REVERSED AND RENDERED; Opinion Filed March 1, 2021
In the Court of Appeals Fifth District of Texas at Dallas No. 05-20-00636-CV
CITY OF DALLAS, Appellant V. SERENA MARIE DE GARCIA, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-05374
MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Carlyle The City of Dallas appeals the trial court’s order denying its plea to the
jurisdiction. We reverse and render judgment dismissing Serena Marie de Garcia’s
claims against the City. Because the legal issues are settled, we issue this
memorandum opinion. See TEX. R. APP. P. 47.4.
Ms. de Garcia suffered injuries when she tripped over a piece of metal pipe
protruding from a sidewalk she alleges is owned or controlled by the City. She sued
the City for premises liability, and later amended her petition to include the Texas
Department of Transportation (TxDOT) as a defendant. The City filed a plea to the
jurisdiction contending it is immune from suit both because it is not responsible for maintaining the sidewalk and because it was unaware of the sidewalk’s defective
condition at the time of Ms. de Garcia’s injury. In support of its plea, the City
provided evidence of a contract it has with TxDOT which, according to the City,
shows TxDOT is responsible for maintaining the sidewalk. TxDOT filed a response
denying responsibility under the contract and is not a party to this appeal.
At the hearing on the plea, the trial court expressed its belief that, because
there was a factual dispute as to who, between the City and TxDOT, was responsible
for maintaining the sidewalk, there was also a factual dispute as to who would have
received notice of the hazardous condition. After the hearing, the court entered an
order denying the City’s plea without specifying any reasons for doing so, which it
was empowered to do. The City contends the trial court erred by denying the plea
because the evidence established the City lacked actual knowledge of the sidewalk’s
hazardous condition regardless of who was responsible for maintaining the sidewalk.
We review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “In a suit against a governmental unit,
the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a
valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex. 2003). Ms. de Garcia brought claims under the Texas Tort Claims Act
(TTCA), which waives immunity for personal injuries caused by the condition of
real property if a governmental unit would, were it a private person, be liable under
–2– Texas law. City of Dallas v. Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas
2013, no pet.) (citing TEX. CIV. PRAC. & REM. CODE § 101.021(2)).
For purposes of this appeal, the City does not dispute that it owed Ms. de
Garcia a duty as the party responsible for the sidewalk. And Ms. de Garcia concedes
both that she did not pay to access the sidewalk and that the protruding pipe was not
a “special defect” under the TTCA. See TEX. CIV. PRAC. & REM. CODE § 101.022(a),
(b); see also City of Dallas v. Freeman, No. 05-18-00961-CV, 2019 WL 3214152, at
*3–5 (Tex. App.—Dallas July 17, 2019, no pet.) (mem. op.) (explaining the
difference between ordinary and special defects, concluding that a three-inch
difference in elevation between a sidewalk and an abutting curb was not a special
defect under the TTCA). The City therefore owed Ms. de Garcia “only the duty that
a private person owes to a licensee on private property.” Id. § 101.022(a). That duty
requires an owner to “use ordinary care either 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) (quoting
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).
Ms. de Garcia does not allege the City’s conduct was willful, wanton, or
grossly negligent. Thus, to maintain her claims under the TTCA, she must prove the
City actually knew about the sidewalk’s dangerous condition at the time of her
injury. Id. “Actual knowledge, rather than constructive knowledge of the dangerous
condition is required,” and “[h]ypothetical knowledge will not suffice.” Id. at
–3– 392 (quoting State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974)). Accordingly, if
the evidence establishes that the City lacked actual knowledge of the sidewalk
hazard, then immunity is not waived, and the City’s plea must be granted. Id. at 391–
92.
Because the City’s challenge is based on evidence purporting to negate the
basis for the trial court’s jurisdiction, the City’s burden is similar to that of a movant
for summary judgment. Id. (citing Miranda, 133 S.W.3d at 227–28). The City has
the initial burden of presenting evidence sufficient to negate jurisdiction. If it meets
that burden, the burden shifts to Ms. de Garcia to demonstrate a factual dispute on
the jurisdictional issue. Id. at 391–92. In determining whether either party satisfied
its burden, we take as true all evidence favorable to Ms. de Garcia, drawing every
reasonable inference and resolving all doubts in her favor. Id. “Although there is no
one test for determining actual knowledge that a condition presents an unreasonable
risk of harm, courts generally consider whether the premises owner has received
reports of prior injuries or reports of the potential danger presented by the condition.”
Id. at 392 (quoting Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.
2008) (per curiam)).
With respect to whether the City was aware of the sidewalk’s defective
condition, the City provided an affidavit from Sheila Gray, a records custodian for
its 311 Customer Service Center. She explained that the 311 Customer Service
Center maintains records concerning reports of any allegedly hazardous conditions
–4– within the City. Based on a diligent search of those records, Ms. Gray testified the
City did not receive any reports of a dangerous condition on the sidewalk in the two
years before Ms. de Garcia’s injury.
Binding precedent in this court—where we have held that evidence similar to
the City’s, testimony stating that a governmental unit did not receive reports of a
hazardous condition in the two years before the injury—requires us to conclude the
City’s evidence is sufficient to demonstrate a lack of actual knowledge. See City of
Dallas v. Kennedy, No. 05-19-01299-CV, 2020 WL 3286515, at *3 (Tex. App.—
Dallas June 18, 2020, no pet.) (mem. op.); Freeman, 2019 WL 3214152, at *5–6.
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REVERSED AND RENDERED; Opinion Filed March 1, 2021
In the Court of Appeals Fifth District of Texas at Dallas No. 05-20-00636-CV
CITY OF DALLAS, Appellant V. SERENA MARIE DE GARCIA, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-19-05374
MEMORANDUM OPINION Before Justices Myers, Osborne, and Carlyle Opinion by Justice Carlyle The City of Dallas appeals the trial court’s order denying its plea to the
jurisdiction. We reverse and render judgment dismissing Serena Marie de Garcia’s
claims against the City. Because the legal issues are settled, we issue this
memorandum opinion. See TEX. R. APP. P. 47.4.
Ms. de Garcia suffered injuries when she tripped over a piece of metal pipe
protruding from a sidewalk she alleges is owned or controlled by the City. She sued
the City for premises liability, and later amended her petition to include the Texas
Department of Transportation (TxDOT) as a defendant. The City filed a plea to the
jurisdiction contending it is immune from suit both because it is not responsible for maintaining the sidewalk and because it was unaware of the sidewalk’s defective
condition at the time of Ms. de Garcia’s injury. In support of its plea, the City
provided evidence of a contract it has with TxDOT which, according to the City,
shows TxDOT is responsible for maintaining the sidewalk. TxDOT filed a response
denying responsibility under the contract and is not a party to this appeal.
At the hearing on the plea, the trial court expressed its belief that, because
there was a factual dispute as to who, between the City and TxDOT, was responsible
for maintaining the sidewalk, there was also a factual dispute as to who would have
received notice of the hazardous condition. After the hearing, the court entered an
order denying the City’s plea without specifying any reasons for doing so, which it
was empowered to do. The City contends the trial court erred by denying the plea
because the evidence established the City lacked actual knowledge of the sidewalk’s
hazardous condition regardless of who was responsible for maintaining the sidewalk.
We review the trial court’s ruling de novo. Tex. Dep’t of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “In a suit against a governmental unit,
the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a
valid waiver of immunity.” Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540,
542 (Tex. 2003). Ms. de Garcia brought claims under the Texas Tort Claims Act
(TTCA), which waives immunity for personal injuries caused by the condition of
real property if a governmental unit would, were it a private person, be liable under
–2– Texas law. City of Dallas v. Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas
2013, no pet.) (citing TEX. CIV. PRAC. & REM. CODE § 101.021(2)).
For purposes of this appeal, the City does not dispute that it owed Ms. de
Garcia a duty as the party responsible for the sidewalk. And Ms. de Garcia concedes
both that she did not pay to access the sidewalk and that the protruding pipe was not
a “special defect” under the TTCA. See TEX. CIV. PRAC. & REM. CODE § 101.022(a),
(b); see also City of Dallas v. Freeman, No. 05-18-00961-CV, 2019 WL 3214152, at
*3–5 (Tex. App.—Dallas July 17, 2019, no pet.) (mem. op.) (explaining the
difference between ordinary and special defects, concluding that a three-inch
difference in elevation between a sidewalk and an abutting curb was not a special
defect under the TTCA). The City therefore owed Ms. de Garcia “only the duty that
a private person owes to a licensee on private property.” Id. § 101.022(a). That duty
requires an owner to “use ordinary care either 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) (quoting
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)).
Ms. de Garcia does not allege the City’s conduct was willful, wanton, or
grossly negligent. Thus, to maintain her claims under the TTCA, she must prove the
City actually knew about the sidewalk’s dangerous condition at the time of her
injury. Id. “Actual knowledge, rather than constructive knowledge of the dangerous
condition is required,” and “[h]ypothetical knowledge will not suffice.” Id. at
–3– 392 (quoting State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974)). Accordingly, if
the evidence establishes that the City lacked actual knowledge of the sidewalk
hazard, then immunity is not waived, and the City’s plea must be granted. Id. at 391–
92.
Because the City’s challenge is based on evidence purporting to negate the
basis for the trial court’s jurisdiction, the City’s burden is similar to that of a movant
for summary judgment. Id. (citing Miranda, 133 S.W.3d at 227–28). The City has
the initial burden of presenting evidence sufficient to negate jurisdiction. If it meets
that burden, the burden shifts to Ms. de Garcia to demonstrate a factual dispute on
the jurisdictional issue. Id. at 391–92. In determining whether either party satisfied
its burden, we take as true all evidence favorable to Ms. de Garcia, drawing every
reasonable inference and resolving all doubts in her favor. Id. “Although there is no
one test for determining actual knowledge that a condition presents an unreasonable
risk of harm, courts generally consider whether the premises owner has received
reports of prior injuries or reports of the potential danger presented by the condition.”
Id. at 392 (quoting Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.
2008) (per curiam)).
With respect to whether the City was aware of the sidewalk’s defective
condition, the City provided an affidavit from Sheila Gray, a records custodian for
its 311 Customer Service Center. She explained that the 311 Customer Service
Center maintains records concerning reports of any allegedly hazardous conditions
–4– within the City. Based on a diligent search of those records, Ms. Gray testified the
City did not receive any reports of a dangerous condition on the sidewalk in the two
years before Ms. de Garcia’s injury.
Binding precedent in this court—where we have held that evidence similar to
the City’s, testimony stating that a governmental unit did not receive reports of a
hazardous condition in the two years before the injury—requires us to conclude the
City’s evidence is sufficient to demonstrate a lack of actual knowledge. See City of
Dallas v. Kennedy, No. 05-19-01299-CV, 2020 WL 3286515, at *3 (Tex. App.—
Dallas June 18, 2020, no pet.) (mem. op.); Freeman, 2019 WL 3214152, at *5–6.
Thus, the City having met its initial burden, the burden shifted to Ms. de Garcia to
demonstrate a fact issue as to whether the City had actual knowledge. See Sampson,
500 S.W.3d at 391–92.
Ms. de Garcia points to no direct evidence of the City’s knowledge. As she
argued below, Ms. de Garcia argues the City must have been aware of the dangerous
condition because it appeared the protruding pipe was part of a sign that had been
removed from the sidewalk. She extrapolates that, because the City allegedly owned
the sidewalk, it must have been responsible for removing the sign. And because the
City removed the sign, she argues, it must have known it left a piece of pipe
protruding.
Although circumstantial evidence can be used to establish actual knowledge,
evidence that merely raises a suspicion that the governmental unit had actual
–5– knowledge is insufficient. See id. at 394. There is no record evidence suggesting the
City, rather than a third party, removed whatever sign was once located on the
sidewalk. And we cannot reasonably infer the City removed the sign based solely on
the fact that it owned or controlled the property. Thus, we cannot infer the City had
actual knowledge of the condition created by the sign’s removal. See id.
Because Ms. de Garcia failed to point to any evidence suggesting the City had
actual knowledge of the sidewalk’s dangerous condition at the time of her injury, the
City’s evidence was sufficient to negate jurisdiction under the TTCA. See Kennedy,
2020 WL 3286515, at *3; Freeman, 2019 WL 3214152, at *5–6. We reverse the trial
court’s order denying the City’s plea and render judgment dismissing Ms. de
Garcia’s claims for lack of jurisdiction.
/Cory L. Carlyle/ CORY L. CARLYLE JUSTICE 200636F.P05
–6– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the 191st Judicial District Court, Dallas County, Texas No. 05-20-00636-CV V. Trial Court Cause No. DC-19-05374. Opinion delivered by Justice Carlyle. SERENA MARIE DE GARCIA, Justices Myers and Osborne Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and judgment is RENDERED that:
Serena Marie de Garcia’s claims against the City of Dallas are dismissed for lack of jurisdiction.
It is ORDERED that appellant City of Dallas recover its costs of this appeal from appellee Serena Mareie de Garcia.
Judgment entered this 1st day of March, 2021.
–7–