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Click here for the full text of this decision FACTS:The City of El Paso appeals the denial of its motion to dismiss based on a plea to the jurisdiction. On Jan. 7, 2000, Armando Chacon was walking along a public sidewalk in the 3600 block of Dyer Street in El Paso County. Near the intersection of McKinley and Dyer, Chacon stepped into a hole where a utility pole or traffic control device had been installed at one time. When the device was removed, the hole was not covered and no warning signs were posted. According to his pleadings, Chacon was “disabled and suffered injuries to his back, leg, knee, and hips” and as a result he has “sustained physical pain, suffering, extreme mental anguish, medical expenses, permanent disability, lost earning capacity, past, present and future . . . .” HOLDING:Affirmed. The Texas Tort Claims Act provides governmental liability for personal injuries caused by a condition of real property if the governmental unit would, were it a private person, be liable under Texas law. The act provides different standards of care depending on whether the claim arises from an ordinary premises defect or a special defect. If the condition is an ordinary premises defect, the city owed Chacon the same duty that a private landowner owes a licensee unless Chacon paid for the use of the premises. Generally, the duty a landowner owes a licensee is not to injure the licensee through willful, wanton, or grossly negligent conduct. The owner must also 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. On the other hand, if the condition is a special defect, the city owed Chacon the same duty that a private landowner owes an invitee. Special defects are unexpected and unusual dangers to ordinary users of the roadway or sidewalk. Based upon the pleadings, this hole was not merely an eroded place in the flat surface of the sidewalk or a cracking and crumbling sidewalk. Nor was it a defect in a covering. This defect was a hole, located where a pedestrian would normally walk and not expect to encounter it. It was not permanent in nature, as the device had been removed, but it was unexpected and unusual. It created a hazard and a danger to normal users. The court concludes that the hole is analogous to an excavation as expressly mentioned in the statute and falls within the same class as contemplated by the statute. Consequently, the court finds it to be a special defect. See Texas Civil Practice and Remedies Code �101.022. The court finds that Chacon sufficiently pleaded an unreasonable risk of harm, the first element, by stating that the hole was large, gaping, uncovered and located on a pedestrian sidewalk. He pleaded that the hole was a condition about which the city knew or should have known since the city had installed the device and then removed it. Moreover, the hole had been there for a substantial period of time. This sufficiently pleads the second element. Third, Chacon pled failure to exercise ordinary care by stating that the city failed to repair the hole and failed to warn of the danger. Finally, Chacon pled that the accident was the direct and proximate cause of injuries he sustained to his back, leg, knee and hips. The trial court properly denied the city’s motion to dismiss based on a plea to the jurisdiction. OPINION:McClure, J.; Barajas, C.J., McClure and Andell, JJ.

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