In City of Denton v. Paper the Texas Supreme Court raised the bar a little higher for users of the public streets to recover for injuries resulting from city construction defects. The City of Denton Waste Water Department cut a city street and made a repair to a sewer line. After completing the repair the City filled the hole, removed the barricades, and left. While the City claims to have repacked the hole, the surface settled over two inches in the first week. About a week later Robin Paper was riding her bicycle when she struck the sunken area, pitched over her handlebars and sustained serious injuries. She sued the City pursuant to the Texas Tort Claims Act alleging that sunken area constituted a special defect under the Act for which the City was liable.
The Texas Tort Claims Act severely limits the liability of governmental units. The liability of a governmental unit regarding a public roadway defect generally depends on whether the defect is a general premises defect or a special defect under the terms of the Act. The liability of a governmental unit for a regular premises defect is limited to the liability of a licensee under Texas law. A landowner has a general duty to a licensee not to willfully or wantonly injure the licensee and to warn of defects of which the landowner has actual knowledge and of which the licensee has no knowledge. If a landowner has no knowledge of a defect then it simply has no duty to a licensee.
The Texas Supreme Court summarized Texas law regarding ordinary premises liability stating, “The Tort Claims Act provides that, in an ordinary premises liability claim, the governmental unit owes only the duty “that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” TEX. CIV. PRAC. & REM. CODE § 101.022(a). Under Texas law, a licensor of real property owes a duty not to injure the licensee by willful or wanton acts or omissions or gross negligence. State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). When the governmental unit has actual knowledge of a dangerous condition and the licensee does not, the government must either warn the licensee or make the condition safe. State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).”