                                                                                               ACCEPTED
                                                                                          03-14-00749-CV
                                                                                                 4128672
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     2/12/2015 2:17:16 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                            No. 03-14-00749-CV

                  In the Court of Appeals for the                   FILED IN
                                                             3rd COURT OF APPEALS
                  Third Judicial District, Austin                AUSTIN, TEXAS
                                                             2/12/2015 2:17:16 PM
                                                               JEFFREY D. KYLE
                                                                     Clerk
                   THE UNIVERSITY OF TEXAS AT AUSTIN,
                                            Appellant,
                                   v.

                      WILLIAM A. BELLINGHAUSEN, JR.,
                                            Appellee.


     On Appeal from the 345th Judicial District Court of Travis County


                            APPELLANT’S BRIEF


KEN PAXTON                               SCOTT A. KELLER
Attorney General of Texas                Solicitor General

CHARLES E. ROY                           JOSEPH D. HUGHES
First Assistant Attorney General         Assistant Solicitor General
                                         State Bar No. 24007410
                                         jody.hughes@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548 (MC 059)                  JASON WARNER
Austin, Texas 78711-2548                 Assistant Attorney General
Tel.: (512) 936-1729
Fax: (512) 474-2697                      COUNSEL FOR APPELLANT


                  ORAL ARGUMENT REQUESTED
                       IDENTITY OF PARTIES AND COUNSEL

Appellant: The University of Texas at Austin (“UT-Austin” or “the University”)

Counsel for Appellant:
Lead Appellate Counsel                Trial and Additional Appellate Counsel
 Joseph D. Hughes                       Jason Warner
 State Bar No. 24007410                 State Bar No. 24028112
 Assistant Solicitor General            Assistant Attorney General
 OFFICE OF THE ATTORNEY GENERAL         OFFICE OF THE ATTORNEY GENERAL
 P.O. Box 12548 (MC 059)                P.O. Box 12548 (MC 017)
 Austin, Texas 78711-2548               Austin, Texas 78711-2548
 Tel.: (512) 936-1729                   Tel.: (512) 463-2197
 Fax: (512) 474-2697                    Fax: (512) 477-2348
 jody.hughes@texasattorneygeneral.gov   jason.warner@texasattorneygeneral.gov


Appellee: William A. Bellinghausen, Jr.

Counsel for Appellee
  Robert Ranco
  State Bar No. 24029785
  The Carlson Law Firm, P.C.
  11606 N. IH-35
  Austin, Texas 78753
  Tel.: (512) 346-5688
  Fax: (512) 719-4362
  rranco@carlsonattorneys.com




                                          i
                                              TABLE OF CONTENTS


Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Issue Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

   I.    Plaintiff’s Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

   II. The Sidewalks on the University Campus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

   III. David Henry . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

   IV. The Police Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

   I.    Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

   II. There Is No Evidence That UT-Austin Knew That an Unreasonably
       Dangerous Condition Existed at the Place and Time Bellinghausen Fell . . . 12

         A.        Sovereign Immunity Is Not Waived for Premises-Defect Claims
                   Unless the Plaintiff Can Prove Actual Knowledge of an Unreasonably
                   Dangerous Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

         B.        Prior to Bellinghausen’s Accident, UT-Austin Received No
                   Complaints About, or Reports of Accidents or Injuries Caused by, the
                   Sidewalk on Which Bellinghausen Tripped . . . . . . . . . . . . . . . . . . . . . 14

                                                               ii
          C.        Knowledge That Uneven Sidewalks Exist on Campus Is Not Sufficient
                    To Show Actual Knowledge of an Unreasonably Dangerous Condition
                     . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

          D.        Officer Gonzalez’s Report Does Not Create a Fact Issue as to
                    Whether UT-Austin Had Actual Knowledge of an Unreasonably
                    Dangerous Condition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

                    1.        Henry could not have perceived the expansion joint as
                              unreasonably dangerous from 150 feet away . . . . . . . . . . . . . . 19

                    2.        Officer Gonzalez used the phrase “same protruding crack”
                              to memorialize Henry’s observation that the inattentive
                              pedestrian had fallen where Bellinghausen later fell . . . . . . . . . 20

                    3.        The bare fact that an inattentive pedestrian has fallen does
                              not imply an unreasonably dangerous sidewalk . . . . . . . . . . . . 22

                    4.        No reasonable juror could believe that Henry knew that the
                              sidewalk was unreasonably dangerous but Bellinghausen did
                              not . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

                    5.        Henry’s clarification regarding what he told Officer Gonzalez
                              does not create a fact question about what he knew . . . . . . . . 27

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31




                                                                 iii
                                       INDEX OF AUTHORITIES

Cases

Am. Indus. Life Ins. Co. v. Ruvalcaba,
 64 S.W.3d 126 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) . . . . . . . . . 24

Baker v. City of Granite City,
  394 N.E.2d 33 (Ill. App. Ct. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Brinson Ford, Inc. v. Alger,
  228 S.W.3d 161 (Tex. 2007) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 25

Browning-Ferris, Inc. v. Reyna,
  865 S.W.2d 925 (Tex. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

City of Austin v. Leggett,
  257 S.W.3d 456 (Tex. App.—Austin 2008, pet. denied) . . . . . . . . . . . . . . . . . 13, 16

City of Corsicana v. Stewart,
  249 S.W.3d 412 (Tex. 2008) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

City of Dallas v. Thompson,
  210 S.W.3d 601 (Tex. 2006) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

City of Keller v. Wilson,
  168 S.W.3d 802 (Tex. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Girdler v. United States,
  923 F. Supp. 2d 168 (D.D.C. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Gonzales v. Hearst Corp.,
  930 S.W.2d 275 (Tex. App.—Houston [14th Dist.] 1996, no writ) . . . . . . . . . . . 26

Hammerly Oaks, Inc. v. Edwards,
 958 S.W.2d 387 (Tex. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Heflin v. Am. Home Wildwood Estates, L.P.,
  936 So.2d 226 (La. App. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

                                                        iv
In re E.N.C.,
   384 S.W.3d 796 (Tex. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

King Ranch, Inc. v. Chapman,
  118 S.W.3d 742 (Tex. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mangham v. YMCA of Austin,
 408 S.W.3d 923 (Tex. App.—Austin 2013, no pet.) . . . . . . . . . . . . . . . . . . . . . . . 12

Marathon Corp. v. Pitzner,
 106 S.W.3d 724 (Tex. 2003) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Matthews v. Vlad Restoration Ltd.,
 904 N.Y.S.2d 391 (N.Y. App. Div. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22-23

Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd.,
  896 S.W.2d 156 (Tex. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

Putman v. Vill. of Bensenville,
  786 N.E.2d 203 (Ill. App. Ct. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reed v. Wal-Mart Stores, Inc.,
  708 So. 2d 362 (La. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reyes v. City of Laredo,
  335 S.W.3d 605 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15-17

Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp.,
  435 S.W.2d 854 (Tex. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 26

Seideneck v. Cal Bayreuther Assocs.,
   451 S.W.2d 752 (Tex. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

State v. Gonzalez,
   82 S.W.3d 322 (Tex. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 23

Tex. Dep’t of Parks & Wildlife v. Miranda,
  133 S.W.3d 217 (Tex. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14


                                                          v
Univ. of Tex. at Austin v. Hayes,
  327 S.W.3d 113 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . 13, 23, 24

Univ. of Tex. at Austin v. Sampson,
  No. 03-12-00265-CV, 2014 WL 3893085
  (Tex. App.—Austin Aug. 8, 2014, pet. filed) (mem. op.) . . . . . . . . . . . . . . . . 14, 23

Univ. of Tex. at El Paso v. Muro,
  341 S.W.3d 1 (Tex. App.—El Paso 2009, no pet.) . . . . . . . . . . . . . . . . . . . . . 23, 24

Univ. of Tex.-Pan Am. v. Aguilar,
  251 S.W.3d 511 (Tex. 2008) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 23

Wal-Mart Stores, Inc. v. Miller,
 102 S.W.3d 706 (Tex. 2003) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25


Constitutional Provisions, Statutes, and Rules

TEX. CIV. PRAC. & REM. CODE § 101.021(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. CIV. PRAC. & REM. CODE § 101.022(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                   vi
                                  STATEMENT OF THE CASE

 Nature of the Case:               This is a premises-defect case in which the plaintiff
                                   alleges that he was injured when he tripped on a
                                   sidewalk on the UT-Austin campus.

 Trial Court:                      The Hon. Stephen Yelenosky, Presiding Judge of the
                                   345th District Court, Travis County

 Course of Proceedings:            The University included a plea to the jurisdiction as part
                                   of its amended answer, filed October 31, 2014. CR.47-
                                   51.1 UT-Austin filed a brief in support of its plea on
                                   November 7, 2014, CR.51-200, along with supplemental
                                   evidence, CR.201-18. The plaintiff filed a brief in
                                   response on November 20, 2014, the same date on
                                   which a hearing was held on the plea. CR.219-307.2

 Trial Court Disposition:          The trial court denied the University’s jurisdictional plea
                                   on November 21, 2014. CR.317; see App. A. Judge
                                   Yelenosky explained his reasoning in a letter to which
                                   the order was attached. CR.314-15. The University
                                   timely perfected appeal. CR.318-19.




        1. Citations of the clerk’s record appear in the following format: “CR.[page].” When the cited
reference is to deposition testimony, the citation will also include a page-and-line reference to the
deposition transcript, in this format: “CR.[record page] ([transcript page]:[line]-[line]).”

       2. Judge Yelenosky did not allow a court reporter to transcribe the hearing because no live
testimony was adduced. For that reason, no reporter’s record exists.

                                                 vii
                   STATEMENT REGARDING ORAL ARGUMENT

      Oral argument would assist the Court in applying Texas premises-defect law to

the unusual factual circumstances of this case. Several hours before Bellinghausen

tripped and fell on a sidewalk on the UT-Austin campus, from at least 150 feet away, a

university employee had witnessed an inattentive pedestrian fall in the same location.

Oral argument would help the Court understand why no juror could reasonably find

that, from that distance, seeing an inattentive pedestrian fall gave the employee actual

knowledge of an unreasonably dangerous condition.



                                 ISSUE PRESENTED

      Is there more than a scintilla of evidence that, before Bellinghausen’s accident,

UT-Austin had actual knowledge of an unreasonably dangerous condition on the

sidewalk where Bellinghausen tripped?




                                          viii
                                  No. 03-14-00749-CV

                        In the Court of Appeals for the
                        Third Judicial District, Austin

                        THE UNIVERSITY OF TEXAS AT AUSTIN,
                                                 Appellant,

                                             v.

                           WILLIAM A. BELLINGHAUSEN, JR.,
                                                 Appellee.


          On Appeal from the 345th Judicial District Court of Travis County


                                  APPELLANT’S BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

       An inattentive pedestrian can trip on any sidewalk. Even when two adjacent

sidewalk slabs are perfectly level (and often they are not), one’s toe or heel can drop into

the gap between the slabs and catch on the facing slab edge. An untied shoelace, a loose

pant cuff, a textured surface, a curb, or debris, among other things, can also trip the

unwary. Thus, the mere fact that an inattentive pedestrian has fallen does not imply that

the sidewalk beneath him is defective, much less unreasonably dangerous.

       In denying the University’s jurisdictional plea, the trial court relied on a report

that, a few hours before Bellinghausen fell, a maintenance supervisor had witnessed an
inattentive pedestrian trip in the same area. The court held that the report created a fact

question as to whether the supervisor knew that the sidewalk where Bellinghausen

tripped was unreasonably dangerous. But reaching that conclusion requires several

unreasonable inferences, because it is undisputed that the supervisor was at least 150 feet

away and the pedestrian appeared to be texting or dialing his mobile phone when he fell.

Because inattentive pedestrians can fall for many reasons, merely witnessing an

inattentive pedestrian fall from a distance too great to perceive why he fell provides no

notice of an unreasonably dangerous condition. And no fact-finder could reasonably

conclude that the supervisor perceived a defective sidewalk from that distance.

      The notation in the police report stating that the maintenance supervisor “said

that he saw another person trip and fall on the same protruding crack at about 9:00 am”

does not create a material fact dispute. The report is consistent with the supervisor’s

deposition testimony and the other evidence, all of which reflects that he saw an

inattentive pedestrian trip around 9:00 a.m. but did not perceive any problem with the

sidewalk until around noon, when, after Bellinghausen fell in the same vicinity, the

supervisor approached the accident site and saw the uneven sidewalk on which both

men presumably tripped. No reasonable fact-finder could interpret the police report as

evidence that the maintenance supervisor actually identified the sidewalk as unreasonably

dangerous earlier that morning, based solely on witnessing the inattentive pedestrian fall.

Accordingly, Bellinghausen’s claims should be dismissed for lack of jurisdiction.

                                            2
                               STATEMENT OF FACTS

      Plaintiff William Bellinghausen, Jr. is a resident of Bastrop and an advisor for a

Bastrop chapter of the Boy Scouts. At the time of the accident, he was 68 years old.

I.    PLAINTIFF’S ACCIDENT

      On Saturday, August 27, 2011, Bellinghausen drove to the UT-Austin campus to

attend a Native American “powwow” event at the Recreational Sports Center (“RSC”),

which is located on the southeastern part of campus, on the north side of East 20th

Street west of Robert Dedman Drive. CR.83-84 (88:22-89:16). He paid for parking but

did not pay to use the campus, and there was no fee to attend the powwow. CR.84

(90:21-91:3, 92:1-2). Around noon, as he was walking along the sidewalk on the

southeast corner of the RSC, he tripped and fell. CR.85 (95:25-96:5). He had not been

looking down when he tripped, CR.86 (99:11-12), but afterwards he saw that the raised

edge of a slab had made a section of the sidewalk uneven, CR.85 (96:13-15).

      Some parking attendants saw that Bellinghausen was injured, and UT-Austin

Police Officer Roberto Gonzalez was dispatched to the scene. Officer Gonzalez found

Bellinghausen sitting next to the sidewalk, bleeding from the head and complaining of

pain in his shoulder and ribs. CR.100. An EMS unit arrived and began treating his

injuries. Id. Bellinghausen told the officer that he had tripped on a sidewalk crack and

asked that a photo of the crack be taken. Id. Bellinghausen was transported to the

hospital, where it was determined that he sustained a broken arm and other injuries.

                                           3
       Attached as Appendices B-D are several photographs of the scene. The first,

taken by Officer Gonzalez looking southwest, shows the sidewalk where Bellinghausen

tripped in the foreground and the Skilled Social Work building in the background, across

East 20th Street. App. B; CR.91. The second photo, which was taken by a bystander,

shows Bellinghausen lying beside the sidewalk receiving treatment; an uneven section of

sidewalk appears in the foreground of the photo. App. C; CR.93. The third is a close-up

photo of the uneven sidewalk taken by Officer Gonzalez. App. D; CR.95.

II.    THE SIDEWALKS ON THE UNIVERSITY CAMPUS

       Carl Julius “C.J.” Wiles has been UT-Austin’s Associate Director of Construction

Services since 2006. CR.134(16:13-16). He is in the Department of Project Management

and Construction Services, which is responsible for pavement and sidewalks. CR.135

(19:12-17). Many University campus sidewalks, including those around the RSC, consist

of a series of adjoining concete slabs, surfaced with stone and separated by expansion

joints. CR.251 (25:13-19).3 Tree roots, soil composition, irrigation, and other factors can

cause the edge of one sidewalk slab to rise above or sink below the level of the adjoining

slab. CR.139-40 (37:14-38:3). As a result, there are uneven sections of sidewalks on

many parts of campus. CR.139 (35:18-36:4).




     3. An expansion joint is a gap between adjacent sidewalk slabs that is designed to accommodate
movement of the slabs and prevent them from breaking. CR.149 (99:6-22).

                                                4
       Sang Ho Lee has been the project manager for UT-Austin’s Project Management

and Constructive Services Department since 2007. CR.205, ¶ 2. Lee testified that UT-

Austin had a consultant conduct an analysis of its campus sidewalks in 2008. CR.206,

¶ 3; CR.164-90. The analysis rated each sidewalk area based on its condition and

expected remaining service life: Unsatisfactory (0-2 years); Poor (3-6 years); Fair (7-12

years); Good (13-20 years); and New (20-25 years). CR.206, ¶ 3. The sidewalk where

Bellinghausen tripped was marked as being in Good condition. Id. at ¶ 4; CR.146-47

(69:16-70:9). Lee did not consider it dangerous or in need of repair. CR.206-07, ¶ 4.

       Roxanne Hall has been the Records Administrator for the UT-Austin Police

Department since 2001. CR.97, ¶ 2. After Bellinghausen’s accident, Hall searched the

department records for reports of any accidents involving the sidewalks around the RSC.

Id. at ¶ 3. The only one she found was the report about Bellinghausen’s fall. Id. at ¶ 4.

       Margo Iwanski has been the Assistant to the Vice President, CFO, and Custodian

of Records for UT-Austin since 1997. CR.198, ¶ 2. She reviewed the files and records

maintained by her office and found no record or report of a trip-and-fall accident, injury,

or other incident involving the sidewalk on the southeast corner of the RSC, other than

the police report concerning Bellinghausen’s fall on August 27, 2011. Id. at ¶ 3. She also

found no complaints or reports of any flaws or defects with the sidewalks on the

southeast corner of the RSC before or after August 27, 2011. Id.



                                            5
III.   DAVID HENRY

       David Henry is a maintenance supervisor for UT-Austin. CR.112 (9:18-21). He

has worked for the University since 1997. CR.113 (11:7-9). On the morning of August

27, 2011, he was cleaning air-conditioning units on the east side of the Skilled Social

Work building, which is located across East 20th Street from, and to the south of, the

RSC. CR.114 (19:1-8). Henry and his crew were working approximately 150 to 200 feet

away from the sidewalk area where Bellinghausen tripped. CR.115 (23:2-6). One of the

crew members saw Bellinghausen lying on the ground and alerted Henry, who walked

over to investigate. Id. (22:18-23:1). When Henry arrived, several bystanders were

already assisting Bellinghausen. CR.263 (37:9-11).4 Based on the location where

Bellinghausen was resting, Henry concluded that he had likely tripped over an expansion

joint between two sidewalk slabs. CR.116 (26:3-11); CR.118 (38:17-39:13).

       Earlier on the morning of August 27, around 9:00 a.m., Henry had observed an

unidentified man fall on the sidewalk in the vicinity of where Bellinghausen would fall

a few hours later. CR.116 (26:12-25, 29:9-25). The man fell onto his hands and knees

but quickly got up and continued walking. Id. (27:22-28:4); CR.119 (64:11-16). He had

been looking at his mobile phone, apparently texting or checking his voicemail, just


        4. Most references to Henry’s deposition testimony cite the condensed transcript that was
attached as Exhibit D to the University’s brief in support of its jurisdictional plea. CR.110-24. Pages
34-37, 42-61, and 70-73 of that version were not included in the clerk’s record. Accordingly, references
to Henry’s testimony that appears on those missing pages cite the complete, uncondensed transcript that
Bellinghausen attached as Exhibit A to his response to the University’s plea. CR.227-305.

                                                   6
before he fell. CR.116 (26:20-22). Henry did not see the man’s foot catch on a raised

sidewalk edge; he simply saw the man fall. Id. (27:7-13). Henry was 150 to 200 feet

away, working on the east side of the Skilled Social Work building. CR.115 (23:2-6).

      Henry did not report the fall or take other action because the pedestrian walked

away, apparently uninjured, and Henry attributed the fall to the man’s attention having

been fixed on his cell phone instead of where he was walking. CR.119-20 (64:19-65:17,

66:10-17). At the time, Henry did not think that the sidewalk was responsible for

causing the man’s fall, CR.119 (65:10-17), so he did not walk over to inspect the

sidewalk, CR.117 (30:5-7). It was not until after Bellinghausen fell that Henry walked

over and saw the expansion joint shown in Appendix D. CR.118 (38:17-39:13). As

Henry later acknowledged, the adjoining slab edges were not level with one another on

the right-hand side of the expansion joint. App. D; CR.116 (26:3-11).

      Henry did not talk to Bellinghausen, CR.118 (38:3-6), but he did speak with

Officer Gonzalez. He told the officer that he had been working nearby all morning and

that around 9:00 a.m., he had seen a white male fall onto all fours in the same area where

Bellinghausen fell. CR.119 (63:15-20). Specifically, Henry told Officer Gonzalez that

he had seen the pedestrian fall “right there.” CR.120 (67:3-8). Henry said that he would

submit a request to have the sidewalk leveled, and then he went back to work. CR.118

(40:11-25). He submitted the request the following Monday. Id. (40:16-18).



                                            7
IV.     THE POLICE REPORT

        Officer Gonzalez wrote a report summarizing his observations of the accident

scene. CR.100; App. E. The report states, among other things, that:

        •       “Bellinghausen said he was walking on the sidewalk when he tripped
                over a protruding crack in the sidewalk.”

        •       “Bellinghausen requested that photos of the crack be taken with his
                digital camera”; and

        •       “A Facilities staff member, David Henry, was working nearby all
                morning and said that he saw another person trip and fall on the
                same protruding crack at about 9:00 am. The subject appeared to
                be a white male in his mid 30’s. Henry said the subject fell forward
                and ended up on all fours.”

Id.

        To be clear, Henry did not say that he saw the same crack (or expansion joint, to

be more accurate) cause either fall. Id.; CR.119 (63:23-64:1). Instead, in the audio

portion of the video recording taken from Officer Gonzalez’s squad car, Henry can be

heard telling the officer that the unidentified pedestrian, who was not paying attention

to where he was walking, had fallen “right there.” CR.276 (50:15-25).5 By that, Henry

meant that both falls happened in the same vicinity, not necessarily in the same exact


        5. The police video recording is not part of the appellate record, but Plaintiff’s counsel reviewed
it with Henry at his deposition, and together they were able to identify the portions in which Henry
made audible statements. CR.272-83 (46:10-57:5). At one point, Henry can be heard telling Officer
Gonzalez that he saw a male in his 30s or 40s fall on all fours and arise unhurt earlier that day, around
9 a.m. CR.279 (53:3-18). Henry later can be heard saying that he took a picture of the sidewalk and
would submit it to UT-Austin along with a request to have the sidewalk repaired. CR.280 (54:16-25).
Neither Henry, Officer Gonzalez, nor anyone else whose voice is audible can be seen on camera.

                                                    8
spot. CR.120 (67:3-16, 68:3-15). Nevertheless, because Henry had said “right there,”

instead of specifying that the inattentive pedestrian had fallen in the same general

vicinity, he could understand why Officer Gonzalez wrote that Henry had reported

seeing “another person trip and fall on the same protruding crack.” Id. (67:1-68:2).

                            SUMMARY OF THE ARGUMENT

       Constructive knowledge cannot waive a governmental defendant’s immunity for

a premises defect. Instead, the plaintiff must show that the defendant had actual

knowledge of an unreasonably dangerous condition. In this case, the trial court should

have dismissed Bellinghausen’s claims because UT-Austin established that it had no

notice of an unreasonably dangerous condition, and there is no evidence on which a

reasonable fact-finder could rely to conclude otherwise.

       The trial court held that actual knowledge could be inferred from maintenance

supervisor David Henry’s observation of an inattentive pedestrian’s fall, in the same

vicinity, a few hours before Bellinghausen’s fall. Specifically, the court relied on Officer

Gonzalez’s notation in his police report that Henry had seen the inattentive pedestrian

trip “on the same protruding crack” as evidence that Henry actually perceived, upon

witnessing that initial incident, that the sidewalk crack in question was unreasonably

dangerous. But the trial court’s theory rests on a series of unreasonable inferences that,

whether taken together or separately, cannot create a fact issue about whether Henry had

actual knowledge of an unreasonably dangerous condition before Bellinghausen fell.

                                             9
      The evidence demonstrates that Henry identified the uneven expansion joint as

a tripping hazard only after Bellinghausen fell. It is undisputed that Henry was working

at least 150 feet away when he saw the inattentive pedestrian fall. No reasonable fact-

finder could conclude that Henry was able to identify individual expansion joints at that

distance, much less perceive one as unreasonably dangerous. Nor is it reasonable to

infer that a sidewalk is unreasonably dangerous simply because an inattentive pedestrian

has fallen, because an unwary pedestrian can fall on any sidewalk—even a level one.

      No other evidence indicates that UT-Austin had prior knowledge of an

unreasonably dangerous condition. UT-Austin provided unrebutted testimony that,

prior to Bellinghausen’s fall, it received no reports of sidewalk defects or slip-and-fall

injuries involving the sidewalk area southeast of the RSC.          And a 2008 report

commissioned by the University had designated the sidewalk in that area as being in

good condition, with an expected remaining service life of 13-20 years.

      Absent actual knowledge that the crack that tripped Bellinghausen was an

unreasonably dangerous condition, UT-Austin cannot be sued. In this case, the evidence

did not create a material fact issue about whether the University had prior knowledge.

Accordingly, the trial court should have granted the University’s jurisdictional plea and

dismissed Bellinghausen’s claims.




                                           10
                                       ARGUMENT

I.     STANDARD OF REVIEW

       In reviewing an order denying a jurisdictional plea, whether the plaintiff has

alleged facts that affirmatively demonstrate subject-matter jurisdiction is a legal question

reviewed de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.

2004). The plaintiff has the initial burden of alleging facts that demonstrate the trial

court’s jurisdiction. Id. If a plea to the jurisdiction challenges the existence of

jurisdictional facts, the trial court must consider evidence as necessary to resolve the

jurisdictional issues. Id. at 227. When evidence is submitted that implicates the merits

of the case, the standard of review generally mirrors the standard governing a motion for

traditional summary judgment under Texas Rule of Civil Procedure 166a(c). Id. at 228.

       Under that standard, the burden is on the governmental defendant to assert that

the court lacks jurisdiction and present evidence supporting its plea. Id. If the defendant

satisfies its burden, the burden shifts to the plaintiff to show a material fact dispute

regarding a jurisdictional issue. Id. In determining whether a material fact dispute exists,

the reviewing court takes as true all evidence that is favorable to the plaintiff and

indulges every reasonable inference in the plaintiff’s favor. Id. In order to show that

some evidence exists that would support a finding in his favor, the plaintiff must

establish that more than a mere scintilla of evidence contradicts the defendant’s

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005).

                                            11
       “More than a scintilla of evidence means evidence ‘ris[ing] to a level that would

enable reasonable and fair-minded people to differ in their conclusions.’” Mangham v.

YMCA of Austin, 408 S.W.3d 923, 927 (Tex. App.—Austin 2013, no pet.) (quoting King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)). Thus, a court may not credit

evidence that a reasonable fact-finder would not. Id.; City of Keller, 168 S.W.3d at 827-28.

Nor can a fact dispute be created by making unreasonable inferences from the evidence,

or by piling one inference upon another. In re E.N.C., 384 S.W.3d 796, 804 (Tex. 2012)

(citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997); Schlumberger Well

Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968)).

II.    THERE IS NO EVIDENCE THAT UT-AUSTIN KNEW THAT AN
       UNREASONABLY DANGEROUS CONDITION EXISTED AT THE PLACE AND
       TIME BELLINGHAUSEN FELL.

       A.     Sovereign Immunity Is Not Waived for Premises-Defect Claims
              Unless the Plaintiff Can Prove Actual Knowledge of an Unreasonably
              Dangerous Condition.

       The Texas Tort Claims Act waives sovereign immunity for claims of injury

“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 § 101.021(2). If the claim arises from a premises defect

and the plaintiff did not pay to use the premises, the landowner owes the claimant “only

the duty that a private person owes to a licensee on private property.” Id. § 101.022(a).

A landowner owes a licensee the duty “to either (1) use ordinary care to warn a licensee

                                            12
of a condition that presented an unreasonable risk of harm of which the landowner is

actually aware and the licensee is not, or (2) make the condition reasonably safe.” Univ.

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

       Bellinghausen testified that he did not pay a fee to use the premises, CR.84 (90:21-

91:3), and he concedes that the licensee standard applies, CR.221 (Pl.’s Resp. to Def.’s

Jurisdictional Plea at ¶ 3). Accordingly, UT-Austin’s immunity is not waived unless,

before the accident occurred, it had “actual knowledge of an unreasonably dangerous

condition.” City of Austin v. Leggett, 257 S.W.3d 456, 476 (Tex. App.—Austin 2008, pet.

denied). “A condition is unreasonably dangerous if it presents an unreasonable risk of

harm.” Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per curiam).

       In the absence of direct evidence, a plaintiff can use circumstantial evidence to

show a premises owner’s actual knowledge of a dangerous condition, but “only when it

‘either directly or by reasonable inference’ supports that conclusion.” City of Corsicana v.

Stewart, 249 S.W.3d 412, 415 (Tex. 2008) (per curiam) (quoting State v. Gonzalez, 82

S.W.3d 322, 330 (Tex. 2002)). Unreasonable inferences cannot create a fact question.

See Schlumberger Well Surveying, 435 S.W.2d at 858. Nor can a plaintiff create evidence of

actual knowledge by stacking inferences. See id.; Marathon Corp. v. Pitzner, 106 S.W.3d

724, 728 (Tex. 2003) (per curiam) (“[A]n inference stacked only on other inferences is

not legally sufficient evidence.”).



                                            13
      B.     Prior to Bellinghausen’s Accident, UT-Austin Received No
             Complaints About, or Reports of Accidents or Injuries Caused by,
             the Sidewalk on Which Bellinghausen Tripped.

      When determining whether a premises owner had actual knowledge of a

dangerous condition, “courts generally consider whether the premises owner has

received reports of prior injuries or reports of the potential danger represented by the

condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per

curiam). Here, the affidavit testimony of Roxanne Hall, Margo Iwanski, and Sang Ho

Lee established that, prior to Bellinghausen’s fall, UT-Austin had not received any

reports of accidents or injuries occurring on the sidewalks around the RSC. CR.97-98,

198-99, 205-07. Moreover, the 2008 survey indicated that the sidewalks in that area were

in good condition, with an expected remaining service life of 13 to 20 years. CR.164-90,

206-07. Accordingly, the University established that it lacked actual knowledge, at the

time of the accident, that an unreasonably dangerous condition existed on the sidewalk

where Bellinghausen fell. It then became Bellinghausen’s burden to show the existence

of a material fact dispute on that issue. See Miranda, 133 S.W.3d at 228; Univ. of Tex. at

Austin v. Sampson, No. 03-12-00265-CV, 2014 WL 3893085, at *6 (Tex. App.—Austin

Aug. 8, 2014, pet. filed) (mem. op.).




                                           14
       C.     Knowledge That Uneven Sidewalks Exist on Campus Is Not
              Sufficient To Show Actual Knowledge of an Unreasonably
              Dangerous Condition.

       In an effort to show that the University had prior knowledge of a dangerous

condition, Bellinghausen pointed to David Henry’s deposition testimony acknowledging

that uneven sidewalks exist all over campus. CR.221 (Pl.’s Resp. to Def.’s Jurisdictional

Plea at ¶ 4); CR.256 (30:8-10). Henry also agreed with Plaintiff’s counsel that “this stuff

happens with expansion joints”—that is, over time, expansion joints become out of level

because of soil movement caused by tree roots and other factors. CR.256 (30:17-24).

But Henry’s knowledge that campus sidewalks have some uneven sections caused by

settling slabs is no evidence that UT-Austin had actual knowledge that the particular

sidewalk where Bellinghausen tripped was unreasonably dangerous at the time of his

accident. See Reyes v. City of Laredo, 335 S.W.3d 605, 608-09 (Tex. 2010) (per curiam); City

of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) (per curiam).

       In Thompson, the plaintiff tripped on the lip of an improperly secured expansion-

joint coverplate protruding from the floor of a Dallas airport lobby. 210 S.W.3d at 602.

City employees knew that the coverplate periodically became loose, and whenever it did

they would tighten it. Id. at 603. Shortly before Thompson’s fall, city employees “had

been in the area of the coverplate and probably had walked over it.” Id. But the

Supreme Court rejected Thompson’s argument that the city’s knowledge of the periodic

protrusion and the need for inspection and maintenance satisfied the actual-knowledge

                                            15
requirement, noting: “[T]he fact that materials deteriorate over time and may become

dangerous does not itself create a dangerous condition, and the actual knowledge

required for liability is of the dangerous condition at the time of the accident, not merely

of the possibility that a dangerous condition can develop over time.” Id. Because there

was no evidence that the city actually knew that the coverplate was protruding at the time

of the accident, the Court affirmed the dismissal of Thompson’s suit. Id. at 604.

       Similarly, in Reyes, the Supreme Court held that city employees’ knowledge that a

low-water crossing tended to flood during heavy rains, combined with a 911 caller’s

warning several hours before the accident that the waters of a nearby creek were rising

and would sweep away cars if left unchecked, was no evidence that the city knew that

a dangerous condition existed at that low-water crossing at the time of the accident. 335

S.W.3d at 608-09; see also City of Corsicana, 249 S.W.3d at 414-16 (city employees’

knowledge that a low-water crossing tended to flood during heavy rains, combined with

evidence that it was raining hard on the night of the accident and a road upstream from

the crossing was closed due to flooding, was insufficient to support an inference that the

city knew an unreasonably dangerous condition existed when and where the accident

occurred); Leggett, 257 S.W.3d at 476 (evidence that an outflow grate on a stormwater

retention pond had previously clogged would not support inferences that the city actually

knew, at the time of the accident, that the grate was clogged or that a dangerous

condition existed at the intersection where the accident occurred).

                                            16
      Not every sidewalk is perfectly level. Anyone who has spent much time on the

University campus—or walked on any sidewalk, for that matter—understands that slabs

can move and settle over time. But “[a]wareness of a potential problem is not actual

knowledge of an existing danger.” Reyes, 335 S.W.3d at 609. Accordingly, Henry’s

acknowledgment that campus sidewalks tend to become out of level is no evidence that

the University had actual knowledge of an unreasonably dangerous condition.

      D.     Officer Gonzalez’s Report Does Not Create a Fact Issue as to
             Whether UT-Austin Had Actual Knowledge of an Unreasonably
             Dangerous Condition.

      The trial court treated Henry’s observation of a pedestrian who fell while looking

at his mobile phone as the functional equivalent of UT-Austin receiving a report of a

dangerously defective sidewalk. Specifically, the court relied on the notation in Officer

Gonzalez’s report that Henry had reported that an unidentified man had tripped “on the

same protruding crack” as evidence that Henry knew, before Bellinghausen fell, that the

sidewalk was unreasonably dangerous. CR.100. The court reasoned:

      There is evidence that the University had actual knowledge of the hazard.
      It is rare to have one person witness two people fall in any proximity to
      one another. Even rarer to have the witness’ recorded statement at the
      scene. Corrections, qualifications, or clarifications cannot undo the factual
      question. Credibility becomes the issue.

CR.315. That reasoning is flawed in several significant respects.

      As an initial matter, contrary to the trial court’s suggestion, it is undisputed that

Henry did not witness Bellinghausen’s fall. CR.115 (22.10-15). Instead, Henry went over

                                           17
to investigate after one of his crew members saw Bellinghausen lying on the ground and

alerted Henry. Id. (22:18-23:1). It was only then that Henry saw the expansion joint up

close and identified it as the likely cause of Bellinghausen’s fall. CR.116 (26:3-11).

      Moreover, the trial court’s analysis conspicuously fails to identify the “factual

question” that the court believed exists. As discussed below, it is undisputed that Henry

told Officer Gonzalez that the inattentive pedestrian had earlier fallen “right there.”

CR.120 (67:3-8). Those words, particularly as they appear in the cold record, do not

reveal how large or small a section of sidewalk Henry was indicating to Officer Gonzalez

as he spoke them, but it is clear that Henry was referring to the sidewalk in the area

where Bellinghausen tripped. It is understandable why Officer Gonzalez, after hearing

Bellinghausen’s explanation that he “tripped over a protruding crack in the sidewalk”

followed by Henry’s statement that the inattentive pedestrian had tripped “right there,”

surmised that both men had tripped on “the same protruding crack.” CR.100. And

regardless of exactly what Officer Gonzalez thought Henry meant by “right there,” no

reasonable fact-finder could determine that Henry, who was at least 150 feet away when

he saw the inattentive pedestrian fall, actually perceived the expansion joint as

unreasonably dangerous from that distance.




                                           18
              1.      Henry could not have perceived the expansion joint as
                      unreasonably dangerous from 150 feet away.

       A fact-finder would have to make a series of unreasonable inferences to conclude

that Henry recognized, at the time the inattentive pedestrian fell, that what caused him to fall

was “the same protruding crack” on which Bellinghausen later tripped. It is undisputed

that Henry was working at least 150 feet away from the area where Bellinghausen fell.

CR.115 (23:2-4); CR.117 (30:2-4); CR.120 (69:18-21). From Henry’s location across the

street, it appeared to him that Bellinghausen fell “in the same vicinity” where the

inattentive pedestrian had earlier fallen—that is, within five feet in either direction.

CR.116 (29:9-25). Henry did not see what caused the inattentive pedestrian to fall. Id.

(27:5-13). Later, when Henry went over to assist Bellinghausen after his fall, he observed

the uneven sidewalk and surmised that Bellinghausen had tripped over the raised edge.

CR.118.(39:2-13; 41:2-6). As discussed below, Henry did not tell Officer Gonzalez that

both men tripped over the same expansion joint. But even if he had, the fact that Henry

“connected the dots” after Bellinghausen fell would not establish that Henry initially knew

that a particular expansion joint was to blame for the inattentive pedestrian’s fall.

       Indeed, it would have been impossible for Henry to have done so from a distance

of 150 to 200 feet. That would be the equivalent of a referee being able to discern, while

standing in the end zone of a football field with unmarked yardage lines, whether a

player was tackled at the visitor’s or the home team’s 49-yard line. Even that comparison


                                              19
is overly generous to Bellinghausen because, unlike a referee trained to observe such

details, Henry was “busy working” shortly before the pedestrian tripped and “wasn’t

really . . . watching that corner.” CR.116 (28:23-24). No reasonable trier of fact could

believe that Henry, who happened to glance up from his work and observe the fall from

at least 150 feet away, actually perceived an uneven expansion joint at that distance and

identified it as the cause of the pedestrian’s fall.

              2.     Officer Gonzalez used the phrase “same protruding crack” to
                     memorialize Henry’s observation that the inattentive
                     pedestrian had fallen where Bellinghausen later fell.

       The trial court believed that Officer Gonzalez’s notation about Henry having seen

the inattentive pedestrian trip on “the same protruding crack” created a fact question

that precluded granting UT-Austin’s jurisdictional plea. CR.315. In the court’s view, a

jury might believe that Henry not only saw the inattentive pedestrian trip, but also that

he blamed the fall on a particular expansion joint, which later turned out to be the same

expansion joint on which Bellinghausen tripped. But no evidence supports that

interpretation. Indeed, it is wholly implausible in light of the undisputed facts.

        At his deposition, Henry testified that he told Officer Gonzalez that he had

earlier witnessed the inattentive pedestrian trip in the same vicinity, not that he identified

the cause of the inattentive pedestrian’s fall at the same time. CR.119 (63:11-64:1). His

testimony is supported by the audio portion of the video from Officer Gonzalez’s squad

car, in which Henry can be heard stating that someone else had fallen “right there”

                                             20
earlier that day. CR.276 (50:15-23). Bellinghausen has admitted that “Henry told the

investigating officer that the man fell earlier ‘right there.’” CR.220 (Pl.’s Resp. at ¶ 1).

       After Bellinghausen fell, Henry saw the uneven expansion joint and told Officer

Gonzalez that, a few hours earlier, he had seen the inattentive pedestrian fall on all fours

“right there”—that is, in approximately the same location. CR.276 (50:20-23). Henry

then told the officer that he had taken a picture of the uneven sidewalk and would

submit a request to have the sidewalk repaired, remarked that “we’ve got a lot of this on

campus,” and went back to work. CR.280-81 (54:16-55:11). Afterwards, an unidentified

speaker (not Henry) stated that machines can be used to level an uneven expansion joint,

but there’s a limit to what they can do. CR.281-82 (55:18-56:12).

       In his report, Officer Gonzalez wrote that Bellinghausen “said he was walking on

the sidewalk when he tripped over a protruding crack in the sidewalk.” CR.100 (emphasis

added). Later in the report, the officer wrote that Henry had seen the inattentive

pedestrian trip on “the same protruding crack,” presumably to indicate that Henry had

earlier seen the pedestrian trip in the same location where Bellinghausen later tripped.

Id. The reference to “the same protruding crack” did not purport to capture Henry’s

words verbatim; instead, it reflects that Officer Gonzalez used Henry’s statement (“right

there”) to identify the uneven expansion joint as both the location where Henry had seen

the inattentive pedestrian trip as well as (in hindsight) the presumed cause of both falls.



                                             21
       Significantly, the report does not say that Henry identified the expansion joint as

the cause of the inattentive pedestrian’s fall at the time the pedestrian fell. CR.100. To

interpret the report in that way would require one to believe that Henry not only

perceived the expansion joint from a distance of 150 feet but also somehow identified

it as unreasonably dangerous from that vantage point. As discussed above, no

reasonable fact-finder could believe either proposition. See supra Part II.D.1.

              3.     The bare fact that an inattentive pedestrian has fallen does not
                     imply an unreasonably dangerous sidewalk.

       The trial court apparently believed that observing the inattentive pedestrian fall

may have been sufficient to make Henry aware that the sidewalk was defective in that

location. CR.315. But it “is common for the surfaces of streets, sidewalks, and parking

lots to be irregular.” Reed v. Wal-Mart Stores, Inc., 708 So. 2d 362, 363 (La. 1998). For that

reason, pedestrians must watch where they are walking to “avoid tripping over minor

unevenness and cracks that inevitably arise in sidewalks.” Girdler v. United States, 923 F.

Supp. 2d 168, 194 (D.D.C. 2013); see Putman v. Vill. of Bensenville, 786 N.E.2d 203, 208 (Ill.

App. Ct. 2003) (“In a ‘busy commercial district,’ it is reasonable to infer that a pedestrian

could be sufficiently distracted to overlook an otherwise de minimis defect.”) (quoting

Baker v. City of Granite City, 394 N.E.2d 33 (Ill. App. Ct. 1979)). Even pedestrians who

are merely talking on their cell phones sometimes fail to perceive tripping hazards that

an attentive pedestrian would spot. See e.g., Matthews v. Vlad Restoration Ltd., 904 N.Y.S.2d


                                             22
391, 391 (N.Y. App. Div. 2010) (pedestrian distracted by cell-phone conversation tripped

over “open and obvious” scaffold brace). Accordingly, no reasonable fact-finder could

believe that seeing the inattentive pedestrian fall actually informed Henry that the

sidewalk presented an unreasonably dangerous condition.

      Henry testified that the inattentive pedestrian “had his phone out

and . . . appeared to be either checking voice mail or texting” when he fell. CR.116

(26:20-22). Thus, Henry didn’t know if the pedestrian “tripped and fell over his feet or

the sidewalk or a stick.” CR.119 (65:16-17). In light of the pedestrian’s distracted state,

Henry had no reason to believe that an unreasonably dangerous sidewalk had caused the

man to trip. See Hayes, 327 S.W.3d at 117 (university “had no reason to know” that chain

across roadway could be dangerous to road users).

      “[A]t best, the circumstantial evidence ‘creates nothing more than a mere

suspicion’ that the University was aware of a condition on the walkway that presented

an unreasonable risk of harm.” Sampson, 2014 WL 3893085, at *7 (quoting Univ. of Tex.

at El Paso v. Muro, 341 S.W.3d 1, 6 (Tex. App.—El Paso 2009, no pet.)). That cannot be

the basis of a fact issue regarding actual knowledge. See Aguilar, 251 S.W.3d at 514

(university’s actual knowledge that an outdoor water hose lying across a sidewalk

presented an unreasonably dangerous condition could not be inferred from its

knowledge of a safety manual that warned of a tripping hazard posed by flexible cords);

Gonzalez, 82 S.W.3d at 330 (evidence that TxDOT knew that stop signs had been

                                            23
repeatedly removed by vandals in the weeks before the accident “does not indicate,

either directly or by reasonable inference, that TxDOT actually knew the signs were

down before the accident occurred”); Muro, 341 S.W.3d at 5-6 (evidence that a metal sign

post had been removed using the same “flushing” technique that was used by the

university’s maintenance crews was no evidence that the university had actual knowledge

of a dangerous condition). Even if one could say that seeing the pedestrian fall should

have informed Henry that the sidewalk was dangerous, or that he should have walked over

to investigate that possibility, that would be no evidence that Henry actually knew of an

unreasonably dangerous condition. See Hayes, 327 S.W.3d at 117; Am. Indus. Life Ins. Co.

v. Ruvalcaba, 64 S.W.3d 126, 142 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)

(evidence that premises owner should have known that an open-bannister staircase was

unreasonably dangerous was no evidence of actual knowledge) (citing Prudential Ins. Co.

of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 162 (Tex. 1995)).

       And even if Henry somehow could have divined that the inattentive pedestrian

tripped on an uneven sidewalk, a reasonable factfinder could not infer that Henry

therefore actually knew that the sidewalk was unreasonably dangerous. As Henry

acknowledged, there are uneven sidewalks in many places on the UT-Austin campus, any

one of which could pose a potential tripping hazard to an unwary pedestrian—as do

curbs, speed bumps, and similar ground-level elements. See, e.g., Heflin v. Am. Home

Wildwood Estates, L.P., 936 So.2d 226, 232 (La. App. 2006) (noting that “speed

                                            24
bumps . . . create a hazard to inattentive pedestrians”). But few (if any) such elements

can be said to pose the unreasonable danger required to waive the University’s immunity.

See, e.g., Brinson Ford, 228 S.W.3d at 162-63 (pedestrian ramp that was partially

unprotected by handrails but marked with yellow paint along its edges was, as a matter

of law, not an unreasonably dangerous condition). Accordingly, the mere fact that

Henry saw the inattentive pedestrian fall is no evidence that Henry knew the sidewalk

was unreasonably dangerous.

             4.     No reasonable juror could believe that Henry knew that the
                    sidewalk was unreasonably dangerous but Bellinghausen did
                    not.

      Bellinghausen himself testified that he did not perceive the expansion joint as

dangerous, even when he was directly on top of it, and there is no reason to doubt his

testimony in that regard. CR.86 (99:5-7). Bellinghausen did not trip and injure himself

on purpose. Moreover, as the photograph clearly indicates, the sidewalk imperfection

was relatively minor and could easily be overlooked even at close range. App. D.

      For that very reason, however, no reasonable fact-finder could believe that Henry,

from at least 150 feet away, perceived as unreasonably dangerous a sidewalk that

Bellinghausen himself perceived as safe as he approached and walked on the uneven

expansion joint. Neither Texas law nor common sense supports such an absurd result.

Cf. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (per curiam) (“If the



                                           25
licensee has the same knowledge about the dangerous condition as the licensor, then no

duty to the licensee exists.”). Yet the trial court’s ruling implicitly contemplates as much.

       In order for a fact dispute to exist regarding whether UT-Austin had actual

knowledge of an unreasonably dangerous condition, one would have to believe:

       •      that Henry actually knew that an expansion joint, rather than
              preoccupation with his mobile phone, had caused the inattentive
              pedestrian to trip;

       •      that Henry somehow perceived, while working at least 150 feet
              away, that the expansion joint shown in Appendix D was an
              unreasonably dangerous condition; and

       •      that the same unreasonably dangerous condition that Bellinghausen
              failed to perceive at point-blank range was evident to Henry from
              150 feet away.

Each of these inferences is, on its own, unreasonable. Together they are simply absurd.

       Texas law does not permit parties to create a fact issue by piling up a series of

unreasonable inferences. Schlumberger Well Surveying, 435 S.W.2d at 858; see Gonzales v.

Hearst Corp., 930 S.W.2d 275, 282-83 (Tex. App.—Houston [14th Dist.] 1996, no writ)

(finding it unreasonable to infer that reporter acted with malice when he published story

identifying police officer by an incorrect first name, in light of evidence showing that

reporter spoke with four different police officers and three different police departments

about underlying events); see also id. at 284 (“The error, when considered in context,

points not to actual malice, but to mistake or negligence.”). And “when the evidence

offered to prove a vital fact is so weak as to do no more than create a mere surmise or

                                             26
suspicion of its existence, such evidence is in legal effect no evidence.” Seideneck v. Cal

Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex. 1970); see also Browning-Ferris, Inc. v. Reyna,

865 S.W.2d 925, 928 (Tex. 1993) (noting that courts “are not empowered to convert

mere suspicion or surmise into some evidence”). Accordingly, the trial court erred in

concluding that a fact issue exists regarding whether UT-Austin had prior actual

knowledge of an unreasonably dangerous condition.

              5.     Henry’s clarification regarding what he told Officer Gonzalez
                     does not create a fact question about what he knew.

       When Plaintiff’s counsel reviewed the police report with Henry at his deposition,

Henry confirmed certain observations in the report as being consistent with what Henry

himself had observed at the scene, but Henry had not spoken with Bellinghausen and

could not corroborate several of Bellinghausen’s statements that Officer Gonzalez

reported. CR.262-66 (36:16-38:16; 39:14-40:14). For example, Henry could not confirm

that Bellinghausen told Officer Gonzalez that “he was walking on the sidewalk when he

tripped over a protruding crack in the sidewalk.” CR.264 (38:13-16). But Henry did not

disagree with anything Officer Gonzalez had written in the report, including the

statement that Henry “said that he saw another person trip and fall on the same

protruding crack about 9 a.m.” CR.266 (40:1-6).

       Henry later clarified that he did not tell Officer Gonzalez that both falls were

caused by the same crack. CR.119 (63:23-64:1). Instead, he told the officer that the falls


                                             27
occurred in the same area. Id. (63:15-20). In the trial court, Bellinghausen argued that

Henry’s clarification created “a clear issue of witness credibility” and a disputed issue of

material fact regarding whether the University had actual knowledge of an unreasonably

dangerous condition. CR.221-22 (Pl.’s Resp. at ¶ 5). The trial court evidently agreed

with Bellinghausen. CR.315. But Bellinghausen is mistaken for several reasons.

       First, what Henry actually told Officer Gonzalez cannot reasonably be disputed

because it is audible on the police video; he said that the inattentive pedestrian had fallen

“right there.” CR.276 (50:15-23). Indeed, Plaintiff’s counsel acknowledged that those

were Henry’s actual words. CR.120 (67:3-8); CR.220 (Pl.’s Resp. at ¶ 1). When one

reads the police report in light of that undisputed evidence, it becomes apparent that

Officer Gonzalez simply took the “protruding crack” language that he had used earlier

in reporting Bellinghausen’s statement identifying the crack as the cause of his fall, and

used the same phrase to identify the location where Henry reported having seen the

inattentive pedestrian fall earlier that day.

       Moreover, the relevant question ultimately is what Henry himself actually knew

at the time Bellinghausen fell, and on that question there exists no disputed fact issue.

Bellinghausen introduced no evidence to rebut Henry’s testimony that he saw the

inattentive pedestrian fall from a distance of at least 150 feet; that Henry did not go over

to help the man because he walked away unhurt; that Henry did not actually see from

that distance what had caused the man to trip; and that it was not until after

                                                28
Bellinghausen fell that Henry approached the accident scene and perceived, for the first

time, the uneven sidewalk that apparently caused both men to fall.

                                          ****

      Merely observing that an inattentive pedestrian has fallen, without more, does not

inform an observer that the sidewalk is dangerously defective. No fact-finder could

reasonably believe that David Henry’s distant observation of an inattentive pedestrian

falling gave the University actual knowledge that an unreasonably dangerous condition

existed on the sidewalk. Because there is no genuine fact dispute on that issue for a jury

to resolve, the trial court should have granted the University’s jurisdictional plea.




                                            29
                                       PRAYER

      The Court should vacate the trial court’s order denying UT-Austin’s jurisdictional

plea and dismiss Bellinghausen’s claims for lack of subject-matter jurisdiction.


                                        Respectfully submitted.

                                        KEN PAXTON
                                        Attorney General of Texas

                                        CHARLES E. ROY
                                        First Assistant Attorney General

                                        SCOTT A. KELLER
                                        Solicitor General


                                          /s/ Joseph D. Hughes
                                        JOSEPH D. HUGHES
                                        Assistant Solicitor General
                                        State Bar No. 24007410

                                        JASON WARNER
                                        Assistant Attorney General

                                        OFFICE OF THE ATTORNEY GENERAL
                                        P.O. Box 12548 (MC 059)
                                        Austin, Texas 78711-2548
                                        Tel.: (512) 936-1729
                                        Fax: (512) 474-2697
                                        jody.hughes@texasattorneygeneral.gov

                                        COUNSEL FOR APPELLANT




                                          30
                              CERTIFICATE OF SERVICE

       I certify that on February 12, 2015, an electronic copy of this brief was served on
the following counsel via File&ServeXpress.

      Robert Ranco
      THE CARLSON LAW FIRM, P.C.
      11606 N. IH-35
      Austin, Texas 78753
      rranco@carlsonattorneys.com

      COUNSEL FOR PLAINTIFF/APPELLEE,
      WILLIAM A. BELLINGHAUSEN, JR.


                                           /s/Joseph D. Hughes
                                         Joseph D. Hughes




                           CERTIFICATE OF COMPLIANCE

       In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), I certify that this
brief contains 7,259 words, excluding the portions exempted by Rule 9.4(i)(1). In
making this certification, I am relying on the Word Perfect 12 software used to prepare
the brief.


                                           /s/ Joseph D. Hughes
                                         Joseph D. Hughes




                                           31
Appendix
                              APPENDIX TABLE OF CONTENTS

                                                                                                  TAB

Nov. 21, 2014 Order Denying Defendant UT-Austin’s Plea to the
Jurisdiction and Motion to Dismiss (CR.317) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A

Photograph showing Skilled Social Work building in background,
 looking southwest across East 20th Street (CR.91) . . . . . . . . . . . . . . . . . . . . . . . . . . B

Photograph showing Mr. Bellinghausen receiving treatment (CR.93) . . . . . . . . . . . . C

Photograph showing close-up of uneven sidewalk (CR.95) . . . . . . . . . . . . . . . . . . . . D

Narrative Report of Sgt. Roberto Gonzalez, UTPD (CR.100) . . . . . . . . . . . . . . . . . . E
Tab A
317
Tab B
Tab C
Tab D
Tab E
100
