Fort Worth Court of Appeals held trial court was within its discretion to allow Plaintiff time to replead and produce evidence in response to jurisdictional plea
City of Bedford v. Leah Smith 02-16-00436-CV (Tex. App—– Fort Worth, October 12, 2017)
This is a Texas Tort Claims Act (“TTCA”) case involving a pedestrian falling into a manhole where the Fort Worth Court of Appeals affirmed in part and reversed in part the denial of the City’s plea to the jurisdiction.
Smith alleges she was walking across the grass to reach her apartment when she stepped onto a manhole lid which flipped open. Smith fell into the manhole and was injured. Smith sued the City which filed a plea to the jurisdiction. The trial court denied the plea and Smith appealed.
Even though the trial court denied the plea, its order specifically held the manhole was not a special defect. The court performed a cursory analysis citing its own recent precedent and agreed it was not a special defect as it was not excavation-like in nature. Additionally, since Smith did not challenge that finding in the appeal, the plea should have been granted as to the special defect claims. As to the premise defect claims, the court simply stated the pleadings do not support a claim for premise defect. Smith also alleged a general negligence claim. However, Smith did not plead sufficient facts to establish a negligence claim for the negligent condition or use of tangible personal property. But the trial court was within its discretion to provide Smith an opportunity to amend her pleadings since the City’s evidence and the pleadings did not affirmatively negate an incurable jurisdictional defect. The trial court also has discretion to postpone its consideration of a jurisdictional plea so that the plaintiff has sufficient opportunity to produce evidence that might raise a fact issue. The City filed its plea and held a hearing two weeks after filing an answer, so no time for discovery had elapsed. And while the court cautioned that a trial court is to make a finding on jurisdiction as soon as practical, it could not say, with the record before it, that the trial court abused its discretion in this case. As a result, the plea as was properly denied without prejudice to allow the Plaintiff an opportunity to replead and produce evidence.
If you want to read this opinion click here. The panel consists of Justice Walker, Justices, Meier, and Kerr. Elizabeth Kerr delivered the opinion of the court. The attorney listed for Smith is Steven R. Samples. The attorney listed for the City is William W. Krueger, III.
