In Harris Co. v. Smoker, 934 S.W.2d 714 (Tex. App.--Houston 1st Dist. 1996, writ denied), the plaintiff was walking along the south side of a street when she fell into the storm sewer. Id. at 717.
She presented evidence that there was no sidewalk on that side of the street, the storm sewer extended approximately two feet into the street, and at the time of the accident the storm sewer cover had been missing for about two months. Id.
The Court found that the storm sewer was located in close proximity to the roadway, and, since there was no sidewalk on the south side of the street, the sewer would be encountered by pedestrians walking along the street near the curb. Id. at 719.
The Court further held that "while walking along an unlit or poorly lighted street, a pedestrian should certainly not expect to usually encounter an uncovered, unmarked hole" and concluded that an uncovered storm sewer located where a pedestrian would normally walk on a street without a sidewalk and in the absence of streetlights constituted a special defect. Id.