                                                                                               ACCEPTED
                                                                                          03-14-00749-CV
                                                                                                 4569284
                                                                                THIRD COURT OF APPEALS
                                                                                           AUSTIN, TEXAS
                                                                                     3/19/2015 3:53:21 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                            No. 03-14-00749-CV

                       In the Court of Appeals                      FILED IN
                                                             3rd COURT OF APPEALS
                   for the Third Judicial District               AUSTIN, TEXAS
                                                             3/19/2015 3:53:21 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, Travis County, Texas


                        APPELLANT’S REPLY 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           JASON WARNER
P.O. Box 12548 (MC 059)                  Assistant Attorney General
Austin, Texas 78711-2548
Tel.: (512) 936-1700
Fax: (512) 474-2697                      COUNSEL FOR APPELLANT



                  ORAL ARGUMENT REQUESTED
                                                TABLE OF CONTENTS


Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

          I.        Only One Reasonable Inference Can Be Drawn From the
                    Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

                    A.        No Reasonable Juror Could Believe That the Sidewalk
                              Appeared Dangerously Defective From 150 Feet Away . . . . . . 3

                    B.        Henry’s Statement That the Unidentified Pedestrian Fell
                              “Right There” Identified the Location of the Fall, Not Its
                              Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

                    C.        Henry’s Knowledge That There Are Uneven Sections of
                              Sidewalk on Campus Is Not Knowledge That an
                              Unreasonably Dangerous Condition Existed Where
                              Bellinghausen Fell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          II.       Henry Did Not “Change His Story” Before His Deposition . . . . . . . 11

                    A.        Henry’s Identification of the Location Where the
                              Unidentified Pedestrian Fell Does Not Create a Material Fact
                              Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                    B.        Henry Consistently Described the Pedestrian as Inattentive . . 14

                    C.        There Is No Material Fact Dispute as to Why Henry
                              Interrupted His Work After Bellinghausen’s Fall . . . . . . . . . . . 15

Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18


                                                                 ii
                                          INDEX OF AUTHORITIES
Cases

Brinson Ford, Inc. v. Alger,
       228 S.W.3d 161 (Tex. 2007) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

City of Austin v. Leggett,
        257 S.W.3d 456 (Tex. App.—Austin 2008, pet. denied) . . . . . . . . . . . . . . . . . 8

City of Corsicana v. Stewart,
        249 S.W.3d 412 (Tex. 2008) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8

City of Dallas v. Thompson,
        210 S.W.3d 601 (Tex. 2006) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

City of San Antonio v. Rodriguez,
        931 S.W.2d 535 (Tex. 1996) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Dietz v. Hill Country Rests., Inc.,
       398 S.W.3d 761 (Tex. App.—San Antonio 2011, no pet.) . . . . . . . . . . . . . . . . 5

K-Mart Corp. v. Honeycutt,
      24 S.W.3d 357 (Tex. 2000) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Reyes v. City of Laredo,
        335 S.W.3d 605 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 10

State v. Tennison,
        509 S.W.2d 560 (Tex. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Tex. Dep’t of Pub. Safety v. Alexander,
      300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied) . . . . . . . . . . . . . . . . . 10

U.S. Fire Ins. Co. v. Lynd Co.,
      399 S.W.3d 206 (Tex. App.—San Antonio 2012, pet. denied)
      (op. on reh’g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5

Univ. of Tex. at Austin v. Hayes,
       327 S.W.3d 113 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

                                                            iii
                                 No. 03-14-00749-CV

                           In the Court of Appeals
                       for the Third Judicial District

                       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 REPLY BRIEF


TO THE HONORABLE THIRD COURT OF APPEALS:

             It is undisputed that David Henry was working 150 to 200 feet away from

where he saw an unidentified pedestrian fall, and that he later reported seeing the

pedestrian fall “right there.”    Bellinghausen argues that those words should be

interpreted to mean that Henry witnessed not only where the pedestrian fell but also what

caused his fall. But the context in which Henry spoke them precludes that reading. No

reasonable juror could believe that, from 150 feet away, Henry identified the sidewalk

as dangerously defective. Accordingly, the evidence raises no genuine fact issue as to

whether the University had actual knowledge of an unreasonably dangerous condition.
                                      ARGUMENT

I.    ONLY ONE REASONABLE INFERENCE CAN BE DRAWN FROM THE
      EVIDENCE.

      The undisputed facts include the following:

      •      maintenance supervisor David Henry was working on the east side
             of the Skilled Social Work building on the morning of August 27,
             2011 when he saw an unidentified pedestrian fall on the sidewalk on
             the north side of East 20th Street (CR.116 (26:12-25, 29:9-25));

      •      the location where the pedestrian fell, which was at least 150 feet
             away (and across the street) from where Henry was working, was the
             same location where Bellinghausen later fell (CR.115 (23:2-6);

      •      shortly after Bellinghausen fell, Henry told Officer Gonzalez that,
             a few hours earlier, the unidentified pedestrian had fallen “right
             there” (CR.120 (67:3-8)); and

      •      Officer Gonzalez’s police report stated that (1) Bellinghausen said
             that he “tripped over a protruding crack in the sidewalk” and
             (2) 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.” CR.100.

      It cannot reasonably be inferred from this evidence that, at the time the pedestrian

tripped, Henry perceived the sidewalk as uneven or identified it as the cause of the man’s

fall. Instead, it is obvious that, when Henry said the words “right there,” he was simply

indicating to Officer Gonzales that the earlier fall had happened in the same location as

the later fall. Bellinghausen had just shown Officer Gonzalez the expansion joint where

the edge of one sidewalk slab was higher than the edge of the adjacent slab, and the

officer reasonably inferred that both men had tripped over the same protruding edge.

                                            2
Accordingly, Officer Gonzalez’s use of the “same protruding crack” language reflects

Henry’s identification of the location where the first fall had happened.

      Bellinghausen offers a different interpretation. In his version, Henry saw the

pedestrian trip on the protruding edge of a sidewalk slab from his post 150 to 200 feet

away. Later, after Bellinghausen fell, the manner in which Henry told Officer Gonzalez

that the pedestrian had fallen “right there” caused the officer to understand that Henry

had identified the uneven sidewalk as the cause of the pedestrian’s fall from 150 feet

away and prior to Bellinghausen’s fall. See Pl.’s Br. 19; id. at 23 (“Officer Gonzalez saw

how the words were said and determined that Henry meant the same protruding crack.”).

      Bellinghausen’s interpretation is not credible. The notion that Henry could

perceive a protruding sidewalk edge from 150 feet away is absurd—particularly in light

of the fact that the protruding edge was not apparent to Bellinghausen at close range.

Because Bellinghausen’s interpretation rests upon the implausible inference that Henry

has superhuman powers of perception, the evidence raises no genuine fact dispute as to

whether the University had actual knowledge of an unreasonably dangerous condition.

      A.     No Reasonable Juror Could Believe That the Sidewalk Appeared
             Dangerously Defective From 150 Feet Away.

      The sidewalk section at issue, as it existed at the time of Bellinghausen’s accident,

is depicted in the photographs taken by Officer Gonzalez that are attached as

Appendices A and B to this brief and were attached as Appendices B and D to the


                                            3
University’s opening brief. App. A, B; see CR.91, 95.1 Bellinghausen does not dispute

that Henry was at least 150 feet away when he saw the pedestrian fall. Accordingly,

assuming arguendo that the uneven expansion joint shown in those photographs could be

considered unreasonably dangerous, the issue is whether Henry plausibly could have

identified the hazard from 150 feet away. See City of Corsicana v. Stewart, 249 S.W.3d 412,

413 (Tex. 2008) (per curiam) (to invoke legislative waiver of immunity, plaintiff must

show actual knowledge of an unreasonably dangerous condition at the time of the

accident); Brinson Ford, Inc. v. Alger, 228 S.W.3d 161, 163 (Tex. 2007) (per curiam) (“A

condition is unreasonably dangerous if it presents an unreasonable risk of harm.”).

        A review of the photographs confirms that he could not have done so. See Apps.

A, B. The small difference in the heights of the adjoining slab edges would be

impossible to perceive from 150 feet, and no reasonable juror could believe otherwise.

        In an effort to circumvent that problem, Bellinghausen argues that no expert

witness testified that the uneven sidewalk could not have been identified from 150 feet.

Pl.’s Br. 17. But expert testimony is not needed (and properly should be excluded)

regarding matters of common knowledge. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357,

360 (Tex. 2000) (per curiam) (expert testimony not required to determine whether it was

reasonable for plaintiff to sit on rail of cart corral in grocery store); U.S. Fire Ins. Co. v.


        1. The color copies of the photographs used below (and attached as Appendices A and B)
display significantly better contrast than the black-and-white copies that appear in the reporter’s record.

                                                    4
Lynd Co., 399 S.W.3d 206, 217 (Tex. App.—San Antonio 2012, pet. denied) (op. on

reh’g) (whether hail fell and caused damage in a particular place did not require expert

testimony because it was “a matter of personal observation and common sense”); Dietz

v. Hill Country Rests., Inc., 398 S.W.3d 761, 765-66 (Tex. App.—San Antonio 2011, no

pet.) (expert testimony not needed to determine whether restaurant walkway presented

an unreasonable risk of harm or premises owner had knowledge of the hazard). For that

reason, no expert testimony was required to establish that Henry could not have

identified the expansion joint as dangerously defective from at least 150 feet away.

       Bellinghausen also argues that Henry himself did not testify that he could not see

the expansion joint from his work site. Pl.’s Br. 17. That argument ignores Henry’s

testimony that he saw the pedestrian fall but did not see him trip on a protruding

sidewalk edge. CR.253 (27:5-13). Bellinghausen does not explain the difference, from

Henry’s perspective, between failing to see the uneven sidewalk and being unable to see it.

Henry’s testimony that he saw the pedestrian fall but did not see him trip on an uneven

sidewalk implicitly reflects that he could not perceive any defect from where he stood.

       B.    Henry’s Statement That the Unidentified Pedestrian Fell “Right
             There” Identified the Location of the Fall, Not Its Cause.

       Bellinghausen acknowledges that what Henry actually told Officer Gonzalez was

that the unidentified pedestrian had fallen “right there.” See, e.g., Pl.’s Br. 6. Those

words are audible on the audio portion of the video recording taken from Officer


                                            5
Gonzalez’s police car. CR.276 (50:15-23). But they are a statement of location, not

causation. Henry did not tell the officer what had caused the pedestrian to trip because

he did not see or know the cause. CR.253 (27:7-13); CR.290 (64:17-18).

       Instead, Officer Gonzalez reasonably inferred that both men tripped on the same

uneven expansion joint based on Henry’s report that the pedestrian had fallen in the

location of the uneven sidewalk where Bellinghausen had just tripped. Bellinghausen

acknowledges this point. See Pl.’s Br. 6 (“The police officer . . . identified that

Bellinghausen fell on the same protruding crack as the prior fall.”); id. at 19 (noting that

“Officer Gonzalez identified the same protruding crack”). But the issue here is not

whether the pedestrian tripped on the same expansion joint; it is whether Henry knew

that this particular expansion joint as dangerously defective before he saw it up close in

the wake of Bellinghausen’s fall. Henry’s report that the pedestrian had fallen “right

there”—indicating the same section of sidewalk where Bellinghausen fell—is no

evidence that Henry knew, before Bellinghausen fell, that the sidewalk was dangerous.

       Bellinghausen argues that the “evidence suggests that Henry did see the crack.”

Pl.’s Br. 18. But the evidence he cites describes Henry’s observation of the expansion

joint after Bellinghausen fell. See id. (“After Bellinghausen fell, Henry went over to see

what was going on.”). Evidence that Henry perceived the uneven condition of the

expansion joint after the accident cannot be used to show the University’s actual



                                             6
knowledge of a dangerous condition before the accident. See, e.g., City of Corsicana, 249

S.W.3d at 415-16.

      C.     Henry’s Knowledge That There Are Uneven Sections of Sidewalk on
             Campus Is Not Knowledge That an Unreasonably Dangerous
             Condition Existed Where Bellinghausen Fell.

      Bellinghausen argues that Henry’s knowledge that this particular expansion joint

was dangerously defective can be inferred from his observation of the unidentified

pedestrian’s fall, combined with his knowledge that sidewalk expansion joints tend to

become uneven over time due to tree roots and other factors. See Pl.’s Br. 16

(“Knowledge that there were uneven sidewalks all across campus, that they could be

made by tree roots, and that there was a tree nearby makes seeing the initial fall and

connecting it to the crack a more reasonable inference for Henry and a jury to make.”).

As an initial matter, there is no evidence that Henry noticed the tree when he saw the

inattentive pedestrian fall. Moreover, the Texas Supreme Court and this Court have

repeatedly rejected similar attempts to establish actual knowledge of a dangerous

condition by showing awareness of a tendency for problems to develop. See Reyes v. City

of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) (“Awareness of a potential

problem is not actual knowledge of an existing danger.”); City of Dallas v. Thompson, 210

S.W.3d 601, 603 (Tex. 2006) (per curiam) (“[T]he fact that materials deteriorate over time

and may become dangerous does not itself create a dangerous condition.”).



                                            7
       Under Bellinghausen’s reasoning, city employees’ knowledge that an expansion-

joint coverplate tended to become loose over time, together with (1) reports of prior falls

in the same area several years earlier and (2) evidence that city employees “had been in

the area of the coverplate and probably had walked over it” shortly before the accident,

would allow an inference that the city knew that the coverplate was a tripping hazard.

See Thompson, 210 S.W.3d at 603. Similarly, 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, would permit an inference that the city knew that a

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

Reyes, 335 S.W.3d at 608-09. But the Supreme Court rejected those arguments. See id.;

Thompson, 210 S.W.3d at 603-04; 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); City of Austin v. Leggett, 257 S.W.3d 456, 476 (Tex.

App.—Austin 2008, pet. denied) (evidence that an outflow grate on a stormwater

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



                                            8
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).

       Bellinghausen attempts to distinguish these and several other premises-defect

cases on the ground that none of them involved an employee who witnessed “a prior fall

in the same vicinity hours before the incident in question.” Pl.’s Br. 14. But that

purported distinction wrongly assumes that it was possible for Henry to perceive, from

at least 150 feet away, that the unidentified pedestrian’s fall was caused by a dangerously

uneven expansion joint.

       Bellinghausen argues that Henry could draw “a reasonable inference” that the

pedestrian “tripped on the thing [Henry] saw all around campus sidewalks.” Id. at 16.

But it is not enough to say that Henry should have assumed that the pedestrian tripped

on a sidewalk crack and, based on that assumption, deduced that the sidewalk was

dangerously defective. Instead, Henry must have actually known that the sidewalk was

dangerously defective.

       Bellinghausen likens this case to the situation discussed in City of San Antonio v.

Rodriguez, 931 S.W.2d 535 (Tex. 1996) (per curiam). In that case, the Supreme Court

suggested in dicta that a city’s knowledge of a wet gymnasium floor might properly be

inferred if the evidence showed that the building manager knew that there were leaks in

the roof and that it was then raining, “[d]epending on the position of the leaks above the

floor and the amount of rain.” Id. at 537. Bellinghausen argues that “[w]hat we have is

                                            9
essentially a rainy day, with knowledge of leaks, and then seeing someone slip on the

floor.” Pl.’s Br. 16. His argument is unpersuasive.

       This case is much closer to Thompson than it is to Rodriguez. In the situation

discussed in Rodriguez, knowledge of the dangerous condition (the wet floor) could be

inferred if it was raining hard enough and the roof leaks were located above the floor

because “the nature of the leaks and the amount of rain on the roof could make the

presence of water on the floor a virtual certainty.” Reyes, 335 S.W.3d at 609. By contrast,

just because tree roots can create uneven sidewalks over time and a pedestrian has fallen

near a tree does not make the existence of a dangerous sidewalk “a virtual certainty.” Id.

The pedestrian may have tripped on an uneven expansion joint, or he may have fallen

for numerous other reasons unrelated to the condition of the sidewalk. See Def.’s Br. at

22-25. The latter inference is even more likely, if, as in this case, the pedestrian was not

paying attention.    “A fact-finder may not infer an ultimate fact from meager

circumstantial evidence that could give rise to any number of inferences, none more

probable than another.” Tex. Dep’t of Pub. Safety v. Alexander, 300 S.W.3d 62, 74 (Tex.

App.—Austin 2009, pet. denied) (citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387,

392 (Tex. 1997)).

       In essence, Bellinghausen is arguing that Henry should have surmised, from seeing

an inattentive pedestrian trip in the vicinity of a tree, that a hazardous condition existed

on the sidewalk. But evidence that a premises owner should have known of a dangerous

                                            10
condition is not evidence of actual knowledge. See, e.g., Univ. of Tex. at Austin v. Hayes,

327 S.W.3d 113, 117 (Tex. 2010) (per curiam); State v. Tennison, 509 S.W.2d 560, 562 (Tex.

1974) (“Actual knowledge rather than constructive knowledge of the dangerous

condition is required.”). Bellinghausen failed to create a fact issue as to whether the

University had actual knowledge of an unreasonably dangerous condition.

II.   HENRY DID NOT “CHANGE HIS STORY” BEFORE HIS DEPOSITION.

       Bellinghausen argues that a fact question arises from what he describes as

differences between Henry’s oral statement to Officer Gonzalez on the day of the

accident and Henry’s later deposition testimony. See Pl.’s Br. at 11-13. Bellinghausen

deems it suspicious that Henry’s deposition testimony is “more detailed and nuanced”

than his statement to Officer Gonzalez. Id. at 12. But it would be strange if testimony

given under oath during a deposition lasting several hours were not more detailed than

an informal statement given during an interview lasting, at most, a few minutes. Further,

a review of the purported differences reveals Bellinghausen’s argument as meritless.

      A.      Henry’s Identification of the Location Where the Unidentified
              Pedestrian Fell Does Not Create a Material Fact Dispute.

       First, Bellinghausen argues that Henry told Officer Gonzalez that the unidentified

pedestrian fell “right there,” whereas at his deposition, he testified that Bellinghausen

and the unidentified pedestrian fell in the same vicinity. See id. But the discrepancy is

nonexistent. It is undisputed that Henry told Officer Gonzalez that the pedestrian fell


                                            11
“right there.” E.g., Pl.’s Br. at 4. At his deposition, Henry listened to the audio of the

police video and agreed that he used those words. CR.293 (67:1-16). Henry’s deposition

testimony thus confirms, rather than contradicts, his initial statement.

       Bellinghausen makes too much of Henry’s clarification regarding what he saw.

At his deposition, Henry explained that he saw the unidentified pedestrian fall in the

vicinity of where Bellinghausen later fell, i.e., within five feet in either direction. CR.255

(29:12-15). Bellinghausen argues that Henry must have designated a more specific

location when he told Officer Gonzalez that the pedestrian fell “right there” because

“Officer Gonzalez saw how the words were said and determined that Henry meant the

same protruding crack.” Pl.’s Br. 23. In Bellinghausen’s view, this reveals that Henry

changed how specifically he identified the fall location between the day of the incident

and the day of his deposition, thereby creating a fact issue as to his credibility. Id.

       But the evidence reveals a simpler explanation. Although Henry initially was able

to identify only the approximate location of the unidentified pedestrian’s fall from his

post at least 150 feet away, he and Officer Gonzalez were at the accident scene when

Henry explained that the earlier fall had occurred “right there.” Up close, it was

apparent to both men that the same uneven expansion joint had likely caused both falls.

Indeed, Bellinghausen acknowledges that “Officer Gonzalez identified the same

protruding crack.” Id. at 19. Associating the morning fall with a particular expansion



                                             12
joint provided a more precise location for that fall than what Henry’s initial observation

(from at least 150 feet) had allowed.

        Bellinghausen’s other attempts to create a fact question by casting doubt on

Henry’s deposition testimony likewise fail. For example, he deems it suspicious that

“Henry never says [at his deposition] that the first fall did not happen on the same crack,

only that he cannot guarantee the first victim tripped on the same crack.” Id. at 12.2 But

Henry’s inability to identify exactly where the unidentified pedestrian fell is consistent

with the fact that Henry was at least 150 feet away when he witnessed the fall. And

Bellinghausen concedes throughout his brief that Henry merely “saw someone fall in the

same area,” id. at 10, or “in the same vicinity of Mr. Bellinghausen,” id. at 16; see also id.

at 15 (discussing “Henry’s knowledge that someone fell in the general vicinity of the area

where Bellinghausen fell”). Bellinghausen’s attempt to manufacture a fact dispute from

this chain of events is unavailing.3


        2. Bellinghausen’s argument that Henry “told the officer the first fall occurred on the same
protruding crack,” Pl.’s Br. 17, ignores Henry’s subsequent testimony that he identified “the area, not
that exact spot.” CR.289 (63:19-20). In any event, Henry’s exact words (“right there”) are undisputed.
Bellinghausen recognizes that Officer Gonzalez’s written statement about the “same protruding crack”
was an inference based on Henry’s statement, not a verbatim quotation of Henry’s words. Pl.’s Br. 19
(“Based on this information he reasoned that Henry saw someone fall on the same protruding crack.”
(emphasis added)).

        3. Henry’s ability to identify the approximate area where the pedestrian fell, but not the cause
of his fall, is fully consistent with Henry’s location and perspective. As Bellinghausen’s attorney
established at Henry’s deposition, the corner the pedestrian was approaching when he fell was the point
on the sidewalk closest to Henry’s location across the street to the south. CR.296-99 (70:11-73:2); see
App. A. Seeing the pedestrian approach from an angle gave Henry a better perspective from which to
identify location than if the pedestrian had been walking directly toward him. CR.299 (73:3-20).

                                                  13
       B.    Henry Consistently Described the Pedestrian as Inattentive.

       Henry testified at his deposition that the unidentified pedestrian appeared to be

looking at his cell phone when he fell.          CR.251 (26:20-22); CR.290 (64:23-24).

Bellinghausen complains that Henry did not mention the pedestrian’s inattentive state

to Officer Gonzalez. Pl.’s Br. at 20. But his complaint ignores Henry’s comment, which

is audible on the police videorecording, about pedestrians tripping because “they’re not

looking where they’re going.” CR.276-77 (50:24-51:11). Significantly, in reviewing that

recording with Henry at his deposition, Bellinghausen’s attorney clarified that Henry’s

comment referred to the unidentified pedestrian, not Bellinghausen:

       Q:    [W]hat we heard on there was something about they’re not looking
             where they’re going.

      A:      Correct.

       Q:    And you told us that for the first guy, that he may have been looking
             down at his phone. Right?

      A:     Yes, sir.

       Q:    You’re not making the same suggestion about Mr. Bellinghausen
             being inattentive, because you didn’t see him before he fell. Right?

      A:     That is correct.

CR.277 (51:8-18). Thus, contrary to Bellinghausen’s argument, Henry identified the

pedestrian as inattentive both in his initial statement at the scene and at his deposition.

Nothing supports Bellinghausen’s naked assertion that “[a]ll evidence indicates that


                                            14
Henry and UT-Austin knew after the first fall that an attentive, phoneless pedestrian

tripped on the same dangerous crack hours before Bellinghausen.” Pl.’s Br. 8.

      Bellinghausen also complains about the absence of any mention of the

pedestrian’s phone in the police report, arguing that the phone is “a suspicious and

important detail to forget.” Id. at 20. But Henry marked the pedestrian as inattentive,

which is the detail that is relevant to whether Henry had actual knowledge of a

dangerous condition. And there was no reason for Henry to think, “while watching a

man bleeding on the sidewalk,” id. at 12, that whether an unidentified pedestrian had

been carrying a cell phone several hours earlier was an important detail.

      If the phone’s absence from the police report were truly suspicious, as

Bellinghausen now insists, then presumably his attorney would have asked Henry about

it at his deposition or deposed Officer Gonzalez. But he did neither. Likewise,

although Henry testified that another crew member (Mark McEnelly) also saw the

inattentive pedestrian fall, CR.279-80 (53:19-54:15), Bellinghausen did not depose

McEnelly. Bellinghausen’s newfound suspicion is transparently manufactured.

      C.     There Is No Material Fact Dispute as to Why Henry Interrupted His
             Work After Bellinghausen’s Fall.

      Bellinghausen posits: “the fact finder must ask herself: Why did Mr. Henry leave

the scene of his work to talk to the investigating police officer at the scene of the

Bellinghausen fall? . . . The sole reason Mr. Henry left his post and talked to the police


                                           15
officer . . . was to inform the investigating officer that this was the second fall of the day

‘right there’ on the ‘same protruding crack.’” Pl.’s Br. 7-8. But Bellinghausen later

identifies the real reason: “After Bellinghausen fell, Henry went over to see what was

going on.” Id. at 18. Bellinghausen’s suggestion that Henry left his work to talk to

Officer Gonzalez is further undercut by the fact that it is unclear whether the officer was

on the scene when Henry arrived—as Bellinghausen obliquely acknowledges. See id.

(noting that Henry and Officer Gonzalez arrived “at or near the same time”) (emphasis

added); see also CR.249 (23:14-16) (Henry’s testimony that he could not recall whether

police officers were on the scene of Bellinghausen’s fall when he arrived).

       There is no doubt that Henry left his work to check on Bellinghausen, or that

Henry told Officer Gonzalez about the prior fall in order to share his deduction that

both men had fallen in the same place. But neither those facts nor any other evidence

suggests that Henry perceived a dangerously defective expansion joint from at least 150

feet away. Because there is no evidence that the University had actual knowledge of an

unreasonably dangerous condition, the trial court erred in denying the plea to the

jurisdiction.




                                             16
                                        PRAYER

      The Court should vacate the order denying the University’s jurisdictional plea and

dismiss Bellinghausen’s claims for lack of 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

                                                MATTHEW 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,
                                                THE UNIVERSITY OF TEXAS AT AUSTIN



                                           17
                              CERTIFICATE OF SERVICE

      I certify that on March 19, 2015, an electronic copy of this document was served
on the following counsel of record 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), this brief contains
4,026 words, excluding the portions exempted by Rule 9.4(i)(1). In making this
certification I am relying on the word-count feature of the Word Perfect software used
to prepare this brief.

                                          /s/ Joseph D. Hughes
                                         Joseph D. Hughes




                                            18
Appendix
                              APPENDIX TABLE OF CONTENTS

                                                                                                 TAB

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

Photograph showing close-up of uneven sidewalk (CR.95) . . . . . . . . . . . . . . . . . . . . B
Tab A
Tab B
