      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00265-CV



                          The University of Texas at Austin, Appellant

                                                  v.

                                     John Sampson, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-GN-11-000915, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                               DISSENTING OPINION


               I respectfully dissent from the majority decision in this case because I disagree with

the majority’s application of the standard of review required to reverse the denial of the University’s

plea to the jurisdiction. Unlike the majority, I would conclude that Sampson has raised a fact issue

on the question of whether the University had actual knowledge of a condition on the sidewalk that

created an unreasonable risk of harm.

               When, as here, the jurisdictional evidence implicates the merits, the trial court does

not act as a factfinder. University of Tex. v. Poindexter, 306 S.W.3d 798, 807 (Tex. App.—Austin

2009, no pet.). Instead, the University’s burden is very similar to that of a movant for summary

judgment. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004).

Once the University “asserts and supports with evidence that the trial court lacks subject matter

jurisdiction,” we require Sampson to “show [only] that there is a disputed material fact regarding the
jurisdictional issue.” Id. at 228. As with summary judgment, we review the trial court’s legal

determination in such cases de novo, taking as true all evidence favorable to the nonmovant and

indulging every reasonable inference and resolving any doubts in the nonmovant plaintiff’s favor.

Id.; Poindexter, 306 S.W.3d at 807. Applying this standard, a review of the evidence shows that

Sampson presented more than a scintilla of evidence that the University had actual knowledge of the

condition on the sidewalk that presented an unreasonable risk of harm.

               Sampson presented evidence that the University contracted with Austin World of

Rentals (AWR) to assist with the setup for a “tailgate party.” AWR employees installed lights in the

trees, while the University was responsible for getting power from an electrical outlet to the area

where the lights were located. There was evidence that it was standard procedure for the University

to run power from outlet boxes to the areas where power was needed; therefore it could be expected

that the University did so in this case as well. George Bates, the AWR contact person for this event,

testified it was his understanding that “somebody from [the University]” would be running an

extension cord from the power source to the area where the lights were. Bates testified that “[AWR]

always duct-taped extension cords down to the ground or to the wall.” The extension cord Sampson

tripped over was not duct-taped to the ground. This supports an inference that the University, not

AWR, ran the extension cord from the electrical outlet to the lights. University event planner

Ashleigh Murray testified that the University facilities department was responsible for “turn[ing] on

the electric–unlock[ing] the boxes and turn[ing] on the electrical outlets, or the power.” Murray had

requested that the University’s electrical shop provide electrical services and requested that the

University provide ten extension cords for this purpose. A cost report generated by the University’s



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electrical shop indicated that a University facilities department employee fulfilled this request.

University event planner Natzyeli Leugers testified that she saw University electrical shop employees

walk the site and discuss the setup for the event on either the day of or the day before the event.

Leugers testified that on the day of the event she saw them “checking that we had power and that

everything was fine.” Leugers had reported that “every thing was double checked by a [University]

Technical Crew Leader in the Electric Shop . . . before the event started.” This further supports

the inference that it was University employees who installed the extension cord that Sampson

tripped over.

                Leugers and Murray testified that they observed that the lights in the trees went out

half way through the event. Upon discovering that the extension cord had become unplugged from

the electrical outlet, Luegers plugged the cord back in to the outlet. Leugers testified that she “saw

the cable was unplugged from the electrical cord—from the plug.” The evidence was that this outage

occurred around 6:00 p.m. on the day of the event; Sampson testified that he did not arrive at the law

school until around 6:30 p.m.

                I believe there was far more than a scintilla of evidence that University employees

initially placed the cord across the walkway, that other University employees viewed the setup

involving the extension cord across the sidewalk, and that still other University employees

reconnected the plug when it became disconnected prior to Sampson’s accident.

                I am unpersuaded that the supreme court’s holding in University of Texas-Pan

American v. Aguilar, 251 S.W.3d 511 (Tex. 2008), compels the conclusion that, despite the evidence

outlined above, the University did not have actual knowledge of an unreasonable risk of harm. In



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Aguilar, the focus was on whether the University knew that a more-or-less permanent condition (the

general use of water hoses on the campus) presented an unreasonable risk of harm. Id. at 513-14.

There, the court observed that the lack of any previous incidents of students tripping on water hoses

despite their prevalent use on campus supported the conclusion that there was no evidence that the

University had actual knowledge “that the hose’s use under these circumstances presented an

unreasonable risk of harm.” Id. at 514 (emphasis added). In the present case, in contrast, there is

no question that an isolated use of an electrical cord stretched across and elevated slightly above a

darkened sidewalk created an unreasonable risk of harm (tripping and falling) to a pedestrian.

Rather, the issue here is whether the University had knowledge that the cord was so positioned.

                I cannot agree with the majority’s conclusion that Sampson was required to “refute

the University’s evidence that it had not received prior reports of injuries or accidents in the relevant

area.” Slip op. at 15. Unlike in Aguilar, where the lack of reports of tripping over water hoses on

campus supported a conclusion that the University had no actual knowledge that the hoses created

an unreasonable risk of harm, there is no history of University employees or students successfully

navigating elevated electrical cords that could even tend to show, much less conclusively prove, that

the University could have been led to believe that cords positioned in that manner would not present

an unreasonable risk of harm. In any event, the existence vel non of prior reports of injuries is

merely one factor to consider in determining knowledge. Especially in a case like this one, the

absence of prior reports does not conclusively negate knowledge.

                Finally, the majority relies on University of Texas at El Paso v. Muro, 341 S.W.3d. 1

(Tex. App.—El Paso 2009, no pet.), as support for its decision. Slip op. at 12. In Muro, the court



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held that “[w]hen circumstantial evidence presents two equally plausible, but opposite inferences,

neither can be inferred.” Muro, 341 S.W.3d at 5. The equal-inference rule, however, has no

application in the present case top, side, nor bottom. See Lozano v. Lozano, 52 S.W.3d 141, 148-49

(Tex. 2001) (discussing equal-inference rule).

               Because I believe Sampson presented more than a scintilla of evidence that the

University had actual knowledge of the placement of the electrical cord he tripped over, a condition

that created an unreasonable risk of harm to pedestrians using the sidewalk, I would affirm the trial

court’s order and therefore dissent from the majority’s decision to reverse it.



                                              _____________________________________________

                                              J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Rose and Goodwin

Filed: August 8, 2014




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