Grades, item by item

The minor child [D] was riding an electric scooter across a crosswalk when he was struck by a vehicle driven by [F]. [D] suffered serious injuries. [J] (collectively, [A] and [B] individually and as next friends of [D] and [C]) sued [E] (a governmental entity) for negligence, alleging that overgrown vegetation along the roadway obstructed visibility and created an unreasonably dangerous condition. [J]'s petition included a photograph showing the vegetation. [E] filed a plea to the jurisdiction, arguing that [J] failed to allege that [D] did not actually know of the dangerous condition, and that the claim was barred by governmental immunity. [E] also argued that the vegetation was within [H]'s right-of-way and that [E] had no duty to maintain it. The trial court granted the plea and dismissed the claims with prejudice. [J] moved to modify the dismissal to be without prejudice, and the trial court vacated its original order and entered a new order dismissing without prejudice. [J] appealed, arguing that the trial court erred in granting the plea and that the second dismissal was a nullity because it was entered after the appeal was noticed.

Disposition · Reverse and remand. The trial court erred in granting the plea to the jurisdiction. Confidence: high.

Issue · Whether a plaintiff suing a governmental entity for a premises-liability claim must affirmatively plead that the plaintiff did not actually know of the dangerous condition, or whether the absence of actual knowledge is an element the defendant must negate in a plea to the jurisdiction.

Standard of review · A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction. We review de novo whether the plaintiff's pleadings, construed liberally in the plaintiff's favor, allege facts sufficient to invoke the court's jurisdiction. *Tex. Nat. Res. Conservation Comm'n v. IT-Davy*, 74 S.W.3d 849, 855 (Tex. 2002). If the pleadings do not allege jurisdictional facts, the plaintiff should be afforded an opportunity to amend unless amendment would be futile. *Id.* at 856–57.

Controlling authority · For a governmental unit to waive immunity under the Texas Tort Claims Act for a premises defect, the plaintiff must plead and prove: (1) a condition on the premises created an unreasonable risk of harm; (2) the governmental unit knew or should have known of the condition; (3) the governmental unit failed to warn or make safe; and (4) the plaintiff did not actually know of the condition. *Tex. Civ. Prac. & Rem. Code § 101.022(a); City of Grapevine v. Sipes*, 195 S.W.3d 689, 690 (Tex. 2006) (per curiam). However, the plaintiff's lack of actual knowledge is an element of the claim, not a pleading requirement that must be stated with particularity. *See Tex. R. Civ. P. 93* (listing pleas that must be verified; lack of actual knowledge is not among them). A plea to the jurisdiction may attack the sufficiency of the pleadings, but the court must construe the pleadings liberally and accept all factual allegations as true. *IT-Davy*, 74 S.W.3d at 855. If the pleadings do not expressly negate an element, the court should allow amendment unless the defect is incurable. *Id.* at 856–57.

Application · [J]'s petition alleged that overgrown vegetation obstructed visibility and created an unreasonably dangerous condition. The petition included a photograph of the vegetation. It did not expressly state that [D] did not actually know of the condition. But the absence of that allegation does not automatically defeat jurisdiction. The petition's factual allegations—that the vegetation was overgrown and that [D] was struck while lawfully using a crosswalk—implicitly suggest that [D] did not know of the hidden danger. More importantly, even if the pleading were deficient, the trial court should have given [J] an opportunity to amend before dismissing with prejudice. *IT-Davy*, 74 S.W.3d at 856–57. The trial court's initial dismissal with prejudice was error; the subsequent vacatur and dismissal without prejudice cured that error only if the court retained jurisdiction. Because [J] had already perfected an appeal, the trial court likely lacked jurisdiction to modify its order. *See Tex. R. App. P. 25.1(b)* (once appeal is perfected, trial court loses jurisdiction over the judgment). But the proper remedy is to reverse the original dismissal and remand for further proceedings, including an opportunity to amend.

Procedure · The trial court should have denied the plea or allowed [J] to replead. The second dismissal without prejudice, entered after the appeal was noticed, is a nullity. The case should be remanded to the trial court for proceedings consistent with this opinion.