      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-14-00323-CV



                           Roger Bufler and Sandy Bufler, Appellants

                                                   v.

                               Apeck Construction, LLC, Appellee


       FROM THE DISTRICT COURT OF COKE COUNTY, 51ST JUDICIAL DISTRICT
        NO. CV12-04444, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                                        NO. 03-14-00383-CV



                           Roger Bufler and Sandy Bufler, Appellants

                                                   v.

                         Texas Department of Transportation, Appellee


       FROM THE DISTRICT COURT OF COKE COUNTY, 51ST JUDICIAL DISTRICT
        NO. CV12-04444, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING



                             MEMORANDUM OPINION


                Appellants Roger Bufler and Sandy Bufler, husband and wife, appeal from the

judgment of the district court of Coke County in a premises-liability suit. The district court sustained

the plea to the jurisdiction filed by appellee Texas Department of Transportation and granted

appellee Apeck Construction, L.L.C.’s motion for summary judgment. We will affirm the judgment.
               Roger Bufler was injured in the late afternoon of December 18, 2011, when he fell

on the sidewalk of the Department’s rest stop located on Highway 87 in Coke County. Bufler was

walking to the lavatory when he fell. It was drizzling rain and the sidewalk was wet. Bufler slipped

and fell when he stepped on a smooth part of the sidewalk wet from the rain. The sidewalk consisted

of poured concrete slabs interspersed with prefabricated smooth concrete slabs that contained star-

shaped medallions made of gravel.

               Bufler filed suit against the Department and Apeck, which was under contract with

the Department to provide janitorial services for the rest-stop area.


                                 Claim against the Department

               Bufler maintained that the “varying surfaces” of the sidewalk constituted a premises

defect. He claimed that the wet surface of the concrete was not the “main factor” causing him to

slip and fall. Bufler cast his case against the Department as one coming within the terms of the

Texas Tort Claims Act waiving sovereign immunity for claims involving 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 under Texas law. See Tex. Civ. Prac. & Rem. Code § 101.021(a). He asserted

that the Department owed him the duty that a private person owes a licensee on private property.

See id. § 101.022(a).

               The Department filed a plea to the jurisdiction asserting sovereign immunity. To

invoke waiver of the sovereign immunity provisions of the Texas Tort Claims Act, Bufler, as a

licensee, had to plead and prove, among other elements, that a condition of the property posed an

unreasonable risk of harm to him. See State v. Williams, 940 S.W.2d 583, 584 (Tex. 1996) (noting


                                                  2
elements of premises-liability claim where plaintiff is licensee). Bufler suggests that the “condition

of the varying surfaces [of concrete] created an unreasonably dangerous condition.” Bufler claimed

that “the wet slick surface of certain portions of the concrete sidewalk posed an unreasonable risk

of harm, in part because the use of this type of [smooth] concrete on an outdoor sidewalk step

is negligent in and of itself and [is] particularly defective when wet.” Bufler, himself a long-time

veteran in the construction trade, testified by deposition that “anybody in the construction business

should know [that] smooth concrete [used] on an exterior [surface] is a no-no.” Cruz Rubio,

Bufler’s expert witness, opined on deposition that smooth concrete should not be used for outside

projects because it can become slick when wet.

               The involved sidewalk was constructed, as designed, between 2001 and 2002 as a

part of the original building of the rest-stop area. Nothing about the sidewalk has been changed

since its inception. The “varying surface” sidewalk is in use in at least one other of the Department’s

rest stops.

               Bufler’s complaint concerning the “varying surfaces” of the sidewalk speaks to

the design-discretion immunity found in section 101.056 of the Act. By that provision, the State

preserves its immunity for an act “if the law leaves the performance or nonperformance of the

act to the discretion of the governmental unit.” Id. § 101.056(2). Accordingly, if the State’s act is

discretionary, it does not waive its immunity. An act is discretionary if it requires the exercise of

judgment and the law does not mandate the performance of the act with such precision that nothing

is left to discretion or judgment. “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. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999), (per curiam), overruled on

                                                  3
other grounds by Denton Cty. v. Beynon, 283 S.W.3d 329, 331 n.11 (Tex. 2009); see Texas Dep’t

of Transp. v. Perches, 388 S.W.3d 652, 655 (Tex. 2012) (quoting Id.).

                Also contrary to Bufler’s position, neither does a wet “varying surface” sidewalk

create an unreasonably dangerous premises condition. The Supreme Court in M.O. Dental Lab

v. Rape considered whether a condition occurring as the result of natural conditions constituted a

premises defect, i.e., a condition posing an “unreasonable” risk of harm:


       To prevail in a premises liability case, an invitee [licensee] must plead and prove,
       among other elements, that a condition on the premises posed an unreasonable risk of
       harm to the invitee [licensee]. We held in both Brownsville Navigation District1 and
       Johnson County2 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.


139 S.W.3d 671, 675–76 (Tex. 2004) (footnotes omitted). Rain on a sidewalk can and often

does form a condition posing a risk of harm, but not an “unreasonable” risk of harm. Id. at 675. The

holding and reasoning in M.O. Dental Lab control the disposition of Bufler’s claim.




       1
           Brownsville Navigation Dist. v. Izaguirre, 829 S.W.2d 159, 160 (Tex. 1992).
       2
           Johnson County Sheriff’s Posse, Inc. v. Endsley, 926 S.W.2d 284, 287 (Tex. 1996).

                                                 4
                                       Claims against Apeck

               Bufler also asserted a premises-liability claim against Apeck, shaping his pleading so

as to cast himself as an invitee on Apeck’s premises (the sidewalk).             Although not case-

determinative here, the summary-judgment proof, previously recited, demonstrates that Bufler was

not an invitee, as claimed, but rather a licensee.3 Moreover, in his response to Apeck’s motion for

summary judgment, Bufler admits his status as a licensee.

               Apeck contracted with the Department to provide janitorial services to the rest-stop

building and to clear litter and trash from the rest-stop grounds. Apeck also had certain contractual

responsibility regarding the sidewalks: it was to replace the sidewalk if it were cracked or broken;

it was to apply salt to the sidewalk if it were iced; and it was to remove from the sidewalk litter and

debris, including chewing gum, oil slicks, and other things that might jeopardize safety. Apeck was

not contractually obligated to remove water from the sidewalk while it was raining.

               Bufler pleaded, among other things, that the conditions of the smooth, wet concrete

sidewalk at the rest stop presented an unreasonable risk of harm.

               Apeck filed a traditional motion for summary judgment, see Tex. R. Civ.

P. 166a(a–b), as well as a no-evidence motion for summary judgment, see id. 166a(i), claiming,

among other things, that assuming arguendo that it owed a duty to Bufler as a landowner or quasi-

landowner, Bufler failed to show that a condition of the property was unreasonably dangerous.




       3
         A licensee enters land with the express or implied consent of the owner, but does so for
his own convenience or on business for someone other than the owner. Weaver v. KFC Mgmt., Inc.,
750 S.W.2d 24, 26 (Tex. App.—Dallas 1988, writ denied).

                                                  5
              In his brief, Bufler argues that certain portions of the sidewalk posed an unreasonable

risk of harm when wet, partly because use of the smooth type of concrete on an outdoor sidewalk

was “negligent in and of itself.” As we understand, Bufler’s primary complaint on appeal is that

the subject sidewalk was unreasonably dangerous because of the makeup of the concrete and not

so much because of the wet condition of the sidewalk. Bufler’s argument overlooks the fact that

Apeck was in no way involved in the design or construction of the concrete sidewalk. Also, Apeck

contracted its services to the Department many years after the sidewalks were designed and

constructed. Accordingly, Apeck has no liability to Bufler stemming from decisions made by others

concerning the kind of concrete used in the sidewalks.

              We have previously determined that the wet sidewalk here involved was not an

unreasonably dangerous condition.

              The judgment is affirmed.



                                             __________________________________________
                                             Bob E. Shannon, Justice

Before Justices Puryear, Bourland, and Shannon*

Affirmed

Filed: June 21, 2016




* Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).




                                                6
