Opinion issued August 27, 2026
In The
Court of Appeals
For The
First District of Texas
erred in denying its motion for judgment notwithstanding the verdict (“JNOV”) and it lacked subject matter jurisdiction over Robinson’s suit.
We reverse and render.
Background
In his petition, Robinson alleged that on May 14, 2017, he was “driving [his truck] southbound on Beckley Street” in Harris County, Texas and “attempt[ed] to make a left turn onto Dewalt Street.” However, unbeknownst to Robinson, a City “water line and hydrant had broken open and washed away the pavement, creating a ‘massive sink hole’ in the middle of the street.” Robinson’s truck “crashed into the hole.” Robinson alleged that a Houston Police Department (“HPD”) officer told him that “he had seen the sink hole earlier in the day and reported it,” but the City’s Public Works Department had not “arrive[d] on scene to fix the []hole until after [it] w[as] notified of . . . Robinson’s accident.”
Robinson brought a negligence claim against the City, alleging that the City was negligent in “failing to properly maintain [the] premises in a reasonable and safe manner,” “responding to a known hazard,” and “failing to provide [a] warning.” Robinson alleged that the City’s negligence proximately caused his injuries.
The City answered, generally denying the allegations in Robinson’s petition and asserting, among other things, that Robinson’s claim was barred by governmental immunity.
3
At trial, Robinson testified that on the evening of May 13, 2017, he went to his ex-wife’s house with his grandchildren for dinner. He stayed late that night so that he could put one of the grandchildren to bed. After leaving the house, at about 2:50 a.m. on May 14, 2017, he drove his Chevrolet Blazer truck on West Montgomery Road, before turning onto Dewalt Street. As he drove on Dewalt Street, he saw “water in the ditches” which was “all backed up,” but the water was not “coming up” onto the street.1 Robinson could not tell if the water was moving, and he did not think there was a problem. Because he was in a truck and “the street [was] secure,” Robinson attempted to turn onto Beckley Street. “When [he] made [the] turn, the whole street just gave way,” and his truck “collapsed down in there.” As Robinson explained, the “whole asphalt [was] there and then when [he] drove, it fell.” Robinson also testified that before the accident “the street was there” and it was only when he started driving that the sinkhole was created. According to Robinson, “when [he] made th[e] turn, that’s when everything collapsed.”
After his truck fell into the sinkhole, Robinson climbed out the window and onto the roof of his truck. He was soaking wet from water entering the truck. Robinson believed that “water had washed away all the foundation from up under the asphalt.”
1 At another point in his testimony, Robinson said that there was “a little water on the road,” but the water level was not “high.”
4
Robinson noted that he had driven the same route to his ex-wife’s house earlier in the evening for dinner, and there was no water present. The weather was dry that evening.
According to Robinson, a law enforcement officer arrived at the scene within thirty minutes of his accident. That officer told Robinson that he had just been through the area and called about the water.
Dr. Zach Ratcliff, a chiropractor, testified, by deposition, that Robinson told him that he was driving his truck when “the road essentially collapsed in front of him.”
The trial court admitted into evidence a copy of a Texas Peace Officer’s Crash Report related to Robinson’s accident. The “Investigator’s Narrative Opinion of What Happened” stated that “there was a massive sink[hole] at the intersection of [Dewalt] St and Beckley St due to an underground water line breach causing the water to break through the concrete.” Robinson drove his truck “into the sink[hole] causing the front of his vehicle to sink down into the hole in the street.” After the accident, “City of Houston Public Works [Department] was notified about the sink[hole] and arrived on scene, blocking off the intersection and fix[ing] the sinkhole.”
The trial court also admitted into evidence a “Cityworks” document, which identified a “minor water main break” at 9530 Beckley Street and 1900 Dewalt Street
5
as a “complaint.” The “Date/Time Reported” was listed as 10:17 p.m. on May 13, 2017. The “Cityworks” document noted that a call about the “water main break” had come from HPD. The body of the document included a comment made at 3:17:05 a.m. on May 14, 2017, stating that there was a water main leak on a street and identifying its location.
After Robinson rested, the City moved for a directed verdict on Robinson’s negligence claim. The City argued that Robinson had alleged a premises liability claim and he had not presented evidence that the City had actual notice of the sinkhole because “the condition didn’t exist until . . . Robinson was driving right over the roadway.” In response, Robinson argued that a “311 call” had notified the City of a “minor water main break” at 10:17 p.m. on May 13, 2017, making the City aware of the “water main break” before Robinson’s accident. In response, the City reiterated that the condition at issue was the sinkhole, not the “minor water main break,” and the City was not aware of the sinkhole until after Robinson’s accident. The trial court denied the City’s request for a directed verdict.
During the City’s case-in-chief, Roy Woodard, Jr. testified that he was employed by the City as a 311 administrator, and “311 [was] basically a call center that [was] the liaison between the public and the City,” which “create[d] service requests . . . that [went] out to the departments and the departments perform[ed] the task.” “311 was created to make it a lot easier for citizens to get things reported”
6
and to “get city services.” Woodward testified that part of his job responsibilities included keeping an electronic copy of all 311 service requests.
While viewing a document titled “City of Houston 311,” which the trial court admitted into evidence, Woodward testified that it showed a “service request for a water leak” that was created by 311 on May 14, 2017 at 3:15 a.m. According to Woodward, a “311 call” was made by HPD about the water leak and the location identified was “9530 Beckley Street at Dewalt [Street].” The call stated that “the water leak was gushing in the street.”
Woodward further testified that a second “311 call” was made at 3:17 a.m. on May 14, 2017 by HPD, as evidenced by a second “City of Houston 311” document that was admitted into evidence. This “311 call” by HPD reported “a cave-in in the street” at “9530 Beckley Street at Dewalt Street.” According to Woodward, these were the only two “311 requests” made for the location of Dewalt Street at Beckley Street in May 2017.
Woodward also testified about the “Cityworks” document that was previously admitted into evidence during Robinson’s case-in-chief. He explained, while viewing the document, that although the top of that document listed the “Date/Time Reported” for the “minor water main break” at 9530 Beckley Street and 1900 Dewalt Street as 10:17 p.m. on May 13, 2017, the body of the “Cityworks” document indicated that the “311 call [about the water leak] came in” at 3:17 a.m. on May 14,
7
2017. According to Woodward, the time listed in the body of the “Cityworks” document was consistent with the two calls that 311 had received from HPD in the morning hours of May 14, 2017.
Arthur Flores testified that he was employed by the City’s Public Works Department in the IT department. The software program used by the Public Works Department in 2017 was called “Cityworks.” According to Flores, the “Cityworks” document admitted into evidence during Robinson’s case-in-chief was created from information that came from a “311 application.” The “Date/Time Reported” listed on the “Cityworks” document was different than the date and time of the “311 calls” received on May 14, 2017 because there was “a system malfunction on the time zone when it came over the Cityworks” system, which was an issue that had come up before.
Marcus Kennedy testified that he worked for the City’s Public Works Department as a field supervisor. His job responsibilities included maintaining water service lines, water meters, and water mains. According to Kennedy, it was not possible to anticipate when a water main break would occur. 311 notified the Public Works Department about water main breaks.
Kennedy also testified that the water main break at Beckley Street and Dewalt Street occurred on May 14, 2017, and he was dispatched at 3:57 a.m. to the area.
8
Katreace Jones testified that she worked for the City in Transportation and Drainage Operations. On May 14, 2017, at 3:18 a.m., Transportation and Drainage Operations received a service request about a street hazard, “a cave-in in the street,” located at Beckley Street and Dewalt Street. At 3:19 a.m., Jones dispatched an investigator to the location. According to Jones, the service request about the street “cave-in” was created by 311 at 3:17 a.m.
HPD Officer R. Martin testified that he was on patrol on May 14, 2017, when he, and his partner, came upon Robinson’s truck in the sinkhole at 2:50 a.m. and notified HPD dispatch. Before seeing Robinson’s truck in the sinkhole, neither Martin nor his partner was aware of the situation at Beckley Street and Dewalt Street. They had not previously seen water on the roadway or in the ditches while on patrol. When Martin came upon Robinson’s truck, Robinson was out of the truck. Martin spoke to Robinson about what happened and that information was written in the “investigative narrative opinion of what happened” portion of his report. Martin’s report listed the date and time of the accident as May 14, 2017 at 3:15 a.m.
After both sides rested, the City re-urged its motion for a directed verdict, which the trial court denied.
The trial court’s charge to the jury included three questions, the first of which asked: “Did the negligence, if any, of [the City or Robinson] proximately cause the injury in question?” Related to the first question, the jury was instructed:
9
With respect to the condition of the premises, [the City] was negligent if:
a. the condition posed an unreasonable risk of harm, and
b. the City . . . had actual knowledge of the condition at the time of the occurrence in question, and
c. . . . Robinson did not have actual knowledge of the condition;
and
d. the City . . . failed to exercise ordinary care to protect . . . Robinson from the danger, by both failing to adequately warn . . . Robinson of the condition on the roadway and failing to make that condition reasonably safe.
The jury found in favor of Robinson on his negligence claim. Specifically, the jury found that the City’s negligence proximately caused Robinson’s injuries under the above question of the jury charge. The jury awarded Robinson $158,852.95 in total damages.
The City then filed a motion for JNOV, arguing that the trial court should render a take-nothing judgment on Robinson’s negligence claim because Robinson did not put forward any evidence that the City had actual knowledge of the sinkhole at the time of Robinson’s accident. Instead, the evidence showed that “Robinson was driving on the roadway when the asphalt disintegrated underneath [his] vehicle and it fell into a sinkhole which appeared suddenly.”
10
The trial court denied the City’s motion and entered a judgment based on the jury’s findings, which awarded Robinson $158,852.95 in damages on his negligence claim.
Standard of Review
The trial court may render a JNOV if a directed verdict would have been proper, and the court may disregard any jury finding on a question that does not have evidentiary support. TEX. R. CIV. P. 301. We review the denial of a motion for JNOV under a legal sufficiency or “no evidence” standard of review. Austin Bridge & Rd., LP v. Suarez, 556 S.W.3d 363, 376 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); see City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005).
Actual Knowledge
In its first issue, the City argues that the trial court erred in denying its motion for JNOV because there was no legally sufficient evidence that the City had actual knowledge of the sinkhole at the time of Robinson’s accident. In its second issue, the City argues that because Robinson failed to provide any evidence of the City’s actual knowledge, Robinson failed to meet his burden to demonstrate that the City waived its governmental immunity.
When a party challenges the legal sufficiency of the evidence to support an adverse finding on which it did not have the burden of proof, the party must demonstrate that no evidence supports the finding. Nguyen v. Hoang, 507 S.W.3d
11
360, 370 (Tex. App.—Houston [1st Dist.] 2016, no pet.). “When determining whether legally sufficient evidence supports a jury finding, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not.” 4Front Eng’red Sols., Inc. v. Rosales, 505 S.W.3d 905, 908 (Tex. 2016). “A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004) (internal quotations omitted). “If the evidence offered to prove a vital fact’s existence is so weak as to do no more than create a mere surmise or suspicion, the record contains less than a scintilla.” JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 842 (Tex. 2018) (internal quotations omitted).
Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002). Although the terms “sovereign immunity” and “governmental immunity” are often used interchangeably, sovereign immunity “extends to various divisions of
12
state government, including agencies, boards, hospitals, and universities,” while governmental immunity “protects political subdivisions of the State, including counties, cities, and school districts.” Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivs. Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323–24 (Tex. 2006); see also Odutayo v. City of Houston, No. 01-12-00132-CV, 2013 WL 1718334, at *2 n.8 & *3 (Tex. App.—Houston [1st Dist.] Apr. 18, 2013, no pet.) (mem. op.).
The Texas Tort Claims Act (“TTCA”) provides a limited waiver of immunity for certain suits against governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109; Garcia, 253 S.W.3d at 655; City of Dallas v. Hillis, 308 S.W.3d 526, 530 (Tex. App.—Dallas 2010, pet. denied). The City is a governmental unit protected by governmental immunity, absent waiver. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(A); City of Houston v. Hussein, No. 01-18-00683-CV, 2020 WL 6788079, at *6 (Tex. App.—Houston [1st Dist.] Nov. 19, 2020, pet. denied) (mem. op.).
Relevant here, the TTCA waives a governmental unit’s immunity for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable to the plaintiff according to Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006) (“The [TTCA] includes, among other things, a limited waiver of the [S]tate’s
13
immunity from suits alleging personal injury . . . caused by premises defects.”); City of San Antonio v. Anderson, No. 04-20-00320-CV, 2021 WL 883472, at *3 (Tex. App.—San Antonio Mar. 10, 2021, no pet.) (mem. op.) (“Under the [TTCA], a claim for a condition or use of real property is a premises defect claim . . . .”). When a plaintiff’s claim arises from a premises defect,2 “the governmental unit owes to the [plaintiff] only the duty that a private person owes to a licensee on private property, unless the [plaintiff] pa[id] for the use of the premises.”3 TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a).
This limited duty requires that the governmental unit, as the premises owner, avoid injuring the plaintiff through willful, wanton, or grossly negligent conduct and to use ordinary care either to warn the plaintiff of, or to make reasonably safe, a dangerous condition of which the governmental unit is aware and the plaintiff is not. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex. 2016); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). The governmental unit is liable to a plaintiff if it had actual knowledge of the condition that injured the plaintiff. See Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d
2 Robinson, in his briefing, does not dispute that he brought a premises liability claim against the City.
3 It is undisputed that Robinson did not “pay[] for the use of the premises.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.022(a); see also City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.) (“If the plaintiff pays for the use of the premises, the governmental unit owes the plaintiff the duty owed to an invitee.”).
14
844, 850 (Tex. App.—Amarillo 2019, no pet.); Wong v. Tenet Hosps. Ltd., 181 S.W.3d 532, 537 (Tex. App.—El Paso 2005, no pet.). Absent willful, wanton, or grossly negligent conduct,4 to prevail on a premises liability claim, the plaintiff must show that: (1) a condition of the premises created an unreasonable risk of harm to the plaintiff; (2) the governmental unit actually knew of the condition; (3) the plaintiff did not actually know of the condition; (4) the governmental unit failed to exercise ordinary care to protect the plaintiff from danger; and (5) the governmental unit’s failure was a proximate cause of injury to the plaintiff. Payne, 838 S.W.2d at 237. If there is no evidence of one of these elements, then the plaintiff’s claim must fail. Sampson, 500 S.W.3d at 391.
Here, the City asserts that there was no evidence showing that it had actual knowledge of the sinkhole before Robinson’s accident.
Actual knowledge, rather than constructive knowledge, of the dangerous condition is the type of knowledge that is required. Id. at 391–92. To prove actual knowledge, the plaintiff must show that the governmental unit actually knew of the dangerous condition at the time of the accident. City of Corsicana v. Stewart, 249 S.W.3d 412, 413–16 (Tex. 2008) (“Actual knowledge requires knowledge that the dangerous condition existed at the time of the accident, as opposed to constructive
4 Robinson did not allege that the City’s conduct was willful, wanton, or grossly negligent.
15
knowledge which can be established by facts or inferences that a dangerous condition could develop over time.”). Knowledge of the possibility that the dangerous condition could develop over time is not enough. See Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010); Wilson, 576 S.W.3d at 850. In determining whether the governmental unit had actual knowledge of a dangerous condition, “courts generally consider whether the [governmental unit] ha[d] received reports of prior injuries or reports of the potential danger presented by the condition.” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008); see also Sampson, 500 S.W.3d 392.
In finding that the City’s negligence proximately caused Robinson’s injury, the jury also had to find that “the City . . . had actual knowledge of the condition at the time of the occurrence in question.” To determine whether the jury heard legally sufficient evidence to support a finding that the City “had actual knowledge of the condition,” we must first correctly identify the “condition” at issue. See Albertsons, LLC v. Mohammadi, 689 S.W.3d 313, 318 (Tex. 2024). The City asserts that the unreasonably dangerous condition of which it needed to have actual knowledge was the sinkhole, whereas Robinson asserts that “the flooded street caused by the broken water main was the relevant unreasonably dangerous condition.”
The Texas Supreme Court has explained that the “unreasonably dangerous condition for which a premises owner may be liable is the condition at the time and
16
place [the] injury occurs, not some antecedent situation that produced the condition.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 407 (Tex. 2006). For instance, in Mohammadi, a customer slipped and fell on a wet floor in a grocery store, and she sued the store for failing to warn her of an unreasonably dangerous condition. 689 S.W.3d at 315–16. The customer alleged that a store employee had placed a wet plastic bag in a shopping cart, water leaked onto the floor, and she slipped and fell in the water. Id. A jury determined that the store owner did not have constructive knowledge of an unreasonably dangerous condition. Id. Based on this finding, the jury did not consider whether the store owner had actual knowledge of a dangerous condition. Id. The customer appealed, arguing that the jury should have answered the actual-knowledge question despite finding that the store owner lacked constructive knowledge. Id. at 316–17.
In considering whether any evidence of actual knowledge existed, the court stated that the first step was to “correctly identify the ‘danger’ or ‘condition’ at issue.” Id. at 318. To identify the relevant condition, the court reiterated the rule from Brookshire Grocery: the “unreasonably dangerous condition for which a premises owner may be liable is the condition at the time and place injury occurs, not some antecedent situation that produced the condition.” Id. (quoting Brookshire Grocery, 222 S.W.3d at 407). For example, the Texas Supreme Court, in Brookshire Grocery, held that ice on the floor—not the drink dispenser from which “ice fell to
17
the floor . . . on a daily basis”—was the relevant condition. Id. (quoting Brookshire Grocery, 222 S.W.3d at 406–09). The court had also previously held that water on the floor of a basketball court could be an unreasonably dangerous condition, but not the leaky roof that would eventually allow water to drip. Id. (citing City of San Antonio v. Rodriguez, 931 S.W.2d 535, 536 (Tex. 1996)).
Applying the rule from Brookshire Grocery, the court, in Mohammadi, concluded that the wet floor on which the customer slipped—and not the leaking grocery bag that the store employee had placed in the shopping cart—was the relevant condition. Id. In doing so, the court explained:
[E]vidence that an employee knew a leaking bag was placed in a shopping cart cannot demonstrate [the store’s] actual knowledge of the wet floor on which [the customer] slipped. Perhaps [the store] should have known of the wet floor because a wet floor is a highly likely consequence of a leaking bag, but the jury has already answered the constructive-knowledge question in favor of [the store].
Id. at 319–20 (emphasis omitted); see also Chalmers v. Patel, No. 01-23-00241-CV, 2025 WL 337118, at *5 (Tex. App.—Houston [1st Dist.] Jan. 30, 2025, no pet.) (mem. op.) (applying Mohammadi and Brookshire Grocery and concluding “the relevant condition [was] the water on the bathroom floor,” not “the shower curtain which allowed the water to puddle on the floor”; “[t]he shower curtain was merely some antecedent situation that produced the condition” (internal quotations omitted)).
18
Robinson alleged in his petition that he was driving when a “massive sink hole in the middle of the street” appeared and his truck “crashed into the hole.” (Internal quotations omitted.) And Robinson’s testimony at trial revealed that his truck “collapsed down” into a hole in the street that was created by the weight of his truck. Thus, we conclude that the sinkhole was “the condition at the time and place” that Robinson’s injury allegedly occurred. See Mohammadi, 689 S.W.3d at 318; Brookshire Grocery, 222 S.W.3d at 407. As to the flooded street caused by the broken water main, that was merely “some antecedent situation that produced” the sinkhole, i.e., the condition. See Mohammadi, 689 S.W.3d at 318; Brookshire Grocery, 222 S.W.3d at 407; see also Chalmers, 2025 WL 337118, at *5.
Having determined the relevant condition, we now consider whether there was legally sufficient evidence to support the jury’s finding that the City had actual knowledge of the sinkhole “at the time and place” of Robinson’s accident.
At trial, Robinson testified that while he was driving his truck on May 14, 2017 around 2:50 a.m., he attempted to turn from Dewalt Street onto Beckley Street. Robinson did not think that there was a problem with the road, and Robinson attempted to make the turn because “the street [was] secure.” Only when Robinson “made [the] turn” did “the whole street just g[i]ve way” and his truck “collapsed down in there.” As Robinson explained, the “whole asphalt [was] there and then when [he] drove, it fell.” Before the accident, “the street was there,” and the sinkhole
19
was created when Robinson drove his truck over that portion of the street. Cf. Chalmers, 2025 WL 337118, at *5 (plaintiff testified that only he and his wife knew about water on floor before plaintiff slipped and fell). According to Robinson, he had driven the same route earlier in the evening and there was no sinkhole.
At trial and in his briefing, Robinson argues that the evidence was legally sufficient to support the jury’s finding that the City had actual knowledge of the water main break and the flooding at the time of Robinson’s accident. However, as previously concluded, the water main break and the flooded street were not the relevant condition; they were “some antecedent situation that produced” the sinkhole, i.e., the condition. See Mohammadi, 689 S.W.3d at 318; Brookshire Grocery, 222 S.W.3d at 407; see also Chalmers, 2025 WL 337118, at *5. Thus, the point in time when the City had actual knowledge of the water main break or any water on the street does not matter.
Here, there is no evidence that the City had actual knowledge of the sinkhole when Robinson’s accident occurred. See Stewart, 249 S.W.3d at 413–16 (“Actual knowledge requires knowledge that the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time.”). Thus, we hold that the evidence was legally insufficient to support the jury’s actual knowledge finding and the trial court erred in denying the City’s motion for JNOV. We further
20
hold that because Robinson failed to provide evidence that the City had actual knowledge of the unreasonably dangerous condition that caused Robinson’s injury, i.e., the sinkhole, the TTCA did not waive the City’s governmental immunity from liability for Robinson’s injuries. See Tex. Dep’t of Transp. v. Miller, No. 05-24-00758-CV, 2025 WL 3016808, at *8 (Tex. App.—Dallas Oct. 28, 2025, no pet.) (mem. op.).
We sustain the City’s first and second issues.
Conclusion
We reverse the trial court’s judgment and render judgment that Robinson take nothing on his claim against the City.
Kristin Guiney
Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Guiney.