Reversed and Rendered and Memorandum Opinion filed August 7, 2018.




                                        In The

                        Fourteenth Court of Appeals

                                 NO. 14-18-00089-CV

                THE CITY OF STAFFORD, TEXAS, Appellant
                                          V.
                            JOE SVADLENAK, Svadlenak

                        On Appeal from the 268th District Court
                                Fort Bend County, Texas
                         Trial Court Cause No. 17-DCV-242637

                   MEMORANDUM OPINION
      Joe Svadlenak sued the City of Stafford to recover for injuries he sustained
after falling down the stairs at the Stafford City Civic Center. The City appeals the
trial court’s denial of its plea to the jurisdiction, which sought dismissal of
Svadlenak’s suit based on governmental immunity. We reverse the trial court’s
order denying the City’s plea to the jurisdiction and render a take-nothing judgment
in favor of the City.
                                         BACKGROUND

          Svadlenak, a claims investigator, was investigating an unrelated incident at
the Stafford City Civic Center when he fell down a set of stairs. The following
factual recitation is taken from the parties’ affidavits and accompanying photos.

          On the day of the incident, Susan Ricks, the City’s Director of Recreation,
was walking Svadlenak through the Civic Center’s auditorium. According to Ricks,
while she was walking through the auditorium with Svadlenak, “the ‘can’ lights in
the ceiling of the Civic Center were on . . . it was daylight and the auditorium doors
were open which allow[ed] light into the auditorium.”

          Ricks states that she walked down the first set of three stairs then up a second
set of stairs that led onto the auditorium stage. As he was following Ricks,
Svadlenak stopped before the first set of stairs to take photographs of the stage.
Svadlenak proceeded to follow Ricks towards the stage when he “fell unexpectedly.”
Svadlenak fell down a set of three carpet-covered stairs. The first step at the top of
the stairs was framed by a waist-high wall, and all three steps were flanked by
handrails on either side.

          Ricks states that, when she reappeared on the auditorium stage, she saw
Svadlenak getting up from the floor. Ricks asked if Svadlenak was “ok.” Svadlenak
replied “yes” and said that he was “ok.”

          Svadlenak asserts that, after he fell, he told Ricks “that the stairs should have
been marked with a warning and supplied with better lighting.” According to
Svadlenak, Ricks informed him the City “had upgraded and installed step lighting
in their other auditorium and planned to install step lighting in this auditorium.” 1

      1
         The City challenges this portion of Svadlenak’s affidavit. According to Ricks’s
supplemental affidavit, she contends that she did not tell Svadlenak the City planned to install step
lighting in the Civic Center because step lighting already had been installed in the Civic Center
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Ricks’s affidavit states:

       I was not aware the stairs were “dangerous” or a hazard in any way and,
       in fact, I had walked down the same stairs minutes before Mr.
       Svadlenak fell.
After his fall, Svadlenak underwent eye surgery for a “dense vitreous hemorrhage
and three (3) giant retinal tears.” Seeking to recover for his injuries, Svadlenak sued
the City and asserted a premises liability claim under the Texas Tort Claims Act (the
“TTCA”). See Tex. Civ. Prac. & Rem. Code Ann. § 101.022 (Vernon 2011).

       The City filed a plea to the jurisdiction; the trial court denied the plea in an
order signed January 19, 2018. The City timely filed an interlocutory appeal. See
id. § 51.014(a)(8) (Vernon Supp. 2017).

                                   STANDARD OF REVIEW

       A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction
to hear a case. Tex. Dep’t of Parks & Wildlife v. Miranda., 133 S.W.3d 217, 225-26
(Tex. 2004). We review a challenge to the trial court’s subject matter jurisdiction
de novo. Id. at 226. A plaintiff bears the burden of alleging facts that demonstrate
the trial court’s jurisdiction. Id. “We consider only the plaintiff’s pleadings and the
evidence pertinent to the judicial inquiry, and we do not consider the claim’s merits.”
Johnson v. Oxy USA, Inc., 533 S.W.3d 395, 398 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). The standard of review for a jurisdictional plea “mirrors that of
a summary judgment” and we construe the pleadings and evidence liberally in favor
of the plaintiff. Miranda, 133 S.W.3d at 226-27.

       Governmental immunity protects the State and its political subdivisions from


since at least 2002. In support of this assertion, the City submitted into evidence a photograph of
the stairs that Svadlenak fell down. It is not readily apparent from the photograph whether there
are step lights on the stairs.
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lawsuits and liability. Miranda, 133 S.W.3d at 224; see Univ. of Tex. Health Sci.
Ctr. at Houston v. McQueen, 431 S.W.3d 750, 754 (Tex. App.—Houston [14th
Dist.] 2014, no pet.) (“Absent a waiver, governmental entities . . . are generally
immune from suits for damages.”).

      The TTCA waives governmental immunity for negligent acts in certain
circumstances, including for those involving personal injuries caused by a condition
or use of real property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (Vernon
2011). The TTCA limits a governmental entity’s duty for ordinary premises defects
to “the duty that a private person owes to a licensee on private property[.]” Id.
§ 101.022(a). Svadlenak agrees in his briefing that he was a licensee at the time of
the incident giving rise to his suit. When a governmental entity has actual knowledge
of a dangerous condition and the licensee does not, the entity has a duty to exercise
ordinary care to warn the licensee of the condition or to make the condition
reasonably safe. City of Denton v. Paper, 376 S.W.3d 762, 766 (Tex. 2012) (per
curiam).

                                      ANALYSIS

      The City challenges the trial court’s denial of its plea to jurisdiction on
grounds that (1) the City “was not aware of a dangerous condition on its premises
prior to the accident” as required to waive immunity under the TTCA; and (2) “Mr.
Svadlenak failed to provide the city with the required notice.” Because we sustain
the City’s first issue, we do not address its second issue on appeal.

      To establish a waiver of governmental immunity under the TTCA, a licensee
must show that the premises owner had actual knowledge of the dangerous condition
at the time of the incident. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117
(Tex. 2010) (per curiam); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).
“Although there is no one test for determining actual knowledge that a condition

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presents an unreasonable risk of harm, courts generally consider whether the
premises owner has received reports of prior injuries or reports of the potential
danger presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d
511, 513 (Tex. 2008) (per curiam).

       Evidence that the premises owner could have done more to warn the licensee
does not show awareness of a dangerous condition as necessary to waive immunity.
Hayes, 327 S.W.3d at 117-18 (“Hayes’s suggestion that the University could have
done more to warn him is not direct evidence to show that the University had actual
knowledge of a dangerous condition”). Similarly, evidence showing only that a
premises owner “knew of a safer, feasible alternative design” does not indicate that
the owner had actual knowledge of a dangerous condition. See CMH Homes, Inc. v.
Daenen, 15 S.W.3d 97, 102 (Tex. 2000).2 “[A] condition is not unreasonably
dangerous simply because it is not foolproof.” Brinson Ford, Inc. v. Alger, 228
S.W.3d 161, 163 (Tex. 2007) (per curiam).

       Svadlenak asserts that the “unmarked, unlit stairs created a sudden drop-off
which posed an unreasonable risk of harm.” Even assuming that the stairs were unlit
and the City was aware that the stairs were unlit, we conclude that the evidence does
not give rise to an issue of fact regarding the City’s awareness of a dangerous
condition arising from unlit stairs.

       Ricks states in her affidavit that she was not aware “of any other accident
involving [the stairs at issue] in which someone claimed the stairs were hard to see
or needed better lighting.” Svadlenak did not present any evidence to rebut Ricks’s
statement regarding prior incidents. The record does not contain any evidence

       2
        The court in Daenen analyzed the duty owed by a premises owner to an invitee. See
Daenen, 15 S.W.3d at 102. The duty owed by a premises owner to an invitee is greater than the
duty owed to a licensee. See Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910 (Tex.
App.—Houston [14th Dist.] 2009, no pet.).
                                              5
indicating that anyone else previously has fallen down the stairs at issue. This
circumstance points to a lack of knowledge of the assertedly dangerous condition
arising from unlit stairs. See Univ. of Tex.-Pan Am., 251 S.W.3d at 513.

      Svadlenak asserts that the City knew of the allegedly dangerous condition
because, after Svadlenak fell, Ricks allegedly told him the City “had upgraded and
installed step lighting in their other auditorium and planned to install step lighting in
this auditorium.” This assertion, at most, suggests the City knew of an alternative
design that would have increased the lighting on the stairs. This evidence does not
give rise to an issue of fact regarding whether the City had any awareness of a
dangerous condition at the time of Svadlenak’s fall. See Hayes, 327 S.W.3d at 117-
18 (evidence showing the University “could have done more to warn” the plaintiff
did not show actual knowledge of a dangerous condition); cf. Daenen, 15 S.W.3d at
102 (“a safer, feasible alternative design” does not show actual knowledge of a
dangerous condition).

      This conclusion is reinforced because Ricks’s affidavit states that, at the time
Svadlenak fell, the “can” lights in the auditorium were on; the auditorium doors were
open; and daylight illuminated the auditorium. Therefore, when Svadlenak fell, the
auditorium already was illuminated — any plans with respect to additional lighting
do not indicate awareness of a dangerous condition arising from unlit stairs at the
time of Svadlenak’s fall.

      Moreover, the top step of the stairs was framed by a waist-high wall and
handrails flanked both sides of all three stairs. Ricks’s affidavit states that she was
not aware the stairs were dangerous or a hazard, and she walked down the steps
without incident immediately before Svadlenak fell. This evidence, considered
together, does not give rise to an issue of fact with respect to the City’s awareness
of a dangerous condition arising from unlit stairs at the time of Svadlenak’s fall.

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      We sustain the City’s first issue. Because we conclude that Svadlenak’s
claims are barred by immunity, we do not address the City’s second issue on appeal
challenging Svadlenak’s provision of notice.

                                  CONCLUSION

      We reverse the trial court’s January 19, 2018 order denying the City’s plea to
the jurisdiction. We render a take-nothing judgment in favor of the City.



                                      /s/       William J. Boyce
                                                Justice



Panel consists of Justices Boyce, Christopher, and Busby.




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