ACCEPTED
03-14-00749-CV
4377534
THIRD COURT OF APPEALS
AUSTIN, TEXAS
3/4/2015 5:26:08 PM
JEFFREY D. KYLE
CLERK
NO. 03-14-00749-CV
IN THE COURT OF APPEALS FOR THE FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT, AUSTIN3/4/2015 5:26:08 PM
JEFFREY D. KYLE
Clerk
THE UNIVERSITY OF TEXAS AT AUSTIN,
APPELLANT
V.
WILLIAM A. BELLINGHAUSEN, JR.,
APPELLEE
__________________________________________________________________
On Appeal from the 345th Judicial District Court of Travis County
__________________________________________________________________
APPELLEE’S BRIEF
__________________________
Counsel for Appellee
Robert L. Ranco
SBN: 24029785
The Carlson Law Firm, PC
11606 N. IH-35
Austin, TX 78753
(512) 346-5688
(512) 719-4362 (fax)
Rranco@carlsonattorneys.com
Table of Contents
TABLE OF AUTHORITIES .....................................................................................2
SUMMARY OF THE ARGUMENT ........................................................................5
ARGUMENT .............................................................................................................9
I. Standard of Review .............................................................................................9
II. There Is Evidence That UT-Austin Knew That An Unreasonably Dangerous
Condition Existed At The Place And Time Bellinghausen Fell ............................9
A. Direct Evidence Exists That UT-Austin Knew That An Unreasonably
Dangerous Condition Existed Mere Hours Before The Incident In Question ..10
B. Circumstantial Evidence Creates a Better Picture of Appellant’s Knowledge
of the Dangerous Condition ..............................................................................13
C. Officer Gonzalez’s Report Creates A Fact Issue Regarding Whether UT-
Austin Knew Of The Unreasonably Dangerous Condition ..............................17
1. Henry Saw The Dangerous Condition ..........................................................17
2. Officer Gonzalez Identified The Same Protruding Crack ............................18
3. The Inattentiveness Is A Fact Question, And Circumstantial Evidence
Supports Knowledge Of The Crack ..................................................................20
4. Henry Saw Someone Fall On The Crack And Knew That Cracks Existed All
Over The Campus. Therefore A Reasonable Jury Could Find That Henry
Knew Of The Dangerous Condition, But Bellinghausen Did Not. ..................21
5. Henry’s “Clarification” Creates A Fact Issue ...............................................22
PRAYER ..................................................................................................................24
CERTIFICATE OF SERVICE ................................................................................25
CERTIFICATE OF COMPLIANCE .......................................................................26
1
TABLE OF AUTHORITIES
Cases
Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989) ...................................................9
City of Corsicana, v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008)............... 10, 15
City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) .............................14
City of Houston v. Harris, 192 S.W.3d 167 (Tex. App.—Houston [14th Dist.]
2006, no pet.) ........................................................................................................13
City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996).............. 11, 16
Hammerly Oaks Inc. v. Edwards, 958 S.W.2d 387, 392, 392 (Tex. 1997) .............17
Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex 2001) ..................................................9
Marathon Corp v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003) ............... 9, 17, 19, 20
Reyes v. City of Laredo, 335 S.W.3d 605, 608-609 (Tex. 2010).............................14
Rice Food Market, Inc. v. Hicks¸ 111 S.W.2d 610, 613 (Tex. App.—Houston [1st
Dist.] 2003, pet. denied) ................................................................................ 13, 14
State v. Gonzalez, 82 S.W.3d 322. 330 (Tex. 2002) ................................................10
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.2d 217, 227 (Tex. 2004) .......9
University of Texas-Pan American, v. Aguilar, 251 S.W.3d 511 (Tex. 2008) ........14
Statutes
TEX. R. CIV. P. 266a .................................................................................................11
Tex. R. Evid. 702 .....................................................................................................17
2
STATEMENT REGARDING ORAL ARGUMENT
Oral argument would likely not assist the Court in the instant case. The
existence of a fact question regarding actual notice is clear. Regarding whether or
not Appellant had actual knowledge the witness testified:
Q. And then towards the bottom it says, “A facility staff member, David
Henry was working nearby all morning and said that he saw another person
trip and fall on the same protruding crack about 9:00 A.M.” Do you
remember telling the officer that?
A. Yes Sir. (CR 266; 40:1-6).
Granting oral argument and thus intimating that the court needs further explanation
on this point would only serve to validate the outrageous suggestions and prism of
truth through which the Defendants present their motion. Nevertheless, Appellee
is prepared for oral argument if the court deems it necessary.
3
NO. 03-14-00749-CV
IN THE COURT OF APPEALS FOR THE
THIRD JUDICIAL DISTRICT, AUSTIN
THE UNIVERSITY OF TEXAS AT AUSTIN,
APPELLANT
V.
WILLIAM A. BELLINGHAUSEN, JR.,
APPELLEE
On appeal from the 345th Judicial District Court of Travis County
Appellee’s Brief
TO THE HONORABLE THIRD COURT OF APPEALS:
All credibility, all good conscience, all evidence of truth comes only from
the senses.
- Friedrich Nietzsche
When David Henry said “Right there” it can mean “right there.” That a
witness stated that something occurred “right there,” and that statement may have
been altered, clarified, or even retracted, the original statement only points to that
issue of credibility. A reasonable jury could determine that right there means right
there. As credibility of a witness is the definitive jury issue, it is for the jury to
decide whether or not to trust Henry’s initial statement or to grant greater weight to
4
the clarification. That the witness statement could be interpreted to mean different
things does not mean that no reasonable fact finder could determine that Appellant
had knowledge of the unreasonably dangerous condition.
It is undisputed that an employee of The University of Texas at Austin saw
someone fall in the general area where Mr. Bellinghausen fell mere hours before
the incident in question. It is also undisputed that he told the investigating officer
immediately following the incident that he saw someone fall “right there” and that
he fell on “the same protruding crack.” Relying on this testimony, any reasonable
fact finder could find Henry saw the incident occur on the same crack. Because
Henry saw someone fall on the same crack he and UT-Austin had actual
knowledge of the unreasonably dangerous condition. Therefore Defendant’s Plea
to the Jurisdiction was properly denied.
SUMMARY OF THE ARGUMENT
The argument can best be summarized by the opinion of the trial court. In a
letter accompanying the order, the court reasoned:
There is evidence that the University had actual
knowledge of the hazard. It is rare to have one person
witness two people fall in any proximity to one another.
Even rarer to have the witness’ recorded statement at the
scene. Corrections, qualifications, or clarifications cannot
undo the factual question. Credibility becomes the issue.
(CR 315).
5
This is a rare fact issue. Premises cases so often revolve around circumstantial
evidence to create actual knowledge. This is not that case. An employee of the
Appellant saw someone fall, on the same crack mere hours before the incident in
question. As part of a statement to the police he was recorded to say that someone
fell “right there.” The police officer, to whom the witness spoke, identified that
Bellinghausen fell on the same protruding crack as the prior fall. A reasonable fact
finder could very easily read the phrase “right there” and “the same protruding
crack” to mean those plain language phrases and that Appellant had knowledge of
the unreasonably dangerous condition prior to the incident in question. Therefore,
Appellant’s plea to the jurisdiction was properly denied.
Pragmatic organization of the relevant evidence would be to separate the
evidence into “pre-deposition evidence,” i.e., the evidence that was available and
undisputed before the deposition of David Henry, and “deposition evidence,” i.e.,
the modifications Mr. Henry made to that evidence during his deposition.
The pre-deposition evidence consists primarily of information available in
the police report and on the audio recording from the scene of the incident. In
reviewing these items, the following are uncontroverted:
1) Mr. Henry told the police officer at the scene that Mr. Bellinghausen’s fall
was the second time today that someone had fallen. (CR 276;50:10)
2) Mr. Henry told the police office that the guy who fell earlier fell “right
there.” (CR 276; 50:20-23)
6
3) Mr. Henry told the police officer at the scene he saw another person trip and
fall on the same protruding crack about 9:00 a.m. (CR 266; 40:1-6)
4) Mr. Henry saw someone fall around “right there” around 9:00 a.m. (CR 279;
53:7-10)
5) Mr. Henry said the other person who fell was in his 30s or 40s. (CR 279;
53:11-15)
6) Mr. Henry saw the other guy fall on all fours. (CR 279; 53:16-18)
7) Mr. Henry told the police officer “We’ve got a lot of [uneven expansion
joints] on campus.” (CR 281; 55: 9-11)
8) The investigating police officer, who had the benefit of Mr. Henry’s words,
as well as everything else incumbent in personal interaction with an
eyewitness such as nonverbal communication, wrote the report indicating
that another person had fallen, pursuant to Mr. Henry’s description, on the
“same protruding crack” earlier.
Nothing in the police report nor on the audio recording suggests that Mr. Henry’s
understanding that the earlier fall occurred on the same protruding crack was a new
realization after the Bellinghausen fall. There is no indication that Henry realized
the condition existed only after the second fall.
Moreover, the fact finder must ask herself: Why did Mr. Henry leave the
scene of his work to talk to the investigating police officer at the scene of the
Bellinghausen fall? This fall occurred outside of Mr. Henry’s work zone at U.T.
(CR 249; 23: 7-8) Mr. Henry did not witness the fall as he had witnessed the earlier
fall. Mr. Henry did nothing to assist Mr. Bellinghausen. Mr. Henry has no medical
training. EMS and police were on the scene to take care of the injured man. The
sole reason Mr. Henry left his post and talked to the police officer- indeed, the only
thing he accomplished during that detour from primary duties- was to inform the
7
investigating officer that this was the second fall of the day “right there” on the
“same protruding crack.”
All of the pre-deposition evidence supports a dispositive finding as to actual
notice prior to the Bellinghausen fall. There is no genuine issue of material fact on
this issue prior to the Henry deposition. All evidence indicates that Henry and UT-
Austin knew after the first fall that an attentive, phoneless pedestrian tripped on the
same dangerous crack hours before Bellinghausen.
It is only Henry’s deposition testimony, three years after the incident that re-
casts this evidence and where we first encounter the notion of a possible later
understanding of the dangerous condition. It is in the deposition that Mr. Henry,
for the first time, suggests that the first fall involved a potentially distracted man
using his cell phone. None of this information was conveyed to the police officer at
the scene. Mr. Henry, who was so intent at the scene of the fall to assist the officer
in his understanding by drawing parallels between the two falls, had a decidedly
different approach after being prepped for deposition by his attorneys. It is only
this change that raises the fact issue.
There lies the fact issue. A jury could rely on the earlier statement where he
told the officer that someone fell on the same protruding crack, and determine that
knowledge arose prior to the incident in question. That a fact issue exists means
the Plea to the Jurisdiction was properly denied.
8
ARGUMENT
I. Standard of Review
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, the court can consider relevant evidence to resolve the issues raised. Tex.
Dep’t of Parks & Wildlife v. Miranda, 133 S.W.2d 217, 227 (Tex. 2004). If the
evidence presented creates a fact question then the court many not grant the plea.
Id. at 228. All evidence favorable to the nonmovant is to be taken as true. Id. at
228.
This is similar standard to a motion for summary judgment. Id. It is
important to note that in a summary judgment motion if the credibility of the
witness is likely to be a dispositive fact in the resolution of the case, summary
judgment is not appropriate. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). To
support a finding of material fact on a record that includes only slight
circumstantial evidence there is need for “something else” to make one fact more
probable than another. Marathon Corp v. Pitzner, 106 S.W.3d 724, 729 (Tex.
2003) (quoting Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex 2001)).
II. There Is Evidence That UT-Austin Knew That An Unreasonably
Dangerous Condition Existed At The Place And Time Bellinghausen Fell
9
A. Direct Evidence Exists That UT-Austin Knew That An Unreasonably
Dangerous Condition Existed Mere Hours Before The Incident In
Question
David Henry saw someone fall in the same area mere hours before the
incident in question (CR 307). This knowledge is then imputed to UT-Austin.
Appellant does not deny Henry’s employment or that the knowledge would be
imputed to them. Rather, Appellant only denies the facts of which David Henry
knew.
Actual knowledge requires knowledge that the dangerous condition existed
at the time of the incident. City of Corsicana, v. Stewart, 249 S.W.3d 412, 414-15
(Tex. 2008). It can be obtained from direct or circumstantial evidence. Id.
Circumstantial evidence establishes actual knowledge when it “either directly or
indirectly” supports that conclusion. Id. (quoting State v. Gonzalez, 82 S.W.3d 322,
330 (Tex. 2002). For example, it could not be inferred that TxDOT knew traffic
signs would be missing merely because they knew stop signs could be repeatedly
vandalized. Gonzalez, 82 S.W.3d at 330. Without direct evidence, merely knowing
it was raining and knowing there was flooding in the area does not create an
inference that the City of Corsicana knew the specific crossing was a dangerous
condition. Stewart, 249 S.W.3d at 415-16. More circumstantial evidence makes the
inference more reasonable. When City of San Antonio employees knew rain would
drip to the floor through leaks, coupled with knowledge of the leaks in the vicinity
10
of the hazard, and that it was raining, the Court held that a reasonable fact finder
could find that the city had actual knowledge of the dangerous condition. City of
San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996).
Here, direct evidence exists regarding Defendant’s actual knowledge of the
unreasonably dangerous condition. David Henry knew of the dangerous condition
prior to the incident in question. While working nearby he saw someone fall on the
same sidewalk. (CR 252, 26:23-25). He reported to Sgt. Gonzalez that “he saw
another person trip and fall on the same protruding crack about 9:00 AM” (CR
266; 40:1-6). Although not in the police recording, Henry testified to telling the
officer this very statement. (CR 266; 40:1-6) Henry told the officer that the subject
appeared to be a white male in his mid 30s, and that he fell forward and ended up
on all fours. (CR 266; 40:7-10).
Based on this direct evidence, a reasonable fact finder could determine that
Henry had actual knowledge of the dangerous condition at the time of the incident
in question. Therefore, Appellant had actual knowledge of the dangerous condition
and the Plea to the Jurisdiction was properly denied.
Three years later David Henry’s story changed. To the extent his testimony
changed, this is an issue of his credibility and a question for the jury. See, TEX. R.
CIV. P. 266a. The inconsistencies include:
11
Day of Incident (8/28/2011) Day of Deposition (8/20/2014)
Saw him fall “right there”(CR 293; 67) Intent was to actually say somewhere
near there (CR 294; 68:11-15)
“same protruding crack”(CR 266; 40:1- “I wouldn’t say it was the same point, I
6) would say in the same vicinity.” (CR
255; 29:2-13)
No mention that the prior fall victim was The man appeared to be “checking
on his phone or inattentive. (CR 307) voicemail or texting.” (CR 252; 26:18-
22).
Somehow after three years of time Henry’s story became more detailed and
nuanced. “Right there” became “same vicinity.” Notably, Henry never says that the
first fall did not happen on the same crack, only that he cannot guarantee the first
victim tripped on the same crack (CR 255; 29:16-20). He also does not deny saying
“right there.” A cell phone appeared in the prior fall victim’s hand and he was either
texting (a task that usually requires looking at the phone) or checking voicemail (a
task that requires listening to the phone). Henry now adds details he found
unimportant while watching a man bleeding on the sidewalk. He also decided not to
tell these important facts to the investigating police officer. Conveniently, the
details added were also only those to make the existence of actual knowledge more
12
suspect. These inconsistencies, changes, recantation, clarifications, or obfuscations
(depending on your perspective) only create issues of credibility for the jury to
decide on the matter of UT-Austin’s actual knowledge. The jury could believe
Henry’s statement at the time of the incident or the one three years later. Believing
the first story is not an unreasonable inference, nor is it a stack of inferences. It
would be more reasonable to believe the one made near the time of the incident.
Because it is a fact question regarding Defendant’s knowledge, the plea to the
jurisdiction was properly denied.
B. Circumstantial Evidence Creates a Better Picture of Appellant’s
Knowledge of the Dangerous Condition
Appellant addresses Henry’s deposition testimony and tries to paint away
that he said initially “right here.” Assuming arguendo all clarification are still read
in the light most favorable to the Appellant, something the court must do the
opposite of, there is still a clear picture of circumstantial evidence that can only
point to Appellant’s actual knowledge of the dangerous condition.
The existence of prior incidents is a fact to consider when determining
whether Defendant had prior actual knowledge. City of Houston v. Harris, 192
S.W.3d 167 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The court may also
consider whether there were prior similar incidents. Rice Food Market, Inc. v.
Hicks¸ 111 S.W.2d 610, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).
13
The more recent the similar incident the more favor it points towards actual
knowledge. City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) (finding
that because the last similar incident was over three years ago this did not create
actual notice).
A review of case law cited by Appellant finds no case similar to the one at
bar. Each case lacks a fundamental element that is unique to this one: an employee
of the entity saw a prior fall in the same vicinity hours before the incident in
question. In Thompson, a cover plate had a habit of coming loose and the court
found without more evidence the City did not have actual knowledge of the
dangerous condition. 210 S.W.3d at 602. Though employees walked across it no
one fell that same day or saw someone fall that same day. Id. In Reyes, knowledge
that a low-water crossing tended to flood without more was no evidence to support
actual knowledge. Reyes v. City of Laredo, 335 S.W.3d 605, 608-609 (Tex. 2010).
Once again, no evidence was presented that an employee witnessed the condition.
Id. In Aguilar, guidelines in the safety manual did not create actual knowledge of
the dangerous condition. University of Texas-Pan American, v. Aguilar, 251
S.W.3d 511 (Tex. 2008). No evidence was presented that an employee saw the
condition. Id. In Hicks, a representative of defendant testified that he knew of no
similar incident. 111 S.W.3d at 613. No evidence was presented that an employee
saw a similar incident. Id. No case presented includes a similar fact pattern. It is
14
likely because the statement of an employee similar to that of Henry’s tips the
knowledge argument over the edge. UT-Austin had knowledge prior to the incident
in question.
Appellant does not dispute that there were uneven sidewalks all around the
UT-Austin campus. (CR. 139;35:18-36:4). David Henry knew about them prior to
the two falls. (CR 256; 30:8-10). It was common knowledge this is what happens
with expansion joints. (CR 256; 30:14-16). He was also aware that this can occur
around tree roots. (CR 257; 30-17-24). This was also not an event that occurred
overnight, but something that would take considerable time. (CR 259; 33:3-13).
This is circumstantial evidence can be used to show actual knowledge. See,
Stewart, 249 S.W.3d at 414. Couple the knowledge of the cracks with Henry’s
knowledge that someone fell in the general vicinity of the area where
Bellingshausen fell and a reasonable fact finder could determine UT had actual
knowledge of the unreasonably dangerous condition.
If Henry only identified someone fell in the area, at the time of Mr.
Bellinghausen’s fall, David Henry and UT-Austin knew the following:
(1) there were uneven sidewalks all across campus;
(2) it was a common occurrence with expansion joints;
(3) cracks of this nature took considerable time to make
(4) the uneven sidewalk can be caused by trees;
15
(5) there was a tree in the area; and
(6) someone fell in the same vicinity of Mr. Bellinghausen.
This alone is enough for a reasonable fact finder to determine that Appellant had
actual knowledge of the unreasonably dangerous condition. In Rodriguez, the
Texas Supreme Court held that the City’s knowledge of leaks in the roof coupled
with its knowledge that it had been raining meant “the jury might have inferred
that the person in charge knew that there would be water on the floor.” Rodriguez,
931 S.W.2d at 537. The Court reasoned that the jury could decide the issue based
on the position of the leaks above the floor. Id. That situation is less knowledge
than the case at bar. What we have is essentially a rainy day, with knowledge of
leaks, and then seeing someone slip on the floor. Similar to Rodriguez, the jury
could decide the issue based on the position of “right here” and “the same
protruding crack.” Therefore, a material fact issue exists regarding Appellant’s
knowledge of the dangerous condition.
Knowledge that there were uneven sidewalks all across campus, that they
could be made by tree roots, and that there was a tree nearby makes seeing the
initial fall and connecting it to the crack a more reasonable inference for Henry and
a jury to make. When Henry saw the first fall on a sidewalk he could draw the
conclusion that the person tripped on the thing he saw all around campus
sidewalks, near the tree that may cause cracks. This is a reasonable inference. If,
16
however, the first victim tripped on a rake, connecting it to a dangerous condition
on campus would have been a stretch. Henry could not think that dangerous rakes
existed all across campus. Nevertheless, when he saw someone trip on something
he knew existed all across campus, a reasonable fact finder could determine that he
saw someone fall on the same crack. Appellant’s actual knowledge of the cracks
around campus makes one inference “more probable than another.” Pitzner, 106
S.W.3d at 729 (quoting, Hammerly Oaks Inc. v. Edwards, 958 S.W.2d 387, 392,
(Tex. 1997)). Because the broader circumstantial picture supports the underlying
direct evidence, the plea to the jurisdiction was properly denied.
C. Officer Gonzalez’s Report Creates A Fact Issue Regarding Whether UT-
Austin Knew Of The Unreasonably Dangerous Condition
1. Henry Saw The Dangerous Condition
There is no testimony supporting that it was impossible for Henry to see the
crack that far away. Henry does not state he could not see it nor does any expert
opinion support that fact. Tex. R. Evid. 702. Henry’s testimony that he told the
officer the first fall occurred on the same protruding crack negates this inference.
(CR 266; 40:1-6).
Following Appellant’s analogy, if a referee made a call from the end zone it
may be reason to throw the challenge flag. That does not make the call
unreasonable or wrong. The other referees would look at the replay and determine
what happened. Nevertheless, when the tape says the fall occurred “right there” the
17
other referees would back the initial call. In the parlance of the NFL the ruling on
the field stands.
Moreover, evidence suggests that Henry did see the crack. After
Bellinghausen fell, Henry went over to see what was going on. (CR 248; 22:22-
23:1). He went over at or near the same time the officer arrived (CR 249; 23:17-
19). He offered information to Sgt. Gonzalez of his own fruition, and likely offered
the information he thought relevant. He told the officer about the similarity of the
falls and that it happened right there likely because he was worried of this
happening again. He would have no other reason to do so. This behavior coupled
with the prior discussion of the many things he knew about the campus and cracks
in the sidewalk could lead a reasonably jury to believe he saw the unreasonably
dangerous condition.
2. Officer Gonzalez Identified The Same Protruding Crack
Appellant details a possible solution regarding how Officer Gonzalez came to
identify the same protruding crack. In short, he placed the phrase into the report
based on the interview of David Henry, his review of the scene, and his
investigation. It is a good story. Appellant, however, cannot point to evidence in the
record detailing that this story is how the events happened. More importantly to the
extent it is a story, it is a credibility issue for the jury. Henry distinctly remembers
telling the officer that he saw another person trip on the same protruding crack.
18
Q. And then towards the bottom it says, “A facility staff member, David
Henry was working nearby all morning and said that he saw another person
trip and fall on the same protruding crack about 9:00 A.M.” Do you
remember telling the officer that?
A. Yes Sir. (CR 266; 40:1-6).
That Officer Gonzalez identified the same protruding crack supports the fact
that a reasonable fact finder could find that Appellant had actual knowledge of the
dangerous condition. Officer Gonzales saw the incident where the location
occurred. (CR 307). He took the photographs of the crack and the sidewalk. (CR
307). He also spoke to David Henry. (CR 307). As a witness he would have seen
Henry’s facial expressions, what he may have pointed to, tone of voice, and any
other specific detail about the situation. Based on this information he reasoned that
Henry saw someone fall on the same protruding crack. If inferences were made he
made reasonable ones based on his knowledge of the scene. As he was in all
likelihood a reasonable person a similarly placed reasonable fact finder could find
that Appellant saw someone fall on the same unreasonably dangerous condition
prior to the incident.
This is not the stack of inferences identified by the Appellant. In Pitzner, the
Court held that the long chain of suppositions and hypotheses was not enough to
create a fact issue. Marathon Corp., 106 S.W.3d at 729. The court outlines six facts
that must have occurred for the incident to have happened as the plaintiff’s expert
detailed. Id. There were too many other possible causes of the limited physical
19
evidence that were just as likely, therefore the inferences were not reasonable. Id.
This is not a similar unsupported chain because Henry’s statement regarding the
prior incident as well as his knowledge thereof support every inference regarding
UT-Austin’s knowledge of the condition.
3. The Inattentiveness Is A Fact Question, And Circumstantial Evidence
Supports Knowledge Of The Crack
Henry only decided to include in his story of the prior fall that the victim
was on a cell phone when he retold the story three years after the incident in
question. At the time of the incident, he only told the officer that the man landed
on all fours. (CR 307). He did not tell him why he fell on all fours, detail a
dropping of a phone, or give any details regarding the phone. It’s a suspicious and
important detail to forget. A jury could easily decide that the earlier statement is
simply more credible. It happened closer to the time of the incident, it was spoken
to a police officer, and it did not have the usual taint of protracted litigation.
Appellant did not cite case law, nor does there appear to be any that the addition of
a cell phone three years after the fact means as a matter of law one existed or that
the pedestrian was inattentive. Because the phone usage of the prior fall victim is
in dispute a fact issue still remains regarding Appellant’s knowledge of the
dangerous condition.
20
Moreover, assuming again that Henry’s later statement is true, couple this
with his additional knowledge that cracks existed all around campus, and he did
have reason to believe the prior victim tripped on a crack. There were not rakes, or
sticks, or protruding pipes all over campus. There were cracks in the sidewalk of
which he and UT-Austin knew. Seeing someone trip on a sidewalk known to be
littered with cracks, it is then reasonable to believe he tripped on a crack. Couple
this knowledge with the large nearby tree, a factor caused in the creation of cracks
and visible in the photos, and any reasonable person could see even that the prior
victim tripped on a crack. Because evidence supports that Henry knew the prior
fall was caused by the crack the Plea to the Jurisdiction was properly denied.
4. Henry Saw Someone Fall On The Crack And Knew That Cracks
Existed All Over The Campus. Therefore A Reasonable Jury Could Find That
Henry Knew Of The Dangerous Condition, But Bellinghausen Did Not.
Appellant contends that for Henry to have seen the dangerous condition
Bellinghausen must have as well, if only because Bellinghausen was closer to the
crack. This is a misstatement of the evidence because distance is not the only
difference between Bellinghausen and Henry.
First, Henry testified that he was actually looking at the area when he saw the
first victim fall. (CR 252; 26:23-25). Looking at the area is the first step to seeing
something in the area. Bellinghausen was not looking at the area prior to the time he
21
fell, so he simply could not have seen it. To presume Bellinghausen saw something
when he was not looking in the area is the absurdity.
Second, Henry knew there were cracks in the sidewalk all across campus.(CR
256; 30:8-10). Henry would have had a reason to notice something in the sidewalk
and a reason to look at the sidewalk. Bellinghausen was not gifted with similar
foreknowledge. He would not be looking for something of which he was unaware.
To presume Bellinghausen saw something of which he was not looking in an area at
which he was not looking is again, absurd.
There is no reason, factually or legally, to impose knowledge on
Bellinghausen simply because of his general proximity to the condition. Such a
result would dismantle the issue of actual knowledge making every employee
knowledgeable about the dangerous conditions around him. Because there is no
evidence supporting the inference Bellinghausen knew of the condition, and such an
inference would be absurd denial of the plea to the jurisdiction is proper.
5. Henry’s “Clarification” Creates A Fact Issue
A fact issue exists about Henry’s clarification simply because there are
inconsistencies of the statement. The day of the incident he said “right there” but
three years later Henry now purports to realize what he meant to say was general
vicinity. Though UT-Austin tries to paint these as consistent, that simply is not the
case. If these were two contracts we would use plain language to interpret them
22
and a clear inconsistency exists. If Henry were hired to plant trees “right there” but
planted them in the general vicinity he would likely get fired. Similarly, for Henry
to say the general vicinity and clarify the very meaning of his words creates an
inconsistency in his statement and a fact question for the jury to ultimately
determine.
Moreover, though the words stated cannot be disputed, how the words were
said can be. Officer Gonzalez saw how the words were said and determined that
Henry meant the same protruding crack. Now after three years Henry means
something different. This adds more fuel to the fire that is the underlying
credibility issue.
CONCLUSION
The issue of actual notice exists on a continuum. At the far ends of the
continuum, each party could present a dispositive motion on the issue and expect
to succeed. In the much larger middle section, a fact question exists. The Attorney
General’s office would have the Court believe that the deposition testimony swung
the pendulum on this issue decidedly and irrefutably into the area of their favor at
the far end of that that continuum. It is clear, however, that the recantation and
modification of the pre-deposition evidence does not eliminate that evidence, it
only serves to muddy his testimony and create a credibility issue for Mr. Henry.
23
A reasonable jury could determine that seeing someone fall “right there”
means that he saw someone fall “right there.” When you then add that David
Henry and UT-Austin knew that there were cracks in the sidewalk, a reasonable
fact finder could determine that the university had knowledge of the dangerous
condition. Because there is a genuine fact dispute the trial court properly denied
UT-Austin’s plea to the jurisdiction.
PRAYER
The Court should affirm the trial court’s ruling denying UT-Austin’s
jurisdictional plea.
Respectfully submitted,
THE CARLSON LAW FIRM, P.C.
11606 N. IH-35
Austin, Texas 78753
Telephone: (512) 346-5688
Fax: (512) 719-4362
By: /s/ Robert L. Ranco
Robert L. Ranco
SBN: 24029785
Rranco@carlsonattorneys.com
Counsel for Appellee
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was served in
accordance with Rule 21 and 21a, Texas Rules of Civil Procedure on this 4th day
of March 2015 to all counsel of record.
Attorney: Served by
Office of the Attorney General ____ Facsimile:
Joseph D. Hughes ____ Email:
Jason Warner X E-service: via TexFile
PO Box 12548 ____ CMRRR:
Austin, Texas 78711 ____ Other:
(512) 936-1729
(512)474-2697
Jody.hughes@texasattorneygeneral.gov
/s/ Robert L. Ranco
Robert L. Ranco
25
CERTIFICATE OF COMPLIANCE
In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), I certify
that this brief contains 4,798 words, excluding portions exempted by Rule
9.4(i)(1). In making this certification I rely on the Microsoft Word software word
count feature.
/s/ Robert L. Ranco
Robert L. Ranco
26
the University of Texas at Austin v. William A. Bellinghausen, Jr.
Combined Opinion