the City of Fort Worth, Texas v. Dianne Posey

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00351-CV
___________________________

THE CITY OF FORT WORTH, TEXAS, Appellant

V.

DIANNE POSEY, Appellee

On Appeal from County Court at Law No. 2
Tarrant County, Texas
Trial Court No. 2018-004126-2

Before Birdwell, Bassel, and Wallach, JJ.
Opinion by Justice Birdwell
 OPINION

The City of Fort Worth appeals the denial of its plea to the jurisdiction regarding

appellee Diane Posey’s premises liability claim. This dispute turns on whether Posey

paid for use of the City’s premises, because the answer to that question will determine

whether Posey must prove the City’s actual knowledge of the premises defect or merely

constructive knowledge. We hold that Posey’s pleadings and evidence create a fact issue

as to whether she paid for use of the walkway where she was injured and whether the

City had constructive knowledge of the alleged defect. We therefore affirm.

Posey’s factual allegations are not disputed. Posey alleged that on October 14,

2017, she attended a gift fair hosted by the Junior League at the City-owned Will Rogers

Memorial Coliseum. She paid a fee to park at the coliseum and another fee to attend

the gift fair within. As Posey exited the building and walked back to her vehicle along

a public walkway, she tripped over an obstruction—a metal pipe fitting that protruded

from the ground. She fell face first onto the sidewalk, breaking her teeth. Posey

brought a premises liability claim against the City. The City asserted immunity and filed

a plea to the jurisdiction, which the trial court denied. The City appeals.

A city’s governmental immunity will defeat a trial court’s subject matter

jurisdiction unless the immunity has been waived, and it is therefore properly raised by

a plea to the jurisdiction. City of Hous. v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566,

575 (Tex. 2018). We review a trial court’s disposition of a party’s plea to the jurisdiction

de novo. Id. In doing so, we consider the pleadings, factual assertions, and all relevant

2
evidence in the record. Id. Looking at the plaintiff’s intent, pleadings are construed

liberally in favor of the plaintiff to determine whether the facts alleged affirmatively

demonstrate the court’s jurisdiction to hear the matter. Id. We take as true all evidence

favorable to Posey, indulging every reasonable inference and resolving any doubts in

her favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). The trier of fact

resolves the jurisdictional issue if evidence in the record raises a fact issue; however, the

trial court rules as a matter of law if the evidence is undisputed or fails to raise a fact

question. Hous. Mun. Emps., 549 S.W.3d at 575.

In its first issue, the City disputes whether Posey paid for use of the coliseum

premises. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private

person owes to a licensee on private property, unless the claimant pays for use of the

premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use

of the premises, she is an invitee; if not, she is a mere licensee. 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. on reh’g). That distinction is relevant to the elements of

Posey’s cause of action. Id. If Posey was a licensee, she must show that the City had

actual knowledge of the unreasonable risk of harm created by the obstruction. Id. (citing

State Dep’t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (op. on reh’g)). If she

was an invitee, she need only show that the City should have known of the risk—i.e.,

constructive knowledge. Id.

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 Posey alleges that she paid for use of the premises, including the sidewalk where

she was injured, in multiple ways. First, she paid a fee to park at the coliseum, and it is

undisputed that the parking fee went directly to the City. Second, Posey offered

evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League in

turn paid the City to rent the premises for its patrons’ use. Junior League’s rental

agreement provided that Junior League and its patrons could use certain rooms within

the coliseum as well as “contiguous common areas.” The agreement also contemplated

that the premises’ sidewalks and entryways would be used by Junior League and its

patrons for “ingress or egress to and from” the coliseum and for no other purpose.

Further, Posey offered the deposition testimony of City representative Kevin Kemp, in

which he agreed that the rental agreement gave Junior League’s customers the “right . . .

to use City of Fort Worth property to enter and exit the building.” The City

representative agreed that part of what Junior League paid the City for was “the ability

to access” the event space along the walkway. Posey submits that through her parking

fee, her entry fee, and Junior League’s rental fee, she paid for use of the premises and

should be entitled to invitee status.

The City responds that while Posey may have paid for use of the parking lot and

the convention space within the coliseum, she did not pay for use of the walkway where

she fell. That walkway, the City reasons, is open to the public generally, and no payment

is required to access it. The City says that because Posey or other members of the

4
public might have accessed the same area without paying, Posey did not pay to use that

area.

Some courts have applied the reasoning that the City advances, suggesting that

we should ask “whether a claimant would have been allowed entry onto premises but

for a payment made to the governmental unit that owns the property.” City of El Paso v.

Viel, 523 S.W.3d 876, 892 (Tex. App.—El Paso 2017, no pet.). In this line of cases, the

claimant is said to have paid for use of the premises only when the claimant was injured

in an area where members of the public could not rightfully be present without also

paying. Id. at 892–93 (collecting cases). In Sullivan, we implied something similar when

we declared a wedding guest to be an invitee based on evidence (1) that he was allowed

admission to the event space (a botanic garden) only because the host had paid the City

for the privilege and (2) that the general public was excluded from the garden during

the wedding. See 2011 WL 1902018, at *8. Though we never made clear why we found

this sort of evidence to be persuasive, Sullivan impliedly supports the City’s argument.

In the same vein, the City also directs our attention to City of Dallas v. Davenport,

an opinion that applied comparable reasoning and that is analogous to this case on its

facts. 418 S.W.3d 844 (Tex. App.—Dallas 2013, no pet.). In Davenport, the plaintiff

had just picked up his luggage from the baggage claim at Love Field, and he was heading

toward the parking garage when he slipped on a wet walkway and sustained injuries. Id.

at 846. The plaintiff sued the City of Dallas, arguing that he should be an invitee

because he purchased an airline ticket (giving him access to the terminal) and paid to

5
park (giving him access to the parking garage), and he was returning from the terminal

to the parking garage when he was injured. Id. at 848. Despite these payments, the

court held that Davenport was a mere licensee. Id. at 849. The court reasoned that

because other members of the public could freely access the walkway where Davenport

was injured without paying, Davenport had not paid for use of the premises where he

fell:

The undisputed evidence was that people could be in this part of the
airport even if they had not paid to park or purchased an airline ticket.
But, under Davenport’s analysis, the City would owe a lesser duty to
people in the area where Davenport fell if they had not purchased an
airline ticket or had not paid to park in the airport parking garage. We see
“no rational basis,” however, for distinguishing between people in this
part of the airport on the basis of whether they purchased an airline ticket,
paid to park their car in the airport parking garage, or arrived at the airport
by cab or other means.
Id.

We must respectfully disagree with Davenport, because we do see a “rational basis”

to distinguish between these types of visitors: the statute’s plain text. Again, a person

is treated as an invitee if she “pays for use of the premises.” Tex. Civ. Prac. & Rem.

Code Ann. § 101.022(a). The text of the statute makes a person’s status dependent on

whether she has paid for use of the premises. It says nothing of whether other members

of the public must also pay for use of the same premises. And the statute does not say

that the claimant must pay for exclusive or nonpublic use of the premises. The public’s

access to the same space is immaterial. Rather, according to the statute’s plain language,

a person is entitled to invitee status if the person paid to use the premises, regardless of

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whether other members of the public might also be present without paying. This sort

of reasoning was expressed in M.D. Anderson Hospital & Tumor Institute v. Felter, 837

S.W.2d 245, 247–48 (Tex. App.—Houston [1st Dist.] 1992, no writ). There the court

considered only whether a wife had paid for use of the hospital premises where she was

injured; because she paid for use of the hospital, the court held she was an invitee, and

the court gave no thought to whether members of the public might also visit the same

area of the hospital without paying (as presumably they could). Id. In our view, this

mode of analysis is the right one.

To illustrate how this thinking corresponds with the statute’s text, suppose the

facts of Sullivan were somewhat different: a bride’s father pays $10,000 for the right to

use an open field at a botanic garden for an outdoor wedding, though the public is not

excluded from the grounds during the wedding. During the wedding, a jogger happens

by, having paid nothing to enter. As the jogger passes, the father trips over a hazard in

the field and is injured. Under the reasoning of Davenport and its kind, the father would

not have paid for use of the premises simply because the jogger could access the same

area without paying. We think that is a distortion of the statute’s language. The father

has paid $10,000 specifically for use of the premises where he fell, and there is nothing

in the statute which says that the public’s access to the same area should detract from

that fact. Under the plain language of the statute, it does not matter that the jogger did

not pay, regardless of whether we implied otherwise in Sullivan. Thus, within the same

7
area, there could be multiple persons of different status depending simply on whether

they paid for use of the premises.

This interpretation—allowing people of varying status to coexist in the same

location—is consistent with Texas’s and the Restatement’s view of invitees generally.

An invitee is one who enters the property of another with the owner’s knowledge and

for the mutual benefit of both. Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex.

2015). Whether an entrant is an invitee or a licensee depends in large part on the

entrant’s purpose in coming to the property. Khan v. Hasan, No. 01-07-00082-CV, 2008

WL 598148, at *3 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.);

Osadchy v. S. Methodist Univ., 232 S.W.3d 844, 852 (Tex. App.—Dallas 2007, pet. denied);

Poehls v. A.L. Turner, No. 03-01-00727-CV, 2002 WL 1995492, at *2 (Tex. App.—Austin

Aug. 30, 2002, no pet.) (not designated for publication); see Renfro Drug Co. v. Lewis, 235

S.W.2d 609, 615–16 (Tex. 1950). 1 Thus, people on the same public premises might

have different status depending on their purposes, as the Restatement illustrates. When

As one court put it,
1

To come under an implied invitation, as distinguished from a mere license,
the visitor must come for a purpose connected with the business in which
the occupant is engaged, or which he permits to be carried on there. There
must at least be some mutuality of interest in the subject to which the
visitor’s business relates, although the particular thing which is the object
of the visit may not be for the benefit of the occupant.

Hous. Belt & Terminal Ry. Co. v. Rogers, 44 S.W.2d 420, 422 (Tex. App.—Galveston 1931,
writ dism’d).

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a person enters a shop and purchases goods, she will be considered an invitee under the

Restatement because the purpose of her presence is consistent with the owner’s

commercial reason for impliedly inviting the public inside. Restatement (Second) of

Torts § 332 cmt. c (1965). By contrast, a traveling salesperson who simultaneously

enters the same premises in hopes of selling goods is not a business invitee because his

presence is not consistent with the reason behind the owner’s invitation; he is a mere

licensee according to the Restatement view. Id. And a person who had received a

trespass warning but nonetheless barges into the same shop would be a trespasser.

Thus, within the same public premises, multiple people might have different status

depending on the degree to which their purposes are consistent with the commercial

reasons behind the owner’s invitation, and one person’s status has little bearing on

another’s. Similarly, here, multiple people of different status might be present on

coliseum grounds, with their status varying by whether they had paid for use of the

premises.

Posey’s pleadings and evidence, when construed liberally and taken as true, show

that she paid to use the coliseum premises in two ways. 2 First, Posey directly paid the

2
Only by accepting such payments will the City’s immunity be yielded, and the
City may therefore carefully control its own immunity through its decision to accept
payment or not. Thus, this is not a case that might open the floodgates to “unforeseen
expenditures associated with the government’s defending lawsuits and paying
judgments.” Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc., 571 S.W.3d 738, 751
(Tex. 2019) (quoting Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117, 123 (Tex.
2015)).

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City to park at the coliseum. Second, through Junior League, Posey indirectly paid the

City to attend the gift fair within the coliseum. 3 Unlike Davenport, Posey introduced

multiple forms of evidence—including a contract and testimony from the City’s own

representative—showing that the payments also endowed her with the express right to

use the walkway to travel between the parking lot and the gift fair. It is undisputed that

Posey was using the walkway to travel from the gift fair to the parking lot when she was

allegedly injured. Under the plain text of the statute, it does not matter that other

members of the public might have also been present on the walkway without paying; a

passerby’s independent reasons for being present would not negate the pleadings and

evidence that (1) Posey paid both directly and through Junior League for use of the

premises, (2) at the time of her injury, she was on coliseum premises exercising usage

3
The City has not contested Posey’s assertion that she should be credited for
indirectly paying the City through Junior League. Our precedent compels us to agree
with Posey and to conclude that the “analysis should focus on whether [the claimant]
paid for entry onto the premises and not on whether the City received the money”
directly from the claimant. See City of Hidalgo v. Hodge, No. 13-16-00695-CV, 2018 WL
460808, at *3 (Tex. App.—Corpus Christi–Edinburg Jan. 18, 2018, pet. denied) (mem.
op.) (citing 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. on reh’g), and Dall.–
Fort Worth Int’l Airport Pub. Facility Improvement Corp. v. Banks, No. 02-09-176-CV, 2010
WL 87865, at *4 (Tex. App.—Fort Worth Jan. 7, 2010, pet. denied) (mem. op.)); see also
Parker v. Highland Park, Inc., 565 S.W.2d 512, 515 (Tex. 1978) (quoting Restatement
(Second) of Torts § 360 cmt. c (1965)) (discussing a lessor’s duty to a lessee’s invited
guests, who are imputed with certain rights belonging to the lessee); cf. City of El Paso v.
Viel, 523 S.W.3d 876, 893–94 (Tex. App.—El Paso 2017, no pet.) (crediting employee
for employer’s entry payments); Tex. Eng’g Extension Serv. v. Gifford, No. 10-11-00242-
CV, 2012 WL 851742, at *1 (Tex. App.—Waco Mar. 14, 2012, no pet.) (mem. op.)
(same); City of Dall. v. Patrick, 347 S.W.3d 452, 457 (Tex. App.—Dallas 2011, no pet.)
(crediting child for mother’s payment).

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rights—to enter and exit—bestowed by the payments, and (3) her reason for being

present was consistent with the commercial purpose behind the fees that the City

charged for the coliseum and its parking lot.4

Construing the pleadings liberally in Posey’s favor and taking the evidence

favorable to her as true, we hold that a fact issue exists as to whether she should be

considered an invitee under the circumstances. As an invitee, Posey would be required

to prove only constructive knowledge of the alleged tripping hazard. It is therefore

unnecessary to consider the City’s second issue, in which the City argues that it did not

have actual knowledge of the alleged tripping hazard. We need only consider the City’s

last remaining contention: that it did not have constructive knowledge.

In premises cases, constructive knowledge can be established by showing that

the condition had existed long enough for the owner to have discovered it upon

reasonable inspection. Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 15–16 (Tex.

2014); CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 102–03 (Tex. 2000). What constitutes

a reasonable time for discovery of the condition will vary depending on the facts and

circumstances of each case; if the condition is conspicuous, or if the defendant’s

4
Even if there must be some degree of but-for causal connection between the
claimant’s payment and her presence on the premises, we believe such a requirement
would be satisfied. Without her payments to park her vehicle at the coliseum and to
enter the gift fair, Posey would not have been returning from the gift fair to her vehicle.
The City has not introduced any evidence tending to show that Posey might have been
at the coliseum that day for some other reason, such as a stroll. Thus, but for her
payments to use the premises, Posey would not have been present on the City-owned
and controlled walkway where she was injured.

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employees were routinely or continuously in close proximity to a less conspicuous

condition, this may shorten the time in which the premises owners should reasonably

have discovered the condition. Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 816 (Tex.

2002). Thus, when determining whether a defendant had constructive knowledge of a

hazardous condition, the court may consider evidence of (1) the duration of the

condition, (2) the employees’ proximity to and interaction with it, (3) the condition’s

conspicuousness, and (4) any other relevant circumstances. See Pena v. Home Depot

U.S.A., Inc., 32 F. Supp. 3d 792, 797 (S.D. Tex. 2013) (summarizing Reece). The fact

that the owner of a premises created a condition that posed an unreasonable risk of

harm is also circumstantial evidence of knowledge. Keetch v. Kroger Co., 845 S.W.2d 262,

265 (Tex. 1992) (op. on reh’g); see Brookshire Bros., 438 S.W.3d at 15.

Through its representative, the City denied actual knowledge of the alleged

tripping hazard, which, again, was a metal pipe fitting cemented into and protruding

from the walkway. However, the City’s representative agreed that the fitting could not

have been placed there without the City’s knowledge; he testified that the City would

have known about and contracted for any construction on the walkway. The

representative testified that the pipe fitting was not newly constructed and had likely

been present for over a year, and he assumed that it had been present throughout his

almost seventeen-year tenure at the coliseum. According to the representative, City

employees regularly traveled the walkway every two or three days. Finally, the

12
representative agreed that upon viewing the pipe fitting, he readily recognized it as a

tripping hazard.

Taking this evidence as true and indulging every reasonable inference in Posey’s

favor, the record shows that the pipe fitting was present for at least a year, that the City

must have known about the construction of the pipe fitting and probably contracted

for it, that City employees’ regular proximity to the condition gave them ample

opportunity to discover any hazard it posed, and that any hazard was a conspicuous

one. Together, this evidence creates a fact issue as to whether the City was

constructively aware of the tripping hazard.5 We therefore overrule the City’s first and

second issues, and we affirm the trial court’s judgment.

/s/ Wade Birdwell

Wade Birdwell
Justice

Delivered: January 16, 2020

5
The City further argues that the pipe fitting could have shifted or altered over
time, such that it might have only recently become a tripping hazard. But Posey offered
a photograph of the pipe fitting which suggested that the pipe’s position was not a new
circumstance. The photograph revealed the fitting to be a metal cap that could only
have been intentionally threaded to the end of a pipe that extended down into the
walkway. The cement surrounding the pipe was dry and intact, and there was nothing
to indicate that the fitting might have recently broken through the surface from beneath.

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