In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-21-00281-CV __________________
CITY OF GROVES, Appellant
V.
SCOTT LOVELACE, INDIVIDUALLY, AND AS NEXT FRIEND OF MINOR, C.L., Appellee __________________________________________________________________
On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-203,308 __________________________________________________________________
MEMORANDUM OPINION
The City of Groves (a home-rule municipality located in Jefferson
County, Texas) appeals from the district court’s order denying its plea to
the jurisdiction.1 To resolve the issues the City raises in this appeal, we
1See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (permitting interlocutory appeals from orders granting or denying pleas to jurisdiction filed by governmental units); Wagstaff v. Groves, 419 S.W.2d 441, 443 (Tex. Civ. App.—Beaumont 1967, writ ref’d n.r.e.) (noting the City of Groves’ status as a home-rule city). 1 must decide whether the trial court erred in finding it possessed subject-
matter jurisdiction over the suit the plaintiffs filed against the City to
recover on tort claims under the Texas Tort Claims Act. The plaintiffs
alleged that Scott Lovelace was injured when a “dead tree” on property
the City did not own but in the City’s right-of-way fell on Scott. In its
plea, the City alleged it was immune from the plaintiffs’ suit and that its
immunity had not been waived because it did not have actual knowledge
the tree was in an unreasonably dangerous condition before it fell. The
City produced evidence supporting its claim that it did not know of the
unreasonably dangerous condition of the tree before Scott’s injury
occurred. The City also alleged that the tree did not create a special defect
under the Tort Claims Act and that the plaintiffs could not recover under
the Tort Claims Act based on proof that it should have discovered the tree
was rotten and in danger of falling before it fell and injured Scott.
We conclude the plaintiffs’ claims are properly characterized as a
premise defect claim, not a special defect claim.2 We further conclude the
2See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016) (explaining that for premise defect claims under the Tort Claims Act, the premises owner has a duty 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”). 2 plaintiffs failed to establish a genuine issue of material fact exists on the
issue of whether the City had actual knowledge of the tree’s unreasonably
dangerous condition before Scott’s injury occurred. Thus, the trial court
did not have jurisdiction over Scott’s claim, and it lacked jurisdiction over
the bystander claim that was filed by his son.
We reverse the trial court’s judgment and render judgment for the
City. We order the plaintiffs’ claims against the City dismissed for lack
of jurisdiction.
Background
Scott lives in a home that faces Jackson Boulevard in Groves,
Texas. Joseph Collazo lives across the street. A tree in Collazo’s yard fell
and hit Scott while Scott had his back to the tree and while Scott was
raking his yard. Scott’s son, a minor, was inside their home when the tree
fell. The petition alleges Scott’s son was “a bystander near the scene . . .
and suffered extreme shock, fear and mental anguish as a result of direct
emotional impact from a sensory and contemporaneous perception of the
accident and injuries to his father.”
Scott described what happened to him in a deposition, which is in
the exhibits the plaintiffs filed to oppose the City’s plea. Scott estimated
3 the tree that fell on him from Collazo’s yard was more than thirty-feet
tall. According to Scott, when he was hit by the tree it just “threw [him]
forward,” but didn’t knock him down. Scott testified he injured his head
and back, but he made it to his front porch before he collapsed.
Dr. Todd Watson, hired to testify by the City as an expert, has a
doctorate in plant pathology. Dr. Watson, whose report is among the
exhibits in evidence, attributed the tree’s fall to “above normal” levels of
rainfall in the area. Dr. Watson noted the area had experienced eighteen-
inches of rainfall in September 2018 alone. He also stated the area had
above normal levels of rain in October and November 2018, and the day
the tree fell, the area received two inches of rain. Given the rain in the
area over the two-year period before November 2018, Dr. Watson opined:
“[T]he tree fell from root and soil failure[,] . . . likely [because] some of the
roots were dead and decayed because of past flooding events and stress.”
Yet Dr. Watson also acknowledged that it was “obvious from photographs
[of the tree taken after the incident] that the tree was partially alive with
some dead branches.” Even so, Dr. Watson testified the presence of dead
limbs in the tree “does not necessarily mean the entire tree would have
fallen.”
4 Frank Thibodeaux, hired to testify by the plaintiffs as their expert
witness, has a master’s degree in urban forestry. Thibodeaux wrote a
report, which the plaintiffs filed to support their response to the City’s
plea. Thibodeaux reached the following conclusions in his report: (1) the
weather played no part in causing the tree to fall; (2) the City’s
“maintenance of the subsurface utilities (water and sewer) in right-of-
way (within the subject tree’s root plate) more likely than not led to the
decayed condition and failure of subject tree[;]” (3) he would have
expected “any lay person to see this tree appear[ed] to be dying or dead[;]”
and (4) the work the City performed in the easement near the tree over
the years led to “a prolonged period of senescence, slow death, and
eventual failure of the tree.”
For the purpose of the hearing on the City’s plea, the Lovelaces’
Third Amended Petition was their live pleading. The petition alleges the
City had actual and constructive knowledge of the unreasonably
dangerous condition—the “dead tree”—which fell and struck Scott. The
petition alleges that Collazo owned the property where the tree was
located and alleges the City has a right-of-way there. The petition
concludes that both Collazo and the City had a duty to Scott to exercise
5 ordinary care and to take reasonable steps to either remove the tree, to
warn Scott of the tree’s dangerous condition, or to otherwise make the
condition of the premises safe.3
As to the City, the plaintiffs relied on the Tort Claims Act, section
101.021, to establish the legislature waived the City’s immunity from suit
so the trial court could exercise jurisdiction over their claims.4 The
petition asserts the City was liable for causing Scott’s injury under the
Tort Claims Act on three theories: (1) a premise-liability claim, which is
tied to the tree’s location in the City’s right-of-way; (2) a special defect
claim, which alleges the City should have known of the dangerous
condition of the tree before it injured Scott; and (3) a motor-driven
equipment claim, which is tied to the plaintiffs’ theory that when City
employees installed pipes for its stormwater and water system in the
right-of-way the employees damaged the tree’s roots. The plaintiffs also
alleged the City was liable to them on a constitutional nuisance claim,
which the plaintiffs allege the City caused by “creating and/or
3Collazo is a defendant in the trial court, but he is not a party to this appeal. 4Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Governmental
Liability). 6 contributing to create the nuisance at issue (the dead/rotten tree)
through installation, maintenance and use of the [City’s] equipment [in
the easement].”
The City challenged the trial court’s authority to adjudicate the
dispute by filing a combined plea to the jurisdiction and motion for
summary judgment. 5 Generally, the combined plea and the evidence the
City filed supporting it assert that, before the tree fell, no one from the
City knew the tree was dead or knew the tree was in the City’s right-of-
way.
For example, the evidence the City filed includes the affidavit of
Brad Bailey, the City’s mayor. Bailey also lives next door to the
Lovelaces. In his affidavit, Bailey swore that before November 17, the day
Scott was injured, he had noticed and picked up dead branches that had
fallen onto the street from the tree in Collazo’s yard. Even so, Bailey
continued, he didn’t “pay any attention to the tree in question.” As to
5A plea to the jurisdiction is a dilatory plea that is used to defeat a plaintiff’s cause of action without regard to whether the plaintiff’s claims have merit, as the plea requires the court to decide whether it has subject matter jurisdiction over the plaintiff’s case. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).
7 Bailey’s knowledge about whether the tree was in danger of falling and
whether it was in the City’s right-of-way, Bailey swore:
I had no clue it was about to fall, did not think that it was dead or subject to falling, did not know or believe it was on the City of Groves[’] property, never perceived there was a danger from that tree falling across the street, never spoke with anyone about there being a danger it would fall, never reported to a private citizen or to the City of Groves any type of concern about the tree falling, was never told by anyone the tree was in danger of falling, and there was nothing to alert me to the fact the tree was about to fall or posed some danger of falling at any point before it actually fell on November 17, 2018.
In another affidavit, D.E. Sosa, the City’s manager, swore that
typically, he would be the person who would be notified of concerns about
problems in the City’s right-of-way. According to Sosa, the first time the
City learned about “this tree . . . was when the Fire Department notified
the Public Works Department for the [C]ity of Groves sometime after the
accident on November 7, 2018, [that an accident] had occurred.” Sosa
swore that before November 7, to his knowledge, “no employee or official
of the City . . . had received . . . any complaint and/or report, nor had they
made any complaint, report or observation that the tree was dead, that
the tree was in danger of falling, that the tree was dangerous[,] or [ ]
about to fall.”
8 The Lovelaces responded by filing evidence opposing the City’s
combined plea. The plaintiffs’ evidence includes a survey drawing of
Collazo’s lot, which was done by a surveyor that Collazo hired around
four months after the tree fell. It shows the surveyor, Randall Creel,
found a stump hole and 30-inch-tree stump in the City’s right-of-way.
According to the notes near the bottom of Creel’s drawing, the stump hole
he found is “IN PUBLIC R.O.W. BY [ONE FOOT, EIGHT INCHES].”
For its part, the City doesn’t dispute that City equipment, which
includes a water meter, underground pipe and drain line, are on Collazo’s
side of the street on Jackson Boulevard and in the City’s right-of-way. As
to this equipment, the plaintiffs’ evidence shows that City employees
used an excavator to install a sewer line in the City’s right-of-way on
Collazo’s side of the street in 2002. In 2003 and 2008, City employees
replaced the water meter serving the house where Collazo now lives. The
water meter to Collazo’s home is near the base of the tree.
The plaintiffs also produced other evidence that City employees
were in the neighborhood around Jackson Boulevard before the tree fell.
For example, the record shows City employees connected or disconnected
water-utility services to Collazo’s home three times in the year before the
9 tree fell, twice in March 2018 and once in November 2017. Once a week,
City employees drove garbage trucks on Jackson Boulevard to pick up
the trash cans that residents placed outside their homes on Jackson
Boulevard. Once a month, a City employee drove a truck down Jackson
Boulevard while using an electronic device in the truck to gather signals
from water meters so the meter readings could be taken remotely.
In response to the arguments raised in the plaintiffs’ response, the
City argued that when properly characterized under the Tort Claims Act,
the plaintiffs’ claim was a premise-defect claim and not special defect
claim under the Act. So they argued that because the plaintiffs couldn’t
show the City had actual knowledge of the alleged defect before the tree
fell on Scott, they couldn’t prove the City’s governmental immunity from
suit had been waived. After conducting a hearing, the trial court denied
the City’s combined plea without stating a basis for its ruling.
Standard of Review and Applicable Law, The Texas Tort Claims Act
We review trial court rulings on pleas to the jurisdiction de novo.6
We look first to the facts the plaintiffs pleaded in their petition to
6See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). 10 determine whether the petition affirmatively demonstrates the trial
court’s subject-matter jurisdiction over the dispute. 7 We construe the
petition liberally and in the plaintiffs’ favor, looking to the plaintiffs’
intent.8 When the defendant’s plea to the jurisdiction challenges the
existence of jurisdictional facts, the trial court may consider evidence,
and when necessary, it must do so to resolve the jurisdictional issues the
pleadings raise. 9
If the evidence the parties submit implicates the merits of the case,
the standard of review we follow generally mirrors the standard followed
in motions for summary judgment.10 Under that standard, the burden is
on the governmental unit that filed the plea to present evidence to
support its plea. 11 When the governmental unit meets its burden, the
burden shifts to the party opposing the plea to show that a disputed issue
of material fact exists on the jurisdictional issue. 12
7Id. at 226. 8Id. 9Id. at 227 (citing Bland Indep. Sch. Dist., 34 S.W.3d at 555). 10Id. at 227-28; see Tex. R. Civ. P. 166a(c). 11Miranda, 133 S.W.3d at 228. 12Id.
11 When examining evidence on a plea, we take as true the evidence
favoring the party opposing the plea and we indulge every reasonable
inference and resolve any doubts in that party’s favor. 13 If the evidence
creates a fact issue on the jurisdictional issue, the trial court may not
grant the plea, and the issue of fact needed to resolve the jurisdictional
issue is left to the factfinder based on the evidence presented in the
trial. 14 But if the undisputed evidence establishes no jurisdiction exists,
or if it fails to raise a fact issue on the jurisdictional issue, whether the
trial court has subject-matter jurisdiction of the dispute is decided as a
question of law.15
As political subdivisions of the state, governmental immunity
protects cities from being sued unless their immunity from suit has been
waived by a statute waiving the entity’s right to governmental immunity
in clear and unambiguous language. 16 When a governmental unit like a
city is immune from suit, its allegations implicate the trial court’s
subject-matter jurisdiction over the suit, meaning the power the trial
13Id. 14Id. at 227-28. 15Id. at 228. 16City of Conroe v. San Jacinto River Auth., 602 S.W.3d 444, 457
(Tex. 2020). 12 court was delegated by the legislature to adjudicate the dispute on its
merits. 17
Cities seeking to challenge a trial court’s power to adjudicate a
lawsuit generally do so by filing pleas to the jurisdiction.18 They may also
raise claims of immunity by filing motions for summary judgment on
evidentiary grounds. 19 Here, the City challenged the trial court’s right to
adjudicate the dispute by combining their plea with a traditional and no-
evidence motion for summary judgment.
In the trial court and here, the Lovelaces argue that the Texas Tort
Claims Act waives the City’s immunity from suit for the claims on which
they based their suit. In their Third Amended Petition, which is their live
pleading, the Lovelaces alleged the tree that fell on Scott and caused his
injuries raised both a premise and a special defect claim, which were
waived by the Act. The plaintiffs further alleged the City used motor-
driven equipment when installing a water meter and piping in its right-
of-way, work that involved excavating near the base of the tree. They
17See EBS Sols, Inc. v. Hegar, 601 S.W.3d 744, 749 (Tex. 2020). 18Cityof Magnolia 4A Econ. Dev. Corp. v. Smedley, 533 S.W.3d 297, 299 (Tex. 2017). 19Town of Shady Shores v. Swanson, 590 S.W.3d 544, 550-551 (Tex.
2019); see also Tex. R. Civ. P. 166a. 13 claimed the City’s use of that equipment “caused and contributed to cause
the tree to become dead and rotten and fall[.]”
In the trial court, the Lovelaces argued the City was liable to them
for Scott’s injury because the City had damaged the tree’s roots when
using motor-driven equipment to install a water meter and piping in the
right-of-way. Under the Tort Claims Act, the legislature waived
governmental immunity for injuries caused by a governmental unit’s
employee’s operations or use of motor-driven equipment while in the
course and scope of their employment “if the governmental unit would,
were it a private person, be liable to the claimant according to Texas
law.” 20
The TTCA also provides a limited waiver of governmental immunity
for premise defect claims. 21 For example, the TTCA waives governmental
immunity for the varied unreasonably dangerous conditions that a
factfinder may determine exists on a governmental unit’s premises,
20Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). 21See id. §§ 101.022(a) (providing for governmental unit’s liability
for premise defects), (b) (providing for governmental unit’s liability for special defects), .025 (waiving sovereign immunity to suit “to the extent of liability created by this chapter” and allowing person with claim under TTCA to sue governmental unit for damages); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 115-16 (Tex. 2010) (per curiam). 14 defects the Act categorizes as “premise defect[s].”22 The legislature also
waived governmental immunity for “special defects,” a subset of premise
defects, which consist of defects like “excavations or obstructions on
highways, roads or streets[.]” 23
The classification of the defect as a general or as a special defect
matters because it affects the duties the governmental unit owes the
person who is injured while on the government’s premises.24 For premise
defect claims under the TTCA, the plaintiff must generally plead and
prove:
(1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner actually knew of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; (5) the owner’s failure was a proximate cause of injury to the licensee.25
Proving a governmental unit possessed actual knowledge of a defect,
however, is more onerous than proving that it had constructive
22Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). 23Id. § 101.022(b). 24Id. § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex.
2008) (per curiam). 25See Sampson, 500 S.W.3d at 391. Additionally, plaintiffs may
recover if they plead and prove the governmental unit engaged in willful, wanton, or grossly negligent conduct. Id. But the Lovelaces didn’t allege the City engaged in willful, wanton, or grossly negligent conduct. 15 knowledge (should have known) of the unreasonably dangerous
condition. For example, it doesn’t satisfy the actual knowledge
requirement if the proof merely shows that government employees knew
“materials deteriorate over time and may become dangerous[,] . . . [as]
the actual knowledge required for liability is of the dangerous condition
at the time of the accident, not merely of the possibility that a dangerous
condition can develop over time.”26
When they exist, special defects on premises under government
control place a greater duty of care on the government and its employees
than when the defect is classified as an ordinary premise defect.27 When
classified as a special defect, the government owes the person injured on
the government’s premises the same duty that a private landowner owes
to an invitee. “Whether a condition is a special defect is a question of
law.”28 If the defect is classified as a special defect, the duty the
government owes to the user of its premises requires the government to
use ordinary care to reduce or eliminate an unreasonable risk of harm
26City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006). 27Compare Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b), with id. § 101.022(a). 28Hayes, 327 S.W.3d at 116.
16 created by the special defect of which the government is or reasonably
should be aware.29 That said, when deciding whether a condition is a
special defect, our Supreme Court has cautioned: “The class of special
defects contemplated by the statute is narrow.”30 In deciding whether a
special defect exists the focus is on the expectations of an “‘ordinary user’
who follows the ‘normal course of travel.’” 31
Analysis
In the first six issues of the City’s brief, the City argues the plaintiffs’
pleadings and the evidence the trial court considered in ruling on the
City’s plea fails to show the City’s governmental immunity was waived
for Scott’s claims that he was injured by 1) motor-driven equipment, 2) a
condition or use of tangible personal property, 3) a condition or use of real
property, 4) a special defect, or 5) a nuisance. In the City’s sixth issue, it
argues the trial court erred in considering the report from the plaintiffs’
expert in urban forestry, Thibodeaux, over the City’s objections that the
report shouldn’t have been admitted because Thibodeaux’s opinions are
29See State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). 30Hayes, 327 S.W.3d at 116. 31Id.
17 conclusory and were not based on competent summary-judgment
evidence.
The Motor-Driven Equipment and Tangible Personal Equipment Claims
First, we consider whether the plaintiffs’ claims arose from the City’s
operation and use of motor-driven equipment. The Tort Claims Act
waives a city’s governmental immunity for personal injury claims
“arise[ing] from the operation or use of a motor-driven vehicle or motor-
drive equipment[.]” 32 But here, the evidence shows the tree fell from
rotting over time and not because it was hit by any of the City’s motor-
driven equipment, which then caused it to fall.
Without question, the plaintiffs’ theory is that the City used motor-
driven equipment and cut some of the tree’s roots, which weakened the
tree and over many years, starved the tree, and caused its death. In their
petition, the plaintiffs alleged the City’s use of motor-driven equipment
in the right-of-way “contributed to causing the dead, dangerous condition
of the tree[.]” The evidence supporting the claim includes deposition
testimony from City employees, which shows the City installed a sewer
32Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(A). 18 line and a water meter in the right-of-way more than a decade before the
tree fell. The plaintiffs also filed a report from their urban forestry expert,
Thibodeaux, whose report states the City’s work in the easement over the
years “more likely than not led to the decayed condition and failure of the
tree.”
Still, the Tort Claims Act requires the government’s tortious act to
“relate to the defendant’s operation of the vehicle rather than to some
other aspect of the defendant’s conduct.” 33 And in its appeal, the City
argues there “is no evidence that any yet to be identified employee could
be held liable under Texas law, for any yet to be identified act or omission
involving the operation or use of any yet to be identified motor driven
equipment, which allegedly caused injury some 16 years later.”
We agree with the City that there is no evidence in the record raising
an issue of material fact about whether any City employee’s negligent use
of motor-driven equipment in the right-of-way proximately caused the
tree to fall on Scott. The survey drawing in evidence shows that before
the tree fell, the tree in question was located just inside the City’s right-
Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 33Ryder
928 (Tex. 2015). 19 of-way on Jackson Boulevard. By statute, home-rule municipalities like
the City have “exclusive control over and under the . . . streets . . . of the
municipality.”34 Here, no one disputes that the City had the right to
install City-owned pipes, drains, and meters in its own right-of-way.
Moreover, there is no testimony in the record that the City acted
negligently in performing the work when it dug the ditch to lay the lines
to install the pipes in the right-of-way, or that the City negligently
installed the City’s water meters there.
Without evidence of tortious conduct, meaning negligence, there is
no tortious act that relates to the City’s use of any motor-driven
equipment. The plaintiffs did not claim the City damaged a tree located
outside the City’s right-of-way. Nor did they claim that City employees
dug in areas where the City had no legal right to dig. For the City to be
liable to Scott under the Tort Claims Act for operating equipment, the
plaintiffs needed to show an “employee would be personally liable to the
claimant according to Texas law” to establish the Tort Claims act waiver
34Tex. Transp. Code Ann. § 311.001(a). 20 applied to their claims.35 They failed to make that showing on the record
before us here.
We reach the same result as to the plaintiffs’ claim alleging the City
employees injured Scott by installing City-owned tangible personal
property in the right-of-way “at or near the base of the tree.” 36 The waiver
that applies to the use of tangible property also requires plaintiffs to show
the “governmental unit would, were it a private person, be liable to the
claimant according to Texas law” to establish the Tort Claims Act waiver
applies to the claim. 37 The utilities at issue are in the City’s right-of-way.
Since the parties agree the City had the right to install the utilities
within the City’s right-of-way, a City employee would not have been
negligent in cutting some of the tree’s roots installing equipment in a
location over which the City had a right of control. 38
The Premise and Special Defect Claims
The Tort Claims Act generally limits a governmental unit’s duty to
those who may be injured by defects on government property “by
35Tex. Civ. Prac. & Rem. Code Ann. § 101.021(1)(B). 36Id. § 101.021(2). 37Id.
Tex. Transp. Code Ann. § 311.011(a); Tex. Civ. Prac. & Rem. 38See
Code Ann. § 101.021(1)(B)(2). 21 classifying the user of the government’s property as a licensee rather
than an invitee.”39 That said, when the plaintiff’s injury is caused by a
special defect like an excavation or an obstruction on a highway, road, or
street, the government’s duty to the plaintiff isn’t as limited. 40 Special
defects “include other defects of the same kind or class as the two
expressly mentioned in the statute.”41
Lovelace claimed that, when the tree fell, “it qualified as both a
premise defect and a special defect.” He alleged the City had actual and
constructive notice of the unreasonably dangerous condition of the dead
tree and failed to exercise ordinary care to keep its right-of-way in a safe
condition or to warn him of the danger of the tree.
We address the plaintiffs’ special defect claim before addressing their
ordinary premise-defect claim. It’s undisputed the tree was standing
until it fell and injured Scott. Generally, conditions are considered special
defects like the two identified in the statute “only if they pose a threat to
the ordinary users of a particular roadway.” 42 Until the tree fell and
39City of Denton v. Paper, 376 S.W.3d 762, 763 (Tex. 2012); Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). 40Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). 41Paper, 376 S.W.3d at 764. 42Payne, 838 S.W.2d at 238 n.3.
22 obstructed the street, it didn’t prevent any cars from driving on Jackson
Boulevard. The danger that Scott identified in his petition concerned the
City’s failure to remove a rotten, standing tree before it fell. And he sued
the City because the tree fell on him and injured him while he was in his
own yard, not because the tree was obstructing traffic in the street. 43 For
all these reasons, the tree was not a special defect under the statute as
to Scott’s or his son’s claims. 44
Next, we address whether the evidence the plaintiffs filed raised a
genuine issue of material fact on the issue of whether the City had actual
knowledge of the rotten and dangerous condition of the tree before it fell
and injured Scott. Under the Tort Claims Act, an ordinary premise-defect
claim requires the plaintiff to prove a fact issue exists on the issue of the
government’s actual knowledge to establish the trial court has
jurisdiction to allow the case to proceed. 45 That is because in the ordinary
premises defect claim, the legislature limited “the duty that a private
person owes to a licensee on private property[.]”46
43See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b). 44Id.§ 101.022(a). 45Sampson, 500 S.W.3d at 385 46See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).
23 Under Texas law, the duty owed a licensee is “not to injure a licensee
by willful, wanton or grossly negligent conduct” and “to use ordinary care
either to warn a licensee of, or to make reasonably safe, a dangerous
condition of which the [entity] is aware and the licensee is not.”47 So the
plaintiffs not only had to show the City knew the tree was in the right-
of-way and had actual knowledge of the dangerous condition of the tree,
but they also had to show the City had actual knowledge of the
“dangerous condition at the time of the accident.” 48 Stated another way,
the plaintiffs needed to prove that some City employee or a City official
realized either from the way the tree looked or from being notified by
someone that a dead tree that was in danger of falling was in the City’s
right-of-way on Jackson Boulevard before Scott was injured by the tree.
Yet here, the evidence shows at most that the City had constructive
knowledge of the tree’s potential danger. There is no evidence showing
that a City employee or official had actual notice of the dangerous
condition of the tree before Scott’s injury occurred. Depositions taken
from City employees and the City’s mayor show they denied knowing
47Sampson, 500 S.W.3d at 385 (cleaned up). 48Hayes, 327 S.W.3d at 117. 24 there was a dead tree in the right-of-way before the tree fell. Scott’s
deposition, which for the appeal we accept as true, shows that sometime
after he was injured, he and Bailey were mowing grass when Scott
“mentioned to him about [the tree] throwing branches on the street[.]”
According to Scott, “I’m pretty sure I thought he said it was dead too.”
But even if accepting as true that Bailey acknowledged he thought the
tree was dead, Bailey denied knowing the tree was in the City’s right-of-
way. And while Bailey also acknowledged having seen dead branches
from the tree in the street before the tree fell, he swore “there was
nothing to alert [him] to the fact the tree was about to fall or posed some
danger of falling at any point before it actually fell[.]” Scott never claimed
that he told Bailey before the tree fell that he (Scott) thought the tree was
dead, in danger of falling, or in the City’s right-of-way. Scott also testified
that to his knowledge, Bailey was not knowledgeable about trees.
When Scott was deposed, he candidly admitted he “never expected
the whole thing” to fall even though he too had seen branches that had
fallen from the tree in the street. And there’s simply no other evidence
that anyone from the City was notified by any source there were any
problems with the tree before it fell and injured Scott.
25 All in all, the evidence the Lovelaces point to doesn’t show the City
had actual knowledge of the dangerous condition of the tree before it fell
on Scott. Even if the evidence supports the inference that the City should
have realized the tree was dead from the fact it was dropping branches
in the street, an issue we need not decide, the issue in this case is whether
the City had actual knowledge of the dangerous condition of the tree
before it fell on Scott.49 Because the evidence doesn’t raise a fact issue
showing the City had that kind of knowledge, the trial court erred in
concluding it had jurisdiction over the City under the Tort Claims Act.
The Nuisance Claim
The plaintiffs’ petition also raises a “constitutional nuisance” claim,
as they alleged the City created a nuisance—the dead tree—by installing,
maintaining, and using the utilities the City’s employees installed in the
easement. This nuisance allegedly “resulted in an interference” with the
plaintiffs’ “constitutional rights of use and enjoyment of their property, .
. . which rights are protected by the Texas Constitution.”
49We note the plaintiffs asked the Court to remand the case to the trial court to allow them to amend their petition and cure any deficiencies in their pleadings. But we have disposed of their premise-defect claim on the basis they presented no evidence of the City’s actual knowledge of the defect, not because they didn’t plead a sufficient claim. 26 Article I, section 17 of the Texas Constitution provides that “[n]o
person’s property shall be taken, damaged or destroyed for or applied to
public use without adequate compensation being made[.]”50 To start, the
plaintiffs didn’t plead or present any proof that their property was
damaged when the tree fell on Scott. They sought to recover the type of
damages that plaintiffs usually seek in personal injury cases—damages
for pain, suffering, mental anguish, lost wages, and medical expenses.
They also didn’t plead or prove that their property was taken by the City
and applied to a public use.
On top of those problems, the plaintiffs failed to plead or prove the
City intended to take his property, or that it knew to a substantial
certainty that the property damage resulting from the City’s decision to
lay the pipe was substantially certain to result from the City’s actions in
cutting the tree’s roots and to maintain the City’s water and storm utility
systems in the City’s right-of-way. 51 We have already explained how the
plaintiffs failed to meet their burden to present any evidence to raise a
fact issue showing that any City officials or employees knew the dead tree
50Tex. Const. art. I, § 17(a). 51See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex. 2004). 27 was in the City’s right-of-way before the tree fell on Scott. We have also
explained there is no evidence in the record proving that any of the City’s
employees engaged in negligent conduct by cutting tree roots in the City’s
right-of-way to install pipes for its utility systems there.
Last, to avoid governmental immunity, plaintiffs may not alter the
nature of their claims by recasting them as nuisance claims by artful
pleading to avoid a plea to the jurisdiction. When evaluating a plaintiffs’
petition, we are not bound by the petition when determining the true
nature of plaintiffs’ cause of action; instead, we may consider the entire
record and depending on what it shows, decide what the plaintiffs’ cause
of action actually is depending on what the record shows the facts are
that gave rise to the claims. 52
The Lovelaces’ petition states a claim for the accidental result of the
City’s act, that is the City’s alleged negligence in failing to remove a dead
tree in the City’s right-of-way after it should have known a dead tree was
there. The tree did not belong to Scott, and even though Scott claimed he
was hit by the tree when it fell, the Lovelaces’ real property was not
52SeeLake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 848 (Tex. 2022). 28 “taken or damaged for public use.” 53 On this record, no valid factual basis
exists to support the pleading of a constitutional nuisance claim.
Conclusion
We conclude the plaintiffs failed to demonstrate that an issue of
material fact proves that Scott’s injury resulted from the City’s operation
or use of motor-driven equipment, the City’s use of tangible personal
property, a defect in the City’s premises, or a special defect. We further
conclude the plaintiffs do not have a constitutional-takings claim. We
sustain issues one through five. We need not address the City’s sixth
issue, since resolving that issue in favor of the City would not give the
City any greater relief. 54 We reverse the trial court’s judgment and
dismiss the plaintiffs’ case against the City for lack of jurisdiction.
REVERSED AND RENDERED.
_________________________ HOLLIS HORTON Justice
Submitted on March 23, 2022 Opinion Delivered March 16, 2023 Before Horton, Johnson and Wright, JJ.
53Jennings, 142 S.W.3d at 313 (cleaned up). 54Tex. R. App. P. 47.1 (requiring opinions to address each issue that is necessary to resolving the appeal).