AFFIRM; and Opinion Filed June 30, 2014.




                                                      S
                                       Court of Appeals
                                                           In The


                                Fifth District of Texas at Dallas
                                                  No. 05-11-01144-CV

                             DALLAS METROCARE SERVICES, Appellant
                                            V.
                                   ADOLFO JUAREZ, Appellee

                             On Appeal from the 191st Judicial District Court
                                          Dallas County, Texas
                                    Trial Court Cause No. 11-01999

                        MEMORANDUM OPINION ON REMAND
                                  Before Justices O’Neill, Francis, and Brown 1
                                           Opinion by Justice O’Neill
         In this interlocutory appeal, Dallas Metrocare Services (Metrocare) appeals the denial of

its plea to the jurisdiction. On original submission, we affirmed concluding Juarez had alleged a

negligence claim involving the condition or use of tangible personal property. See Dallas

Metrocare Servs. v. Juarez, 420 S.W.3d 78, 81 (Tex. App.—Dallas 2012), rev’d, 420 S.W.3d 39

(Tex. 2013). In doing so, we refused to consider Metrocare’s jurisdictional arguments that were

not raised in its plea to the jurisdiction.

         The Supreme Court reversed our opinion concluding we had erred to the extent our

opinion was based on Metrocare’s “use” of tangible personal property. See Dallas Metrocare

Servs. v. Juarez, 420 S.W.3d 39, 41 (Tex. 2013). Additionally, the Supreme Court concluded we


    1
       The Honorable Justice Ada Brown succeeded the Honorable Mary Murphy, a member of the original panel, upon Justice Murphy’s
retirement. Justice Brown has reviewed the briefs and record before the Court.
had erred in refusing to consider jurisdictional arguments Metrocare raised for the first time on

appeal. See Rusk State Hospital v. Black, 392 S.W.3d 88, 96 (Tex. 2012). The Court remanded

for us to consider those arguments. Id. Having done so, we conclude Metrocare has failed to

show the trial court lacked subject jurisdiction over Juarez’s claims.

       The Tort Claims Act provides a limited waiver of immunity for injuries caused by “a

condition or use of tangible personal or real property if the government 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). This provision allows suits against government units for

injuries caused by a “condition or use of tangible personal property” and “premises defects.”

City of N. Richland Hills v. Friend, 370 S.W.3d 369, 371 (Tex. 2012).

       We review de novo a challenge to the trial court’s subject-matter jurisdiction. Tex. Dep't

of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); Perez v. City of Dallas, 180

S.W.3d 906, 909 (Tex. App.—Dallas 2005, no pet.).             If the allegations in the Plaintiffs’

pleadings do not demonstrate the court’s jurisdiction, but do not affirmatively negate it, the

situation is a matter of pleading sufficiency, and the plaintiff should generally be given an

opportunity to amend the pleadings. Tex. Dep’t of Crim. Justice-Cmty Justice Assistance Div. v.

Campos, 384 S.W.3d 810, 815 (Tex. 2012). However, if a governmental entity has asserted in

the trial court that it is immune and a plaintiff fails to allege or show facts demonstrating a

waiver of immunity after having a reasonable opportunity to conduct discovery directed to the

issue and amend the pleadings, then the case should be dismissed. Id. We liberally construe the

plaintiff’s pleadings in favor of jurisdiction, and we look to the plaintiff’s intent. Miranda, 133

S.W.3d at 226.

       In reviewing Metrocare’s arguments in this interlocutory appeal, we note we are limited

to determining issues that show the trial court lacked jurisdiction over Juarez’s claims and we are

                                                –2–
prohibited from rendering an advisory opinion. See Rusk, 392 S.W.3d at 95. We may only

dismiss for jurisdictional issues raised for the first time on appeal, if either (1) the pleadings and

record conclusively negate jurisdiction, (2) Juarez had a “full and fair” opportunity to develop

the record and amend his pleadings or (3) the record shows Juarez would be unable to amend his

pleadings on remand. Id. at 96.

           Metrocare first asserts Juarez has not, and cannot, plead a negligence claim for which

immunity is waived because his complaint concerns only a condition of “real property” and he

has not met the elevated standards applicable to premises defect cases. Specifically, Metrocare

asserts Juarez has alleged only a defective condition of the conference room, not the whiteboard.

We disagree. Juarez alleged the whiteboard was in an unsafe condition. The whiteboard was

not affixed to the land and was thus not part of the “real property.” Therefore, the premises

defect line of cases Metrocare relies on is inapplicable. Harris County-Houston Sports Auth. v.

Chilel, 14-12-00380-CV, 2013 WL 1789444 *2 (Tex. App.—Houston [14th Dist.] Apr. 25, 2013,

no pet.); see City of Houston v. Harris, 14-03-00264-CV, 2004 WL 349924, * 5 (Tex. App.—

Houston [14th Dist.] Feb. 26, 2004, no pet.) (concluding City failed to show plaintiff’s claim was

for a premises defect because City failed to show the property that caused the injury, a statute,

was affixed to the land); 2 see also Miranda, 133 S.W.3d at 229-30 (plaintiffs’ allegations

concerned only government agency’s failure to reduce the risk of falling tree limbs and to warn

plaintiffs of the risk of falling tree limbs, which were part of real property).

           We further conclude Juarez’s petition was sufficient to allege a negligence claim for

injuries caused by the condition of the whiteboard. Juarez alleged the whiteboard was in an

unsafe condition because it was not properly secured, and that Metrocare was negligent in

     2
       After remand, the City presented evidence that the statute was affixed to the land and in a subsequent appeal, based on that evidence, the
Houston Fourteenth Court of Appeals concluded the plaintiff alleged a claim for premises defect subject to the heightened standards applicable to
those claims. See City of Houston v. Harris¸192 S.W.3d 167, 173-175 (Tex. App.—Houston [14th Dist.[ 2006, no pet.).



                                                                     –3–
creating and failing to remedy the unsafe condition. 3                                      The Supreme Court has defined

“condition” as “either an intentional or inadvertent state of being.” See Sparkman v. Maxwell,

519 S.W.2d 852, 857 (Tex. 1975). To state a claim under the Act based on the condition of

property, there must be some allegation of “defective or inadequate property.” See Salcedo v. El

Paso Hosp. Dist., 659 S.W.2d 30, 32 (Tex. 1983); see also Dep’t of Transp. v. Garza, 70 S.W.3d

802, 808 (Tex. 2002) (for a “condition” of a traffic sign to state a claim under the Act, there must

be something “wrong” with the sign). Further, the complained-of condition must proximately

cause the alleged injury.                   Rusk, 392 S.W.3d at 997.                       A condition of property does not

proximately cause an injury if it does no more than furnish the means to make the injury

possible. Id. at 97-98. The condition must “pose a hazard in the intended and ordinary ‘use’ of

the property.” Rusk, 392 S.W.3d at 98 (claim that mental patient used plastic bag to commit

suicide did not state a claim based on the condition of the bag because plastic bag did not pose

hazard in its intended and ordinary use).                            And there must be a causal nexus between the

complained-of condition and the injury. See Dallas County v. Posey, 290 S.W.3d 869, 872 (Tex.

2009) (claim that inmate used cord to commit suicide did not state a claim based on the condition

of the cord, even if the cord was defective, because the injury was not caused by the alleged

defective condition).

           Here, Juarez alleged the unsecured state of the whiteboard constituted a dangerous

condition of the whiteboard. 4 This condition posed a risk because the heavy whiteboard could


           3
             For decades, the courts have requested further guidance from the Legislature as to the meaning of the “condition or use” of tangible
personal property language in the Act. See, e.g., Tex. Dep’t. of Crim. Justice v. Miller, 51 S.W.3d 583, 590-91 (Tex. 2001) (J. Hecht, concurring)
(noting court has repeatedly “beseeched” the Legislature for guidance in applying the Act); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 301 (Tex.
1976) (J. Greenhill, concurring) (encouraging Legislature to more clearly express its intent as to when governmental immunity waived). The
Legislature’s failure to do so has resulted in what the Supreme Court has described as a “long and arduous history” of construing the statute.
Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994). While this history has resulted in numerous Supreme Court cases dealing
with the “use” prong of the Act, there are relatively few dealing specifically with the “condition” prong.
           4
             We recognize there was no allegation that the whiteboard was dilapidated, damaged, or improperly constructed. However, such an
allegation or showing is not necessarily required under the Act. Cf. Sparkman, 519 S.W.2d at 857 (stop light that displayed a red left-turn arrow
that confused some motorists was a “condition” of the light for which municipality could be liable under the Act).



                                                                      –4–
fall. The whiteboard did fall, striking Juarez in the head, causing his alleged injuries. In Torres

v. City of Waco, the plaintiff’s daughter was injured when a volleyball judge’s stand fell on her.

See Torres v City of Waco, 51 S.W.3d 814, 818 (Tex. App.—Waco 2001, no pet.), disapproved

on other grounds by Binur v. Jacobo, 135 S.W.3d 646 (Tex. 2004). The plaintiff alleged the

City’s failure to “adequately secure the judge’s stand” proximately caused the child’s injuries.

The Waco Court first concluded the plaintiff’s allegations did not state a claim based on the

City’s “use” of the judge’s stand. Id. at 819.                           However, the court concluded the plaintiff did

allege an actionable claim for injuries caused by the defective condition of judges’ stand. Id. at

820. We similarly conclude Juarez’s pleadings were sufficient to allege an injury proximately

caused by the defective condition of the whiteboard.

           In reaching this conclusion, we reject Metrocare’s reliance on cases dealing with the

negligent “provision” of tangible property lacking an intergral safety component, and specifically

its contention that Juarez failed to state a claim because Metrocare did not provide Juarez with

the whiteboard. 5 The Supreme Court has held that a plaintiff can state a claim under the Act if

the plaintiff alleges the government provided the plaintiff tangible property lacking an integral

safety component. Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 300 (Tex. 1976) (allegations of a

negligent failure to furnish plaintiff proper protective items of personal property, to be used as a

part of the uniform furnished him states a claim arising from “some condition or some use” of

personal property); Robinson v. Central Tex. MHMR Ctr., 780 S.W.2d 169, 171 (Tex. 1989)

(plaintiff stated a claim for negligence associated with drowning death when government entity

was responsible for providing decedent with swimming attire, and entity did not provide

           5
                We note that although Juarez did not specifically state the whiteboard “lacked an intergral safety component,” he alleged the
whiteboard was defective because it was not secured to the wall. A plaintiff is required to plead facts invoking a waiver of immunity, not to use
particular magic words. Univ. of N. Tex. v. Harvey, 124 S.W.3d 216, 223 n.3 (Tex. App.—Fort Worth, pet. denied). Liberally construing
Juarez’s petition, we conclude he alleged the whiteboard was dangerous because it lacked something to secure it to the wall that was necessary
for it to be safe.




                                                                     –5–
decedent with a life preserver, a “part of [decedent’s] swimming attire.”); Overton Mem’l Hosp.

v. McGuirre, 518 S.W.2d 528, 529 (Tex. 1975) (injuries caused by negligently providing a

hospital bed without bed rails are proximately caused from condition or use of tangible

property.)

       Although not entirely clear, it appears the Supreme Court was defining the parameters of

the waiver of immunity under the “use” prong of the Act when the plaintiff was relying on the

government’s act of furnishing property to the plaintiff to establish both the government’s

negligence and the government’s use of property. See Friend, 370 S.W.3d at 371 (plaintiff can

bring a claim if the plaintiff alleges government unit “used” property that lacked an intergral

safety component); Robinson, 780 S.W.2d at 172 (plaintiff’s sole contention is that the failure to

provide a life jacket is a “use of tangible personal property”) (J. Hecht, dissenting); see also San

Antonio State Hosp. v. Cowan, 128 S.W.3d 244, 246-47 (stating the hospital in Overton was

alleged to have “used” the bed.). In concluding a claim exists in such cases, the Supreme Court

has stated “[t]hese cases represent perhaps the outer bounds of what we have defined as use of

tangible personal property.” See Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex.

1996) (emphasis added). Here, Juarez did not allege Metrocare was negligent in providing him

with property but that it was negligent in creating or maintaining the dangerous condition of the

property. We conclude the negligent provision line of cases relied on are not controlling.

       Finally, even if we agreed with Metrocare that Juarez has alleged only a premises defect

case and we must analyze it as such, we cannot agree Metrocare has shown it is entitled to

dismissal of Juarez’s claims.     According to Metrocare, Juarez cannot meet the heightened

standards applicable to premises defect claims because he has not pleaded and cannot prove

Metrocare had actual knowledge of any dangerous condition. See Miranda, 133 S.W.3d at 229-




                                                –6–
30 (plaintiff cannot recast complaints about falling tree limbs, which fall under definition of real

property, as a complaint relating to the negligent condition of tangible property).

       Section 101.022 of the Act provides that if a claim arises from a “premise defect,” “the

governmental unit owes 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.” TEX. CIV. PRAC. REM.

CODE § 101.022(a) (West 2011) (emphasis added). But if the claimant pays for use of the

premises, the government unit’s duty is elevated to that owed to an invitee. See id.; State Dep’t

of Highways & Pub., Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); City of Dallas v.

Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.). If a plaintiff brining a

premises defect claim is an invitee, he must prove only that the government entity knew or

should have known about the condition. Payne, 838 S.W.2d at 237; Davenport, 418 S.W.3d at

847.

       According to Metrocare, Juarez is a licensee because he did not pay for use of the

premises. It directs us to no evidence and cites no authority to support its contention. Further,

although Juarez did not plead he paid for use of the premises, neither the pleadings nor the proof

negate such payment.     Further, Metrocare did show it is a “community center” under Section

534.001(e) of the Health and Safety Code. TEX. HEALTH & SAFETY CODE ANN. § 534.001 (West

2010). Section 534.017(a) of the Code requires a community center to charge a reasonable fee

for the services it provides, unless prohibited by law. TEX. HEALTH & SAFETY CODE ANN.

§ 534.017(a) (West 2010).

       The payment of a fee related to the premises does not establish the plaintiff has paid for

use of the premises. Davenport, 418 S.W.3d at 848. Only a fee charged for entry onto a

particular premises is sufficient to confer invitee status.   Id. However, it is not necessary that

any payment be solely for entrance. Rather, the courts have focused on whether the plaintiff

                                                –7–
would have been granted access to the premises absent payment. See City of Dallas v. Patrick,

347 S.W.3d 452, 457 (Tex. App.—Dallas 2011, no pet.) (plaintiff, who entered zoo as guest of a

member, paid for use of premises because she was only permitted to enter because a fee was

paid); Dallas-Fort Worth Int’l Airport Pub. Facility Improvement Corp. v. Banks, No. 02-09-

00176-CV, 2010 WL 87865 *3-4 (Tex. App.—Fort Worth Jan 7, 2010, pet. denied) (fact issue

existed on whether plaintiff, who was injured in airport terminal, paid for use of the premises

when she paid for plane ticket and she could not have entered the terminal without the plane

ticket); see also M.D. Anderson Hosp. and Tumor Institute v. Felter, 837 S.W.2d 245, 248 (Tex.

App.—Houston [1st Dist.] 1992, no writ) (evidence sufficient to show plaintiff paid for use of

the premises when her husband was patient at hospital and she paid for her husband’s hospital

stay). The Waco of Appeals had held that payment by the plaintiff’s employer for a training

class was sufficient to show the plaintiff paid for use of the training facilities. Tex. Eng’g

Extension Serv. v. Gifford, 10-11-00242-CV, 2012 WL 851742 (Tex. App.—Waco Mar. 14,

2012, no pet.). Here, Juarez was injured in a conference room during a group therapy session,

not in an area of Metrocare’s premises that would have been open to the public. We conclude

Metrocare has not shown Juarez did not pay for use of the premises or that Juarez cannot amend

his pleading to allege invitee status or prove he was an invitee. 6 Therefore, evidence that

Metrocare did not have actual knowledge of the dangerous condition does not show the trial

court lacked subject-matter jurisdiction over Juarez’s premises liability claim.

           Finally, Metrocare asserts in a footnote that the evidence negates a premises liability

claim because the evidence showed that Juarez had knowledge of the “condition” of the

           6
              We also note that in Billstrom v. Memorial Medical Center, the Corpus Christi Court indicated that even if a patient does not
actually pay for a hospital bill, the legislature did not intend the patient’s physical act of payment be determinative in deciding whether he is an
invitee under the Act. See Billstrom v. Mem’l Med. Ctr., 598 S.W.2d 642, 648 (Tex. App.—Corpus Christi 1980, no writ) (refusing to affirm a
summary judgment based on the hospital’s contention that the plaintiff did not pay for use of hospital because there might be a fact issue that
hospital intended to treat plaintiff as a paying patient or the patient was indigent and unable to pay).




                                                                       –8–
whiteboard.   According to Metrocare, Juarez admitted in his affidavit that he noticed the

“unattached” whiteboard about a year before it fell on him. However, Juarez merely stated he

had knowledge of the whiteboard, not that it was unattached. It was the unattached condition of

the whiteboard that Juarez alleged rendered it dangerous. There is no evidence Juarez was aware

of this condition. However, Juarez’s petition did fail to allege he was not aware of the alleged

dangerous condition. Thus, his petition was defective. But because the defect is not incurable,

he must be given an opportunity to amend his pleadings. See Tex. A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835, 839 (Tex. 2007).

       We resolve Metrocare’s issues against it and remand to the trial court for further

proceedings consistent with this opinion.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O'NEILL
                                                    JUSTICE

111144F.P05




                                              –9–
                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

DALLAS METROCARE SERVICES,                             On Appeal from the 191st Judicial District
Appellant                                              Court, Dallas County, Texas
                                                       Trial Court Cause No. 11-01999.
No. 05-11-01144-CV          V.                         Opinion delivered by Justice O'Neill.
                                                       Justices Francis and Brown participating.
ADOLFO JUAREZ, Appellee

     In accordance with this Court’s opinion of this date, the trial court’s order is
AFFIRMED.

       It is ORDERED that appellee ADOLFO JUAREZ recover his costs of this appeal from
appellant DALLAS METROCARE SERVICES.


Judgment entered this 30th day of June, 2014.




                                                –10–
