      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-12-00265-CV



                            The University of Texas at Austin, Appellant

                                                  v.

                                      John Sampson, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-GN-11-000915, HONORABLE GUS J. STRAUSS, JR., JUDGE PRESIDING



                               MEMORANDUM OPINION

                   Appellee John Sampson brought suit against the University of Texas at Austin

pursuant to the Texas Tort Claims Act (TCA) seeking damages for personal injuries he sustained on

the University’s campus. See Tex. Civ. Prac. & Rem. Code §§ 101.001–.109. In this interlocutory

appeal, the University challenges the trial court’s order denying its plea to the jurisdiction, motion

to dismiss, and motion for summary judgment based on sovereign immunity. See id. § 51.014(a)(8).

For the reasons that follow, we reverse the trial court’s order and dismiss Sampson’s claims for lack

of jurisdiction.


                                          BACKGROUND

                   On November 21, 2009, Sampson, a professor at the University’s law school, was

injured while walking to his office on campus after dark. Sampson alleges that he tripped over an

extension cord strung across a pedestrian walkway between a parking lot on the campus and the law
school. Sampson sued the University to recover damages for his injuries, alleging that “[t]he cord

was not taped down or secured in any way,” that a portion of the cord ran across and slightly above

the walkway, and that, as he was walking to his office after dark, the cord hit his leg about mid-shin,

causing him to pitch forward and injure himself. He alternatively asserted causes of action for

negligence, a special defect, and a premise defect. See id. §§ 101.021(2), .022(a), (b). As to his

negligence claim, he alleged that the University was negligent by failing to properly locate and

secure the cord, placing it in a dangerous location, and failing to warn of the dangerous location.

                The University filed a plea to the jurisdiction, motion to dismiss, and motion for

summary judgment accompanied by evidence. The University asserted that the trial court lacked

jurisdiction over Sampson’s claims because they did not fall within the limited waiver of sovereign

immunity provided under the Texas Tort Claims Act. The University’s evidence included photos

of the walkway and excerpts from depositions of an employee of the law school and an employee

of a third party. The third party assisted with the set-up for a tailgate party that was in progress on

the lawn adjacent to the walkway at the time Sampson was injured. The set-up included installing

lights in the trees for the event, and extension cords were used to power the lights. The University

presented evidence that would support findings that a University extension cord was not in the area

where Sampson was injured, that the third party placed the extension cords for the tailgate event, and

that the University was unaware that a cord was lying across the walkway. The University also

presented evidence to support a finding that there were no prior reports of any other falls or incidents

in the area or problems with past events that were held in the area.




                                                   2
                Sampson filed a response with evidence, including an affidavit by Sampson and

excerpts from depositions of employees of the University and the third party. In his affidavit,

Sampson described the location of the cord and his fall. He averred that the cord “was not taped

down or secured in any way” or “illuminated,” that it was “partially obscured by ivy on the sides of

the walkway,” and that “there was no cones or other warning signs signaling the cord’s presence.”

He averred that he tripped over a portion of the cord that ran across and slightly above the walkway,

and that he “would never have expected to encounter an extension code strung in that manner across

a pedestrian walkway.” The deposition evidence showed that University employees generally

provided electrical services for the third party company that set up the tailgate party, including

observing the lights after they were installed to make sure “everything was fine,” but no witness

could say that they saw any university employee place the extension cord across the walkway.1


       1
           For example, an employee for the third party testified:

       Q.       Okay. So on the 16th, you and [UT employees] discussed stringing the
                extension cord above the walkway, through the trees?

       A.       Yes.

       Q.       So that it wouldn’t be a tripping hazard?

       A.       Yes.

       Q.       Okay. And do you know whether that was actually done?

       A.       No.

       Q.       Do you know who would have run the extension cords from the outlet to the
                area where the lights were plugged in? Would it have been someone from
                [the third party] or someone from [the University]?


                                                  3
               The University filed a supplemental plea, motion to dismiss, and motion for summary

judgment with additional evidence as well as a reply to Sampson’s response. The University’s

evidence included additional deposition excerpts. The University argued: (i) Sampson’s claims

were limited to a premise defect claim, (ii) under that theory of recovery, Sampson had the burden

to show that the University had actual knowledge of the existence of the cord and an unreasonably

dangerous condition, and (iii) there was no evidence of actual knowledge to support this element.

The University also asserted that, even if the trial court considered Sampson’s general negligence

theory of liability, the cord was owned and used by the third party, not an employee of the

University, and that no special defect existed.

               After a hearing, the trial court denied the University’s plea and motions. The

University then brought this interlocutory appeal.




       A.      I believed it to be somebody from [the University].

       Q.      Do you know who from [the University]?

       A.      No.

       Q.      And why did you believe that it was someone from [the University]?

       A.      Well, anytime that we have somebody involved that has a department that
               takes care of that, they bring the electricity to us and then plug in.

       Q.      But you don’t know whether that happened for this event?

       A.      I don’t.


                                                  4
                                             ANALYSIS

                The University raises two issues on appeal. The University contends that the trial

court erred in denying its plea and motions because (i) Sampson failed to demonstrate a waiver of

sovereign immunity under the TCA, and (ii) Sampson cannot proceed on his general negligence

claims once a premise defect was identified, and, in any case, he did not plead or prove a negligent

use of tangible personal property by a paid employee of the University.


Standard of Review

                We review a plea questioning the trial court’s subject matter jurisdiction de novo.

See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first

on the plaintiff’s petition to determine whether the facts that were pled affirmatively demonstrate

that subject matter jurisdiction exists. Id. at 226. We construe the pleadings liberally in favor of the

plaintiff. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial

court may consider evidence and must do so when necessary to resolve the jurisdictional issues

raised. Id. at 227 (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000)). When

evidence is submitted that implicates the merits of the case, as is the case here, our standard of

review generally mirrors the summary judgment standard under Texas Rule of Civil Procedure

166a(c). Id. at 228; see also Tex. R. Civ. P. 166a(c). The burden is on the governmental unit to

present evidence to support its plea. Miranda, 133 S.W.3d at 228. If the governmental unit meets

this burden, the burden shifts to the nonmovant to show that a disputed material fact exists regarding

the jurisdictional issue. Id. We take as true all evidence that is favorable to the nonmovant and

indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id.

                                                   5
Texas Tort Claims Act

               “In general, the State of Texas retains sovereign immunity from suit.” University of

Texas at Austin v. Hayes, 327 S.W.3d 113, 115 (Tex. 2010) (per curiam) (citing Miranda,

133 S.W.3d at 224). The TCA, however, provides a limited waiver of immunity for certain tort

claims. See Tex. Civ. Prac. & Rem. Code § 101.025 (waiving sovereign immunity “to the extent of

liability created by this chapter” and allowing person with a claim under TCA to sue governmental

unit for damages). Thus, to sue a subdivision of the State for a tort, the pleadings must state a claim

under the TCA. Texas Dep’t of Transp. v. Jones, 8 S.W.3d 636, 639 (Tex. 1999); see Dallas Area

Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003) (explaining that plaintiff bears burden

of establishing waiver of immunity under TCA). The University is a subdivision of the State and

thus protected by sovereign immunity except as provided in the TCA.


Negligence Claims

               We begin with the University’s challenge to Sampson’s negligence cause of action

asserted pursuant to section 101.021(2) of the TCA.           See Tex. Civ. Prac. & Rem. Code

§ 101.021(2).2 As part of its second issue, the University argues that Sampson cannot proceed on

his general negligence claims once a premise defect was identified.

               “The Tort Claims Act’s scheme of a limited waiver of immunity from suit does not

allow plaintiffs to circumvent the heightened standards of a premises defect claim contained in


       2
         Section 101.021(2) states: “A governmental unit in the state is liable for: . . . (2) personal
injury and death so caused by a condition or use of tangible personal or 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 § 101.021(2).

                                                  6
section 101.022 by re-casting the same acts as a claim relating to the negligent condition or use of

tangible property.” Miranda, 133 S.W.3d at 233 (citing State v. Tennison, 509 S.W.2d 560, 562

(Tex. 1974) (“rejecting the argument that the Tort Claims Act ‘creates two entirely separate grounds

of liability’ for negligent use or condition of real property and premise defect, but instead interpreting

the premises defect provision to further limit the waiver of immunity for negligent use or condition

of real property”)); see id. (recognizing that “allow[ing] plaintiffs to characterize premises defect

claims as claims caused by the negligent condition or use of personal or real property would render

the Legislature’s heightened requirements for premises defect claims meaningless” (citations

omitted)); City of Richardson v. Justus, 329 S.W.3d 662, 665 (Tex. App.—Dallas 2010, no pet.)

(concluding that, “[t]o the extent [the plaintiff] attempts to assert a claim based on any negligence

. . . separate and apart from her premises liability claims, the Act does not waive the City’s

governmental immunity for such a claim”).

                To support his position that he has properly asserted a negligence claim under section

101.021(2), Sampson relies on Rawlings v. Angelo State University, 648 S.W.2d 430 (Tex.

App.—Austin 1983, writ ref’d n.r.e.). We find Sampson’s reliance on that case misplaced. In that

case, one of the plaintiffs, a student of the university, asserted that she was injured when she tripped

over a water hose that was placed across a sidewalk on the campus by an agent, servant, or employee

of the university. Id. at 431. This Court concluded that the plaintiff’s allegations were sufficient to

state a cause of action under the TCA, based upon a “dangerous and unsafe condition on the

premises.” Id. at 434. This Court’s conclusion in that case treated the alleged dangerous condition

as a premise defect and is consistent with the University’s position here that Sampson’s claim is a



                                                    7
premise defect claim. We also note that this Court issued its opinion in Rawlings over two decades

before the supreme court’s opinion in Miranda.

                If a negligence claim relies on a premise defect, the TCA does not waive immunity

for such a claim. See Miranda, 133 S.W.3d at 233. Sampson’s negligence allegations—failure to

properly locate and secure the cord and to warn of its dangerous location—rely on an alleged premise

defect, precluding Sampson from circumventing the heightened standards of a premise liability

claim. See id.; see also Justus, 329 S.W.3d at 665. Guided by the supreme court’s analysis in

Miranda, we conclude that Sampson’s claim is one of premise defect. Thus, Sampson failed to

establish that the TCA waived immunity for his negligence cause of action and the trial court erred

in denying the University’s plea to the jurisdiction as to that cause of action. We sustain the

University’s second issue on this basis.3


Premise and Special Defect Claims

                We next address the University’s challenge to Sampson’s claims that are based on

a premise or special defect. See Tex. Civ. Prac. & Rem. Code § 101.022 (describing duty owed by

governmental unit for special and premise defects).4 Among its arguments in its first issue, the

       3
          Because we conclude that Sampson is limited to asserting a premise liability claim, we
need not address the University’s argument that Sampson did not plead or prove a negligent use of
tangible personal property by a paid employee of the University. See Tex. R. App. P. 47.1.
       4
           Section 101.022 of the TCA reads:

       (a)      Except as provided in Subsection (c), if 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.


                                                  8
University argues that Sampson has not demonstrated a waiver of immunity for his claims based on

a special defect and, as to his claims based on a premise defect, that Sampson has not offered any

evidence that the University actually knew of a dangerous condition.

               Whether a condition is a premise or special defect is a question of law. State Dep’t

of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 (Tex. 1992) (op. on rehearing); see

Texas Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 866 (Tex. 2002) (“Whether a condition is a

premise defect is a legal question.”). “‘Premise defects’ may be defined generally as defects or

dangerous conditions arising from conditions of a premises.” Davis v. Comal Cnty. Comm’rs Court,

No. 03-11-00414-CV, 2012 Tex. App. LEXIS 5719, at *6 (Tex. App.—Austin July 13, 2012, no

pet.) (mem. op.) (citing City of Weston v. Gaudette, 287 S.W.3d 832, 836 (Tex. App.—Dallas 2009,

no pet.)); see also City of Houston v. Harris, 192 S.W.3d 167, 173 (Tex. App.—Houston [14th Dist.]

2006, no pet.) (noting that “courts have defined ‘premises’ as ‘a building or a part of a building with

its grounds or other appurtenances’” (citations omitted)). “Special defects” are a subset of premise

defects and include “conditions ‘such as excavations or obstructions on highways, roads, or streets.’”




       (b)     The limitation of duty in this section does not apply to the duty to warn of
               special defects such as excavations or obstructions on highways, roads, or
               streets or to the duty to warn of the absence, condition, or malfunction of
               traffic signs, signals, or warning devices as is required by Section 101.060.

       (c)     If a claim arises from a premise defect on a toll highway, road, or street, the
               governmental unit owes to the claimant only the duty that a private person
               owes to a licensee on private property.

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


                                                  9
Hayes, 327 S.W.3d at 116 (citing Tex. Civ. Prac. & Rem. Code § 101.022(b)); Davis, 2012 Tex.

App. LEXIS 5719, at *6.


        a)      Special Defect

                The University argues that Sampson’s alleged condition is not sufficiently related to

a road or street to be a special defect. Although a “special defect need not be on the surface of the

road itself,” the “condition must be sufficiently ‘related to the street’ to constitute a special defect.”

City of Austin v. Rangel, 184 S.W.3d 377, 383 (Tex. App.—Austin 2006, no pet.) (citation omitted).

In his pleadings, Sampson alleges that the defective condition was an extension cord across a

“pathway between a parking lot and the Law School.” The evidence also included pictures of the

walkway and a diagram of the layout for the tailgate event. Consistent with Sampson’s pleadings,

the evidence shows that the walkway is not adjacent to a road or street but that its path crosses the

law school’s grounds. Thus, we conclude as a matter of law that the alleged condition is not

sufficiently related to a road or street to be a special defect. See id.; see also Payne, 838 S.W.2d at

238–39 (concluding that, “[i]f there was a defect, it was in the field where [the plaintiff] was

walking,” and that it was not a special defect).

                Sampson argues that the University raises this argument for the first time on appeal.

But, it was Sampson’s burden to affirmatively demonstrate the trial court’s jurisdiction to consider

his special defect claim. See Miranda, 133 S.W.3d at 226. He failed to do so. Accordingly, the

University’s “duty of care with respect to such a defect was covered by the ordinary rule for premise

defects under section 101.022(a).” See Payne, 838 S.W.2d at 238–39; see also Hayes, 327 S.W.3d

at 115 (concluding as a matter of law that “metal chain blocking a driveway” was not a special

                                                   10
defect). On this basis, we conclude that the trial court erred in denying the University’s challenge

to Sampson’s special defect claim.


       b)      Premise Defect

               Because Sampson does not allege that he was paying to use the premises, the

University owed him “only the duty that a private person owes to a licensee” as to Sampson’s claim

based on a premise defect. See Tex. Civ. Prac. & Rem. Code § 101.022(a). “To establish a waiver

of immunity for a premises-defect claim [under this standard], the plaintiff must show that the

landowner failed to either (1) use ordinary care to warn a licensee of a condition that presented an

unreasonable risk of harm of which the landowner is actually aware and the licensee is not, or (2)

make the condition reasonably safe.” Hayes, 327 S.W.3d at 117 (citing County of Cameron

v. Brown, 80 S.W.3d 549, 554–55 (Tex. 2002)).

               The University argues that Sampson has not established that the extension cord on

the walkway was an unreasonably dangerous condition or that the University had actual knowledge

of the alleged defect. The element of actual knowledge “requires the landowner to know ‘that the

dangerous condition existed at the time of the accident, not merely of the possibility that a dangerous

condition c[ould] develop over time.’” Id. (quoting City of Corsicana v. Stewart, 249 S.W.3d 412,

413–14 (Tex. 2008) (per curiam) (quoting City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex.

2006) (per curiam))). “Hypothetical knowledge of a dangerous condition” is not actual knowledge.

Id.; see Thompson, 210 S.W.3d at 604 (concluding plaintiff failed to present any evidence of city’s

“actual knowledge of the protruding coverplate”); American Indus. Life Ins. Co. v. Ruvalcaba,




                                                  11
64 S.W.3d 126, 142 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“Evidence of [owner]’s

actual knowledge cannot be established by piling inference upon inference.”).

               We find instructive the Texas Supreme Court’s analysis in University of Texas-Pan

American v. Aguilar, 251 S.W.3d 511, 513–14 (Tex. 2008) (per curiam) and our sister court’s

analysis in University of Texas at El Paso v. Muro, 341 S.W.3d 1, 4–5 (Tex. App.—El Paso 2009,

no pet.). In Aguilar, a student sued his university to recover damages alleging premises liability.

251 S.W.3d at 512. The University admitted to using water hoses on campus, and the student tripped

on a water hose lying across a campus sidewalk. Id. Relying in part on guidelines from the

University’s safety manual, the court of appeals held that there was a fact issue regarding whether

the University had actual knowledge that the water hose presented an unreasonable risk of harm.

Id. at 513. The Texas Supreme Court reversed the court of appeals, concluding that there was “no

evidence of the University’s actual knowledge that the hose’s use under these circumstances

presented an unreasonable risk of harm.” In reaching its decision, the court explained the inquiry

for determining actual knowledge:


       Although there is no one test for determining actual knowledge that a condition
       presents an unreasonable risk of harm, courts generally consider whether the
       premises owner has received reports of prior injuries or reports of the potential
       danger represented by the condition.


Id. at 514. The University’s evidence included testimony that “there had been no incidents of

pedestrians tripping on water hoses on the campus in the past five years” and “that there were no

rules or guidelines for the use and placement of water hoses because they had never been a problem

on campus.” Id. As to the UT-Pan American safety manual, the supreme court concluded that

                                                12
“nothing in the manual remotely suggests that a water hose can present an unreasonable risk of

harm.” Id.

               In Muro, the plaintiff alleged that she was injured on campus when walking across

a parking lot on her way to the football stadium. 341 S.W.3d at 2-3. She sued UTEP, asserting a

premise defect claim under the TCA and alleging that she was injured when she tripped over the

remnants of a metal sign post which was protruding from the paved surface. Id. The court

concluded that the plaintiff failed to raise a fact question regarding UTEP’s actual knowledge of the

condition and, therefore, that she was unable to establish a waiver of sovereign immunity. Id. at 6.

In its analysis, the court contrasted constructive and actual knowledge and noted that the “‘actual

knowledge’ element . . . requires knowledge that the dangerous condition existed at the time of the

accident” and that “circumstantial evidence [that] presents two equally plausible, but opposite

inferences” is “legally no evidence at all.” Id. at 4–6. There was testimony that UTEP maintenance

crews “traditionally used” a technique that could have created the remnant but there was also

“testimony that the remnant could have been created by an entity unrelated to UTEP.” Id. at 5. The

court concluded that one could infer from testimony that “UTEP did, or did not create the remnant”

so that the testimony could not be the basis of a fact question. Id. at 5–6.

               Even if we assume that Sampson’s pleadings were sufficient to support the trial

court’s jurisdiction to consider his premise defect claim, the University presented evidence to support

a finding that the University did not have actual knowledge of a condition on the walkway that

presented an unreasonable risk of harm. See Hayes, 327 S.W.3d at 117; Aguilar, 251 S.W.3d at

513–14; Muro, 341 S.W.3d at 5–6. The University presented evidence that it did not place a cord



                                                  13
at the location of Sampson’s injury and that it was unaware of a cord at that location, of any reports

of falls or incidents in that area, or of problems with past events in that area. The burden then shifted

to Sampson to present evidence to show that a disputed material fact existed regarding the

University’s actual knowledge. See Miranda, 133 S.W.3d at 228; see also Harris, 192 S.W.3d at

175 (concluding that after city introduced evidence that it did not have knowledge of prior accidents

or complaints, it was the plaintiffs’ burden to demonstrate a fact issue regarding the city’s knowledge

and that the plaintiffs “failed to do so”).

                Sampson urges that the evidence supports a finding that the University had actual

knowledge because an employee of the University may have placed the cord across the walkway and,

even if an employee of the third party placed the cord across the walkway, an employee of the

University “‘double checked’ everything before the event and made sure that ‘everything was fine.’”

The evidence showed that University employees walked the site and discussed the set-up for the

event with an employee from the third party before the event and that they observed the site after the

lights had been installed. Sampson also presented evidence that: (i) the University would typically

run the power from the electric outlet to wherever it was needed for this type of event, and (ii) at

some point during the event, a cord was pulled out of its socket, and an employee of the University

plugged it back in without investigating why it had been pulled out.

                Sampson did not present evidence, however, that any University employee had actual

knowledge of the cord and its location or condition in the time lead up to Sampson’s fall or that it

presented a dangerous condition. See Muro, 341 S.W.3d at 4–6. Based on Sampson’s testimony and

other evidence, the evidence was sufficient to create a fact issue as to whether he tripped over a cord



                                                   14
but, at best, the circumstantial evidence “creates nothing more than a mere suspicion” that the

University was aware of a condition on the walkway that presented an unreasonable risk of harm,

and “therefore, cannot be the basis of a fact question.” See id.; see also Hayes, 327 S.W.3d at 117.

               Further, Sampson did not present evidence to refute the University’s evidence that

it had not received prior reports of injuries or accidents or problems with past events in the area.5

See Aguilar, 251 S.W.3d at 513–14; see also Hayes, 327 S.W.3d at 117–18 (observing that plaintiff

“failed to demonstrate that the University had ever received prior reports of injuries or accidents at

this location” and concluding that there was “no evidence showing that the University had actual

knowledge of a dangerous condition at the time of the accident” despite observing that the University

knew about the metal chain across driveway because University had erected it); Harris, 192 S.W.3d

at 175. There also was no evidence that there had been problems with the use of extension cords on

the University’s campus. See Aguilar, 251 S.W.3d at 513–14. Further, the University employees’

presence at the site prior to the event does not create a fact issue as to the University’s actual

knowledge of an unreasonable risk of harm. See id.; Thompson, 210 S.W.3d at 603 (concluding that

“without evidence showing how long the alleged [defect] had existed, the proximity of the

employees is no evidence of actual knowledge”).

               Guided by the analysis in Aguilar and Muro, we conclude that Sampson failed to

present evidence to show that a disputed material fact exists regarding the University’s actual

knowledge of an unreasonable risk of harm and, therefore, that Sampson failed to establish the trial


       5
          In his affidavit, Sampson testified that he had used “the same walkway between the parking
lot and the law school on a nearly daily basis for over thirty years” and that he had “never before, and
never since, encountered a cord strung across the walkway in that manner.”

                                                  15
court’s jurisdiction to consider his premise defect claim. On this basis, we sustain the University’s

first issue.


                                           CONCLUSION

               For these reasons, we reverse the trial court’s order and dismiss Sampson’s claims

for lack of subject matter jurisdiction.




                                       __________________________________________

                                       Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Rose and Goodwin
       Dissenting Opinion by Chief Justice Jones

Reversed and Dismissed

Filed: August 8, 2014




                                                 16
