Austin Court of Appeals holds City’s diligent search established no actual knowledge of premise defect, therefore no waiver of immunity exists

City of Austin v Brandy Credeur, 03-19-00358-CV (Tex. App. – Austin, February 11, 2021)

This is a premise defect case where the Austin Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Credeur was injured when she fell walking along a city sidewalk in front of private property owned by Riedel. She asserts she stepped off the sidewalk to cross the street, stepped on a cement block covering a pipe, and then onto an “adjacent, improperly sealed water valve cover,” both of which were obscured by Riedel’s “overgrown lawn.” She sued the City, Riedel, and a utility company. The City filed a plea to the jurisdiction, which was denied. The City appealed.

Texas courts “consistently treat[] slip/trip-and-fall cases as presenting claims for premises defects.” The court considered Plaintiff’s rendition of facts and even added a photo of the area in the opinion. Even assuming that the sidewalk, in this case, was “sufficiently related to the street” to come within the realm of special defects, the court held the alleged defect was not on the sidewalk itself but in the grass near the sidewalk.  Credeur stepped off the sidewalk to cross the street, walking through an area not intended for pedestrian use, and thus the defect she encountered cannot be considered to have posed a danger to the ordinary users of the sidewalk.  As a result, it is not a special defect, but a premise defect.  The City produced evidence that employees did a diligent search of all reports made to the City which could have notified it of the defect prior to Credeur’s injury and found none.  Without actual knowledge of the defect, no waiver of immunity exists. [Comment: the court went into detail about all the City did to establish a lack of knowledge, which can be a good roadmap for other entities having to establish the same type of fact.] The City’s evidence detailed what the City did in response to discovery to find reports and that all departments which might have a report were searched. Credeur has not identified another City employee or department that might have received a report about the alleged defect. As a result, Credeur failed to raise a fact question as to notice and the City’s plea should have been granted.

If you would like to read this opinion click here. Panel consists of Chief Justice Byrne, Justice Triana and

Justice Smith. Memorandum Opinion by Chief Justice Byrne