Kownslar v. City of Hous.

• Court: Texas Court of Appeals
• Writing for the Court: Randy Wilson, Justice
• Citation: Kownslar v. City of Hous., 654 S.W.3d 472 (Tex. App. 2022)
• Decision Date: 19 April 2022
• Docket Number: 14-19-00963-CV
• Parties: Jason KOWNSLAR, Appellant v. The CITY OF HOUSTON, Appellee

654 S.W.3d 472

Jason KOWNSLAR, Appellant

v.The CITY OF HOUSTON, Appellee

NO. 14-19-00963-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinions filed April 19, 2022

Tina Robbins, Pearland, Richard J. Plezia, Houston, for Appellant.

Robert Higgason, Emily Joanna Nelson, Houston, for Appellee.

Panel consists of Justices Jewell, Poissant, and Wilson

Randy Wilson, Justice In this personal-injury case arising from a motorcycle accident, the plaintiff appeals the trial court's final judgment sustaining a city's plea to the jurisdiction based on governmental immunity. We conclude that the evidence before the trial court conclusively proved that the alleged defective condition does not fall within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. Because the plaintiff has not shown that the trial court reversibly erred, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On or about June 28, 2015, appellant/plaintiff Jason Kownslar was severely injured in a motorcycle accident in downtown Houston, Texas. At his deposition Kownslar testified as follows:

• While driving his motorcycle, Kownslar exited Interstate 45 and got on Rusk Street.

• Kownslar was traveling in the right lane of Rusk Street heading toward the intersection with Bagby Street.

• Kownslar came to a part of Rusk Street where a light-rail track joins the street.

• When Kownslar reached that part of the street, he saw the light-rail track.

• The front tire of Kownslar's motorcycle got stuck in the "cut-out, the divot that was the space in between that [one of the rails of the] track is laid in."

• Kownslar stated that his tire got stuck in the space for "the first rail that [he] would have come across from that direction."

• The back tire of Kownslar's motorcycle "was riding in the track as well."

• Kownslar was traveling at a speed of "10, 15 miles per hour."

• Kownslar drove for a period of time with his tires like that, and he was applying his brakes.

• Kownslar tried to change lanes and "felt the resistance of the tire on the edge of the concrete." The motorcycle would not exit the place where it was wedged in the light-rail track.

• The back tire "fishtailed" and Kownslar was thrown into the air over the front of the motorcycle.

• Kownslar landed on the back of his neck, and he slid on the pavement towards the intersection. Kownslar did not make contact with another vehicle.

Kownslar filed this lawsuit, originally suing only Metropolitan Transit Authority of Harris County, Texas ("Metro") and later adding the City of Houston (the "City") and other parties as defendants. In his live pleading, Kownslar asserted against the City (1) a negligence claim based on an alleged special defect in the roadway (the "Special Defect Claim"), and (2) a negligence claim based on the City's purported negligence in allegedly "failing to design, construct, properly implement[,] and maintain the metro rail track in question in a reasonably safe condition and free of hazards to [Kownslar] and other members of the public traveling on the roadway" (the "Negligent Activity Claim"). In the pleading, Kownslar cited the Texas Tort Claims Act as the basis for a waiver of the City's governmental immunity.

The City filed a plea to the jurisdiction in which it asserted that the Texas Tort Claims Act does not waive the City's governmental immunity as to the Negligent Activity Claim, and Kownslar has not established a waiver of the City's governmental immunity as to this claim. In addition, the City asserted that its immunity from suit under the doctrine of governmental immunity has not been waived as to the Special Defect Claim because: (1) the City does not own or occupy the light-rail track in question; (2) the condition of this track is not a special defect; (3) the light-rail track in question did not create an unreasonable risk of harm; and (4) Kownslar was warned of the condition. The City attached a consent agreement between the City and Metro (the "Agreement"), the transcript of Kownslar's deposition, and four photographs of Rusk Street. The City asserted that the evidence showed that the City's governmental immunity had not been waived.

Kownslar responded in opposition to the City's jurisdictional plea, and the only evidence Kownslar submitted was the Agreement. After an oral hearing, the trial court sustained the City's jurisdictional plea and dismissed Kownslar's claims against the City with prejudice for lack of subject-matter jurisdiction. The trial court later severed Kownslar's claims against the City into a separate case to make this ruling final and appealable. Kownslar has timely appealed.

II. ISSUES AND ANALYSIS

The City is entitled to immunity from suit under the doctrine of governmental immunity unless the City's governmental immunity has been waived. See City of Houston v. Gonzales , No. 14-19-00768-CV, 2021 WL 2586242, at *1 (Tex. App.—Houston [14th Dist.] Jun. 24, 2021, no pet.) (mem. op.). Kownslar asserted two claims against the City in the trial court: (1) the Special Defect Claim, and (2) the Negligent Activity Claim. The trial court granted the City's jurisdictional plea as to both claims. On appeal, Kownslar has not discussed the Negligent Activity Claim, asserted that the City's immunity has been waived as to the Negligent Activity Claim, or briefed any argument challenging the trial court's judgment as to the Negligent Activity Claim. Thus, we need only determine whether the trial court erred in granting the jurisdictional plea as to the Special Defect Claim.

A. Did the evidence conclusively prove that the condition of the light-rail track was not a special defect?

In his first issue, Kownslar asserts that the trial court erred in sustaining the City's jurisdictional plea because the City failed to meet its burden to conclusively negate the challenged jurisdictional facts. Under this issue, Kownslar asserts that the evidence before the trial court did not conclusively prove that the condition of the light-rail track was not a special defect.

The Texas Tort Claims Act provides a limited waiver of a governmental unit's sovereign or governmental immunity, allowing suits to be brought against the governmental unit "only in certain, narrowly defined circumstances." Tex. Dep't of Crim. Just. v. Miller , 51 S.W.3d 583, 587 (Tex. 2001). "Given the Legislature's preference for a limited immunity waiver," courts must strictly construe the Act's waiver provisions. Ryder Integrated Logistics, Inc. v. Fayette County , 453 S.W.3d 922, 927 (Tex. 2015). In the Texas Tort Claims Act, the Legislature waived a governmental unit's immunity from suit and liability as to claims seeking to hold the governmental unit liable for personal injury caused by a condition of real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2021 C.S.). Subject to certain exceptions, if a claim against a governmental unit arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (West, Westlaw through 2021 C.S.). This limitation on a governmental unit's duty "does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets."¹ Id. When a special defect exists, the governmental unit owes the same duty to the claimant that a private landowner owes to an invitee. Tex. Dep't of Transp. v. Perches , 388 S.W.3d 652, 654–55 (Tex. 2012).

Whether a condition is a special defect is a question of law that we review de novo. Id. at 655. The Legislature does not define "special defects" but likens them to conditions "such as excavations or obstructions on highways, roads, or streets." Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) ; see The Univ. of Texas at Austin v. Hayes , 327 S.W.3d 113, 116 (Tex. 2010). The Supreme Court of Texas has determined that conditions can be special defects only if they pose a threat to the ordinary users of a particular roadway. See id. ; Denton County v. Beynon , 283 S.W.3d 329, 331 (Tex. 2009). A court cannot classify a condition as a special defect if the defect is not like an excavation or obstruction on a roadway. Beynon , 283 S.W.3d at 331–32. In deciding whether a condition is a special defect, the Supreme Court of Texas has considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle'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 to the ordinary users of the roadway. See Hayes , 327 S.W.3d at 116.

The class of special defects contemplated by the statute is narrow. Id. Courts determine whether a condition is a special defect based on the objective expectations of an "ordinary user" who follows the "normal course of travel." Id. A claimant's subjective knowledge or lack of knowledge of a condition is not relevant to a court's determination of whether the condition is a special defect. See Perches , 388 S.W.3d at 655.

In filing its jurisdictional plea, the City challenged the trial court's subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court's granting of the plea. Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). In its plea, the City challenged the existence of jurisdictional facts, so we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence...