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

NO. 03

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- 00023

- CV

City of Austin , Appellant

v.
Carol Dawson , Appellee

FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D

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- GN

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- 002959 , THE HONORABLE CATHERINE MAUZY , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Carol Dawson sued the City of Au sti n for injuries she s ustained after t ri pping on a public sidewalk

. The City filed a plea to the jurisdiction , asserting that it is protected from suit
by gove rnmental immunity and that D a ws o n had failed to sufficiently plead a premises

- defect

c laim with in the scope of the Texas Tort Claim s Act ’ s waiver of immunity

. See Tex. Civ. Prac.

& R e m. Code § 101.021

. After the t rial court denied the plea, th e City filed th is interlocutory

a ppeal. S e e id. § 51.014(a)(8)

. In one issue on appeal, the City contends that the tria l court erred

in den ying its plea because Dawson did not establi sh that the sidewalk ’ s condition was a special

defect or that it was an ordinary defect of which the City had a ctu al k n owle dge

. B ecause we

conclude that Dawson ’ s factua l allegations are suf ficient to show that the City had ac tual
knowledge and that , a s a result, immunity is waived under the Act , we affirm

.2 BA CKGROUND
On December 12, 2019, a t approxim a tely 6: 10 p

. m., D a w son was “ walking home

near the intersection of Schieffe r Avenue, Cherrywood Road, and Wilshire B oulevard ” when she
tripped and fell over a portio n of the sidewal k that had what she describes as “ p rotrusions. ”
According to Dawson ’ s peti t ion , th e Ci ty “ h a d c ons tructed a [ handicap] ramp cutting through the

cur b on Schieffer Avenue, near the interse ction, at least sever al months befo re this i ncident.

Instead of a gradual flared side to the ram p, the ramp had concrete protrus ions similar to ‘ curb

ret urn s ’ whi c h r ose abruptly on both sides of the ramp to the hei ght of the str eet curb

. ” “ [T]he

c urb retu rns formed abrupt, trian gular obstructions in the si dewal k. ” Dawson pleaded that the

condition of the sid ewalk ramp constituted both a n or di n ary premi s e s

- def ec t an d a special defect

fo r which immunity is waived under the Tort Claims Act

. See id

. § 10 1.021 (providing for
waiver of immunity for inj ury “ caus ed by a condition or use ” of real property).

Dawson included a p hoto in her p et it io n , “ depict [i n g] th e s i dew alk at iss ue , as

seen in the daytime ” :3

Acc ording to her allegations , the photo shows that

t h e left

- most corn er of the bottom of th e obstruc tion was over 3 inches above the level of the sidewalk

. Th e bottom tria n gu lar obstructi o n w as 58 i n c hes l on g on its street si de; the upper tr iangular obstruction was 1 63 inches long on the street side. The length of the curb r amp, perpendicular t o the si d ewalk , was approx i mately 26 inches on the bottom obs truction and 37 inch es on the upper o bstructio n

.

In ad d it ion , w hen the incident occurred , the sidewalk was poorly lit ; th e protr usions were
composed of the same surface as the sidewalk; the “ cu r b ramp d id not have any warning

m ar kers, re flective markings, delin eators, or rai ling s to indicate the obstr u ctio n t o pe destrian s ” ;

and the “ tr i angular obstructions [were] uneven , [such that ] a ped estrian could cl ear one but

collide with the other. ” D awson , unable t o see the ramp , trippe d “ over the larger, upper
triangular obstruction sh own [in the phot o ] , causi n g h er se r i o us injuries, ongoing impairment,

and dis figurement. ” The City later reconstructed the curb ramp to eliminate the curb returns

.

The C i ty filed a ple a to the jurisd iction , a rguing that it was protected by

governmenta l immunity ; that Da w son h ad f ailed to aff

irmatively demonstrat e that her claim fell
within the scope of the Act ’ s waiver of immunity ; and that, conse quently, t he trial court lacked
jurisdiction over the dispute. F ollowing a hearing, the tr i al court denied th e City ’ s p lea , and thi s appeal followed.

STAN DARD O F REV IEW

Municipalities , as p olitical sub division s of the State, ar e protected from s u it by

g o vernmental immunity unless that immuni ty has been wai ved by the consti tution or by state

l aw

. City of Watau g a v. Gor don , 434 S.W .3d 586, 589 (Tex. 2 014)

. G o v ernm ental i mm unity , like sovereign immun ity, implicates a court ’ s subje ct

- matter jurisdi c tion and may be proper ly

asserted by a plea to the j ur isdiction

. See Ryder In t egrated L ogistics, I nc. v. Fa yette Cou n ty ,4

453 S.W.3d 922, 927 (Tex . 2015) ; T exas Dep ’ t of Parks & Wildlife v. M iranda , 133 S.W.3d 217 ,
226 (Tex. 2004)

. The bu rden is on the pl a intiff t o affirmatively demonstrate the trial court ’ s jurisdiction. Miranda , 133 S.W.3d at 225

. Therefore , when a g overnme nt defen dant challeng e s jurisdiction on the basis of immunity, the plaintiff must affirmatively demonstrate the court ’ s j urisdictio n by alle ging a valid waiver of immunity. R y der Integrated Logistic s , 453 S.W.3d

at 92 7

.
When , as i n th i s ca se, the d e fend ant ’ s pl ea t o the j ur isdiction c ha llenges the
sufficiency of the plaintiff ’ s pleadings , we determine if the pleader has alle ge d facts that

a f f i rmatively demonstrat e the court ’ s subject

- matt er jurisdiction

. 1 See Miranda , 133 S.W.3d

a t 226

. I n making t his determin atio n , w e con st ru e the plaintiff ’ s pleadings l ibe rally , taking all

factual asser tions as true, and look to the plain tiff ’ s int ent. Tex as Dep ’t of C rim. Justic e v. Rangel , 595 S.W.3d 198, 205 (Tex. 2020)

. If the pleadings d o n ot c ont ain suf fi c ient facts t o

af f irmative ly demonstrate the tria l court ’ s juris diction but do not contain i nc urable def ects in
jurisdiction, t he issue is one of pl eading sufficiency, and the plainti ff should be afforded th e opportunity to amend. Mira n da , 133 S .W.3d at 2 2 6

- 27

. I f th e pl ea din gs a ffir matively ne gate

the existence of jurisdi ction , then a plea to the juris diction may be granted with o u t allowi ng

the op p ortun ity to amend. Id. at 226

. “ Whether a ple ader has alleged facts that aff irmatively

demons tra t e a tri a l cour t ’ s subj ect matter ju risdictio n is a questio n of law reviewed de no vo. ” Id.

1 When a plea t o the jurisdictio n challeng es the exi sten ce o f juris diction al facts and those facts implicate the merits of the pl ain t iff ’ s claim, t he pa rty a s s erting the plea must overcome a burden similar to the mova nt ’ s burden on a traditional summar y

- judgment motion

. See Bacon v. Texas Histori cal Com m ’ n , 411 S

. W.3d 161 , 171 (Tex. App.

— A ustin 20 13, no pet. )

. Here , t he City n either ch a l lenge d the existence of any j u r i s dictional facts alleged by Dawson n or submit ted
ev ide nce in an at t empt to negate the exis tence of such facts.5 BACKGR OUN D LAW

The Tor t C laims Ac t provide s a limited waiver o f governmental immunity for

certain torts. S ee Tex

. Civ. Prac. & Rem. Code § 101.025

. I n part, t h e A ct exp r essly waive s

immu nity fo r personal

- injur y claims arising f rom a p remise s de fect, “ if th e g overnment al

unit would, were it a pri vate person , be liab le t o th e clai mant according to Texas law. ” Id.
§ 101.022(a) ; see Sa m

pson v. U niversity of Tex

. at Austin , 500 S.W.3 d 380, 38 5

- 8 6 ( T ex . 2016)
(noting th at Act waives immunity for three c ategories of claims , when st atutory r eq uirements are met: (1) use of publi cly owned automobile; (2) injuries a rising out of condition o r use of t angi ble

p e rsonal property; and (3) premises def ec ts )

. W h en a premise s

- defect claim is asserted under

the Act , t h e d uty o f care owed by the gove rnm ental uni t depends on whether the condition is

cl assified as an ordinary premise s defect or a s a s p ecial def ect. See Tex. Civ. Prac. & Rem

.
Code § 101.022(a) , (b)

. 2

W hen a pre m is es

- defect claim invo lves a n ordinary premise s defect , the Act
generally limits the duty ow ed by the gov ernmental un it to that duty whic h a private landowner

owes a licens ee

. See id. ; Tex a s F acilit ies Comm ’ n v . Speer , 559 S. W.3d 2 45, 250 (T e x. A pp.

—
Austin 2018, no pet.)

. Under this standard , the claimant mu st prove that the governm ental unit

ha d actua l knowledge o f a dangerous cond ition and that it failed to use ordinary car e to warn the

2 The ter m “ speci al defec t ” is no t s pecifically de fined in the Act but is li k e ned to conditions “ such as excavations or obstructions on hig hways, roads, or streets. ” See University of Te x. at Austin v. Hayes , 327 S.W. 3d 113 , 1 17 (Tex. 2010) (citing Tex. Civ. Prac. & R e m. Code § 1 01 .02 2(b) )

. As a re s ult , in determi ning whether a condition constitutes a special defect,

“ [t]he central inquiry is whether the condition is of the same kind o r falls within the same class as an excavation or obstru ction

. ” Texas Dep ’ t of T ransp. v. York , 2 84 S.W.3d 844, 8 47 (Tex. 2009) (per curi am ). Alth ough the Act does not use the term “ ordinary defect, ” court s generally refer to conditions that are not special defe cts as “ or d inary ” premises defects. See, e.g. , City of Denton v. Paper , 376 S.W.3d 762, 7 6 4 (Tex. 2012 ) ( “ T h e principal qu estion in th is premi s es

l iability suit against a city is whether a depr ession or sunken area in a roadway . . . constitutes a n ordinary premises defect or a special defect within the meaning of the Tort Claims Act

. ” )

.6

l icensee o r make t h e condition reason ably sa fe

. 3 Cit y of Dent on v. Pape r , 376 S.W.3 d 7 62, 766
(Tex. 2012) ; Count

y of Camer on v. Brown , 80 S .W. 3 d 549 , 55 5 (Tex. 2002)

. When a claimant
alleges that h is inj uries were caused by a speci al defec t

— such as an excava t i on o r o bstruction on a highway, road, or street

— th e government al unit is held to a h igher standard of care, that is, th e

same duty as that owe d by a p rivat e landowner to an i nvitee

. See Tex. Civ. Prac. & R e m. Code
§ 101. 022(b)

. Under this sta n dard , the claimant has to prove only that the gover n mental unit

should have known of the dangerous condition

. Texas Dep ’ t of Trans p. v. York , 284 S.W.3d 844 , 847 (Te x. 2009) (per curiam ) (citing Te x. C iv. Prac. & Rem. Code § 101 .022(b) )

.

ANALYSIS

In wh a t is effec tively on e issue on appeal , t he C ity ar g ues th a t Da wson failed to

demo nstrate that her claim against the Ci ty falls wi thin the sc ope of th e Act ’ s waiver for
premise s

- defect claim s because (1) the facts, as alleged, fail to esta b lish that the cond i t io n of the

sidewalk was a special defect within the me a ning of the Act and not an ordinary premises def ect , and (2) the allega tions fail to demons trat e t hat the City had “ actu al kno wledg e ” of the cond ition ,

a n element of an ordinary p r emises

- d efect cla i m

. 4 Assuming without deciding that the condition

3 Under this stan dard, the governmen t al unit also owes a d uty to not injur e a licensee by willful , wanto n, or g rossly ne gl igent conduc t

. Stat e D e p ’ t of H ighways & Pub. Transp

. v

. Payne , 838 S. W.2d 235, 237 (T e x. 1992)

. Because Daw son did not a llege that t h e City breach ed this duty , it is not at issue in thi s case.

4 In its plea to the jurisdiction before the trial court , the City argu ed in the a lternative t hat it r e t a i n ed immunity under the A ct ’ s exce ption for claims arising from d isc retiona ry act s and
o m issions. See T ex. C i v . Prac. & Rem. Code § 101.056

. On appeal, the C ity ha s not p resented this is sue as a n independent ground for r ever sal

. S ee Roper v. CitiMort g a g e , Inc. , No. 03

- 11

- 00887

- CV, 2013 Tex. App. LEXIS 14518, at *20 ( Tex. App.

— Austin Nov. 2 7 , 2013, pet. de nied) ( mem. op.) ( explaining that issues not specifically ide n tified in appellate br ief as issue presented and support ed by argum ent are waived ) ; see a l s o T ex. R. App. P. 38.1 (f)

- (i) (briefing requirements).7

o f the s idew alk was not a spe cial defect , as the City contends , w e first c onsider w hether Daws o n

met he r burden to suff

ic iently plead an ordinary pre mi s es

- defect claim fo r which immunity is

waived under the A c t

.

To prevail on her ordinary premise s

- defect claim, Daws on must show that (1) the
sidewalk ramp presented an unreasonable risk of harm , i .e., an unreasonably dangerous
condition; (2) the City actually knew of the condition ; ( 3) she did not k now of th e co nditi o n ; (4) the City failed to exercise ord in ary car e to warn her or make the condition r easonably saf e ; and (5) the Ci ty ’ s failure was a proxi mate caus e of her injury. S ee Brown , 80 S.W.3d at 554

. A

co ndition p oses an unreaso nable risk of harm for purposes of premises liability when there is a

“ su f f icien t pr obability o f a harmful event occu rring that a re asonably prudent person would have

foreseen it or some simi lar event as likely to happen. ” Id. at 556

. I n its plea , the City did not disp ute that the curb ramp on the sidewalk presented an unre as onable r isk of harm and thus an

or dinary def

ect or that the C ity failed to wa rn pedestrians of the curb ra mp

. Instead, the issue

rai sed by the City in it s plea and now on appeal is whether Daws o n met he r burden to

suff ic iently plead the actual

- k n ow ledge e lement o f her ord inar y p remise s

- defect claim

.

T o prove actual knowledge , Dawson m u st show tha t the C ity actually knew of a

“ danger ous condition at the time of th e ac cident. ” See University of Te x. at Austin v. Hayes ,
327 S.W. 3d 113 , 1 17 (Tex. 2010)

. “ Altho u g h th er e is n o t one test for det er minin g a ctual

k nowledge that a c o ndition presen ts an unreasonable risk of h arm, courts generally conside r whether the pre mises owner has re ce iv ed reports of prior injuries or repor ts of the potent i al
danger presen ted by t h e c on dition

. ” University of Tex

. - Pan Am. v. Agui lar , 251 S.W.3d 5 1 1, 513
(Tex. 2008) (per curiam). In ad dition, proof that a premises o w ner created the dangerous

condition may constitute circumstantial evidence t hat the la ndowne r k new of the con d ition

. S ee8

J efferson Count

y v. Ak ins , 4 87 S.W.3d 216, 22 8 (Tex . App.

— Beau m ont 2016, pet. denied )
(citing Keetch v. Kroger Co. , 845 S.W.2d 262, 26 6 (Tex . 1 992) )

.

Here, D awson al l eges in her petition that th e City had ac tual kn owl edge of t he

sidewalk ra mp becau s e t h e City ove r saw th e constru ct ion of the ramp i n January 2019 ; a s part of

its oversight, t he City ins p ected and ob served the r amp to ens ure that it complied with various

C ity requirements ; and this inspection wou ld have re vea le d th e condition of the si d e w al k ramp as

i t existed at the time of the accide nt. Further , acc o rding to Dawson ’ s petition, “ [t]he City knew

t he area was poorly lit be cause of s p ecific safety complaints about poor l ighting, that safety
standards requir e d the r am p to be free o f these t y pe s of ob s tru c tions, and that construction

stand ards required the ramp t o be confi gured differently for safety reasons. ” 5

I n additio n , Dawson a lle g es that the City “ em ployed the c o mpany Civil i tude to

assi st with the d e sign and/ or constructio n of the [ ra mp a t issue ] ” a nd that the City “ had the
right to direct, re vie w , alte r and approve the details ” of Civil i tude ’ s wo rk. In A u gust 2019 , four

months before Daw son ’ s f all, Civil i tude receive d a c omplaint that “ the whe el ch ai r area at the

stop sign by the c h u r ch n e ar 4011 C h errywood

— matching the des c ription o f this ramp

— i s to o
narrow, not easy to see e specially in the evening and at night, a n d that one person had already

falle n there. ” Dawson further alleges th at “ [a] t the time it received this notice , Ci vil i tude w as acting wit hin the s c o p e of its au thority as ag ent for the City with respe ct to the wo r k project on

which it was enga ged

. . . . ”

5 A ccordi n g to Dawson ’ s allegat i ons, the constr uctio n violated the City ’ s ow n c riteria for curb r amps with w a lking sur face and f or c oncrete sid ewalks and curb ramps. Specifica lly, Dawson al leges th a t t h e cur b ramp as built viola ted both the City of Austin Tr anspor t ation M a nual and the C ity of Austin S tanda r d Specifi cation s.9 In its plea to the jurisdiction , and now on appeal, the Cit y assert s that it did not
receive any c omplaints ab out the s id ewalk ramp a nd that t h e alleged August 2019 r e p ort received
by Civil i tude , even if prov e n , i s insufficie nt to demonstrate actual k nowledge by the City

. However, t he Cit y did no t support its ple a , includ ing its contention that it di d not receive notice

o f t he August 2 019 rep o r t , with any evidence ; t hus , Dawson had no burden to present eviden c e

o f the City ’ s actual knowledge. See Miranda , 133 S.W.3d at 228 (explaining that when plea
challenge s exi stence of juri sdictional facts that implicate merits , party a s serting pl e a must

overcome bur den similar to traditional summary judgment ). Consequ ently, we cons t rue the
City ’ s contention t o be that Dawson faile d to plea d facts demo nstrating tha t the City was no tified

of the August 2 0 19 repor t

. Liber ally construing D aw son ’ s pl e adings with an “ eye to the
ple a der ’ s in tent , ” as we must, we disagree wit h the City ’ s co ntention

. Dawson ’ s allegatio ns regarding Civil i t ude ’ s rol e in the design and constr uc tion of the ra mp , its receipt of the
complaint, and it s employee

- emp lo y er re l a t i o n ship with the Ci ty sufficiently demonstrate tha t the
City was notifi e d of the August 2019 repor t and therefore that the City was aware that the ramp posed a danger t o pedest ri ans

. See Texas S. Univ. v. Gilford , 277 S.W.3d 65, 6 7 (Tex. App.

—
Hou s ton [ 1st D i s t

. ] 2009, pet. denied ) (ho lding that evidence of actual knowledge o f all eged
defect by government employees in mai ntenance was sufficient to raise fact issue on un iversit y ’ s actual knowledge of condition ) ; see also Tex. Civ . Pr ac. & Rem. Code § 1 01.001(2 ) ( d efin i n g

“ empl oyee ” under Act ). Based on the tota lity of Da w son ’ s all e gations, which the City did not

attempt to negate , and construing them as true and i n favor of D awson, we conclude that the
allegatio n s are suffici ent to e s tablish the el e m ent of “ a c t ual k nowledge. ”

W e conclude that Dawson ’ s ordinary premise s

- defect clai m, as alleged, is

sufficient to aff

ir mat ively demonstrate a waiver of immunity under the Act an d that the trial10

court did not err to the extent it denied t he Ci ty ’ s ple a t o the j uris d iction on thi s g round. Because

we can affirm the trial court ’ s jurisdi ctiona l ruling on this ground alone, we need n ot de c ide t he
City ’ s remaining argument s con cerning whet her the sidewalk ramp was a special defect. See

Tex. R . App. P. 47.1

. We overrul e the City ’ s sole issue o n appeal.

C ONC LUSION

W e affi rm the trial cour t ’ s orde r d e nying the City ’ s pl ea to the jurisdiction.

___________ _______________________________ Chari L. K e lly , Justice

B efor e Jus t ices Goodwin, Tri ana, a n d Kelly

Affirmed

Filed: August 31, 2021