City of San Antonio v. Drana Burch

REVERSE and RENDER and Opinion Filed October 3, 2024.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-24-00078-CV

CITY OF SAN ANTONIO, Appellant
V.
DRANA BURCH, Appellee

On Appeal from the County Court at Law No 3
Bexar County, Texas
Trial Court Cause No. 2021CV00371

MEMORANDUM OPINION
Before Justices Molberg, Breedlove, and Kennedy
Opinion by Justice Kennedy
The City of San Antonio (the “City”) appeals the trial court’s December 13,

2023 order denying its motion for summary judgment seeking dismissal of Drana

Burch’s premises-liability claim on the basis of governmental immunity.1 In two

issues, the City asserts the trial court erred in denying its motion because (1) the

summary judgment evidence negated three elements of the premises-liability claim

1
The Supreme Court transferred this appeal from the Fourth Court of Appeals. See Misc. Docket
No. 23-9109 (Tex. Dec. 21, 2023) (docket equalization order). Accordingly, we apply the Fourth Court of
Appeals’ precedent to the extent required by Texas Rule of Appellate Procedure 41.3.
necessary to invoke a waiver of immunity under the Texas Tort Claims Act

(“TTCA”),2 and (2) Burch failed to offer competent summary judgment evidence of

the existence of an unreasonably dangerous premises condition and of the City’s

actual knowledge of same. We reverse the trial court’s order denying the City’s

motion for summary judgment and render judgment in favor of the City because

Burch failed to raise a fact issue showing the City’s governmental immunity has

been waived. Because all issues are settled in law, we issue this memorandum

opinion. TEX. R. APP. P. 47.4.

BACKGROUND

Burch alleges that on February 2, 2019, she attended a cheerleading event at

the Alamodome, owned by the City, and that while she was walking across an

outdoor field of brick pavers to approach the stadium’s north entrance, with the

assistance of a walker, she fell backwards when her walker caught one of the bricks,

causing her injuries. Burch sued the City asserting a premises-liability claim.

In her live pleading, Burch asserted uneven brick pavers approaching the

Alamodome posed an unreasonable risk of harm, the City had actual knowledge of

2
The elements of a premises liability claim are: (1) a condition on the premises posed an unreasonable
risk of harm; (2) the defendant had actual knowledge of the danger; (3) the plaintiff did not have actual
knowledge of the danger; and (4) the defendant breached its duty of ordinary care by either failing to warn
of the condition or failing to make the condition reasonably safe. Ybarra v. Cnty. of Hidalgo, 362 S.W.3d
129, 133 (Tex. App.—San Antonio 2011, no pet.) (citing State v. Williams, 940 S.W.2d 583, 583 (Tex.
1996)). The City challenged the first three elements.

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this dangerous condition and failed to make the premises safe, and she was not aware

of the danger the uneven brick pavers posed.

The City answered generally denying Burch’s allegations and asserting

several defenses, including governmental immunity. The City also filed a combined

motion for a no-evidence and traditional summary judgment claiming Burch’s claim

did not fall within the TTCA’s limited waiver of immunity. As grounds for no-

evidence summary judgment, the City asserted Burch has no evidence to support her

assertions (1) that the City had prior knowledge of the condition Burch claims caused

her to fall, and (2) of the existence of an unreasonably dangerous condition. As

grounds for traditional summary judgment, the City asserted the summary judgment

evidence establishes (1) the premises were, as a matter of law, not unreasonably

dangerous, (2) the City had no prior knowledge of the condition Burch claims caused

her to fall, and (3) the condition about which Burch complains was open and

obvious.3 In support of its motion, the City included photographs of the area where

Burch fell; the declaration of Eric Duncan, the Alamodome Building Maintenance

Manager; and patrol activity reports from February 1 and 2, 2019.

The picture below depicts the location where Burch fell.

3
If the licensee has the same knowledge about the dangerous condition as the licensor, then no duty to
the licensee exists. Wal–Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (per curiam).
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In his declaration, Duncan stated that Alamodome staff members were notified

of Burch’s fall and went to the location where she fell to inspect—and erect barriers

around—same. They observed the elevation differences of the pavers in the

location where Burch fell measured from a quarter inch (1/4”) to a maximum of a

half an inch (1/2”). In addition, Duncan stated that prior to Burch’s fall, the City

had received no complaints about the condition of the pavers at the location where

Burch fell, and the City had no knowledge of any other accidents or injuries occurring

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at that location. The patrol activity reports did not note any issues with the pavers

the day before, and the day of, Burch’s fall.

In response to the City’s motion for summary judgment, Burch offered the

same photographs the City presented and a pair of purchase orders reflecting paver

repair services were performed somewhere at the Alamodome on January 3, 2019,

(covering 1,596 square feet) and on February 20, 2019 (covering 333 square feet).

The record reflects that the court heard argument of counsel on the City’s

motion and that, on December 13, 2023, the court signed an order denying same.

This interlocutory appeal followed.4 See TEX. CIV. PRAC. & REM. CODE

§ 51.014(a)(8).

DISCUSSION

I. Governmental Immunity

“Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the State, including counties, cities, and school

districts.” Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A city is

afforded governmental immunity when it performs a governmental function,

4
Ordinarily, we do not have appellate jurisdiction over an order denying summary judgment because
it is not a final judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). We
nevertheless have jurisdiction to consider immediate appeals of interlocutory orders when a statute
explicitly provides appellate jurisdiction. Stary v. DeBord, 967 S.W.2d 352, 352–53 (Tex. 1998). We have
jurisdiction to consider an interlocutory appeal from the denial of a summary judgment motion by a
“governmental unit” seeking a dismissal based on governmental immunity from suit. See TEX. CIV. PRAC.
& REM. CODE § 51.014(a)(8); Town of Shady Shores v. Swanson, 590 S.W.3d 544, 549 (Tex. 2019) (quoting
Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004) (Texas statute allows an interlocutory appeal to be
taken when “the trial court denies the governmental entity’s claim of no jurisdiction, whether it has been
asserted by a plea to the jurisdiction, a motion for summary judgment, or otherwise.”).
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including, as relevant here, the operation of “civic, convention centers, or

coliseums.” TEX. CIV. PRAC. & REM. CODE § 101.0215 (a)(16). Governmental

immunity has two components: immunity from liability, which bars enforcement of

a judgment against a governmental entity, and immunity from suit, which bars suit

against the entity altogether, unless the Legislature expressly consents to suit. See

Rusk State Hosp. v. Black, 392 S.W.3d 88, 93 (Tex. 2012); Tooke v. City of Mexia,

197 S.W.3d 325, 332 (Tex. 2006).

A party suing a governmental entity must establish the state’s consent to suit,

which may be alleged either by reference to a statute or to express legislative

permission. City of San Antonio v. Smith, 562 S.W.3d 75, 80 (Tex. App.—San

Antonio 2018, pet. denied) (citing Tex. Dep’t of Transp. v. Jones, 8 .W.3d 636, 638

(Tex. 1999)). Absent the state’s consent to suit, a trial court lacks subject-matter

jurisdiction. Id.

II. TTCA’s Immunity Waiver

The TTCA waives immunity for certain tort actions against governmental

units. CIV. PRAC. & REM. § 101.021. The TTCA creates a unique statutory scheme

in which both immunity from suit and immunity from liability are co-extensive:

“sovereign immunity to suit is waived and abolished to the extent of liability created

by [the TTCA].” Id. § 101.025; Tex. Dep’t of Parks & Wildlife v. Miranda, 133

S.W.3d 217, 224 (Tex. 2004). Among other things, the TTCA waives governmental

immunity for personal injury claims caused by premise defects. See CIV. PRAC. &

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REM. §§ 101.021(2), 101.022. Governmental units are liable for “personal injury

and death so caused by a condition or use of tangible personal or real property if the

governmental unit would, were it a private person, be liable to the claimant according

to Texas law.” Id. § 101.021(2). Thus, the type of duty owed a plaintiff is part of

the waiver analysis under the TTCA. See City of San Antonio v. Realme, No. 04-20-

00119-CV, 2021 WL 1009330, at *2 (Tex. App.—San Antonio Mar. 17, 2021, pet.

denied) (mem. op.) (citing City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex.

App.—Dallas 2009, no pet.)).

If a claim for personal injuries arises from a premise defect, the governmental

unit generally owes the plaintiff “only the duty that a private person owes to a

licensee on private property,” and not the duty owed to an invitee when there is a

claimed special defect. CIV. PRAC. & REM. § 101.022(a). This limited duty requires

the owner of the premises to avoid injuring the plaintiff through willful, wanton, or

grossly negligent conduct and to use ordinary care either to warn the licensee of, or

make reasonably safe, a dangerous condition of which the owner is aware, and the

licensee is not. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 391 (Tex.

2016).

III. Standard of Review

A governmental unit, such as the City, may challenge the trial court’s subject-

matter jurisdiction, including one premised on governmental immunity, in various

procedural vehicles, including a plea to the jurisdiction, a traditional motion for

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summary judgment and a no-evidence motion for summary judgment. City of

Corsicana v. Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (per curiam); see also Town

of Shady Shores v. Swanson, 590 S.W.3d 544, 550 (Tex. 2019). Texas Rule of Civil

Procedure 166a governs summary judgments and provides two distinct forms of

summary judgment, traditional and no evidence, that invoke different standards of

review. Compare TEX. R. CIV. P. 166a(c) with TEX. R. CIV. P. 166a(i). With a

traditional motion for summary judgment, the movant has the burden to show it is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). With a no-evidence

motion for summary judgment, on the other hand, the burden is on the nonmovant

to produce more than a scintilla of summary judgment evidence that raises a genuine

issue of material fact. TEX. R. CIV. P. 166a(i). Less than a scintilla of evidence exists

when the evidence is so weak as to do no more than create a mere surmise or

suspicion of a fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.

2003).

The City filed a hybrid motion for summary judgment. It sought traditional

summary judgment on the grounds that the variance in the brick paver height did not

present an unreasonably dangerous condition, the City lacked knowledge of the

complained of condition before Burch’s fall, and the condition about which Burch

complains was open and obvious. The City sought no-evidence summary judgment

on the grounds that Burch lacked evidence of an unreasonably dangerous condition

and prior knowledge on the part of the City. Because the City moved for summary

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judgment on both traditional and no-evidence grounds, we first consider the no-

evidence motion, with the understanding that some evidence on any challenged

element will defeat a corresponding traditional ground. Merriman v. XTO Energy,

Inc., 407 S.W.3d 244, 248 (Tex. 2013); Loya v. Hickory Trail Hosp., L.P., 673

S.W.3d 1, *8 (Tex. App.—Dallas 2022, no pet.). If we conclude Burch failed to

produce legally sufficient evidence to meet her burden, we need not analyze whether

the City satisfied its burden under the traditional motion. Merriman, 407 S.W.3d at

248; Bock v. State Farm Cnty. Mut. Ins. Co. of Tex., 675 S.W.3d 36, 41 (Tex. App.—

San Antonio 2023, no pet.).

We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. See City of Keller

v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). “A no-evidence challenge will be

sustained when (a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more

than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital

fact.” King Ranch, 118 S.W.3d at 751. When the nonmovant fails to present more

than scintilla of competent evidence raising an issue of material fact as to the

challenged elements, “[t]he court must grant the motion.” Tex. R. Civ. P. 166a(i)

(emphasis added); see also Helena Chem. Co. v. Cox, 664 S.W.3d 66, 72–73 (Tex.

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2023); Bock v. State Farm Cnty. Mut. Ins. Co. of Tex., 675 S.W.3d 36, 41 (Tex.

App.—San Antonio 2023, no pet.).

IV. Application of Law to Facts

In its second issue, the City asserts the trial court erred in denying its no-

evidence motion for summary judgment challenging the existence of evidence of an

unreasonably dangerous condition and City’s knowledge of same.

A. Unreasonably Dangerous Condition

Whether a specific condition is unreasonably dangerous is ordinarily a fact

question. Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 1970).

However, some particularly innocuous or commonplace hazards are not

unreasonably dangerous as a matter of law. United Supermarkets, LLC v. McIntire,

646 S.W.3d 800, 802 (Tex. 2022).

A condition is unreasonably dangerous if “there is sufficient probability of a

harmful event occurring that a reasonably prudent person would have foreseen it or

some similar event as likely to happen.” Id. at 803 (quoting Seideneck, 451 S.W.2d

at 754). That a condition could injure someone is not evidence that it poses an

unreasonable risk of harm. Id. at 804. Landowners are not insurer of a visitor’s

safety, and they are not obligated to make the premises foolproof. Id. (citing Del

Lago Partners, Inc v. Smith, 307 S.W.3d 762, 769 (Tex. 2010)).

In determining whether a condition is unreasonably dangerous, we consider

whether the relevant condition was clearly marked, its size, whether it had previously

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caused injuries or generated complaints, whether it substantially differed from

conditions in the same class of objects, and whether it was naturally occurring. See,

e.g., Seideneck, 451 S.W.2d at 754; Brinson Ford, Inc. v. Alger, 228 S.W.3d 161,

163 (Tex. 2007); Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006); M.O.

Dental Lab v. Rape, 139 S.W.3d 671, 675–76 (Tex. 2004). For the reasons set forth

herein, we conclude that the evidence presented here establishes the variance in brick

paver height was not unreasonably dangerous as a matter of law.

In this case, Burke alleged the premise defect was the unevenness of the

pavers. She relied on photographs of the area where she fell and invoices for the

purchase of paver repair services in response to the City’s assertion she could not

establish the existence of an unreasonably dangerous condition. The invoices for

paver repair services do not establish directly or by inference that those services were

secured because the pavers were unreasonably dangerous. They could have been

sought for a number of reasons. The invoices do not describe the paver condition

that was repaired or leveled. Moreover, the invoices do not identify the specific

location of the repairs and are no evidence of pavers being in need of repair at the

time and location of Burch’s fall. The photographs show minor, naturally occurring

unevenness not dissimilar from the condition expected of the same class of surfaces.

Burch presented no evidence indicating the slight variance in brick height yielded

other complaints or injuries or was “unusual” relative to other small pavement

defects. As was the case in McIntire, involving a divot in the store’s parking lot that

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measured less than an inch deep, the variance in height here was

profoundly ordinary. See McIntire, 646 S.W.3d at 803. And tiny surface defects in

pavement are ubiquitous and naturally occurring. Id. We hold the evidence

presented by Burke did not raise a genuine issue of fact as to whether the complained

of condition was unreasonably dangerous and, in fact, under the unique circumstance

presented in this case, established it was not unreasonably dangerous as a matter of

law.

B. Actual Knowledge

Even if the evidence presented by Burch had been sufficient to raise a fact

issue concerning the existence of an unreasonably dangerous condition precluding a

no-evidence summary judgment on that ground, the City asserted a second ground

for no-evidence summary judgment, that being a lack of actual knowledge. “Actual

knowledge requires knowledge that the dangerous condition existed at the time of

the accident, as opposed to constructive knowledge, which can be established by

facts or inferences that a dangerous condition could develop over time.” City of

Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (per curiam); City of

Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006). “Circumstantial evidence

establishes actual knowledge only when it ‘either directly or by reasonable

inference’ supports that conclusion.” Stewart, 249 S.W.3d at 415 (quoting State v.

Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002)). Awareness of a potential problem is

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not actual knowledge of an existing danger. Reyes v. City of Laredo, 335 S.W.3d

605, 609 (Tex. 2010).

In determining whether a landowner has actual knowledge of a dangerous

condition, “courts generally consider whether the premises owner has received

reports of prior injuries or reports of the potential danger presented by the

condition.” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008)

(per curiam); see also City of Dallas v. Reed, 258 S.W.3d 620, 622–23 (Tex. 2008)

(no prior accidents or complaints about road condition contributed to conclusion of

no actual knowledge at time of motorcycle accident).

For example, in State v. Gonzalez, the Supreme Court of Texas held that

evidence TxDOT knew stop signs had been repeatedly vandalized could not

reasonably support the inference that it knew the signs were missing, in the absence

of evidence that someone had reported the signs missing before the accident

occurred. Gonzalez, 82 S.W.3d at 330 (analyzing section 101.060(a)(3) of the Texas

Tort Claims Act which also requires actual knowledge). Conversely, in City of San

Antonio v. Rodriguez, which involved a suit for injuries suffered as a result of a fall

on a wet public basketball court, the evidence established that the City knew that the

rain would drip to the floor through admitted leaks in the roof of the recreation

center. City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996). The

City’s employee in charge of the building had contemporaneous actual knowledge

of the dangerous condition in the vicinity of the hazard—he knew of leaks in the

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roof and knew that it had been raining. Id. The Supreme Court of Texas held that,

“[d]epending 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. This was a direct and reasonable inference from the evidence

submitted. Accordingly, the court rejected the City’s contention that there was no

evidence of actual knowledge. Id.

Burch points to no direct evidence of the City’s knowledge. Rather, Burch

urges this Court to apply the constructive knowledge standard applicable in special

defect cases and involving situations where a condition lasted long enough to give

an owner a reasonable opportunity to discover same. We decline to do so because

this is an alleged premise defect case and not a special defect case. Compare

Sampson, 500 S.W.3d at 391 (if condition is a premise defect, actual knowledge,

rather than constructive knowledge of dangerous condition required), with City of

Uvalde v. Pargas, No. 04-23-00150-CV, 2023 WL 7005872, at *5 (Tex. App.—San

Antonio Oct. 25, 2023, no pet.) (mem. op.) (citing City of Weston v. Gaudette, 287

S.W.3d 832, 838 (Tex. App.—Dallas 2009, no pet.) (“A city’s duty to warn of a

special defect exists even if the city has only constructive knowledge.”). In an effort

to have us infer the City actually knew about the alleged defect in the brick pavers,

Burch cites to the invoices for paver repair services. As stated supra, these invoices

are nonspecific in location and condition. Unlike the evidence presented in

Rodriguez, neither the invoices nor any inference arising therefrom raise a fact

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question on the City’s actual knowledge that a dangerous condition existed when

and where Burch fell. Burch presented no evidence the City has received reports of

prior injuries or reports of any danger presented by the slight variance in brick height.

As the Legislature created an actual, not constructive, knowledge standard for

waiver of immunity, we conclude that Burch failed to raise a fact issue regarding the

City’s knowledge of a dangerous condition.

Because Burch failed to meet her burden in responding to the City’s no-

evidence motion for summary judgment, the trial court erred in denying the City’s

no-evidence motion. We sustain the City’s second issue. Accordingly, we need not

address the City’s first issue addressing the denial of its traditional motion for

summary judgment on Burch’s claim against the City. TEX. R. APP. P. 47.1;

Merriman, 407 S.W.3d at 248; Bock, 675 S.W.3d at 41.

CONCLUSION

We conclude that the City’s immunity from suit is not waived, and the trial

court erred by denying the City’s motion for summary judgment on jurisdictional

grounds.

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Accordingly, we reverse the trial court’s December 13, 2023 order denying the

City’s motion and render judgment granting the City’s motion for summary

judgment on jurisdictional grounds and dismissing Burch’s claim against the City

for lack of jurisdiction.

/Nancy Kennedy/
NANCY KENNEDY
JUSTICE

240078F.P05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

CITY OF SAN ANTONIO, On Appeal from the County Court at
Appellant Law No 3, Bexar County, Texas
Trial Court Cause No.
No. 05-24-00078-CV V. 2021CV00371.
Opinion delivered by Justice
DRANA BURCH, Appellee Kennedy. Justices Molberg and
Breedlove participating.

In accordance with this Court’s opinion of this date, the December 13, 2023
order of the trial court denying the City of San Antonio’s motion for summary
judgment is REVERSED and judgment is RENDERED that:

The City of San Antonio’s motion for summary judgment on
jurisdictional grounds is granted and Drana Burch’s claim against the
City of San Antonio is dismissed for lack of jurisdiction.

It is ORDERED that appellant CITY OF SAN ANTONIO recover its costs
of this appeal from appellee DRANA BURCH.

Judgment entered this 3rd day of October 2024.

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