In City of El Paso v. Chacon, 148 S.W.3d 417 (Tex.App.--El Paso 2004, pet. denied), the plaintiff was injured while walking down a sidewalk when he stepped into a hole where a traffic control device or utility pole had once been placed. Chacon, 148 S.W.3d at 417, 419.
When the pole was removed, the hole was not covered and no warning signs were posted. Id. at 419. The plaintiff claimed that at the time of the injury, the hole was visually obstructed by foliage. Id.
In its plea to the jurisdiction, the City argued that the defect was an ordinary defect such that it owed only the duty of care that a private party owes a licensee. Id.
It also argued that under the applicable municipal code provisions, the duty to maintain the sidewalk and remedy the defect (the visual obstruction) was shifted to the abutting property owner. Id. at 419, 426.
The trial court denied the plea and the City appealed. After determining that the defect was a special defect, the court noted that actual knowledge was not necessary to establish a claim based on a special defect. Id. at 425.
A claimant must prove: (1) a condition of the premises, (2) the owner knew or 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 the injury to the invitee. Id.
The Court then looked to Chacon's pleadings to determine whether he alleged facts which, if taken as true, sufficiently supported jurisdiction. Chacon, 148 S.W.3d at 425-26.
In finding Chacon properly pled a cause of action the Court reasoned:
"We find that Chacon sufficiently pled an unreasonable risk of harm, the first element, by stating that the hole was large, gaping, uncovered, and located on a pedestrian sidewalk. He pled 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." Id. at 426.
The Court then turned to the City's argument regarding the City ordinances that shifted responsibility to abutting property owners and examined El Paso Municipal Code Section 13.04.050:
Here, Section 13.04.050 operates as a 'valid ordinance to the contrary.' While Section (A) requires an abutting owner to maintain the sidewalk, it does not impose a duty to comply with the ordinance, and does not in and of itself render the owner liable for injuries. He only becomes liable when the ordinance expressly imposes liability for injuries occasioned by the defective condition. Thus, we concentrate on Section (E): 'The owner of property abutting . . . a sidewalk . . . that has become defective and has resulted in . . . injury . . . shall be primarily liable . . . for any loss or damage sustained . . . .'
The Supreme Court has examined a similar ordinance which provided that the abutting property owner should be 'primarily liable' for any damages sustained as a result of a defective condition. The terms 'primarily liable' and 'primary liability' were plainly relative and connoted secondary liability on the part of the city. Giving the phrases their ordinary and obvious meaning, the terms did not enlarge or diminish the liability of either the abutting owner or the city. 'As between the two, the liability of the former is primary to that of the latter' but that otherwise, the liability of the two was identical because it arose from a breach of the same duty. (Id. at 427.)
The Court then concluded that, "the abutting property owner's duties and responsibilities under the El Paso Municipal Code do not relieve the City of its liability." Id.