Madern v. City of Pasadena, No. 01-05-00337-CV (TX 3/9/2006)

• Decision Date: 09 March 2006
• Docket Number: No. 01-05-00337-CV.,01-05-00337-CV.
• Parties: WALTER MADERN, Appellant, v. CITY OF PASADENA, Appellee.
• Court: Texas Supreme Court

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WALTER MADERN, Appellant, v. CITY OF PASADENA, Appellee.

No. 01-05-00337-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued March 9, 2006.

On Appeal from County Civil Court at Law No. 3, Harris County, Texas, Trial Court Cause No. 810,947.

Panel consists of Justices TAFT, HIGLEY, and BLAND.

MEMORANDUM OPINION

TIM TAFT, Justice.

Appellant, Walter Madern, appeals from a judgment of dismissal rendered upon the granting of a plea to the jurisdiction made by appellee, City of Pasadena ("City"). We determine whether the trial court erred (1) by implicitly finding that a manhole in which Madern was injured was not a special defect under the Texas Tort Claims Act ("TTCA"),¹ (2) by implicitly ruling that Madern had not pleaded sufficient facts to confer jurisdiction, (3) by implicitly ruling that Madern could not assert a declaratory-judgment action regarding the constitutionality of the TTCA's special defect and premises defect definitions, (4) by sustaining the City's objection to affidavits authenticating photographs and to the photographs themselves, and (5) by allegedly reviewing the City's plea to the jurisdiction and Madern's motion for new trial in the same manner as a summary judgment. We also determine whether we need to reach Madern's challenge that the trial court erred by dismissing Madern's claims on the implicit ground that section 101.056 of the TTCA preserved the City's governmental immunity.² We affirm the judgment in all respects except to the extent that it dismissed Madern's declaratory judgment action, to which extent we reverse the judgment. We remand the cause.

Facts

In February 21, 2002, Madern was walking along the side of Denkman Street in Pasadena, Texas. He stepped onto a manhole cover, which slipped, causing his right leg to fall into the manhole. Madern testified that the manhole had seemed to be normal before the accident because he walked down Denkman Street "every day."³ Madern sued the City, alleging that it was negligent in creating the condition that caused his injuries. Madern specifically alleged that the City's governmental immunity from suit and liability was waived under TTCA section 101.022(b) because the manhole constituted a special defect and, in the alternative, sought a declaration that the definition of a premises defect and a special defect was so vague as to be meaningless and unenforceable. The City filed a plea to the jurisdiction requesting that the trial court dismiss Madern's claim for negligence because its governmental immunity was not waived. The City alleged in its plea to the jurisdiction that (1) the condition of the manhole did not qualify as a special defect because it did not pose a danger to ordinary users of the roadway and was neither unexpected nor unusual; (2) TTCA section 101.056 precluded waiver of governmental immunity because maintenance of the manhole was a discretionary act; and (3) Madern could not circumvent the City's governmental immunity by requesting a declaratory judgment on whether the definitions of special defect and premises defect were unconstitutionally vague.⁴ The City filed a written objection to Madern's Exhibits B and C,⁵ included in Madern's opposition to the City's plea to the jurisdiction. The City alleged that these exhibits had not been properly authenticated and were irrelevant. The trial court sustained the City's objections to Exhibits B and C. On February 11, 2005, the trial court granted the City's plea to the jurisdiction, without explaining the basis for its ruling and dismissed both Madern's negligence claim and his declaratory judgment action against the City.

Standard of Review

On appeal, because the question of subject-matter jurisdiction is a legal question, we review the trial court's ruling on a plea to the jurisdiction under a de novo standard of review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). To determine whether a plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged in the petition and, to the extent that it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). We must construe the pleadings in the plaintiff's favor and look to the pleader's intent. County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex. 1989).

Special Defect

In his first point of error, Madern argues that "[t]he [trial] Court erred in ruling that the defective manhole was a premises defect rather than a special defect in response to both Appellee's Plea to the Jurisdiction as well as Appellant's Motion for New Trial." Because the trial court could not have implicitly determined that the manhole was a premises defect for the reasons stated in footnotes four and ten and in our discussions that follow, we construe appellants argument to be that the trial court erred in implicitly ruling that the manhole was not a special defect.

The TTCA waives a governmental unit's immunity from suit and liability for violation of the duty to warn of special defects. Tex. Civ. Prac. & Rem. Code Ann. § 101.060(c) (Vernon 2005). To establish liability against a municipality under a special defect theory, a plaintiff must plead and prove (1) that personal injury or death occurred; (2) that it was proximately caused by the negligence of a municipal employee; (3) that the employee was acting in his scope of employment; (4) that the injury or death was caused by a special defect; (5) that the municipality knew or reasonably should have known of the defect; and (6) that the municipality failed to exercise ordinary care to protect the individual. State Dep't of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).

The TTCA does not expressly define special defects, except to state that they include "excavations or obstructions on highways, roads, or streets."⁶ See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (Vernon Supp. 2005); see also Harris County v. Estate of Ciccia, 125 S.W.3d 749, 753 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). The Texas Supreme Court has held that the two examples included in the statute—excavations and obstructions—are not exhaustive and has construed special defects to include other defects of the same kind or class. See City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997); see also Payne, 838 S.W.2d 235, 238-39. However, to be considered a special defect, the defect must be of the same kind or class as excavations or obstructions on a highway, road, or street. Id.;Graf v. Harris County, 877 S.W.2d 82, 86 (Tex. App.-Houston [1st Dist.] 1994, writ denied) (holding that step on path at arboretum was not condition involving excavation or obstruction on highway, road, or street). The defect must present an unexpected and unusual danger to ordinary users of roadways. Payne, 838 S.W.2d at 239 (holding that unmarked culvert 22 feet from roadbed and obscured by vegetation was located far enough from road so as not to be danger to ordinary users of roadway). A condition located so far from the roadway that vehicular passengers and other normal users of the roadway are unlikely to encounter it is not a special defect. Id. at 239. A special defect is distinguished by some unusual quality outside the ordinary course of events.⁷ Id. A longstanding, routine, or permanent condition is, therefore, not a special defect. See Estate of Ciccia, 125 S.W.3d at 753-54;Stokes v. City of San Antonio, 945 S.W.2d 324, 326 (Tex. App.-San Antonio 1997, no writ).⁸

Madern contends that the manhole was a special defect because there were no sidewalks and the manhole would, therefore, be encountered by pedestrians walking along the street near the curb. However, the manhole was not in the roadway. It was located more than five feet away from the road, so that vehicular passengers and other normal users of the roadway were unlikely to encounter it. Only a pedestrian whose destination required him to leave the proximity of the road was ever likely to walk on the manhole.

Madern contends that the manhole was related to the roadway because it was the access to the storm sewer, which extended into the street, and it was located next to the storm sewer. However, special defects must unexpectedly and physically impair a normal user's ability to travel on the road. State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999); see, e.g., Morse v. State, 905 S.W.2d 470, 475 (Tex. App-Beaumont 1995, writ denied) (holding that 10-inch drop-off along shoulder that prevented car's left wheels from re-entering roadway once they had slipped off was special defect); Kitchen, 867 S.W.2d at 786 (holding that ice on bridge during winter was not special defect because it was not unexpected or unusual). The condition presented by the covered manhole was located five feet and four inches from the roadway. Here, Madern was not traveling on the roadway at the time of his accident. In fact, if Madern had walked in the roadway, he would have avoided the manhole.

Madern further argues that the manhole was a special defect because the broken support ring of the manhole is similar to an excavation. Madern relies on Harris County v. Smoker, in which this Court held that an uncovered storm sewer located where a pedestrian would normally walk on an unlighted street without a sidewalk constituted a special defect. Id., 934 S.W.2d 714, 719 (Tex. App.-Houston [1st Dist.] 1996, writ denied). Smoker is distinguishable. Here, the manhole was more than five feet from the roadway and was in its permanent, covered condition. In contrast, the storm sewer inSmoker was extended one and one-half to two feet into the street, and the absence of a storm cover was a temporary condition. Id. The manhole here was covered and was, therefore, a...