                           NUMBER 13-13-00590-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

TEXAS DEPARTMENT OF
PUBLIC SAFETY,                                                           Appellant,

                                              v.

RAQUEL GUZMAN,                                                                  Appellee.


                    On appeal from the 139th District Court
                          of Hidalgo County, Texas.


                           MEMORANDUM OPINION
                Before Justices Garza, Benavides, and Perkes
                  Memorandum Opinion by Justice Perkes
       Appellant Texas Department of Public Safety (“DPS”) filed this interlocutory appeal

to challenge the trial court’s order denying its plea to the jurisdiction and motion to dismiss
in a slip and fall case brought against it by appellee Raquel Guzman.1 By two issues,2

DPS argues: (1) the trial court erred because DPS did not have actual knowledge of the

alleged water on the floor; and (2) the trial court abused its discretion when it overruled

DPS’s objections to Guzman’s affidavit. We affirm.

                            I. FACTUAL AND PROCEDURAL BACKGROUND

        Raquel Guzman entered a DPS office in Palmview, Texas to obtain a receipt for

her driver’s license renewal. As she was entering the DPS office, she slipped and fell on

the floor, injuring herself. After she fell, she put her hands on the floor and felt that the

floor was wet. Guzman noticed that an employee, identified as Armando Hilbrands, was

mopping the floor nearby.

        Nelda Diaz, a DPS employee, attempted to assist Guzman after she fell. The only

other people present in the DPS office at the time of Guzman’s fall were Diaz and

Hilbrands. Diaz completed an incident report in which she stated that the “customer

walked into DL office and fell when custodian was mopping.” The incident report also

noted that “Mando [Hilbrands] from DPS was mopping the lobby” when the customer,

Guzman, fell.




        1 Texas Civil Practice and Remedies Code section 51.014(a)(8) provides a right of interlocutory
appeal from a district court’s order that “grants or denies a plea to the jurisdiction by a governmental unit.”
TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West, Westlaw through 2013 3d C.S.).

        2 DPS included as its second issue: “[t]he trial court erred in denying DPS’s Plea to the Jurisdiction

/ Motion to Dismiss because even if Ms. Guzman was an invitee, [DPS] exercised reasonable care prior to
Ms. Guzman’s slip and fall. Guzman, however, has acknowledged in her brief on appeal that she is a
“licensee.” Thus, we need not address DPS’s issue pertaining to an “invitee.”
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       Guzman sued DPS alleging premises liability and negligence. Guzman claimed

that she slipped and fell on a wet floor and concluded that the area where she fell had

been recently mopped and was still “wet with residual water left by the mop.”

       DPS filed a plea to the jurisdiction and motion to dismiss, arguing Guzman failed

to plead facts sufficient to establish a waiver of governmental immunity under the Texas

Tort Claims Act (the “Act”). In support of its plea, DPS offered Hilbrands’ testimony.

Through his affidavit, Hilbrands stated that he did not see any water on the floor and had

not yet mopped the entrance to the lobby where Guzman fell. After a hearing, the trial

court denied DPS's plea to the jurisdiction. This interlocutory appeal followed.

                               II. PLEA TO THE JURISDICTION

       By its first issue, DPS asserts the trial court erred in denying DPS’s plea to the

jurisdiction and motion to dismiss because DPS did not have actual knowledge of the

alleged water on the floor.

A.     Standard of Review

       A plea to the jurisdiction challenges the trial court's subject-matter jurisdiction to

hear a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000); Kamel v.

Univ. of Tex. Health Sci. Ctr., 333 S.W.3d 676, 681 (Tex. App.—Houston [1st Dist.] 2010,

pet. denied). Whether a governmental entity is immune from suit is a question of subject-

matter jurisdiction. Tex. Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). We

may not presume the existence of subject-matter jurisdiction; the burden is on the plaintiff

to allege facts affirmatively demonstrating it. Tex. Ass'n of Bus. v. Tex. Air Control Bd.,

852 S.W.2d 440, 443–44, 446 (Tex. 1993); Kamel, 333 S.W.3d at 681. In deciding a


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plea to the jurisdiction, a court may not consider the merits of the case, but only the

plaintiff's pleadings and evidence pertinent to the jurisdictional inquiry.        County of

Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Kamel, 333 S.W.3d at 681. The

existence of subject-matter jurisdiction is a question of law that we review de novo. State

Dep't of Hwys. & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); Kamel, 333

S.W.3d at 681.

       When a plea challenges the existence of jurisdictional facts, we must consider

relevant evidence submitted by the parties to resolve the jurisdictional issues. Tex. Dep't

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004); Kaufman County. v.

Leggett, 396 S.W.3d 24, 28 (Tex. App.—Dallas 2012, pet. denied). In reviewing such a

plea, we 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

227–28. This standard mirrors our summary-judgment standard under Texas Rule of

Civil Procedure 166a(c) and places the burden on the governmental unit, as movant, to

meet the standard of proof to support its contention that the trial court lacks subject-matter

jurisdiction. Id. at 228. Once the governmental unit asserts and provides evidentiary

support for its plea, the plaintiff is then required to show only that a disputed fact issue

exists. Id.; Leggett, 396 S.W.3d at 28. If the evidence creates a fact question on the

jurisdictional issue, the trial court cannot grant the plea; rather, the fact issue is for the

fact finder to resolve. Miranda, 133 S.W.3d at 227–28. If the relevant evidence fails to

raise a fact question or is undisputed on the jurisdictional issues, the trial court rules on

the plea as a matter of law. Id. at 228.


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B.     Applicable Law

       A government entity has sovereign immunity from suit. City of Dallas v. Reed,

258 S.W.3d 620, 622 (Tex. 2008); Miranda, 133 S.W.3d at 225–26. The Legislature,

however, has provided a limited waiver of a city's immunity from suit for certain tort claims

under the Act. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.025 (West, Westlaw through

2013 3d C.S.); State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). The Act includes,

among other things, a limited waiver of a city's immunity from suits for “personal injury

and death so caused by a condition or use of . . . 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).

       The Act recognizes premises claims, and the proof required to establish a breach

of the duties owed for such a claim. See id. § 101.022; State Dep't of Highways & Pub.

Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Regarding a premises defect, the

State owes a person the same duty a private landowner owes a licensee. TEX. CIV.

PRAC. & REM. CODE § 101.022(a); State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).

That duty requires that a landowner not injure a licensee by willful, wanton or grossly

negligent conduct, and that the owner use ordinary care either to warn a licensee of, or

to make reasonably safe, a dangerous condition of which the owner is aware and the

licensee is not. Tennison, 509 S.W.2d at 562. The elements of a licensee's premises

liability claim are:

       (1) a condition of the premises created an unreasonable risk of harm to the
           licensee;

       (2) the owner actually knew of the condition;

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      (3) the licensee did not actually know of the condition;

      (4) the owner failed to exercise ordinary care to protect the licensee from
          danger either by not adequately warning the licensee of the condition or
          by not making the condition reasonably safe; and

      (5) the owner's failure was a proximate cause of injury to the licensee.

Payne, 838 S.W.2d at 237.

C.    Analysis

      Guzman argues that since a DPS employee allegedly created the dangerous

condition by mopping the floor, it is deemed to have actual knowledge of the dangerous

condition. See Tex. Dep’t of Transp. v. Henson, 843 S.W.2d 648, 652 (Tex. App.—

Houston [14th Dist.] 1992, write denied) (by creating dangerous condition through

improper use of barrel-signs, State was deemed to have actual notice of defect); Prairie

View A&M Univ. v. Thomas, 684 S.W.2d 169, 171 (Tex. App.—Houston [14th Dist.] 1984,

writ ref’d) (where State employees excavated hole and failed to place barricades or

warning signs, State was deemed to have actual knowledge of condition and duty to warn

pedestrians of danger).

      In support of her contention that the State created the dangerous condition that led

to her fall, Guzman offers her own affidavit stating that she saw a DPS employee mopping

the lobby when she fell. From this, she infers that she slipped and fell on a floor that

appeared to have been recently mopped. Guzman’s version of events is substantiated

by DPS’s own accident report which states “a customer fell while Mando [Hilbrands] was

mopping the lobby.” Hilbrands disputes Guzman’s conclusion by claiming that he had

not yet mopped the area where she fell, but that merely creates a fact issue.


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      We conclude that Guzman’s testimony and the DPS accident report creates a

reasonable inference of Hilbrand’s actual knowledge of a dangerous condition that

suffices to establish the governmental unit's actual knowledge of the alleged premises

defect. See Wal-Mart Stores, Inc. v. Chavez, 81 S.W.3d 862, 864 (Tex. App.—San

Antonio 2002, no pet.) (when defendant's employee learns of dangerous condition,

defendant has actual notice of dangerous condition); Reliable Consultants, Inc. v. Jaquez,

25 S.W.3d 336, 343 (Tex. App.—Austin 2000, pet. denied) (same). Therefore, indulging

every reasonable inference and resolving any doubts against DPS, we hold that the

evidence sufficiently raises a question of fact regarding whether DPS had actual

knowledge of the wet floor where Guzman slipped and fell. See Miranda, 133 S.W.3d at

227–28. In that event, the Texas Tort Claims Act imposes a duty on the governmental

unit. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a).

      The trial court did not err in denying DPS's plea to the jurisdiction and motion to

dismiss. See Leggett, 396 S.W.3d at 28. We overrule DPS's first issue.

                                III. GUZMAN’S AFFIDAVIT

      By its third issue, DPS argues the trial court abused its discretion when it overruled

DPS’s objections that Guzman’s statement in her affidavit that the floor was recently

mopped was conclusory and speculative. DPS contends she made that “conclusion

after she saw the DPS employee at a distance to her right with a mop . . . [and that] she

has no factual support as to how she concluded that the ‘wet spot’ was from the floor

being ‘recently mopped.’”




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A.     Standard of Review

       Decisions regarding the admissibility of evidence are left to the sound discretion of

the trial court. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Pegasus

Energy Group v. Cheyenne Petroleum Co., 3 S.W.3d 112, 133 (Tex. App.—Corpus

Christi 1999, pet. denied). A trial court abuses its discretion when it acts without regard

for any guiding rules or principles. City of Brownsville v. Alvarado, 897 S.W.2d 750, 754

(Tex. 1995).   To obtain reversal of a judgment based on error in the admission or

exclusion of evidence, appellants must show the trial court committed error, and that the

error was reasonably calculated to cause and probably did cause the rendition of an

improper judgment. TEX. R. APP. P. 44.1(a)(1); McCraw v. Maris, 828 S.W.2d 756, 758

(Tex. 1992); Gee, 765 S.W.2d at 396; Pegasus, 3 S.W.3d at 133; Downen v. Tex. Gulf

Shrimp Co., 846 S.W.2d 506, 512 (Tex. App.—Corpus Christi 1993, writ denied).

B.     Applicable Law

       DPS argues that Guzman’s statements are speculative and conclusory. There

are two types of conclusory statements: (1) legal conclusions; and (2) factual conclusions.

Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ).

The objection that a statement is “conclusory” is frequently made to challenge affidavits.

See Johnson v. Bethesda Lutheran Homes & Servs., 935 S.W.2d 235, 239 (Tex. App.—

Houston [1st Dist.] 1996, no writ.) (Hedges, J., concurring). It does not mean that logical

conclusions based on stated underlying facts are improper. Id.; Anderson v. Snider, 808

S.W.2d 54, 55 (Tex. 1991). What is objectionable is testimony that is nothing more than


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a legal conclusion. Rizkallah, 952 S.W.2d at 587. To allow such testimony is to reduce

to a legal issue a matter that should be resolved by relying on facts. Id. Statements of

legal conclusions amount to little more than the witness choosing sides on the outcome

of the case. Mowbray v. State, 788 S.W.2d 658, 668 (Tex. App.—Corpus Christi 1990,

pet. ref'd).

        Similarly, factually conclusive statements in affidavits are not proper if there are no

facts to support the conclusions. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122

(Tex. 1996) (interested witness affidavit that says affiant “estimates” or “believes” certain

facts will not support summary judgment).           Conclusory statements without factual

support are not credible, and are not susceptible to being readily controverted. Id.; see

TEX. R. CIV. P. 166a(c) (West, Westlaw through 2013 3d C.S.).

C.      Analysis

        DPS claims Guzman failed to provide any facts that would support her conclusion

because she does not explain what a recently mopped floor looks like and does not

elaborate on the meaning of “residual water.” DPS argues that residual water on a

recently mopped floor could have come from a number of other sources such as a child

spilling a cup of water or a person at a water fountain. DPS reasons that because

Guzman did not actually see Hilbrands mopping the lobby, she cannot specifically identify

the source of the water, and therefore her affidavit is conclusory. We are unpersuaded

by DPS’s argument.

        In her affidavit, Guzman states:

        While I was walking through the doorway and entering the [DPS office]
        premises, I slipped on a wet spot on the floor . . . Immediately after my fall I

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       noticed an employee mopping the floor . . . I didn’t slip in a standing puddle
       of water, I slipped in an area that appeared to have been recently mopped.
       The surface of the floor was wet with residual water left by the mop.

       Guzman’s observations are more than estimates or beliefs.           She specifically

includes factual observations that she slipped “on a wet spot on the floor”, “noticed an

employee mopping the floor”, and “[did not] slip in a standing puddle of water.” These

factual observations distinguish Guzman’s affidavit from instances where there are no

facts to support the conclusions. See Ryland, 924 S.W.2d at 122; Tex. Div.-Tranter, Inc.

v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (“I believe I was terminated because” did

not raise a fact issue in response to a motion for summary judgment).              Guzman’s

conclusion that she slipped on a recently mopped floor is supported by her factual

observations.   See Rizkallah, 952 S.W.2d at 587 (finding that some, but not all, of

plaintiff’s factually conclusive statements about the condition of her car were supported

by her affidavit). Whether her conclusion is correct is a question for the jury.

       The trial court did not abuse its discretion in overruling DPS’s objections. We

overrule DPS’s third issue.

                                     IV. CONCLUSION

       We affirm the holdings of the trial court.



                                                    GREGORY T. PERKES
                                                    Justice

Delivered and filed the
13th day of November, 2014.




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