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Click here for the full text of this decision FACTS:Gilda Porter sued Grayson County after she fell outside the Grayson County sub-courthouse. In her original petition, Porter alleged that she was walking on the parking lot when she stepped in a “hole” in the curb surrounding the lot, fell, and injured her knees and foot. She alleged under Texas Civil Practice & Remedies Code �101.021(2) that the injuries arose from the “condition of tangible real property.” Grayson County generally denied her claim and asserted that governmental immunity protected the county. Then, 17 months later and after discovery had been conducted, Grayson County filed a motion to dismiss and plea to the jurisdiction in which it asserted, in part, that the complained-of condition was an ordinary premise defect for which the county did not have knowledge. Attached to the motion as evidence were deposition excerpts of its facilities manager, Greg Allen, Allen’s affidavit and photographs of the curb. In his deposition, Allen testified he had been facilities manager for three years and was responsible for maintaining all county facilities. Allen testified he had never received a complaint about the steps, curbing or walkway. By affidavit, Allen further testified that before Porter’s fall, he was not aware of the gap in the concrete curb or of any accidents or incidents involving the property. Additionally, he asserted that he was not aware of any calls, complaints or reports about the property or the gap in the curb. Seven weeks later, Porter responded to the motion by asserting, among other things, that she was entitled to amend her pleadings and the condition of the curb was a “special defect.” As evidence, Porter attached portions of her and Allen’s depositions and photographs of the curb. On the same day, Porter filed an amended petition alleging a special defect. Specifically, she alleged that the hole was “immediately adjacent to and was part of the sidewalk” and was a dangerous and defective condition, presented a “dangerous risk to invitees” and created an unreasonable risk of harm. She also alleged that Grayson County knew or should have known of the defective condition. At the hearing on the motion, the parties argued over whether the condition of the curb was a special or ordinary premise defect. Under Texas law, one difference between these two theories is that liability for an ordinary premise defect requires a finding that the county actually knew of the dangerous condition. At the conclusion of the hearing, the trial court found the condition was a premise defect and then signed a written order dismissing Porter’s claims with prejudice. Porter appealed. In two issues, Porter argued that the trial court erred by: 1. granting the motion to dimiss and plea to the jurisdiction based upon a pleading defect without allowing her an opportunity to amend her pleadings; and 2. dismissing her claim with prejudice to refiling. HOLDING:Affirmed. Under �101.021(2), the court stated, sovereign immunity is waived and a governmental unit is liable for personal injury or death “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.” The elements of proof for such a claim, the court stated, flow from whether the condition is a premise defect or special defect. Specifically, the court stated, if the condition is a premise defect, the governmental unit owes the duty that a private landowner owes a licensee, and a licensee must prove the owner actually knew of the dangerous condition. In contrast, if the condition is a special defect, the governmental unit owes the duty a private landowner owes an invitee. An invitee need only prove the owner knew or reasonably should have known of the condition. The court reviewed the evidence and concluded that the condition of the curb was not a special defect. Special defects, the court stated, are excavations or obstructions on highways, roads or streets. The examples in �101.022(b) specify an unexpected and unusual danger to ordinary users of roadways. Assuming that the curb was part of a roadway, the court concluded as a matter of law that its condition was not the same kind or class of defect contemplated by �101.022(b). OPINION:Francis, J.; Whittington, Francis and Lang, J.J.

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