Jason Kownslar v. Metropolitan Transit Authority of Harris County, Texas ( 2023 )

Affirmed and Majority and Dissenting Opinions filed January 26, 2023.
In The
Fourteenth Court of Appeals
NO. 14-20-00839-CV
JASON KOWNSLAR, Appellant
V.
METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,
TEXAS, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Cause No. 2017-18307-B
MAJORITY OPINION
In this personal-injury case arising from a motorcycle accident, the plaintiff
appeals the trial court’s final judgment sustaining a transit authority’s plea to the
jurisdiction based on governmental immunity. We conclude that the evidence
before the trial court conclusively proved that the alleged defective condition does
not fall within the narrow class of defects that are special defects under section
101.022(b) of the Civil Practice and Remedies Code. The plaintiff has not alleged
facts sufficient to demonstrate a waiver of the transit authority’s immunity as to
another negligence claim, and the plaintiff forfeited the opportunity to replead or
amend his petition. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On or about June 28, 2015, appellant/plaintiff Jason Kownslar was severely
injured in a motorcycle accident in downtown Houston, Texas. At his deposition
Kownslar testified as follows:
• While driving his motorcycle, Kownslar exited Interstate 45 and got on Rusk
Street.
• Kownslar was traveling in the right lane of Rusk Street heading toward the
intersection with Bagby Street.
• Kownslar came to a part of Rusk Street where a light-rail track joins the
street.
• When Kownslar reached that part of the street, he saw the light-rail track.
• The front tire of Kownslar’s motorcycle got stuck in the “cut-out, the divot
that was the space in between that [one of the rails of the] track is laid in.”
• Kownslar’s tire got stuck in the space for “the first rail that [he] would have
come across from that direction.”
• The back tire of Kownslar’s motorcycle “was riding in the track as well.”
• Kownslar was traveling at a speed of “10, 15 miles per hour.”
• Kownslar drove for a period of time with his tires like that, and he was
applying his brakes.
• Kownslar tried to change lanes and “felt the resistance of the tire on the edge
of the concrete.” The motorcycle would not exit the place where it was
wedged in the light-rail track.
• The back tire “fishtailed” and Kownslar was thrown into the air over the
front of the motorcycle.
• Kownslar landed on the back of his neck, and he slid on the pavement
towards the intersection. Kownslar did not make contact with another
vehicle.
2
Kownslar filed this lawsuit, originally suing only appellee/defendant
Metropolitan Transit Authority of Harris County, Texas (“Metro”) and later adding
the City of Houston and other parties as defendants. In his live pleading, Kownslar
asserted against Metro (1) a negligence claim based on an alleged special defect in
the roadway (the “Special Defect Claim”), (2) a negligence claim based on an
ordinary premises defect theory (“Ordinary Premises Claim”), and (3) a negligence
claim based on Metro’s purported negligence in allegedly “failing to design,
construct, properly implement[,] and maintain the metro rail tracks in question in a
reasonably safe condition and free of hazards to [Kownslar] and other members of
the public traveling on the roadway” (the “Negligent Activity Claim”).
Metro filed a plea to the jurisdiction seeking dismissal of the Special Defect
Claim because the light-rail track in question (“Track”) is not a special defect.
Metro submitted a photograph of the area where Kownslar’s accident occurred.
Metro asserted that the Track does not physically block the road or present an
unusual quality apart from any other roadway in which there are light rail tracks.
Metro contended that the Track does not present an unexpected or unusual danger
to ordinary users of roadways. Metro also asserted: (1) the Track is open and
obvious to all drivers on Rusk Street; (2) the Track is a permanent condition and
therefore not a special defect; and (3) a street sign on Rusk Street warned all
drivers of railroad tracks ahead. As to the Negligent Activity Claim, Metro asserted
that all of its alleged conduct made the basis of this claim falls within Metro’s
discretionary powers as a governmental entity, and therefore, under section
101.056 of the Civil Practice and Remedies Code, there is no waiver under the
Texas Tort Claims Act of Metro’s governmental immunity for any part of the
Negligent Activity Claim. Metro asserted that the design of any public work, such
as a roadway, is a discretionary function involving policy decisions. Metro
3
submitted two photographs in support of its plea to the jurisdiction.
Kownslar responded in opposition to Metro’s jurisdictional plea, submitting
excerpts from Kownslar’s deposition. Metro responded with a reply in which it
submitted three more photographs. Metro asserted that whether a “special defect”
exists was a matter of law for the trial court to decide. Metro noted that the Track
occupies a fraction of one of four lanes on Rusk Street. Metro filed a second reply
in which it asserted that there is no waiver of governmental immunity under the
Texas Tort Claims Act for any of the negligent acts alleged by Kownslar. Metro
asserted that its governmental immunity is not waived under section 101.021(1) of
the Civil Practice and Remedies Code because no Metro employee was operating
or using a motor-driven vehicle or motor-driven equipment that cased Kownslar’s
injuries. Kownslar objected to Metro’s second reply, asserting that the reply
constituted a new or amended plea to the jurisdiction and that the reply improperly
asserted new arguments. Kownslar contended that a party may not raise a new
ground for jurisdictional dismissal in a reply. Kownslar asked the trial court to
strike the second reply. Kownslar also asserted that section 101.021(2) of the Civil
Practice and Remedies Code waives Metro’s governmental immunity for
Kownslar’s claims because his personal injuries were caused by a condition of
tangible personal or real property.1
After the trial court held a hearing on the plea to the jurisdiction at which the
court only heard arguments of counsel, the trial court signed an interlocutory order
in which the court granted Metro’s plea to the jurisdiction and dismissed with
prejudice all of Kownslar’s claims against Metro. Kownslar filed a motion for
reconsideration of this order, and the trial court denied this motion. The trial court
later granted Kownslar’s motion to sever his claims against Metro into a separate
1
See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (West, Westlaw through 2021 C.S.).
4
case to make the trial court’s ruling on Metro’s plea to the jurisdiction final and
appealable. Kownslar has timely appealed.
The trial court also signed an order sustaining the City of Houston’s
jurisdictional plea. Kownslar appealed this order in a separate appeal, and this
court affirmed the trial court’s ruling. See Kownslar v. City of Houston, 654
S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2022, pet. filed).
II. ISSUES AND ANALYSIS
Metro is entitled to immunity from suit under the doctrine of governmental
immunity unless its governmental immunity has been waived. See Metropolitan
Transit Auth. of Harris County v. Carter, No. 14-19-00422-CV, 2021 WL 126687,
at *4 (Tex. App.—Houston [14th Dist.] Jan. 14, 2021, no pet.) (mem. op.).
Kownslar asserted three claims against Metro in the trial court: (1) the Special
Defect Claim, (2) the Ordinary Premises Claim, and (3) the Negligent Activity
Claim. The trial court granted Metro’s jurisdictional plea as to each claim. On
appeal, Kownslar has not discussed the Ordinary Premises Claim, has not asserted
that Metro’s immunity has been waived as to this claim, and has not briefed any
argument challenging the trial court’s judgment as to this claim. Thus, we need
only address the trial court’s judgment as to the Special Defect Claim and the
Negligent Activity Claim.
A. Did the evidence conclusively prove that the condition of the light-rail
track was not a special defect?
In his first issue, Kownslar asserts that the trial court erred in granting
Metro’s jurisdictional plea because Metro failed to meet its burden to conclusively
negate the challenged jurisdictional facts. Kownslar asserts that Metro’s
photographic evidence did not conclusively prove that the condition of the light-
rail track was not a special defect.
5
The Texas Tort Claims Act provides a limited waiver of a governmental
unit’s sovereign or governmental immunity, allowing suits to be brought against
the governmental unit “only in certain, narrowly defined circumstances.” Tex.
Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). “Given the
Legislature’s preference for a limited immunity waiver,” courts must strictly
construe the Act’s waiver provisions. Ryder Integrated Logistics, Inc. v. Fayette
County, 453 S.W.3d 922, 927 (Tex. 2015). In the Texas Tort Claims Act, the
Legislature waived a governmental unit’s immunity from suit and liability as to
claims seeking to hold the governmental unit liable for personal injury caused by a
condition of real property if the governmental unit would, were it a private person,
be liable to the claimant according to Texas law. See Tex. Civ. Prac. & Rem. Code
Ann. § 101.021 (West, Westlaw through 2021 C.S.). Subject to certain exceptions,
if a claim against a governmental unit arises from a premise defect, the
governmental unit owes to the claimant only the duty that a private person owes to
a licensee on private property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(West, Westlaw through 2021 C.S.). This limitation on a governmental unit’s duty
“does not apply to the duty to warn of special defects such as excavations or
obstructions on highways, roads, or streets.”2 Id. When a special defect exists, the
governmental unit owes the same duty to the claimant that a private landowner
owes to an invitee. Tex. Dep’t of Transp. v. Perches, 388 S.W.3d 652, 654–55
(Tex. 2012).
Whether a condition is a special defect is a question of law that we review de
novo. Id. at 655. The Legislature does not define “special defects” but likens them
to conditions “such as excavations or obstructions on highways, roads, or streets.”
Tex. Civ. Prac. & Rem. Code Ann. § 101.022(b); see The Univ. of Texas at Austin
2
The other exceptions do not apply to the alleged facts that are the basis of Kownslar’s suit. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.022.
6
v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010). The Supreme Court of Texas has
determined that conditions may be special defects only if they pose a threat to the
ordinary users of a particular roadway. See id.; Denton County v. Beynon, 283
S.W.3d 329, 331 (Tex. 2009). A court cannot classify a condition as a special
defect if the defect is not like an excavation or obstruction on a roadway. Beynon,
283 S.W.3d at 331–32. In deciding whether a condition is a special defect, the
Supreme Court of Texas has considered characteristics of the class of special
defect, such as (1) the size of the condition, (2) whether the condition unexpectedly
and physically impairs a vehicle’s ability to travel on the road, (3) whether the
condition presents some unusual quality apart from the ordinary course of events,
and (4) whether the condition presents an unexpected and unusual danger to the
ordinary users of the roadway. See Hayes, 327 S.W.3d at 116.
The class of special defects contemplated by the statute is narrow. Id. Courts
determine whether a condition is a special defect based on the objective
expectations of an “ordinary user” who follows the “normal course of travel.” Id. A
claimant’s subjective knowledge or lack of knowledge of a condition is not
relevant to a court’s determination of whether the condition is a special defect. See
Perches, 388 S.W.3d at 655.
In filing its jurisdictional plea, Metro challenged the trial court’s subject-
matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000). Because subject-matter jurisdiction is a question of law, we conduct a de
novo review of the trial court’s granting of the plea. Tex. Dep't of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In its plea, Metro challenged the
existence of jurisdictional facts as to the Special Defect Claim, so we consider
relevant evidence submitted by the parties when necessary to resolve the
jurisdictional issues raised as to this claim, as the trial court is required to do. See
7
id. If the evidence created a fact question as to the jurisdictional issue, then the trial
court should have denied the plea. See id. at 227–28. But, if the relevant evidence
was undisputed or failed to raise a fact question on the jurisdictional issue, then the
trial court properly ruled on the plea as a matter of law. Id. at 228.
The photographs in evidence show the part of Rusk Street at issue in this
case is a one-way street. Kownslar was traveling on his motorcycle in the right lane
of Rusk Street heading toward the intersection with Bagby Street when Kownslar
came to a part of Rusk Street where the Track joins the street. Kownslar claims
that the front and rear tires of his motorcycle got stuck or wedged in the space in
the concrete in which one of the rails of the Track is laid.
On appeal, Kownslar asserts that the width of the space in which each rail is
laid presents an unexpected and unusual danger as evidenced by Kownslar’s
motorcycle tires getting caught in that space. We presume for the purposes of our
analysis that the space in which each rail is laid on the part of Rusk Street in
question is wide enough for Kownslar’s tires to get caught in the space and that
this width constitutes a defect (the “Alleged Defect”). The photographs submitted
by Metro show that Rusk Street is a concrete roadway and that the Track enters
into Rusk Street from the left and then enters completely within the far-right lane.
The photographs show that each of the two rails of the Track is embedded in the
concrete of the roadway in a space in the street’s concrete. One photograph shows
the Track entering the far-right lane of Rusk Street before the intersection with
Bagby Street. The photographs show that there are two spaces in the concrete each
of which contains one of the rails of the Track. Though the evidence does not
contain a close-up photograph of the spaces or the rails, the photographs submitted
by Metro show that the two spaces do not take up a significant amount of the width
of the far-right lane of Rusk Street.
8
The Alleged Defect is nothing like the special defect found to exist in Harris
County v. Eaton. See 573 S.W.2d 177, 178–80 (Tex. 1978); Kownslar, 654 S.W.3d
at 477; see also City of Denton v. Paper, 376 S.W.3d 762, 764–66 (Tex. 2012)
(holding that a two-inch to five-inch difference in a street’s elevation was not a
special defect and stating that the allegedly defective depression in the street was
nothing like the special defect found to exist in Eaton). The Eaton case involved an
abnormally large hole in the road. See Eaton, 573 S.W.2d at 178–80. This hole
varied from six to ten inches in depth and was four feet wide at some parts and
nine feet wide at other parts. See id. at 178. The hole extended over ninety percent
of the width of the highway. See id. In Eaton, the Supreme Court of Texas
commented that the condition “reached the proportions of a ditch across the
highway” Id. at 179. The high court also observed that “one could not stay on the
pavement and miss it.” Id. at 178.
Unlike the roadway’s condition in Eaton, the Alleged Defect did not
physically impair an ordinary user’s ability to travel on Rusk Street, even an
ordinary user riding a motorcycle. See Paper, 376 S.W.3d at 766 (concluding that
an allegedly defective depression in the street did not physically impair the ability
to travel on the street); Kownslar, 654 S.W.3d at 477–78 (concluding, in
Kownslar’s appeal of order granting City of Houston’s jurisdictional plea, that the
Alleged Defect did not physically impair an ordinary user’s ability to travel on
Rusk Street, even an ordinary user riding a motorcycle). Rather, the photographs
submitted by Metro show that an ordinary user riding a motorcycle on Rusk Street
could have avoided the Alleged Defect without leaving Rusk Street or entering a
lane of oncoming traffic3 by crossing the two spaces containing the rails at a
ninety-degree angle or an angle close thereto and travelling in the next lane over
3
The photographs in evidence show that this part of Rusk Street is a one-way street, so there was
no lane of oncoming traffic nearby.
9
from the far-right lane.4 See Paper, 376 S.W.3d at 764–66 (holding a two-inch to
five-inch difference in elevation in a street was not a special defect and stating that
photographs indicated that the allegedly defective depression in the street could
have been avoided without leaving the street or entering a lane of oncoming
traffic); Kownslar, 654 S.W.3d at 477–78 (concluding, in Kownslar’s appeal of
order granting City of Houston’s jurisdictional plea, that the photographs submitted
by the City of Houston showed an ordinary user riding a motorcycle on Rusk
Street could have avoided the Alleged Defect without leaving Rusk Street or
entering a lane of oncoming traffic).
Kownslar asserts that he could not be expected to use other traffic lanes or to
avoid the Track because he had no prior knowledge that his motorcycle tire could
get stuck or wedged in the space in which the rail is laid. In response to Metro’s
jurisdictional plea, Kownslar submitted excerpts from the transcript of his
deposition. In these excerpts Kownslar states that the Track was “unexpected”
because Kownslar had “never seen railroad tracks run like that before.” We base
our determination as to whether the Alleged Defect is a special defect on the
objective expectations of the ordinary users of Rusk Street who follow the normal
course of travel. See Perches, 388 S.W.3d at 655; Hayes, 327 S.W.3d at 116;
Kownslar, 654 S.W.3d at 478. Kownslar’s subjective lack of knowledge of the
Alleged Defect and Kownslar’s failure to expect the Track because he had never
seen tracks like that before are not relevant to this court’s determination of whether
the Alleged Defect is a special defect. See Hayes, 327 S.W.3d at 116; Kownslar,
654 S.W.3d at 478.
The Alleged Defect does not present some unusual quality apart from the
4
Kownslar contends that although he had the ability to choose the next lane over from the far-
right lane, he did not choose this lane because it is a turn lane. The photographs in evidence show
that this lane goes straight ahead and is not a turn lane.
10
ordinary course of events, nor does the Alleged Defect present an unexpected and
unusual danger to the ordinary users of Rusk Street. See Hayes, 327 S.W.3d at 116;
Kownslar, 654 S.W.3d at 478. Based on the objective expectations of the ordinary
users of Rusk Street, the Alleged Defect does not pose a threat to these ordinary
users. See Hayes, 327 S.W.3d at 116; Beynon, 283 S.W.3d at 331; Kownslar, 654
S.W.3d at 478. The Alleged Defect is not an excavation or obstruction on Rusk
Street, nor is the Alleged Defect like an excavation or obstruction on Rusk Street.
See Beynon, 283 S.W.3d at 331–32; Kownslar, 654 S.W.3d at 478. We conclude
that the evidence before the trial court conclusively proved that the Alleged Defect
is not within the narrow class of defects that are special defects under section
101.022(b) of the Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem.
Code Ann. § 101.022(b); Perches, 388 S.W.3d at 655–56; Hayes, 327 S.W.3d at
116–17; Beynon, 283 S.W.3d at 331–33; Kownslar, 654 S.W.3d at 477–78.
Kownslar cites City of El Paso v. Chacon for the proposition that a court
cannot conclude as a matter of law that a defect does not constitute a special defect
if the record does not show the actual size of the defect. See 148 S.W.3d 417, 425
(Tex. App.—El Paso 2004, pet. denied). In City of El Paso there was no
photograph or other evidence of the size of the alleged defect, a hole in the
sidewalk. See id. at 424–25. In today’s case, the trial court had before it
photographs showing the size of the Alleged Defect. The City of El Paso case is
not on point. See id.Kownslar also relies on Texas Department of Transportation v. Lopez. See
436 S.W.3d 95, 105 (Tex. App.—Eastland 2014, pet. denied). In that case, the
court of appeals concluded that the summary-judgment evidence raised a fact issue
as to whether a drop-off from a traffic lane to the shoulder on a highway existed
and, if so, its condition and that the factfinder needed to resolve these issues before
11
the trial court could determine whether the drop-off, if any, constituted a special
defect. See id. In Lopez, the summary-judgment evidence contained (1) the
testimony of one police officer that there was a drop-off on the highway that was at
least five inches and caused the accident; and (2) the testimony of another police
officer that the drop-off was “tapered” and that a driver’s unsafe speed and
inattention caused the accident. See id. at 99. The Lopez case did not involve
photographs of the alleged drop-off. See id. at 99, 104–05. The Lopez case is not
on point. See id.Kownslar contends that the five color photographs submitted by Metro were
insufficient. Two of the photographs were of the area where Kownslar agrees the
accident occurred. Two of the photographs are of a sign warning of a railroad
crossing. One photograph shows the Track entering the far-right lane of Rusk
Street. On appeal, Kownslar states that the photographs do not accurately depict
the Alleged Defect, but Kownslar does not say explain why he thinks the
photographs are inaccurate. Kownslar asserts that the photographs of the Track
were of bad quality and taken from such a distance that it is impossible to
determine the depth and width of the space in which each rail is laid and other
characteristics of the defect, thus creating a fact question preventing the trial court
from granting Metro’s plea to the jurisdiction. Though Metro did not submit a
close-up photograph of either rail or the space in which the rail is embedded, the
photographs submitted by Metro provide adequate information to determine, as a
matter of law, that the Alleged Defect is not a special defect. See Kownslar, 654
S.W.3d at 478; Tex. Dep’t of Transp. v. Pierce, No. 12-19-00260-CV, 2020 WL
500779, at *3–5 (Tex. App.—Tyler Jan. 31, 2020, pet. denied) (mem. op.). We
overrule Kownslar’s first issue.5
5
When, as in this case, the order sustaining a plea to the jurisdiction does not specify the grounds
12
B. Did the trial court err in granting Metro’s jurisdictional plea as to the
Negligent Activity Claim?
In his second issue Kownslar asserts that the trial court erred in granting
Metro’s jurisdictional plea as to the Negligent Activity Claim, in which Kownslar
complained of Metro’s alleged negligence “in failing to design, construct, properly
implement[,] and maintain the metro rail tracks in question in a reasonably safe
condition and free of hazards to [Kownslar] and other members of the public
traveling on the roadway.” Kownslar alleged that this negligence proximately
caused the occurrence made the basis of his suit, his injuries, and his damages.
Metro asserted that all of this alleged negligence falls within Metro’s discretionary
powers and therefore under section 101.056 of the Civil Practice and Remedies
Code the Texas Tort Claims Act does not apply to this claim.
In its plea to the jurisdiction Metro challenged Kownslar’s pleadings as to
the Negligent Activity Claim. In this situation, the trial court had to determine if
Kownslar alleged facts sufficient to demonstrate a waiver of Metro’s immunity that
would give the trial court jurisdiction. See City of North Richland Hills v. Friend,
370 S.W.3d 369, 371–72 (Tex. 2012); Stamos v. Houston Indep. Sch. Dist., No. 14-
18-00340-CV, 2020 WL 1528047, at *2 (Tex. App.—Houston [14th Dist.] Mar.
31, 2020, no pet.) (mem. op.). Whether Kownslar met this burden is a question of
law that we review de novo. Stamos, 2020 WL 1528047, at *2. In making this
determination, we construe the pleadings liberally in Kownslar’s favor, consider
the Kownslar’s intent, and accept as true the factual allegations in the
pleadings. Id.upon which the trial court relied, we must affirm if any of the independent grounds in the
jurisdictional plea has merit. See Shannon v. Mem’l Drive Presbyterian Church U.S., 476 S.W.3d
612, 621 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Thus, we need not and do not
address the other grounds that Metro asserted in its jurisdictional plea as to the Special Defect
Claim.
13
In his pleading, Kownslar did not allege that any statute waived Metro’s
governmental immunity as to his Negligent Activity Claim. Nonetheless, Kownslar
stated in in his live pleading that he brought suit under the Texas Tort Claims Act,
so we presume that Kownslar alleged a waiver of Metro’s governmental immunity
under the Texas Tort Claims Act. But, section 101.056 of the Civil Practice and
Remedies Code provides that the Texas Tort Claims Act does not apply to “a claim
based on: (1) the failure of a governmental unit to perform an act that the unit is
not required by law to perform; or (2) a governmental unit’s decision not to
perform an act or on its failure to make a decision on the performance or
nonperformance of an act if the law leaves the performance or nonperformance of
the act to the discretion of the governmental unit.” Tex. Civ. Prac. & Rem. Code
Ann. § 101.056 (West, Westlaw through 2021 C.S.).
Section 101.056 preserves immunity “for the state’s failure to act, when no
particular action is required by law.” Stephen F. Austin State University v. Flynn,
228 S.W.3d 653, 657 (Tex. 2007). This exception to the applicability of the Texas
Tort Claims Act “avoid[s] judicial review or interference with those policy
decisions committed to the other branches of government.” Id. In Flynn, the
Supreme Court of Texas characterized the existing case law on section 101.056 as
articulating “more than one test for determining when questioned conduct involves
a protected ‘discretionary’ determination.” Id.; see Tarrant Regional Water Dist. v.
Johnson, 572 S.W.3d 658, 665 (Tex. 2019). The first test “distinguishes between
policy-level decisions and operational-level decisions.” Flynn, 228 S.W.3d at 657.
The second distinguishes between the design of public works, for which the Flynn
court said there is immunity, and the maintenance of public works, for which the
Flynn court said there is not immunity. See id. Although described at times as two
distinct inquiries, the Supreme Court of Texas stated in Johnson that “both of these
14
‘tests’ have the effect of distinguishing ‘between policy-level decisions and
operational-level decisions.’” Johnson, 572 S.W.3d at 665 (quoting Flynn, 228
S.W.3d at 657). The Johnson court concluded that the design versus maintenance
“test” is simply the policy-level versus operational-level test applied to public
works. See Johnson, 572 S.W.3d at 665. According to the Johnson court, the
interconnectedness of the two “tests” is illustrated in the Flynn court’s “mingled
application of them.” Id.; see Flynn, 228 S.W.3d at 657.
In Johnson the Supreme Court of Texas described a line of cases in which
the high court had indicated that a bright-line rule existed under which the design
of a public work is always a discretionary function protected under section 101.056
and the maintenance of a public work is always a non-discretionary function not
protected under section 101.056. See Johnson, 572 S.W.3d at 666–67. The Johnson
court then rejected any such bright-line rule as being contrary to the plain text of
section 101.056. See id. at 666–669 & n.4. The Johnson court indicated that under
some fact patterns, the design of a public work may be a non-discretionary
function not protected by section 101.056, and the maintenance of a public work
may be a discretionary function protected under section 101.056. See id. Focusing
on the statute’s text, the Johnson court stated that (1) section 101.056 protects a
governmental entity’s failure to act, its decision not to act, or its failure to make
any decision at all, on matters within the discretion of the governmental unit; and
(2) section 101.056 does not protect a governmental entity’s failure to act when a
particular action is required by law. See Tex. Civ. Prac. & Rem. Code Ann. §
101.056; Johnson, 572 S.W.3d at 665–66. The Johnson court held that the alleged
failure to maintain a public work in that case was a discretionary function protected
under section 101.056. See Johnson, 572 S.W.3d at 669–70.
In pleading the Negligent Activity Claim in his petition, Kownslar asserted
15
that Metro was negligent “in failing to design, construct, properly implement[,] and
maintain the metro rail tracks in question in a reasonably safe condition and free of
hazards to [Kownslar] and other members of the public traveling on the roadway.”
Kownslar alleged that this negligence proximately caused his injuries. Under the
Supreme Court’s opinion in Johnson, any of these alleged failures by Metro might
or might not be protected by section 101.056. See id. at 666–669 & n.4. In his
petition, Kownslar did not allege any facts showing that any of this alleged
negligence was not protected by section 101.056. Kownslar did not allege that
Metro was required by law to perform any of the acts that Metro allegedly failed to
perform. Kownslar did not allege any facts regarding Metro’s role in the design,
construction, and maintenance of the Track. Kownslar did not plead any facts
relating to any duty by Metro to design, construct, or maintain the Track. Kownslar
did not plead any facts that would show whether Metro’s alleged failures to act
were based on policy-level decisions or operational-level decisions. Even
presuming that as to the Negligent Activity Claim, Kownslar relied on the waiver
of governmental immunity under the Texas Tort Claims Act, this waiver does not
apply if Metro’s alleged failures to act are protected under section 101.056. See
Tex. Civ. Prac. & Rem. Code Ann. § 101.056; Johnson, 572 S.W.3d at 665–70.
The evidence submitted by the parties is not relevant to the jurisdictional issue of
whether section 101.056 excludes Metro’s alleged negligence in the Negligent
Activity Claim from the waiver of immunity in the Texas Tort Claims Act.
Construing the pleadings liberally in Kownslar’s favor, looking to his intent, and
accepting as true the factual allegations in his pleadings, Kownslar has not alleged
facts sufficient to demonstrate a waiver of Metro’s immunity as to the Negligent
Activity Claim. See City of North Richland Hills, 370 S.W.3d at 371–73; Stamos,
2020 WL 1528047, at *2.
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Although the trial court granted Metro’s jurisdictional plea, on appeal
Kownslar has not requested a remand for an opportunity to replead his Negligent
Activity Claim. Although the general rule reflects a preference for allowing
amendment to replead, a plaintiff may forfeit this opportunity through inaction. See
Stamos, 2020 WL 1528047, at *4; Smith v. City of League City, 338 S.W.3d 114,
125 (Tex. App.—Houston [14th Dist.] 2011, no pet.). Almost three months after
Metro filed its plea to the jurisdiction and before the trial court granted the plea,
Kownslar amended his petition but did not replead his Negligent Activity Claim or
add any factual allegations showing a waiver of Metro’s governmental immunity
as to this claim. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004) (“If
a plaintiff has been provided a reasonable opportunity to amend after a
governmental entity files its plea to the jurisdiction, and the plaintiff's amended
pleading still does not allege facts that would constitute a waiver of immunity, then
the trial court should dismiss the plaintiff’s action”). At no time in the trial court
did Kownslar ask the trial court for an opportunity to replead or amend his petition,
and the trial court granted Metro’s jurisdictional plea. In this scenario, Kownslar
forfeited the opportunity to replead or amend his petition. See Sykes, 136 S.W.3d at
639; Stamos, 2020 WL 1528047, at *4; Smith, 338 S.W.3d at 125. We conclude
that the trial court did not err in granting Metro’s jurisdictional plea as to the
Negligent Activity Claim.6 See Tex. Civ. Prac. & Rem. Code Ann. § 101.056;
Johnson, 572 S.W.3d at 666–669 & n.4; City of North Richland Hills, 370 S.W.3d
6We need not and do not address whether the trial court’s judgment as to the Negligent Activity
Claim may be affirmed based on the ground asserted in Metro’s second reply, in which Metro
asserted that there is no waiver of governmental immunity under the Texas Tort Claims Act for
any of the negligent acts alleged by Kownslar and that Metro’s governmental immunity is not
waived under section 101.021(1) of the Civil Practice and Remedies Code because no Metro
employee was operating or using a motor-driven vehicle or motor-driven equipment that cased
Kownslar’s injuries. See Ryder Integrated Logistics, Inc. v. Fayette County, 453 S.W.3d 922,
927 (Tex. 2015) (stating that for the waiver of immunity in section 101.021(1) to apply, “a
government employee must have been actively operating the vehicle at the time of the incident”)
17
at 371–73; Stamos, 2020 WL 1528047, at *2.
We overrule Kownslar’s second issue.
III. CONCLUSION
The evidence before the trial court conclusively proved that the Alleged
Defect is not within the narrow class of defects that are special defects under
section 101.022(b) of the Civil Practice and Remedies Code. There is no genuine
fact issue as to whether the Alleged Defect constitutes a special defect. Under the
applicable standard of review, Kownslar has not alleged facts sufficient to
demonstrate a waiver of Metro’s immunity as to the Negligent Activity Claim, and
Kownslar forfeited the opportunity to replead or amend his petition. Having
overruled all of Kownslar’s issues, we affirm the trial court’s judgment.
/s/ Randy Wilson
Justice
Panel consists of Justices Jewell, Poissant, and Wilson (Poissant, J., dissenting).
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