CITY OF McALLEN v. Rosa Hernandez

                             NUMBER 13-04-182-CV

                         COURT OF APPEALS

               THIRTEENTH DISTRICT OF TEXAS

                  CORPUS CHRISTI - EDINBURG

CITY OF McALLEN,                                                  Appellant,

                                           v.

ROSA HERNANDEZ,                                                  Appellee.

                   On appeal from the 92^nd  District Court

                           of Hidalgo County, Texas.

                     MEMORANDUM OPINION

                 Before Justices Yañez, Castillo and Garza

                  Memorandum Opinion by Justice Castillo

This interlocutory appeal stems from a suit by Rosa Hernandez against the City of McAllen for an alleged premises defect and special defect. The City appeals the trial court's denial of its plea to the jurisdiction.  We reverse and remand.

I.  Background^[1]

On August 23, 2000, Hernandez walked toward the intersection of Tenth Street and Houston Street in McAllen, Texas.  On that corner, two sidewalks meet and form a pie-shaped sidewalk section which opens onto crosswalks in both directions.  This pie-shaped sidewalk section is where the traffic-light pole with the button to activate the pedestrian crossing sign is located.  The drainage box^[2] in question is located to the side of the pie-shaped sidewalk section, with a grassy area between the sidewalk and the concrete top of the drainage box.  As she walked, Hernandez left the sidewalk and crossed over the drainage box.  When she stepped on the box, the shop-made lid^[3] gave way and tilted, causing her to fall. Hernandez's right leg fractured when she fell partially into the drainage box.  Hernandez filed suit based on the theories of premises liability and special defect.

II. Issue on Appeal

The City asserts that "[T]he District Court does not have jurisdiction to hear this case because the City of McAllen has not waived its sovereign immunity." 

III. Jurisdiction

Our initial inquiry is always whether we have jurisdiction over an appeal.  Garcia v. Comm'rs Court of Cameron County, 101 S.W.3d 778, 779 (Tex. App.BCorpus Christi 2003, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d   440, 443 (Tex. 1993)).  We are obligated to determine, sua sponte, our own jurisdiction.  Id. (citing N.Y. Underwriters Ins. Co. v. Sanchez, 799 S.W.2d 677, 678 (Tex. 1990) (per curiam)).  Jurisdiction of a court is never presumed.  Id. at 783.  Our jurisdiction is established exclusively by constitutional and statutory enactments. Id. at 784; see Tex. Civ. Prac. & Rem. Code Ann. ' 51.014 (Vernon Supp. 2004-05).  Unless one of the sources of our authority specifically authorizes an interlocutory appeal, we only have jurisdiction over an appeal taken from a final judgment.  Garcia, 101 S.W.3d at 784.  Absent an express grant of authority, we do not have jurisdiction to review an interlocutory order.  Id.  If the record does not affirmatively demonstrate our jurisdiction, we must dismiss the appeal.  Id.

The Texas Civil Practice and Remedies Code grants us jurisdiction to hear an interlocutory appeal from an order granting or denying a plea to the jurisdiction by a governmental unit.  See Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004‑05).  It is undisputed that the City is such a governmental unit.  See id. ' 101.001(3)(B) (Vernon 2005).  Accordingly, we conclude that we have jurisdiction to consider the issues raised on appeal.

IV. Standard of Review

This appeal is strictly limited to our review of the trial court's ruling on the plea to the jurisdiction.  Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon Supp. 2004-05).  A plea to the jurisdiction is the vehicle by which a party contests the trial court's authority to determine the subject matter of the cause of action.  State v. Benavides, 772 S.W.2d 271, 273 (Tex. App.BCorpus Christi 1989, writ denied).  The plaintiff bears the burden of alleging facts affirmatively demonstrating the trial court's jurisdiction to hear a case.  Tex. Ass'n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex. App.BCorpus Christi 2001, no pet.).  Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo.  Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law.  Id.  To determine whether the plaintiff has affirmatively demonstrated the court's jurisdiction to hear the case, we consider the facts alleged by the plaintiff and, to the extent it is relevant to the jurisdictional issue, the evidence submitted by the parties.  Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex. 2001).  If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and such defect is incurable, immediate dismissal of the case is proper.  Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804-05 (Tex. 1989); City of Austin v. L.S. Ranch, 970 S.W.2d 750, 753 (Tex. App.BAustin 1998, no pet.).  However, the mere failure of a petition to state a cause of action does not show want of jurisdiction in the court.  Bybee v. Fireman's Fund Ins. Co., 331 S.W.2d 910, 917 (1960).  If the plaintiff's pleadings are insufficient to demonstrate the court's jurisdiction, but do not affirmatively show incurable defects in jurisdiction, the proper remedy is to allow the plaintiff an opportunity to amend before dismissing.  County of Cameron v. Brown, 80 S.W.3d 549, 554‑55 (Tex. 2002); Peek, 779 S.W.2d at 804-05. 

Like the trial court, we must construe the pleadings in the plaintiff's favor and look to the pleader's intent.  Brown, 80 S.W.3d at 554-55.  Our task is not to determine the merits of the case but rather to examine the petition, taking as true the facts pled, and determine whether those facts support jurisdiction in the trial court.  Baston v. City of Port Isabel, 49 S.W.3d 425, 427-28 (Tex. App.BCorpus Christi 2001, pet. denied).

V.  Law on Statutory Construction

This case is based on provisions of the civil practice and [COMMENT1] remedies code, and specifically the Texas Tort Claims Act.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.001-.109 (Vernon 2005).  Our primary objective when construing a statute is to ascertain and give effect to the legislature's intent.  See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003); Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000).  In discerning that intent, we begin with the plain and common meaning of the statute's words.  McIntyre, 109 S.W.3d at 745.  In construing a statute, a court may consider the (1) object sought to be obtained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision.  Tex. Gov't Code Ann. ' 311.023 (Vernon 2005).  We must read the statute as a whole and not just isolated portions.  See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003).  If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre, 109 S.W.3d at 745. Additionally, if the statutory text is unambiguous, a court must adopt the interpretation supported by the statute's plain language unless that interpretation would lead to absurd results. Tex. Dep't of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 177 (Tex. 2004).  We presume that the legislature would not do a useless act.  Webb County Appraisal Dist. v. New Laredo Hotel, 792 S.W.2d 952, 954 (Tex. 1990).

VI.  Sovereign Immunity

Sovereign immunity, unless waived, protects the State of Texas from lawsuits for damages absent legislative consent.  Gen. Servs. Comm=n. v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001).  Sovereign immunity encompasses two principlesBimmunity from suit and immunity from liability.  Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997).  Immunity from liability protects the State from judgments, even where there is an express consent on the part of the legislature to permit a suit.  Id. Immunity from liability is an affirmative defense that must be pled or else it is waived.  Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (citing Davis v. City of San Antonio, 752 S.W.2d 518, 519-20 (Tex. 1988)).  Immunity from suit, on the other hand, bars a suit against the State unless the State expressly gives consent to the suit.  Fed. Sign, 951 S.W.2d at 405.  Immunity from suit then deprives a trial court of subject matter jurisdiction over the governmental agency, even if liability is undisputed.  Travis Co. v. Pelzel & Assocs., Inc., 77 S.W.3d 246, 248 (Tex. 2002) (citing Jones, 8 S.W.3d at 638).

Subject matter jurisdiction is never presumed and cannot be waived.  Tex. Ass=n of Bus., 852 S.W.2d at 443-44.  Since a governmental unit is protected from suit by sovereign immunity, pleadings in a suit against a governmental unit must affirmatively demonstrate, either by reference to a statute or express legislative permission, that the legislature consented to the suit.  Jones, 8 S.W.3d at 638.  Absent the State's consent to suit, the trial court has no jurisdiction.  Id.

VII. Waiver of Sovereign Immunity-Dangerous Conditions of Real Property

The City asserted in its plea to the jurisdiction and on appeal that it has not waived sovereign immunity, and therefore the trial court does not have jurisdiction over this suit.  As a general rule, government entities are immune from tort liability under the doctrine of sovereign immunity unless the legislature has waived immunity.  Harris County v. Dillard, 883 S.W.2d 166, 168 (Tex. 1994).  The Tort Claims Act provides a limited waiver of sovereign immunity, allowing suits to be brought against governmental units only in certain, narrowly defined circumstances.  Id. (citing Dallas County Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (Tex. 1998) ("the Legislature intended the waiver in the Act to be limited")).  Whether a particular claim falls within an exception from the general doctrine of sovereign immunity is entirely dependent on the statutory language.  Bossley, 968 S.W.2d at 341.  Therefore, "we must look to the terms of the Act to determine the scope of its waiver," Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 584 (Tex. 1996), and then must consider the particular facts of the case before us to determine whether it comes within that scope.  Bossley, 968 S.W.2d at 341.  "Mere reference to the Tort Claims Act does not establish the state's consent to be sued and thus is not enough to confer jurisdiction on the trial court."  State Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

Section 101.021 of the Texas Civil Practice and Remedies Code states that a government unit in this state is 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."  Tex. Civ. Prac. & Rem. Code Ann. ' 101.021 (Vernon 2005).  To allege a claim pursuant to the tort claims act that involves a condition of the property, it is sufficient to allege that defective or inadequate property contributed to injury.  Salcedo v. El Paso Hosp. Dist., 659 S.W.2d 30, 31 (Tex. 1983). 

A.  Premises Defect

       Hernandez alleged that the shop-made lid, placed in an area adjacent to the roadway, constituted a premises defect and that (1) the shop-made lid violated the City engineering standards and created an unreasonable risk of harm to Hernandez, (2) the City of McAllen knew of the condition, (3) Hernandez did not know of the dangerous condition, (4) the City failed to exercise ordinary care to protect Hernandez from this danger, and (5) the City's failure was a proximate cause of the injury to Hernandez.

The City asserts that it is exempted from waiver of immunity under the Act.  The City maintains that the drainage system is part of the roadway system, and the design of the system is discretionary.  The City urges that the acts and decisions pertaining to the design and installation of the shop-made lid are discretionary and hence the City cannot be held liable for Hernandez's injuries.  In its plea to the jurisdiction, the City stated that the drainage box in question was smaller than the standard-sized drainage box, and, as such, the structural integrity of the box was compromised.  As a result, the box was subject to breakage.  Mr. Tabor, working for the City's engineers, and with over thirty years' experience working with roadways, curbs, and drainage boxes, designed and redesigned the inlet cover three different times to prevent the breakage, and addressed the City's concerns with that particular drain box. The City asserts that Mr. Tabor designed a smaller cover than normally used, specifically to prevent breakage. The City maintains that the design of the inlet cover in question is a discretionary act, and therefore the City is immune from suit by Hernandez.  Additionally, the City points out that the lack of warning signs, lights or barricades near the drainage box is the result of yet another discretionary decision, for which it cannot be held liable.  See Ramirez, 74 S.W.3d at 867.

1.  The Law on Premises Defects

Under section 101.021 of the tort claims act, the State waives governmental immunity for "injuries arising from some condition or use of real property."  Floyd v. Willacy County Hosp. Dist., 706 S.W.2d 731, 732 (Tex. App.BCorpus Christi 1986, writ ref'd n.r.e.).  Section 101.022(a) states that "if a claim 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, unless the claimant pays for the use of the premises."  Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(a) (Vernon 2005).  A property possessor must not injure a licensee by willful, wanton, or grossly negligent conduct, and must use ordinary care either to warn a licensee of a condition that presents an unreasonable risk of harm of which the possessor is actually aware and the licensee is not, or to make the condition reasonably safe. Brown, 80 S.W.3d at 554‑55; State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).  To establish liability, a licensee must prove that (1) a condition of the premises created an unreasonable risk of harm to the licensee; (2) the owner knew or reasonably should have known of the condition; (3) the licensee did not actually know of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; (5) the owner's failure was a proximate cause of injury to the licensee.  Payne, 838 S.W.2d at 237 (citing State v. Tennison, 509 S.W.2d 560, 561 (Tex. 1974)).

2.  Hernandez's Live Pleading

Hernandez asserts that the lid in question did not meet "the specifications set by the City of McAllen's Engineering Department for 'Type A' throated inlets," "the shop-made lid placed on the inlet top by the City . . . created an unreasonably dangerous condition, " and "this condition was a proximate cause of injuries to Rosa Hernandez." Hernandez alleged that:  (1) James Tabor, the City's streets and drainage manager, recognized that the lid in place at that location posed an unreasonably dangerous condition for pedestrians; (2) the lid did not comply with the City's standards; (3) the City had actual knowledge of the dangerous condition because the City approved the lid although it allegedly violated the specifications set out by the City's engineering department; (4) the City's employees were placed on notice each time they removed the shop-made lid to clean the drainage box; (5) the lid did not comply with the City's standards relating to "Type A throated inlets;"^[4] (6) the  lid was the only lid of its kind on over 6,000 drainage inlet boxes in the city; (7) the City had knowledge of a dangerous condition of which Hernandez was unaware; (8) no barriers, signs, or other devices were in place to warn pedestrians that the drainage box did not meet City or industry standards; (9) the City owed the duty to Hernandez to warn of or make safe the dangerous condition; and, (10) the City could foresee that people would walk and stand over the concrete drainage box and shop-made lid.

Thus, Hernandez alleged facts to show that:  (1) a condition of the premises, an inlet cover in place that did not meet the City's standards, allegedly created an unreasonable risk of harm to her; (2) the City knew or reasonably should have known that the lid was in place and did not meet the City's standards because City workers handled and worked around the lid, and it was the only one of its kind in the City; (3)  she did not actually know of the condition; (4) the City failed to exercise ordinary care to protect her, as the licensee, from danger; (5) and the City's failure was a proximate cause of injury to her.  See Payne, 838 S.W.2d at 237.

3.  The Law on Discretionary Acts

Whether an act is discretionary is a question of law.  State v. Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam).  Under section 101.056, claims based on the performance or nonperformance of an act left to the discretion of the governmental unit are exempted from the waiver of immunity under the Act.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 2005); State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999) (per curiam); Sanchez v. Matagorda County, 124 S.W.3d 350, 352 (Tex. App.BCorpus Christi 2003, no pet.).  An act is discretionary if it requires exercising judgment and the law does not dictate performing the act with such precision that nothing is left to discretion or judgment.  Rodriguez, 985 S.W.2d at 85.  Immunity is not waived in premises defect suits based on discretionary acts.  See Tex. Dep't of Transp. v. Ramirez, 74 S.W.3d 864, 866-67 (Tex. 2002) (per curiam).  Design decisions are considered discretionary acts. See, e.g., Mogayzel v. Tex. Dep't of Transp., 66 S.W.3d 459, 465 (Tex. App.BFort Worth 2001, pet. denied); Mitchell v. City of Dallas, 855 S.W.2d 741, 745 (Tex. App.BDallas 1993) aff'd, 870 S.W.2d 21 (Tex. 1994). 

A governmental entity's discretion in the design of roadways is protected from liability by section 101.056(2) of the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. ' 101.056(2) (Vernon 2005); State v. Burris, 877 S.W.2d 298, 299 (Tex. 1994) (per curiam); Maxwell v. Tex. Dep't of Transp., 880 S.W.2d 461, 463 (Tex. App.BAustin 1994, writ denied).  The design of a roadway drainage system is likewise a discretionary act.  See Berry v. City of Reno, 107 S.W.3d 128, 132-33 (Tex. App.BFort Worth 2003, no pet.).  The decision whether or not to put safety features such as barriers and guardrails in place is also a discretionary decision.  See Ramirez, 74 S.W.3d at 867; State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999) (per curiam).

4.  Conclusion

The drainage box in question constituted part of the City's drainage system, which in turn is part of the City's road system, see City of Reno, 107 S.W.3d at 132-33, the design of which constitutes a discretionary act.^[5]  Tex. Civ. Prac. & Rem. Code Ann. ' 101.056(2) (Vernon 2005); Burris, 877 S.W.2d at 299. As the design was a discretionary act, the City's immunity has not been waived in this instance.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 2005); Rodriguez, 985 S.W.2d at 85; Matagorda County, 124 S.W.3d at 352.  The implementation of the drainage cover was also a discretionary action on the part of the City.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 2005); Rodriguez, 985 S.W.2d at 85; Matagorda County, 124 S.W.3d at 352.  As such,  the City's immunity has also not been waived in this instance.  See Tex. Civ. Prac. & Rem. Code Ann. ' 101.056; Rodriguez, 985 S.W.2d at 85; Matagorda County, 124 S.W.3d at 352.

We conclude that Hernandez did not sufficiently plead facts to establish waiver of the City's sovereign immunity because the design of the complained-of drainage box, including the lid, was a discretionary act on the part of the City.  The Tort Claims Act does not waive the City's immunity with respect to this claim.

B.  Special Defect

Hernandez alternatively claimed that the lid constituted a special defect.  She alleged that (1) the shop-made lid violated City engineering standards and created an unreasonable risk of harm to Hernandez, (2) the City knew or reasonably should have known of the condition, (3) the City failed to exercise ordinary care to protect Hernandez from this danger, and (4) the City's failure was a proximate cause of the injury to Hernandez. 

1.  The Law

Determining whether a condition is a special defect or an ordinary premises defect is a question of law for the court.  City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997) (per curiam) (citing Payne, 838 S.W.2d at 238).  We therefore consider the issue de novo.  Rodriguez, 985 S.W.2d at 85; City of Mission v. Cantu, 89 S.W.3d 795, 808 (Tex. App.BCorpus Christi 2002, no pet.). 

A special defect is a condition that presents an unexpected and unusual danger to ordinary users of the roadway.  Payne, 838 S.W.2d at 238-39; City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam).  A special defect is generally limited to those conditions which occur on the surface of the roadway.  Cantu, 89 S.W.3d at 808 (citing Payne, 838 S.W.2d at 238).  A special defect is distinguished by some unusual quality outside the ordinary course of events, and a longstanding, routine, or permanent condition is not a special defect.  Stokes v. City of San Antonio, 945 S.W.2d 324, 326‑27 (Tex. App.BSan Antonio 1997, no pet.); Harris County v. Smoker, 934 S.W.2d 714, 718‑19 (Tex. App.BHouston [1st Dist.] 1996, writ denied); see Mitchell, 855 S.W.2d at 747‑48.  In considering whether a condition constitutes a "special defect," size of the condition should be considered.  Morse v. State, 905 S.W.2d 470, 475 (Tex. App.BBeaumont 1995, writ denied) (holding that ten‑inch drop‑off at least 65 feet in length along a shoulder that prevented car's left wheels from reentering the roadway once they had slipped off was a special defect).  The condition needs to be analogous to and of the same degree as "excavations or obstructions on highways, roads, or streets."  Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(2) (Vernon 2005); Johnson v. Tex. Dep=t of Transp., 905 S.W.2d 394, 399 (Tex. App.BAustin 1995, no writ); County of Harris v. Eaton, 573 S.W.2d 177, 178‑79 (Tex. 1978) (oval‑shaped hole 6 to 10 inches deep extending across 90 percent of roadway, which caused car traveling at 35 miles per hour to flip over); Smoker, 934 S.W.2d at 719 (uncovered storm sewer hole located on part of street where pedestrian would normally walk); Cf. Roberts, 946 S.W.2d at 842 (disapproving of appellate court's holding that special defect existed where woman unexpectedly lost her balance descending steps due to unusual height of the first step, attempted to take the next step and stepped into a hole in the sidewalk step where the concrete had cracked and crumbled away); Bernal, 986 S.W.2d at 611 (holding in a case where a woman tripped that a "worn or depressed area . . . approximately 3 feet by 6 feet in size with a depth of 3 inches" in a sidewalk was not a special defect).

The limitation of the government's duty to claimants does not apply to the government's duty to warn of special defects such as excavations or obstructions on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning devices as is required by Section 101.060.  Tex. Civ. Prac. & Rem. Code Ann. ' 101.022(b) (Vernon 2005).  Where a special defect exists, the government unit owes the same duty to users as a private landowner owes to an invitee.  Payne, 838 S.W.2d at 237.  An invitee must prove that (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 injury to the invitee.  Payne, 838 S.W.2d at 237 (citing Tennison, 509 S.W.2d at 561). 

2.  Analysis

We conclude that the shop-made lid does not constitute a special defect.  See Roberts, 946 S.W.2d at 843.  Mr. Tabor, working for the City's engineering department, designed the drainage box in question to be smaller and thus "different" from the other drainage boxes in the city.  See City of San Antonio, 945 S.W.2d at 326-27.  "[A] longstanding, routine, or permanent condition is not a special defect" though.  See id.  (emphasis added).  While we have not been informed as to how long the "shop-made lid" had been in place, the drainage box and its attendant parts, including the lid, are permanently in place.  The City set the particular drainage box, with the shop-made lid, in place in order to prevent the breakage experienced with the earlier drainage boxes in that location.  That the City intended the box to be permanent is not disputed.

Additionally, we realize that a special defect is a condition that presents an unexpected and unusual danger to ordinary users of the roadway.  Payne, 838 S.W.2d at 238-39.  No one disputes that the drainage box constitutes part of the roadway, see City of Mission, 89 S.W.3d at 808, but we must also consider whether Hernandez was an "ordinary user" of the roadway.  See id.  Two sidewalks converge on the corner of Tenth and Houston Streets.  At that point, the sidewalks form a pie-shaped concrete area that slopes down to street level, abutting two crosswalks which span the streets in both directions.  The traffic-light pole is attached to the ground in this pie-shaped area, and the button that controls the crosswalk safety signs is attached to that pole. The drainage box is not on the corner where the streets meet.  It is bordered by the street on one side, the pie-shaped cement area where the sidewalks meet on another side, and the sidewalk on a third side.  The drainage box is flanked by a grassy area separating (1) the sidewalk, (2) the cement top portion of the drainage box, and (3) the cement pie-shaped section on the corner.  Hernandez left the sidewalk and crossed the grass and the drainage box in order to get to the street rather than continuing on the sidewalk to the corner and approaching the street from there.  When she stepped on the shop-made lid, it gave way and tilted, causing her to fall.  We conclude that as Hernandez left the sidewalk instead of continuing on the sidewalk to the corner in order to get to the crosswalk and cross the street, she was not an "ordinary user" as the law provides.  See City of Mission, 89 S.W.3d at 808.

3.  Conclusion

As to Hernandez's special defect claim, we conclude that as (1) immunity has not been waived as the decision to implement the shop-made lid as part of the drainage box was a discretionary decision of the City, see Tex. Civ. Prac. & Rem. Code Ann. ' 101.056 (Vernon 2005); Rodriguez, 985 S.W.2d at 85, (2) that the lid was intended to be and in fact was a permanent condition, see City of San Antonio, 945 S.W.2d at 326-27, and (3) Hernandez was not an ordinary user of the roadway, see City of Mission, 89 S.W.3d at 808, Hernandez did not allege facts sufficient to show waiver of the City's immunity as to her special defect claim.  See Miranda, 133 S.W.3d at 226.

VII.  Disposition

We sustain the City's sole issue on appeal.  We conclude that the City's plea to the jurisdiction should have been granted as to Hernandez's claims for premises defect and special defect. Accordingly, we reverse the order of the trial court and remand for further proceedings commensurate with this opinion.  See id.

ERRLINDA CASTILLO

Justice

Memorandum Opinion delivered and filed

this 22nd day of August, 2005.

---

^[1] In a civil case, this Court will accept as true the facts stated unless another party contradicts them.  See Tex. R. App. P. 38.1(f). 

^[2] The drainage box can be described as the concrete casing for a sewage drain, which drains water from the street surface, and a manhole cover-type lid on top of the concrete casing.  The top of this concrete casing, where the lid is, sits adjacent to the sidewalk on the street corner in question.  The actual drain opens up toward the street, at the curb level, to allow water to run off into the drain.

^[3] The "shop-made lid" resembles a manhole cover, only smaller.  It is also referred to as an "inlet cover" throughout the pleadings.

^[4] Hernandez's petition states that the drainage inlet is a "Type A throated inlet" as per the City of McAllen's Engineering Department.

^[5] We note that Hernandez maintained in her response to the City's plea to the jurisdiction that the actions of the City were not discretionary and were instead maintenance-related.  We are not persuaded by this argument as the cited case law dealt with allegations of failure to maintain, clean and inspect areas of the roadway, see City of Fort Worth v. Gay, 977 S.W.2d 814, 816‑17 (Tex. App.B Fort Worth 1998, no pet.), rather than, as here, allegations that the decision to implement a particular design caused the injury.

---

  

 [COMMENT1]R