                                  IN THE
                          TENTH COURT OF APPEALS

                                  No. 10-17-00369-CV

TEXAS A&M UNIVERSITY,
                                                              Appellant
v.

JACQUELINE BOUCHER,
                                                              Appellee



                            From the 85th District Court
                                Brazos County, Texas
                          Trial Court No. 15-002605-CV-85


                            MEMORANDUM OPINION

       Appellee Jacqueline Boucher, while a student at Appellant Texas A&M University,

fractured her femur when she fell while jogging on the university campus as part of a

physical education class.    Boucher fell as a result of tripping over an A-frame, or

sandwich-board, sign that was in the middle of the sidewalk. A&M filed a plea to the

jurisdiction asserting that Boucher’s claims were barred by sovereign immunity. After a

hearing, the trial court granted the plea in part as to Boucher’s claims of negligent hiring,

supervision, training or retention of employees, but denied the plea as to her claims under
§ 101.021(2) of the Texas Tort Claims Act. TEX. CIV. PRAC. & REM. CODE § 101.021(2) (West

2011).

         Boucher asserts in her petition that A&M was negligent and grossly negligent in

failing to maintain reasonably safe premises by placing the sign in the middle of the

sidewalk, by failing to inspect, correct, or warn of the unreasonably dangerous condition,

and in negligently using tangible personal property. A&M appeals, asserting that the

trial court erred because Boucher failed to plead a claim that waived A&M’s sovereign

immunity under the TTCA and, alternatively, that if Boucher has pleaded a claim under

the TTCA, then the discretionary decision exemption bars those claims.

                                    Plea to the Jurisdiction

         Sovereign immunity from suit implicates a trial court’s subject matter jurisdiction

and is properly asserted in a plea to the jurisdiction. See Engelman Irrigation District v.

Shields Brothers, Inc., 514 S.W.3d 746, 751 (Tex. 2017).

                We review a trial court's ruling on a plea to the jurisdiction de novo.
         Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).
         When a party has filed a plea to the jurisdiction challenging the pleadings,
         a reviewing court must construe the pleadings liberally in favor of the
         pleader and look to the pleader's intent. See id. If the facts alleged
         affirmatively demonstrate the trial court's jurisdiction to hear the cause, the
         plea to the jurisdiction must be denied. See id. If the pleadings do not
         contain sufficient facts to affirmatively demonstrate the trial court's
         jurisdiction, but do not affirmatively demonstrate incurable defects in the
         jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should
         be afforded the opportunity to amend. See id. If the pleadings affirmatively
         negate the existence of jurisdiction, then a plea to the jurisdiction may be
         granted without allowing an opportunity to amend. See id. at 227.

Tex. A&M Univ. v. Starks, 500 S.W.3d 560, 567 (Tex. App.—Waco 2016, no pet.) (quoting

Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3-4 (Tex. App.—Houston

Tex. A&M v. Boucher                                                                         Page 2
[14th Dist.] 2008), aff'd, 320 S.W.3d 829 (Tex. 2010)). To avoid dismissal for lack of subject-

matter jurisdiction, a plaintiff must affirmatively demonstrate the court’s jurisdiction to

hear the cause. Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001).

       When a plea to the jurisdiction challenges the existence of jurisdictional facts, the

trial court considers any relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised. Tex. Southern Univ. v. Mouton, 541 S.W.3d 908,

912-13 (Tex. App.—Houston [14th Dist.] 2018, no pet.). When the relevant jurisdictional

facts are disputed, the trial court makes the necessary fact findings to resolve the

jurisdictional issue. Univ. of Texas v. Poindexter, 306 S.W.3d 798, 806 (Tex. App.—Austin

2009, no pet.). In such cases, the summary judgment standard found in Rule 166a(c) of

the Rules of Civil Procedure is applicable. See Sampson v. Univ. of Tex. at Austin, 500

S.W.3d 380, 384 (Tex. 2016) (quoting Miranda, 133 S.W.3d at 221). “[I]f the plaintiffs’

factual allegations are challenged with supporting evidence necessary to consideration

of the plea to the jurisdiction, to avoid dismissal plaintiffs must raise at least a genuine

issue of material fact to overcome the challenge to the trial court’s subject matter

jurisdiction.” Id. When the submitted evidence implicates the merits, “we take as true

all evidence favorable to the plaintiff, indulging every reasonable inference and resolving

any doubts in the plaintiff’s favor.” Id. If the evidence fails to raise a question of fact, the

plea to the jurisdiction must be granted as a matter of law. Suarez v. City of Texas City,

465 S.W.3d 623, 633 (Tex. 2015).

       The parties conducted discovery in relation to the issue of jurisdiction, including

deposing Boucher, the instructor of her physical education class, and Clint Willis, a

Tex. A&M v. Boucher                                                                      Page 3
project manager in A&M’s Transportation Services Department that had the

responsibility of placing and removing signs on the campus. We will take as true

Boucher’s version of how her injury occurred.

       In her deposition, Boucher testified that she met with approximately twenty-five

to thirty individuals from her physical education class to complete a required one-mile

jog on the morning of October 23, 2013. Although the entire class started running at the

same time, they started to split into staggered groups based upon their speed. Boucher

was in the middle of a group of ten to fifteen people, with three people running abreast.

Boucher noticed that the people running in front of her started to split to either side of

the sidewalk. Boucher knew there was something on the sidewalk that the other runners

were avoiding, and she began to move to her left. Boucher saw that the other runners

were splitting to avoid a sandwich-board sign that had been placed in the middle of the

sidewalk. Boucher attempted to move out of the way, but her right foot and ankle hit the

front left foot of the sign. Boucher lost her balance and fell on the grass beside the

sidewalk, resulting in a broken femur. No one else in the class tripped over the sign.

                                  Sovereign Immunity

       Generally, the common law doctrine of sovereign immunity prevents the State

from being sued without the State’s consent. City of Houston v. Williams, 353 S.W.3d 128,

134 (Tex. 2011). The State is protected from suit unless the Legislature has waived its

immunity. See City of Galveston v. State, 217 S.W.3d 466, 468 (Tex. 2007). Political

subdivisions of the State, such as A&M, share this immunity. See Sampson, 500 S.W.3d at

384; see also Prairie View A&M Univ. v. Dickens, 243 S.W.3d 732, 735 (Tex. App.—Houston

Tex. A&M v. Boucher                                                                 Page 4
[14th Dist.] 2007, no pet.). The state and universities such as A&M may be sued only if

the Legislature waives immunity in “clear and unambiguous language.” Sampson, 500

S.W.3d at 384; TEX. GOV’T CODE § 311.034 (West 2013). In the TTCA, the Legislature has

expressly waived the state’s immunity in three areas:          (1) use of publicly owned

automobiles; (2) injuries arising out of a condition or use of tangible personal property;

and (3) premises defects. See TEX. CIV. PRAC. & REM. CODE §§ 101.001-.109 (West 2011 and

West Supp. 2017); see also Sampson, 500 S.W.3d at 384.

       A. Use of Tangible Personal Property. Boucher contends A&M’s sovereign immunity

has been waived because her injury was the result of a “use” of tangible property

involving the sign over which she tripped. A “use” of tangible personal property has

been defined to mean “to put or bring into action or service; to employ for or apply to a

given purpose.” Sampson, 500 S.W.3d at 388 (quoting Miller, 51 S.W.3d at 588). The Texas

Supreme Court has consistently treated slip/trip-and-fall cases as presenting claims for

premises defects. Id. at 386. “Creative pleading does not change the nature of a claim.”

Id. The distinction between a claim based upon a premises defect and one based upon a

use or condition of tangible personal property “lies in whether it is the actual use or

condition of the tangible personal property itself that allegedly caused the injury, or

whether it is a condition of real property—created by an item of tangible personal

property—that allegedly caused the injury.” Id. at 388. If the tangible personal property

created a condition on real property, as in this case, the claim is properly analyzed as a

premises defect claim. To the extent the trial court’s ruling did not grant A&M’s plea as

it related to Boucher’s claim regarding a use of tangible personal property, it was in error.

Tex. A&M v. Boucher                                                                    Page 5
       B. Premises Liability. In a premises-liability case, the duty owed to the plaintiff, if

any, depends on the status of the plaintiff as an invitee, licensee, or trespasser. See Scott

& White Mem’l Hosp. v. Fair, 310 S.W.3d 411, 412 (Tex. 2010). Section 101.022(a) provides

that a governmental unit owes a claimant in a premises defect suit the duty that a private

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

premises. The duty owed to a licensee requires a landowner to not injure the licensee by

willful, wanton or grossly negligent conduct and “to use ordinary care either to warn a

licensee of, or to make reasonably safe, a dangerous condition of which the landowner is

aware and the licensee is not.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d

235, 237 (Tex. 1992); see also Mouton, 541 S.W.3d at 915. Absent willful, wanton, or grossly

negligent conduct, a licensee must prove the following to establish the breach of a duty

owed to her:

       (1) a condition of the premises created an unreasonable risk of harm to the
       licensee; (2) the owner actually knew of the condition; (3) the licensee did
       not actually know of the condition; (4) the owner failed to exercise ordinary
       care to protect the licensee from danger; (5) the owner’s failure was a
       proximate cause of injury to the licensee.

Sampson, 500 S.W.3d at 391 (quoting Payne, 838 S.W.2d at 237).

       An invitee, on the other hand, is a person who enters the premises of another in

answer to an express or implied invitation from the owner or occupier for their mutual

benefit. City of El Paso v. Viel, 523 S.W.3d 876, 892 (Tex. App.—El Paso 2017, no pet.). A

landowner owes an invitee “a duty to make safe or warn against any concealed,

unreasonably dangerous conditions of which the landowner is, or reasonably should be,



Tex. A&M v. Boucher                                                                     Page 6
aware but the invitee is not.” Austin v. Kroger Texas, L.P., 465 S.W.3d 193, 203 (Tex. 2015).

An invitee must prove the following:

       (1) the property owner had actual or constructive knowledge of the
       condition causing the injury; (2) the condition posed an unreasonable risk
       of harm; (3) the property owner failed to take reasonable care to reduce or
       eliminate the risk; and (4) the property owner’s failure to use reasonable
       care to reduce or eliminate the risk was a proximate cause of injuries to the
       invitee.

Henkel v. Norman, 441 S.W.3d 249, 251-52 (Tex. 2014).

       Boucher asserts that she was an invitee due to her payment of tuition, while A&M

argues she should only be considered a licensee. Assuming without deciding that

Boucher is an invitee, she has failed to establish that the sign on the sidewalk constituted

an unreasonable risk of harm. A landowner only has a duty to an invitee to mitigate or

warn of concealed, unreasonably dangerous conditions. See Austin, 465 S.W.3d at 203; see

also Wallace v. ArcelorMittal Vinton, Inc., 536 S.W.3d 19, 23 (Tex. App.—El Paso 2016, pet.

denied). The exclusion of open and obvious risks is consistent with the recognition that a

landowner’s “’duty to invitees is not absolute,’ and it is not an insurer of a visitor’s

safety.” Advance Tire & Wheels, LLC v. Enshikar, 527 S.W.3d 476, 481 (Tex. App.—Houston

[1st Dist.] 2017, no pet.) (quoting Austin, 465 S.W.3d at 203).

               This formulation of duty, which includes a consideration of the
       invitee's existing knowledge of the condition, grows out of the underlying
       justification for the rule. The landowner is usually in a better position to
       know the property, and thus rectify or warn about any hidden hazards.
       Austin, 465 S.W.3d at 203. By the same token, when the hazard is already
       known to the invitee that rationale no longer applies. Id. In that situation,
       the hazard no longer poses an unreasonable risk “because the law presumes
       that invitees will take reasonable measures to protect themselves against
       known risks. . . .” Id. at 203.


Tex. A&M v. Boucher                                                                    Page 7
Wallace, 536 S.W.3d at 23; see also Suarez, 465 S.W.3d at 632 (governmental entity owes no

duty to warn of premises conditions that are open and obvious regardless of whether

such conditions are artificial or naturally occurring). A condition is open and obvious,

and thus not unreasonably dangerous, when it was one the invitee knew of and

appreciated or that a reasonable person would have known and appreciated. Advance

Tire, 527 S.W.3d at 481; see also Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972).

       A variety of factors may be considered in determining whether a condition poses

an unreasonable risk of harm, including:

       (1) whether the condition was clearly marked; (2) whether the injuries had
       occurred in the past; (3) whether any other invitees had complained about
       the condition; (4) whether the condition was unusual as compared to other
       conditions in the same class; and (5) whether the condition met applicable
       safety standards.

Jefferson County v. Akins, 487 S.W.3d 216, 226 (Tex. App.—Beaumont 2016, pet. denied).

Although whether a condition poses an unreasonable risk of harm generally poses a fact

issue, courts have held as a matter of law that a variety of conditions did not pose an

unreasonable risk of harm. See Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007);

see also Seideneck v. Cal Beyreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970); Said v. Sugar

Creek Country Club, Inc., No. 14-17-00079-CV, 2018 WL 4177859, at *5 (Tex. App.—

Houston [14th Dist.] Aug. 31, 2018, no pet.); City of Austin v. Vykoukal, No. 03-16-00261-

CV, 2017 WL 2062259, at *4 (Tex. App.—Austin May 10, 2017, pet. denied).

       The sign was approximately three feet tall and was placed in the middle of a public

sidewalk. Boucher saw the sign and had the opportunity to avoid it. No other runners

in her class tripped over the sign. Willis testified that there had been no other incidents

Tex. A&M v. Boucher                                                                     Page 8
of anyone tripping over an A-frame sign during his eight years of employment. Boucher

presented nothing to dispute Willis’s testimony. The open and obvious sign did not, as

a matter of law, constitute a condition that posed an unreasonable risk of harm. We

conclude that Boucher has failed to establish a waiver of A&M’s sovereign immunity.

We sustain A&M’s first issue. Because the immunity issue is dispositive, we need not

reach A&M’s second issue.

        Having sustained A&M’s first issue, we reverse the trial court’s order denying

A&M’s plea to the jurisdiction and render a judgment dismissing Boucher’s lawsuit for

want of jurisdiction.1




                                                            REX D. DAVIS
                                                            Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Reversed and rendered
Opinion delivered and filed October 3, 2018
[CV06]




1
 Boucher also presented a claim based upon A&M’s violation of policy in relation to placement of the sign.
However, before asserting a negligent implementation of policy, a party must affirmatively demonstrate
that the state agency has waived immunity from suit under some other provision of the TTCA. See Strode
v. Texas. Dep’t of Crim. Justice, 261 S.W.3d 387, 391 (Tex. App.—Texarkana 2008, no pet.); see also Perez v. City
of Dallas, 180 S.W.3d 906, 911 (Tex. App.—Dallas 2005, no pet.) (“A plaintiff must first establish a waiver of
immunity under some other provision of the Texas Tort Claims Act before he can invoke a claim of
negligent implementation.”). As Boucher has failed to present a premises liability claim that waives A&M’s
immunity, she cannot pursue a claim based upon negligent implementation of policy.

Tex. A&M v. Boucher                                                                                      Page 9
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