City of Denton v. Paper

The Texas Tort Claims Act generally limits a governmental unit’s potential liability for premise-liability damages by classifying the user of the government’s real property as a licensee rather than an invitee. TEX. CIV. PRAC. & REM. CODE § 101.022(a). This limitation does not apply, however, when the government’s duty to warn involves a special defect such as an excavation or obstruction on a highway, road, or street. Id. § 101.022(b). The principal question in this premises-liability suit against a city is whether a depression or sunken area in a roadway, a few inches deep, constitutes an ordinary premises defect or a special defect within the meaning of the Tort Claims Act. See id. § 101.022(a)–(b). The distinction is significant because, as noted, the Tort Claims Act imposes a lesser duty of care on the government when the premises claim does not involve a special defect.

The court of appeals held that the sunken area in the road was a special defect because it “was in the same kind or class as an excavation or obstruction and posed an unexpected and unusual danger to ordinary users (bicyclists) of the roadway.” ___ S.W.3d ___, ___ (Tex. App.-Fort Worth 2011) (mem. op.). We, however, disagree that the premises defect here is of the same class as an excavation or obstruction. We further conclude that there is no evidence that the City had actual knowledge of the dangerous condition and accordingly reverse the court of appeals’ judgment and dismiss the case.