Opinion issued October 9, 2018
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-18-00179-CV ——————————— CITY OF HOUSTON, Appellant V. MARION CRAWFORD, Appellee
On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2016-03361
MEMORANDUM OPINION
This is a slip-and-fall case. Appellant, City of Houston (“the City”),
challenges the trial court’s order denying its plea to the jurisdiction in the premises
liability suit brought by appellee, Marion Crawford (“Crawford”). In one issue, the City contends that the trial court erred in denying its plea to the jurisdiction because
Crawford’s claims are barred by governmental immunity. We affirm.
Background
On June 18, 2015, Crawford was traveling from Little Rock, Arkansas to San
Francisco, California on United Airlines with a layover in Houston, Texas.
According to her pleadings, Crawford was walking through Terminal A at George
Bush Intercontinental Airport when she “was caused to slip-and-fall due to a
negligently maintained floor.”
On January 19, 2016, Crawford filed suit against the City alleging premises
liability.1 On February 23, 2018, the City filed a plea to the jurisdiction in which it
sought dismissal of Crawford’s claims against it based on governmental immunity,
asserting that the City lacked actual knowledge of the defect. In support of its plea,
the City attached the affidavit of Dana Growden, the airport supervisor for Landside
Operations for the Houston Airport System, on the date in question.
On March 5, 2018, Crawford filed a fourth amended petition and a response
to the City’s plea to the jurisdiction, in which she argued that the City had actual
knowledge of the defective floor. To her response, Crawford attached, among other
things, excerpts of the deposition testimony of her husband, Robert. On March 6,
2018, the City filed a reply to Crawford’s response to the City’s plea, arguing that
1 United Airlines is a named defendant but is not a party to this appeal. 2 Crawford affirmatively negated jurisdiction by alleging that the City placed cones
around the greasy area and, in doing so, warned her of the dangerous condition.
Following a hearing, the trial court entered an order denying the City’s plea.
This interlocutory appeal followed.
Standard of Review
“Whether a court has subject matter jurisdiction is a question of law.” Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to
the jurisdiction challenges the trial court’s authority to determine the subject matter
of the action. See Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
The standard of review of an order granting or denying a plea to the jurisdiction
based on governmental immunity is de novo. See Tex. Nat. Res. Conservation
Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 2002).
In reviewing a trial court’s ruling on a plea to the jurisdiction, we do not look
to the merits of a case but, rather, consider only the pleadings and the evidence
relevant to the jurisdictional inquiry, and we construe the pleadings liberally in favor
of conferring jurisdiction. See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867
(Tex. 2002). “If a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised, as the trial court is required to do.” See Harris
Cty. v. Luna–Prudencio, 294 S.W.3d 690, 696 (Tex. App.—Houston [1st Dist.]
3 2009, no pet.). “If the evidence creates a fact question regarding the jurisdictional
issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue
will be resolved by the fact finder.” Id. “However, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
rules on the plea to the jurisdiction as a matter of law.” Miranda, 133 S.W.3d at 228.
Texas Tort Claims Act
Sovereign immunity and its counterpart for political subdivisions of the State,
governmental immunity, exist to protect the State and its political subdivisions,
including municipalities, from lawsuits and liability for money damages. See
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); see
also Reata Constr. Corp. v. City of Dall., 197 S.W.3d 371, 374 (Tex. 2006).2 The
State, its agencies, and its subdivisions generally enjoy sovereign immunity from
tort liability unless immunity has been waived. See TEX. CIV. PRAC. & REM. CODE
ANN. §§ 101.001(3)(A)–(B) (West Supp. 2017), 101.025 (West 2011); Tex. Dep’t of
Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). The Legislature granted a limited
waiver of immunity in the Texas Tort Claims Act (“TTCA”), which allows suits to
2 “Governmental immunity is comprised of immunity from both suit and liability.” City of Dall. v. Albert, 354 S.W.3d 368, 373 (Tex. 2011). “Immunity from liability protects entities from judgments while immunity from suit deprives courts of jurisdiction over suits against entities unless the Legislature has expressly consented[.]” Id. 4 be brought against governmental units in limited circumstances. Tex. Dep’t of
Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).
The TTCA permits suit against governmental units for personal injuries
“caused by a condition or use of tangible personal or real property if the
governmental unit would, were it a private person, be liable to the claimant according
to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West 2011).
Immunity from liability for premises defects is generally waived under section
101.021(2) because premises defects arise from a condition of real property. See id.
§§ 101.021(2), .022(a) (addressing duty owed for premises defects); Ogueri v. Tex.
S. Univ., No. 01–10–00228–CV, 2011 WL 1233568, at *3 (Tex. App.—Houston [1st
Dist.] Mar. 31, 2011, no pet.) (mem. op.).
Discussion
The City contends that the trial court erred in denying its plea to the
jurisdiction because Crawford’s claims do not fall within the waiver of immunity
under the TTCA. It argues therefore that the trial court lacked subject matter
jurisdiction.
A. Crawford’s Status as Invitee or Licensee
We first address the City’s contention that it owed Crawford the duty owed to
a licensee rather than an invitee.
5 “The type of duty owed a plaintiff is part of the waiver analysis under the
TTCA.” City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no
pet.) (citing TEX. CIV. PRAC. & REM. CODE § 101.021–.022). Section 101.022(a)
provides that “[i]f a claim arises from a premises defect, the governmental unit owes
to the claimant only the duty that a private person owes to a licensee on private
property, unless the claimant pays for the use of the premises.” TEX. CIV. PRAC. &
REM. CODE § 101.022(a); see also Seppy, 301 S.W.3d at 441. “If the plaintiff pays
for the use of the premises, the governmental unit owes the plaintiff the duty owed
to an invitee.” Seppy, 301 S.W.3d at 441. The duty owed a licensee requires the
landowner to avoid injuring the claimant “by willful, wanton, or grossly negligent
conduct, and that the owner use ordinary care either to warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and the licensee
is not.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237
(Tex. 1992). “The duty owed an invitee ‘requires an owner to use ordinary care to
reduce or eliminate an unreasonable risk of harm created by a premises condition of
which the owner is or reasonably should be aware.’” Seppy, 301 S.W.3d at 441
(quoting Payne, 838 S.W.2d at 237).
At the hearing on the City’s plea, Crawford argued that she should be regarded
as an invitee for purposes of analyzing her premises liability defect claim because,
as a paying customer of United Airlines, she purchased a plane ticket which included
6 access to the airport. “[I]nvitee status requires payment of a specific fee for entry
onto and use of public premises[.]” City of Dall. v. Davenport, 418 S.W.3d 844, 847–
48 (Tex. App.—Dallas 2013, no pet.). However, a fee that merely relates to the
premises is not sufficient under the TTCA to constitute payment for use of the
premises. See id. at 848–49 (concluding that neither claimant’s payment to park his
car in airport parking garage nor his purchase of airline ticket constituted fee paid
specifically for entry onto and use of terminal in area where he fell and, therefore,
claimant was not invitee); see also Churchman v. City of Hous., No. 01–96–00211–
CV, 1996 WL 544250, at *2–3 (Tex. App.—Houston [1st Dist.] Sept. 26, 1996, writ
denied) (not designated for publication) (concluding that claimant who paid to park
in airport parking garage had paid for use of parking garage but not for use of airport
terminal where she fell). Crawford was a licensee at the time of the accident, and
the City owed her the duty owed to licensees.
B. Special or Ordinary Premises Defect
We next consider the City’s assertion that Crawford’s claims constitute an
ordinary defect rather than a special defect.
Under the TTCA, the governmental entity’s standard of care depends upon
whether the claim arises from an ordinary premise defect or a special defect. See
TEX. CIV. PRAC. & REM. CODE § 101.022; City of Grapevine v. Roberts, 946 S.W.2d
841, 843 (Tex. 1997); Wigfall v. Tex. Dep’t of Criminal Justice, 137 S.W.3d 268,
7 276 (Tex. App.—Houston [1st Dist.] 2004, no pet.). If a “special defect” creates an
injury-causing condition, the governmental entity owes a claimant the same duty that
a private landowner owes an invitee. Roberts, 946 S.W.2d at 843. If an ordinary
premise defect causes an injury, the governmental entity owes the claimant the same
duty that a private landowner owes a licensee. See TEX. CIV. PRAC. & REM. CODE
§ 101.022; Roberts, 946 S.W.2d at 843.
“The Legislature does not define special defect but likens it to conditions
‘such as excavations or obstructions on highways, roads, or streets.’” Univ. of Tex.
v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010) (quoting TEX. CIV. PRAC. & REM. CODE
§ 101.022(b)); see also Cty. of Harris v. Eaton, 573 S.W.2d 177, 178–80 (Tex. 1978)
(construing “special defect” as including those defects of the same kind or class as
those expressly mentioned in the statute). In Denton County v. Beynon, the Texas
Supreme Court reaffirmed that conditions can be special defects “only if they pose
a threat to the ordinary users of a particular roadway.” 283 S.W.3d 329, 331 (Tex.
2009) (citing Payne, 838 S.W.2d at 238 n.3). Numerous courts have determined that
a slippery floor condition constitutes an ordinary premise defect. See, e.g., Nunley
v. Tyler Cty., No. 09-06-049CV, 2007 WL 2002913, at *2 (Tex. App.—Beaumont
July 12, 2007, no pet.) (mem. op.) (“A slippery floor condition is not a special
defect.”); Wigfall, 137 S.W.3d at 276 (concluding that slippery shower floor in
prison unit was ordinary defect); Blankenship v. Cty. of Galveston, 775 S.W.2d 439,
8 440–42 (Tex. App.—Houston [1st Dist.] 1989, no writ) (holding slippery algae
growth on stairs of Galveston seawall was ordinary defect and not special defect).
Crawford’s claim concerns an ordinary premise defect.
C. Crawford’s Premises Defect Claim
The City argues that Crawford’s premises defect claim does not fall within the
TTCA’s waiver for ordinary premises defects because she (1) has not shown that the
City had actual knowledge of the allegedly “slippery” or “greasy” floor and (2)
negated jurisdiction by alleging and arguing that the City exercised ordinary care to
protect her from the dangerous condition by warning her of the defective floor.
“A property possessor must not injure a licensee by willful, wanton, or
grossly negligent conduct, and must use ordinary care either to warn a licensee of a
condition that presents an unreasonable risk of harm of which the possessor is
actually aware and the licensee is not, or to make the condition reasonably safe.”
See Cty. of Cameron v. Brown, 80 S.W.3d 549, 554–55 (Tex. 2002). To prevail on
her premises liability claim under a licensee theory, Crawford has to prove that (1)
a condition of the premises created an unreasonable risk of harm to Crawford; (2)
the City actually knew of the condition; (3) Crawford did not know of the condition;
(4) the City failed to exercise ordinary care to protect Crawford from the danger by
failing to adequately warn Crawford of the danger and failing to make the condition
9 reasonably safe; and (5) the City’s failure proximately caused Crawford’s injury.
See State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996); Wigfall, 137 S.W.3d at 276.
1. Actual Knowledge
The City argues that it did not have actual knowledge of the allegedly
“slippery” or “greasy” floor. Thus, it argues, Crawford has failed to establish a
waiver under the TTCA for her premises defect claim.
To prove actual knowledge, the licensee must show that the owner actually
knew of a “dangerous condition at the time of the accident.” City of Corsicana v.
Stewart, 249 S.W.3d 412, 413–14 (Tex. 2008) (per curiam) (“Actual knowledge
requires knowledge that the dangerous condition existed at the time of the accident,
as opposed to constructive knowledge which can be established by facts or
inferences that a dangerous condition could develop over time.”). In determining
whether a landowner has actual knowledge of a dangerous condition, “courts
generally consider whether the premises owner has received reports of prior injuries
or reports of the potential danger presented by the condition.” Univ. of Tex.-Pan
Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam). “Lack of notice of
similar accidents from third parties, however, does not conclusively negate actual
knowledge.” Seppy, 301 S.W.3d at 444. “Actual knowledge of an unreasonably
dangerous condition can sometimes be proven through circumstantial evidence.” Id.
(citing City of Austin v. Leggett, 257 S.W.3d 456, 476 (Tex. App.—Austin 2008,
10 pet. denied)). Circumstantial evidence establishes actual knowledge only when it
“either directly or by reasonable inference” supports that conclusion. State v.
Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002); see also City of San Antonio v.
Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996).
In its plea as on appeal, the City contends that the evidence establishes that it
did not have actual knowledge of the allegedly slippery or greasy floor. In support
of its contention, the City relies on the affidavit of Dana Growden, the airport
supervisor for Landside Operations for the Houston Airport System. Growden
averred that she reviewed the records and reports in the Airport Safety and
Operations Compliance System (“ASOCS”) and found “no records or reports
concerning notice of a dangerous condition, including grease or other liquid or
foreign substance, or of any person slipping and falling or any incidents, in Terminal
A for June 18, 2015,” or for the six months prior to that date.
In her response to the City’s plea, Crawford argued that the City, as the entity
responsible for cleaning and maintaining the terminal floors, had actual knowledge
of the dangerous condition. Crawford attached to her response the deposition
testimony of her husband, Robert, who was travelling with her on the date of the
accident. Robert testified that, prior to Crawford’s fall, he was walking ahead of her
in the terminal and observed cones placed around a greasy area on the floor.
Indulging every reasonable inference and resolving any doubts in Crawford’s favor,
11 we conclude that Crawford has raised a jurisdictional fact issue regarding the City’s
knowledge of a premises defect. See Miranda, 133 S.W.3d at 228.
2. Exercise of Ordinary Care
The City also contends that Crawford affirmatively negated jurisdiction by
alleging and arguing in her amended pleadings that the City set down cones to warn
of the defective floor. In doing so, the City argues, Crawford conceded that the City
discharged its duty by adequately warning her of the dangerous condition.
The duty owed to licensees for an ordinary defect requires a landowner to use
ordinary care to protect them by either adequately warning them of the condition or
making the condition safe. See Payne, 838 S.W.3d at 237. “To be adequate, a
warning must be more than a general instruction such as ‘be careful’; the warning
must notify of the particular condition.” Henkel v. Norman, 441 S.W.3d 249, 252
(Tex. 2014); see Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—
Texarkana 2010, no pet.) (holding wet floor warning sign and verbal warning “‘to
be careful’ because the ‘floor may be a little damp’” was adequate as matter of law
to discharge property owner’s duty); Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d
367, 369–71 (Tex. App.—Houston [14th Dist.] 2002, pet. denied) (concluding
warning by cashier to customer to “watch the wet spot” was adequate warning as
matter of law). “Warnings must be taken in context of the totality of the
circumstances.” Henkel, 441 S.W.3d at 252 (concluding that homeowner’s
12 statement, “don't slip,” to mailman “could only have been taken by a reasonable
person as a warning of a specific condition—a slippery walking surface” caused by
freezing temperatures).
Crawford argues that although the City placed cones on the floor, it failed to
adequately warn of the dangerous condition because the cones failed to encompass
the entire defective area, and that she slipped and fell outside the coned area. She
further asserts that if the City had cleaned the greasy floor to make it dry and safe,
then her accident would not have happened.3 In support of her position, Crawford
relies on Robert’s testimony and a diagram Robert drew that was attached as an
exhibit to his deposition transcript.
Robert testified, in pertinent part, as follows:
Q: And so when you entered [the concourse], you observed the cones?
A: Uh-huh.
Q: And did you observe the grease that the cones were blocking?
Q: Did you observe the grease on this side of the cones here?
3 In its plea, the City did not address the second prong of the fourth element, that is, whether it made the condition reasonably safe. State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (stating fourth element of premises liability claim is “defendant failed to exercise ordinary care to protect plaintiff from danger, by both failing to adequately warn plaintiff of the condition and failing to make that condition reasonably safe”). 13 A: Well, more than likely, yeah.
Q: Did you observe the grease outside the cones?
A: No, I didn’t observe the grease outside the cones. I didn’t see that until I got back.
Q; And when you got back, you saw the grease outside the cones?
Robert’s diagram shows the greasy area outside of the cones and that Crawford fell
outside the coned area.
Accepting as true all evidence favorable to Crawford, indulging all inferences
in her favor, and resolving all doubts in her favor, we conclude that Crawford has
raised a fact issue regarding whether the City adequately warned her of the extent of
the dangerous condition. Because Crawford presented evidence raising a fact
question regarding this element of her premises liability claim, the trial court
properly denied the City’s plea to the jurisdiction. See Luna-Prudencio, 294 S.W.3d
at 696.
We overrule the City’s issue.
14 Conclusion
We affirm the trial court’s order denying the City’s plea to the jurisdiction on
Crawford’s premise liability claim.
Russell Lloyd Justice
Panel consists of Justices Keyes, Bland, and Lloyd.