The opinion
Reversed and Rendered and Opinion Filed October 9, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00276-CV
CITY OF DALLAS, Appellant
V.
REMY HOLMQUIST, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-22-00018-D
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Nowell
Remy Holmquist sued the City of Dallas for negligence after he fell into a
hole located near a walking path in a City-owned park. The City filed a plea to the
jurisdiction, which the trial court denied. In this interlocutory appeal, the City argues
the trial court’s order is erroneous. See TEX. CIV. PRAC. & REM. CODE. § 51.014(a)(8)
(allowing appeal from interlocutory order denying plea to the jurisdiction by
governmental unit). We reverse the trial court’s February 28, 2023 Order Denying
Defendant’s Plea to the Jurisdiction and render judgment dismissing the case for lack
of subject-matter jurisdiction.
FACTUAL BACKGROUND
On October 25, 2020, between about 3:30 and 4:00 a.m., Holmquist and others
smoked methamphetamines and drank beer in a hotel room before leaving the hotel
on foot to find a convenience store. They turned back when they did not find a store
and, on their return to the hotel, opted to walk on an unlit path through a park owned
and maintained by the City. Once inside the park, the men decided to return to the
street that was about 30-feet away. Holmquist testified that to get to the street, he
“turned around on the walkway, took about two steps, and then stepped up on the
curb where the manhole cover was. All I saw was a shadow in front of me,” which
he thought was “part of the ground.” He walked toward the shadow and fell into a
hole that was approximately 5 feet long by 5 feet wide and at least 4 feet deep.
Holmquist alleges he sustained injuries from the fall.
Holmquist sued the City for negligence. In his original petition, Holmquist
pleaded the trial court has jurisdiction over his claim because the Texas Tort Claims
Act (TTCA) waives the City’s immunity for claims involving premises defects such
as the hole he fell into. See TEX. CIV. PRAC. & REM. CODE § 101.022(a). In response,
the City filed a plea to the jurisdiction. Holmquist then amended his petition to allege
the hole was a special defect pursuant to section 101.022(b) of the TTCA. See id. at
§ 101.022(b). Following a hearing, the trial court denied the City’s plea to the
jurisdiction, and this interlocutory appeal followed.
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STANDARD OF REVIEW
Governmental units, including political subdivisions, generally are immune
from suit absent a legislative waiver. City of Austin v. Quinlan, 669 S.W.3d 813, 818
(Tex. 2023). Because governmental immunity is jurisdictional, a governmental
entity properly raises an immunity claim in a plea to the jurisdiction. Id. When, as
here, a plea to the jurisdiction challenges the existence of jurisdictional facts, we
consider the relevant evidence submitted by the parties to determine if a fact issue
exists. City of Mesquite v. Wagner, No. 05-22-00826-CV, 2023 WL 3408528, at *2
(Tex. App.—Dallas May 12, 2023, pet. filed) (mem. op.) (citing Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004)).
We review a court’s ruling on a plea to the jurisdiction de novo. Quinlan, 669
S.W.3d at 818. The standard of review for a jurisdictional plea based on evidence
“generally mirrors that of a summary judgment.” Wagner, 2023 WL 3408528, at *2
(quoting Miranda, 133 S.W.3dat 228); City of Dallas v. Prado, 373 S.W.3d 848, 852
(Tex. App.—Dallas 2012, no pet.). The burden is on the governmental entity, as
movant, to present evidence sufficient to negate jurisdiction. Wagner, 2023 WL
3408528, at *2 (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391
(Tex. 2016)). If the governmental entity meets its burden, the burden shifts to the
plaintiff, as the nonmovant, to demonstrate a factual dispute on the jurisdictional
issue. Id. (citing Sampson, 500 S.W.3d at 391). If the evidence creates a fact question
regarding the jurisdictional issue, then the trial court cannot grant the plea to the
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jurisdiction, and the fact issue will be resolved by the factfinder. Id. (citing Sampson,
500 S.W.3d at 392). However, if the evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction
as a matter of law. Id. (citing Sampson, 500 S.W.3d at 392).
APPLICABLE LAW
Governmental immunity protects the State’s political subdivisions, including
its cities, against suits and legal liability. Dohlen v. City of San Antonio, 643 S.W.3d
387, 392 (Tex. 2022). Cities retain immunity unless the Legislature clearly and
unambiguously waives it. Id. “We interpret statutory waivers of immunity narrowly,
as the Legislature’s intent to waive immunity must be clear and unambiguous.”
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008)
(citing TEX. GOV’T CODE § 311.034). The TTCA provides a limited waiver of
immunity for certain suits against governmental entities. Garcia, 253 S.W.3d at 655.
(citing TEX. CIV. PRAC. & REM. CODE § 101.023).
The TTCA waives immunity for “personal injury and death so caused by a
condition or use of tangible personal or real property if the governmental unit would,
were it a private person, be liable to the claimant according to Texas law.” TEX. CIV.
PRAC. & REM. CODE § 101.021(2). When a claim arises from a premises defect, “the
governmental unit owes to the claimant only the duty that a private person owes to
a licensee on private property, unless the claimant pays for the use of the premises.”
Id. § 101.022(a). “The duty owed to a licensee on private property requires that ‘a
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landowner not injure a licensee by willful, wanton or grossly negligent conduct, and
that the owner 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, 500 S.W.3d at 385 (quoting State Dep’t of Highways & Pub. Transp. v.
Payne, 838 S.W.2d 235, 237 (Tex.1992)).
Section 101.022(a) does not apply to the duty to warn of special defects. TEX.
CIV. PRAC. & REM. CODE § 101.022(b). In special-defect cases, the government’s
duty is that of a private landowner to an invitee. Fraley v. Tex. A&M Univ. Sys., 664
S.W.3d 91, 96 (Tex. 2023). For a special defect, the duty is to warn of an
unreasonable risk of harm that the premises condition creates when the government
owner knows or reasonably should know of that condition. Id. at 98. Whether a
condition qualifies as a special defect is a question of law. Id.
The TTCA defines a special defect by listing examples: special defects
include “excavations or obstructions on highways, roads, or streets.” Fraley, 664
S.W.3d at 98 (discussing TEX. CIV. PRAC. & REM. CODE § 101.022(b)). When
applying this definition, the Texas Supreme Court “has held that a special defect
must be ‘of the same kind or class’ as excavations or obstructions.” Id. (quoting
County of Harris v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978)). Factors helpful to
ascertaining whether a premises condition is a special defect include the condition’s
size, whether the condition unexpectedly impairs a vehicle’s ability to travel on the
road, or whether it presents an unexpected and unusual danger to ordinary users of
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the roadway. Id. An ordinary roadway user follows the normal course of travel. Id.
An ordinary user does not “careen uncontrollably off the paved roadway and into
the adjoining grass.” Id.
DISCUSSION
The parties dispute whether Holmquist’s claim is properly categorized as a
premises defect claim or a special defect claim. The City argues its immunity is not
waived because the claim is properly classified as a premises defect claim; the record
establishes the hole was open, obvious, and known to Holmquist; and the City did
not have prior actual or constructive knowledge of the condition. Holmquist argues
the condition is a special defect, and the TTCA waives the City’s immunity.
This Court previously considered a similar fact pattern. See Purvis v. City of
Dallas, No. 05-00-01062-CV, 2001 WL 717839 (Tex. App.—Dallas June 27, 2001,
no pet.) (not designated for publication). Purvis sued the City for injuries sustained
when he stepped into an uncovered manhole in a grassy area near a public sidewalk
that ran parallel to a road. Id. at *1. Purvis alleged the uncovered manhole was a
special defect. Id. Rejecting his argument, this Court stated: “the manhole was in the
grassy area on the opposite side of the sidewalk from the roadway, and pedestrians
ordinarily utilizing the roadway would walk on the sidewalk and not in the grassy
area.” See id. at *3. Further, “a normal user of [the road] would not have encountered
the open manhole.” Id. The Court concluded the open manhole was not a special
defect. Id. at *4.
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Holmquist testified he was walking on the path in the park when he decided
to return to the street. Holmquist turned around on the walkway, took two steps,
stepped up on a curb, walked toward a shadow in the grass, and fell into the hole.
The record does not reflect exactly how far off the walking path the hole was located.
However, the record shows the hole was in a grassy area separated from the walking
path by a curb and some number of steps. The hole was not part of the sidewalk.
We conclude the hole did not unexpectedly impair Holmquist’s ability to
travel, and Holmquist did not act as an ordinary user when he stepped off the path,
over a curb, and took additional steps into the adjoining grassy area. The area where
Holmquist fell was not intended for pedestrian use, and a normal user would not
have encountered the hole. Accordingly, the defect that Holmquist encountered did
not pose a danger to ordinary users of the path. The condition that caused
Holmquist’s injuries is similar to the one in Purvis and is not a special defect.
While Holmquist appears to have abandoned his jurisdictional argument that
the City’s immunity is waived under section 101.022(a), we will consider that issue
out of an abundance of caution. The City’s plea to the jurisdiction included an
affidavit from the Configuration Manager for the City’s 311 Customer Service
Center. Her affidavit states 311 is a “reporting system in which complaints or calls
for City services regarding any alleged hazardous conditions which may exist in the
City of Dallas are received.” Following a search of the 311 records, she could not
find any calls, reports, or complaints about the hole in the park during the two years
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preceding Holmquist’s fall. At the hearing on the City’s plea to the jurisdiction,
Holmquist’s counsel conceded Holmquist had no evidence the City had actual
knowledge of the hole or evidence the City was grossly negligent. Because there is
no evidence as to the City’s actual knowledge of the defect, the City’s immunity was
not waived pursuant to section 101.022(a).
We sustain the City’s sole issue to the extent discussed above. We do not
address the City’s argument that the trial court lacked subject-matter jurisdiction
under the Recreational Use Statute. See TEX. R. APP. P. 47.1.
In conclusion, because we determine the TTCA does not waive the City’s
immunity in this case, we reverse the trial court’s order denying the City’s plea to
the jurisdiction. We render judgment dismissing Holmquist’s claims for lack of
subject-matter jurisdiction.
230276f.p05 /Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CITY OF DALLAS, Appellant On Appeal from the County Court at
Law No. 4, Dallas County, Texas
No. 05-23-00276-CV V. Trial Court Cause No. CC-22-00018-
D.
REMY HOLMQUIST, Appellee Opinion delivered by Justice Nowell.
Justices Molberg and Pedersen, III
participating.
In accordance with this Court’s opinion of this date, the trial court’s
February 28, 2023 Order Denying Defendant’s Plea to the Jurisdiction is
REVERSED and judgment is RENDERED dismissing the case for lack of
subject-matter jurisdiction.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 9th day of October, 2023.
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