Appellant’s Brief

Posted
by Heygood Orr and Pearson

Description: This case was a wrongful death case brought against eh City of Corsicana after the Plaintiffs’ young children drowned at an unmarked low water crossing during a torrential rainstorm.   The trial court granted the City’s plea to the jurisdiction, finding that the City as protected from suit by sovereign immunity.  The brief asserted that the low water crossing was a special defect for which the city was not entitled to sovereign immunity. The court of appeals agreed and reversed and remanded the case. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

Stewart Appellant’s Brief

(a) Identity of parties and counsel

(b) Table of Contents

(c) Index of Authorities

(d) Statement of the Case

This is an action for personal injury damages based on premises liability brought by Patrick Stewart and Sentria Whitfield, individually, as heirs to the estates of their children, Patrick Stewart, Jr., and Brooke Stewart (“Plaintiffs”), against the City of Corsicana, Texas (the “City”).  Plaintiffs filed their Original Petition on March 11, 2005.  See CR at 64-77.  On April 14, 2005, the City filed its Plea to the Jurisdiction and Plea in Abatement with the trial court, asserting that the City was protected from liability by sovereign immunity.  See CR at 25-35.  Plaintiffs filed their Response to the City’s Plea to the Jurisdiction and Special Exceptions on June 8, 2005.  See CR at 78-83.  Plaintiffs filed their Second Amended Petition, their live pleadings in the instant case, on July 15, 2005.  See CR at 179-193.

Both parties filed additional briefing on the issue of sovereign immunity, and the Court held an evidentiary hearing on August 11, 2005.  After the hearing, the Court entered an Order granting the City’s Plea to the Jurisdiction, an Order granting the City’s Special Exceptions, and an Order granting the City’s Motion for Protective Order. (Appendix A and CR 720-722).  Following the entry of these Orders, Plaintiffs filed their Notice of Accelerated Appeal on February 16, 2006 (CR 728).  The Court entered its own Findings of Fact and Conclusions of Law on February 3, 2006, but added new Findings of Fact and Conclusions of Law recommended by the City on [].  Plaintiffs filed objections to these new Findings of Fact and Conclusions of Law on []

-suit for damages related to personal injury, course of proceedings, trial court’s disposition of the case (under half page; no facts)

(e) Issues Presented (issues/points submitted for review)

1.         Whether the trial court erred in granting Defendant City of Corsicana, Texas’ Plea to the Jurisdiction and Plea in Abatement.

(f) Statement of Facts  (Supported by references to the record)

 

On May 1, 2004, at around midnight, strong thunderstorms struck the Corsicana, Texas area.  Patrick Stewart was returning home to Corsicana from Dallas, Texas after picking up his children — 21 month-old Patrick Stewart, Jr. and 13 month-old Brooke Stewart — from their mother’s house.  See Affidavit of Patrick Stewart, Sr. Appendix B and CR 217-19, at par. 2.  At about 1:30 a.m., Mr. Stewart came to a bridge on Bunert Road crossing Post Oak Creek. Id. at par. 3. Unaware of the dangers ahead, he proceeded to cross the bridge.  Id., at pars. 3, 5.  After a tree limb in the road forced Mr. Stewart to stop, his car flooded out, and he was unable to restart the car.  Id. at par. 5.  While Mr. Stewart ran for help to call 911, his car was swept off the bridge by the creek’s floodwaters.  Id. at par. 6.  As a result, his two children drowned.  Id.

According to the City, the Bunert Road Bridge over Post Oak Creek was designed as a low water crossing.  However, there were no signs or other warning devices informing ordinary users of the road of this fact.  Id. at par. 3.  Moreover, the bridge lacked guardrails, which allowed Mr. Stewart’s car to be swept off the bridge by the creek’s floodwaters.  There were also problems with inadequate lighting and tall grass at the crossing that obscured the floodwaters the night of the accident.  Before the accident, the crossing had no warning signs and no flood gauge.  Id. at par. 4.  After the accident, however, the City installed both a warning sign and a flood gauge. See Exhibits C-G attached hereto and CR 220-224.

Although the City took no action prior to the accident to warn the public of the dangers at the Bunert Road Bridge, it clearly had prior notice of these dangers.  As set forth in her affidavit attached hereto as Exhibit H and CR 225-227, former Corsicana City Council member Diana Rawlins has testified that “the Bunert Road low-water crossing over Post Oak creek posed an unreasonable danger” and that “the City of Corsicana through its public officials was on notice prior to May 1, 2004 of the unreasonably dangerous condition and harm that the Bunert Road low-water crossing over Post Oak Creek posed during light or heavy rains.”  Exhibit H at pars. 3, 19.

(g) Summary of the Argument

III.  SUMMARY OF ARGUMENT

In its Plea to the Jurisdiction filed before the trial court, the City asserted that it enjoyed sovereign immunity from Plaintiffs’ lawsuit because: 1) the dangerous condition at the Bunert Road Bridge was not a special defect, but merely a premises defect; and 2)  Plaintiffs could not show that the City was on notice of the dangerous condition, one of the essential elements of a premises defect (but not a special defect) claim.  See CR at 25-35.  The City’s argument was false on both grounds.  First, as set forth below, under Texas law, the dangerous condition at the Bunert Road Bridge was a special defect, making the issue of notice irrelevant.  In the alternative, there was an issue of fact as to whether the condition was a special defect or a premises defect that precluded summary dismissal.  Second, even if the Court treated the condition as a premises defect, testimonial and documentary evidence established that the City was in fact on notice of the dangerous condition at the Bunert Road Bridge prior to the accident made the basis of the lawsuit.  For these reasons, set forth more fully below, the trial court erred by granting the City’s Plea to the Jurisdiction.

Additionally, the trial court entered erroneous Findings of Fact and Conclusions of Law that reveals the underpinnings of the court’s mistaken decision to grant the Plea to the Jurisdiction.

(h) Argument

IV.  ARGUMENT AND AUTHORITIES

A.  An appellate court reviewing the granting of a Plea to the Jurisdiction operates under a de novo standard, meaning the appellate court must apply a stringent, pro-plaintiff standard to its analysis of the Plea to the Jurisdiction.

 

Under Texas law, a trial court’s ruling on a plea to the jurisdiction is reviewed under a de novo standard because subject-matter jurisdiction is a question of law.  Tex. Natural Res. Conserv. Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).  In determining a plea to the jurisdiction, the appeals court considers “the facts alleged in the petition and, to the extent that it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court.”  Madern v. City of Pasadena, 2006 WL 560183 (Tex.App. – Hous. [1 Dist.] 2006) (citing Tex. Natural Res. Conserv. Comm’n v. White, 46 S.W.3d 864, 868 (Tex. 2001); Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 5554 (Tex. 2000)).

When a considering a plea to the jurisdiction, an appellate court must “construe the pleadings liberally favor of the plaintiffs and look to the pleader’s intent.” Texas Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).  “When a plea to the jurisdiction challenges the pleadings, [the reviewing court] determine[s] if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause.”  Dallas County v. Gonzales, 2006 WL 158840, *1 (Tex.App. – Dallas 2006) (reh’g overruled) (citing Miranda, 133 S.W.3d at 226). “If a plea to the jurisdiction challenges the existence of jurisdictional facts, [the reviewing court] consider[s] relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.”  Gonzales, 2006 WL 158840 at *1 (emphasis added) (citing Miranda, 133 S.W.3d at 227).  “In order to prevail, the party asserting the plea must show that, even if all the allegations in the plaintiff’s pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff’s petition to confer jurisdiction on the court.”  Brenham Housing Auth. v. Davies, 158 S.W.3d 53, 56 (Tex.App.—Houston [14th Dist.] 2005, reh’g overruled) (citing Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex.App.—Austin 2000, no pet.) (emphasis added).  The procedure “generally mirrors that of a summary judgment under rule of civil procedure 166a(c), and the burden is on the government to meet the summary judgment standard of proof.”  Gonzales, 2006 WL 158840 at *1.  The City could not meet this burden at the trial court level, and it cannot now satisfy its burden before this Court.[1]

B.        The Plea should be denied because there is no sovereign immunity for failure to warn of a special defect, and evidence was insufficient to establish that no    special defect existed as a matter of law.

1.         There is no sovereign immunity for the failure to warn of a special defect.

 

In the hearing on its Plea to the Jurisdiction, Defendant asserted that it was protected by sovereign immunity for claims related to its failure to place signs warning of the unreasonably dangerous condition of the Bunert Road Bridge.  ??.  Defendant correctly noted that under section 101.060 of the Texas Civil Practices and Remedies Code, the State does not waive its sovereign immunity for claims arising from “the failure of a governmental unit initially to place a traffic or road sign, signal, or warning device if the failure is a result of discretionary action of the governmental unit.”  Tex. Civ. Prac. & Rem. Code § 101.060(a)(1).  However, what Defendant failed to inform the trial court is that “even if sign-placement decisions are discretionary, the State waives immunity for the duty to warn of special defects such as excavations or roadway obstructions.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).   Regardless of whether a governmental act was discretionary, immunity is waived for the duty to warn of special defects.  State v. Wolleson, 93 S.W.3d 910, 913 (Tex. App.–Austin 2002, no pet.).  Because the defect at issue is a special defect, the City of Corsicana does not have sovereign immunity from Plaintiffs’ claims and its Plea to the Jurisdiction should therefore be denied.

2.         The Bunert Road Bridge was a special defect.

A defect may be categorized as either a premises defect or a special defect.  “Whether a condition is a premise defect or a special defect is a question of duty involving statutory interpretation and thus an issue of law for the court to decide.”  State Dep’t. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).   The classification of a defect as either a premises defect or special defect “is done on a case by case basis.”  Corbin v. City of Keller, 1 S.W.3d 743, 747 (Tex. App.–Fort Worth 1999, pet. denied).

The bridge on which this tragedy occurred was apparently — unbeknownst to Plaintiffs — a low water crossing.  Representatives of the City have stated that the bridge was designed so that during floods, water would go over, rather than under, the bridge.  See Affidavit of Ronald Lynch attached hereto as Exhibit ? at par. 7.  The bridge lacked any guardrails.  Id. There were no warning signs, flood gauges or other indicators of the bridge’s propensity to flood to dangerous levels.  Exhibit ? (Lynch Affidavit) at par. 9; Affidavit of Diana Rawlins attached hereto as Exhibit ? at par. 17.  There were no signs indicating the bridge was a low water crossing.  And there were no signs or warnings indicating that the bridge lacked guardrails.

Many courts have held that such a flooded road constitutes a “special defect” under Texas law.  For example, in Miranda v. State, 591 S.W.2d 568 (Tex. Civ. App.–El Paso 1979, no writ), the family of Erasmo Miranda sued the State after he drowned when his car was swept from the road by floodwaters at a low water crossing on the Frio River.  The court was called upon to determine whether the flooded road was a premises defect or a special defect.  Turning to the statute, the court noted that special defects include such things as “excavations or obstructions on highways.”  Id. at 570.   The court held that the flooded roadway was clearly an obstruction and thus a special defect.  Id. at 571.[2]

In addition to the court in Miranda, many other courts have likewise found that a flooded roadway is a special defect.  See, e.g., City of Mesquite v. Crawford, No. 05-98-00706-CV, 2000 WL 1033067 at *4 (Tex. App.–Dallas July 19, 2000, no pet.) (not designated for publication) (petition alleging car accident caused by slippery condition of flooded roadway contained no facts “that exclude the hazardous condition from being a premises or special defect.”); Tex. Dep’t. of Transp. v. Abilez, 962 S.W.2d 246,  251 (Tex. App.—Waco 1998, pet. denied) (case involving flooded bridge involved a special defect);  Frazier v. City of Dallas, No. 05-99-01399-CV, 2000 WL 688546 (Tex. App.–Dallas May 24, 2000, no pet.) (not designated for publication) (case involving car swept from bridge by floodwaters involved a special defect).  Other courts have found that wet, slick or muddy roadways are likewise special defects.  See, e.g., Tex. Dep’t. of Transp. v. Stixrood, No. 08-01-00265-CV, 2002 WL 31777634 at *4 (Tex. App.–El Paso Dec. 12, 2002) (not designated for publication) (muddy roadway); State v. McBride, 601 S.W.2d 552 (Tex. Civ. App.–Waco 1980, writ ref’d n.r.e.) (slick and muddy condition on roadway was a special defect).  Given the foregoing cases, it is clear that the flooded bridge over Post Oak Creek was a special defect.

3.         Defendant has sought to distort Texas law by focusing on cause versus condition.

As formulated by Texas courts, the proper inquiry in a special defect analysis is whether the condition at issue was a special defect, not whether the cause of the condition was a special defect.  See, e.g., City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (emphasis added) (“Determining whether a condition is a special defect or an ordinary premise defect is a question of law for the court”); Texas Dep’t of Transp. v. Fontenot, 151 S.W.3d 753, 761 (Tex. App.–Beaumont 2004, no pet. h.) (emphasis added) (“Longstanding, routine or permanent conditions are not special defects.”); State Dept. of Highways and Public Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (emphasis added) (“Whether a condition is a special defect is a question of law.”).  In an astonishing verbal slight-of-hand, however, Defendant sought to stand Texas law on its head before the trial court by redefining the inquiry from the “condition” at issue to the “structure” that caused the condition:

  • “If the structure in question (here the low-water crossing) is a long- standing and routine condition of the roadway, it is not a special defect.”
  • “Therefore, the Bunert Road low-water crossing has been a longstanding, routine and permanent structure within the City of Corsicana and over Post Oak Creek since its construction and is not a special defect.”

Brief at pp. 6-7 (emphasis added).   There is simply no support under Texas law for this focus on the structure causing the dangerous condition as opposed to the dangerous condition itself.  The issue is not whether the structure at issue is longstanding or permanent, but whether the dangerous condition at issue — here, the dangerous, fast-moving floodwaters at the Bunert Road Bridge on May 1, 2004 — is longstanding or permanent.

Using this same flawed analysis, Defendant attempted to distinguish the cases of State v. McBride, 601 S.W.2d 552 (Tex. Civ. App.–Waco 1980, writ ref’d n.r.e.) (slick and muddy condition on roadway was a special defect) and State Dept. of Highways & Public Transp. v. Zachary, 824 S.W.2d 813, 815 (Tex. App.–Beaumont 1992, writ denied) (flooded roadway was a special defect) on the basis that the conditions at issue were caused by repairs which were temporary in nature.  Brief at p. 6.  But what Defendant failed to inform the trial court was that no Texas court has analyzed whether a condition was a special defect by evaluating whether its cause was temporary as opposed to long-standing and routine.  Rather, Texas courts have always focused on the dangerous condition itself.  In Kitchen, for example, the focus was not on the structure of the icy bridge at issue, but its condition — the fact that it was icy at the time of the accident.  Kitchen, 867 S.W.2d at 786 (“an icy bridge is neither unexpected nor unusual”).  Similarly, in Miranda, the court analyzed “whether flood waters on a state highway are a special defect,” not whether the “structure” of the highway itself was a defect.  Miranda, 591 S.W.2d at 569.  Finally, in Defendant’s oft-cited Corbin case, the court asked: “were the flood waters at the low-water crossing on Bear Creek Road a special defect;” in other words, it analyzed not the structure of the low-water crossing, but the dangerous condition, i.e., the flood waters. Corbin, 1 S.W.3d at 746.  Simply put, Defendant’s analysis of cause versus condition, which the trial court seemingly accepted, is completely unsupported by Texas case law.

4.         The Corbin case on which Defendant relied at the trial court level is distinguishable.

In its briefing before the trial court, the City of Corsicana relied principally on the case of Corbin v. City of Keller, 1 S.W.3d 743, 747 (Tex. App.–Fort Worth 1999, pet. denied) for the proposition that the flooded roadway over Post Oak Creek was a premises defect rather than a special defect.  In that case, the court held that a low water crossing over a creek was not a special defect.  There are several reasons, however, why the holding in Corbin does not apply to the facts of this case.  First, the court’s holding in Corbin was based entirely on the fact that the plaintiff driver, Mary Lovvorn, was aware of the dangerous condition of the low water crossing at issue and the likelihood that the roadway would flood on the night in question.  Specifically, the court noted the following:

  • “the creek often floods during periods of heavy rain.”
  • “the City erected a six-foot depth gauge and warning sign at the crossing that read ‘Danger.  Low Water Crossing.’”
  • “Mary routinely traveled over the low water crossing to visit her daughter, Barbara Corbin.”
  • Several hours before the accident the National Weather Service had issued a “flash flood warning” for the area which specifically warned that “street and lowland flooding [were] likely.”
  • Prior to the accident, “the manager of Mary’s mobile home park called to inform her that Bear Creek was flooding.”
  • After Mary decided to travel to her daughter’s house that night, “Mary and      Barbara discussed possible routes to bypass the low-water crossing at issue.”

Id. at 745.  Given these facts, the court held that the flooded roadway was not a special defect because “a flooded low-water crossing during flash flood conditions is neither unexpected nor unusual.”  Id. at 747.

Here, however, the undisputed evidence presented to the trial court was that Patrick Stewart, Sr. did not know that the Bunert Road Bridge was a low water crossing, did not know the bridge was subject to flooding, and had not been warned by the City or anyone else of the dangerous condition of the bridge the night of the accident.  Affidavit of Patrick Stewart, Sr. attached hereto as Exhibit A at pars. 3-4.  In fact, Mr. Stewart lived in Corsicana for 21 years and had never seen water across the road at the Bunert Road Bridge before.  Id. at pars. 2-3.  Furthermore, unlike the facts in Corbin — where the city had “erected a six-foot depth gauge and warning sign at the crossing that read ‘Danger.  Low Water Crossing’” — there were no warning signs or flood gauges at the Bunert Road Bridge.

Not only is the holding in Corbin inapplicable under the facts of this case, but it appears to be based on a serious misapplication of the well-established test for special defects.  The problem with, and distinguishing factor of, the holding in Corbin is that the court relied on the decedent’s particular personal knowledge of the dangerous condition rather than evaluating whether the condition “present[ed] an unexpected and unusual danger to ordinary users of roadways.”  Payne, 838 S.W.2d at 238 (emphasis added); see also State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (same).  While the plaintiff’s personal knowledge of the danger at issue is relevant in a premises defect case, see, e.g., Payne, 838 S.W.2d at 237, it has no bearing on a special defect case, where the issue is whether an “ordinary user” of the roadway would have expected the dangerous condition.  City of Fort Worth v. Adams, 888 S.W.2d 607, 613 (Tex. App.–Fort Worth 1994, writ denied), cert. denied, 516 U.S. 992 (1995) (In a special defect case, the fact that “the invitee knew or should have known of the condition would be irrelevant.”).  The court in Corbin erred by focusing on the plaintiff’s personal knowledge.

The court in Corbin also appears to have misapplied the premises defect test in another important way.  Under Texas law, in determining the status of a defect, the question is whether the “danger” at issue was unexpected and unusual.  Payne, 838 S.W.2d at 238 (special defects “present an unexpected and unusual danger to ordinary users of roadways.”) (emphasis added); Kitchen, 867 S.W.2d at 786 (same).   The court in Corbin, however, analyzed solely whether the “condition” at issue – the presence of water on the roadway – was unusual and unexpected.  Corbin, 1 S.W.3d at 747-8 (court noted that “the flood water at Bear Creek was neither unusual nor unexpected” and that “flood waters in a low-water crossing during a period of flash flooding can and should be anticipated by the ordinary motorist.”).  In the instant case, the mere presence of flood water over the road was not the issue before the Court since water on the road is not in and of itself a danger.  The issue was whether the danger represented by deep and fast-moving flood waters at the time was unusual or unexpected.  See Stixrood, 2002 WL 31777634 at *4 (special defect existed not merely because there was mud on the roadway but because “it was unusual that the mud became dangerous enough to cause an accident”).

Here, the issue is whether the deep, strong, fast-moving flood waters at the Bunert Road Bridge on the morning of May 1, 2004 (the “danger” at issue) were unusual and unexpected, a question not answered by the limited and factually-distinguishable holding in Corbin.  Although this question was not answered in Corbin, here, the very affidavits submitted by the City clearly indicate that the danger the night of the accident was not common or usual. According to the Affidavit of Ronald Lynch submitted with the City’s Brief, Lynch is not aware of any other flood-related accidents or injuries at the Bunert Road Bridge and is not aware of any prior complaints or comments about flooding at the bridge.  Exhibit H at par. 9.  Similarly, Connie Standridge states in her affidavit that she is “personally unaware of any complaints, reports, claims or comments regarding flood-related injuries at or concerns about the low-water crossing at Bunert Bridge over Post Oak Creek.”  Exhibit I at par. 6.  The Police Report further confirms the unusual and unexpected nature of the severe flooding experienced in Corsicana the night of the accident.  According to the report:

  • “While enroute the rain was so intense and the water so high on E. 5th that my vehicle almost flooded out 3 times.”
  • “the Creek was running way over the Low water Crossing and that the water was extremely fast.”
  • “Rescue efforts were hampered by high, fast water, thick vegetation in the  creek, heavy rain, and strong wind.”
  • “dispatch was inundated with calls for help all over town for stranded motorists in high rising water and flooded homes.”
  • “During this time water had risen so high on many of the streets that Officers found themselves isolated on high ground areas and could not get to some areas to provide assistance because of the high water.”

Police Report attached hereto as Exhibit J at p. 5.  There is simply no evidence to support Defendant’s claim that the danger at issue was routine and long-standing as opposed to unusual and unexpected.

In the final analysis, despite its holding, the court in Corbin conceded that “flood waters may constitute a special defect under certain circumstances when floods may be unexpected or unusual. . . .”  Corbin, 1 S.W.3d at 748 (emphasis original); see also State Dept. of Highways & Public Transp. v. Zachary, 824 S.W.2d 813, 815 (Tex. App.–Beaumont 1992, writ denied) (court found that flooded roadway was a special defect because the danger was unexpected and unusual).  This case presents just such a circumstance.  Given the facts here — an unmarked low-water crossing with no warning signs or flood gage and a driver unaware that the bridge was a low-water crossing subject to flooding — the flooded road was clearly a special defect.  Nothing in the Corbin case holds differently.  As such, the Stewarts were and are entitled under the facts and the law to submit this issue to a Corsicana jury.  Zachary, 824 S.W.2d at 819. (“so long as the issue has been properly pleaded and evidence exists of some sort of condition or circumstance that would constitute a ‘special defect,’ i.e. an obstruction, or excavation or like defect, the trial court has no choice but to submit a question to the jury as to whether or not the proven condition constituted a ‘special defect.’”).  The trial court erred in holding otherwise.

5.         Plaintiffs successfully plead each of the elements of their special defect claim, so the trial court was required to deny the Plea to the Jurisdiction.

 

Plaintiffs’ First Amended Petition very clearly states the statutory basis for each of Plaintiffs’ claims.  In addition, the Petition provides the facts underlying each claim.  Nothing more is required of a plaintiff.  Texas law requires no additional specificity for premises or special defect claims, and, as noted above, the allegations of the plaintiff’s pleadings are taken as true for purposes of analyzing a plea to the jurisdiction.

Defendant asserted before the trial court that Plaintiffs have not identified the “‘excavation’ and ‘obstruction’ which were unexpected and unusual dangers to the ordinary user of the roadway.”  Defendant’s Original Answer at p. 3. But the law does not require such a showing.  Rather, the law requires a Plaintiff to identify “special defects such as excavations or obstructions” which present unexpected and unusual danger to ordinary users of the roadway.  Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b) (West 1997) (emphasis added).  As the Texas Supreme Court has stated, “[t]he examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.”  City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).   Defendant’s objection is clearly without merit.

The primary differences between premises defect and special defect cases relate to the parties’ knowledge of the defect at issue.  First, while a plaintiff suing for a premises defect “must prove that the premises owner actually knew of the dangerous condition,” a plaintiff suing for a special defect “need only prove that the owner knew or reasonably should have known” of the defect  Payne, 838 S.W.2d at 238.  Second, a plaintiff suing for a premises defect “must prove that he did not know of the dangerous condition, while an invitee need not do so.”
Payne, 838 S.W.2d at 238; see also City of Fort Worth v. Adams, 888 S.W.2d 607, 613 (Tex. App.–Fort Worth 1994, writ denied), cert. den., 516 U.S. 992 (1995) (“That the invitee knew or should have known of the condition would be irrelevant.”).  In other words, “[u]nder a special defect theory, the plaintiff need not prove that the State actually knew of the dangerous condition and that plaintiff did not.”  Tex. Dep’t. of Transp. v. Stixrood, No. 08-01-00265-CV, 2002 WL 31777634 (Tex. App.–El Paso Dec. 12, 2002) (not designated for publication).  For this reason, as stated above, the issue of notice on which the City based its Plea is irrelevant under a special defect theory.

When a defect is a special defect, the defendant owes the plaintiff the same duty a property owner owes an invitee, the duty to “use ordinary care to reduce or eliminate an unreasonable risk of harm created by a condition of the premises of which the entity is or reasonably should be aware.”  Tex. Dep’t. of Transp. v. Abilez, 962 S.W.2d 246, 251 (Tex. App.–Waco 1998, pet. denied).  In a special defect case, the plaintiff must show:

  1. a condition of the premises created an unreasonable risk of harm to the invitee;
  2. the owner knew or reasonably should have known of the condition;
  3. the owner failed to exercise ordinary care to protect the invitee from danger; and
  4. the owner’s failure was a proximate cause of the injury.

Id.; see also Payne, 838 S.W.2d at 237.  Plaintiffs’ First Amended Complaint successfully alleges each of these elements.  Therefore, the trial court should have denied the Plea to the Jurisdiction and Special Exceptions.

C.         Even assuming the defect at issue is a premises defect rather than a special defect, which Appellant vigorously denies, the trial court erred in granting Defendant’s Plea because a fact issue exists.

 

If the bridge is considered a premises defect rather than a special defect, the City owed Plaintiffs the duty a private landowner owes a licensee.  Payne, 838 S.W.2d at 237.  “That duty requires that a landowner not injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.”  Id. To establish liability for a premises defect, Plaintiffs must show:

  1. The condition of the bridge created an unreasonable risk of harm;
  2. The City had actual knowledge of the condition;
  3. Plaintiffs did not have actual knowledge of the condition;
  4. The City failed to exercise ordinary care to protect the public from danger; and
  5. The City’s failure was a proximate cause of Plaintiffs’ damages.

Id. Plaintiffs’ First Amended Complaint clearly alleges each of these elements.

 

In its Brief on State Law Immunity filed with the trial court, the City challenged the second criteria above, asserting that it had no knowledge of the dangerous condition at the Bunert Road Bridge.  Brief at pp. 10-11 (“Because the evidence clearly establishes that Defendant City of Corsicana did not know of the alleged unreasonably dangerous condition at the Bunert Road low-water crossing over Post Oak Creek, such alleged condition was not a premise defect within the Texas Tort Claims Act.  Defendant City therefore retains its sovereign immunity from suit.”).    As set forth below, however, a clear issue of fact regarding notice exists that precluded the trial court’s summary dismissal.

First, the affidavits submitted to the trial court by the City failed to prove that the City had any knowledge of the propensity of the Bunert Road Bridge to flood during heavy rains.  Instead, each of the carefully-worded affidavits merely stated that the affiants were not aware of any flood-related accidents or injuries at the crossing and did not recall receiving any complaints or comments from concerned citizens about the bridge.  The absence of complaints or prior accidents, however, does not demonstrate that the City was actually unaware of the dangerous condition at issue.

Nor did the City’s affidavits negate the existence of constructive knowledge, which, under Texas law, is sufficient to state a premises defect claim.  See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex.2000) (“Constructive knowledge is a substitute in the law for actual knowledge.”).  The City’s own Brief on State Law Immunity claimed that “the Bunert Road low-water crossing has been a longstanding, routine and permanent structure within the City of Corsicana and over Post Oak Creek since its construction. . . . .,” which it claims occurred “in the 1950s.”  Brief at p. 7.  As the Texas Supreme Court has held, “[i]n premises cases constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection.”  Id. at 102-03.  The City’s Brief and the attached affidavit of Ronald Lynch further claim that the City built the low-water crossing at Post Oak Creek.  Brief at p. 7; Lynch Affidavit attached hereto as Exhibit H at par. 6.  Under Texas law, “[t]he fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.”   Keetch v. Kroger, 845 S.W.2d 262, 265 (Tex. 1992).  Because the City’s own judicial admissions raised an issue of fact on constructive knowledge, the trial court was obligated to deny its Plea to the Jurisdiction.

Finally, and most importantly, the trial court should have denied Defendant’s Plea because the Affidavit of former City Council member Diana Rawlins, attached hereto as Exhibit G, clearly and unequivocally stated that the City of Corsicana was on notice of the dangerous condition posed by the Bunert Road Bridge over Post Oak Creek before the May 1, 2004 accident:

I have personal knowledge of the unreasonably dangerous conditions of the Bunert Road low-water crossing over Post Oak Creek.  The City of Corsicana through its public officials was on notice prior to May 1, 2004 of the dangerous conditions the Bunert Road low-water crossing over Post Oak Creek posed during light or heavy rains.

To my knowledge, at certain times water crosses over the Bunert Road low-water crossing by design. The Bunert Road low-water crossing over Post Oak Creek drops approximately 6 to 10 feet from Bunert Road.  The drop is not visible because there is an optical illusion on Bunert Road that makes it appear like no such drop exists.  After light or heavy rains, a pool of water forms at the low-water crossing unlike a road surface.  The lack of warning in advance, adequate lighting, and an unobstructed view prevents evasive action during a flood.

When it rains the Bunert Road low-water crossing usually floods.  Based on my personal observation of the low-water crossing, it would be very difficult for a motorist to see the flooding waters due to broken street lights and the obstructed view of Post Oak Creek.

Prior to May 1, 2004, I visited the Bunert Road low-water crossing individually and with Emmaline Gonzalez, the City of Corsicana Council Member for Precinct 2, in response to citizen complaints.  I observed the broken street light; debris such as upholstered couches and chairs stuck inside the pipes underneath the Bunert Road low-water crossing which restricted the water flow through the pipes underneath the crossing; and tall grass on City owned property which obstructed the view of Post Oak Creek.

Prior to May 1, 2004, I spoke to Truitt Gilbreath, the former Corsicana City Manger about the broken street light at the Bunert Road low-water crossing.

Prior to May 1, 2004, I spoke to Ronald Lynch, the City of Corsicana Public Works Director on several occasions regarding the dangerous conditions that the Bunert Road low-water crossing over Post Oak Creek posed to the public.  In our conversations, I told Mr. Lynch that the broken street lights over the low water crossing prevented motorists from seeing standing flood water at the Bunert Road low-water crossing.

Prior to May 1, 2004, I submitted a lights out survey to Sharon Talbert, Secretary for the City of Corsicana, Texas.  The survey included the Bunert Road low-water crossing. Emmaline Gonzalez was present on that occasion.

After May 1, 2004, I spoke to Connie Standridge, the City Manager about tall grass at and around the Bunert Road low-water crossing on City owned property.  I told her the tall grass obstructed the view of Post Oak Creek.

After May 1, 2004, I emailed photos to Connie Standridge, the Corsicana City Manager and City Engineer which showed the conditions set forth in the Affidavit.

On Monday, May 3, 2004, sofas and chairs were still inside the creek obstructing the flow of water underneath the Bunert Road low water crossing.  Debris underneath the crossing causes water to pick up speed and travel faster.

On Tuesday, May 4, 2004, I spoke at the regular meeting of the City Council about the water flooding issues and gave the city photographs to keep in its files of the meeting.

The City of Corsicana through its public officials was on notice prior to May 1, 2004, of the unreasonably dangerous conditions that the Bunert Road low-water crossing over Post Oak Creek posed to the public.

The day after the Stewart children drowned in Post Oak Creek lights were still broken, the grass was overgrown, and trash was inside the creek restricting the flow of creek waters, no flood gauges were present, no warning signs were posted and two concrete teeth were missing from the East side of the low-water crossing and are still missing.  After the drowning, the City put up flood gauges, cut down the tall grass, and posted warning signs in advance of the Bridge.

Regardless of whether other persons were injured at the Bunert Road low-water crossing, the City knew of the unreasonably dangerous flooding conditions that the Bunert Road low-water crossing over Post Oak Creek posed to the public and that the only light working had not been working for a long period of time.

In my opinion, the Bunert Road low-water crossing over Post Oak creek posed an unreasonable danger.

Exhibit H.  At a minimum, this evidence raises a fact issue as to the City’s knowledge, and “when jurisdictional evidence raises a fact issue, a plea to the jurisdiction must be denied.” City of Galveston v. Albright, No. 14-04-00072-CV, 2004 WL 2439231 at *4 (Tex. App.–Houston [14th Dist.] Austin Nov. 2, 2004).

E.         Alternatively, there is a fact question regarding the status of the bridge as either a special defect or premises defect that mandates the Plea to the Jurisdiction be denied.

 

Finally, in the alternative, denial of the Plea to the Jurisdiction was mandatory because there is a fact question regarding the status of the bridge as either a special defect or premises defect.  Where, as here, the parties present conflicting evidence bearing on the proper characterization of the defect at issue, a fact issue exists that precludes summary disposition. As the Waco Court of Appeals has stated:

The determination of whether an obstruction or condition is a premise defect or a special defect ordinarily “is a question of duty involving statutory interpretation and thus an issue of law for the court to decide.” However, when the facts surrounding the obstruction or condition are disputed, the trier of fact must decide the underlying fact issues which determine the legal issue of whether it constitutes a special or premise defect.

McCreight v. City of Cleburne, 940 S.W.2d 285, 288 (Tex. App.–Waco 1997, writ denied); see also Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.217, 228 (Tex. 2004) (“[i]f the relevant evidence creates a fact question regarding the jurisdictional issue then the court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the fact finder.”); Villegas v. Tex. Dep’t of Transp., 120 S.W.2d 26, 32 (Tex. App.–San Antonio 2003, pet. denied) (“Whether a condition is a premise defect or a special defect is a question of law. . . .  When the facts surrounding the condition are disputed, however, the trier of fact must resolve the underlying fact issues.”); Diaz v. Ellis County, No. 10-04-00112-CV, 2005 WL 774714 at *2 (Tex. App.–Waco April 6, 2005, no pet. h.) (“Both parties present conflicting evidence as to the character of the depression. Therefore, fact issues exist as to whether the depression is a special defect.”).  As the Texas Supreme Court has stated, “by reserving for the fact finder the resolution of disputed jurisdictional facts that implicate the merits of the claim or defense, we preserve the parties’ right to present the merits of their case at trial.”  Miranda, 133 S.W. at 228.  Because jurisdictional fact issues exist that implicate the merits of Plaintiffs’ claims, the trial court erred in denying the Defendant’s Plea to the Jurisdiction.

F.         The trial court’s findings of fact and conclusions of law are irrelevant to this Court’s analysis; demonstrate that the court made its decision on unreasonable grounds.

Although this Court undertakes a de novo review of the trial court’s decision,

(i) Prayer

BEGINNING OF POST-HEARING BRIEF:

 

SUMMARY OF ARGUMENT

 

Defendant asserts that it enjoys sovereign immunity from the instant suit because: 1) the dangerous condition at the Bunert Road Bridge was not a special defect, but merely a premises defect; and 2)  Plaintiffs cannot show that the City was on notice of the dangerous condition.  Defendant’s argument fails on both grounds.  First, under Texas law, the dangerous condition at the Bunert Road Bridge was a special defect, making the issue of notice irrelevant.  In the alternative, there is an issue of fact as to whether the condition is a special defect or a premises defect that precludes summary dismissal.  Second, even if the condition is treated as a premises defect, the testimony of former Corsicana City Council member Diana Rawlins and current  Public Works Director Ronald Lynch, as well as the information in the Flood Protection Planning Study, establishes that the City was in fact on notice of the dangerous condition at the Bunert Road Bridge prior to the May 1, 2004 accident made the basis of the lawsuit.  For these reasons, the City’s Plea to the Jurisdiction and Special Exceptions should be denied.

ARGUMENT AND AUTHORITIES

 

I.          The condition at issue is a special defect, making the City’s actual knowledge irrelevant.

The bridge on which this tragedy occurred was apparently — unbeknownst to Plaintiffs — a low water crossing.  Representatives of the City have stated that the bridge was designed so that during floods, water would go over, rather than under, the bridge.  For this reason, the bridge lacked any guardrails.  There were no warning signs, flood gauges or other indicators of the bridge’s propensity to flood to dangerous levels.  There were no signs indicating the bridge was a low water crossing.  And there were no signs or warnings indicating that the bridge lacked guardrails.

Where, as here, a special defect exists, a plaintiff is considered to be an invitee and “need only prove that the owner knew or reasonably should have known” of the dangerous condition at issue.  State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992).  Because the defect at issue is a special defect, Defendant’s supposed lack of actual knowledge is irrelevant and provides no basis for sustaining its Plea to the Jurisdiction.

A.        Miranda is controlling and the City has not refuted it.

In Miranda v. State, 591 S.W.2d 568 (Tex. Civ. App.–El Paso 1979, no writ), the family of Erasmo Miranda sued the State after he drowned when his car was swept from the road by floodwaters at a low water crossing on the Frio River.  The court was called upon to determine whether the flooded road was a premises defect or a special defect.  Turning to the statute, the court noted that special defects include such things as “excavations or obstructions on highways.”  Id. at 570.   The court held that the flooded roadway was clearly an obstruction and thus a special defect.  Id. at 571.

Although the court in Corbin v. City of Keller, 1 S.W.3d 743, 747 (Tex. App.–Fort Worth 1999, pet. denied) attempted to distinguish the holding in Miranda, its rationale was unconvincing.  According to the Fort Worth court, Miranda is not controlling because it was decided before the Texas Supreme Court’s ruling in State Dep’t of Highways & Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993), which held that an icy bridge was not a special defect because “an icy bridge is something motorists can and should anticipate when the weather is conducive to such a condition.”  But the holding in Kitchen established no new legal precedent; it merely applied the rule that a special defect must be a condition that presents “an unexpected and unusual danger to ordinary users of roadways.”  Kitchen, 867 S.W.2d at 786.  Moreover, the court in Corbin conceded that “other factors” may have existed in Miranda that would have prevented an ordinary user of the roadway from anticipating the flood waters at issue and that “flood waters may constitute a special defect under certain circumstances when floods may be unexpected or unusual.”  Corbin, 1 S.W.3d at 748.

B.        Corbin v. Keller is inapplicable under the facts of this case.

The City of Corsicana relies principally on Corbin for the proposition that the flooded roadway over Post Oak Creek was a premises defect rather than a special defect. There are several reasons, however, why the holding in Corbin does not apply to the facts of this case.  First, the court’s holding in Corbin was based entirely on the fact that the plaintiff driver, Mary Lovvorn, was aware of the dangerous condition of the low water crossing at issue and the likelihood that the roadway would flood on the night in question.  Specifically, the court noted the following:

  • “the creek often floods during periods of heavy rain.”
  • “the City erected a 6 ft depth gauge and warning sign at crossing that read ‘Danger.  Low Water Crossing.’”
  • “Mary routinely traveled over the low water crossing to visit her daughter, Barbara Corbin.”
  • Several hours before the accident the National Weather Service had issued a “flash flood warning” for the area which specifically warned that “street and lowland flooding [were] likely.”
  • Prior to the accident, “the manager of Mary’s mobile home park called to inform her that Bear Creek was flooding.”
  • After Mary decided to travel to her daughter’s house that night, “Mary and      Barbara discussed possible routes to bypass the low-water crossing at issue.”

Given these facts, the court held that the flooded roadway was not a special defect because “a flooded low-water crossing during flash flood conditions is neither unexpected nor unusual.”  Id. at 747.

Here, however, the evidence is that Patrick Stewart, Sr. did not know that the Bunert Road Bridge was a low water crossing, did not know the bridge was subject to flooding and had not been warned by the City or anyone else of the dangerous condition of the bridge the night of the accident.  In fact, Mr. Stewart lived in Corsicana for 21 years and had never seen water across the road at the Bunert Road Bridge before.  Furthermore, unlike the facts in Corbin — where the city had “erected a six-foot depth gauge and warning sign at the crossing that read ‘Danger.  Low Water Crossing’” — there were no warning signs or flood gauges at the Bunert Road Bridge.

In the final analysis, despite its holding, the court in Corbin conceded that “flood waters may constitute a special defect under certain circumstances when floods may be unexpected or unusual. . . .”  Corbin, 1 S.W.3d at 748 (emphasis original).  This case presents just such a circumstance.  Given the facts here — an unmarked low-water crossing with no warning signs or flood gauge and a driver unaware that the bridge was a low water crossing subject to flooding — the flooded road was clearly a special defect.  As such, the Stewarts are entitled under the facts and the law to submit this issue to a Corsicana jury.

II.       Alternatively, there is a fact question regarding the status of the bridge as either a special defect or premises defect that mandates the Plea to the Jurisdiction be denied.

 

In the alternative, there is a fact question regarding the status of the bridge as either a special defect or premises defect which mandates that the Plea to the Jurisdiction be denied.  Where, as here, the parties present conflicting evidence on the characterization of the defect, a fact issue exists that precludes summary disposition. As the Waco Court of Appeals has stated:

The determination of whether an obstruction or condition is a premise defect or a special defect ordinarily “is a question of duty involving statutory interpretation and thus an issue of law for the court to decide.” However, when the facts surrounding the obstruction or condition are disputed, the trier of fact must decide the underlying fact issues which determine the legal issue of whether it constitutes a special or premise defect.

McCreight v. City of Cleburne, 940 S.W.2d 285, 288 (Tex. App.–Waco 1997, writ denied); see also Texas Dept. of Parks and Wildlife v. Miranda, 133 S.W.217, 228 (Tex. 2004) (“[i]f the relevant evidence creates a fact question regarding the jurisdictional issue then the court cannot grant the plea to the jurisdiction and the fact issue will be resolved by the fact finder.”); Villegas v. Tex. Dep’t of Transp., 120 S.W.3d 26, 32 (Tex. App.–San Antonio 2003, pet. denied) (“Whether a condition is a premise defect or a special defect is a question of law. . . .  When the facts surrounding the condition are disputed, however, the trier of fact must resolve the underlying fact issues.”); Diaz v. Ellis County, No. 10-04-00112-CV, 2005 WL 774714 at *2 (Tex. App.–Waco April 6, 2005, no pet. h.) (“Both parties present conflicting evidence as to the character of the depression. Therefore, fact issues exist as to whether the depression is a special defect.”).  Because the facts surrounding the proper characterization of the Bunert Road Bridge are disputed, Defendant’s Plea to the Jurisdiction must be denied.

III.       Even assuming the condition at issue is a premises defect rather than a special  defect, a fact issue exists regarding the City’s knowledge that makes dismissal  inappropriate as a matter of law.

 

A.        The City failed to meet its initial burden to show that it did not have knowledge of the dangerous condition at the Bunert Road Bridge.

The City’s affidavits do not prove that the City had no knowledge of the propensity of the Bunert Road Bridge to flood during heavy rains.  Instead, each of the  carefully-worded affidavits merely state that the affiants are not aware of any flood-related accidents or injuries at the crossing and do not recall receiving any complaints or comments from concerned citizens about the bridge.  A lack of complaints or prior accidents, however, does not demonstrate that the City was actually unaware of the dangerous condition at issue:

The City relies on affidavits from three park officials to show that it lacked actual knowledge of any dangerous condition. The affidavits state that the City had no prior notice of a defect, dangerous condition, or similar accident. However, lack of notice from third parties does not conclusively negate actual knowledge.

Mitchell v. City of Dallas, 855 S.W.2d 741, 749 (Tex. App.–Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994).  Moreover, none of the evidence offered by the City indicates that the City had no knowledge that the Bunert Road Bridge was flooded on the night of April 30, 2004 and the morning of May 1, 2004.  Nowhere in any of its affidavits did the City offer evidence that it was unaware of this dangerous condition.  Nor did it offer any such testimony at the hearing.

The Texas Supreme Court has explained that the process by which a plea to the jurisdiction is decided is similar to the way a summary judgment motion is decided.  Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004) (“We acknowledge that this standard generally mirrors that of a summary judgment under Tex. R. Civ. P. 166a(c).”).  For this reason, the burden is on the defendant to first present evidence indicating that the court lacks jurisdiction before the plaintiff is required to offer evidence to the contrary:

By requiring the state to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to “put on their case simply to establish jurisdiction.”   Instead, after the state asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue.

Id. (emphasis added).  If the defendant does not first offer evidence that the court lacks jurisdiction — such as evidence it lacked knowledge of the dangerous condition — the plaintiff need not come forward with any evidence and the plea must be denied:

The County also argues appellees presented no evidence the County had actual knowledge of the dangerous condition. Appellees, however, had no burden to present evidence of the County’s knowledge until the County had established its lack of knowledge. As discussed above, the County failed to meet this burden. We overrule the County’s third issue.  We conclude the trial court did not err in denying the County’s plea to the jurisdiction, and we overrule the County’s first issue.  We affirm the trial court’s denial of the County’s plea to the jurisdiction.

Dallas County v. Wadley, No. 05-04-00207-CV, 2005 WL 1799333 at *5 (Tex. App.–Dallas Aug. 1, 2005).  Because the City failed to meet its initial burden of demonstrating its lack of knowledge, Plaintiffs herein were not required to offer any evidence to the contrary and the City’s Plea must be denied.

B.        A fact issue regarding the City’s knowledge precludes granting the Plea to the Jurisdiction.

As the City admits, “if the evidence creates a fact issue regarding jurisdiction, the trial court cannot grant the Plea to the Jurisdiction and the parties must be allowed to move forward with discovery.”  Defendant’s Reply Brief at p. 20; see also Miranda, 133 S.W.3d at 228 (“If the evidence creates a fact question regarding 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.”).  In reviewing the evidence before the Court, it is important to note the applicable standard of review:

When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Payne, 133 S.W.3d at 228; see also City of San Antonio v. Hartman, 155 S.W.3d 460, 466 (Tex. App.–San Antonio 2004, pet. filed) (same).  Based on the evidence submitted by affidavit and at the hearing, there is clearly a fact issue regarding the City’s knowledge of the dangerous condition at the Bunert Road Bridge.  For this reason, the Plea must be denied.

1.         The evidence introduced at the hearing demonstrates that the City had actual knowledge of the dangerous condition at the Bunert Road Bridge.

 

A multitude of evidence submitted at the hearing not only creates a fact issue regarding the City’s knowledge of the dangerous condition at the Bunert Road Bridge, it affirmatively demonstrates such knowledge.  Among the testimony of former Corsicana City Councilwoman Diana Rawlins was the following:

  • While she was a member of the Corsicana City Council, she had actual  knowledge of the unreasonably dangerous condition at the Bunert Road Bridge  over Post Oak Creek based on having visited the site several times per week.
  • The dangerous condition included the lack of lighting, the dangerous dip that was difficult to see at night, overgrowth of vegetation that obscured the creek, debris in the creek bed that clogged the pipes running underneath the road, missing concrete teeth that would prevent a vehicle from being swept from the bridge and the bridge’s propensity to flood during periods of heavy rain.
  • Prior to May 1, 2004, she told City Manager Truitt Gilbreath, Public Works Director Ronald Lynch and Interim City Manager Connie Standridge about the dangerous conditions at the bridge.
  • She went so far as to tell City Manager Truitt Gilbreath that “someone would drown” at the Bunert Road Bridge if the unreasonably dangerous conditions were  not remedied.
  • She repeatedly complained to Gilbreath and Lynch about the light being out at the Bunert Road Bridge.
  • Both two weeks before the accident and the day of the accident, the light at the    crossing was not working and there were tall grass and weeds.
  • The City was on notice before May 1, 2004 of the dangerous condition of the Bunert Road low water crossing.
  • The City took no action to remedy the dangerous condition other than to dispatch trash clean up crews.
  • The City did not repair the street light at the Bunert Road low water crossing until January 2005.
  • It was not until months after the accident that the City installed a flood gauge and a flood warning sign at the Bunert Road Bridge.

Corsicana Public Works Director Ronald Lynch also testified at the hearing.  Among his testimony was the following:

  • Diana Rawlins included the light out at the Bunert Road Bridge as a “top priority” on a Lights Out Survey she submitted to the City.
  • He has no personal knowledge as to whether that light was replaced.
  • The light that was replaced near the crossing several weeks before the accident was not the light at the crossing, but was actually about 600 feet away.
  • According to city Council minutes, a citizen complained two weeks after the accident that the light at the Bunert Road Bridge was out.
  • Although Diana Rawlins’ Lights Out Survey identified the Bunert Road Bridge as  having a “very dangerous dip,” to his knowledge, the City never followed up to                            determine why Rawlins characterized the bridge in such a manner.
  • The City had crews at the Bunert Road Bridge twice per week; the city would therefore have known the condition of the crossing within a few days prior to the May 1, 2004 accident.
  • The City knew that heavy rains caused debris to clog the pipes under the Bunert Road Bridge and make the water rise faster.
  • The Bunert Road Bridge was designed as a low water crossing, meaning that water was designed to go over — not under — the bridge during heavy rains.
  • This is different from the typical bridge in Corsicana in which water is designed to go under the roadway; in fact, the Bunert Road Bridge is the only low water                                 crossing in Corsicana.
  • The Bunert Road Bridge has no guardrails; this is different from the other bridges in Corsicana.
  • The City is well aware that, because it is a low water crossing, the Bunert Road Bridge tends to flood during heavy rains; that is by design.
  • On May 1, 2004, no sign identified the Bunert Road Bridge as a low water crossing where water was designed to go over the bridge during heavy rains.
  • The Bunert Road Bridge’s lack of guardrails and tendency to flood during heavy rains would be unusual and unexpected to the average motorist who was not                                  aware it was a low water crossing.
  • On prior occasions, the City had blocked off the Bunert Road Bridge because of flooding.
  • Shortly after the accident, on the morning of May 1, 2004, the City blocked off the Bunert Road Bridge “to protect the public” and because the flood waters were                              “dangerous.”

These facts establish that the City had actual knowledge of the dangerous condition at the Bunert Road Bridge both prior to and on May 1, 2004.  At a bare minimum, this evidence creates a fact issue relating to the city’s knowledge that precludes the granting of the Plea to the Jurisdiction.

2.         The May 2001 City of Corsicana Flood Protection Planning Study discovered by Plaintiffs since the hearing demonstrates that the City                                         had actual knowledge of the dangerous condition at the Bunert Road Bridge.

 

In addition to the evidence presented at the hearing, Plaintiffs discovered only after the hearing that a comprehensive Flood Protection Planning Study (the “Study”) was submitted to the City in May 2001, three years before the accident at issue here.  The information contained in the Study, which is attached hereto as Exhibit A, conclusively establishes that the City knew of the dangerous floodwaters at the Bunert Road Bridge on May 1, 2004.  Some of that information is the following:

  • The Study, which was submitted to City employees including Connie Standridge, who submitted an affidavit in support of the City’s Plea in this case, stated that:

“The City of Corsicana has a history of flood problems and damages within the Post Oak Creek drainage basin.”  Exhibit A at p. I-4 (emphasis added).

Most of the flood producing storms that occur in the Corsicana area are experienced in the spring and fall.  Many of the higher floods that have occurred  are a result of prolonged or successive storms that produce heavy rainfall.  However, intense localized thunderstorms are common throughout the year and flash flooding may occur at any time.”  Exhibit A at p. I-4 (emphasis added).

“Many of the city’s flood damages or related problems are caused by inadequate capacities of the existing channels and bridges.” Exhibit A at p. I-4 (emphasis added).

Inadequate Road CrossingsMany existing bridges and culverts are generally undersized in comparison with future fully urbanized 100-year flood flows.  When existing culverts are relatively low with respect to the channel, higher head losses are common at road crossings.  These low culverts are also prone to catch debris and dam up flood waters.  From a design perspective, some of the existing streets, driveways, and sidewalks in the vicinity of some road crossings are often too low, when compared to 100-year flood elevations, and must be rebuilt or adjusted if larger drainage structures are to be installed.”  Exhibit A at pp. II-8, II-9 (emphasis added).

  • The Study recommended that “all hazardous flood prone stream crossings should be marked with an active or passive flood warning system.”  Exhibit A at p. xi.
  • The Study recommended that “all stream crossings be included in a city-wide inspection and rating program for replacing undersized or dangerous bridges/culverts.”  Exhibit A at p. xi.
  • The Study stated that “a study of flood-related deaths in the Dallas area indicates that most deaths occur at undersized bridges that are either overtopped or washed out by floodwaters (Reference 14).”  Exhibit A at p. III-3 (emphasis added).
  • The Study indicated that “an alternative to improving dangerous bridges and culverts is to install flood warning signs, barricades, or other systems to inform and alert motorists of hazardous crossings.”  Exhibit A at p. III-3.
  • The Study noted that “flood warning systems can be passive or active. A passive system would be a warning sign, such as “BEWARE OF HIGH WATER,” which would notify people using the bridge that flooding may occur. A gage with easy-to-read depth markings, measured in feet, should show motorists the height of water over the roadway. Guardrails can be installed to prevent vehicles from being washed off a dangerous road crossing, and can be used to identify the edge of the road surface where it may be obscured by floodwater.”  Exhibit A at p. III-3 (emphasis added).
  • The Study noted that “installation of a passive warning system would be relatively inexpensive. Features include warning signs, staff gages, and guardrails.”  Exhibit A at pp. III-3, III-4 (emphasis added).
  • The Study noted that “active warning systems use a sensing device which monitor the water level in the channel and alerts motorists before the water is actually flowing over the roadway” and stated that “active warning systems are necessary on heavily traveled thoroughfares or at crossings which are extremely hazardous.”  Exhibit A at p. III-4 (emphasis added).
  • The Study stated that “stream crossings that are hazardous during floods with a return period of 100 years or less, should be marked with an active or passive flood warning system. Passive warning systems are feasible on lightly traveled streets where motorists are familiar with the area and at crossings with minor flooding. Active flood warning systems are necessary on heavily traveled thoroughfares. Guardrails should be installed at hazardous crossings where a vehicle may be washed off the road surface.”  Exhibit A at p. V-5 (emphasis added)
  • A chart that was included in the Study showed that the Bunert Road low water crossing would be overtopped by water during a 100-year floods. Exhibit A at p. IV-9.
  • The Study stated that “a Corsicana flood-warning system could be used to alert city officials to barricade flood-prone streets along Post Oak Creek . . . This system would not reduce or prevent property inundation or flood damages; however, it would increase public safety.”  Exhibit A at p. III-4.
  • A chart included in the Study showed that the peak flood discharge at the Bunert Road Bridge is higher than almost any other bridge and similar to the peak flow at                        I-45, which witnesses testified is often blocked off during heavy rains and was in fact blocked off hours before the May 1, 2004 accident:
  • Finally, the Study specifically recommended that changes be made at the Bunert Road Bridge and that the existing reinforced concrete pipe be replaced by larger                            concrete bridge culverts:

These facts establish that the City had actual knowledge of the dangerous condition at the Bunert Road Bridge both prior to and on May 1, 2004.  At a bare minimum, this evidence creates a fact issue relating to the city’s knowledge that precludes the granting of the Plea to the Jurisdiction.

3.         Texas case law mandates denial of a plea to the jurisdiction under the facts of this case.

 

Among the evidence supporting an inference that the City had knowledge of the dangerous condition at the Bunert Road Bridge is the fact that city work crews were allegedly at the bridge twice per week to clear debris. In an analogous case, the Houston Court of Appeals recently affirmed a trial court’s denial of a plea to the jurisdiction based on the fact that city employees had been at the site of the allegedly dangerous drainage block numerous times:

Plaintiff Albright claims that “the City was aware of the defective condition of the drainage block due to the number of times it had been to that location to maintain and repair the drainage block.” The evidence provided by Albright shows the drainage block had been patched and that the City’s crews had been out to the site numerous times to perform maintenance work. At a minimum, this evidence raises a fact issue as to the City’s knowledge and, when jurisdictional evidence raises a fact issue, a plea to the jurisdiction must be denied.

City of Galveston v. Albright, No. 14-04-00072-CV, 2004 WL 2439231 at *4 (Tex. App.–Houston [14th Dist.] Nov. 2, 2004, no pet.).

Similarly, the Dallas Court of Appeals recently reversed the grant of a plea to the jurisdiction, holding that a fact issue regarding the city’s knowledge existed in part because city employees walked across the allegedly defective coverplate and regularly inspected it as part of their job duties.  Thompson v. City of Dallas, No. 05-04-01174-CV, 2005 WL 1460667 at *2 (Tex. App.–Dallas June 22, 2005, no pet. h) (“we conclude that the evidence submitted by the parties raises a fact issue on the City’s actual knowledge. As a result, we hold that the trial court erred in granting the City’s plea to the jurisdiction and sustain appellant’s sole issue.”); see also Mitchell v. City of Dallas, 855 S.W.2d 741, 749 (Tex. App.–Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994) (in a case in which the court of appeals reversed summary judgment for city on premises defect claim, the court held that “the question of knowledge is a fact issue.”)

Defendant may argue that there is no direct evidence of its knowledge that the Bunert Road Bridge was flooded the morning of May 1, 2004.  Direct evidence, however, is not required.  Like any fact, actual knowledge can be inferred from circumstantial evidence.  In Palais Royal, Inc. v. Gunnels, 976 S.W.2d 837 (Tex. App.–Houston [1st Dist.] 1998, pet. dism’d by agr.), the plaintiff brought a premises liability claim after he fell from a ladder at the defendant’s store while working on a construction project.  In reviewing the jury’s finding under a premises defect licensee theory (the theory the City asserts is applicable under the facts of this case), the court was called on to examine the sufficiency of the evidence that the defendant had actual knowledge of the dangerous condition and that the plaintiff did not.  After reviewing the evidence, the court held that “[t]hese facts, albeit circumstantial, constitute some evidence that Palais Royal knew the ladder was dangerous.”  Id. at 844.  Turning to the evidence regarding the plaintiff’s knowledge, the court rejected the defendant’s argument that the plaintiff’s failure to testify precluded a finding that he had no knowledge of the dangerous condition, holding that “[t]his implies that Mr. Gunnels must prove his claim with direct evidence.  A person’s mental state, however, may be proved by direct or circumstantial evidence.”  Id. at 845; see also Reliable Consultants, Inc. v. Jacquez, 25 S.W.3d 336, 343 (Tex. App.–Austin 2000, pet. denied) (“From the precautionary measures appellant affirmatively undertook, coupled with the numerous previous instances where people had stumbled, the jury could reasonably infer that appellant had actual knowledge of the risk presented.”).

Courts in several cases analogous to the facts of this case have similarly held that knowledge may be inferred by circumstantial evidence.  In City of San Antonio v. Rodriguez, 931 S.W.2d 535 (Tex. 1996), the plaintiff brought a premises liability case against the city after he slipped on a wet floor while playing basketball at a city-owned recreation center.  On appeal of an adverse verdict, the city claimed that there was no evidence it knew there was water on the floor at the time the plaintiff slipped and fell.  The court rejected this argument, holding that there was circumstantial evidence from which the city’s knowledge could be inferred:

The City complains that there was no evidence that it knew of the water on the floor. However, there was evidence that the person in charge of the recreation center knew of the leaks in the roof and knew that it had been raining. Depending on the position of the leaks above the floor and the amount of rain, the jury might have inferred that the person in charge knew that there would be water on the floor.

Id. at 537.

In the case of Beach Bait & Tackle, Inc. v. Bull, 82 S.W.3d 663 (Tex. App.–San Antonio 2002, no pet.), an employee sued her employer for a premises defect after she slipped on a puddle of water in a storeroom.  On appeal of an adverse verdict, the employer claimed that the evidence was legally and factually insufficient to establish that it had actual knowledge of the water on the floor at the time of the accident.  The court of appeals stated that “in order to prove that BB & T had actual or constructive knowledge of the water, Bull was not required to present direct evidence of BB & T’s knowledge.”  Id. at 666.  Reviewing the evidence adduced at trial, the court affirmed the verdict, stating that “the jury also could have inferred from the undisputed testimony regarding the water seepage and from the evidence of the location at which Bull fell that BB & T knew there would be water on the floor in that location after it rained.”  Id.

In American Retirement Corp. v. Stanley, No. 13-02-749-CV, 2004 WL 1405686 at *3 (Tex. App.–Corpus Christi June 24, 2004, pet. dism’d), a nursing home resident sued under a premises defect theory after she slipped on water that leaked into her apartment from a leaky roof.  On appeal of an adverse verdict, the owner of the premises alleged that there was insufficient evidence it had knowledge of the water on the floor of the plaintiff’s apartment.  The court of appeals rejected this challenge, stating as follows:

In this case, there was evidence that appellant had actual notice since 1997 that roof leaks throughout its facility created water puddles on the floors of its apartments when it rained. It is because of these leaks that the roof of Williams’ apartment building was being replaced. Furthermore, the evidence established that appellant knew the section of roof immediately above Williams’ apartment was under repair when the rain storm began. From this, the court could have inferred that appellant knew there would be water on the floor of Williams’ apartment.

Finally, in State v. Blain, No. 05-96-00942-CV, 1998 WL 178646 (Tex. App.–Dallas April 17, 1998, pet. denied), a woman sued when her car hydroplaned out of control after driving through standing water on the roadway.  She alleged that the water had pooled during a rainstorm because TXDOT had failed to remove debris that clogged a drain at the site.  On appeal of an adverse jury verdict, the state argued that there was no evidence that it had actual knowledge of the water on the highway.  The court rejected this no evidence challenge, stating:

We disagree with the State, however, that there is no evidence the State had actual knowledge of the water on the highway . . . . In this case there is evidence the State knew this section of highway had collected water on the roadway on four prior occasions. Further, there was construction at the location which generated increased litter and debris which could clog the roadside drain. The State was also aware it had no litter control program at the location of the accident, and if the roadside drain was more than halfway obstructed, water would not drain properly even under routine conditions. Additionally, the State was obviously aware of the rainstorm the day of the accident, having dispatched maintenance personnel to clear other highway drains in the county. Viewing the evidence in the light most favorable to the verdict, we conclude there is more than a scintilla of evidence from which the jury might have inferred State officials knew there was standing water on the highway at the time of the accident.

Id. at *5.

The facts of this case fit squarely within the holdings of the foregoing cases.  In this case, there is ample evidence the state knew the Bunert Road Bridge flooded during heavy rains and ample evidence the City was aware of the heavy rains the night of April 30, 2004 and the morning of May 1, 2004.  The evidence includes the following:

  • The Bunert Road Bridge was designed as a low water crossing, meaning that water was designed to go over — not under — the bridge during heavy rains.
  • The City was well aware that, because it is a low water crossing, the Bunert Road Bridge tends to flood during heavy rains.
  • According to records introduced by the City, the National Weather Service issued a flash flood warning for Navarro County on Friday, April 30, 2004 at 1:59 p.m,                           nearly twelve (12) hours before the accident.  The warning stated in part:

“As a vigorous storm system approaches North Texas…rain and thunderstorms will develop this evening and become widespread overnight.  With abundant moisture in place… rainfall is expected to be heavy at times.  Rainfall will average between one and three inches with isolated amounts to five inches by 7 a.m. Saturday.  Many areas received two to five inches of rainfall a few days ago with the last storm system.  The ground is saturated and additional heavy rainfall may lead to flash flooding.  A flood watch means that conditions are favorable for heavy rain across the watch area…which may lead to flooding along area rivers.”

  • It was raining hard in Corsicana at least an hour and a half before the accident.
  • According to the Study, “the City of Corsicana has procedures to be followed when flooding is anticipated at specific locations. City officials monitor areas that are likely to flood, and when flooding becomes imminent, personnel are dispatched to the areas to warn the residents, and to barricade dangerous roads.” Exhibit A at p. III-10 (emphasis added).
  • On prior occasions, the City had blocked off the Bunert Road Bridge because of flooding.
  • At least three (3) hours before the accident, TXDOT began blocking Business 45 in anticipation of flooding.
  • According to newspaper reports, attached hereto as Exhibit B, the storms hit Corsicana just after midnight and the City began receiving reports of emergencies                         “immediately.”
  • In the police report attached hereto as Exhibit C, the officer responding to the Stewart drowning stated as follows:
  • “While enroute the rain was so intense and the water so high on E. 5th that my vehicle almost flooded out 3 times.”
  • “Shortly after I left the scene as dispatch was inundated with calls for help all over town for stranded motorists in high rising water and flooded homes.”
  • “During this time water has risen so high that Officers found themselves isolated on high ground areas and could not get to some areas to provide assistance because of the high water.”
  • According to one of the affidavits submitted by the City, the  “City Public Works Department also employs crew members who are available on a twenty-four (24)                           hour basis in order to effectively provide assistance to Corsicana residents.”

Even the City conceded in its Reply Brief that “[d]ue to the inclement weather conditions, the flood waters at the Bunert Road low-water crossing were neither unusual nor unexpected, but extremely predictable . . . .”  Reply Brief at p. 9; see also Corbin v. Keller, 1 S.W.3d 743, 747 (Tex. App.–Fort Worth 1999, pet. denied) (“Given the inclement weather conditions that existed at the time of the incident, we conclude that the flood water at the low-water crossing on Bear Creek Road was unusual nor unexpected, but entirely predictable”).[3] The foregoing evidence clearly creates a fact issue regarding the City’s knowledge of the presence of flood waters at the Bunert Road Bridge during the heavy rain that fell the evening of April 30 and early morning of May 1, 2004.

In addition to the foregoing evidence that the City had knowledge of the presence of flood waters at the Bunert Road Bridge, there is ample evidence that the City had knowledge of the other dangerous conditions at the crossing:

  • Diana Rawlins included the light out at the Bunert Road Bridge as a “top priority” on a Lights Out Survey she submitted to the City.
  • Ronald Lynch has no personal knowledge as to whether that light was replaced.
  • According to City Council minutes, a citizen complained two weeks after the accident that the light at the Bunert Road Bridge was out.
  • Although Diana Rawlins’ Lights Out Survey identified the Bunert Road Bridge as having a “very dangerous dip,” to Lynch’s knowledge, the City never followed up to determine why Rawlins characterized the bridge in such a manner.
  • The City had crews at the Bunert Road Bridge twice per week and  would have known the condition of the bridge within a few days of the May 1, 2004 accident.
  • The City knew that heavy rains caused debris to clog the pipes under the Bunert Road Bridge and make the water rise faster.

Under well-established Texas law, this evidence creates a fact issue that precludes the granting of the Plea to the Jurisdiction.  See, e.g., Thompson, 2005 WL 1460667 at *3 (“we conclude that the evidence submitted by the parties raises a fact issue on the City’s actual knowledge. As a result, we hold that the trial court erred in granting the City’s plea to the jurisdiction”).

IV.       The Plea should be denied because the City has refused Plaintiffs’ discovery requests and has instead selectively presented documentary evidence favoring its position while withholding other critical evidence.

One of the primary bases of Defendant’s Plea to the Jurisdiction is its argument that the City had no notice of the propensity of the Bunert Road crossing over Post Oak Creek to flood during heavy rains.  In furtherance of this argument, the City attached affidavits of three different City employees who claimed to have been unaware of any flooding problems at the Bunert Road Bridge.  While affirmatively relying on these affidavits to support its position, the City has refused to make these witnesses available for deposition and has refused to answer any of Plaintiffs’ discovery requests.  In addition, the City has selectively produced records from its files in an attempt to support its position while denying Plaintiffs access to other records that might refute the City’s position.  For example, the City produced a record relating to the replacement of lights during a narrow, two-month period prior to the accident, but failed to produce records from earlier or later time periods.  Likewise, the City has refused to produce documents relating to trash reports at the Bunert Road Bridge created by councilwoman Diana Rawlins, has refused to produce documents relating to instances on which it barricaded the Bunert Road Bridge because of flooding and has refused to produce documents relating to City Council meetings about the Bunert Road Bridge.[4]

The Texas Supreme Court has recognized that the resolution of a plea to the jurisdiction should sometimes await a fuller development of the facts of the case:

When the consideration of a trial court’s subject matter jurisdiction requires the examination of evidence, the trial court exercises its discretion in deciding whether the jurisdictional determination should be made at a preliminary hearing or await a fuller development of the case, mindful that this determination must be made as soon as practicable.

Miranda, 133 S.W.3d at 227.  Where, as here, discovery has been denied and the defendant has engaged in the selective disclosure of documents and other evidence, a Court acts within its discretion in denying a plea to the jurisdiction pending a fuller development of the facts:

Once again, we note that evidence regarding maintenance and construction of the Mockingbird bus station was the subject of Thomas’s motion to compel. DART produced records regarding cleaning and a lack of maintenance work orders in support of its plea to the jurisdiction while objecting to the production of similar evidence requested by Thomas in discovery. In light of this, we cannot say that the trial judge abused her discretion in denying DART’s plea to the jurisdiction pending a fuller development of the case.

Dallas Area Rapid Transit v. Thomas, No. 05-05-00159-CV, 2005 WL 1670729 at *3 (Tex. App.–Dallas July 19, 2005).  For the foregoing reasons, the Court should deny the Plea to the Jurisdiction, at least until such time as Plaintiffs have been afforded the opportunity to take limited discovery on the issue of notice.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs Patrick Stewart and Sentria Whitfield respectfully request that this Court deny Defendant Corsicana, Texas’ Plea to Jurisdiction and Special Exceptions, deny Defendant’s request that this case be dismissed and award Plaintiffs such other and further relief to which they are justly entitled.

 

I.          Assuming the condition at issue is a premises defect rather than a special defect, the evidence introduced at the August 11, 2005 evidentiary hearing established that the City had actual knowledge of the dangerous conditions at the Bunert Road Bridge prior to May 1, 2004.

Assuming the condition at issue is a premises defect rather than a special defect, the evidence introduced at the August 11, 2005 evidentiary hearing established that the City had actual knowledge of the dangerous conditions at the Bunert Road Bridge prior to May 1, 2004.  At a bare minimum, this evidence created a fact issue regarding the City’s actual knowledge.  In reviewing the evidence before the Court, it is important to note the applicable standard of review:

When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.

Payne, 133 S.W.3d at 228; see also City of San Antonio v. Hartman, 155 S.W.3d 460, 466 (Tex. App.–San Antonio 2004, pet. filed) (same).  Based on the evidence submitted at the hearing, there is, at a minimum, a fact issue regarding the City’s knowledge of the dangerous condition at the Bunert Road Bridge.  For this reason, the Plea must be denied.  See, e.g., City of Galveston v. Albright, No. 14-04-00072-CV, 2004 WL 2439231 at *4 (Tex. App.–Houston [14th Dist.] Nov. 2, 2004) (“At a minimum, this evidence raises a fact issue as to the City’s knowledge and, when jurisdictional evidence raises a fact issue, a plea to the jurisdiction must be denied.”).

A.        The evidence introduced at the hearing demonstrates that the City had actual knowledge of the dangerous conditions at the Bunert Road Bridge.

A multitude of evidence submitted at the hearing not only creates a fact issue regarding the City’s knowledge of the dangerous conditions at the Bunert Road Bridge, it affirmatively demonstrates such knowledge. Among the witnesses who testified at trial were Corsicana Public Works Director Ronald Lynch, who was called as a witness by the City, and former Corsicana City Councilwoman Diana Rawlins.  Their testimony alone established the City’s notice of the many dangers existing at the Bunert Road Bridge and mandates that the City’s Plea to the Jurisdiction be denied.

1.         The City had actual knowledge prior to May 1, 2004 of the Bunert Road Bridge’s propensity to flood.

 

Among the testimony establishing the City’s knowledge of the bridge’s propensity to flood was the testimony of Public Works Director Ronald Lynch.  Lynch testified that the Bunert Road Bridge was designed as a low water crossing so that during periods of heavy rain water would go over, rather than under, the bridge:

2      Q.   Now, the fact that the crossing was designed as a low-water

3  crossing that means that the water was actually designed when there’s heavy

4  rains to go over the bridge; is that right?

5      A.   Yes, sir.

6      Q.   So the City when it built and designed and constructed that

7  bridge it knew that in periods of heavy rains the water would not go under

8  the bridge, it was actually, the bridge was designed for the water to go

9  over the bridge.

10     A.   Yes, sir.

11     Q.   And cover the roadway.

12     A.    Yes, sir.

13     Q.   And there’s no doubt that the City knew that before May 1, 2004;

14  correct?

15     A.    Yes, sir.

 

* * * * * * * * * * * * * * * * * * * * * * * * * * *

22      Q.   Are you telling this Court that prior to May, 2004, that you

23  personally were not aware of the Bunert Road Bridge ever flooding?

24      A.    No.  I’ve already answered that question.  I said yes, I am

25  aware that it has flooded before.

1      Q.   During heavy rains.

2      A.   During some heavy rains.

3      Q.   In fact –

4      A.   But not every heavy rain.

5      Q.   Okay.  But during some heavy rains; correct?

6      A.    That’s correct.

7      Q.   And one of the reasons why the Bunert Road bridge floods during

8  heavy rains is because that is exactly the way it was designed.  For the

9  water to go over the bridge and not under the bridge; correct?

10      A.   Was designed to go over the bridge when under the bridge would

11  not carry the water.

12      Q.   Such as during periods of heavy rain.

13      A.   Sometimes during periods of heavy rains.

Exhibit A at 127:2-15; 131:22-132:13.  Lynch also testified that the Bunert Road Bridge was the only low water crossing in Corsicana and was different from all other bridges in Corsicana in that it lacked guardrails and was designed for the water to overtop the bridge during heavy rains:

11      Q.   And the majority of bridges in the City of Corsicana are

12  designed such that the water goes under the bridge rather than over it; is

13  that true?

14      A.   Yes, sir.

15      Q.   How many low-water crossings are there in the City of Corsicana?

16      A.    To the best of my knowledge, just one.

17      Q.   And where is that located?

18      A.    On Bunert Road.

19      Q.   Post Oak Creek?

20      A.    Post Oak Creek, yes, sir.

21      Q.   The bridge where this tragic accident occurred; correct?

22      A.   Yes.

23      Q.   The pictures that I showed you, Exhibits 9 and 10, those bridges

24  have guardrails, don’t they?

25      A.   Yes, sir.

1      Q.   The bridge over Post Oak Creek at Bunert Road doesn’t have any

2  guardrails, does it?

3      A.   No, it does not.

4      Q.   And in that respect it would be different from the normal type

5  of bridge that a driver in the City of Corsicana would encounter; correct?

6      A.   Yes, sir.

Exhibit A at 128:11-129:6.  Lynch also admitted that on the night of the accident there were no signs or other posted notice identifying the Bunert Road Bridge as a low water crossing.  Exhibit A at 129:21-130:5.

Not only was the City on notice that the Bunert Road Bridge had a tendency to flood during heavy rains, it had previously barricade the bridge during heavy rains in order to protect the public from the dangers of the flooded roadway.  Lynch testified:

2      Q.   Had the City ever, before the morning of May, 2004, to your

3  knowledge ever blocked off the roadway of Bunert Road Bridge because of

4  flooding?

5      A.   Ever?

6      Q.    Yes.

7      A.    Yes.

8      Q.    When?

9      A.    I do not have specific dates.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

20      Q.   But you have personal knowledge that that has happened before.

21      A.    That the crossing has experienced flooding before, yes.

22      Q.   And that the City has blocked it off for that reason.

23      A.   Yes, we have.

24      Q.   And I’m assuming at those times the City has blocked it off for

25  the same reason it blocked it off for the morning of May 1, 2004, after the

1  accident, which is to protect the public.

2      A.   Yes, sir.

3      Q.   Why would the public need protecting from flooded waters at the

4  Bunert Road Bridge over Post Oak Creek?

5      A.    To keep them from being in danger with high waters crossing the

roadway.

7      Q.   To keep them from driving into the water?

8      A.   Yes, sir.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

15      Q.   If the City had thought that there was no danger or risk of

16  anyone driving in to that flooded roadway on Bunert Road Bridge, then it

17  wouldn’t have blocked it off on prior occasions; correct?

18      A.    I suppose.

19      Q.   That’s true; isn’t it?

20      A.    I suppose it is.  If the City had thought that.

21      Q.   Well, now, wait a minute, sir, you told me that the City had

22  blocked off the road on prior occasions because the road was flooded and

23  the City wanted to protect the people; right?

24      A.    That’s right.

25      Q.   So somebody did think that, didn’t they?

1      A.    A flooded roadway would have been dangerous.

2      Q.   And it was dangerous the morning of May 1, 2004; wasn’t it?

3      A.   Once it became flooded.

Exhibit A at 136:2-9; 138:20-139:8; 140:15-141:3 (emphasis added).  Immediately following the accident and the drowning of the Plaintiffs’ two children, the city once again blocked off the Bunert Road Bridge in order to protect the public:

19      Q.   Do you know whether the City blocked off the Bunert Road Bridge

20  the night of the accident?

21      A.    We did.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

3      Q.   And who made the decision to block off the Bunert Road Bridge?

4      A.    He went immediately to that area on both sides.

5      Q.   And did what?

6      A.    And blocked them, block the Bunert Road off by cones I believe.

7      Q.   What was the purpose of him blocking the road?

8      A.    To keep people from driving through a flooded area.

9      Q.   Why would the City want to keep people from driving through the

10  flooded area?

11      A.    I’m sorry, would you ask the question again?

12      Q.   Yeah.  Why would the City want to prevent people from driving

13  cross the flooded Bunert Road Bridge in the morning of May the 1st, 2004?

14      A.   To protect the people.

 

Exhibit A at 133:19-21; 135:3-14 (emphasis added).

Former Corsicana City Councilwoman Diana Rawlins also testified at the hearing regarding the City’s knowledge of the bridge’s tendency to flood during heavy rains:

24      Q.   Now, prior to May 1st, 2004, did you as a member of the

25  Corsicana City Council know that the Bunert Road Bridge tended to flood the

1  roadway during periods of heavy rain?

2      A.   Yes, sir.

3      Q.   Did, and to your knowledge, did Emmaline Gonzales, another

4  member of City Council also know that?

5      A.   Yes, sir.

6      Q.    And how do you know?

7                MR. KRUEGER:  Speculation, your Honor.

8                THE COURT:  Well, I’ll hear the answer.

9      Q.   How do you know that Mrs. Gonzales knew that as well?

10      A.   We discussed it.

 

* * * * * * * * * * * * * * * * * * * * * * * * * * *

23      Q.   Is it your testimony based on your personal knowledge that prior

24  to May 1, 2004, the City had knowledge that the Bunert Road low-water

25  crossing tended to flood during heavy rains?

1      A.   Yes.

2                MR. KRUEGER:  Speculation, your Honor.

3                THE COURT:  I’ll permit the answer.  And I’ll, I’ll weigh

4  the evidence.

5      Q.   Is that based on the conversations that you’ve already testified

6  to with Truitt Gilbreath, with the City, other City people that you’ve

7  talked about?

8      A.   Yes.

Exhibit A at 204:24-205:10; 228:23-229:8.  Clearly the City was on notice prior to May 1, 2004 that the Bunert Road Bridge tended to flood during periods of heavy rain.  This actual knowledge mandates denial of the City’s Plea to the Jurisdiction.

2.         The City had actual knowledge prior to May 1, 2004 of a “dangerous dip” at the Bunert Road Bridge.

 

In addition to knowledge of the bridge’s propensity to flood, the City also had knowledge of a “dangerous dip” in the road that prevented drivers from seeing water on the bridge until they were upon it.  Diana Rawlins testified that she submitted a Lights Out Survey to the City that mentioned the light out at the Bunert Road Bridge and specifically referenced the dangerous dip at the bridge:

15      Q.   And would you look at the entry on the second page of that

16  exhibit, the entry that is the second from the top.

17      A.   Yes, sir.

18      Q.   Could you read that to the Court.

19      A.   Yes, sir.  It says lights out top priority West Bunert east side

20  of street very dangerous dip.  This is north of the intersection of East

21  3rd and West Bunert.

22      Q.    What did you mean by very dangerous dip?

23      A.    Well, there are two sides of the entrance from, to the Bunert

24  low-water crossing.  You can approach it from the south or you can approach

25  it from the north.  And I speak generally there’s a little angle there.  On

1  the south side driving north there is a dip.  There is an optical illusion

2  in my opinion coming from both directions and it’s very difficult to see

3  that dip coming into the Bunert low-water crossing without the light on.

4  And the light was off.

Exhibit A at 193:15-194:4; see also Hearing Exhibit 1A; Hearing Exhibit 13.  According to Rawlins, the City had specific knowledge of the dangerous dip in the road:

15      Q.   Did the Lights Out Survey use the exact phrase very dangerous

16  dip?

17      A.   Yes.

18      Q.   We’ve already looked at that, haven’t we?

19      A.   Yes.

20      Q.   And you sent that to a City employee?

21      A.   Yes.

Exhibit A at 229:15-21.  Public Works Director Ronald Lynch also testified regarding the City’s knowledge of the dangerous dip in the road:

9      Q.   Well, when the City got this e-mail from its City Council

10  members talking about a very dangerous dip on one of its streets, what

11  would the City do in response to that?

12      A.    We wouldn’t necessarily do anything because somebody reported a

13  very dangerous dip unless it’s a pot hole or something like that.

14      Q.   Why not?

15      A.    If it’s, in this case if it happened to be the low-water

16  crossing, what are we going to do with the dip?

17      Q.   Well, you could maybe put a warning sign or a flood gauge.  I

18  mean those things were feasible; weren’t they?

19      A.    I suppose I could.

20      Q.   Or you could fill in the dip and straighten out the road;

21  couldn’t you?

22      A.    Fill in the dip and block the water I guess.

23      Q.   You couldn’t build a bridge where the water would go under it

24  like you have all over town?

25      A.   I suppose someone could build a bridge.

1      Q.   Did anybody in the City to your knowledge after receiving this

2  e-mail from the City Council member informing the City of a very dangerous

3  dip on Bunert Road do anything to investigate whether there was a dangerous

4  dip and if so what to do about it?

5      A.   I did not know of that.

Exhibit A at 149:9-150:5.  Based on the above testimony, the City clearly had knowledge of a dangerous dip in the road at the Bunert Road Bridge prior to May 1, 2004.  This actual knowledge requires that the City’s Plea to the Jurisdiction be denied.

3.         The City had actual knowledge prior to May 1, 2004 of a light out at the Bunert Road Bridge.

 

Former Corsicana City Councilwoman Diana Rawlins testified that a broken light at the Bunert Road Bridge was identified as a “Top Priority” in a December 19, 2002 Lights Out Survey she submitted to Corsicana City Manager Truitt Gilbreath.  Exhibit A at 192:16-22; 195:5-196:19; Hearing Exhibit 1A.  She also testified that she continually reported the light out to both Truitt Gilbreath and Ronald Lynch following the Lights Out Survey.  Exhibit A at 200:1-15; 202:5-15; 203:2-21.  In fact, she was so concerned about the dangerous condition posed by the light being out that she told Gilbreath that “without the light out there, someone’s going to drown.”  Exhibit A at 202:16-19.  Despite the grave concerns Rawlins repeatedly voiced, the City never fixed the light prior to the May 1, 2004 accident that claimed the lives of Plaintiffs’ two young children:

20      Q.    And on the, is it, I’m just trying to extrapolate your testimony

21  approximately how close in time to the time of the accident do you think

22  you had last been at the crossing and seen that the light was not working?

23      A.   Probably at least within two weeks.

24      Q.   Within two weeks prior to the accident?

25      A.   Yes.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

13      Q.   Based on your personal observations, is it your belief or is it

14  not your belief that at the time of this accident on May 1, 2004, that the

15  light at Bunert Road or low-water crossing was not working?

16      A.   I know for a fact it was not working the next night because I

17  went down to check it personally.  It is absolutely my belief that there

18  was no light working at the Bunert low-water crossing at the night of the

19  accident.

Exhibit A at 200:20-25; 201:13-19.  The foregoing testimony clearly demonstrates that the City had actual knowledge of the dangerous condition posed by the light being out at the Bunert Road Bridge prior to May 1, 2004.

4.         The City had actual knowledge prior to May 1, 2004 of high weeds and vegetation at the Bunert Road Bridge.

 

The testimony at the August 11, 2005 evidentiary hearing also established that the Coty had actual knowledge prior to May 1, 2004 of high weeds and vegetation at the Bunert Road Bridge.  According to Public Works Director Ronald Lynch:

14      Q.   The City had knowledge that there were high weeds and grass at

15  the Bunert Road Crossing shortly before the time of this accident; is that

16  right?

17      A.    I believe we did have a record that shows that we had calls

18  about vegetation and immediately after which we removed the vegetation.

19      Q.   And in Texas in the spring and summer with heavy rains

20  vegetation tends to grow back, doesn’t it?

21      A.   Yes, sir.

* * * * * * * * * * * * * * * * * * * * * * * * * * *

5      Q.   Well, but according to your affidavit the City went out to that

6  crossing regularly specifically to deal with vegetation and weeds and

7  debris; is that right?

8      A.   Yes, sir.

9      Q.   And so the City was aware of that particular issue; correct?

10     A.    If there was an issue.

Exhibit A at 159:14-21; 161:5-10.  Diana Rawlins also testified that the City had knowledge of high weeds and vegetation at the Bunert Road Bridge prior to May 1, 2004.  Exhibit A at 229:25-230:2.  According to Rawlins, the high weeds and grass created “difficulty in locating the creek and the creek bed.”  Exhibit A at 208:5; see also Hearing Exhibit 73.  The foregoing evidence establishes that the City had actual knowledge prior to May 1, 2004 of the dangerous condition posed by high weeds and grass at the Bunert Road Bridge.  Its Plea to the Jurisdiction must therefore be denied.

5.         The City had actual knowledge prior to May 1, 2004 of problems with debris at the Bunert Road Bridge.

 

An additional problem of which the City had actual knowledge prior to May 1, 2004 was a problem with debris clogging the drainpipes beneath the Bunert Road Bridge and causing the water to rise faster.  According to Ronald Lynch:

14      Q.   Now, the City had knowledge prior to this accident that debris

15  tended to accumulate there at the Bunert Road Bridge; is that correct?

16      A.    Debris has accumulated there before and been turned in and

17  removed, yes.

Exhibit A at 162:14-17.  Lynch further admitted that the debris problem was especially serious after periods of heavy rain like that on the morning of May 1, 2004:

20      Q.    (By Mr. Pearson) The affidavit that I have given you as Exhibit

21  8, that is an affidavit that you signed and was submitted in this lawsuit;

22  correct?

23      A.   I signed it, yes.

24      Q.   And paragraph 5 states that, Public Works Department employees

25  routinely remove debris and obstructions on local streets and around local

1  bridges and low-water crossings before, during, and after periods of heavy

2  rainfall. Correct?

3      A.   Yes, sir.

4      Q.   And the reason why they do that at this crossing after periods

5  of heavy rainfall is that the City is aware that as the creek rises, debris

6  tends to come down the creek and accumulate at the Bunert Road crossing as

7  depicted in the Exhibit I showed you with the refrigerator; correct?

8      A.   Yes, sir.

9      Q.   And as debris accumulates there it causes the water to rise

10  faster than it otherwise would rise because it can’t go through the pipes;

11  correct?

12      A.    It would have an impact.

13      Q.   And the City knew that before May of 2004; correct?

14      A.   Yes, sir.

Exhibit A at 164:24-165:14.  According to Diana Rawlins, this debris problem was severe and pervasive:

13      Q.   And tell me what the factors were if there, you know, if there’s

14  certain factors that you thought made that crossing dangerous, what were

15  those specific factors?

16      A.    We have had a standard of flooding on that creek to the west of

17  the creek.  At that point the creek flows from west to east at a downhill

18  run which causes the water to gather speed at that location.  We had a

19  drowning in fact on the western ridges, northwest part of the water ways in

20  the City.  We had, that had a lot of drainage ditches impacted.  We have a

21  lot of culverts here.  We have culverts from 3 feet in size to 10 feet in

22  size.  We had a lot of impact on those culverts where they were not being

23  regularly cleaned.  I am aware of the fact that if water is dammed and the

24  force gets strong enough it breaks through, that there can be a high volume

25  of water, even a high level of water come through an area in a, in a quick

1  point of time.  We had had a lot of trash and debris under the particular

2 culverts.  There are a large number of very huge culverts that go under the

3  Bunert low-water crossing and they had debris in them.  In the Trash

4  Surveys that I was running I had been turning in the fact that there were

sofas and chairs and large things, stoves, things that had been dumped in

there that could get in and were in the culverts themselves impeding the

flow of water under the Bunert low-water crossing.

Exhibit A at 208:13-209:7 (emphasis added).  Despite the City’s knowledge of the problem, it was not corrected; in fact, the day after the accident when Rawlins went to the bridge, “the trash was inside the creek restricting the flow of creek waters.”  Exhibit A at 209:17-18; see also Hearing Exhibits 61, 65.  The City’s knowledge of a debris problem at the Bunert Road Bridge provides an additional basis for denying its Plea to the Jurisdiction.

6.         The City had actual knowledge prior to May 1, 2004 of missing concrete “teeth” at the Bunert Road Bridge.

Finally, the evidence at the hearing established that the City had actual knowledge prior to May 1, 2005 of missing concrete “teeth” at the Bunert Road Bridge.  According to Diana Rawlins, two concrete “teeth” were missing from the bridge.  Exhibit A at 205:18-23; 206:9-12; Hearing Exhibit 73.  These concrete teeth are a “safety feature” designed to prevent vehicles from being swept from the bridge in high water.  Exhibit A at 206:3-8.  Rawlins testified that she informed City Manager Truitt Gilbreath of the missing teeth.  Exhibit A at 206:13-22.  Despite this notification, the problem was not corrected and the concrete teeth were still missing at the time of the May 1, 2004 accident.  Exhibit A at 206:9-12; 209:14-22.  The foregoing evidence of the City’s knowledge of missing concrete teeth on the bridge requires that the City’s Plea to the Jurisdiction be denied.

B.        Conclusion.

The evidence set forth above establishes that the City had actual knowledge of the various dangerous conditions at the Bunert Road Bridge well before May 1, 2004.  “At a minimum, this evidence raises a fact issue as to the City’s knowledge and, when jurisdictional evidence raises a fact issue, a plea to the jurisdiction must be denied.” City of Galveston v. Albright, No. 14-04-00072-CV, 2004 WL 2439231 at *4 (Tex. App.–Houston [14th Dist.] Nov. 2, 2004); Thompson v. City of Dallas, No. 05-04-01174-CV, 2005 WL 1460667 at *2 (Tex. App.–Dallas June 22, 2005, no pet. h) (“we conclude that the evidence submitted by the parties raises a fact issue on the City’s actual knowledge. As a result, we hold that the trial court erred in granting the City’s plea to the jurisdiction and sustain appellant’s sole issue.”); Mitchell v. City of Dallas, 855 S.W.2d 741, 749 (Tex. App.–Dallas 1993), aff’d, 870 S.W.2d 21 (Tex. 1994) (in a case in which the court of appeals reversed summary judgment for city on premises defect claim, the court held that “the question of knowledge is a fact issue.”).  The Plea to the Jurisdiction should therefore be denied.

II.        The City’s actual knowledge of the dangerous conditions at the Bunert Road Bridge can be inferred by the fact that it constructed the bridge.

 

The City’s Brief on State Law Immunity claims that “the Bunert Road low-water crossing has been a longstanding, routine and permanent structure within the City of Corsicana and over Post Oak Creek since its construction,” which it claims occurred “in the 1950s.”  Brief at p. 7.  Public Works Director Ronald Lynch admitted during the evidentiary hearing that the City designed and built the bridge.  Exhibit A at 126:12-13.  As the Texas Supreme Court has held, “[i]n premises cases constructive knowledge can be established by showing that the condition had existed long enough for the owner or occupier to have discovered it upon reasonable inspection.”  CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex.2000).  Moreover, under Texas law, “[t]he fact that the owner or occupier of a premises created a condition that posed an unreasonable risk of harm may support an inference of knowledge.”   Keetch v. Kroger, 845 S.W.2d 262, 265 (Tex. 1992); Collard v. Interstate Northborough Partners, 961 S.W.2d 701, 703 (Tex.App.-Tyler 1998, no pet.) (”the fact that a defendant created a condition that posed an unreasonable risk of harm may support an inference of knowledge.  In other words, creation of a condition is circumstantial evidence, and it raises a fact issue as to knowledge.”); Castillo v. Price Constr., Inc., — S.W.3d —, No. 04-0635, 2005 WL 3454747 at *1 (Tex. Dec. 16, 2005) (O’Neill, dissenting) (“The court of appeals failed to consider, however, the inference of knowledge the jury was permitted to draw from the fact that Price created the allegedly dangerous condition, an inference we have consistently allowed.”).  Because evidence that the City designed and built the Bunert Road Bridge raises a fact issue on its constructive knowledge of the bridge’s dangerous condition, its Plea to the Jurisdiction must be denied.

CONCLUSION AND PRAYER

The City’s Plea to the Jurisdiction is based on its argument that the Bunert Road Bridge was a premises defect rather than a premises defect and that there is no evidence the City had actual knowledge of any dangerous condition at the bridge, a necessary element of a premises defect claim.  The City’s position should be rejected for several reasons.  First, as set forth in Plaintiffs’ prior briefing, the defect at issue was a special defect as opposed to a premises defect, making the issue of actual knowledge irrelevant.  In the alternative, there is a fact issue as to whether the bridge was a special defect or premises defect which requires the Plea be denied.  Finally, and most importantly, even if the Court assumes that the bridge was a premises defect, there is a mountain of evidence, much of it set out above, that the City had actual knowledge of numerous dangerous conditions at the Bunert Road Bridge prior to May 1, 2004.  This actual knowledge mandates denial of the City’s Plea to the Jurisdiction.

WHEREFORE, PREMISES CONSIDERED, Plaintiffs Patrick Stewart and Sentria Whitfield respectfully request that this Court deny Defendant Corsicana, Texas’ Plea to Jurisdiction and Special Exceptions, deny Defendant’s request that this case be dismissed and award Plaintiffs such other and further relief to which they are justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)


[1]The trial court entered findings of fact and conclusions of law in this case, and Plaintiffs promptly objected to them.  However, because this Court undertakes a de novo review of the City’s Plea to the Jurisdiction, the trial court’s findings of fact and conclusions of law are irrelevant to its analysis.  Therefore, Plaintiffs will not address the trial court’s findings of fact and conclusions of law in this Brief.

[2]Although the court in Corbin v. City of Keller, 1 S.W.3d 743, 747 (Tex. App.–Fort Worth 1999, pet. denied) attempted to distinguish the holding in Miranda, its rationale was unconvincing.  According to the Fort Worth court, Miranda is not controlling because it was decided before the Texas Supreme Court’s ruling in State Dep’t of Highways & Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993), which held that an icy bridge was not a special defect because “an icy bridge is something motorists can and should anticipate when the weather is conducive to such a condition.”  But the holding in Kitchen established no new legal precedent; it merely applied the rule that a special defect must be a condition that presents “an unexpected and unusual danger to ordinary users of roadways.”  Kitchen, 867 S.W.2d at 786.  Moreover, the court in Corbin conceded that “other factors” may have existed in Miranda that would have prevented an ordinary user of the roadway from anticipating the flood waters at issue and that “flood waters may constitute a special defect under certain circumstances when floods may be unexpected or unusual.”  Corbin, 1 S.W.3d at 748.

 

[3]While the City may claim that this holding applies equally to establish Patrick Stewart’s knowledge of the dangerous condition of the Bunert Road Bridge, the differentiating factor is that the City knew the Bunert Road Bridge was a low water crossing, that it was designed so that water would go over the bridge during heavy rains and that it had previously flooded to the extent the City had to block it off to protect the public.  Mr. Stewart’s uncontroverted hearing testimony was that he knew none of this information.

[4] Plaintiff previously entered into a Rule 11 agreement with the City that the parties would not take discovery; that agreement was based on the understanding that the parties would simply offer affidavit and live witness testimony at the hearing.  Instead, both before and after the hearing, the City has selectively produced documents from its files while denying Plaintiffs access to those files.  Moreover, the Rule 11 agreement stated that Plaintiffs reserved the right to seek discovery from the Court before the Plea is ruled upon.   Through this pleading, Plaintiffs formally make such a request.