                                                                                                ACCEPTED
                                                                                           03-14-00383-CV
                                                                                                  3729717
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                     1/12/2015 11:53:45 AM
                                                                                          JEFFREY D. KYLE
                                                                                                    CLERK

                                   NO. 03-14-00383 -CV
                                                                          FILED IN
                                                                   3rd COURT OF APPEALS
                        IN THE COURT OF APPEALS                         AUSTIN, TEXAS
                    FOR THE THIRD DISTRICT OF TEXAS                1/12/2015 11:53:45 AM
                             AUSTIN, TEXAS                             JEFFREY D. KYLE
                                                                            Clerk


                   ROGER BUFLER AND SANDY BUFLER,
                                        Appellants,
                                         v.
               TEXAS DEPARTMENT-OF TRANSPORTATION
                                       Appellee.

                     On Appeal from the 51st District Court
                   Of Coke County, Texas; Cause No. CV1204444

          BRIEF OF APPELLEE, THE TEXAS DEPARTMENT OF
                        TRANSPORTATION


KEN PAXTON                                    MICHAEL RATLIFF
Attorney General of Texas                     Assistant Attorney General
                                              Transportation Division
CHARLES E. ROY                                P. 0. Box 12548
First Assistant Attorney General              Austin, Texas 78711-2548
                                              Telephone: (512) 463-2004
DAVIDC.MATTAX                                 Fax Number: (512) 472-3855
Deputy Attorney General for                   michael.ratliff@texasattorneygeneral.gov
Defense Litigation                            State Bar No. 16564300

RANDALL K. HILL                               ATTORNEYS FOR APPELLEE
Assistant Attorney General                    TEXAS DEPARTMENT OF
Chief, Transportation Division                TRANSPORTATION

                      ORAL ARGUMENT REQUESTED
                  IDENTITY OF PARTIES AND COUNSEL

Parties

Roger and Sandy Butler               Plaintiffs/Appellants

Texas Department of Transportation   Defendant/Appellee

Counsel

Trey L. Dolezal                      Trial and Appellate Counsel for Roger
Kasling, Hemphill, Dolezal &         and Sandy Butler
Atwell, L.L.P
301 Congress Ave., Suite 300
Austin, TX 78701


Alan Grundy                          Trial Counsel for Texas Department of
Assistant Attorney General           Transportation
Transportation Division
P. 0. Box 12548
Austin, Texas 78711-2548

Michael Ratliff                      Appellate Counsel for Texas Department
Assistant Attorney General           of Transportation
Transportation Division
P. 0. Box 12548
Austin, Texas 78711-2548




                                     11
                                           TABLE OF CONTENTS
                                                                                                                 Page

IDENTITY OF PARTIES AND COUNSEL ............................................................ ii

TABLE OF CONTENTS ......................................................................................... iii

INDEX OF AUTHORITIES .................................................................................... iv

STATEMENT OF Tlffi CASE ................................................................................ vi

ISSUES PRESENTED ............................................................................................ vii

STATEMENT OF FACTS ........................................................................................ 2

SUMMARY OF ARGUMENT ................................................................................. 2

ARGUMENT AND AUTHORITIES ....................................................................... 3

PRAYER ................................................................................................................. 14

CERTIFICATE OF COMPLIANCE ...................................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 16




                                                            111
                                     INDEX OF AUTHORITIES

Cases                                                                                                 Page

Brownsville Navigation Dist. v. Izaguirre,
     829 S.W.2d 159 (Tex. 1992) ...................................................................... 8, 9

City of Corsicana v. Stewart,
      249 S.W.3d 412 (Tex. 2008) (per curiam) ................................. 11, 12, 13, 14

City ofDallas v. Reed,
      258 S.W.3d 620 (Tex. 2008) (per curiam) .................................................... 13

City ofDallas v. Thompson,
      210 S.W.3d 601 (Tex. 2006) (per curiam) .................................................... 13

Gen. Servs. Comm 'n v. Little-Tex Insulation Co.,
      39 S.W.3d 591 (Tex. 2001) ............................................................................. 4

Johnson Cnty Sheriffs Posse, Inc. v. Endsley,
      926 S.W.2d 284 (Tex.1996) ........................................................................ 8, 9

Maxwell v. Tex. Dep 't ofTransp.,
    880 S.W.2d 461 (Tex.App.-Austin 1994, writ denied) ............................... 7

Mayhew v. Town ofSunnyvale,               .
     964 S.W.2d 922 (Tex. 1998) ........................................................................... 5

M 0. Dental Lab v. Rape,
     139 S.W.3d 671 (Tex. 2004) ....................................................................... 8, 9

Price Constr., Inc. v. Castillo,
      147 S.W.3d 431 (Tex. App.-San Antonio 2004, pet. denied) ................... 12

Reyes v. City ofLaredo,
      335 S.W.3d 605 (Tex. 2010) ........................................................................ 13

Scott & White Memorial Hospital v. Fair,
       310 S.W. 3d 411 (Tex. 2010) ..................................................................... 9,10
                                                       lV
State v. Rodriquez,
      985 S.W.2d 83 (Tex. 1999) (per-curiam) ......................................................... 7

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

Tex. Dep 't ofTransp. v. Jones,
      8 S.W.3d 636 (Tex. 1999) (per curiam) ...................................................... 3, 5

Tex. Dep 't ofTransp. v. Martinez,
      No 04-04000867-CV, 2006 WL 1406571
      (Tex. App.-San Antonio May 24, 2006, pet. denied, mem.op) ........... 10, 11

Tex. Dep 't ofParks & Wildlife v. Miranda,
      133 S.W.3d 217(Tex. 2004) ..................................................................... 3, 4, 5

Tex. Dep 't ofTransp. v. York,
      284 S.W.3d 844 (Tex. 2009) (per curiam) .................................................. 5, 6

Uni. of Tex. at Austin v. Hayes,
      327 S.W.3d 113 (Tex. 2010) ......................................................................... 13

Univ. ofTex.-Pan Am. v. Aguilar,
       251 S.W.3d 511 (Tex. 2008) (per curiam) .................................................. 13

Wichita Falls State Hasp. v. Taylor,
       106 S.W.3d 692 (Tex. 2003) .......................................................................... 4

Statutes

Tex. Civ. Prac. & Rem. Code§ 101 ...................................................................... .4, 5

Tex. Civ. Prac. & Rem. Code§ 101.021 ................................................................... 5

Tex. Civ. Prac. & Rem. Code§ 101.022 .................................................................. 5

Tex. Civ. Prac. & Rem. Code§ 101.056.:................................................................. 7



                                                       v
                         STATEMENT OF THE CASE

Nature ofthe Case:      This is a suit for personal injury damages brought under the
                        Texas Tort Claims Act. Plaintiffs allege that factual issues
                        preclude summary disposition that a sidewalk wet from rain
                        is not unreasonably dangerous as a matter of law. Plaintiffs
                        further allege that factual issues preclude summary
                        disposition that TxDOT did not have actual notice of an
                        allegedly dangerous condition.

Trial Court:            The Honorable Barbara Walther, Judge of the 51st Judicial
                        District Court, Coke County, Texas.

Trial Court Disposition: The trial court granted the Texas Department of
                         Transportation's Plea to the Jurisdiction and No-Evidence
                         Motion for Summary Judgment. CR 138.




                                       Vl
                             ISSUE PRESENTED


I.   Under the Texas Tort Claims Act, does a wet sidewalk constitute an
     unreasonably dangerous condition and did the State have the requisite actual
     knowledge of the allegedly dangerous condition, thereby waiving its sovereign
     immunity?




                                      vii
                                 NO. 03-14-00383


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


                   ROGER BUFLER AND SANDY BUFLER,
                                        Appellants,
                                         v.
                TEXAS DEPARTMENT OF TRANSPORTATION
                                        Appellee.

                     On Appeal from the 51st District Court
                   Of Coke County, Texas; Cause No. CV1204444

          BRIEF OF APPELLEE, THE TEXAS DEPARTMENT OF
                        TRANSPORTATION


TO THE HONORABLE COURT OF APPEALS:

      The Texas Department of Transportation (TxDOT) submits this Appellee's

Brief requesting that the claims of Appellants, Roger and Sandy Bufler, (Buflers) be

dismissed for want of jurisdiction. Buflers' claims should be dismissed because a

wet sidewalk constructed of varying surfaces does not present an unreasonably

dangerous condition as a matter of law. Further, TxDOT did not have actual

knowledge of an allegedly dangerous condition presented by a wet varied surface

sidewalk. As two essential elements of a premises defect claim are absent, there is
no waiver of sovereign immunity. Accordingly, this court lacks subject matter

jurisdiction.

                             STATEMENT OF FACTS

      Roger and Sandy Butler sued TxDOT for personal injuries sustained when

Mr. Butler slipped and fell on a wet side!'falk at a TxDOT rest area. CR 31. It was

drizzling at the time and the Plaintiff was in a hurry, desperate to get to the restroom.

CR 118. TxDOT brought a Plea to the Jurisdiction and No-Evidence.Motion for

Summary Judgment contending that a wet sidewalk is not an unreasonably

dangerous condition as a matter of law and further, that it had no actual notice of the

alleged unreasonably dangerous condition, essential elements of a premises cause of

action under the Texas Tort Claims Act. CR 41. The trial court granted TxDOT's

Plea and Motion CR 138. The Butlers' timely brought this appeal, contending that

factual issues preclude summary disposition. The trial court likewise granted a

similar motion for summary judgment filed by Apeck Construction, LLC, the

company charged under contract with TxDOT to maintain the rest area. The Butlers

appeal the granting of this summary judgment as well.

                       SUMMARY OF THE ARGUMENT

     The Texas Department of Transportation has sovereign immunity unless

waived by the Tort Claims Act. The Tort Claims Act provides a limited waiver of

immunity under certain conditions, one of which includes unreasonably dangerous
                                           2
premises conditions of which the governmental unit has actual knowledge. The

sidewalk at a TxDOT rest area facility, wet from a drizzling rain, does not constitute

an unreasonably dangerous condition as a matter of law. Furthermore, there was no

evidence that TxDOT had actual notice that the sidewalk posed an unreasonable risk

ofharm. Accordingly, there is no waiver of sovereign immunity and thus no subject

matter jurisdiction of this cause.

                       ARGUMENT AND AUTHORITIES

A.    Standard of review.

      1.     Plea to the jurisdiction.

      A trial court must have subject matter jurisdiction to adjudicate the subject

matter of a cause of action. Tex. Dep 't ofParks & Wildlife v. Miranda, 133 S. W.3d

217, 225-28 (Tex. 2004). Whether a court has subject matter jurisdiction is a

question of law that is reviewed de novo. Id. at 226. Subject matter jurisdiction may

be challenged by a plea to the jurisdiction. Tex. Dep 't ofTransp. v. Jones, 8 S.W.3d

636, 638-39 (Tex. 1999) (per curiam).

      If a plea to the jurisdiction challenges the pleadings, a court must determine if

the pleader has sufficiently alleged facts that affirmatively demonstrate the court's

jurisdiction to hear the case.       Miranda, 133 S.W.3d at 226. If the pleadings

affirmatively negate the existence of the court's jurisdiction, then a plea to the

                                           3
jurisdiction may be granted without allowing plaintiffs an opportunity to amend.

Miranda, 133 S.W.3d at 227.

       If a plea to the jurisdiction challenges the existence of jurisdictional facts, the

court must consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. Where the

jurisdictional challenge implicates the merits of the plaintiffs cause of action, the

court must review the relevant evidence to see if a fact issue exists. !d. If the relevant

evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the

court must rule on the plea to the jurisdiction as a matter of law. Miranda, 133

S. W.3d at 228. Whether undisputed evidence of jurisdictional facts establishes the

trial court's jurisdiction is reviewed de novo by this Court. Miranda, 133 S.W.3d at

226.

       2.     Sovereign immunity.

       Sovereign immunity protects the State, its agencies and officials, and political

subdivisions from suit, unless immunity from suit is waived. Gen. Servs. Comm 'n

v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit

may only be waived by legislative consent or constitutional amendment. Wichita

Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). A limited waiver of

sovereign immunity was enacted with the Texas Tort Claims Act.          TEX.   Crv. PRAC.

                                            4
& REM. CODE Chapter 101. Under the Act, a governmental unit is liable for injuries

"caused by a condition or use of ... real property" if the unit would be liable if it were

a private person. TEx. CIV. PRAc. & REM. CODE§ 101.021(2). Where immunity has

not been waived, the trial court lacks subject matter jurisdiction. Miranda, 133

S.W.3d at 225-26.

      The burden is on the plaintiff to establish subject matter jurisdiction by

showing that immunity from suit has been waived. Jones, 8 S.W.3d at 638. Subject

matter jurisdiction is a question of law. Mayhew v. Town ofSunnyvale, 964 S.W.2d

922, 928 (Tex. 1998).

      3.     Licensee standard of care.

       Different duties apply to a governmental entity depending on whether a

condition is a premises defect or a special defect.   TEx. CIV. PRAC. &    REM. CODE §

101.022(a); Tex. Dep'tofTransp. v. York,.284 S.W.3d 844,846-47 (Tex. 2009) (per

curiam). If a claim arises from a premises defect, the government owes a licensee

duty of care.    Id.   Under a licensee standard, a plaintiff must prove that the

governmental unit had actual knowledge of a condition that created an unreasonable

risk of harm, and also that the licensee did not have actual knowledge of that same

condition. York, 284 S.W.3d at 847. If a claim involves a special defect, an invitee

standard applies. !d. Under an invitee standard, a plaintiff need only prove that the

                                            5
governmental unit should have known of a condition that created an unreasonable

risk of harm. I d. Whether a condition is a special defect or a premises defect is a

question of law which is reviewed de novo. !d. In this case, the parties agree that

the wet sidewalk does not constitute a special defect. CR 34. Rather, the parties

dispute whether a wet sidewalk presents a fact issue of an unreasonably dangerous

condition and whether TxDOT had actual knowledge of the condition.

      B.    A wet sidewalk is not an unreasonably dangerous condition as a
            matter of law.

      Roger Bufler claims to have slipped and fallen on a sidewalk at a TxDOT rest

area. CR 32. He claims that it was drizZling at the time and admitted that he was

hurrying, desperate to get to the restroom. CR 118. Mr. Bufler contends that the

condition of the varying surfaces of the wet concrete created an unreasonably

dangerous condition. Appellants' Br. 4; CR 32. The "varying surfaces" were a

combination of textured and smooth concrete. CR 117. As the Plaintiff alleged in

his pleadings: "the sidewalk is composed of smooth concrete squares which

periodically have gravel-like stars placed on them. When Roger stepped on one of

the smooth concrete areas, his feet went completely out from under him." CR 32.

      The sidewalk consists of poured concrete slabs interspersed with prefabricated

concrete slabs containing a star shaped graveled medallion. CR 57. A photo is

shown at CR 87. The sidewalk was constructed in the 2001-2002 timeframe as part
                                         6
of the original construction of the rest area and was constructed as designed. CR 76.

Butlers' complaint about the "varying surfaces" invokes the design. discretion

immunity of section §101.056 ofthe Texas Tort Claims Act. "Design of any public

work, such as a roadway, is a discretionary function involving many policy decisions

and the governmental entity responsible may not be sued for such decisions." State

v. Rodriquez, 985 S.W.2d 83, 85 (Tex. 1999 per curiam); See also Maxwell v. Tex.

Dep't ofTransp., 880 S.W.2d 461,463 (Tex. App.-Austin 1994, writ denied).

      As this Court stated in Maxwell, "It is not proper for a court to second-guess

the agency's decision that some other type of marker or safety device would have

been more appropriate ... or that the culvert was placed too close to the highway. To

do so would displace the authority of the agency responsible for making such

decisions." /d. at 464.

      Just as this Court did not get into questioning highway design in Maxwell,

neither is it appropriate for courts to question sidewalk design in the present case.

There was no evidence to suggest that the sidewalk was not maintained as originally

designed. Indeed, nothing about the sidewalk has been changed since its original

construction. CR 79. Additionally, the same "varying surface" sidewalk design is

in use in other TxDOT rest area facilities. CR 61. Thus, the "varying surfaces" of

the sidewalk, constructed and maintained as designed, cannot form the basis for

                                          7
waiver of sovereign immunity.

      Nor does a wet "varying surface" sidewalk create an unreasonably dangerous

premises condition. In M 0. Dental Lab v. Rape, 139 S.W.3d 671, (Tex. 2004), the

Texas Supreme Court addressed whether a condition occurring as the result of

natural conditions constituted a premises defect---that is a condition posing an

"unreasonable" risk of harm:

       To prevail in a premises liability case, an invitee must plead and prove,
       among other elements, that a condition on the premises posed an
       unreasonable risk of harm to the invitee. We held in both Brownsville
       Navigation District and Johnson County that ordinary mud or dirt in its
       natural state can and often does form a condition posing a risk of harm,
       but not an "unreasonable" risk of harm. We further observed in Johnson
       County that holding a landowner liable for "[t]he natural state of dirt"
       would cause the landowner to "be an insurer against all injury to a
       tenant's lessees." Although the court of appeals correctly pointed out
       that neither Brownsville Navigation District nor Johnson County
       specifically involved the accumulation of mud on a man-made surface,
       we find this distinction immaterial. Ordinary mud that accumulates
       naturally on an outdoor concrete slab without the assistance or
       involvement of unnatural contact is, in normal circumstances, nothing
       more than dirt in its natural state and, therefore, is not a condition
       posing an unreasonable risk of harm.
!d. at 675-676.

        In the case at bar, the condition is even less dangerous than mud on a

concrete slab. The condition Butlers' complain of is wet concrete from pain without

any other foreign substance. CR 118 .. As the Supreme Court in M 0. Dental

elaborated:


                                          8
       Holding a landowner accountable for naturally accumulating mud that
       remains in its natural state would be a heavy burden because rain is
       beyond the control of landowners. Most invitees in Texas will
       encounter natural conditions involving ordinary mud regularly, and
       accidents involving naturally accumulating mud and dirt are bound to
       happen, regardless of the precautions taken by landowners. Generally,
       invitees like Rape are at least as aware as landowners of the existence
       of visible mud that has accumulated naturally outdoors and will often
       be in a better position to take immediate precautions against injury.
       Finally, following the rationale of Johnson County,_ to hold otherwise
       would make the landowner strictly liable for injuries resulting from
       ordinary mud or dirt in its natural state. The ordinary mud found on the
       concrete slab outside of the M.O. ·Dental Lab accumulated due to rain
       and remained in its natural state; thus, as a matter of law, it was not a
       condition that posed an unreasonable risk of harm to Rape necessary to
       sustain her premises liability action.

Id at 676 (emphasis added).

      The Johnson County case, referred to by the Supreme Court, is Johnson

County Sheriffs Posse, Inc. v. Endsley,926 S.W.2d 284 (Tex.1996). Brownsville

Navigation District is a reference to Brownsville Navigation District v. Izaguirre,

829 S.W.2d 159 (Texas, 1992). Both cases support the principle that a naturally

occurring condition may pose a risk of harm, but not unreasonably so, and therefore

no duty arises on the part of the premises ·owner to adequately warn of the condition

or make it reasonably safe.

      The Texas Supreme Court expanded on this principle in Scott and White

Memorial Hospital v. Fair, 310 S.W.3d 411 (Tex. 2010), holding that "naturally

occurring ice that accumulates without the assistance or involvement of unnatural

                                         9
contact is not an unreasonably dangerous condition sufficient to support a premises

liability claim." /d. at 414. The Court acknowledged the relative irregularity of icy

conditions in Texas and stated: "requiring premises owners to guard against wintry

conditions would inflict a heavy burden because of the limited resources landowners

likely have on hand to combat occasional ice accumulations." /d. Further, "the

plaintiff is in a much better position to prevent injuries from ice or snow because the

plaintiff can take precautions at the very moment the conditions are encountered."

Id

      If ice in its naturally occurring state is not unreasonably dangerous as a matter

of law, then certainly naturally occurring rain is not unreasonably dangerous as a

matter of law either. The steps the plaintiff asked Scott and White Hospital to take

to melt the ice would reduce the premises condition to the wet sidewalk condition

complained of in this case. And although rain has been rather irregular in Texas of

late also, if requiring premises owners to guard against wintry conditions would

inflict a heavy burden, imagine the burden to protect premises from rain. In Texas

Department of Transportation v. Martinez, No. 04-04-00867-CV, 2006 WL

1406571 (Tex. App.-San Antonio May 24, 2006, pet. denied) (mem.op.) a case

involving a rain-slick highway, the Court ruled that "the evidence that the road was




                                          10
'slippery' may describe a condition posing a risk of harm, but it does not by itself

provide evidence of an 'unreasonable' risk ofharm. Id. at *5.

         Clearly, any accumulation on a sidewalk poses a risk of harm, be it dirt, mud,

ice, or water, but just as clearly, such an accumulation does not pose an unreasonable

risk. Accordingly, as an essential element of a premises liability cause of action is

absent, there is no waiver of sovereign immunity and thus no subject matter

jurisdiction over this cause.

    A.         TxDOT did not have actual knowledge of the allegedly dangerous
               condition.

      Under the licensee standard of care applicable to premises defects, TxDOT

has a duty not to injure willfully, wantonly or through gross negligence. See State

v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). An exception to this general rule

exists where the licensor has actual knowledge of a dangerous condition and the

licensee does not. /d. Under these circumstances, TxDOT would have a duty to

either warn the licensee or make the condition reasonably safe. See id. However, a

duty on the part of TxDOT to warn or make safe does not even arise unless TxDOT

has the requisite actual knowledge of a dangerous condition. See id.

      Actual knowledge rather than constructive knowledge of the dangerous

condition is required. City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 & n.1

(Tex. 2008) (per curiam). "Actual knowledge is what a person actually knows as
                                           11
distinguished from constructive or imputed knowledge; that is, what a person does

not actually know, but should know or have reason to know." Price Constr., Inc. v.

Castillo, 147 S.W. 3d 431, 437 (Tex. App.-San Antonio 2004, pet. denied).

       Where there is testimony that a governmental defendant was not aware of an

allegedly dangerous condition and where a plaintiff presents no direct evidence of a

governmental defendant's actual knowledge of such condition, a plaintiff fails to

raise a fact issue regarding the governmental defendant's knowledge. See, e.g.,

Stewart, 249 S.W.3d at 414-16. In Stewart, the City's Public Works Director

testified that the City first learned that a low-water crossing was flooded when the

Plaintiff called 911 for help, and there was no direct evidence that the City knew the

crossing was flooded prior to the accident. /d. at 414-15. Instead, the City knew

that the crossing tended to flood during heavy rains and that it was raining heavily

on the night of the accident. /d. at 414. The Supreme Court held that Plaintiffs had

failed to raise a fact issue regarding the City's knowledge of a dangerous condition.

See id. at 416. Similarly, in this case it is unquestioned that TxDOT certainly knew

that when it rains, sidewalks become wet. But there was no evidence presented that

TxDOT knew the "varying surfaces" of sidewalks when wet presented an

unreasonably dangerous condition. Indeed, the testimony demonstrated that the

TxDOT engineer in charge of 79 rest areas had never had any complaints relating to

                                         12
the "varying surface" sidewalks. CR 61, 78.

      Given the evidence that TxDOT was not aware of the alleged danger created

by a wet "varying surface" sidewalk, Plaintiffs failed to raise a fact issue regarding

TxDOT' s actual knowledge.       Thus, TillOT' s plea to the jurisdiction and no

evidence summary judgment motion were properly granted. See Reyes v. City of

Laredo, 335 S.W.3d 605, 608-09 (Tex. 2010) (plea to the jurisdiction sustained

where governmental entity had no actual knowledge of flooded street); Uni. ofTex.

at Austin v. Hayes, 327 S.W.3d 113, 117-18 (Tex. 2010) (plea to the jurisdiction

sustained where governmental entity had no actual knowledge that chain across a

driveway presented a dangerous condition); City ofDallas v. Reed, 258 S.W.3d 620,

622-23 (Tex. 2008) (per curiam) (plea to the jurisdiction sustained where

governmental entity had no actual knowledge that a two-inch roadway drop-off

presented an unreasonable risk of harm); Univ. of Tex.-Pan Am. v. Aguilar, 251

S.W.3d 511, 513-14 (Tex. 2008) (per curiam) (plea to the jurisdiction sustained

where governmental entity had no actual knowledge that a water hose lying across

a sidewalk presented an unreasonable risk of harm); Stewart, 249 S.W.3d at 414-16

(plea to the jurisdiction sustained where governmental entity had no actual

knowledge of flooded low-water crossing); City ofDallas v. Thompson, 210 S.W.3d

601, 603-04 (Tex. 2006) (per curiam) (plea to the jurisdiction sustained where

                                         13
                                                -
governmental entity had no actual knowledge of improperly secured, metal,

expansion-joint cover plate protruding up from airport floor).

       Instead of providing direct evidence that TxDOT had actual knowledge of the

alleged dangerous condition, Butlers' assert they have raised a fact issue regarding

actual knowledge of a dangerous condition because a contracted maintenance

employee told a TxDOT employee that the sidewalk was slippery when wet.

Appellants' Br. 8. This does no more than tell TxDOT what is universally known,

that any surface is slippery when wet. It does not inform TxDOT of an unreasonably

dangerous condition presented by a wet varied surface sidewalk. At most, such

allegations are merely an attempt to raise a fact issue on constructive knowledge,

and they clearly fail to raise a fact issue regarding the required element of actual

knowledge of a dangerous condition. See Stewart, 249 S.W.3d at 413-14 & n.l.

                                      PRAYER

      For all of the reasons stated herein, the Texas Department of Transportation

asks this Court to affirm the trial court's granting of it Plea to the Jurisdiction and

No-Evidence Motion for Summary Judgment and dismiss this case for lack of

subject matter jurisdiction. TxDOT also requests such further relief, general or

special, to which it may be justly entitled.




                                           14
Respectfully Submitted,

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

CHARLES E. ROY
FIRST ASSISTANT ATTORNEY GENERAL

DAVIDC.MATTAX
DEPUTY ATTORNEY GENERAL FOR
DEFENSE LITIGATION

RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATIONDIVISION

Is/ Michael Ratliff
MICHAEL RATLIFF
State Bar No.16564300
Assistant Attorneys General
P. 0. Box 12548
Austin, Texas 78711-2548
512/ 463-2004; FAX 512/472-3855
Email: michael.ratliff@texasattomeygeneral. gov

COUNSEL FOR APPELLEE,
TEXAS DEPARTMENTOF TRANSPORTATION




        15
                      CERTIFICATE OF COMPLIANCE

      I certify that this document contains 3192words as determined by the word

count of the computer program used to prepare this document, excluding the sections

of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).


                                 /S/ Michael Ratliff
                                 MICHAEL RATLIFF
                                 ASSISTANT ATTORNEY GENERAL


                         CERTIFICATE OF SERVICE

      Icertify that on the   /!~ay of J~uary 2015, a true and correct copy of the
foregoing BriefofAppellee, The Texas Department of Transportation has been sent

by via electronic mail and facsimile to the following counsel of record

Trey L. Dolezal
Kasling, Hemphill, Dolezal & Atwell, LLP.
301 Congress Avenue, Suite 300
Austin, Texas 78701

Attorney for Appellants,
Roger Bufler and Sandy Bufler




                                       IS/Michael Ratliff
                                       MICHAEL RATLIFF
                                       Assistant Attorney General

                                         16
                                                                                                       ACCEPTED
                                                                                                  03-14-00383-CV
                                                                                                         3729717
                                                                                        THIRD COURT OF APPEALS
                                                                                                   AUSTIN, TEXAS
                                                                                            1/12/2015 11:53:45 AM
                                                                                                 JEFFREY D. KYLE
                                                                                                           CLERK




January 12, 2015

Third Court of Appeals                                   Via Electronic Fling
P.O. Box 12547
Austin, Texas 78711

Attention: Jeffrey D. Kyle

Re: No. 03-14-00383-CV; In the Court of Appeals for the Third District Court
    of Texas, Austin, Texas; Roger Bufler and Sandy Bufler v. Texas Department
    of Transportation.

Dear Mr. Kyle:

     Please find enclosed for filing is the Brief of Appellee, The Texas Department
of Transportation in the above referenced cause.

     If you should have any questions or concerns, please feel free to contact either
myself or AAG Michael Ratliff at (512) 463-2004.

      Thank you for your assistance in this matter.

Sincerely,
/s/ Michael Ratliff

MICHAEL RATLIFF
Assistant Attorney General
michael.ratliff@texasattorneygeneral.gov
Transportation Division
Phone: (512) 463-2004
Fax: (512) 463-2004

Cc: Trey L. Dolezal                                        Via Electronic Filing
    Kasling & Atwell, LLP.
    301 Congress Avenue, Suite 300
    Austin, Texas 7870

            POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL:(512) 463-2100   WEB:
                               WWW.TEXASATTORNEYGENERAL.GOV
                                  An Equal Employment Opportunity Employer
