Plaintiff properly alleged premise defect claim for valve cover protruding through worn roadway but failed to establish waiver under any other theory
The City of Beaumont v. Raul Isern, 09-19-00451-CV, (Tex. App – Beaumont, Aug. 13, 2020)
This is an interlocutory appeal from the denial of a plea to the jurisdiction in a personal injury/premise defect case. The Beaumont Court of Appeals affirmed in part and reversed in part.
Plaintiff Isern asserts he was injured when he struck a water valve street cover on the roadway while riding his bicycle. Isern alleged that the City failed to properly inspect, repair, and Maintain its public streets, and had actual and/or constructive knowledge of the dangerous condition. According to Isern, the City allowed the condition of the roadway to deteriorate and become unsafe, causing the valve cover, which was once “flush” or level with the street, to protrude from the buckled, cracked, split, uneven, and unsafe pavement. He asserted claims for premise defect, special defect, and the negligent use of tangible personal property. The City filed a plea to the jurisdiction, which was denied. The City appealed.
The court first held tangible personal property must do more than merely furnish the condition that makes the injury possible. As such, Isern’s pleadings fail to allege facts that affirmatively demonstrate that his injuries arose from the City’s use of tangible personal property. The court then agreed with the City that the valve cover is not a special defect. “Construing the valve cover to be an excavation or obstruction which presents an unexpected and unusual danger to the ordinary user of the roadway strains the definition of those conditions.” However, regarding the premise defect claim, Isern specifically pled that the City failed to warn about the condition despite having had actual knowledge that the condition was both unreasonably dangerous and posed an unreasonable risk of harm. Isern also asserted he had no knowledge of the dangerous condition. Isern further pled the condition was not a longstanding or permanent fixture of the roadway, and that the incident was proximately caused by the City’s negligence when it repaved the area and left the valve cover above pavement grade. Isern alleged that the City had received prior reports of accidents at the location where the incident occurred. In its response, the City produced no evidence of its lack of knowledge of the condition. Finally, while Isern properly plea a premise defect claim, he cannot assert a general negligence claim with an independent waiver of immunity under the TTCA. As a result, the plea was properly denied as to the premise defect claim but should have been granted as to all others.
If you would like to read this opinion click here. Panel consists of Chief Justice McKeithen, and Justices Kreger and Horton. Memorandum Opinion by Chief Justice McKeithen. Docket page with attorney information can be found here.
