the tort claims act creates liability. TEX. CIV. PRAC. & REM. CODE ANN. § 101.025(a). The Act 

provides a limited waiver of immunity for claims arising from a condition or use of real property. 

Id. § 101.021(2); Zaidi v. N. Tex. Tollway Auth., No. 05-17-01056-CV, 2018 WL 6426798, at *2 

(Tex. App.—Dallas Dec. 6, 2018, no pet.) (mem. op.). The Act recognizes potential liability for 

two types of dangerous conditions of real property, premises defects and special defects. TEX.

CIV. PRAC. & REM. CODE ANN. § 101.022; Chambers v. Tex. Dep’t of Transp., No. 05-11-00519-

CV, 2012 WL 1744706, at *3 (Tex. App.—Dallas May 16, 2012, pet. denied) (mem. op.). The 

Act imposes different standards of care depending on whether the condition is a premises defect 

or a special defect. TEX. CIV. PRAC. & REM. CODE ANN. § 101.022; Zaidi, 2018 WL 6426798, at 

*3. Whether a condition is a premises or special defect is a question of law. State v. Burris, 877 

S.W.2d 298, 299 (Tex. 1994); Chambers, 2012 WL 1744706, at *3. 

A governmental unit may assert its immunity from suit through a plea to the jurisdiction 

which challenges the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. 

Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). We review the trial court’s ruling on a plea 

to the jurisdiction de novo. City of Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 

566, 575 (Tex. 2018). Here, the City’s jurisdictional plea challenged the existence of jurisdictional 

facts with supporting evidence. In such cases, the standard of review mirrors that of a traditional 

summary judgment. Alamo Heights, 544 S.W.3d at 771. To avoid dismissal, a plaintiff must raise 

at least a genuine issue of material fact to overcome the challenge to the trial court’s subject matter 

jurisdiction. Id. In determining whether a material fact issue exists, we must take as true all 

evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts 

in the plaintiff’s favor. Id. 
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Special Defect

In its first issue, the City contends the trial court erred in denying the plea to the jurisdiction 

regarding Phelps’s special defect claim because the alleged defect was not a special defect. We 

agree.

If a claim arises from a special defect, the governmental unit owes the same duty to warn 

that a private landowner owes an invitee. Chambers, 2012 WL 1744706, at *4. That duty requires 

a premises owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created 

by a condition of which the owner is or reasonably should be aware. Id. The Legislature has not 

defined “special defect,” but likens it to conditions “such as excavations or obstructions on 

highways, roads, or streets.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(b). The supreme 

court has construed special defects to include other defects of the same kind or class as the two 

expressly mentioned in the statute. See Texas Dep’t of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 

2009) (per curiam). In determining whether a particular condition is like an excavation or 

obstruction, we consider the following: (1) the size of the condition; (2) whether the condition 

unexpectedly and physically impairs an ordinary user’s ability to travel on the road; (3) whether 

the condition presents some unusual quality apart from the ordinary course of events; and (4) 

whether the condition presents an unexpected and unusual danger. Univ. of Tex. at Austin v. Hayes, 

327 S.W.3d 113, 116 (Tex. 2010) (per curiam). 

The class of special defects contemplated by the statute is narrow. City of Denton v. Paper, 

376 S.W.3d 762, 766 (Tex. 2012) (per curiam); Hayes, 327 S.W.3d at 116. It does not include 

common potholes or similar depressions in the roadway. Paper, 376 S.W.3d at 766. Such 

irregularities in the roadway are unfortunately to be expected. Id. Typically they will not present 

an unusual danger to the traveler. Id. While something like a “ditch across the highway” is a 
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special defect, a two-inch drop in the roadway is not. Hayes, 327 S.W.3d at 116 (citing Harris 

Cty. v. Eaton, 573 S.W.2d 177, 178, 180 (Tex. 1978) (oval-shaped hole, varying at places from six 

to ten inches in depth and covering more than ninety percent of width of highway was special 

defect)). Variations in public roadways of a few inches are not the same as the excavations or 

obstructions mentioned in the Act. Paper, 376 S.W.3d at 765. 

The evidence showed that at the time of Phelps’s accident, the difference in height between 

the left side of the bike lane and the right side was approximately two inches. The alleged defect 

was at least twenty feet long; Phelps testified in his deposition that he was told he “went over 20 

feet of crack.” Some cyclists in Phelps’s group warned of the crack. Phelps was certain he did 

not hear their warnings because if he had he would have done something to avoid the crack. Phelps 

stated that had he known of the defect, he could have easily avoided it. Phelps did not see the 

crack because he was riding next to and behind others. 

In a case involving a motorcyclist who had an accident as he changed lanes, the supreme 

court held that a two-inch difference in elevation between traffic lanes on a roadway is not a special 

defect. City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). We are not persuaded that the 

result should be different in this case because it involves a bicyclist in a bike lane. There was no 

evidence the lip presented a condition like an excavation or obstruction for cyclists. The other 

cyclists with Phelps avoided the defect. Moreover, Phelps himself admitted that had he known 

about the condition, he could easily have avoided it. A condition that can be easily avoided is not 

in the nature of an excavation or obstruction on the roadway. See City of Austin v. Vykoukal, No. 

03-16-00261-CV, 2017 WL 2062259, at *4 (Tex. App.—Austin May 10, 2017, pet. denied) (mem. 

op.) (overgrown vegetation in bike lane was not special defect where vegetation could be avoided 

by cyclists without leaving lane); Texas Dep’t of Transp. v. Womac, No. 13-11-00460-CV, 2012 

WL 4854729, at *3–4 (Tex. App.—Corpus Christi–Edinburg Oct. 11, 2012, no pet.) (mem. op.)
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(caved-in area spanning about one-third of bike lane not special defect). As a matter of law, the 

alleged defect in this case was not a special defect. The trial court erred in denying the City’s plea 

to the jurisdiction as to Phelps’s special defect claim. We sustain the City’s first issue.

Premises Defect

In its third issue, the City challenges the denial of its plea to the jurisdiction regarding 

Phelps’s premises defect claim. The City asserts it retains immunity because it lacked actual 

knowledge of the alleged defect. Its position is that it knew of and repaired the vertical separation 

in the roadway prior to Phelps’s accident and was unaware the condition had returned.

Under the tort claims act, when a claim arises from a premises defect, the governmental 

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

unless the claimant pays for the use of the premises. TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.022(a). The duty owed to a licensee requires that a landowner not injure a licensee by 

willful, wanton, or grossly negligent conduct, and that the owner use ordinary care to warn a 

licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and 

the licensee is not. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016). Absent 

willful, wanton, or grossly negligent conduct, a licensee must prove the following elements to 

establish the breach of a duty owed to him: (1) the condition of the premises created an 

unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition; (3) the 

licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to 

protect the licensee from danger; and (5) the owner’s failure was a proximate cause of injury to 

the licensee. Id. To prove actual knowledge, a licensee must show that the owner actually knew 

of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous 

condition could develop over time. Id. at 392. Courts generally consider whether the premises 
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owner has received reports of prior injuries or reports of the potential danger presented by the 

condition. Reed, 258 S.W.3d at 622. 

To show it lacked actual knowledge of the condition of the bike lane at the time Phelps 

was injured, the City relied on the deposition and affidavit testimony of several of its employees. 

Mark Titus, the City’s transportation engineering manager, testified that to the best of his 

knowledge, no one in his department drove the road regularly. Eric Robison, the City’s street 

maintenance superintendent, testified that he is the person responsible for street repairs and 

maintenance. Unless matters are reported to him, the City has no knowledge it can act on. Robison 

had no knowledge of the defect made this basis of this lawsuit prior to the incident. Robison 

reviewed the City’s records and they reflect that on October 23, 2016, any defects in the area had 

been repaired sufficiently. According to Dave Carter, assistant director of development services 

and transportation, if someone with the City had seen this problem before the accident, they would 

have reported it to streets and had it fixed. 

The City had been aware in 2014 of a defect in the same area of the bike lane, but the City’s 

evidence showed it repaired that defect prior to Phelps’s crash. The City did not have a work order 

for the repair and could not pinpoint when it was done. Carter said it was “[s]ometime after the 

bicycle lane was installed, late August or after in 2014.” The City repaired the hazard with an 

asphalt patch. Robison believed the patch was older than the shift because the patch “coloration” 

did not indicate a new patch. Carter indicated that following the complaint from cyclist Ramsey, 

“streets went out and did some asphalt work.” Carter believed the work was to level vertical 

separation. He stated that when they put the asphalt in, it would have been level. The pavement 

had dropped since that repair was done. According to Carter, defects in roadways can happen very 

gradually or overnight. 
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Phelps argues there is ample evidence the City had actual knowledge. In his response to 

the City’s jurisdictional plea, he asserted that a “prior repair showed the City was aware of the 

hazard where the incident occurred at least 2 years prior.” Phelps relied on a photo taken the day 

of the accident that shows a “tar patch” done after the bike lane was created. He also relied on the 

testimony of City employees Carter and Titus showing their awareness and repair of defects at an 

earlier time. But evidence the City had repaired the bike lane prior to Phelps’s accident does not 

show the City’s actual knowledge of the condition of the lane when Phelps crashed in October 

2016. It shows merely the City’s knowledge of the possibility that a dangerous condition could 

develop over time, which is insufficient. See Sampson, 500 S.W.3d at 392. 

Phelps also contends the City had actual knowledge of the condition based on the previous 

complaint from Ramsey. Over two years before Phelps’s accident, on July 16, 2014, Ramsey emailed Carter about the bike lane on Owens Boulevard and attached a photograph. Ramsey told 

Carter he appreciated the attentiveness to his concerns about the road surface on the bike lane and 

had noticed that crews applied asphalt to some cracks. Ramsey said however that the “biggest 

hazard” had not yet been worked on. He explained that the “right half of the two sections of 

concrete has risen up above the left half, creating a gap large enough to trap a bicycle tire.” 

Phelps does not argue that the City failed to repair the defect that was the subject of 

Ramsey’s e-mail. Phelps contends that when the City made that repair, the defect that caused him

to crash existed and the City would have certainly seen it. As proof, Phelps relies on a 2018 

affidavit from Ramsey in which he provided additional information about the 2014 condition of 

the bike lane. In his affidavit, Ramsey stated there were two defects in the bike lane in 2014—a 

large gap between sections of concrete and a height difference between two sections of pavement. 

He said the gap defect was repaired in the fall of 2014, but the height defect was not. Ramsey 

further stated in the affidavit that the photo he sent the City in the summer of 2014 depicted the 
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gap defect, but did not show the area where the height difference defect was. Nevertheless, he 

said it was his intent to indicate cycling safety hazards along the whole 2300 block of Owens, not 

just the area in the photo. Ramsey stated that when the City repaired the gap defect, it “certainly 

would have been aware of the height defect that was just a few yards” away. 

The Ramsey evidence does not raise a fact issue on actual knowledge. Ramsey’s e-mail 

informed the City in July 2014 about one defect. The City repaired that defect before October 23, 

2016. Phelps’s reliance on Ramsey’s later affidavit is unavailing. That Ramsey intended to inform 

the City of a different “height difference defect” not mentioned in his e-mail or depicted in the 

photo he sent is not relevant to the issue of actual knowledge. Nor is evidence that the City “would 

have been” aware of the height difference defect because it was a few yards away from where it 

made other repairs. Actual knowledge, rather than constructive knowledge, is required. Zaidi, 

2018 WL 6426798, at *3. At most, Phelps’s evidence shows constructive knowledge. Viewing 

the evidence in the light most favorable to Phelps, he has not raised a fact issue on the City’s actual 

knowledge of the dangerous condition. The City established it was immune from Phelps’s 

premises liability claim and the trial court erred in ruling otherwise. We sustain the City’s third 

issue.

We need not address the City’s two remaining issues. In issue two, the City argues the trial 

court erred in denying its plea to the jurisdiction regarding Phelps’s claim for property damage. In 

his appellate brief, Phelps concedes that immunity was not waived for his property damage claim. 

See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)(A) (governmental unit liable for property 

damage arising from operation or use of motor-driven vehicle). In issue four, the City contends 

the trial court erred in denying its plea to the jurisdiction regarding its premises liability claim 

because open and obvious conditions are not actionable. We have resolved Phelps’s premises 

liability claim on other grounds.
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We reverse the trial court’s order denying the City’s plea to the jurisdiction and render 

judgment dismissing Phelps’s claims for lack of subject matter jurisdiction. 

180753F.P05

/Ada Brown/

ADA BROWN

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

CITY OF RICHARDSON, TEXAS, 

Appellant

No. 05-18-00753-CV V.

VAL PHELPS, Appellee

On Appeal from the County Court at Law 

No. 2, Dallas County, Texas

Trial Court Cause No. CC-17-01642-B.

Opinion delivered by Justice Brown, 

Justices Schenck and Pedersen III 

participating.

In accordance with this Court’s opinion of this date, the trial court’s order denying 

appellant’s plea to the jurisdiction is REVERSED and judgment is RENDERED that: 

The case is DISMISSED for lack of subject matter jurisdiction.

It is ORDERED that appellant CITY OF RICHARDSON, TEXAS recover its costs of 

this appeal from appellee VAL PHELPS.

Judgment entered this 8th day of July 2019.