In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-21-00288-CV
________________
LAMAR UNIVERSITY, Appellant
V.
DEBORAH HANINGTON, Appellee
________________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. A-201,727
________________________________________________________________________
MEMORANDUM OPINION
In an accelerated appeal, Lamar University appeals the denial of its plea to the
jurisdiction. In three issues, Lamar challenges the trial court’s judgment arguing
first, the trial court abused its discretion in denying its plea to the jurisdiction by
failing to consider all its evidence properly before the trial court, second, that
Hanington failed to show a waiver of Lamar’s sovereign immunity under the Texas
Tort Claims Act (TTCA), and third, Hanington cannot plead a premises defect claim
1
and proceed on her general negligence claim in the same suit. We reverse the trial
court’s judgment and dismiss the case for lack of jurisdiction.
I. Background
In plaintiff’s original petition, Hanington states that in December 2017, she
was a resident of Gentry Hall, a dormitory on the campus of Lamar University.
Hanington was moving out of her dorm room for winter break, and alleged that she
slipped and fell, and was subsequently injured by water accumulated on the floor
from a water fountain located in her dormitory lobby.
In her first amended petition, Hanington alleges negligence and that her
injuries were proximately caused by the negligence of Lamar through the acts of its
servants or employees. She argues that Lamar owed a duty to her as an invitee on its
premises, including using ordinary care to reduce or eliminate an unreasonable risk
of harm created by the premises condition of the leaking water fountain of which
Lamar was or should have been reasonably aware. Hanington contends that because
Lamar failed to exercise ordinary care to protect her as an invitee, including failing
to monitor the fountain, and warn Hanington of the dangerous condition, it caused
her resulting injuries and damages. Hanington also alleges waiver of immunity under
the TTCA, arguing “[a] premises defect arose from a condition of real property and
Defendant would, were it a private person, be liable to Plaintiff under Texas law.
Plaintiff further pleads that all notice provisions required under Tex. Civ. Prac. &
2
Rem. Code § 101.001 have been satisfied.” Hanington seeks damages in the amount
of at least $1,000,000 for past and future physical pain and mental anguish, past and
future physical impairment, past and future disfigurement, and past and future
medical expenses.
Lamar filed an original answer, a first amended original answer, and denied
all allegations. In its First Amended Original Answer, Lamar asserts, among other
things, a general denial, exemption and limitation of liability under TTCA, that the
trial court lacks jurisdiction due to sovereign immunity, and that Hanington was
contributorily negligent. Lamar also filed a plea to the jurisdiction arguing
“Defendant University is entitled to sovereign immunity from suit and from
liability, and Plaintiff’s Original Petition failed to allege adequate grounds
to establish a waiver of such sovereign immunity; therefore, the court is
without jurisdiction to hear this cause of action and the same should be
dismissed with prejudice.”
Hanington responded to Lamar’s plea to the jurisdiction arguing Lamar’s plea
in both its original answer and amended answer are “general and generic.”
Specifically, she argues that Lamar failed to give notice of “how or where Defendant
attacks Plaintiff’s pleadings.” As such, she cannot be afforded the opportunity to
amend to cure a jurisdictional defect in her pleadings. Additionally, Hanington
argues that Lamar’s immunity is waived under section 101.021(2) of the Texas Civil
3
Practices and Remedies Code, as this was a premises defect that arose on real
property owned by Lamar, and “[a] governmental unit . . . is liable for [] personal
injury and death so caused by a condition or use of tangible personal or real property
if the governmental unity would, were it a private person, be liable to the claimant
according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). This
waiver applies to a governmental unit’s duty to an invitee on its property.
In response, Lamar filed a “Brief in Support of Its Plea to the Jurisdiction and
Motion to Dismiss” alleging in greater detail its argument that Hanington failed to
prove jurisdiction under the TTCA. Attached to the brief were thirteen exhibits,
including Hanington’s original pleading, depositions from Hanington and personnel
at Lamar University, a video of inspection of the fountain, and Hanington’s answers
to interrogatories.
In her response, Hanington argues that Lamar’s brief was improper, and that
Lamar was attempting to introduce a no evidence summary judgment improperly in
a brief and supplant Rule 166a of the Texas Rules of Civil Procedure requiring any
summary judgment request to be filed 21 days before the hearing. Hanington also
objected to one affidavit and requested in the alternative to replead.
In September 2021, the trial court held a hearing regarding Lamar’s Plea to
the Jurisdiction and signed an order denying Lamar’s plea to the jurisdiction. Lamar
appealed.
4
II. Issue One
In its first issue, Lamar claims that the trial court refused to consider the brief
with exhibits timely filed and argued at the hearing on the motion to dismiss. We
note that the order under review states “After considering the pleadings and briefs
on file herein….” (emphasis added). To the extent the issue which has been raised
in is doubt, we will discuss whether the trial court erred if it did not consider all of
Lamar’s evidence presented with its brief regarding its plea to the jurisdiction.
Lamar argues that its plea to the jurisdiction and supporting evidence by way of a
trial brief was properly before the trial court because “Texas law requires the courts
to consider all of Lamar University’s immunity arguments and relevant jurisdictional
evidence.” At the hearing, Hanington argued that Lamar could not supplement its
plea to the jurisdiction with a brief. Hanington asserted the brief filed by Lamar
amounted to an evidentiary challenge, without a proper plea of an evidentiary
challenge, and for that reason, Lamar cannot supplement its plea to the jurisdiction
adding an evidentiary challenge without proper pleadings.
Governmental units, including municipalities, are immune from suit unless
the State consents. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755,
770 (Tex. 2018) (citing Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d
629, 636 (Tex. 2012); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
224 (Tex. 2004)). There is a “heavy presumption in favor of immunity[,]” and a
5
statutory waiver of sovereign immunity must be “clear and unambiguous[.]” See
Tex. Gov’t Code Ann. § 311.034; City of Galveston v. State, 217 S.W.3d 466, 469
(Tex. 2007). A plea to the jurisdiction challenges the trial court’s subject-matter
jurisdiction over a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.
2000); Pineda v. City of Houston, 175 S.W.3d 276, 279 (Tex. App.—Houston [1st
Dist.] 2004, no pet.).We review the trial court’s ruling on a plea to the jurisdiction
under a de novo standard of review. See Mayhew v. Town of Sunnyvale, 964 S.W.2d
922, 928 (Tex. 1998).
When a plea to the jurisdiction challenges the existence of jurisdictional facts,
a trial court’s review “mirrors that of a traditional summary judgment motion.”
Garcia, 372 S.W.3d at 635.The trial court must take as true all evidence favorable
to the nonmovant, indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor. Miranda, 133 S.W.3d at 228. If there is a fact issue on
jurisdictional issue, the trial court must deny the plea. Id. at 227-28. But if the
evidence is undisputed or if the plaintiff failed to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of
law. Id. at 228. The plaintiff bears the burden to allege facts that affirmatively
demonstrate that the trial court has subject-matter jurisdiction. See Tex. Ass’n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Additionally, if a plea to
the jurisdiction challenges the existence of jurisdictional facts, a court considers
6
relevant evidence submitted by the parties to resolve the jurisdictional issues. See
Miranda, 133 S.W.3d at 227. In a case in which the jurisdictional challenge also
implicates the merits of the plaintiff’s cause of action, the trial court reviews the
relevant evidence to determine whether a fact issue exists. See id. If the
governmental entity’s evidence demonstrates that the plaintiff’s jurisdictional
allegations are not true, the burden shifts back to the plaintiff to offer evidence
disputing the government’s evidence. See Clark, 544 S.W.3d at 805. If the evidence
creates a fact issue on the jurisdictional issue, the trial court cannot grant the plea,
and the fact issue must be decided by the factfinder.1 See Miranda, 133 S.W.3d at
227-28. But if the relevant evidence is undisputed or fails to raise a fact question in
jurisdiction, the trial court rules on the plea to the jurisdiction as a matter of law. See
Miranda, 133 S.W.3d at 228.
“We recognize that the nature of a pleading is determined by its substance,
not by its format or caption.” McPherson v. Wylie, No. 10-15-00419, 2016 WL
7325461, *3 n.2 (Tex. App.—Waco Dec. 14, 2016, no pet.) (mem. op.) (The court
could not “conclude, however, that Appellants were asserting a motion for summary
judgment based on immunity from liability and not a plea to the jurisdiction based
1
Because a trial court rules on a plea to the jurisdiction as a matter of law and
it may not grant a plea to the jurisdiction if there are genuine issues of material fact
regarding jurisdiction, findings of fact are not proper. See Schmitz v. Denton Cty.
Cowboy Church, 550 S.W.3d 342, 352 (Tex. App.—Fort Worth 2018, pet. denied)
(mem. op. on reh’g).
7
on immunity from suit.”); see also Schronk v. City of Burleson, 387 S.W.3d 692,
702 (Tex. App.—Waco, 2009, pet. denied) (comparing Tex. R. Civ. P. 166a(c))
(“There is no rule specifying the manner in which a party must present evidence in
support of a plea to the jurisdiction. Although summary-judgment practice may
provide a useful analytical framework, there is no rule requiring that evidence be
attached to a plea to the jurisdiction to be considered by a trial court.”). We therefore
construe Lamar’s brief to supplement its plea to the jurisdiction and the trial court
was required to consider this evidence. See Biermeret v. The Univ. of Tex. Sys., No.
2-06-240-CV, 2007 WL 2285482, *2 (Tex. App.—Fort Worth Aug. 9, 2007, pet.
denied) (mem. op.) (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 also Bland Indep. Sch. Dist., 34 S.W.3d at 555 (confining the evidentiary
review to evidence that is relevant to the jurisdictional issue); see also Harris Cnty.
v. Luna–Prudencio, 294 S.W.3d 690, 695-96 (Tex. App.—Houston [1st Dist.] 2009,
no pet.); Univ. of Tex. MD Anderson Cancer Ctr. v. Simpson. No. 01-20-00679-CV,
2021 WL 3083104, *3-4 (Tex. App.—Houston [1st Dist.] no pet.) (mem. op.)
(analyzing arguments made in a plea to the jurisdiction together with the plea to the
jurisdiction and supplemental brief in support of the plea to the jurisdiction).
8
Additionally, Hanington’s argument that we cannot consider Lamar’s brief is not
persuasive considering the fact she was offered a continuance and declined Lamar’s
offer for a continuance and appeared ready for the hearing regarding Lamar’s plea
to the jurisdiction. See e.g., Hawk v. Wallace, No. 02-21-00044-CV, 2022 WL
60736, *5 n.3 (Tex. App.—Fort Worth Jan. 6, 2022, no pet.) (mem. op.) (citations
omitted).
We sustain Lamar’s first issue to the extent that the trial court failed to
consider the evidence presented before the court, including the arguments and
evidence in Lamar’s supplemental brief, when ruling on the plea to the jurisdiction.
III. Issue Two
After finding that Lamar’s brief in support of its plea to the jurisdiction was
proper and should have been considered by the trial court, we move to Lamar’s
second issue. In its second issue, Lamar argues that the trial court erred by denying
its plea to the jurisdiction because Hanington failed to identify any evidence that
showed a disputed fact that the fountain was a dangerous condition, that Lamar had
actual or constructive knowledge of the alleged premises defect, or any evidence to
prove a waiver of immunity under the TTCA. 2
2
We note that neither party disputes that this is premises defect claim. See
generally Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380 (Tex. 2016).
9
A plea to the jurisdiction is a dilatory plea; its purpose is “to defeat a cause of
action without regard to whether the claims asserted have merit.” Bland, Indep. Sch.
Dist., 34 S.W.3d at 554. The plea challenges the trial court’s jurisdiction over the
subject matter of a pleaded cause of action. Miranda, 133 S.W.3d at 226. Subject
matter jurisdiction is a question of law. As a result, an appellate court conducts a de
novo review of a trial court’s ruling on a plea to the jurisdiction. Id. A defendant
may use a plea to the jurisdiction to challenge whether the plaintiff has met her
burden of alleging jurisdictional facts or to challenge the existence of jurisdictional
facts. See id. at 226-27. When “evidence is presented with a plea to the jurisdiction,
the court reviews the relevant evidence and may rule on the plea as a matter of law
if the evidence does not raise a fact issue on the jurisdictional question, a standard
that generally mirrors the summary-judgment standard.” Harris Cty. Flood Control
Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex. 2016) (citing Miranda, 133 S.W.3d at 227–
28).
“A governmental unit . . . is liable 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 Ann. § 101.021(2). In premises liability cases, “the
duty owed to the plaintiff depends upon the status of the plaintiff at the time the
incident occurred.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (citing
10
M.O. Dental Lab v. Rape, 139 S.W.3d 671, 675 (Tex. 2004); Corbin v. Safeway
Stores, Inc., 648 S.W.2d 292, 295-96 (Tex. 1983)); Tex. Civ. Prac. & Rem. Code
Ann. § 101.022 (discussing the duty owed by a government unit if the claimant pays
for the use of the property). The parties agree that Hanington was an invitee. “[A]
person is treated as an invitee if she ‘pays for use of the premises.’” City of Fort
Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.)
(quoting Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a)). A property owner or
occupier in a premises liability case owes an invitee a duty to use ordinary care to
reduce or eliminate an unreasonable risk of harm created by a premises condition
which the owner or occupier of land knows about or in the exercise of ordinary care
should know about. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d
749, 753 (Tex. 1998); Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015).
The parties do not dispute that Hanington asserts a premises liability claim.
See Austin, 465 S.W.3d at 216 (“When an injury arises from a premises condition,
it is often the case that any resulting claim sounds exclusively in premises
liability[.]”). The elements of a cause of action for a premises liability claim are: (1)
the existence of a condition of the premises creating an unreasonable risk of harm,
(2) the landowner knew or should have known of the existence of the condition, (3)
the landowner failed to use reasonable care to reduce or eliminate the risk by
rectifying or warning of the condition, and (4) such failure was a proximate cause of
11
plaintiff’s injury. Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014); CMH
Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000).
“Many building materials will, over time, deteriorate and require repair or
replacement. That does not necessarily mean that the owner or occupier has created
a dangerous condition or that the owner has actual or constructive knowledge of a
dangerous condition. For example, we know that asphalt roads will develop potholes
over time and will require repair. That does not mean that asphalt roads constitute
an unreasonable risk of harm from the day they are constructed.” Daenen, 15 S.W.3d
at 101. “A condition is unreasonably dangerous if it presents an unreasonable risk of
harm.” Pipkin v. Kroger Texas, L.P., 383 S.W.3d 655, 671 (Tex. App.—Houston
[14th Dist.] 2012, pet. denied) (citation omitted). The extent to which a condition is
unreasonably dangerous is ordinarily a fact question, but under some facts and
circumstances, may be determined as a matter of law. See id. “‘A condition
presenting an unreasonable risk of harm is one in which there is such a probability
of a harmful event occurring that a reasonably prudent person would have foreseen
it or some similar event as likely to happen.’” Reliable Consultants, Inc. v. Jaquez,
25 S.W.3d 336, 341 (Tex. App.—Austin 2000, pet. denied) (quoting Seideneck v.
Cal Bayreuther & Assocs., 451 S.W.2d 752, 754 (Tex. 1970)).
“A condition is not unreasonably dangerous simply because it is not
foolproof.” Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).
12
There is no definitive, objective test that may be applied to determine whether a
specific condition presents an unreasonable risk of harm. See Seideneck, 451 S.W.2d
at 754. When determining whether the harmful event that resulted from a condition
was probable and foreseeable, courts often consider, among other things, evidence
of other falls or injuries attributable to the same condition and evidence of some
defective condition causing the fall; and, such evidence is probative but not
conclusive. See id. Courts may consider (1) whether the condition was clearly
marked, (2) the height of the condition, (3) whether injuries had occurred in the past,
(4) whether other invitees had complained about the condition, (5) whether the
condition was unusual, (6) whether the construction or placement of the condition
would serve as a warning that the object presented a prohibited degree of danger, (7)
whether the invitee had reasonable alternatives other than to go through the area
where the condition was located, and (8) whether the condition met applicable safety
standards. See Martin v. Chick-Fil-A, No. 14-13-00025-CV, 2014 WL 465851, at
*4, (Tex. App.—Houston [14th Dist.] Feb. 4, 2014, no pet.) (mem. op.); see also
Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (holding pedestrian
ramp was not unreasonably dangerous because it was outlined in yellow stripping,
which was a common method to indicate elevation change); Dietz v. Hill Country
Rests., Inc., 398 S.W.3d 761, 767-68 (Tex. App.—San Antonio 2011, no pet.)
(holding that summary judgment was proper because there was no evidence of
13
unreasonable risk of harm where condition—depressions in a sidewalk—had been
present for eighteen years with no prior falls or complaints); Farrar v. Sabine Mgmt.
Corp., 361 S.W.3d 694, 701 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(“Evidence of a similar injury or complaint caused by the condition is probative on
the question of whether the condition posed an unreasonable risk of harm.”).
In this case, there was no evidence presented by Hanington that there was a
dangerous condition or that Lamar University had actual or constructive knowledge
that the fountain was leaking.
A. Dangerous Condition
First, the presence of a fountain in the entry hall of the dormitory is not in itself a
dangerous condition. See Culotta v. DoubleTree Hotels, LLC, No. 01-18-00267-CV,
2019 WL 2588103, at *4 (Tex. App.—Houston [1st Dist.] June 25, 2019, pet.
denied) (mem. op.) (finding “fountains were open and obvious conditions on the
premises[]”). Lamar attached Hanington’s deposition where she testified on the day
she slipped and fell that she had made “four complete passes[]” or “two trips” back
and forth to her room while moving out of the dorms for winter break. During those
trips, she observed a worker and sheets lying around the fountain, but not underneath
it. She testified she did not see water on the floor. Hanington stated that she did not
see the size of the water puddle and there were no wet substances on her clothes after
she fell. The fact that Hanington fell does not itself constitute evidence of an
14
unreasonably dangerous condition. See Mangham v. YMCA of Austin, 408 S.W.3d
923, 928 (Tex. App.—Austin 2013, no pet.); Bostick v. Metro Nat’l Corp., No. 14-
04-00663-CV, 2005 WL 1981306, at *5, (Tex. App.—Houston [14th Dist.] Aug. 18,
2005, no pet.) (mem. op.) (concluding that claimant failed to produce evidence to
defeat no-evidence summary judgment and rejecting inference that claimant’s
injuries were caused by dangerous condition merely because claimant fell).
Consequently, Hanington failed to establish that the fountain was a dangerous
condition.
B. Actual or Constructive knowledge.
To succeed on a premises liability claim, an invitee must prove the following
elements: (1) actual or constructive knowledge of a condition on the premises by the
owner or occupier; (2) that the condition posed an unreasonable risk of harm; (3)
that the owner or occupier did not exercise reasonable care to reduce or eliminate
the risk; and (4) that the owner or occupier’s failure to use such care proximately
caused the plaintiff’s injury. Daenen, 15 S.W.3d at 99. “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.” City of Corsicana v. Stewart,
249 S.W.3d 412, 414-15 (Tex. 2008). For actual knowledge, courts generally
consider whether the premises owner had received reports of prior injuries or reports
15
of the potential danger presented by the condition. Univ. of Tex–Pan Am. v. Aguilar,
251 S.W.3d 511, 514 (Tex. 2008). Constructive knowledge, however, can be
established by facts or inferences that a dangerous condition could develop over
time. Stewart, 249 S.W.3d at 415.
In its brief supporting the plea to the jurisdiction, Lamar asserts that
[Hanington’s] version of facts does not meet the legal standard because
she has produced no evidence that on the day in question, that the
alleged water fountain was a dangerous condition or that [Lamar] had
actual or constructive knowledge of an unreasonably dangerous
condition that existed on premises. There is no evidence that the water
fountain in question was a greater danger than one would encounter
with other water fountains. There is no evidence that [Lamar]
University employees placed the water on the floor or of similar
accidents in Gentry Hall for at least five years before [Hanington’s]
accident. Even though [Hanington] merely speculates that she slipped
on water, the alleged water on the floor was inconspicuous even to
[Hanington] before and after her fall and she has produced no evidence
of the length of time the alleged water existed on the floor prior to her
fall.
In her first amended petition, Hanington alleges that she slipped and fell as a
result of water “accumulated beneath a leaking water fountain.” However, she does
not allege any facts that demonstrate Lamar had actual or constructive knowledge of
water leaking from the fountain.
Lamar attached deposition evidence to its brief in support of its plea to the
jurisdiction, including the following excerpts from Hanington’s deposition:
Q. I want to direct your attention to before and ask you how do you
believe the water got on the floor?
16
A. I don’t know how the water got there.
Q. Do you have any reason to believe that an employee of Lamar
University put the water on the floor?
A. I don’t know.
Q. Okay. And do you have any reason to believe that?
A. I can’t make assumptions of things I don’t know.
In its brief to support its plea to the jurisdiction, Lamar also attached the
deposition of Mary Atkinson, director of Housing and Residential Life at Lamar
University.
Q: Where is your office?
A: Gentry Hall.
Q: Okay. So how much of your time do you spend in Gentry
Hall?
A: Probably at least 80 percent of my time.
Q: Do you know my client, Deborah Hanington?
A: No.
Q: To whom do you report?
A: Vice President Dr. Vicki McNeil, Vice President for Student
Engagement.
Q: Can you tell me a little bit about the reporting protocol once
there’s been an incident in a residence hall?
…
17
A: [ATKINSON] What do you mean by “incident”?
Q: [HANINGTON’S ATTORNEY] Well, I mean an incident
like an accident due to some defect in the premises, something
like what happened to Ms. Hanington. What’s the reporting
protocol following that incident?
…
Q: Director Atkinson observed what appeared to be water in the
cracks of the floor tile near the water fountain. Is that accurate?
A: Yes.
Q: Do you know where that water came from?
A: No.
Q: Was it your impression at that time that Ms. Hanington had
slipped in that water?
…
A: I don’t know.
Q: [HANINGTON’S ATTORNEY]: Can you describe to me –
or do you remember how much water was in the floor cracks?
Was it a puddle? Was it droplets?
A. It was a small amount. It was not a puddle.
Q. Okay. But you did observe water on the floor near where Ms.
Hanington sustained her injuries?
A: I observed what appeared to be water.
Q: Did Ms. Hanington tell you that she had slipped in water?
A: No.
Q: Did anyone tell you that Ms. Hanington had slipped in water?
18
A: I don’t recall.
…
Q. [H]ow are you familiar with Lansdale Painting & Drywall?
A. I know that they do work at Lamar.
Q. Were they doing work in Gentry Hall on the day of Ms.
Hanington’s accident?
A. Yes.
Q: Okay. So on the second page of this statement given by Joseph
Thomas Rye, Jr., on the fourth line down, it reads (reading) :
While I was working, a white male of mid 20s to mid 30s
gathered water from the water fountain and spilled some into the
walkway. Do you see that?
A. Yes.
…
Q: [HANINGTON’S ATTORNEY] Okay. Since your time as
the Director for Housing and Residence Life, do you recall any
other complaints about water leaking from that water fountain in
Gentry Hall?
A: [LAMAR’S ATTORNEY]: Objection, form. Are you talking
about before or after the accident? It’s just unlimited.
Q: [HANINGTON’S ATTORNEY]: First, I’ll start with before.
Are you aware of any complaints that have occurred prior
to Ms. Hanington’s accident of water leaking from that water
fountain in Gentry Hall?
A: No.
19
Q: Post Ms. Hanington’s accident, are you aware of any
complaints about water leaking from that water fountain in
Gentry Hall?
A. Could you clarify what you mean by “complaints”?
Q. Were you informed at any time that there was water leaking
from the water fountain in Gentry Hall after Ms. Hanington’s
accident?
A. Yes.
…
Q: Were there – did you receive any complaints about any
accidents happening because of that water leaking from the water
fountain in Gentry Hall?
A. No
…
Q: So you spend a lot of time in Gentry Hall because your office
is there; correct?
A. Correct.
Q: Have you ever personally witnessed water leaking from that
water fountain in Gentry Hall?
A. No.
Q: So you’ve never noticed that water accumulated under the
fountain due to normal usage?
…
A. No.
…
20
Q: Have there ever been any discussion of placing antislip mats
under that water fountain to catch any water accumulation?
A. No.
Q: Are you aware of any litigation that has arisen regarding slip-
and-fall accidents in Gentry Hall?
A. No.
Lamar also attached the depositions of the security guard of Gentry Hall
dormitory, who stated that he works eight hour shifts in weekly rotations in the
dormitory and has never noticed water accumulating under the fountain, nor was he
aware of any complaints about the fountain.
In addition, Lamar attached evidence from David Martin, Lamar University’s
Associate Vice President of Facilities Management Department who stated the
following in an affidavit:
In my position, I have access to a database that is currently maintained
in the Facilities Management Department. This database provides
information reports of all incidents that have occurred in the buildings
located on the Lamar University campus, including incidents such as
the one alleged by Deborah Hanington in the lawsuit against Lamar
University. The database provides information reports from November
29, 2012 through November 16, 2020, at which time we switched to a
new work order system. I have reviewed all the information reports and
database pertaining to occurrences in Gentry Hall for the time period of
September 14, 2006, through December 12, 2017, the time previous to
the incident in this lawsuit. I find no record in the database of any report
of a spill of any liquid substance, including water, leaks from any of the
water fountains, water accumulating due to a leaking water fountain, or
person slipping on water or a foreign substance in the hallways, lobby
or common areas of Gentry Hall in the time previous to the incident in
this lawsuit.
21
Lamar attached the deposition of Herman Sapp, in which he testified he has
performed maintenance work for Lamar University since 2015, and that prior to
Hanington’s fall, he has never worked on a leaking fountain in Gentry Hall, he never
noticed water accumulating under the water fountains in Gentry Hall and was not
aware of any complaints about water accumulating under the fountain or spills in the
common area.
Finally, Lamar also introduced the deposition of Derek Laird, testifying that
he has worked for Lamar University as maintenance man since September 2015. He
stated he was tasked with inspecting the fountain after Hanington slipped and fell.
He stated that he did not find any evidence that the fountain had been previously
leaking, and that the fountain had never been repaired for leaks before. He also took
video documentation of his inspection, concluding that the fountain was not leaking
under normal circumstances, explaining that when he investigated, he “put in way
more volume water than is a normal use in order to make sure there [were] no leaks.”
It took a long while for it to start leaking. In normal cases, it would not
-- we would not even know that it was leaking at all until I investigated
it such as if it was in normal use, it would have never leaked before. It
had to take a large volume of water in order to force it to leak or clog
or fill up the drain as much as it did.
As discussed previously, although Hanington objected to Lamar’s brief in
support of its plea to the jurisdiction, and asked for the ability to replead, Hanington
rejected the offer from Lamar to reset Lamar’s hearing on its plea to the jurisdiction
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which would have given Hannington more time to replead. Moreover, Hanington
offered no evidence to support her claims or to contest Lamar’s evidence that
established it had no actual or constructive knowledge of the fountain leaking or
causing water to pool or cause a dangerous condition on the floor.
Accordingly, we find that the trial court’s denial of Lamar’s plea to the
jurisdiction was improper as Hanington failed to demonstrate evidence of a premises
defect claim and waiver under the TTCA to overcome Lamar’s sovereign immunity.
We sustain Lamar’s second issue.
IV. Issue Three
In its third issue, Lamar argues that the trial court erred in denying its plea to
the jurisdiction because Hanington cannot proceed on her general negligence claim,
because she has made a premises defect claim.
The Texas Supreme Court stated in Miranda that “[t]he Tort Claims Act’s
scheme of a limited waiver of immunity from suit does not allow plaintiffs to
circumvent the heightened standards of a premises defect claim contained in section
101.022 by re-casting the same acts as a claim relating to the negligent condition or
use of tangible property.” Miranda, 133 S.W.3d at 233. The Texas Supreme Court
explained that if an allegation establish the cause of injuries is related to the cause
of action for injuries resulting from a condition or use of tangible property, to allow
a plaintiff to characterize premises defect claims as claims caused by a negligence
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condition would “render the Legislature’s heightened requirements for premises
defect claims meaningless.” Id.
In her first amended petition, Hanington argues the following regarding
negligence:
Plaintiff would show that the incident in question and her resulting
injuries and damages were brought about and proximately caused by
the negligence of Defendant through the acts and omissions of one or
more of its agents, servants and/or employees. Plaintiff paid for the use
of the dormitory premises and Defendant owed Plaintiff the duty owed
to an invitee. Such duty requires Defendant to use ordinary care to
reduce or eliminate an unreasonable risk of harm created by a premises
condition of which Defendant was or reasonably should have been
aware. Allowing a water fountain to leak onto the floor of the entrance
hallway of the dormitory posed an unreasonable risk of harm.
Defendant knew or reasonably should have known of the dangerous
condition. Defendant had a duty to make the premises in question free
of such hazards before inviting paying residents such as Plaintiff to use
the dormitory. Defendant failed to exercise ordinary care to protect
Plaintiff and other residents from the danger by failing to adequately
monitor the water fountain, including the use of the water fountain,
failing to warn Plaintiff of the dangerous condition, and/or failing to
remove the dangerous condition.
Hanington does not dispute that her negligence claim is a premises defect
claim in either her pleadings or in her brief to this Court, and she labeled her claim
as a “premises defect claim” in her first amended petition. Additionally, our review
of her petition shows that Hanington asserts that she paid for the use of the premises
and therefore was an invitee. She argues that this creates a duty of ordinary care,
Lamar should have been aware of the dangerous condition, and she alleges that
Lamar failed to exercise ordinary care to protect her or its residents, including
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monitoring the fountain or warning of the dangerous condition. Her petition contains
the elements of a premises defect claim. See Daenen, 15 S.W.3d at 99 (discussing
the elements of a premises defect claim); Miranda, 133 S.W.3d at 233. Therefore,
we also sustain Lamar’s final issue.
V. Conclusion
Having sustained Lamar’s first, second and third issues, we reverse the
judgment of the trial court denying its plea to the jurisdiction and dismiss
Hanington’s claim.
REVERSED AND RENDERED.
________________________________
JAY WRIGHT
Justice
Submitted on April 8, 2022
Opinion Delivered March 23, 2023
Before Golemon, C.J., Johnson and Wright, JJ.
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