ORAL ARGUMENT REQUESTED
No. 05-11-01598-CV
________________________________________________________________________ IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS
_______________________________________________________________________ CITY OF DALLAS,
Defendant/Appellant, v.
FLORANIA PRADO,
Plaintiff/Appellee.
________________________________________________________________________ Appeal from the 192nd Judicial District Court of Dallas County, Texas
Cause No. 10-09220-K
________________________________________________________________________
APPELLANT’S BRIEF AND APPENDIX
________________________________________________________________________
Thomas P. Perkins, Jr. CITY ATTORNEY’S OFFICE
Dallas City Attorney Dallas City Hall
Patricia M. De La Garza (Texas Bar No. 13897900) 1500 Marilla Street, Room 7BN Barbara E. Rosenberg (Texas Bar No. 17267700) Dallas, Texas 75201
James B. Pinson (Texas Bar No. 16017700) Telephone: 214-670-3519
Assistant City Attorneys Telecopier: 214-670-0622
ATTORNEYS FOR APPELLANT
ACCEPTED 225EFJ016745504
FIFTH COURT OF APPEALS DALLAS, TEXAS
12 February 24 P2:41 Lisa Matz
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IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a)(1)(A), the following is a list of all parties to the trial court’s order from which this appeal is taken, and the names and addresses of all trial and appellate counsel:
1. Plaintiff/Appellee Florania Prado
2. Plaintiff/Appellee’s Trial and Appellate Counsel Kate Smith – trial and appellate
Stephanie Johnson - trial 1205 Hall Johnson Road Colleyville, Texas 76034 Telephone: 817-479-0565 Telecopier: 817-479-0538 3. Defendant/Appellant
City of Dallas
4. City of Dallas’ Counsel
Patricia M. De La Garza – trial and appellate patricia.medrano@dallascityhall.com
Barbara E. Rosenberg– appellate barbara.rosenberg@dallascityhall.com James B. Pinson– appellate
james.pinson@dallascityhall.com Office of the City Attorney
7DN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 Telephone: 214-670-3519 Telecopier: 214-670-0622
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TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ... i
INDEX OF AUTHORITIES ... iv
ISSUES PRESENTED ... vii
STATEMENT OF FACTS ... 2
SUMMARY OF ARGUMENT ... 4
ARGUMENT ... 5
I. Standard of review and applicable law. ... 5
A. The Court reviews the plea to the jurisdiction de novo. ... 5
B. Sovereign immunity protects the City from suit for Prado’s premise claim where there is no breach of duty. ... 6
II. The trial court erred in denying the City’s plea to the jurisdiction for Prado’s premise liability claim. ... 8
A. The City established that the puddle of water accumulated from rain and did not create an unreasonable risk of harm. ... 9
B. The City did not have actual knowledge of the puddle of water. ... 12
C. Prado had actual knowledge of the puddle of water. ... 14
III. The trial court erred in denying the City’s plea to the jurisdiction because Prado cannot plead a general negligence theory separate from or in the alternative to the premise liability claim. ... 15
CONCLUSION ... 17
PRAYER ... 18
iii APPENDIX
Picture of outdoor walkway (CR 57) ... Tab 1 Picture of outdoor walkway (CR 95) ... Tab 2 Picture of outdoor walkway (CR 97) ... Tab 3 Order Denying Defendant City of Dallas’ Plea to the Jurisdiction (CR 123) ... Tab 4
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INDEX OF AUTHORITIES CASES
Blanche v. First Nationwide Mortg. Corp.,
74 S.W.3d 444 (Tex. App.—Dallas 2002, no pet.) ... 13
Bland Indep. Sch. Dist. v. Blue,
34 S.W.3d 547 (Tex. 2000) ... 5
City of Dallas v. Reed,
258 S.W.3d 620 (Tex. 2008) ... 9
City of Dallas v. Thompson,
210 S.W.3d 601 (Tex. 2006) ... 12, 14
City of Fort Worth v. Gay,
977 S.W.2d 814 (Tex. App.—Fort Worth 1998, no pet.) ... 11
City of Richardson v. Justus,
329 S.W.3d 662 (Tex. App.—Dallas, 2010, no pet.) ... 8, 16, 17
City of Tyler v. Likes,
962 S.W.2d 489 (Tex. 1997) ... 7
Cnty. of Cameron v. Brown,
80 S.W.3d 549 (Tex. 2002) ... 5
Dallas Cnty. v.Wadley,
168 S.W.3d 373 (Tex. App.—Dallas 2005, pet. denied) ... 6
Feazell v. Mesa Airlines, Inc.,
917 S.W.2d 895 (Tex. App.—Fort Worth 1996, writ denied) ... 13
Gagne v. Sears, Roebuck & Co.,
201 S.W.3d 856 (Tex. App.—Waco 2006, no pet.) ... 10
Harris Cnty. v. Sykes,
136 S.W.3d 635 (Tex. 2004) ... 6
M.O. Dental Lab v. Rape,
139 S.W.3d 671 (Tex. 2004) ... 9, 10, 11
State Dep’t of Highways & Pub. Transp. v. Payne,
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State v. Gonzalez,
82 S.W.3d 322 (Tex. 2002) ... 12
State v. Horton,
4 S.W.3d 53 (Tex. App.—Tyler 1999, no pet.) ... 16
State v. Tennison,
509 S.W.2d 560 (Tex. 1974) ... 16
Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440 (Tex. 1993) ... 5, 7
Tex. Bay Cherry Hill, L.P. v. City of Fort Worth,
257 S.W.3d 379 (Tex. App.—Fort Worth 2008, no pet.) ... 7
Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217 (Tex. 2004) ... 5, 6, 16
Tex. Dep’t of Transp. v. Jones,
8 S.W.3d 636 (Tex. 1999). ... 5, 7 STATUTES
Tex. Civ. Prac. & Rem. Code § 101.021(2) ... 7 Tex. Civ. Prac. & Rem. Code § 101.022 ... 8, 9 Tex. Civ. Prac. & Rem. Code §§ 75.001-.003... 9 Tex. Civ. Prac. & Rem. Code §101.0215(4)(16)... 7
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STATEMENT OF THE CASE
Nature of the Case: Florania Prado (“Prado”) filed suit for injuries she allegedly sustained when she slipped and fell in a puddle of water, which was caused by rain, on the outside walkway to the entrance of the Latino Cultural Center. (CR 57 [App’x Tab 1], 95 [App’x Tab 2], 97 [App’x Tab 3], 100, 113). Prado asserted a premise liability claim under the Texas Tort Claims Act, contending that the puddle of water constituted a dangerous condition. (CR 113-14). She also asserted claims of general negligence. (Id.). The City of Dallas (“City”) answered with a general denial, the affirmative defense of governmental immunity, and a plea to the jurisdiction. (CR 11-14, 16-101).
Course of Proceedings: The City filed a plea to the jurisdiction, asserting that it was immune from suit from Prado’s claims because she could not demonstrate a waiver of immunity from suit under the Texas Tort Claims Act. (CR 16-101). Trial Court’s Disposition: The trial court denied the City’s plea to the jurisdiction
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ISSUES PRESENTED
1. The trial court erred in denying the City’s plea to the jurisdiction.
2. There is no subject-matter jurisdiction for Prado’s negligence claims separate from her premise liability claim under the Texas Tort Claims Act.
3. There is no subject-matter jurisdiction for Prado’s premises claim because the City maintains its sovereign immunity under the Texas Tort Claims Act.
4. The trial court erred in considering Prado’s evidence because it was not properly before the court.
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No. 05-11-01598-CV
________________________________________________________________________ IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS
_______________________________________________________________________ CITY OF DALLAS,
Appellant, v.
FLORANIA PRADO,
Appellee.
________________________________________________________________________ APPELLANT’S BRIEF
________________________________________________________________________ TO THE HONORABLE COURT OF APPEALS:
In this interlocutory appeal, the City of Dallas (“City”) complains that the trial court erred in denying its plea to the jurisdiction as to Florania Prado’s (“Prado”) premises liability cause of action. The City established under the present facts that Prado is limited to asserting a premise liability claim as provided by the Texas Tort Claims Act (“TTCA”) and that under section 101.022 of the TTCA the City owed Prado the duty owed to a licensee. The record demonstrates that there is no subject-matter jurisdiction for Prado’s slip-and-fall premise defect claim because (1) the puddle of water, which accumulated due to rain on the outside walkway of the Latino Cultural Center, did not pose an unreasonable risk of harm; (2) the City did not have actual knowledge of the puddle of water at the time of Prado’s fall, and (3) Prado had actual knowledge of the
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puddle of water at the time of her fall. Accordingly, this Court should reverse the trial court’s decision denying the City’s plea and dismiss this cause for want of jurisdiction.
STATEMENT OF FACTS
On May 2, 2009, an outdoor event was held at the Latino Cultural Center, which is owned and operated by the City. (CR 87, 103). That morning it was sunny and the doors leading into the administration offices were open. (CR 71-72, 97). In the early afternoon, it began raining and the event was moved indoors to the auditorium. (CR 72, 75). When it began raining, the doors leading to the administration offices were closed and locked because rain was coming into the offices. (CR 72, 97). A door mat, outside the doors leading to the administration offices, was removed because it was wet due to the rain and tended to be slippery when it was wet. (CR 72-73, 81-82).
Because the event was moved to the auditorium, the doors leading to the auditorium were opened and a yellow warning sign was posted, warning the public that the floor was wet. (CR 73-74). After the event had been moved indoors, Prado arrived at the Latino Cultural Center for the purpose of transporting performers from the location. (CR 48, 60). She did not pay an entrance fee. (CR 48). While walking on the outside walkway, Prado knew the walkway was wet because it had been raining. (CR 38-39, 45, 60, RR 11, 14-15). In fact, she was carrying an umbrella. (CR 46, RR 14). Wearing flip flops, Prado walked carefully on the outside walkway toward the administration doors. (CR 39-40.) She reached for the door to open it, which was locked, and fell in a puddle of rainwater. (CR 39).
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Prado brought suit, asserting that under the TTCA, the City’s immunity was waived for her premise liability claim and her negligence claims. (CR 112-117). She alleges in her First Amended Petition that the puddle of rainwater amounted to a premise defect. (CR 114). She also alleges that the City was negligent in maintaining the outside walkway. (Id.).
The City filed a plea to the jurisdiction, asserting sovereign immunity and challenging the trial court’s subject-matter jurisdiction under the TTCA. (CR 19-20). The City alleged and provided evidence demonstrating that Prado had failed to allege and could not prove a waiver of immunity from suit for her premise liability claim. (CR 16-101). The City attached to its plea photographs of the area where the incident occurred, affidavits, and excerpts from the deposition of Prado and Alejandrina Drew (“Drew”), a City employee, supporting its contention that the City’s immunity was not waived under section 101.022 of the TTCA. (CR 34-101).
Prado responded to the City’s plea to the jurisdiction by referencing the deposition testimony of Drew to establish that the City had actual knowledge of the puddle of rainwater. (CR 106). Although Prado referenced the deposition testimony of Drew, she did not attach the excerpts to Drew’s deposition. (Id.). In her response, Prado argues that her claims met the waiver of immunity under the TTCA because (1) the amount in controversy exceeded the court’s minimum jurisdictional requirements, (2) the City’s maintenance activities were governmental, not discretionary, (3) her evidence showed the puddle of rainwater was an unreasonable risk of harm, (4) the City had notice of the puddle of rainwater, and (5) Prado did not have actual knowledge of the puddle of
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rainwater. (CR 103-09). She also argued that her pleadings and the cited deposition testimony established a general negligence claim separate from her premise defect claim under section 101.022 of the TTCA. (Id.).
After a hearing, the trial court denied the City’s plea. (CR 123, [App’x Tab 4]). The City appeals the order denying its plea to the jurisdiction. (CR 124-25).
SUMMARY OF ARGUMENT
In this interlocutory appeal, the trial court erred in denying the City’s plea to the jurisdiction as to Prado’s premise liability cause of action. Prado, who was injured by an alleged premise defect on a City premise, is limited to asserting a premise liability claim as provided by the TTCA and may not assert a general negligence theory. And because she is limited to asserting a premise liability claim as provided by the TTCA, to prevail she is required to plead and prove that her claims established a waiver of immunity under section 101.022 of the TTCA. In challenging the subject-matter jurisdiction for the court to consider her claims, the City’s evidence negated the elements of Prado’s premise liability claim. Specifically, the City showed (1) the puddle of rainwater did not pose an unreasonable risk of harm, (2) the City did not have actual knowledge of the puddle of rainwater at the time of the incident; (3) and Prado had actual knowledge of the puddle of rainwater at the time of the incident. Prado did not present any evidence to refute the City’s evidence because she did not authenticate the evidence and thus did not properly present any evidence for consideration.
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Accordingly, this Court should reverse the trial court’s decision denying the City’s plea to the jurisdiction and render judgment dismissing the case for want of subject-matter jurisdiction.
ARGUMENT I. Standard of review and applicable law.
A. The Court reviews the plea to the jurisdiction de novo.
A plea to the jurisdiction contests a trial court’s subject-matter jurisdiction. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The purpose of the plea “is not to force the plaintiffs to preview their case on the merits, but to establish a reason why the merits of the plaintiffs’ claims should never be reached.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In Miranda, the supreme court identified the proper analysis for deciding whether a plea to the jurisdiction should be granted. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). When a plea to the jurisdiction challenges the pleadings, the court determines if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Courts construe the pleadings liberally in favor of the plaintiff and look to the pleader’s intent. Miranda, 133 S.W.3d at 226. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Miranda, 133 S.W.3d at 226-227 (citing Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)). If the
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pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Miranda, 133 S.W.3d at 227.
When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court considers relevant evidence submitted by the parties to resolve the jurisdictional issues raised. Id. at 227. When the jurisdictional challenge implicates the merits of a plaintiff’s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the evidence to determine whether a fact issue exists concerning the jurisdictional issue. Id. When the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court should grant the plea to the jurisdiction as a matter of law. Id. at 227-28.
This Court reviews the plea to the jurisdiction de novo. Id. If the plaintiff has had the opportunity to amend and the plaintiff’s amended pleading still does not allege facts that would constitute a waiver of immunity, then the trial court should dismiss the plaintiff’s action with prejudice. See Harris Cnty. v. Sykes, 136 S.W.3d 635, 639 (Tex. 2004).
B. Sovereign immunity protects the City from suit for Prado’s premise claim where there is no breach of duty.
In Texas, sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits against the State or other governmental units unless the State consents to suit.
Miranda, 133 S.W.3d at 224; Dallas Cnty. v. Wadley, 168 S.W.3d 373, 376 (Tex. App.— Dallas 2005, pet. denied). The sovereign immunity of the State also applies to the benefit
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of a municipality to the extent the municipality engages in the exercise of governmental functions. See City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997); Tex. Bay Cherry Hill, L.P. v. City of Fort Worth, 257 S.W.3d 379, 389 (Tex. App.—Fort Worth 2008, no pet.) (“A municipality . . . is generally immune from suit and liability for torts arising from its exercise of governmental functions, except for the limited waiver provided by the Texas Tort Claims Act.”).
To establish subject-matter jurisdiction against a governmental unit, a plaintiff’s pleading must establish, either by reference to a statute or express legislative permission, the legislature’s consent to its lawsuit, or immunity from suit will deprive the trial court of subject-matter jurisdiction. Jones, 8 S.W.3d at 638. The plaintiff has the burden to allege facts affirmatively demonstrating that the trial court has subject-matter jurisdiction.
See Tex. Ass’n of Bus., 852 S.W.2d at 446.
Prado’s allegations against the City involve street and sidewalk maintenance and civic, convention centers, or coliseums, which are governmental functions. Tex. Civ. Prac. & Rem. Code § 101.0215(4)(16). Thus, she must allege facts that state a claim under the TTCA. Prado asserts a premise liability claim. (CR 113-14). The TTCA provides for a limited waiver for premise liability. See Tex. Civ. Prac. & Rem. Code § 101.021(2). Generally, section 101.022 sets out the standard of care owed in premise liability claims. That section specifically provides:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless claimant pays for the use of the premises.
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Tex. Civ. Prac. & Rem. Code § 101.022(a). The City’s duty to a licensee is to make safe or warn of an unreasonably dangerous condition of which the City had actual knowledge.
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g).
Prado further alleges a general negligence theory separate from her premise liability claim. (CR 106-07). Her general negligence claims against the City fail because a plaintiff injured by alleged premise defect on governmental property is limited to asserting a premise liability claim as provided by TTCA and may not assert a general negligence theory. See City of Richardson v. Justus, 329 S.W.3d 662, 665 (Tex. App.— Dallas, 2010, no pet.).
Under the present facts, Prado did not pay for use of the premises. (CR 48). Thus, to establish a waiver of immunity from suit for a premises liability claim, Prado has the burden to plead facts that establish a waiver of governmental immunity under the TTCA and create a fact issue as to the jurisdictional facts that the City negates. Here, Prado has not and cannot establish the elements of a valid premise liability claim under the TTCA. II. The trial court erred in denying the City’s plea to the jurisdiction for Prado’s
premise liability claim.
The trial court should have granted the City’s plea to the jurisdiction of Prado’s premise liability claims because Prado could not show a waiver of immunity under section 101.022 of the TTCA, which details the duty owed by a governmental entity in a premise defect case. The City produced evidence demonstrating that in a premise defect
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case such as this, the standard of care owed to Prado would be that owed to a licensee1 because she did not pay a fee to enter the premises of the Latino Cultural Center. See
Tex. Civ. Prac. & Rem. § 101.022; City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). Prado does not dispute that she is a licensee. Thus, to establish a waiver of immunity from suit for her premise liability claim, Prado, a licensee, must show that (1) a condition of the premises created an unreasonable risk of harm to Prado; (2) the City had actual knowledge of the condition alleged by Prado and that the condition was unreasonably dangerous; (3) Prado did not have actual knowledge of the condition; (4) the City failed to exercise ordinary care to protect Prado from danger; and (5) the City’s failure was a proximate cause of injury to Prado. Payne, 838 S.W.2d at 237.
A. The City established that the puddle of water accumulated from rain and did not create an unreasonable risk of harm.
To establish a waiver of immunity from suit in this premise liability case, the puddle of water, which accumulated due to rain, must pose an unreasonable risk of harm to Prado. The City challenged jurisdiction under the TTCA by showing that that the puddle of rainwater did not pose an unreasonable risk of harm. It is undisputed that the puddle of water on the outdoor walkway accumulated due to the rain. (CR 100). Courts have held that naturally occurring conditions do not create an unreasonable risk of harm as a matter of law. See M.O. Dental Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (ordinary mud that accumulated due to rain and remained in natural state was not a
1
Although Prado has pled that she entered the premises for the purpose of recreation and to engage in recreation, the City is not contending that the Recreational Use Statute governs the standard of care in this case (CR 113). See Tex. Civ. Prac. & Rem. Code §§ 75.001-.003.
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condition that posed an unreasonable risk of harm); Gagne v. Sears, Roebuck & Co., 201 S.W.3d 856, 858 (Tex. App.—Waco 2006, no pet.) (ice accumulated on a sidewalk due to a winter storm near the entrance of the store did not pose an unreasonable risk of harm).
The opinion in M. O. Dental is instructive on the issue of whether “naturally occurring conditions” pose an unreasonable risk of harm. In M. O. Dental, the plaintiff filed a premise liability cause of action against a dental lab after she slipped and fell on the pavement outside of the lab. M. O. Dental, 139 S.W.3d at 672. The plaintiff alleged that she parked her car alongside of the lab, and as she was walking from her car toward the entrance of the lab, she slipped and fell on a “slippery mud substance.” Id. She claimed that the substance had accumulated on the parking lot sidewalk. Id. The defendant testified that it had rained sometime before the plaintiff’s arrival. Id. at 673-74. The defendant further testified that, as a result of the rain, mud had accumulated on the concrete slab where the plaintiff had fallen. Id. The defendant testified that no efforts were made to clear the mud because it would be washed or blown away by the weather.
Id. The defendant testified that no one had informed her or anyone in the dental office about mud on the concrete slab causing someone to slip. Id. The Texas Supreme Court held that ordinary mud that accumulated due to rain and remained in its “natural state”, was not a condition that posed an unreasonable risk of harm as a matter of law. Id. at 675-76.
The City produced evidence establishing that the puddle of water on the outdoor concrete walkway was caused by rain, and that Prado was aware of the existence of water
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that had accumulated on the outdoor concrete walkway. (CR 38-39, 60). Immediately prior to the incident, Prado admitted to walking carefully because she knew it had been raining. (CR 60). Prado did not present any controverting evidence that the puddle of water resulted from anything other than rain. (CR 100, 103-09). In fact, she admits that “the recent rain caused a puddle of water to form” by the entrance door. (CR 100). As in
M. O. Dental, because the puddle of water accumulated naturally and remained in its “natural state”, i.e., due to the rain, the puddle did not pose an unreasonable risk of harm to Prado. See M. O. Dental, 139 S.W.3d at 673, 675-76.
To support Prado’s position that the puddle of rainwater posed an unreasonable risk of harm, Prado relies on City of Fort Worth v. Gay, 977 S.W.2d 814 (Tex. App.— Fort Worth 1998, no pet.), which is inapplicable for at least two reasons. First, the Fort Worth court did not address whether the rainwater posed an unreasonable risk of harm.
Gay, 977 S.W.2d. at 814. Second, the decision in Gay could not be authority that natural conditions are unreasonably dangerous because the case predates M. O. Dental, which held that “naturally occurring conditions” do not pose an unreasonable risk of harm as a matter of law. SeeM. O. Dental, 139 S.W.3d at 675-76. Thus, Prado did not present any legal authority that supports her position that standing rainwater poses an unreasonable risk of harm.
Thus, the City produced evidence establishing that the puddle of water on the outdoor concrete walkway was caused by rain and Prado did not present any controverting evidence that the puddle of water resulted from anything other than rain.
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(CR 100). Accordingly, the City conclusively negated the first element of Prado’s premises liability claim.
B. The City did not have actual knowledge of the puddle of water.
The City further challenged jurisdiction under the TTCA by showing that Prado failed to establish that the City had actual knowledge of the puddle of rainwater at the time of Prado’s fall. Because Prado is a licensee, actual knowledge of the specific condition alleged is required, not just general notice. State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002). Furthermore, for liability to attach, actual knowledge is required of the dangerous condition at the time of the accident, not merely of the possibility that a dangerous condition can develop over time. City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006). In Thompson, the Texas Supreme Court held that evidence that the City knew that a metal expansion-joint coverplate could loosen and protrude over time did not establish the City’s actual knowledge of a dangerous condition at the time of the accident. Id.
The City produced evidence that the City did not have actual knowledge of the puddle of water at the time of Prado’s fall. (CR 87). The City’s evidence demonstrated that Prado did not know of anyone who had slipped and fallen on May 2, 2009, because of the puddle of water and that Prado did not know of anyone who notified the City of the puddle of water prior to her fall. (CR 47, 61). The City’s evidence further demonstrated that Ms. Drew (“Drew”), a city employee, did not receive any complaints or reports of standing water or puddles of water on the outside hallway the day of the incident.
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(CR 87). Drew also testified that there had not been any other similar incidents at the Latino Cultural Center from 2004 through June 2009, her date of retirement. (CR 79-80).
To refute the City’s evidence of lack of actual knowledge2, Prado referred to the deposition testimony of Drew, which allegedly stated that as early as 2004 Drew reported issues of rain coming through the entrance and water pooling where Plaintiff fell and that Drew reported that the problem out of concern for public safety. (CR 106). Prado further referred to the deposition testimony of Drew, which allegedly stated that maintenance handled the problem by removing the door mat and locking the doors to the entrance. (Id.). Although Prado referred to the deposition testimony of Drew, she did not attach the deposition excerpts to her response. (CR 103-109). By failing to attach the deposition excerpts to her response, Prado did not authenticate the evidence and thus did not properly present any evidence for consideration. See Blanche v. First Nationwide Mortg. Corp., 74 S.W.3d 444, 451 (Tex. App.—Dallas 2002, no pet.) (a complete absence of authentication is a defect of substance that is not waived by a party failing to object and may urged for the first time on appeal). Moreover, a party cannot rely on factual statements contained in its response as evidence. SeeFeazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 898 (Tex. App.—Fort Worth 1996, writ denied) (response to motion for summary judgment is not summary judgment evidence).
2
Prado did not plead or present evidence that the City had actual knowledge of the puddle of rainwater on the day of the incident. Rather she alleges that the City knew or should have known of the condition, which is not applicable to a licensee. (CR 113). See Payne, 838 S.W.2d at 237.
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Even if the Court considers the deposition testimony of Drew offered by Prado, Drew’s testimony that there were periodic rain issues in 2004 does not create a fact issue that the City had actual knowledge of the puddle of rainwater at the time of Prado’s fall in 2009. (CR 106). Prado provided no evidence that there were prior complaints or reports of standing water or puddles of water on the outside hallway on the day of the incident. (CR 103-109). She provided no evidence of prior slip-and-falls due to the puddle of rainwater on the day of the incident. (Id.). And she provided no evidence of other similar incidents at the Latino Cultural Center from 2004 through June 2009. (Id.). Prado’s evidence only establishes the possibility that a dangerous condition can develop over time, which is insufficient to create a fact issue as to actual knowledge. Thompson, 210 S.W.3d at 603.
Prado did not present any evidence that the City had actual knowledge of the puddle of water at the time of the incident, so she has not raised a fact issue as to the City’s actual knowledge.
C. Prado had actual knowledge of the puddle of water.
Finally, the City challenged jurisdiction under the TTCA by producing evidence that Prado had actual knowledge of the puddle of water at the time of the incident. (CR 38-39, 45, 60, 100). The alleged defect, the puddle of rainwater, was open and obvious and a condition that Prado could have anticipated due to the weather conditions, where the evidence showed it had been raining throughout the day. (Id.) Prado was wearing flip-flops at the time of the incident and knew the concrete walkway was wet because it had been raining, and was therefore being careful. (CR 39-40, 60). In fact,
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Prado was carrying an umbrella at the time of the incident. (CR 46). The alleged defect was obvious – it was not hidden. To refute the City’s evidence, Prado referred to the deposition testimony of Drew, which is not even relevant to the issue of Prado’s knowledge of the puddle of rainwater at the time of her fall. (CR 106). Drew’s deposition testimony addresses periodic rain issues in 2004, maintenance handling of the rainwater, and the issue of warning signs at the entrance where Prado fell. (Id.) The deposition testimony does not create a fact issue as to whether Prado had actual knowledge of the puddle of rainwater at the time of her fall. (Id.).
Without evidence that the puddle of water was caused by anything other than rain, the puddle of water did not pose an unreasonable risk of harm as a matter of law. And without evidence that the City had actual knowledge of the puddle of rainwater at the time of her fall, or that Prado did not have actual knowledge of the puddle of water, Prado did not create a fact issue for her premise defect claim. Consequently, she cannot demonstrate a waiver of immunity.
III. The trial court erred in denying the City’s plea to the jurisdiction because Prado cannot plead a general negligence theory separate from or in the alternative to the premise liability claim.
The trial court erred when it failed to dismiss Prado’s claims for general negligence. In her first amended petition Prado alleged that the City was negligent in (1) failing to properly inspect and maintain the flooring area to discover the condition, (2) failing to maintain the floor in a reasonably safe condition, (3) failing to give warnings to Prado of the condition, (4) failing to place barricades warning of the condition, (5) failing to repair the premises which caused or contributed to Prado’s injuries, and (6) failing to
16
discover and remove the puddle of water within a reasonable time. (CR 113). With these general negligence allegations, Prado is attempting to recast a premise defect case into a cause of action for negligent use of real property. However, alternative theories of recovery are not permitted in premise defect cases. Miranda, 133 S.W.3d at 233. (rejecting the argument that the TTCA “creates two entirely separate grounds of liability” for negligent use or condition of real property and premise defect, but instead interpreting the premise defect provision to further limit the waiver of immunity for negligent use or condition of real property) (citing State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). In Miranda, the Texas Supreme Court concluded “that to allow a plaintiff to characterize
premise defect claims as claims caused by the negligent condition or use of personal or real property would render the Legislature’s heightened requirements for premise defect claims meaningless.” Miranda, 133 S.W.3d at 233. Once a claim is determined to be a premises defect, the claimant is limited to the provisions delineated by the section on premises defect and may not assert a general negligence theory. Id. (citing State v. Horton, 4 S.W.3d 53, 54 (Tex. App.—Tyler 1999, no pet.)).
Recently in Justus, this Court held that a plaintiff injured by an alleged premise defect on governmental property is limited to asserting a premise liability claim as provided by the TTCA and may not assert a general negligence theory. Justus, 329 S.W.3d at 665. In Justus, the plaintiff tripped and fell on a public sidewalk that was uneven. Id. at 664. She sued the city, asserting separate causes of action for (1) a premise defect, (2) a special defect, and (3) negligence. Id. The negligence claim was based on the city’s alleged failure to have the sidewalk repaired or marked as a hazard.
17
Id. at 665. The court held that with respect to the negligence claim, the city’s immunity
was not waived because plaintiff was limited to asserting a premise liability claim as provided by the TTCA, and the plaintiff’s negligence claim was subsumed within the premise liability claims. Id.
Thus, like in Justus, Prado’s complaint about the condition of the outside walkway
is a premise defect claim, and she cannot bring a general negligence claim. This Court should, therefore, dismiss Prado’s claims for negligence for want of jurisdiction.
CONCLUSION
Contrary to Prado’s argument, she is limited to asserting a premise liability claim as provided by section 101.022 of the TTCA and may not assert a general negligence theory. The City’s evidence conclusively established that under section 101.022 it owed Prado the duty owed to a licensee and that it did not breach that duty. Specifically, the City showed (1) the puddle of water, which accumulated due to rain, did not pose an unreasonable risk of harm; (2) the City did not have actual knowledge of the puddle of the water at the time of the incident; (3) and Prado had actual knowledge of the puddle of water at the time of the incident. Accordingly, Prado does not invoke the court’s subject-matter jurisdiction on a premise liability under the Act. For these reasons, the trial court’s order should be reversed and this case be dismissed.
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PRAYER
WHEREFORE, PREMISES CONSIDERED, the City respectfully requests that this court (1) reverse the trial court’s order and dismiss this case with prejudice for want of subject-matter jurisdiction, and (2) award the City such other relief to which it is justly entitled.
Respectfully submitted, THOMAS P. PERKINS, JR. Dallas City Attorney
s/Patricia M. De La Garza _______ Patricia M. De La Garza
Texas Bar No. 13897900
patricia.medrano@dallascityhall.com Barbara E. Rosenberg
Texas Bar No. 17267700
Barbara.rosenberg@dallascityhall.com James B. Pinson
Texas Bar No. 16017700
james.pinson@dallascityhall.com Assistant City Attorneys
City Attorney’s Office
1500 Marilla Street, Room 7D North Dallas, Texas 75201
Telephone: 214-670-3519 Telecopier: 214-670-0622
19
CERTIFICATE OF SERVICE
I hereby certify that on the 24th of February, 2012, a copy of the foregoing document was served, in accordance with Local Rule 3(B)(c), (1) through an electronic filing service provider (EFSP) upon each person below who has consented to e-service by registering for the e-service option with an EFSP or by setting up a complimentary account with www.texas.gov/efiling and (2) by first-class mail upon each person below who has not so consented:
Kate Smith
1205 Hall Johnson Road Colleyville, Texas 76034
s/Patricia M. De La Garza __________ PATRICIA M. DE LA GARZA
APPENDIX
Picture of outdoor walkway (CR 57) ... Tab 1 Picture of outdoor walkway (CR 95) ... Tab 2 Picture of outdoor walkway (CR 97) ... Tab 3 Order Denying Defendant City of Dallas’ Plea to the Jurisdiction (CR 123) ... Tab 4
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EXHIBIT
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FLORANIA PRADO Plaintiff,
v.
CITY OF DALLAS Defendant
NO. DGI0:0?220-K
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rN THE DTSTRICT
couRT
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s
$
I92ND
JUDICIAL DISTRICT
$
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oF,DALLAS
couNTY, TEXAS
Ll(!€(_,{ic0581
to Jurisdiction is
On
,,'*,o,*ffi.*"."*heardtheDefendant,sP|eatoJrrrisdictionand
;onsideration of the pteadings,
the plea, the Response, the arguments of counsel
and the evidence submitted
at the hearing, this co'rt is of the opinion thar such Plea should be OVERRULED.
IT IS THEREFOR.E
ORDERED that Defendant,s plea OVERRULED.
Kate Smith
llo-"y for plaintiffFlorania prado
1205 Hall Johnson Rd.
Colleryilfe,TX76034
Tel: (8t 7) 479-A565
Fax: (817) 479-0s38
ORDER OVERRULING
I
Signed
ot l\ I ,,u, , 1 , 2ot l.
Approved By:
ruDGE
PRESIDING
123
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