                                                                                          ACCEPTED
                                                                                     03-14-00326-CV
                                                                                            4076854
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                 2/9/2015 3:16:32 PM
                                                                                   JEFFREY D. KYLE
                                                                                              CLERK
                          CAUSE NO. 03-14-00326-CV

                      IN THE COURT OF APPEALS           FILED IN
                                                 3rd COURT OF APPEALS
                   FOR THE THIRD JUDICIAL DISTRICT AUSTIN, TEXAS
                            AUSTIN, TEXAS        2/9/2015 3:16:32 PM
                                              JEFFREY D. KYLE
                                                   Clerk
      BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM
                      AND TEXAS STATE UNIVERSITY,

                                                             Appellants,
                                       v.

                      STEPHANIE PAIGE STEINBACH,
                                                             Appellee.


     On Appeal From the 428th Judicial District Court of Hays County, Texas
                        Trial Court Cause No. 10-0281
                The Honorable R. Bruce Boyer, Judge Presiding


                   APPELLANTS' REPLY BRIEF

KEN PAXTON                          NICHELLE A. COBB
Attorney General of Texas           Assistant Attorney General
                                    State Bar Number 00786301
CHARLES E. ROY                      Tort Litigation Division, MC-030
First Assistant Attorney General    P.O. Box 12548, Capitol Station
                                    Austin, Texas 78711-2548
JAMES E. DAVIS                      (512) 463-2197 - Telephone
Deputy Attorney General             (512) 463-2224 - Facsimile
for Defense Litigation

KARA L. KENNEDY
Chief, Tort Litigation Division


                      ORAL ARGUMENT REQUESTED
                                         TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................... iii

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE
    (APPELLEE’S BRIEF, PAGE 15-30) ............................................................ 2

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER TWO
    (APPELLEE’S BRIEF, P. 31-35) ................................................................... 7

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE
    (APPELLEE’S BRIEF, P. 36-39) ................................................................... 9

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR
    (APPELLEE’S BRIEF, P. 36-39) .................................................................11

CONCLUSION ........................................................................................................13

PRAYER ..................................................................................................................13

CERTIFICATE OF COMPLIANCE .......................................................................15

CERTIFICATE OF SERVICE ................................................................................15




                                                            ii
                               INDEX OF AUTHORITIES

CASES
Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006) .....................2, 5, 6

City of Dallas v. Thompson, 210 S.W.3d 601 (Tex. 2006) (per curiam) .................. 4

City of Orange v. Jackson,
       927 S.W.2d 784 (Tex.App.—Beaumont 1996, no writ) ...............................11

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000) .....................................5, 6

Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp.,
      962 S.W.2d 193 (Tex. App. Houston [1st Dist.] 1998, pet. denied) ............ 6, 7

Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996) ................................. 8

Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992) ................................................ 8

Leleaux v. Hamshire-Fannet ISD, 835 S.W.2d 49 (Tex. 1992) ...................... 8

Stephen F. Austin University v. Flynn, 228 S.W.3d 653 (Tex. 2007) .....................10

Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland,
     781 S.W.2d 427(Tex.App.—Fort Worth, 1989.) ....................................10, 11
Texas Dept. of Parks & Wildlife v. M iranda, 133 S.W .3d 217 (Tex. 2004) .... 8

Wal-Mart Stores, Inc. v. Diaz, 109 S.W. 3d 584 (Tex.App.—Fort Worth 2003) ..... 6

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex.1998) .............................. 5

Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002) .................................... 5




                                                 iii
RULES
Texas Rules of Appellate Procedure, Rule 38.3 ........................................... 1
STATUES
Texas Civil Practice & Remedies Code §101.021...................................................11
Texas Civil Practice & Remedies Code §101.021(2) .................................... 8, 9
Texas Civil Practice & Remedies Code §101.056 ..................................................10
Texas Civil Practice & Remedies Code §101.061.............................................11, 12




                                                iv
                        CAUSE NO. 03-14-00326-CV

                    IN THE COURT OF APPEALS
                 FOR THE THIRD JUDICIAL DISTRICT
                          AUSTIN, TEXAS

     BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM
               AND TEXAS STATE UNIVERSITY,

                                                            Appellants,
                                      v.

                    STEPHANIE PAIGE STEINBACH,
                                                            Appellee.


    On Appeal From the 428th Judicial District Court of Hays County, Texas
                       Trial Court Cause No. 10-0281
               The Honorable R. Bruce Boyer, Judge Presiding


                 APPELLANTS' REPLY BRIEF

TO THE HONORABLE COURT OF APPEALS:

     COMES NOW the Appellants, Board of Regents, Texas State

University System and Texas State University, pursuant to Rule 38.3, Texas

Rules of Appellate Procedure and submits this Brief in Reply to the

Appellee’s Brief. Appellee, Stephanie Paige Steinbach, has failed to allege

facts sufficient to establish that her claim for damages falls within the

waiver of Appellants’ immunity under the Tort Claims Act.          The Court

should reverse the trial court’s judgment denying Appellants’ plea to the
jurisdiction, motion for summary judgment and no evidence motion for

summary judgment and dismiss the case for lack of subject-matter

jurisdiction.

     REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE
                (APPELLEE’S BRIEF, P. 15-30)

A.    Steinbach Has Not Offered Evidence That the Stairs Were an
      Unreasonably Dangerous Condition.

      Steinbach produced no evidence that on the day in question, Appellants had

actual or constructive knowledge that a condition existed on its premises that

created an unreasonable risk of harm. In the instant case, Steinbach has alleged

both the rubberized material on the staircase and the spilled liquid substance

constituted an unreasonably dangerous condition.     Steinbach has impermissibly

attempted to merge these allegations into one premises liability claim, when the

evidence shows that the only unreasonably dangerous condition in this case was

the spilled liquid substance on the staircase, not the staircase itself. Brookshire

Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006).

      In Brookshire Grocery Co, Plaintiff Mary Francis Taylor sued Brookshire

Grocery Co. for injuries she suffered to her knee when she slipped and fell on a

piece of partially melted ice on a tile floor in front of a self-service soft drink

dispenser in the grocery store. Id at. 407. Taylor argued that both the dispenser

and the particular piece of ice on which she slipped was an unreasonably


                                         2
dangerous condition, and that Brookshire was well aware of the risks the dispenser

posed to customers. Id at 408.   Brookshire argued the ice on which Taylor slipped

was the only unreasonably dangerous condition and that they did not have actual

knowledge of the ice on which Taylor slipped. Id at 409.        They further argued

there was no evidence that the condition had existed long enough, the ice not

having fully melted, for them to have constructive notice. Id at 409.     The Texas

Supreme Court agreed. The judgment of the court of appeals was reversed and

judgment was rendered in favor of Brookshire. Id at 409.

      As stated, the only unreasonably dangerous condition in this case was the

spilled liquid substance on the staircase.       Steinbach produced no evidence

Appellants had actual knowledge of the spilled liquid substance on the staircase

prior to her fall and Steinbach produced no evidence the spilled liquid was on the

staircase long enough for the Appellants to discover.

B.    No Evidence Appellants Had Actual Knowledge of the Alleged
      Condition.

      Belinda Frazier, the custodian assigned to the staircase where Steinbach fell,

testified she had no knowledge of the clear liquid substance on the stairs before

Steinbach’s accident. [CR 342]. She further testified she was not notified by a

Resident Advisor or any students of any spills on the stairs that day. [CR 342].

      Even if the custodians had noticed, the Texas Supreme Court has expressly

stated that the possibility of an employee’s awareness of a problem on the premises

                                          3
does not itself constitute actual knowledge. City of Dallas v. Thompson, 210

S.W.3d 601, 602 (Tex. 2006) (per curiam).          In City of Dallas v. Thompson, a

plaintiff was injured when she tripped on a coverplate that had become loose and

protruded slightly from an airport floor. The Texas Supreme Court held that

without evidence showing how long the alleged protrusion had existed, the

proximity of the employees is no evidence of actual knowledge. Id at 603-04. The

Texas Supreme Court also held that evidence of past accidents more than three

years prior and evidence of a subsequent repair did not constitute actual

knowledge. Id at 604. Steinbach has failed to show that Appellants had actual

knowledge of the spilled liquid substance on the staircase in Sterry Hall prior to

her fall. Steinbach has not met her burden of proof on this critical jurisdictional

element.

C.    No Evidence Appellants Had Constructive Knowledge of the
      Alleged Condition.

      Steinbach concedes she does not have a “smoking gun” proving Appellants’

actual knowledge of an unreasonably dangerous condition and that the Court’s

focus should be on Appellants’ constructive knowledge of the dangerous condition

instead. (Appellee’s Brief Pages 8-9). Steinbach’s evidence, however, has also

failed to show Appellants had constructive notice of the spilled liquid substance on

the staircase leading to the laundry room in Sterry Hall prior to her fall.



                                           4
      For a property owner to have constructive notice of a premises defect, the

defect must have existed long enough for the owner or occupier to have discovered

it upon reasonable inspection. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812,

814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936

(Tex.1998). To impose constructive knowledge when the owner or occupier did

not have actual knowledge and would not have discovered the dangerous condition

from a reasonable inspection is to dramatically alter premises law. CMH Homes,

Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000); see also Brookshire Grocery,

222 S.W.3d at 409.

      Steinbach offered no evidence as to when the liquid was spilled on the

staircase. Nothing in the record indicates that Appellants should have been aware

that there was liquid spilled on the staircase leading to the laundry room at Sterry

Hall prior to Steinbach’s fall. Nothing in the record indicates that the custodians

who cleaned the area knew of the problem and failed to report it. Nothing in the

record indicates the Resident Advisor or any student informed the University of

any spills on the stairs on that day. [CR 342]. Likewise, there is no evidence that

Appellants’ employee spilled the clear liquid substance. [CR 314].          As such

Steinbach has not produced evidence demonstrating Appellants had constructive

knowledge of the spilled substance on the staircase prior to Steinbach’s fall.




                                          5
D.    Steinbach Has Not Alleged Evidence That Appellants Failed to
      Exercise Ordinary Care or That Appellants’ Failure Proximately
      Caused the Accident.

      When a condition is not unreasonably dangerous and the proprietor did not

have actual or constructive notice of the defect, the proprietor by definition cannot

have failed to exercise ordinary care to warn against the defect, nor can that failure

have proximately caused the accident. The Texas Supreme Court has held that a

property owner must be on either actual or constructive notice of a defect before he

can be liable for failing to exercise ordinary care. See Wal-Mart Stores, Inc. v.

Diaz, 109 S.W. 3d 584 (Tex. App.—Fort Worth 2003); see also Brookshire

Grocery, 222 S.W.3d at 408-09; CMH Homes, 15 S.W.3d at 102. Because

Steinbach has not established facts sufficient to prove Appellants had actual or

constructive notice of the defect, she also cannot demonstrate that the Appellants

failed to exercise ordinary care or that such failure caused her accident.

E.    Conclusion

      Steinbach has not met her burden to allege facts establishing Appellants

knew or reasonably should have known of the spilled liquid substance on the

staircase leading to the laundry room at Sterry Hall at the time of her fall, she also

cannot establish Appellants failed to exercise ordinary care or that Appellants’

failure proximately caused her injuries for the reasons articulated. As set forth in

Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp., 962 S.W.2d 193, 197 (Tex.


                                          6
App. Houston [1st Dist.] 1998, pet. denied), the plaintiff as the non-movant has the

burden to raise a triable issue on each element essential to the plaintiff’s case.

There being no evidence on a number of essential elements, even under the invitee

standard, Steinbach cannot assert a claim within the waiver of the Appellants’

immunity.

      Issue Number One should be sustained and judgment rendered in favor of

the Appellants.

     REPLY TO APPELLEE’S AGRUMENT ISSUE NUMBER TWO
                (APPELLEE’S BRIEF, P. 31-35)

      Steinbach contends she has plead sufficient facts to show her claims fall

within the Act’s waiver of immunity because her claims are based on

negligence involving use or misuse of tangible personal property. Steinbach

alleges the rubberized material attached to the stairs and flooring leading to the

laundry room presented a negligent condition and use of tangible property that

proximately caused her injuries and damages.        Steinbach asserts Appellants,

therefore, have waived their immunity from her suit under both a premises

liability and a general negligence theory of liability.

      Under the Texas Tort Claims Act, Steinbach is barred from asserting

and submitting both premises defect and general negligence theories of

liability based on her allegation that she was injured after falling on a clear


                                         7
liquid substance on the stairs leading to the laundry room in Sterry Hall.

(CR. Pages 313-314). Once a claim has been determined to involve a premise

defect, Steinbach is confined to pleading and proving a premises defect

theory of liability. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W .3d

217 (Tex. 2004). As Steinbach’s claim is arguably a premise defect claim,

Steinbach is limited to this cause of action and cannot claim or recover for

alleged use of tangible personal property pursuant to Section 101.021(2) of the

Texas Tort Claims Act.

      In addition, even if the Court considered Steinbach’s general

negligence allegations as claims independent of a premises cause of action,

these allegations still would not waive the University’s immunity because the

allegations do not involve any negligent “use” of tangible personal property

by Appellants’ employees that allegedly caused Steinbach’s injuries. See

Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996); Leleaux v. Hamshire-

Fannet ISD, 835 S.W.2d 49 (Tex. 1992). As the Texas Supreme Court held in

Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992), a negligent use theory of

recovery requires that the plaintiff be harmed by or as a contemporaneous result of

the activity itself. Id at 264. Although Steinbach alleges she was injured by

Appellants’ previous act of putting rubber mats on the staircase, Steinbach was not


                                         8
injured by any contemporaneous activity by Appellants.

      As such, Steinbach has impermissibly attempted to re-cast her claim as

a negligent use or condition of tangible personal property. Because Steinbach’s

claim is arguably a premise defect claim, Steinbach is limited to this cause of

action and cannot claim or recover for alleged use of tangible personal property

pursuant to Section 101.021(2) of the Tort Claims Act. The trial court erred in

denying Appellants’ Plea to the Jurisdiction, Motion to Dismiss and No-Evidence

Motion for Summary Judgment on Steinbach’s general negligence allegations.

      Issue Number Two should be sustained and judgment rendered in favor of

the Appellants.

    REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE
                (APPELLEE’S BRIEF, P. 36-39)

      On page 11 of Steinbach’s brief, Steinbach concedes that the placement of

the hand rails on the left side of the stairwell and the use of rubberized material

leading to the laundry room are discretionary decisions, and therefore, not a waiver

of sovereign immunity under the Texas Tort Claims Act. Steinbach alleges a claim

for the Appellants’ negligent implementation of a policy carried out by the

Appellants.

      To state a negligent implementation claim; however, Steinbach had to

identify a particular policy adopted by Appellants and state facts which raise a

claim that the policy was negligently carried out at the operational level. See

                                         9
Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781 S.W.2d 427,

433 (Tex. App.—Fort Worth, 1989).            Steinbach has failed to do so. Steinbach

failed to identify any specific policy of the Appellants which was negligently

implemented by Appellants or plead any facts which would demonstrate the

violation of such policy. In short, Steinbach never raised a claim of negligent

implementation of policy in her petitions.

      The essence of Steinbach's allegation is the spilled liquid substance on the

staircase. Steinbach's attempt to separate Appellants’ design decisions regarding

the handrails and the choice of materials used on the stairs from her complained of

issue - the spilled liquid substance - makes no sense in light of the policy rationale

behind §101.056 to preclude courts from second-guessing the State's decision-

making process. Stephen F. Austin University v. Flynn, 228 S.W.3d 653, 657

(Tex. 2007). To say that the State is immune from suit for complaints regarding

the design of the stairs, but not for the condition that the design created, would

render §101.056 meaningless.

      As Steinbach's allegations are merely complaints about an alleged

unreasonably dangerous condition caused by the clear liquid substance spilled on

the stairs in Sterry Hall, these allegations do not present a negligent

implementation theory of liability for which Appellants’ immunity would be

waived.    Any claims by Steinbach implicating the staircase structure, design,


                                          10
handrails or defective materials are barred by sovereign immunity. Moreover,

even if such a claim had been made, the assertion of a negligent implementation

theory of liability arises only after Steinbach has properly asserted a waiver of

immunity under Texas Civil Practice & Remedies Code §101.021, which she has

not. City of Orange v. Jackson, 927 S.W.2d 784, 786 (Tex. App.—Beaumont

1996, no writ).

      Issue Number Three should be sustained and judgment rendered in favor of

Appellants.

     REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR
                  (APPELLEE’S BRIEF, P. 40)

      There is no waiver of immunity based on premises constructed before 1970.

It is undisputed that the stairs in Sterry Hall of which Steinbach complains was

constructed prior to 1970 and have remained in substantially the same condition

since its completion. [CR 302]. Under §101.061 of the TTCA, there is no waiver

of immunity for premises defect claims related to structures built prior to 1970.

Regardless of Steinbach’s contentions of negligence concerning a premises defect,

Appellants maintains their entitlement to sovereign immunity to a claim based on

an act or omission that occurred before January 1, 1970. Tex. Civ. Practice and

Remedies Code Ann. §101.061.

      In Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781

S.W.2d 427 (Tex. App.—Fort Worth, 1989.), boaters were killed when they struck

                                       11
their heads on the underside of a bridge. A wrongful death action was brought

against several governmental defendants. In reversing a judgment in favor of the

Plaintiffs, the Court noted that the reservoir and bridge in question had been

completed by 1967 and had not been modified. Plaintiffs complained that the

deaths resulted from the failure to place warning lights on the low bridge.

Unconvinced by such argument, the Court held that the state cannot be held liable

under §101.061 of the TTCA based on the State’s failure to include lights, signs,

and safety features in the original pre-1970 design. The Appellees in Crossland,

like Steinbach, were asking this court to hold §101.061 does not apply to the

omission of safety devices because the State could have warned of the danger after

1970. Id at 433. The Fort Worth Court of Appeals held the plain language of

§101.061 does not admit this interpretation.     Id at 433. In the instant case,

Steinbach’s failure to offer any evidence of any act or omission of Appellants or

the Appellants’ agents subsequent to 1970, unrelated to the original design of the

stairs in Sterry Hall, failed to penetrate Appellants’ veil of immunity outlined in

§101.061 of the TTCA.

      As Appellants have conclusively established this affirmative defense, as a

matter of law, Issue Number Four should be sustained and judgment rendered in

favor of Appellants.




                                        12
                                 CONCLUSION

      Appellants’ sovereign immunity under the Texas Tort Claims Act has not

been waived.     The evidence in this case conclusively negates Steinbach’s

allegations that Appellants breached the duty of care under the Act with regard to

the spilled liquid substance on the staircase leading to the laundry room in Sterry

Hall which allegedly injured Steinbach.        Steinbach presented no evidence that,

at the time of her accident, Appellants had actual knowledge of the presence

of the spilled liquid on the staircase leading to the laundry room in Sterry

Hall prior to her fall. Even if Steinbach was entitled to the heightened status of

an invitee at the time of her accident, Steinbach presented no evidence that the

Appellant should have been aware of the spilled liquid on the stairs leading to the

laundry room on the day of Steinbach’s fall. There is no applicable waiver of

Appellants’ sovereign immunity under the Act.            This Court should reverse

the trial court’s order denying Appellants’ Third and Fourth Supplemental

Plea to the Jurisdiction, Motion for Summary Judgment and No-Evidence

Motion for Summary Judgment and dismiss Steinbach’s lawsuit for lack of

subject-matter jurisdiction.

                                    PRAYER

       WHEREFORE, PREMISES CONSIDERED the Appellants pray that

this Honorable Court reverse the order of the trial court denying the


                                          13
Appellants’ Third and Fourth Supplemental Plea to the Jurisdiction, Motion

for Summary Judgment and No-Evidence Motion for Summary Judgment;

and, render judgment dismissing this cause of action with prejudice.

Further, Appellants pray that all costs, in the trial court and Court of

Appeals, be taxed against the Appellee. The Appellants further pray for all

other relief, legal and equitable, to which they may be justly entitled.

                                    Respectfully submitted,

                                    KEN PAXTON
                                    Attorney General of Texas

                                    CHARLES E. ROY
                                    First Assistant Attorney General

                                    JAMES E. DAVIS
                                    Deputy Attorney General for Civil
                                    Litigation

                                    KARA L. KENNEDY
                                    Chief, Tort Litigation Division




                                    __________________________________
                                    NICHELLE A. COBB
                                    Assistant Attorney General
                                    State Bar #00786301
                                    Tort Litigation Division, MC-030
                                    P.O. Box 12548, Capitol Station
                                    Austin, Texas 78711-2548
                                    (512) 463.2197
                                    FAX: (512) 463.2224


                                      14
                      CERTIFICATE OF COMPLIANCE

      Relying on the word count function in the word processing software used to
produce this document, I certify that the number of words in this Appellants' Reply
Brief (excluding any captions, identify of the parties and counsel, statement
regarding oral argument, table of contents, index of authorities, statement of the
case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature block, proof of service, certification, certificate of
compliance, and appendix) is 2,847.



                                      ____________________________________
                                      NICHELLE A. COBB
                                      Assistant Attorney General



                         CERTIFICATE OF SERVICE

       I certify that on this, the 9th day of February, 2015 at approximately 3:00
P.M. I served a copy of the Appellants’ Reply Brief on the party listed below by
electronic service concurrently with the electronic filing of the document. The
electronic transmission of the document was reported as complete. My e-mail
address is Nichelle.Cobb@texasattorneygeneral.gov and my fax number is (512)
457-4442:

Mr. Mark Cusack                       Via Electronic Service
Attorney at Law
242 North Guadalupe Street
San Marcos, Texas 78666
cusacklaw@centurytel.net




                                      ____________________________________
                                      NICHELLE A. COBB
                                      Assistant Attorney General



                                         15
