Texas Judiciary Online - HTML Opinion

Moreover,=20 the actual knowledge required for liability is knowledge of the = dangerous=20 condition at the time of the accident. City of Dallas v.=20 Thompson, 210 S.W.3d 601, 603 (Tex. 2006). Gerber argues = that=20 the erosion of the soil in the tree box would not suddenly occur = but would=20 erode over time. She contends actual knowledge should be = imputed to=20 the County because the length of time it would take for the soil = to erode=20 increases the number of County employees who had the opportunity = to=20 observe the condition. Gerber=3Ds analysis=20 is faulty for three reasons. First, Gerber presented no = evidence=20 that erosion caused a decrease in the soil level. The tree = box could=20 have been designed and installed with the soil level below the = sidewalk=20 level. The tree box would then be considered to have a = design defect=20 and, therefore, fall outside the TTCA. See Tex.=20 Dep=3Dt of=20 Transp. v. Ramirez, 74=20 S.W.3d 864, 867 (Tex. 2002) (quoting State v. Rodriguez, = 985 S.W.2d=20 83, 85 (Tex. 1999)) (stating the A[d]esign=20 of any public work, such as a roadway, is a discretionary function = involving many policy decisions, and the governmental entity = responsible=20 may not be sued for such decisions.@). =20

Second,=20 merely the possibility that a dangerous condition can develop over = time is=20 not enough to impute actual knowledge. See Thompson, = 210=20 S.W.3d at 603 (determining the City=3Ds=20 knowledge that a coverplate developed a protrusion over time, = which it=20 needed to inspect and maintain, did not satisfy the requirement of = actual=20 knowledge); State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. = 2002)=20 (holding that evidence the State knew the traffic signs had been=20 repeatedly vandalized prior to the accident did not indicate = directly, or=20 by reasonable inference, that it had actual knowledge the signs = were down=20 when the accident occurred); CMH Homes, Inc. v. Daenen, 15 = S.W.3d=20 97, 100B02 (Tex.=20 2000) (holding that the defendant=3Ds=20 knowledge its stair and platform units periodically became = unstable was=20 not evidence of actual knowledge that a unit had become dangerous = when=20 plaintiff was injured). Additionally, Gerber presented no = evidence=20 that anyone employed by the County knew erosion might be a = problem. =20

Third, a=20 logical inference could be made that a single occurrence of a = heavy=20 downpour or street flooding could just as easily have caused the = soil to=20 be washed away. For example, in Thompson, an expert = testified=20 that the City must have known of the dangerous condition because = its=20 employees were in the vicinity and walking over the coverplate in = the=20 hours prior to Thompson=3Ds=20 fall. Thompson, 210 S.W.3d at 603. The Court = found that=20 without evidence showing how long the protrusion on the coverplate = had=20 existed, the proximity of the employees was no evidence of actual=20 knowledge. Id. Here, with no evidence showing = how long=20 the tree box soil existed at the level it occupied on the night of = the=20 incident, the proximity of the employees is no evidence of actual=20 knowledge.