                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                              NO. 09-16-00195-CV
                              ________________

                    MONTGOMERY COUNTY, Appellant

                                        V.

                     DAVID LANOUE, Appellee
__________________________________________________________________

                On Appeal from the 284th District Court
                     Montgomery County, Texas
                   Trial Cause No. 15-09-10156-CV
__________________________________________________________________

                          MEMORANDUM OPINION

      This is an accelerated interlocutory appeal by Montgomery County from the

trial court’s order denying its plea to the jurisdiction in a personal injury suit

brought under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §

51.014(a)(8) (West Supp. 2016). In three issues, Montgomery County argues that

the trial court lacked jurisdiction because appellee’s claim does not fit within the

waiver of governmental immunity contained in the Texas Tort Claims Act

(TTCA). We reverse the trial court’s order denying Montgomery County’s plea to
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the jurisdiction and render judgment dismissing Lanoue’s claim for want of

jurisdiction.

                                BACKGROUND

      Appellee David Lanoue sued Montgomery County for personal injuries he

allegedly sustained when he slipped and fell while walking in the Montgomery

County Courthouse. Lanoue asserted that the trial court had subject-matter

jurisdiction because his claims fit within the TTCA’s waiver of immunity for

certain personal injury claims. Lanoue pleaded that the accident occurred due to a

premises defect about which Montgomery County knew, and that Montgomery

County’s agents, servants, or employees “misused tangible property by placing a

warning sign on the floor which caused confusion about the safety and condition of

the floor.” According to Lanoue, the floor and the warning sign posed an

unreasonable risk of harm, and Montgomery County owed him a duty to exercise

ordinary care to warn him or to “make reasonably safe a known dangerous

condition” of which he was unaware, and not to injure him through “willful,

wanton, or grossly negligent conduct.” Lanoue maintained that Montgomery

County “breached its duty when it failed to give a proper warning, in allowing the

floor to have an improper coefficient of friction[,] and in applying an improper

floor coating, sealant[,] and/or wax.” According to Lanoue, Montgomery County’s

                                        2
acts and omissions constituted negligence and proximately caused his alleged

injuries and damages.

      Montgomery County entered a general denial and pleaded the following: (1)

the affirmative defense of governmental immunity under the TTCA; (2) by placing

a wet floor sign where Lanoue slipped and fell, it met its obligation to warn; (3) by

orally warning Lanoue that the floor was slippery, it met its obligation to warn; (4)

Lanoue “assumed the risk of walking on a floor that he knew or should have

known was slippery[;]” (5) Lanoue contributed to or was partially or wholly

responsible for “the negligent acts that caused or resulted in the accident[;]” and

(6) Lanoue failed to make reasonable efforts to mitigate his damages. Concurrently

with the filing of its answer, Montgomery County filed a plea to the jurisdiction. In

its plea to the jurisdiction, Montgomery County asserted that governmental

immunity barred Lanoue’s action and deprived the trial court of subject matter

jurisdiction because the pleadings and uncontested facts established that

Montgomery County had fulfilled its duty to warn Lanoue. According to

Montgomery County, Lanoue’s confusion regarding whether the floor was slippery

due to the presence of water or wax is irrelevant because he had notice that the

floor was wet and slippery. Attached as an exhibit to Montgomery County’s plea to



                                         3
the jurisdiction was a still photograph of Lanoue falling next to the warning sign.

The warning sign stated that the floor was wet.

      In his response to Montgomery County’s plea to the jurisdiction, Lanoue

argued that he had pleaded a cause of action for which immunity is waived, and he

asserted that genuine issues of material fact exist as to whether he had actual

knowledge of the condition and whether Montgomery County’s warning was

adequate. Specifically, Lanoue contended that he was unaware of the slippery floor

because “the warning sign merely warned him that the floor was wet –– not that it

was freshly coated in a concealed wax or sealant.” Lanoue maintained that the

warning sign created confusion because the floor appeared to be dry, and Lanoue

therefore “was both unaware that the floor was improperly waxed and was not

adequately warned of the floor’s condition.” The record also contains Lanoue’s

affidavit, in which he states that he saw the warning sign stating that the floor was

wet, but he examined the floor and determined that it appeared to be dry. Lanoue

averred that when he attempted to cross the floor, he “slipped on some sort of

slippery substance that was concealed but coating the floor.” In addition, Lanoue

averred that several Montgomery County employees told him that they knew the

floor was dangerous because they had applied wax, coating, or sealant to the floor,



                                         4
and that they were in the process of removing the wax from the other side of the

hallway.

                      MONTGOMERY COUNTY’S ISSUES

       In three issues, Montgomery County argues that (1) a “wet floor” sign and

people mopping in the area provided Lanoue with actual knowledge that the floor

upon which he was about to walk was wet; (2) a “wet floor” sign placed a few

inches from the spot where Lanoue slipped was in sufficient proximity to the place

where Mr. Lanoue slipped to constitute an adequate warning as a matter of law;

and (3) Lanoue’s decision to disregard the warning sign because he did not

subjectively perceive the danger does not deprive Montgomery County of

governmental immunity under the TTCA. Because it is dispositive, we address

issue two first.

       Governmental immunity protects governmental units of the State from suit.

Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Unless

the governmental unit has consented to suit, a trial court lacks subject-matter

jurisdiction to consider a claim against it. Wichita Falls State Hosp. v. Taylor, 106

S.W.3d 692, 696 (Tex. 2003); see also Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225-26 (Tex. 2004). Whether subject-matter jurisdiction exists is

a question of law, and we review the trial court’s ruling on a plea to the jurisdiction

                                          5
de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d

at 226, 228. The plaintiff must plead facts that affirmatively demonstrate that

governmental immunity has been waived and the trial court has subject-matter

jurisdiction. Holland, 221 S.W.3d at 642. When a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties to determine if a fact issue exists. City of Waco v. Kirwan,

298 S.W.3d 618, 622 (Tex. 2009). We take as true all evidence favorable to the

nonmovant, indulging every reasonable inference and resolving any doubts in the

nonmovant’s favor. Miranda, 133 S.W.3d at 228.

      Section 101.021 of the TTCA provides that a governmental unit is liable for

“personal injury . . . caused by a condition or use of . . . real property if the

governmental unit would, were it a private person, be liable to the claimant

according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West

2011). “[I]f a claim arises from a premise defect, the governmental unit owes to the

claimant only the duty that a private person owes to a licensee on private property,

unless the claimant pays for the use of the premises.” Id. § 101.022(a) (West

2011). Premises owners have the duty not to injure licensees through willful,

wanton, or grossly negligent conduct, and to either “warn a licensee of, or to make

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

                                         6
licensee is not.” State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d

235, 237 (Tex. 1992). A licensee must prove that he did not actually know of the

dangerous condition. Id.

      Lanoue argues that the “wet floor” warning sign was inadequate because the

floor was actually dry, but was covered with a slippery wax, coating, or sealant.

“To be adequate, a warning must be more than a general instruction such as ‘be

careful’; the warning must notify of the particular condition.” Henkel v. Norman,

441 S.W.3d 249, 252 (Tex. 2014). “A warning of the specific material causing a

condition is not required, so long as the existence of the condition itself is

conveyed.” Id. A warning that a floor is wet is sufficient; that is, the warning need

not identify the specific substance that made the floor wet. Id. at 252-53 (citing

Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—Texarkana 2010, no

pet.) and Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.—

Houston [14th Dist.] 2002, pet. denied)).

      Montgomery County had a duty to warn Lanoue of the dangerous condition.

See Payne, 838 S.W.2d at 237. We conclude that the “wet floor” sign inches from

the location where Lanoue fell was adequate as a matter of law to warn Lanoue

that the floor was slippery. See Henkel, 441 S.W.3d at 252-53; Brooks, 303 S.W.3d

at 925; Bean, 77 S.W.3d at 370. Montgomery County was not required to inform

                                            7
Lanoue precisely what substance was on the floor, but simply had to warn him of

the dangerous condition. See Henkel, 441 S.W.3d at 252-53. The warning

identified and communicated the existence of the condition in a manner that a

reasonable person would perceive and understand. See id. at 253.

      Because Montgomery County discharged its duty to warn Lanoue of the

dangerous condition, its governmental immunity was not waived. See Tex. Civ.

Prac. & Rem. Code Ann. §§ 101.021(2), 101.022(a). Therefore, the trial court

erred by denying Montgomery County’s plea to the jurisdiction. We reverse the

trial court’s order denying Montgomery County’s plea to the jurisdiction and

render judgment dismissing Lanoue’s claim for want of jurisdiction. 1

      REVERSED AND RENDERED.



                                             _____________________________
                                                   STEVE McKEITHEN
                                                        Chief Justice


Submitted on October 27, 2016
Opinion Delivered December 29, 2016

Before McKeithen, C.J., Horton and Johnson, JJ.



      1
      Because the County’s first and third issues would not result in greater relief,
we need not address them. See Tex. R. App. P. 47.1.
                                        8
