know of the condition. The defendants contend that the trial court’s dismissal order should be upheld on this basis. We agree that the plaintiffs failed to allege this necessary premises-defect element. Moreover, we disagree with the court of appeals’ conclusion that we can infer this element from the pleadings. Nevertheless, the court of appeals did not err in reversing the trial court’s judgment and remanding, because the plain tiffs’ pleadings do not affirmatively demonstrate an incurable jurisdictional defect, but merely a pleading deficiency. Because the trial court did not rule on the defendants’ special exceptions and allow the plaintiffs an opportunity to amend their pleadings, omitting this element cannot support the trial court’s judgment. See Herring, 513 S.W.2d at 9-10 (<HOLDING>); see also 7 William V. DoRSA-neo III, Texas
holding that dismissal of a pro se complaint for failure to state a claim should generally be without prejudice but if the plaintiff has been given an opportunity amend his complaint and fails to do so the dismissal may be with prejudice holding that when the allegations do not affirmatively negate a claim dismissal for failure to state a claim is appropriate only when the plaintiff has been given an opportunity to amend after special exceptions have been sustained holding that a court may deny leave to amend when the moving party had the opportunity to amend earlier but waited after judgment to do so holding that dismissal of a claim after the plaintiff made a good faith but unsuccessful effort to comply with an order to amend was inappropriate holding substance of claim must have been presented to state court