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IN THE
TENTH COURT OF APPEALS
 

No. 10-98-166-CV

     GERALD BROWN,
                                                                         Appellant
     v.

     CITY OF HOUSTON AND
     GENERAL ELEVATOR 
     COMPANY OF HOUSTON,
                                                                         Appellees
 

From the 333rd District Court
Harris County, Texas
Trial Court # 95-49074
                                                                                                                   
                                                                                                        
O P I N I O N
                                                                                                                   

      Appellant Brown appeals from an order of the trial court sustaining Appellee City of Houston’s
plea to the jurisdiction and dismissing Appellant’s lawsuit.
      Appellant Brown (and his wife) brought suit against the City of Houston pursuant to the Texas
Tort Claims Act (TTCA), alleging that on October 6, 1993, Appellant was a ticketed passenger using
the Houston Airport facilities; that he was descending on an escalator “when a suitcase released by
Kara Endsley” tumbled down the escalator, striking him and causing severe fracture to his leg.
      Appellant alleges the City has possession and control of the airport; that the airport facility is
tangible personal property of the City which caused injury to Appellant as a result of a condition or
use of such property; that the City is liable to Appellant for his damages under TTCA, Sections
101.121, 101.0215 and 101.022.
      Appellant also alleges the City negligent in one or more of the following:
      a.   Failing to maintain the escalator in a safe manner;
      b.   Failing to warn persons about the size or weight of luggage to be transported on escalators;
      c.   Failing to maintain control over the size or weight of luggage transported on escalators;
      d.   Failing to provide adequate safety precaution for passengers on the escalators;
      e.   Failing to adequately inform passengers and the public of the use and availability of
elevators;
      f.   Failing to adequately instruct passengers and the general public about transportation of
luggage through the terminal area;
      g.   Failing to instruct passengers and the public not to take certain luggage on the escalator or
to restrict the taking of certain luggage on the escalator.
      h.   Failing to control the size and amount of luggage transported on escalators to insure the
safety of the public.
      Appellant alleged each of the foregoing was an act of negligence which proximately caused the
occurrence made the basis of Appellant’s suit and his injuries and damages.  Appellant and his wife
alleged the City liable for their damages in the amount of $1,000,000.
      The City filed a motion for summary judgment that Appellant take nothing, and filed a plea to
the jurisdiction.  Such plea to the jurisdiction alleged that Appellant (1) never provided the City with
notice in accordance with the TTCA for claims made the basis for his suit; and (2) failed to plead a
cause of action under the TTCA.
      The trial court sustained the City’s plea to the jurisdiction without giving a reason therefor, and
dismissed Appellant’s lawsuit.
      Appellant appeals contending that he did comply with the notice provisions of the TTCA. 
Section 101.101, Notice, which provides:
      (a)  A governmental unit is entitled to receive notice of a claim against it under this chapter not
later than six months after the day that the incident giving rise to the claim occurred.   The
notice must reasonably describe:
            (1)  the damage or injury claimed;
            (2)  the time and place of the incident; and
            (3)  the incident.
      (b)  A city’s charter and ordinance provisions requiring notice within a charter permitted by law
are ratified and approved;
      (c)  The notice requirements provided or ratified and approved by subsection (a) and (b) do not
apply if the governmental unit has actual notice that death has occurred, that the claimant
has received some injury, or that the claimant’s property has been damaged.

Tex. Civ. Proc. & rem. Code ann. § 101.101 (Vernon 1997)

      The record is undisputed that the City conducted an on-the-spot investigation on the same day
of the accident in which Appellant was injured.  The results of this investigation were put into a
written report that was signed by both an airport employee and his supervisor.  This report was filed
with the City.  The report contains a concise description of the accident, notes that Appellant’s right
leg was injured, and that he had been transported to a hospital by ambulance.  The report also
contains Appellant’s name, address, telephone number, date of birth, race, and sex, and the names
and addresses of Ms. Kara Endsley (whose luggage fell on Appellant), and Mr. Albert Rodriquiz,
Jr., a witness.
      Appellant contends the City had actual notice of his claims due to the report made by the airport
personnel above named. 
      We agree and hold that the City had actual notice of the accident under Section 101.101(c) and
indeed had investigated the occurrence.  The investigation and report prepared by the City’s employee
gave actual notice to the City that Appellant had received some injury in an accident on October 6,
1993, at the airport operated and maintained by the City.  Thus the notice requirements under (a) and
(b) of Section 101.101 did not apply.
      We hold that since the City had actual notice of the occurrence and any dismissal by the trial
court for lack of notice would not have been proper.
      However, the City’s plea to the jurisdiction further alleged that Appellant had failed to plead a
cause of action under the TTCA.  Before the State of Texas granted the limited waiver of sovereign
immunity in the TTCA, the State and its agencies and political subdivisions had full immunity from
liability for torts.  State v. Brannon, 111 S.W.2d 347 (Tex. App.—Waco 1937, writ ref’d).  The State
and its political subdivisions retain that immunity except to the extent waived by the TTCA.  Duhart
v. State, 610 S.W.2d 740 (Tex. 1980); Wyse v. Dept. of Public Safety, 733 S.W.2d 224 (Tex.
App.—Waco 1986, n.r.e.).  
      Section 101.021, TTCA, sets out the State’s waiver of immunity.
      Governmental Liability.

      A governmental unit in the State is liable for:
 
      (1)  property damage, personal injury and death proximately caused by the wrongful act or
omission or the negligence of any employee acting within his scope of employment if:
            (A) the property damage, personal injury or death arises from the operation or use of a
motor-driven vehicle or motor-driven equipment; and
            (B) the employee would be personally liable to the claimant according to Texas law; and
      (2)  personal injury and death caused by a condition or use of tangible personal property or real
property if the governmental unit would, were it a private person, be liable to the claimant
according to Texas law.

      Section 101.056.  Discretionary Powers, provides:

      This chapter does not apply to a claim based on:
 
      1.   The failure of a governmental unit to perform an act that the unit is not required by law to
perform; or
      2.   A government unit’s decision not to perform an act or on its failure to make a decision on
the performance or non-performance of an act if the law leaves the performance or a non-performance of the act to the discretion of the governmental unit.

      None of Appellant’s alleged omissions that allegedly resulted in negligence falls within the Act’s
waivers of immunity.  In essence Appellant asserts the City should be liable for failing to prevent
people from riding the escalator at the airport if they are carrying baggage which they might fail to
contain.  Appellant’s injuries were not caused by an employee of the City through the use of tangible
personal property, nor were they caused by a premises’ defect.  They were caused by the negligence
of a third party over whom the City had no custody or control.  Appellant has not alleged a cause of
action under Section 101.021.  Lamar University v. Doe, 971 S.W.2d 191, 196 (Tex.
App.—Beaumont 1998, no writ); Dallas Mental Health v. Bossley, 968 S.W.2d 339, 343 (Tex.
1998).
      Moreover, Appellant’s allegations of the City’s acts of negligence involves the City’s failure to
do certain things which the law does not require it to do, and which are thus discretionary with the
City under Section 101.056, supra.
      As noted, Appellant asserted the City was negligent in failing to warn and regulate passengers
and baggage transported on the escalator.  In order to establish negligence, a plaintiff must allege
facts which give rise to a duty, a breach of that duty, and damages proximately caused by the breach. 
Werner v. Calwell, 909 S.W.2d 866, 869 (Tex. 1995).
      No legal liability can arise from any alleged negligence where no duty exists.  Whether a duty
exists is a question of law for the court to decide under the facts and circumstances surrounding the
occurrence.  Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Lefmark
Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex.1996).
      We hold that the City had no duty to perform the alleged acts and further that no negligence is
alleged under Section 101.021 of the Act.  Appellant failed to plead a viable cause of action under
the TTCA, and the trial court did not err in sustaining the City’s plea to the jurisdiction, and in
dismissing Appellant’s lawsuit.
      The order of the trial court is affirmed.
 
                                                                         FRANK G. McDONALD
                                                                         Chief Justice (Retired)

Before Justice Vance,
      Justice Gray, and
      Chief Justice McDonald (Retired)
      (Justice Vance dissenting)
      (Justice Gray concurring)
Affirmed
Opinion delivered and filed August 18, 1999
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