Under the Texas Torts Claims Act, a municipality can be held liable for two types of defects in sidewalks–special defects and premise defects. However, the standard to prove these cases is very hard to meet. Texas Civil Practice and Remedies Code Section 102.022. The distinction between ‘special defect’ and ‘premise defect is very important because it determines the duty owed by the City. Under Texas Law, Governmental entitles enjoy immunity from being sued. However, this immunity is waived for certain instances by the Texas Torts Claims Act. Whether a City can be held liable for defects in a city-owned sidewalk depends on a number of factors. It is very important that you consult a slip and fall lawyer to learn about your rights.
Special Defect vs Premises Defect
A Special defect is a condition that presents unexpected and unusual danger to ordinary users, while a premises defect is a long-standing, routine, or permanent defect. If the defect is a special defect, you must only prove that the City knew or should have known of the hazard. If the defect is merely a premise defect, you must prove actual knowledge on the part of the City and the absence of knowledge on the part of the injured, unless the injured party paid for the use of the premises. Further, if the defect is a design defect, that is something dangerous about the way the sidewalk was designed vs a change that occurred later–the act is a discretionary act left to the City and there is no waiver of immunity. See City of Austin v. Silverman, M.D., 2009 WL 1423956 (Tex.App.–Austin).
Examples of Special Defects and Premises Defects
Some examples of premises defects are as follows: “a crushed and crumpled sidewalk” City of Grapevine v. Roberts, 946 S.W.2d 841 (Tex.1997); an eroded spot in the sidewalk City of El Paso v. Bernal 986 S.W.2d 610 (Tex.1999); sidewalk separation City of Richardson v. Justus, 329 S.W.3d 662 (Tex.App.–Dallas, 2010).
Some examples of special defects: an uncovered meter box City of Austin v. Rangel 184 S.W. 3d 377 (Tex. App. – Austin 2006, no pet.); hole in sidewalk left behind from utility pole City of El Paso v. Chacon 148 S.W.3d 417, 425 (Tex.App.—El Paso 2004, pet. denied).
The notice period for tort claims for State government entities is 180 days. However, many cities reduce the notice period by code. The City of Houston notice period for tort claims is 90 days and has specific requirements. Failure to comply with the notice requirements to bring a claim may result in the waiver of your right to bring a claim at all. Thus, it is critical that you get an attorney involved and/or determine what the notice requirements are of the particular government entity involved in your case.
Call An Attorney
If you have been injured due to a slip and fall or trip and fall caused by the defective condition of a sidewalk or other premises defect, you should speak to a premises defect attorney immediately. You have only a very limited time in which to provide written notice to the proper municipal agents before your claim is forever barred.