Maria Reyes sued the City of Laredo for the wrongful death of her fourteen-year-old daughter, who drowned when the van in which she and her family were riding late one night was swept away in flash flood waters where Chacon Creek had overflowed Century Boulevard during a torrential rainstorm. The City asserted governmental immunity and moved to dismiss for want of jurisdiction. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999) (“[I]mmunity from suit defeats a trial court’s subject matter jurisdiction and thus is properly asserted in a plea to the jurisdiction.”). The trial court denied the motion, and the City appealed. See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8) (“A person may appeal from an interlocutory order . . . that . . . grants or denies a plea to the jurisdiction by a governmental unit . . . .”); Tex. Dep’t of Criminal Justice v. Simons, 140 S.W.3d 338, 349 (Tex. 2004) (“The reference to ‘plea to the jurisdiction’ is not to a particular procedural vehicle but to the substance of the issue raised. Thus, an interlocutory appeal may be taken from a refusal to dismiss for want of jurisdiction whether the jurisdictional argument is presented by plea to the jurisdiction or some other vehicle, such as a motion for summary judgment.”).
With exceptions not relevant here, section 101.022(a) of the Texas Tort Claims Act limits the government’s duty to prevent injury from premise defects to those of which it has actual knowledge. See TEX. CIV. PRAC. & REM. CODE § 101.022(a) (“Except as provided in Subsection (c) [pertaining to toll roads], if a claim arises from a premise 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.”); State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (“[A] licensee must prove that the premises owner actually knew of the dangerous condition, while an invitee need only prove that the owner knew or reasonably should have known.”). But the limitation does not apply to “special defects such as excavations or obstructions on highways, roads, or streets.” TEX. CIV. PRAC. & REM. CODE § 101.022(b); Denton Cnty. v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009) (“Where a special defect exists, the State owes the same duty to warn as a private landowner owes to an invitee, one that requires the State ‘to use ordinary care to protect an invitee from a dangerous condition of which the owner is or reasonably should be aware.’” (quoting Payne, that a rain-flooded street is not a special defect, ___ S.W.3d ___, ___ (Tex. App.–San Antonio 2009), and we agree. But the court of appeals also held, by a divided vote, that the evidence supports an inference that the City had actual knowledge of the flooded crossing before the incident, id. at ___, and with this we disagree. Accordingly, we reverse and render judgment for the City.
