Wrong-sized manhole cover was not a special defect holds Fort Worth Court of Appeals

City of Arlington v. S.C.,et al. 02-17-00002-CV (Tex. App. – Fort Worth, September 7, 2017)

This is an interlocutory appeal involving a jurisdictional challenge in a special defect case. The Fort Worth Court of Appeals, acknowledging the case law is murky, held the misplaced manhole cover was not a special defect.

S.C. and her family were moving into a neighborhood in 2015 when she stepped on a manhole cover which was the wrong size for its opening. She fell into the hole, injuring her pubic bone and groin, and spent six days in the hospital. She sued the City under both a special defect and, alternatively, premise defect theory. Her minor children plead bystander injuries.  The City filed a partial summary judgment only as to the special defect claim, which the trial court denied. The City appealed.

The Fort Worth Court of Appeals panel admitted the case law was inconsistent. The Texas Supreme Court lists a special defect as the same “kind or class” as an “excavation or obstruction” to ordinary users on or near a roadway. The court listed a series of cases finding a defective cover over a hole satisfies the excavation “class or kind” test; however, the plaintiffs in those cases lost because the defect was too far from the roadway to count. The court held to qualify an “excavation- or obstruction-like condition [must] be, if not in the roadway itself, at least awfully close—near enough for the ordinary roadway user to encounter it.” Achieving ordinary-user status requires “that someone be on or in close proximity to a roadway, doing the normal things that one might expect to do on or near a roadway, whether in some sort of vehicle or on foot.”  The court noted its prior circuit opinions have listed a distinction between an open excavation as being the cause of an injury and a defectively covered excavation as being the cause, although such an analysis is not always required. It noted Supreme Court precedent requires it to interpret a waiver of immunity narrowly. While the panel listed that hypothetical aspects might qualify, the individual facts of this case,  the circuit’s prior opinions and direction from the Texas Supreme Court require it to hold the manhole issue is not a special defect. It reversed the denial but remanded for trial as a premise defect case.

Photo provided in opinion and annotated during Plaintiff’s deposition.

If you would like to read this opinion click here. Panel includes Chief Justice Livingston, Justice Gabriel and Justice Kerr.  Memorandum Opinion by Justice Kerr. The attorney listed for the City is Robert H. Fugate. The attorney listed for the Plaintiffs is Shelton Burgess Williams.