MAJORITY OPINION In this personal-injury case arising from a motorcycle accident, the plaintiff appeals the trial court’s final judgment sustaining a city’s plea to the jurisdiction based on governmental immunity. We conclude that the evidence before the trial court conclusively proved that the alleged defective condition does not fall within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. Because the plaintiff has not shown that the trial court reversibly erred, we affirm. Factual and Procedural Background On or about June 28, 2015, appellant/plaintiff Jason Kownslar was severely injured in a motorcycle accident in downtown Houston, Texas. At his deposition Kownslar testified as follows: While driving his motorcycle, Kownslar exited Interstate 45 and got on Rusk Street. Kownslar was traveling in the right lane of Rusk Street heading toward the intersection with Bagby Street. Kownslar came to a part of Rusk Street where a light-rail track joins the street. When Kownslar reached that part of the street, he saw the light-rail track. The front tire of Kownslar’s motorcycle got stuck in the “cut-out, the divot that was the space in between that [one of the rails of the] track is laid in.” Kownslar stated that his tire got stuck in the space for “the first rail that [he] would have come across from that direction.” The back tire of Kownslar’s motorcycle “was riding in the track as well.” Kownslar was traveling at a speed of “10, 15 miles per hour.” Kownslar drove for a period of time with his tires like that, and he was applying his brakes. Kownslar tried to change lanes and “felt the resistance of the tire on the edge of the concrete.” The motorcycle would not exit the place where it was wedged in the light-rail track. The back tire “fishtailed” and Kownslar was thrown into the air over the front of the motorcycle. Kownslar landed on the back of his neck, and he slid on the pavement towards the intersection. Kownslar did not make contact with another vehicle. Kownslar filed this lawsuit, originally suing only Metropolitan Transit Authority of Harris County, Texas (“Metro”) and later adding the City of Houston (the “City”) and other parties as defendants. In his live pleading, Kownslar asserted against the City (1) a negligence claim based on an alleged special defect in the roadway (the “Special Defect Claim”), and (2) a negligence claim based on the City’s purported negligence in allegedly “failing to design, construct, properly implement[,] and maintain the metro rail track in question in a reasonably safe condition and free of hazards to [Kownslar] and other members of the public traveling on the roadway” (the “Negligent Activity Claim”). In the pleading, Kownslar cited the Texas Tort Claims Act as the basis for a waiver of the City’s governmental immunity. The City filed a plea to the jurisdiction in which it asserted that the Texas Tort Claims Act does not waive the City’s governmental immunity as to the Negligent Activity Claim, and Kownslar has not established a waiver of the City’s governmental immunity as to this claim. In addition, the City asserted that its immunity from suit under the doctrine of governmental immunity has not been waived as to the Special Defect Claim because: (1) the City does not own or occupy the light-rail track in question; (2) the condition of this track is not a special defect; (3) the light-rail track in question did not create an unreasonable risk of harm; and (4) Kownslar was warned of the condition. The City attached a consent agreement between the City and Metro (the “Agreement”), the transcript of Kownslar’s deposition, and four photographs of Rusk Street. The City asserted that the evidence showed that the City’s governmental immunity had not been waived. Kownslar responded in opposition to the City’s jurisdictional plea, and the only evidence Kownslar submitted was the Agreement. After an oral hearing, the trial court sustained the City’s jurisdictional plea and dismissed Kownslar’s claims against the City with prejudice for lack of subject-matter jurisdiction. The trial court later severed Kownslar’s claims against the City into a separate case to make this ruling final and appealable. Kownslar has timely appealed. Issues and Analysis The City is entitled to immunity from suit under the doctrine of governmental immunity unless the City’s governmental immunity has been waived. See City of Houston v. Gonzales, No. 14-19-00768-CV, 2021 WL 2586242, at *1 (Tex. App.—Houston [14th Dist.] Jun. 24, 2021, no pet.) (mem. op.). Kownslar asserted two claims against the City in the trial court: (1) the Special Defect Claim, and (2) the Negligent Activity Claim. The trial court granted the City’s jurisdictional plea as to both claims. On appeal, Kownslar has not discussed the Negligent Activity Claim, asserted that the City’s immunity has been waived as to the Negligent Activity Claim, or briefed any argument challenging the trial court’s judgment as to the Negligent Activity Claim. Thus, we need only determine whether the trial court erred in granting the jurisdictional plea as to the Special Defect Claim. Did the evidence conclusively prove that the condition of the light-rail track was not a special defect? In his first issue, Kownslar asserts that the trial court erred in sustaining the City’s jurisdictional plea because the City failed to meet its burden to conclusively negate the challenged jurisdictional facts. Under this issue, Kownslar asserts that the evidence before the trial court did not conclusively prove that the condition of the light-rail track was not a special defect. The Texas Tort Claims Act provides a limited waiver of a governmental unit’s sovereign or governmental immunity, allowing suits to be brought against the governmental unit “only in certain, narrowly defined circumstances.” Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). “Given the Legislature’s preference for a limited immunity waiver,” courts must strictly construe the Act’s waiver provisions. Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922, 927 (Tex. 2015). In the Texas Tort Claims Act, the Legislature waived a governmental unit’s immunity from suit and liability as to claims seeking to hold the governmental unit liable for personal injury caused by a condition of real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2021 C.S.). Subject to certain exceptions, if a claim against a governmental unit 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. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (West, Westlaw through 2021 C.S.). This limitation on a governmental unit’s duty “does not apply to the duty to warn of special defects such as excavations or obstructions on highways, roads, or streets.”[1] Id. When a special defect exists, the governmental unit owes the same duty to the claimant that a private landowner owes to an invitee. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 654–55 (Tex. 2012). Whether a condition is a special defect is a question of law that we review de novo. Id. at 655. The Legislature does not define “special defects” but likens them to conditions “such as excavations or obstructions on highways, roads, or streets.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see The Univ. of Texas at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). The Supreme Court of Texas has determined that conditions can be special defects only if they pose a threat to the ordinary users of a particular roadway. See id.; Denton County v. Beynon, 283 S.W.3d 329, 331 (Tex. 2009). A court cannot classify a condition as a special defect if the defect is not like an excavation or obstruction on a roadway. Beynon, 283 S.W.3d at 331–32. In deciding whether a condition is a special defect, the Supreme Court of Texas has considered characteristics of the class of special defect, such as (1) the size of the condition, (2) whether the condition unexpectedly and physically impairs a vehicle’s ability to travel on the road, (3) whether the condition presents some unusual quality apart from the ordinary course of events, and (4) whether the condition presents an unexpected and unusual danger to the ordinary users of the roadway. See Hayes, 327 S.W.3d at 116. The class of special defects contemplated by the statute is narrow. Id. Courts determine whether a condition is a special defect based on the objective expectations of an “ordinary user” who follows the “normal course of travel.” Id. A claimant’s subjective knowledge or lack of knowledge of a condition is not relevant to a court’s determination of whether the condition is a special defect. See Perches, 388 S.W.3d at 655. In filing its jurisdictional plea, the City challenged the trial court’s subject- matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Because subject-matter jurisdiction is a question of law, we conduct a de novo review of the trial court’s granting of the plea. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In its plea, the City challenged the existence of jurisdictional facts, so we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. See id. If the evidence created a fact question as to the jurisdictional issue, then the trial court should have denied the plea. See id. at 227–28. But, if the relevant evidence was undisputed or failed to raise a fact question on the jurisdictional issue, then the trial court should have ruled on the plea as a matter of law. Id. at 228. The photographs in evidence show the part of Rusk Street at issue in this case is a one-way street. Kownslar testified in his deposition that he was traveling on his motorcycle in the right lane of Rusk Street heading toward the intersection with Bagby Street when Kownslar came to a part of Rusk Street where a light-rail track joins the street. At that point Kownslar stated that the front tire of his motorcycle got stuck in the “cut-out, the divot that was the space in between that [one of the rails of the] track is laid in,” and the back tire of his motorcycle “was riding in the track as well.” Kownslar stated that his tire got stuck in the space for “the first rail that [he] would have come across from that direction.” On appeal, Kownslar asserts that the width of the space in which each rail is laid presents an unexpected and unusual danger as evidenced by Kownslar’s motorcycle tire getting caught in that space. We presume for the purposes of our analysis that the space in which each rail is laid on the part of Rusk Street in question is wide enough for Kownslar’s front tire to get caught in the space and that this width constitutes a defect (the “Alleged Defect”). The photographs submitted by the City show that Rusk Street is a concrete roadway and that a light- rail track enters into Rusk Street from the left and then enters completely within the far-right lane. The photos show that each of the two rails of the track is embedded in the concrete of the roadway in a space in the street’s concrete. The photographs show the light-rail track entering the far-right lane of Rusk Street before the intersection with Bagby Street. The photographs show that there are two spaces in the concrete each of which contains one of the rails of the light-rail track. Though the evidence does not contain a close-up photograph of the spaces or the rails, the photographs submitted by the City show that the two spaces do not take up a significant amount of the width of the far-right lane of Rusk Street. The Alleged Defect is nothing like the special defect found to exist in Harris County v. Eaton. See 573 S.W.2d 177, 178–80 (Tex. 1978); see also City of Denton v. Paper, 376 S.W.3d 762, 764–66 (Tex. 2012) (holding that a two-inch to five-inch difference in a street’s elevation was not a special defect and stating that the allegedly defective depression in the street was nothing like the special defect found to exist in Eaton). The Eaton case involved an abnormally large hole in the road. See Eaton, 573 S.W.2d at 178–80. This hole varied from six to ten inches in depth and was four feet wide at some parts and nine feet wide at other parts. See id. at 178. The hole extended over ninety percent of the width of the highway. See id. In Eaton, the Supreme Court of Texas commented that the condition “reached the proportions of a ditch across the highway” Id. at 179. The high court also observed that “one could not stay on the pavement and miss it.” Id. at 178. Unlike the roadway’s condition in Eaton, the Alleged Defect did not physically impair an ordinary user’s ability to travel on Rusk Street, even an ordinary user riding a motorcycle. See Paper, 376 S.W.3d at 766 (concluding that an allegedly defective depression in the street did not physically impair the ability to travel on the street). Rather, the photographs submitted by the City show that an ordinary user riding a motorcycle on Rusk Street could have avoided the Alleged Defect without leaving Rusk Street or entering a lane of oncoming traffic[2] by crossing the two spaces containing the rails at a ninety-degree angle or an angle close thereto and travelling in the next lane over from the far-right lane.[3] See id. at 764–66 (holding a two-inch to five-inch difference in elevation in a street was not a special defect and stating that photographs indicated that the allegedly defective depression in the street could have been avoided without leaving the street or entering a lane of oncoming traffic). We base our determination as to whether the Alleged Defect is a special defect on the objective expectations of the ordinary users of Rusk Street who follow the normal course of travel. See Perches, 388 S.W.3d at 655; Hayes, 327 S.W.3d at 116. Kownslar’s subjective lack of knowledge of the Alleged Defect is not relevant to this court’s determination of whether the Alleged Defect is a special defect. See id. The Alleged Defect does not present some unusual quality apart from the ordinary course of events, nor does the Alleged Defect present an unexpected and unusual danger to the ordinary users of Rusk Street. See Hayes, 327 S.W.3d at 116. Based on the objective expectations of the ordinary users of Rusk Street, the Alleged Defect does not pose a threat to these ordinary users. See Hayes, 327 S.W.3d at 116; Beynon, 283 S.W.3d at 331. The Alleged Defect is not an excavation or obstruction on Rusk Street, nor is the Alleged Defect like an excavation or obstruction on Rusk Street. See Beynon, 283 S.W.3d at 331–32. We conclude that the evidence before the trial court conclusively proved that the Alleged Defect is not within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); Perches, 388 S.W.3d at 655–56; Hayes, 327 S.W.3d at 116–17; Beynon, 283 S.W.3d at 331–33. Kownslar contends that the photographs submitted by the City were insufficient. Kownslar asserts that the Alleged Defect is not readily apparent in the photographs. Though the City did not submit a close-up photograph of either rail or the space in which the rail is embedded, the photographs and the other evidence submitted by the City provide adequate information to determine, as a matter of law, that the Alleged Defect is not a special defect. See Tex. Dep’t of Transp. v. Pierce, No. 12-19-00260-CV, 2020 WL 500779, at *3–5 (Tex. App.—Tyler Jan. 31, 2020, pet. denied) (mem. op.). We overrule Kownslar’s first issue.[4] Did the trial court err in sustaining the City’s jurisdictional plea because the City’s jurisdictional challenge implicated the merits of Kownslar’s claim and because genuine issues of fact exist as to the jurisdictional issues? In his second issue Kownslar asserts that the trial court erred in sustaining the City’s jurisdictional plea because the City’s jurisdictional challenge implicated the merits of Kownslar’s claim and because genuine issues of fact exist as to the jurisdictional issues. Kownslar argues that when there is a genuine fact issue as to a jurisdictional fact that is intertwined with the merits, the trial court cannot grant a jurisdictional plea. In a case in which the jurisdictional challenge implicates the merits of a plaintiff’s claim and the plea to the jurisdiction includes evidence, the trial court reviews the relevant evidence to determine if a fact issue exists. Miranda, 133 S.W.3d at 227. If the evidence creates a fact question as to the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. See id. at 227–28. But, if the relevant 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. See id. at 228. Kownslar did not submit any new evidence in response to the City’s jurisdictional plea. As discussed in section II.A. above, this court determines as a matter of law whether the Alleged Defect is a special defect, and the evidence before the trial court conclusively proved that the Alleged Defect is not within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); Perches, 388 S.W.3d at 655–56 (determining as a matter of law that concrete guardrail did not constitute a special defect); Hayes, 327 S.W.3d at 115– 17 (determining as a matter of law that a metal chain blocking a driveway did not constitute a special defect); Beynon, 283 S.W.3d at 330–33 (determining as a matter of law that a seventeen-foot floodgate arm located about three feet off of a two-lane rural roadway did not constitute a special defect). We overrule the second issue. Did the trial court impermissibly consider arguments that exceeded a jurisdictional challenge or that were raised for the first time during the oral hearing on the City’s jurisdictional plea? In his third issue Kownslar asserts that the trial court impermissibly considered arguments that exceeded a jurisdictional challenge or that were raised for the first time during the oral hearing on the City’s jurisdictional plea. The trial court sustained the City’s jurisdictional plea without specifying any ground on which the trial court sustained the plea. If the trial court signs an order sustaining a plea to the jurisdiction without specifying in the order the grounds upon which the trial court relied, we must affirm if any of the independent grounds in the jurisdictional plea has merit. See Shannon v. Mem’l Drive Presbyterian Church U.S., 476 S.W.3d 612, 621 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Kownslar asserts that a review of the reporter’s record from the oral hearing on the jurisdictional plea demonstrates that the trial court erroneously considered arguments by the City that exceeded a jurisdictional challenge and issues raised for the first time at the oral hearing. We presume, without deciding, that the trial court erroneously considered arguments by the City that exceeded the scope of a proper jurisdictional challenge and that the trial court erred in considering issues raised for the first time at the oral hearing on the jurisdictional plea. Even under this presumption, we cannot reverse the trial court’s judgment unless we conclude that this error (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals. See Tex. R. App. P. 44.1(a). The City raised in its jurisdictional plea the ground as to whether the Alleged Defect was a special defect, and this ground is a proper basis for a jurisdictional challenge by the City. See Hayes, 327 S.W.3d at 116–17. After reviewing the record, we conclude that, even under the above presumption, the trial court’s error did not probably cause the rendition of an improper judgment and did not probably prevent Kownslar from properly presenting the case to this court. See id.; In re Estate of Gibbons, 451 S.W.3d 115, 124 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Thus, no harm resulted from any such error, and we overrule Kownslar’s third issue. Conclusion The evidence before the trial court conclusively proved that the Alleged Defect does not fall within the narrow class of defects that are special defects under section 101.022(b) of the Civil Practice and Remedies Code. There is no genuine fact issue as to whether the Alleged Defect constitutes a special defect. Presuming, without deciding, that the trial court erroneously considered arguments by the City that exceeded the scope of a proper jurisdictional challenge and that the trial court erred in considering issues raised for the first time at the oral hearing on the jurisdictional plea, any such error was harmless. Having overruled all of Kownslar’s issues, we affirm the trial court’s judgment. /s/ Randy Wilson Justice Panel consists of Justices Jewell, Poissant, and Wilson (Poissant, J., dissenting).
