Opinion issued January 23, 2020




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-19-00197-CV
                            ———————————
                        CITY OF HOUSTON, Appellant
                                         V.
                           BOBBY TERRY, Appellee


                   On Appeal from the 80th Judicial District
                            Harris County, Texas
                      Trial Court Case No. 2018-06593


                          MEMORANDUM OPINION

      The City of Houston appeals from the trial court’s denial of its plea to the

jurisdiction. We reverse and render a judgment dismissing for lack of jurisdiction.
                                 BACKGROUND

      Bobby Terry was electrocuted while performing maintenance work on a

communication tower leased by the City. He sued the City under two theories of

liability. He asserted a negligence claim contending that the City had waived its

governmental immunity under the Tort Claims Act’s provision covering personal

injuries caused by the use of tangible personal property. See TEX. CIV. PRAC. & REM.

CODE § 101.021(2). He also asserted a premises defect claim contending that the

City had waived its governmental immunity under the Tort Claims Act’s premises

liability provision. See id. §§ 101.021(2), 101.022(a).

      The City filed a plea to the jurisdiction contending that it had not waived its

governmental immunity. With respect to Terry’s negligence claim, the City asserted

that its lone employee at the accident site had not caused any injury through the use

of tangible personal property. As to Terry’s premises defect claim, the City asserted

that it had not waived its immunity because it did not have actual knowledge of the

dangerous condition before Terry was injured.

      Both parties submitted evidence in support of their respective positions. In the

summary that follows, we view the evidence in the light most favorable to Terry,

indulging every reasonable inference raised and resolving any doubts in his favor.

      Terry was an employee of an independent contractor hired by the City to

maintain communications towers. On the day of the accident, Terry was assigned to


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climb a tower that was about 300 feet tall to replace a lightbulb at the top. He was

accompanied to the site by an employee of the City, Onterrion Hunter, who was there

to unlock the gate to the premises, unlock the box housing the tower’s control panel,

and turn off the electricity that powered the tower. For Terry’s safety, the power

needed to be shut off before he could climb the tower and replace the lightbulb.

      The control box is at the tower’s base. Removing the control box’s faceplate

turns off the power to the tower—or at least that is how the control box is designed

to work. There is a factual dispute as to who removed the faceplate that day—Terry

says it was Hunter and Hunter says it was one of Terry’s coworkers who was also at

the site—but it is undisputed that the faceplate was removed before Terry began his

ascent. Terry testified that he asked Hunter if the power had been turned off before

he began climbing and that Hunter told him it had.

      It took Terry a half hour to an hour to climb up to the lightbulb. Once Terry

reached the top of the tower, he secured himself in place with a safety lanyard and

removed the housing encasing the lightbulb. When he grabbed the lightbulb itself,

he was electrocuted and passed out. After Terry regained consciousness, he climbed

back down the tower and subsequently was taken to the hospital in an ambulance.

      After the accident, Hunter put the faceplate back on the control box. Once the

faceplate was in place, Hunter saw the other lights on the tower turn back on and

heard the humming of electricity as power returned to the tower.


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      In his deposition, Terry testified that he was electrocuted because “the power

wasn’t turned off or it wasn’t turned off correctly.” Hunter testified that he did not

know the source of the electricity that shocked Terry. Hunter maintained, however,

that the power was off because (1) power immediately stops running to the tower

when the control box’s faceplate is removed and (2) Terry’s injuries would have

been far more severe had the power been on.

      Hunter noted that there are capacitors in or near the control box and on the

tower, both of which may retain some residual voltage after the power is turned off.

He knew that the capacitors associated with the control box retained voltage only for

a short while. A manual concerning the control box indicates that this residual

voltage should dissipate after about one minute. Hunter stated that the power stored

in these capacitors would last from “seconds to maybe a couple of minutes.” He did

not know if the tower’s capacitors were like the ones in or near the box. He agreed

that it was possible that the tower’s capacitors might retain residual voltage for a

longer period of time, but he had no training as to them and did not know how long

they retained voltage.

      The trial court granted the City’s jurisdictional plea as to Terry’s negligence

claim but denied the plea as to his premises defect claim. The City appeals from the

denial of its jurisdictional plea contending that it is immune from suit on the premises




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defect claim. Terry has not appealed from the trial court’s ruling that his negligence

claim is barred by governmental immunity.

                                   DISCUSSION

                                 Standard of Review

      We review de novo a trial court’s ruling on a plea to the jurisdiction. City of

Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018).

When, as here, the plea challenges the existence of jurisdictional facts, we decide

whether the record raises a fact issue that must be resolved by the trier of fact. Klumb

v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015). In doing so, we

accept as true all evidence favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts in the nonmovant’s favor. Suarez v. City of Tex.

City, 465 S.W.3d 623, 633 (Tex. 2015). If the evidence raises a fact issue, then the

plea must be denied; if not, then the plea must be granted. Id.

                                   Applicable Law

      This appeal requires us to decide whether the City is immune from suit as to

Terry’s premises liability claim. Because Terry did not appeal from the trial court’s

order, his negligence claim is not before us. See TEX. R. APP. P. 25.1(c); Lubbock

Cty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002).

      A claim for premises liability is distinct from a claim for general negligence.

See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384–91 (Tex. 2016); Oncor


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Elec. Delivery Co. v. Murillo, 449 S.W.3d 583, 591–92 (Tex. App.—Houston [1st

Dist] 2014, pet. denied) (en banc). The latter is not a basis for the waiver of

governmental immunity under the Tort Claims Act’s premises liability provision.

See TEX. CIV. PRAC. & REM. CODE §§ 101.021(2), 101.022(a); Sampson, 500 S.W.3d

at 385–86. The Tort Claims Act’s premises liability provision imposes heightened

requirements for liability, and they cannot be avoided by recasting a premises defect

claim as one for general negligence. Sampson, 500 S.W.3d at 385–86.

      A governmental unit generally is subject to suit for premises defects to the

same extent that a private person would be with respect to a licensee on private

property. TEX. CIV. PRAC. & REM. CODE § 101.022(a). Thus, a governmental unit

owes a duty not to injure those on its property by willful, wanton, or grossly

negligent conduct and must use ordinary care either to warn of, or make reasonably

safe, a dangerous condition that it is aware of and persons on its property are not.

Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664 (Tex. 2019).

      Awareness means actual knowledge of the dangerous condition at the time of

the accident. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (per

curiam). Constructive knowledge is not enough. City of Corsicana v. Stewart, 249

S.W.3d 412, 415–16 (Tex. 2008) (per curiam). There is no one test for deciding

whether there was actual knowledge. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d

511, 513 (Tex. 2008) (per curiam). Circumstantial evidence suffices to show actual


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knowledge only when it does so directly or by reasonable inference. Stewart, 249

S.W.3d at 415.

                                      Analysis

      Terry does not allege that Hunter’s conduct was willful or wanton or that

Hunter was grossly negligent. Terry solely relies on the Tort Claims Act’s premises

defect provision as the basis for waiver of the City’s governmental immunity. During

the course of litigation, he has advanced at least two distinct positions as to how he

was electrocuted. He has argued that Hunter failed to turn off the electricity

altogether, and he has argued that residual electricity retained by the capacitors

remained when he tried to change the tower’s lightbulb. In either case, the dangerous

condition of which he complains relates to the tower’s electricity.

      We reject Terry’s implicit contention that Hunter’s alleged failure to turn off

the electricity, or to do so correctly, is a premises defect claim. In Oncor, we

distinguished between claims of general negligence and premises liability in the

context of a suit alleging injuries from electrocution. 449 S.W.3d at 591–92. We

explained that malfeasance theories of liability alleging injury resulting from

affirmative, contemporaneous conduct of another, rather than by a condition created

by the other’s act, state a claim for general negligence, not premises liability. Id.

Premises liability instead concerns nonfeasance theories of liability based on the

failure to take measures to make the property safe. Id. Discussing the facts of that


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case, we noted that telling a contractor that the electricity to a transformer had been

turned off when in fact it had not would be an allegation of general negligence. See

id. at 593. Terry’s allegation that Hunter did not turn off the power but nevertheless

assured Terry that he had done so likewise is a complaint about affirmative,

contemporaneous conduct that allegedly caused the injury and therefore constitutes

a general negligence claim. See Sampson, 500 S.W.3d at 388–91; Oncor, 449

S.W.3d at 591–93.

      A general negligence claim cannot serve as the basis for the waiver of

governmental immunity under the premises defect provision of the Tort Claims Act.

See TEX. CIV. PRAC. & REM. CODE § 101.022(a); Sampson, 500 S.W.3d at 385–86.

Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the

tower therefore is immaterial to the merits of the lone issue before us on appeal.

      As to Terry’s alternate theory about the residual electricity stored in the

capacitors, the record does not raise a fact issue as to whether Hunter knew that this

residual electricity posed a danger to Terry. Hunter was familiar with the capacitors

in or near the control box, but it is undisputed that any residual electricity stored in

them should have dissipated about a minute or two after the power was turned off.

Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb

where he was electrocuted, Hunter’s awareness that these capacitors briefly held

residual voltage does not support an inference that he had actual knowledge of the


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dangerous condition that Terry encountered. Hunter testified that he would not

expect there to be any power left in control box’s capacitors by the time Terry

reached the lightbulb at the top of the tower.

      Hunter acknowledged that it is possible that the capacitors on the tower itself

could retain electricity for a longer period of time, but he did not know if they did

so or not. His testimony makes it clear that he did not have actual knowledge of the

dangerous condition that allegedly existed at the time of the accident:

      Q. And the only way that power could still go to the tower once the
         faceplate’s removed is through the capacitors?
      A. Yes. For a short amount of time, yes.
      Q. A short amount of time based on the capacitors that are on the
         ground near the box, correct?
      A. Yes.
      Q. But you did—
      A. That’s what I’m basing it off of, yes.
      Q. Yes, sir. But you did testify that there’s additional capacitors on the
         tower, right?
      A. Yes.
      Q. And you were never trained on those capacitors?
      A. No.
      Q. So, you can’t sit here and—and tell our jury one way or another
         about the time that those additional capacitors would hold power?
      A. Correct.
      Q. So, it could hold power for 20 or 30 seconds? It’s possible?
      A. Yes.
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      Q. It could hold power for 45 minutes to an hour?
      A. Yes.
      Q. And, unfortunately, you don’t know one way or another?
      A. No.

      At most, Hunter’s testimony about the tower’s capacitors raises an inference

that he may have been aware of a hypothetical hazard. That is not enough. See

Sampson, 500 S.W.3d at 392 (“Hypothetical knowledge will not suffice.”); see also

Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) (“Awareness

of a potential problem is not actual knowledge of an existing danger.”). To affirm

the trial court’s ruling, there must be a fact issue as to whether Hunter had actual

knowledge of the existing dangerous condition that Terry encountered. There is not.

      Terry relies on Jefferson County v. Akins, 487 S.W.3d 216 (Tex. App.—

Beaumont 2016, pet. denied), in support of his contrary position. But Akins is not

like Terry’s suit. Akins was a slip-and-fall case, in which a jury found for the plaintiff

and a divided court of appeals affirmed. Id. at 220, 234. The defendant contended

on appeal that there was legally insufficient evidence that it knew about the

dangerous condition—a wet floor—when the plaintiff fell. Id. at 228–29. The jury

heard evidence that a mopping crew was near the spot where the plaintiff fell and

that the plaintiff and the floor surrounding the spot where she fell were wet

afterward. Id. at 222, 228. The crew’s supervisor was aware that wet floors posed a

safety risk and she scolded her crew immediately after the accident for having left

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the area wet. Id. at 222, 228–29. The panel’s majority held that a reasonable jury

could infer that the defendant actually knew of the dangerous condition at the time

of the accident because there was evidence that the defendant’s employees created

the condition. See id. at 228–29. One member of the panel dissented. Id. at 234–37.

      Assuming without deciding that Akins was correctly decided, its reasoning is

inapposite here. The majority relied on the principle that when a property owner

creates the dangerous condition at issue, this circumstance is some evidence that it

actually knew about the condition, which creates a fact issue for the jury to resolve.

Id. at 228 (citing Keetch v. Kroger Co., 845 S.W.2d 262, 266 (Tex. 1992)). But

Terry’s lone viable premises defect claim is not premised on Hunter having created

the dangerous condition that Terry encountered. Assuming that the tower’s

capacitors were the source of the electricity that injured Terry, any power they stored

was present because that is how the capacitors operate. Hunter, however, did not

know they posed a danger, and Terry does not allege that Hunter did anything that

affected how they operated. Hunter’s act of turning off the tower’s power, which did

not electrocute Terry, is not analogous to mopping the floor and leaving it wet.

                                  CONCLUSION

      We reverse the trial court’s order denying the City’s plea to the jurisdiction

and render a judgment of dismissal for lack of jurisdiction.




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                                            Gordon Goodman
                                            Justice

Panel consists of Justices Lloyd, Goodman, and Landau.

Justice Landau, concurring without separate opinion.




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