City of Dallas v. Reed (Tex. May 16, 2008) (TTCA, city immune, uneven road that caused
motorcycle accident not actionable, special defect, actual knowledge element)
Concluding that a two-inch difference in elevation between traffic lanes is not in the
same kind or class as an excavation or obstruction to be a special defect, and that
the City lacked actual knowledge of the allegedly dangerous condition, the court
grant the petition for review, and, without hearing oral argument, reverses the court of
appeals’ judgment and dismisses the case because the city is immune absence
waiver of immunity under the tort claims act.
City of Dallas v. Reed, 285 SW3d 620, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises
liability, unsafe road condition, plea to the jurisdiction)
CITY OF DALLAS v. KENNETH REED; from Dallas County; 5th district (05-06-01652-CV, 222 S.W.3d 903,
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion
Terms: Sovereign immunity | Governmental Entities | Texas Tort Claims Act Litigation | TTCA | Premises
Defect Suit | Special Defect | Dangerous condition | Defective Road | interlocutory appeals | conflicts
jurisdiction in the Supreme Court
See more --> 2008 Texas Supreme Court Opinions | 2007 Texas Supreme Court Opinions | Texas Opinions
See more TTCA decisions from the Texas Supreme Court:
TxDoT v. York, No. 07-0743 (Tex. Dec. 5, 2008)(per curiam)
(TTCA, Texas Tort Claims Act suit, exception to sovereign immunity, dangerous road conditions, loose
gravel, special defect, premises defect)
The Univ. of Tex.-Pan Am. v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability
suit, know nothing defense, ostrich defense)
City of Corsicana vs. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability,
dangerous condition, flooded roads)
City of Dallas v. Reed, 258 S.W.3d 620 (Tex. 2008)(per curiam)
In this premises liability case, we are asked to decide whether a two-inch difference in elevation
between traffic lanes on a roadway constitutes a special defect as a matter of law under the Texas
Tort Claims Act. Tex. Civ. Prac. & Rem. Code § 101.022(b). The court of appeals held this road
condition was a special defect, finding the two-inch difference in elevation “an unusual or
unexpected danger to normal users of roadways.” 222 S.W.3d 903, 909 (quoting State Dep’t of
Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992)). Because we conclude that
a two-inch variance in elevation between traffic lanes is not a special defect, we reverse the court
of appeals’ judgment and dismiss the case.
Kenneth Reed brought suit against the City of Dallas to recover personal injury damages from a
motorcycle accident caused by a two-inch elevation variance on the roadway as he changed lanes.
Reed alleges the sharp unevenness between the traffic lanes constitutes either a special defect or
a premises defect under the Texas Tort Claims Act. In response, the City filed a plea to the
jurisdiction, arguing the two-inch elevation difference between the lanes was not a defect of any
kind to waive the City’s immunity under the Act. The trial court, however, denied the plea, and the
City filed an interlocutory appeal. The court of appeals affirmed the trial court’s denial of the plea to
the jurisdiction, finding Reed pled a cognizable cause of action. 222 S.W.3d at 909.
Before reaching the merits, we must consider the issue of our own jurisdiction. Generally, a court of
appeals’ decision in an interlocutory appeal is final, unless an exception applies, such as when a
court of appeals holds differently from a prior decision of this Court or another court of appeals.
Tex. Gov’t Code §§ 22.225(b), (c); 22.001(a)(2). Decisions that hold differently are defined to
include those that have an “inconsistency in their respective decisions that should be clarified to
remove unnecessary uncertainty in the law and unfairness to litigants.” Id. § 22.225(e). Such a
conflict exists here because the court of appeals’ opinion is inconsistent with our decisions in
Harris County v. Eaton, 573 S.W.2d 177, 178-80 (Tex. 1978), and City of El Paso v. Bernal, 986 S.
W.2d 610, 611 (Tex. 1999).
Generally, the State of Texas has sovereign immunity from suit unless waived by the Legislature.
Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). The Legislature,
however, has provided a limited waiver of immunity to suit for tort claims arising from special
defects under the Texas Tort Claims Act. Tex. Civ. Prac. & Rem. Code § 101.022(b). Special
defects are defects of the same kind or class as “excavations or obstructions on highways, roads,
or streets,” Eaton, 573 S.W.2d at 179, that present an “unexpected and unusual danger to ordinary
users of roadways,” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam). Where a
special defect exists, the State owes the same duty to warn as a private landowner owes to an
invitee. Payne, 838 S.W.2d at 237. That duty requires the State to use ordinary care to reduce or
eliminate an unreasonable risk of harm, which the State knew or reasonably should have known. Id.
The existence of a special defect is a question of law, which we review de novo. State Dep’t of
Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam).
The court of appeals held the two-inch drop-off is a special defect as a matter of law because it
posed “an unusual or unexpected danger to the normal users of roadways.” 222 S.W.3d at 909.
This Court, however, has traditionally distinguished special defects by some unusual quality outside
the ordinary course of events. Compare Eaton, 573 S.W.2d at 178-80 (large hole ten inches deep
and nine feet wide covering ninety percent of the road’s width was a special defect), with Bernal,
986 S.W.2d at 611 (worn or depressed area in a sidewalk with a depth of three inches was not a
special defect); City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (partially cracked
and crumbled sidewalk step was not a special defect); Rodriguez, 985 S.W.2d at 83 (ninety-
degree turn in a detour for a road construction project was not a special defect). Not only is the two-
inch drop-off here not in the same kind or class as an excavation or obstruction, there is nothing
unusually dangerous about a slight drop-off between traffic lanes in the roadway. See, e.g., Porter
v. Grayson County, 224 S.W.3d 855, 859 (Tex. App.—Dallas 2007, no pet.). Ordinary drivers, in
the normal course of driving, should expect these slight variations on the road caused by normal
deterioration. Thus, to construe a two-inch drop-off to be within the same kind or class as an
excavation or obstruction would “grossly strain the definitions of those conditions.” Roberts, 946 S.
W.2d at 843.
Because this two-inch drop-off is not a special defect, we must decide whether it is a premises
defect. The legal distinction between a premises and special defect lies in the duty owed by the
State to the person injured. Payne, 838 S.W.2d at 237. If the two-inch drop-off is a premises
defect, the City owed Reed the same duty a private landowner owes a licensee. Tex. Civ. Prac. &
Rem. Code § 101.022(a). That duty requires a landowner not to injure a licensee by willful, wanton,
or grossly negligent conduct; furthermore, the landowner must 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. Payne, 838 S.W.2d at 237.
In determining whether a premises owner has actual knowledge, “courts generally consider whether
the premises owner has received reports of prior injuries or reports of the potential danger
presented by the condition.” The Univ. of Tex.-Pan Am. v. Aguilar, ___ S.W.3d ___, ___ (Tex.
2008) (per curiam). Here, to prove the City had actual knowledge, Reed submitted the City street
inspector’s deposition testimony, showing she was aware of the drop-off on the roadway and had
reported her findings to the City. Although the street inspector gave her report to the City, the report
did not reveal the drop-off’s potential danger. On the contrary, the inspector gave the street a “C”
rating, which meant the road condition was “fair” at the time of inspection. It was not until after the
accident, during a deposition, that the street inspector acknowledged the road could likely receive
a poor “D” rating. But, “[a]ctual knowledge requires knowledge that the dangerous condition existed
at the time of the accident.” City of Corsicana v. Stewart, ___ S.W.3d ___, ___ (Tex. 2008) (per
curiam). No such knowledge exists here. Additionally, there were no reported accidents caused by
the two-inch drop-off prior to Reed’s motorcycle accident or any complaints about this road
condition. Thus, because there is no evidence that the City willfully or negligently caused Reed’s
injuries, or that it was aware the two-inch drop-off created an unreasonable risk of harm, the two-
inch drop-off will not give rise to a premises defect claim.
Accordingly, because we conclude that a two-inch difference in elevation between traffic lanes is
not in the same kind or class as an excavation or obstruction to be a special defect, and that the
City lacked actual knowledge of the allegedly dangerous condition, we grant the petition for review,
and, without hearing oral argument, we reverse the court of appeals’ judgment and dismiss the
case. Tex. R. App. P. 59.1.
Opinion delivered: May 16, 2008