Harris County v. Aaron Ruth Park

• Court: Court of Appeals of Texas
• Decided: July 25, 2023
• Docket: 01-22-00778-CV
• Status: Published

Opinion

Opinion issued July 25, 2023

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-22-00778-CV ——————————— HARRIS COUNTY, Appellant V. AARON RUTH PARK, Appellee

On Appeal from the 129th District Court Harris County, Texas Trial Court Case No. 2020-48949

MEMORANDUM OPINION

Appellee Aaron Ruth Park was injured when she fell down the stairs at the

Juergen’s Hall Community Center, owned by Harris County. Park sued Harris

County (the County) for various claims sounding in negligence and premises

liability. The County filed a combined plea to the jurisdiction and motion for summary judgment, asserting that her various negligence claims were subsumed

within her premises liability claim and that her premises liability claim failed as a

matter of law because she had actual knowledge of the alleged premises defect.

The trial court granted the motion in part, dismissing all of her claims with

prejudice except for the premises liability claim. In its sole issue in this

interlocutory appeal, the County contends that the trial court erred in denying its

plea to the jurisdiction on the premises liability claim. The County argues that it

showed that Park had actual knowledge of the condition of the steps she slipped

down and, thus, it was entitled to dismissal of Park’s premises liability claim.

We reverse the portion of the order denying the County’s plea to the

jurisdiction on Park’s premises liability claim and render judgment dismissing that

claim.

Background

Park attended an event hosted by her church at the Juergen’s Hall

Community Center. As she exited the Center, she fell down the steps located at the

front of the building and was severely injured. Park sued Harris County under the

Texas Tort Claims Act (TTCA), alleging causes of action for general negligence,

gross negligence, premises liability, special defect, attractive nuisance, and misuse

of tangible personal property. Park alleged that she was exiting Juergen’s Hall

“when she suddenly and unexpectedly tripped and fell down the stairs.” She further

2 alleged that the County “was aware of the extremely dangerous condition and

failed to warn of said condition,” but her pleadings did not specify what factors

made the stairs dangerous or defective.1

The County filed a plea to the jurisdiction and motion for summary

judgment asserting that Park’s negligence claims were subsumed by her premises

liability claim. The County further asserted that Park’s premises liability claim

failed as a matter of law. It argued that Park could not show that she lacked

knowledge of the dangerous condition of the stairs, as required by the TTCA. The

County pointed to Park’s deposition testimony, in which she stated that she had

been to Juergen’s Hall on previous occasions. She had “never liked the steps” and

had “always been careful” there. She stated that she had “never felt secure.” She

further stated that she heard comments from others prior to her fall about the

condition of the stairs: “They didn’t feel comfortable going up the steps. They felt

more comfortable coming down the steps [than] going up the steps, but it’s

because they tilted and they were different widths it seemed to be. I don’t know

that they were, but they seemed to be.” Park went on to describe her fall, testifying

in her deposition that she was injured as she exited the community center. She

reached the second step and “it was like the steps tilted. They were short, they

1 In her brief, Park argues that the stairs were out of compliance with applicable building codes, had dangerously small landings, and provided no access to the guardrail for people walking down them. The record, however, does not contain any similar allegations or evidence. 3 tilted, and the step was not the same as the other step.” She lost her balance and

fell. She “reach[ed] out to grab something to stop [herself from falling],” but she

fell on the wooden decking and was severely injured. The County contends that

this testimony established that she was aware of the condition of the stairs.

Park opposed the motion for summary judgment and plea to the jurisdiction.

She asserted that, because the church paid a “refundable clean-up damage deposit”

of $100, she was not a licensee but was instead an invitee. As such, she was not

required to prove that she lacked actual knowledge of the condition of the stairs.

The County, however, noted that the church’s check that was sent to the County as

a deposit was returned to the church following the event.

Park also filed a declaration clarifying her testimony, stating, “While I may

not have felt secure on those stairs, it does not mean that I felt the stairs were

dangerous or unreasonably dangerous. . . . I was not aware of the unreasonably

dangerous condition of the stairwell at Juergen’s Hall before the incident where I

fell going down them.”2

The trial court granted the County’s motion in part, ordering that Park’s

claims against the County for negligence, gross negligence, misuse of tangible

2 The County objected to this declaration as a “sham affidavit” that “is being used solely to manufacture a material issue of fact that conflicts with Park’s previous sworn testimony obtained through deposition.” The trial court never ruled on this objection.

4 personal property, attractive nuisance, and special defect be dismissed with

prejudice. It denied the County’s plea to the jurisdiction and motion for summary

judgment on the premises liability claim. The County appealed that order.3

Premises Liability Under the TTCA

In its sole issue, the County argues that the trial court erred in denying its

plea to the jurisdiction on Park’s premises liability claim.

A. Standard of Review

“Governmental immunity generally protects municipalities and other state

subdivisions from suit unless the immunity has been waived by the constitution or

state law.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d

506, 512 (Tex. 2019) (quoting City of Watauga v. Gordon, 434 S.W.3d 586, 589

(Tex. 2014)). The TTCA waives immunity for certain negligence claims against

governmental parties. See TEX. CIV. PRAC. & REM. CODE § 101.021. “A party suing

the governmental unit bears the burden of affirmatively showing waiver of

immunity.” McKenzie, 578 S.W.3d at 512.

Parties may raise a claim of immunity in a plea to the jurisdiction. Id.; Tex.

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). In

addition to challenging the plaintiff’s pleadings, a plea to the jurisdiction may

challenge the existence of jurisdictional facts or implicate the merits of the

3 See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(8), (f). 5 plaintiff’s cause of action. See Alamo Heights Indep. Sch. Dist. v. Clark, 544

S.W.3d 755, 770–71 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 635 (Tex. 2012) (holding that plea to jurisdiction may challenge

plaintiff’s pleadings by asserting that alleged facts do not affirmatively

demonstrate court’s jurisdiction).

We review a ruling on a plea to the jurisdiction de novo. See McKenzie, 578

S.W.3d at 512; Miranda, 133 S.W.3d at 226. When a plea to the jurisdiction

challenges jurisdictional facts, a trial court’s review “mirrors that of a traditional

summary judgment motion.” Tex. Dep’t of Pub. Safety v. Gaible, No. 01-22-

00405-CV, 2023 WL 2799069, at *2 (Tex. App.—Houston [1st Dist.] Apr. 6,

2023, no pet.) (mem. op.) (quoting Garcia, 372 S.W.3d at 635). “We take as true

all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor.” Id. (citing Miranda,

133 S.W.3d at 228). If the evidence is undisputed or fails to raise a fact issue, the

plea must be determined as a matter of law. Id. (citing Garcia, 372 S.W.3d at 635).

But if the evidence raises a fact issue about jurisdiction, the plea cannot be granted,

and a factfinder must resolve the issue. Id. (citing Miranda, 133 S.W.3d at 228).

Thus, to avoid dismissal, a plaintiff must establish the existence of a genuine

question of material fact on the jurisdictional issue. Id. (citing Clark, 544 S.W.3d

at 771).

6 B. Park’s Status

Relevant here, the TTCA waives immunity for “personal injury and death so

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 § 101.021(2); see State v.

Shumake, 199 S.W.3d 279, 283 (Tex. 2006) (“The Texas Tort Claims Act includes,

among other things, a limited waiver of the state’s immunity from suits alleging

personal injury or death caused by premises defects.”). Because premises liability

claims have heightened standards, such claims must be analyzed under the more

specific provisions in section 101.022 of the TTCA. Sampson v. Univ. of Tex. at

Austin, 500 S.W.3d 380, 386 (Tex. 2016). Under section 101.022, when 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 Shumake, 199 S.W.3d at 283.

The County argues that it owed Park the duty owed to a licensee. See TEX.

CIV. PRAC. & REM. CODE § 101.022 (providing that “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 use of the premises”). Park asserts that she

was an invitee, not a licensee, because the church hosting the event that she

7 attended paid to use the community center. See id. The record demonstrates that

the event’s organizer gave the County a check to hold as a deposit and that check

was returned to the church after the event.

The Court recently considered a similar issue and observed that “Texas

courts interpreting section 101.022(a) have determined that to constitute paying a

fee for the use of the premises, the fee must be paid specifically for entry onto and

use of the public premises.” Gaible, 2023 WL 2799069, at *4 (citing City of

Houston v. Crawford, No. 01-18-00179-CV, 2018 WL 4868306, at *3 (Tex.

App.—Houston [1st Dist.] Oct. 9, 2018, no pet.) (mem. op.); City of Dall. v.

Davenport, 418 S.W.3d 844, 847–48 (Tex. App.—Dallas 2013, no pet.)). Courts

have found invitee status when a plaintiff has paid a rental fee to use a city park or

when the plaintiff gained access to government-owned facilities through a paid

membership or tuition. See, e.g., Sullivan v. City of Fort Worth, No. 02-10-00223-

CV, 2011 WL 1902018, at *8 (Tex. App.—Fort Worth May 19, 2011, pet. denied)

(mem. op.) (holding that plaintiff was invitee because payment of rental fee to hold

wedding reception in city park after closing hours was payment for use of

premises); City of Dall. v. Patrick, 347 S.W.3d 452, 457 (Tex. App.—Dallas 2011,

no pet.) (holding that plaintiff was invitee because she obtained entry to city zoo

through her mother’s paid membership); Ogueri v. Tex. S. Univ., No. 01-10-00228-

CV, 2011 WL 1233568, at *3 (Tex. App.—Houston [1st Dist.] Mar. 31, 2011, no

8 pet.) (mem. op.) (holding that slip-and-fall plaintiff was invitee because payment

of tuition was payment for use of state-owned law school premises). However,

“payment that merely relates to the premises [does] not constitute payment ‘for the

use of the premises’ under the TTCA.” Gaible, 2023 WL 2799069, at *5 (quoting

Crawford, 2018 WL 4868306, at *3); see Davenport, 418 S.W.3d at 847–48

(holding that plaintiff who slipped and fell at airport was licensee because purchase

of airport ticket did not constitute payment for use of premises); Simpson v. Harris

Cnty., 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1997, no writ);

Garcia v. State, 817 S.W.2d 741, 743 (Tex. App.—San Antonio 1991, writ denied)

(holding that payment of driver’s license fees and fuel taxes did not confer invitee

status on plaintiff who sued for damages sustained in highway accident).

In this case, Park argues that she had invitee status because the church group

holding the event provided a check for $100 as a refundable deposit for potential

damage to the community center. This check was returned to the event organizer.

No fees were retained by the community center or the County. Thus, there is no

evidence that either the church or Park herself paid a fee to use the premises. We

conclude that the church group’s refunded security deposit does not constitute a

“claimant pay[ing] for use of the premises.” See TEX. CIV. PRAC. & REM. CODE

§ 101.022(a).

9 C. Park’s Jurisdictional Evidence

In its plea to the jurisdiction, the County argues that Park’s premises liability

claim fails as a matter of law, and, thus, she has failed to plead facts sufficient to

waive immunity under the TTCA. The County argues that Park did not show that

there is a question of fact about her knowledge of the condition of the steps. The

County urges us to reverse the trial court’s order denying the County’s combined

plea to the jurisdiction and motion for summary judgment as to the premises

liability claim.

The duty a landowner owes to a licensee on private property requires that “a

landowner not injure a licensee 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.” Sampson, 500 S.W.3d at 391 (quoting State Dep’t of Highways &

Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). The licensee-plaintiff

must show that: (1) a condition of the premises created an unreasonable risk of

harm to the licensee; (2) the owner actually knew of the condition; (3) the licensee

did not actually know of the condition; (4) the owner failed to exercise ordinary

care to protect the licensee from danger; (5) the owner’s failure was a proximate

cause of injury to the licensee. Id.; Gaible, 2023 WL 2799069, at *4. If the County

10 can show there was no evidence of one of these elements, then its plea to the

jurisdiction should be granted. See Sampson, 500 S.W.3d at 391.

The County asserts that Park cannot prove one of the elements of her claim

because the evidence showed that she was aware of the condition of the steps

before she fell. Her pleadings do not identify any particular factors that made the

steps hazardous. The County points to the lack of evidence that it had actual

knowledge of any condition of the steps that Park herself did not also have. Park

testified in her deposition that she had visited Juergen’s Hall on more than one

occasion. When asked if she had trouble with the steps on the way into the

building, she stated, “I’ve never liked the steps. . . . I was very careful. I’ve always

been careful there.” She reiterated later in her deposition that she had “never felt

secure [at] that entrance” because “the [steps were] tilted and they were different

widths, it seemed to be.” Thus, the evidence demonstrated that Park was aware of

the general condition of the stairs, and she had failed to put forward any pleadings

or evidence identifying problems with the stairs that the County knew about but

she did not.

Park nevertheless argues that, even if she is a licensee rather than an invitee,

there is a genuine issue of material fact as to whether she knew of the condition of

the stairs. She argues that her deposition testimony cannot be construed as a matter

of law as indicating that she was aware of the condition of the steps prior to her

11 fall. However, in her deposition testimony, she testified that she had used the stairs

on previous occasions, never felt secure on those stairs, and knew that she had to

be careful. She testified that, prior to her fall, she had heard others complain about

the stairs “because they tilted and they were different widths it seemed to be.”

Those are the same problems that she identified in connection with her own fall,

when she testified that she fell because “it was like the steps tilted. They were

short, they tilted, and the step was not the same as the other step.”

Park has not identified in her pleadings or in her summary judgment

evidence any particular condition of the steps that was not known to her based on

her previous use and knowledge about the stairs. Her later declaration stating in a

conclusory manner that she was not aware of the condition of the stairs does not

change this analysis. See, e.g., Padilla v. Metro. Transit Auth. Or Harris Cnty., 497

S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that

affidavits that state conclusions without providing underlying facts to support those

conclusions are not proper summary judgment evidence); Eberstein v. Hunter, 260

S.W.3d 626, 630 (Tex. App.—Dallas 2008, no pet.) (holding that conclusory

statements in affidavits are not competent summary judgment evidence because

they are not susceptible to being readily controverted).4

4 The County failed to obtain a ruling on its objection that Park’s declaration should be struck as a sham affidavit. See Bates v. Pecos Cnty., 546 S.W.3d 277, 285 (Tex. App.—El Paso 2017, no pet.) (noting that objection based on sham affidavit rule is 12 We conclude that Park failed to demonstrate that a question of fact existed as

to whether she had actual knowledge of the stairs’ dangerous condition.

Accordingly, the County’s governmental immunity has not been waived in this

case, and we hold that the trial court erred by denying the County’s plea to the

jurisdiction on Park’s premises liability claim.

Conclusion

We reverse the portion of the trial court’s order denying the County’s plea to

the jurisdiction on Park’s premises liability claim. We render judgment dismissing

her claim.

Richard Hightower Justice

Panel consists of Justices Hightower, Rivas-Molloy, and Farris.

attack on form of affidavit, rather than its substance, such that it must be first addressed by trial court); see also Lujan v. Navistar, Inc., 555 S.W.3d 79, 85–90 (Tex. 2018) (recognizing sham affidavit rule and stating that Rule 166a requires trial court to find genuine issue of material fact). Even considering the substance of her declaration, however, Park’s conclusory statement that she was not aware of the unreasonably dangerous condition of the stairs fails to raise a genuine question of material fact on this issue. See Vaccaro v. Raymond James & Assocs., Inc., 655 S.W.3d 485, 491 (Tex. App.—Fort Worth 2022, no pet.) (“[C]onclusory evidence is considered substantively defective, and a party need not object to substantively- defective evidence to complain about it on appeal.”). 13