ACCEPTED 03-14-00326-CV 4076854 THIRD COURT OF APPEALS AUSTIN, TEXAS 2/9/2015 3:16:32 PM JEFFREY D. KYLE CLERK CAUSE NO. 03-14-00326-CV
IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS AUSTIN, TEXAS 2/9/2015 3:16:32 PM JEFFREY D. KYLE Clerk BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM AND TEXAS STATE UNIVERSITY,
Appellants, v.
STEPHANIE PAIGE STEINBACH, Appellee.
On Appeal From the 428th Judicial District Court of Hays County, Texas Trial Court Cause No. 10-0281 The Honorable R. Bruce Boyer, Judge Presiding
APPELLANTS' REPLY BRIEF
KEN PAXTON NICHELLE A. COBB Attorney General of Texas Assistant Attorney General State Bar Number 00786301 CHARLES E. ROY Tort Litigation Division, MC-030 First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 JAMES E. DAVIS (512) 463-2197 - Telephone Deputy Attorney General (512) 463-2224 - Facsimile for Defense Litigation
KARA L. KENNEDY Chief, Tort Litigation Division
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
INDEX OF AUTHORITIES .................................................................................... iii
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE (APPELLEE’S BRIEF, PAGE 15-30) ............................................................ 2
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER TWO (APPELLEE’S BRIEF, P. 31-35) ................................................................... 7
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE (APPELLEE’S BRIEF, P. 36-39) ................................................................... 9
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR (APPELLEE’S BRIEF, P. 36-39) .................................................................11
CONCLUSION ........................................................................................................13
PRAYER ..................................................................................................................13
CERTIFICATE OF COMPLIANCE .......................................................................15
CERTIFICATE OF SERVICE ................................................................................15
ii INDEX OF AUTHORITIES
CASES Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006) .....................2, 5, 6
City of Dallas v. Thompson, 210 S.W.3d 601 (Tex. 2006) (per curiam) .................. 4
City of Orange v. Jackson, 927 S.W.2d 784 (Tex.App.—Beaumont 1996, no writ) ...............................11
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) .....................................5, 6
Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp., 962 S.W.2d 193 (Tex. App. Houston [1st Dist.] 1998, pet. denied) ............ 6, 7
Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996) ................................. 8
Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992) ................................................ 8
Leleaux v. Hamshire-Fannet ISD, 835 S.W.2d 49 (Tex. 1992) ...................... 8
Stephen F. Austin University v. Flynn, 228 S.W.3d 653 (Tex. 2007) .....................10
Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781 S.W.2d 427(Tex.App.—Fort Worth, 1989.) ....................................10, 11 Texas Dept. of Parks & Wildlife v. M iranda, 133 S.W .3d 217 (Tex. 2004) .... 8
Wal-Mart Stores, Inc. v. Diaz, 109 S.W. 3d 584 (Tex.App.—Fort Worth 2003) ..... 6
Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex.1998) .............................. 5
Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002) .................................... 5
iii RULES Texas Rules of Appellate Procedure, Rule 38.3 ........................................... 1 STATUES Texas Civil Practice & Remedies Code §101.021...................................................11 Texas Civil Practice & Remedies Code §101.021(2) .................................... 8, 9 Texas Civil Practice & Remedies Code §101.056 ..................................................10 Texas Civil Practice & Remedies Code §101.061.............................................11, 12
iv CAUSE NO. 03-14-00326-CV
IN THE COURT OF APPEALS FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM AND TEXAS STATE UNIVERSITY,
Appellants, v.
STEPHANIE PAIGE STEINBACH, Appellee.
On Appeal From the 428th Judicial District Court of Hays County, Texas Trial Court Cause No. 10-0281 The Honorable R. Bruce Boyer, Judge Presiding
APPELLANTS' REPLY BRIEF
TO THE HONORABLE COURT OF APPEALS:
COMES NOW the Appellants, Board of Regents, Texas State
University System and Texas State University, pursuant to Rule 38.3, Texas
Rules of Appellate Procedure and submits this Brief in Reply to the
Appellee’s Brief. Appellee, Stephanie Paige Steinbach, has failed to allege
facts sufficient to establish that her claim for damages falls within the
waiver of Appellants’ immunity under the Tort Claims Act. The Court
should reverse the trial court’s judgment denying Appellants’ plea to the jurisdiction, motion for summary judgment and no evidence motion for
summary judgment and dismiss the case for lack of subject-matter
jurisdiction.
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE (APPELLEE’S BRIEF, P. 15-30)
A. Steinbach Has Not Offered Evidence That the Stairs Were an Unreasonably Dangerous Condition.
Steinbach produced no evidence that on the day in question, Appellants had
actual or constructive knowledge that a condition existed on its premises that
created an unreasonable risk of harm. In the instant case, Steinbach has alleged
both the rubberized material on the staircase and the spilled liquid substance
constituted an unreasonably dangerous condition. Steinbach has impermissibly
attempted to merge these allegations into one premises liability claim, when the
evidence shows that the only unreasonably dangerous condition in this case was
the spilled liquid substance on the staircase, not the staircase itself. Brookshire
Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).
In Brookshire Grocery Co, Plaintiff Mary Francis Taylor sued Brookshire
Grocery Co. for injuries she suffered to her knee when she slipped and fell on a
piece of partially melted ice on a tile floor in front of a self-service soft drink
dispenser in the grocery store. Id at. 407. Taylor argued that both the dispenser
and the particular piece of ice on which she slipped was an unreasonably
2 dangerous condition, and that Brookshire was well aware of the risks the dispenser
posed to customers. Id at 408. Brookshire argued the ice on which Taylor slipped
was the only unreasonably dangerous condition and that they did not have actual
knowledge of the ice on which Taylor slipped. Id at 409. They further argued
there was no evidence that the condition had existed long enough, the ice not
having fully melted, for them to have constructive notice. Id at 409. The Texas
Supreme Court agreed. The judgment of the court of appeals was reversed and
judgment was rendered in favor of Brookshire. Id at 409.
As stated, the only unreasonably dangerous condition in this case was the
spilled liquid substance on the staircase. Steinbach produced no evidence
Appellants had actual knowledge of the spilled liquid substance on the staircase
prior to her fall and Steinbach produced no evidence the spilled liquid was on the
staircase long enough for the Appellants to discover.
B. No Evidence Appellants Had Actual Knowledge of the Alleged Condition.
Belinda Frazier, the custodian assigned to the staircase where Steinbach fell,
testified she had no knowledge of the clear liquid substance on the stairs before
Steinbach’s accident. [CR 342]. She further testified she was not notified by a
Resident Advisor or any students of any spills on the stairs that day. [CR 342].
Even if the custodians had noticed, the Texas Supreme Court has expressly
stated that the possibility of an employee’s awareness of a problem on the premises
3 does not itself constitute actual knowledge. City of Dallas v. Thompson, 210
S.W.3d 601, 602 (Tex. 2006) (per curiam). In City of Dallas v. Thompson, a
plaintiff was injured when she tripped on a coverplate that had become loose and
protruded slightly from an airport floor. The Texas Supreme Court held that
without evidence showing how long the alleged protrusion had existed, the
proximity of the employees is no evidence of actual knowledge. Id at 603-04. The
Texas Supreme Court also held that evidence of past accidents more than three
years prior and evidence of a subsequent repair did not constitute actual
knowledge. Id at 604. Steinbach has failed to show that Appellants had actual
knowledge of the spilled liquid substance on the staircase in Sterry Hall prior to
her fall. Steinbach has not met her burden of proof on this critical jurisdictional
element.
C. No Evidence Appellants Had Constructive Knowledge of the Alleged Condition.
Steinbach concedes she does not have a “smoking gun” proving Appellants’
actual knowledge of an unreasonably dangerous condition and that the Court’s
focus should be on Appellants’ constructive knowledge of the dangerous condition
instead. (Appellee’s Brief Pages 8-9). Steinbach’s evidence, however, has also
failed to show Appellants had constructive notice of the spilled liquid substance on
the staircase leading to the laundry room in Sterry Hall prior to her fall.
4 For a property owner to have constructive notice of a premises defect, the
defect must have existed long enough for the owner or occupier to have discovered
it upon reasonable inspection. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,
814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936
(Tex.1998). To impose constructive knowledge when the owner or occupier did
not have actual knowledge and would not have discovered the dangerous condition
from a reasonable inspection is to dramatically alter premises law. CMH Homes,
Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000); see also Brookshire Grocery,
222 S.W.3d at 409.
Steinbach offered no evidence as to when the liquid was spilled on the
staircase. Nothing in the record indicates that Appellants should have been aware
that there was liquid spilled on the staircase leading to the laundry room at Sterry
Hall prior to Steinbach’s fall. Nothing in the record indicates that the custodians
who cleaned the area knew of the problem and failed to report it. Nothing in the
record indicates the Resident Advisor or any student informed the University of
any spills on the stairs on that day. [CR 342]. Likewise, there is no evidence that
Appellants’ employee spilled the clear liquid substance. [CR 314]. As such
Steinbach has not produced evidence demonstrating Appellants had constructive
knowledge of the spilled substance on the staircase prior to Steinbach’s fall.
5 D. Steinbach Has Not Alleged Evidence That Appellants Failed to Exercise Ordinary Care or That Appellants’ Failure Proximately Caused the Accident.
When a condition is not unreasonably dangerous and the proprietor did not
have actual or constructive notice of the defect, the proprietor by definition cannot
have failed to exercise ordinary care to warn against the defect, nor can that failure
have proximately caused the accident. The Texas Supreme Court has held that a
property owner must be on either actual or constructive notice of a defect before he
can be liable for failing to exercise ordinary care. See Wal-Mart Stores, Inc. v.
Diaz, 109 S.W. 3d 584 (Tex. App.—Fort Worth 2003); see also Brookshire
Grocery, 222 S.W.3d at 408-09; CMH Homes, 15 S.W.3d at 102. Because
Steinbach has not established facts sufficient to prove Appellants had actual or
constructive notice of the defect, she also cannot demonstrate that the Appellants
failed to exercise ordinary care or that such failure caused her accident.
E. Conclusion
Steinbach has not met her burden to allege facts establishing Appellants
knew or reasonably should have known of the spilled liquid substance on the
staircase leading to the laundry room at Sterry Hall at the time of her fall, she also
cannot establish Appellants failed to exercise ordinary care or that Appellants’
failure proximately caused her injuries for the reasons articulated. As set forth in
Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp., 962 S.W.2d 193, 197 (Tex.
6 App. Houston [1st Dist.] 1998, pet. denied), the plaintiff as the non-movant has the
burden to raise a triable issue on each element essential to the plaintiff’s case.
There being no evidence on a number of essential elements, even under the invitee
standard, Steinbach cannot assert a claim within the waiver of the Appellants’
immunity.
Issue Number One should be sustained and judgment rendered in favor of
the Appellants.
REPLY TO APPELLEE’S AGRUMENT ISSUE NUMBER TWO (APPELLEE’S BRIEF, P. 31-35)
Steinbach contends she has plead sufficient facts to show her claims fall
within the Act’s waiver of immunity because her claims are based on
negligence involving use or misuse of tangible personal property. Steinbach
alleges the rubberized material attached to the stairs and flooring leading to the
laundry room presented a negligent condition and use of tangible property that
proximately caused her injuries and damages. Steinbach asserts Appellants,
therefore, have waived their immunity from her suit under both a premises
liability and a general negligence theory of liability.
Under the Texas Tort Claims Act, Steinbach is barred from asserting
and submitting both premises defect and general negligence theories of
liability based on her allegation that she was injured after falling on a clear
7 liquid substance on the stairs leading to the laundry room in Sterry Hall.
(CR. Pages 313-314). Once a claim has been determined to involve a premise
defect, Steinbach is confined to pleading and proving a premises defect
theory of liability. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W .3d
217 (Tex. 2004). As Steinbach’s claim is arguably a premise defect claim,
Steinbach is limited to this cause of action and cannot claim or recover for
alleged use of tangible personal property pursuant to Section 101.021(2) of the
Texas Tort Claims Act.
In addition, even if the Court considered Steinbach’s general
negligence allegations as claims independent of a premises cause of action,
these allegations still would not waive the University’s immunity because the
allegations do not involve any negligent “use” of tangible personal property
by Appellants’ employees that allegedly caused Steinbach’s injuries. See
Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996); Leleaux v. Hamshire-
Fannet ISD, 835 S.W.2d 49 (Tex. 1992). As the Texas Supreme Court held in
Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992), a negligent use theory of
recovery requires that the plaintiff be harmed by or as a contemporaneous result of
the activity itself. Id at 264. Although Steinbach alleges she was injured by
Appellants’ previous act of putting rubber mats on the staircase, Steinbach was not
8 injured by any contemporaneous activity by Appellants.
As such, Steinbach has impermissibly attempted to re-cast her claim as
a negligent use or condition of tangible personal property. Because Steinbach’s
claim is arguably a premise defect claim, Steinbach is limited to this cause of
action and cannot claim or recover for alleged use of tangible personal property
pursuant to Section 101.021(2) of the Tort Claims Act. The trial court erred in
denying Appellants’ Plea to the Jurisdiction, Motion to Dismiss and No-Evidence
Motion for Summary Judgment on Steinbach’s general negligence allegations.
Issue Number Two should be sustained and judgment rendered in favor of
the Appellants.
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE (APPELLEE’S BRIEF, P. 36-39)
On page 11 of Steinbach’s brief, Steinbach concedes that the placement of
the hand rails on the left side of the stairwell and the use of rubberized material
leading to the laundry room are discretionary decisions, and therefore, not a waiver
of sovereign immunity under the Texas Tort Claims Act. Steinbach alleges a claim
for the Appellants’ negligent implementation of a policy carried out by the
Appellants.
To state a negligent implementation claim; however, Steinbach had to
identify a particular policy adopted by Appellants and state facts which raise a
claim that the policy was negligently carried out at the operational level. See
9 Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781 S.W.2d 427,
433 (Tex. App.—Fort Worth, 1989). Steinbach has failed to do so. Steinbach
failed to identify any specific policy of the Appellants which was negligently
implemented by Appellants or plead any facts which would demonstrate the
violation of such policy. In short, Steinbach never raised a claim of negligent
implementation of policy in her petitions.
The essence of Steinbach's allegation is the spilled liquid substance on the
staircase. Steinbach's attempt to separate Appellants’ design decisions regarding
the handrails and the choice of materials used on the stairs from her complained of
issue - the spilled liquid substance - makes no sense in light of the policy rationale
behind §101.056 to preclude courts from second-guessing the State's decision-
making process. Stephen F. Austin University v. Flynn, 228 S.W.3d 653, 657
(Tex. 2007). To say that the State is immune from suit for complaints regarding
the design of the stairs, but not for the condition that the design created, would
render §101.056 meaningless.
As Steinbach's allegations are merely complaints about an alleged
unreasonably dangerous condition caused by the clear liquid substance spilled on
the stairs in Sterry Hall, these allegations do not present a negligent
implementation theory of liability for which Appellants’ immunity would be
waived. Any claims by Steinbach implicating the staircase structure, design,
10 handrails or defective materials are barred by sovereign immunity. Moreover,
even if such a claim had been made, the assertion of a negligent implementation
theory of liability arises only after Steinbach has properly asserted a waiver of
immunity under Texas Civil Practice & Remedies Code §101.021, which she has
not. City of Orange v. Jackson, 927 S.W.2d 784, 786 (Tex. App.—Beaumont
1996, no writ).
Issue Number Three should be sustained and judgment rendered in favor of
Appellants.
REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR (APPELLEE’S BRIEF, P. 40)
There is no waiver of immunity based on premises constructed before 1970.
It is undisputed that the stairs in Sterry Hall of which Steinbach complains was
constructed prior to 1970 and have remained in substantially the same condition
since its completion. [CR 302]. Under §101.061 of the TTCA, there is no waiver
of immunity for premises defect claims related to structures built prior to 1970.
Regardless of Steinbach’s contentions of negligence concerning a premises defect,
Appellants maintains their entitlement to sovereign immunity to a claim based on
an act or omission that occurred before January 1, 1970. Tex. Civ. Practice and
Remedies Code Ann. §101.061.
In Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781
S.W.2d 427 (Tex. App.—Fort Worth, 1989.), boaters were killed when they struck
11 their heads on the underside of a bridge. A wrongful death action was brought
against several governmental defendants. In reversing a judgment in favor of the
Plaintiffs, the Court noted that the reservoir and bridge in question had been
completed by 1967 and had not been modified. Plaintiffs complained that the
deaths resulted from the failure to place warning lights on the low bridge.
Unconvinced by such argument, the Court held that the state cannot be held liable
under §101.061 of the TTCA based on the State’s failure to include lights, signs,
and safety features in the original pre-1970 design. The Appellees in Crossland,
like Steinbach, were asking this court to hold §101.061 does not apply to the
omission of safety devices because the State could have warned of the danger after
1970. Id at 433. The Fort Worth Court of Appeals held the plain language of
§101.061 does not admit this interpretation. Id at 433. In the instant case,
Steinbach’s failure to offer any evidence of any act or omission of Appellants or
the Appellants’ agents subsequent to 1970, unrelated to the original design of the
stairs in Sterry Hall, failed to penetrate Appellants’ veil of immunity outlined in
§101.061 of the TTCA.
As Appellants have conclusively established this affirmative defense, as a
matter of law, Issue Number Four should be sustained and judgment rendered in
favor of Appellants.
12 CONCLUSION
Appellants’ sovereign immunity under the Texas Tort Claims Act has not
been waived. The evidence in this case conclusively negates Steinbach’s
allegations that Appellants breached the duty of care under the Act with regard to
the spilled liquid substance on the staircase leading to the laundry room in Sterry
Hall which allegedly injured Steinbach. Steinbach presented no evidence that,
at the time of her accident, Appellants had actual knowledge of the presence
of the spilled liquid on the staircase leading to the laundry room in Sterry
Hall prior to her fall. Even if Steinbach was entitled to the heightened status of
an invitee at the time of her accident, Steinbach presented no evidence that the
Appellant should have been aware of the spilled liquid on the stairs leading to the
laundry room on the day of Steinbach’s fall. There is no applicable waiver of
Appellants’ sovereign immunity under the Act. This Court should reverse
the trial court’s order denying Appellants’ Third and Fourth Supplemental
Plea to the Jurisdiction, Motion for Summary Judgment and No-Evidence
Motion for Summary Judgment and dismiss Steinbach’s lawsuit for lack of
subject-matter jurisdiction.
PRAYER
WHEREFORE, PREMISES CONSIDERED the Appellants pray that
this Honorable Court reverse the order of the trial court denying the
13 Appellants’ Third and Fourth Supplemental Plea to the Jurisdiction, Motion
for Summary Judgment and No-Evidence Motion for Summary Judgment;
and, render judgment dismissing this cause of action with prejudice.
Further, Appellants pray that all costs, in the trial court and Court of
Appeals, be taxed against the Appellee. The Appellants further pray for all
other relief, legal and equitable, to which they may be justly entitled.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
KARA L. KENNEDY Chief, Tort Litigation Division
__________________________________ NICHELLE A. COBB Assistant Attorney General State Bar #00786301 Tort Litigation Division, MC-030 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463.2197 FAX: (512) 463.2224
14 CERTIFICATE OF COMPLIANCE
Relying on the word count function in the word processing software used to produce this document, I certify that the number of words in this Appellants' Reply Brief (excluding any captions, identify of the parties and counsel, statement regarding oral argument, table of contents, index of authorities, statement of the case, statement of issues presented, statement of jurisdiction, statement of procedural history, signature block, proof of service, certification, certificate of compliance, and appendix) is 2,847.
____________________________________ NICHELLE A. COBB Assistant Attorney General
CERTIFICATE OF SERVICE
I certify that on this, the 9th day of February, 2015 at approximately 3:00 P.M. I served a copy of the Appellants’ Reply Brief on the party listed below by electronic service concurrently with the electronic filing of the document. The electronic transmission of the document was reported as complete. My e-mail address is Nichelle.Cobb@texasattorneygeneral.gov and my fax number is (512) 457-4442:
Mr. Mark Cusack Via Electronic Service Attorney at Law 242 North Guadalupe Street San Marcos, Texas 78666 cusacklaw@centurytel.net
____________________________________ NICHELLE A. COBB Assistant Attorney General