Opinion
NO. 01-17-00654-CV
06-12-2018
CITY OF HOUSTON, Appellant v. SHIRLEY JOHNSON, Appellee
On Appeal from the 295th District Court Harris County, Texas
Trial Court Case No. 2015-31340
MEMORANDUM OPINION
This is an interlocutory appeal from the trial court's order denying a plea to the jurisdiction. Shirley Johnson suffered injuries when she fell into a storm sewer drain that was missing its cover, and she sued the City of Houston under the Texas Torts Claims Act. The City filed a plea to the jurisdiction, arguing that the condition was a premises defect about which it had no actual knowledge. Johnson responded that the City had constructive knowledge, which was sufficient to waive the City's immunity because the condition was a special defect, not a premises defect.
See Tex. Dep't of Transp. v York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam) (plaintiff need only show constructive knowledge if condition is special defect).
On appeal, the City argues, for the first time, that there is no evidence that it had constructive knowledge of the missing cover. We agree. But because the City did not raise this issue in the trial court, Johnson was never afforded the opportunity in the trial court to cure the jurisdictional defect. Therefore, we reverse the trial court's order and remand for further proceedings.
Background
One early evening, Shirley Johnson was driven by a friend to pick up her car from an auto shop in southwest Houston. When they arrived, Johnson's friend pulled over on the side of the street near the auto shop to let Johnson out. Johnson opened the passenger door, exited the vehicle, and fell directly into an uncovered storm sewer drain. Several onlookers, including an on-duty police officer, rushed to her aid and helped her out of the drain. As a result of her fall, Johnson suffered bodily injuries, including a torn meniscus.
Johnson sued the City of Houston under the Texas Torts Claims Act. The City filed a plea to the jurisdiction, arguing that it was immune from suit because it had no knowledge of the missing drain cover before the date of the accident. The City supported its plea with the affidavit of Tracy Samuel, an employee of the Street & Drainage Division of the City's Public Works & Engineering Department. Samuel stated that he reviewed the City's service request records, and the only record that the drain was missing its cover was a police report prepared by the officer who assisted Johnson after the accident.
Johnson responded that she did not have to show that the City had actual knowledge of the missing cover. Instead, Johnson argued, because the missing cover was a special defect, she only had to show that the City had constructive knowledge of the defect—that is, that the City should have known that the cover was missing. Johnson argued that a fact issue existed on the City's constructive knowledge because (1) the City had an infrastructure inspection policy recommending that drains be inspected every 10 years and (2) Samuel testified that, despite the policy, the City had not inspected the drain since its installation in 1983.
See Constructive knowledge, BLACK'S LAW DICTIONARY (10th ed.) (defining as "knowledge that one using reasonable care or diligence should have, and therefore that is attributed by law to a given person").
The City did not respond to Johnson's argument that the evidence raised a fact issue concerning the City's constructive knowledge, and the trial court denied the City's plea. The City appeals.
Plea to the Jurisdiction
On appeal, the City argues, for the first time, that the trial court erred in denying its plea because Johnson presented no evidence that the City should have known that the drain was missing its cover. Johnson responds that the City's failure to follow its own inspection policy is evidence that the City should have known that the drain's cover was missing.
State v. Morello, No. 16-0457, 2018 WL 1025685, at *6 (Tex. Feb. 23, 2018) (challenges to lack of subject-matter jurisdiction may be raised for first time on appeal).
A. Standard of review and applicable law
A plea to the jurisdiction based on governmental immunity is a challenge to the trial court's subject-matter jurisdiction, which we review de novo. City of League City v. LeBlanc, 467 S.W.3d 616, 619 (Tex. App.—Houston [1st Dist.] 2015, no pet.).
When, as here, a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, even when those facts may implicate the merits of the cause of action. Id.
The plea-to-the-jurisdiction standard mirrors that of a traditional motion for summary judgment. Id. When reviewing the evidence, we must take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id. If the evidence creates a fact issue as to the jurisdictional issue, then the fact-finder will decide that issue. Id. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id.
In general, the government is immune from suit. Univ. of Tex. v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010) (per curiam). However, under the Texas Torts Claims Act, the government's immunity is waived for certain premises liability claims. Id. at 115-16; see TEX. CIV. PRAC. & REM. CODE § 101.022(a), (b).
The Act applies different standards of care depending on whether the condition was a premises defect or a special defect. Hayes, 327 S.W.3d at 116; see TEX. CIV. PRAC. & REM. CODE § 101.022(a), (b). If the condition was a premises defect, a licensee standard applies. Hayes, 327 S.W.3d at 116; see TEX. CIV. PRAC. & REM. CODE § 101.022(a). Under the licensee standard, the plaintiff must prove, among other elements, that the governmental unit had actual knowledge of the defect. Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex. 2009) (per curiam); see Sampson v. Univ. of Tex., 500 S.W.3d 380, 397 (Tex. 2016) (affirming appellate court's judgment dismissing plaintiff-licensee's claim when record showed that university had only constructive knowledge of dangerous condition). But if the condition was a special defect, a heightened invitee standard applies. Hayes, 327 S.W.3d at 116; see TEX. CIV. PRAC. & REM. CODE § 101.022(b). Under the invitee standard, the plaintiff need only prove that the governmental unit had constructive knowledge. See York, 284 S.W.3d at 847; Brazoria Cty. v. Eldridge, No. 01-15-00542-CV, 2015 WL 5893475, at *6 (Tex. App.—Houston [1st Dist.] Oct. 8, 2015, no pet.) (mem. op.) (to prevail on premises liability claim against county, plaintiff-invitee must prove that landowner had actual or constructive knowledge of condition).
To prove that the governmental unit had constructive knowledge, the plaintiff must present evidence that the defect existed long enough for the government to have discovered it through reasonable inspection. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex. 2002); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000) (explaining that "constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection"). As the Supreme Court of Texas explains:
The rule requiring proof that a dangerous condition existed for some length of time before a premises owner may be charged with constructive notice is firmly rooted in our jurisprudence. . . . The so-called "time-notice rule" is based on the premise that temporal
evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition. . . . Without some temporal evidence, there is no basis upon which the factfinder can reasonably assess the opportunity the premises owner had to discover the dangerous condition.Reece, 81 S.W.3d at 815-16; see CMH Homes, 15 S.W.3d at 102-03 (declining to limit temporal element of premises liability to slip-and-fall cases and disapproving appellate court's refusal to apply time-notice rule simply because it might be impossible for plaintiff to show actual or constructive knowledge).
When the plaintiff relies on circumstantial evidence to prove constructive knowledge, the evidence must show it is more likely than not that the defect existed long enough to be discovered through reasonable inspection. Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 (Tex. 1998). Evidence showing only the possibility that the defect existed long enough to discover is insufficient to prove constructive knowledge. Id. at 936, 938.
B. No evidence of actual or constructive knowledge
It is undisputed that the City did not actually know that the drain was missing its cover at the time Johnson sustained her injuries. Therefore, assuming that the missing cover was a special defect, to establish a waiver of the City's immunity, Johnson was required to present evidence that the City should have known that the cover was missing. See York, 284 S.W.3d at 847.
Johnson contends that she met her burden by presenting evidence that, despite its infrastructure inspection policy, the City never inspected the drain after it was initially installed in 1983. We disagree.
This evidence does not show when the drain lost its cover or otherwise suggest for how long the cover was missing. On this evidence, the drain could have lost its cover on the day after it was installed in 1983 or it could have lost its cover on the afternoon of Johnson's fall thirty-some-odd years later. In other words, this evidence only shows the possibility that the defect existed long enough for the City to have discovered it through reasonable inspection. See Gonzalez, 968 S.W.2d at 936, 938. It does not show that it is more likely than not that the City would have discovered it during routine inspections. See id. at 936.
To show that it is more likely than not that the City would have discovered the missing drain cover had it acted reasonably, Johnson was required to present evidence showing the length of time that the cover had been missing, such as testimony from someone who had observed the drain without its cover before Johnson's fall. See Reece, 81 S.W.3d at 816. Because Johnson presented no such temporal evidence, there is no evidence that the City should have known about the missing cover.
However, the City did not argue in the trial court that Johnson failed to present evidence that the City should have known about the missing cover. When, as here, the trial court denies a plea to the jurisdiction based on governmental immunity, and the reviewing court concludes that the plaintiff's claim suffers from a jurisdictional defect that may be curable, the plaintiff is normally entitled to a remand for an opportunity to cure. See, e.g., Rusk State Hosp. v. Black, 392 S.W.3d 88, 96-97 (Tex. 2012) (holding that appellate court should remand case for further proceedings when plaintiff's claim suffers from curable defect and plaintiff was not afforded "full and fair opportunity in the trial court to develop the record and amend the pleadings"); Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007) (holding that plaintiff "may stand on his pleadings in the face of a plea to the jurisdiction unless and until a court determines that the plea is meritorious," in which case "the plaintiff must be given 'a reasonable opportunity to amend'" curable jurisdictional defects).
Therefore, Johnson is entitled to a remand to attempt to cure the jurisdictional defect.
Conclusion
We reverse the trial court's order and remand the case for further proceeding.
Harvey Brown
Justice Panel consists of Chief Justice Radack and Justices Massengale and Brown.