REVERSE and RENDER; and Opinion Filed December 16, 2013.




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-13-00039-CV

                              CITY OF DALLAS, Appellant
                                         V.
                            THOMAS A. DAVENPORT, Appellee

                      On Appeal from the 192nd Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DC-11-09411-K

                                          OPINION
                         Before Justices O’Neill, Lang-Miers, and Evans
                                 Opinion by Justice Lang-Miers
       This is an interlocutory appeal from an order denying the City of Dallas’s plea to the

jurisdiction on Thomas A. Davenport’s premise defect claim. Davenport sued the City for

damages arising from personal injuries he sustained when he fell on a slippery substance in the

terminal at Dallas Love Field Airport. The City argues that the trial court erred by denying its

plea to the jurisdiction because it had governmental immunity from Davenport’s claim. The

resolution of the issues on appeal turns on whether Davenport was a licensee or an invitee at the

airport. We conclude that he was a licensee, reverse the trial court’s order, render judgment

granting the plea to the jurisdiction, and dismiss Davenport’s lawsuit.

                                          BACKGROUND

       Davenport and his wife drove to Love Field, parked their car in one of the airport parking

garages, and flew to Chicago for vacation. After returning to Dallas, they retrieved their luggage
from the baggage claim area and went down an escalator to an underground walkway that led to

the airport parking garage. Davenport got off the escalator, took several steps, and then slipped

on an orange liquid substance on the floor and fell. He broke his right wrist and sustained other

injuries requiring medical treatment. There were no signs or other warnings posted near the spill

to alert Davenport or anyone else about the slippery substance on the floor.

       Davenport sued the City for damages under the Texas Tort Claims Act and alleged that

the City waived its governmental immunity. Davenport alleged that he was an invitee at the

airport because he paid for use of the premises by purchasing an airline ticket and paying to park

his car in the airport parking garage. He alleged that the duty the City owed him as an invitee

was to maintain the premises in a safe condition; the City knew or should have known of the

dangerous condition on the floor prior to his fall; the City failed to warn him about the dangerous

condition; the City failed to remove or correct the dangerous condition; and the City’s negligence

proximately caused the injuries he sustained in the fall.

       The City filed a plea to the jurisdiction arguing that Davenport was a licensee and not an

invitee because the area in the terminal where Davenport fell was open to the public and did not

require the public to pay a fee to enter and access the area. The City argued that, as a licensee,

and to establish waiver, Davenport must prove that the City had actual knowledge that the

substance was on the floor. It contended that the evidence was undisputed that the City did not

have actual knowledge.

       Davenport responded that he was an invitee because he paid for use of the airport

premises and that “‘premises’ includes real property and anything growing on it, attached to it or

erected on it (e.g., trees, streets, roads, bridges, sidewalks, buildings, etc.).” He argued that the

airport parking garage was part of the “premises.” Davenport also argued that the City waived

governmental immunity “when it failed to perform its governmental function of maintaining its

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airport” by correcting the “hazardous condition created by the liquid spill in its airport within a

reasonable time after the condition was created.” Davenport attached his affidavit as evidence to

support his response. He also attached excerpts from the deposition of an eyewitness, Korey

Beard. Beard testified that he was at the airport to pick up his son who was arriving on a plane.

He testified that he parked in the airport parking garage, but did not purchase an airline ticket.

He saw the substance on the floor as he approached the escalator from the underground

walkway, but he did not report it to anyone and did not see a custodian to whom he could report

the spill. He said he was in the airport about 45 minutes. As he and his son were leaving, they

happened to be in front of Davenport. He and his son avoided the substance on the floor as they

stepped off the escalator, but Beard turned in time to see Davenport fall.

        The City objected to portions of Davenport’s affidavit, and the trial court sustained some

of those objections. The City also argued that Davenport’s own evidence—the testimony of the

eyewitness, Beard—established that a fee was not required for use of the premises where

Davenport fell because Beard had not purchased an airline ticket and was in that same area.

        On the day of the hearing on the City’s plea to the jurisdiction, Davenport filed a

supplemental response in which he added the argument that he paid to use the airport premises

because the City collected a Passenger Facility Charge (PFC) on each airplane ticket to develop

portions of Love Field. The court gave the City an opportunity to file a supplemental reply and

later denied the City’s plea without stating a basis for its ruling.

                                       STANDARD OF REVIEW

        Governmental immunity protects cities from lawsuits for money damages. Ben Bolt-

Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins.

Fund, 212 S.W.3d 320, 324 (Tex. 2006). It deprives a court of subject matter jurisdiction and

may be raised in a plea to the jurisdiction. City of Houston v. Williams, 353 S.W.3d 128, 133–34

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(Tex. 2011). Whether a trial court has subject matter jurisdiction is a question of law which we

review de novo. Id. at 133. When a plea to the jurisdiction challenges the existence of

jurisdictional facts, we consider relevant evidence submitted by the parties if necessary to resolve

the jurisdictional issues raised. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

227 (Tex. 2004). If the evidence raises a fact issue about jurisdiction, the issue must be resolved

by the factfinder. Id. at 227–28. But if the relevant evidence is undisputed, or fails to raise a fact

issue, the court rules on the plea as a matter of law. Id. at 228. We take as true all evidence

favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in

favor of the nonmovant. Id. at 228.

                                         APPLICABLE LAW

                                          Premise Defect

       The Texas Tort Claims Act waives governmental immunity for personal injury “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 ANN. § 101.021(2) (West 2011). If the 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.” Id. § 101.022(1). If the

claimant pays for use of the premises, the City’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). One

difference between the duty owed to a licensee and that owed to an invitee is that if the claimant

is a licensee, he must prove that the City actually knew about the condition, but if the claimant is

an invitee, he must prove only that the City knew or should have known about the condition.

Payne, 838 S.W.2d at 237.




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                                  Payment for Use of Premises

       We have said that “invitee status requires payment of a specific fee for entry onto and use

of public premises[.]” Mitchell v. City of Dallas, 855 S.W.2d 741, 747 (Tex. App.—Dallas

1993) (payment of taxes alone not sufficient to confer invitee status on users of city park, citing

Garcia v. State, 817 S.W.2d 741, 743 (Tex. App.—San Antonio 1991, writ denied)), aff’d, 870

S.W.2d 21 (Tex. 1994). To constitute a fee for use of public premises as contemplated in the Tort

Claims Act, the fee must be paid specifically for entry onto and use of the premises. Mitchell,

855 S.W.2d at 747. For example, a rental fee paid to a city for a wedding reception dinner in a

city park after closing hours was a fee for use of the park. Sullivan v. City of Fort Worth, No.

02-10-00223-CV, 2011 WL 1902018, at *8 (Tex. App.—Fort Worth May 19, 2011, pet. denied)

(mem. op.). The park was open only because it had been reserved for the wedding reception, and

only wedding guests were allowed in the park for the event. Id. In another example, a woman

who slipped and fell in the hallway of a hospital was an invitee of the hospital because her

husband was a patient, she stayed in the room with her husband, and she paid for her husband’s

hospital stay. M.D. Anderson Hosp. & Tumor Inst. v. Felter, 837 S.W.2d 245, 248 (Tex. App.—

Houston [1st Dist.] 1992, no writ).

       But a fee that merely relates to the premises is not sufficient under the Tort Claims Act to

constitute payment for use of the premises. In a case with facts similar to this case, the court

concluded that a person who fell in the airport terminal had not paid for use of the terminal in the

area where she fell even though she paid to park her car in the airport parking garage.

Churchman v. City of Houston, No. 01-96-00211-CV, 1996 WL 544250, at *2–3 (Tex. App.—

Houston [14th Dist.] Sept. 26, 1996, writ denied) (not designated for publication). The court said

that paying to park in the airport parking garage was payment for use of the parking garage, not

the terminal. Id. See also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784,

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786–87 (Tex. 1993) (payment of vehicle registration and licensing fees did not constitute

payment for use of the highway); Clay v. City of Fort Worth, 90 S.W.3d 414, 417 (Tex. App.—

Austin 2002, no pet.) (city did not waive governmental immunity for injuries sustained by

telephone company employee at public events facility because revenue-sharing relationship

between city and telephone company, while related to premises, was not fee for use of the

premises); Simpson v. Harris Cnty., 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.]

1997, no pet.) (payment of filing fee did not constitute payment for use of courthouse); Garcia,

817 S.W.2d at 743 (payment of general licensing fees and fuel taxes did not elevate truck

driver’s status to invitee on public highways).

                          DID DAVENPORT PAY FOR USE OF PREMISES?

                      Purchasing Airline Ticket and Paying to Park Car

       To determine if immunity was waived, we first address whether Davenport was an invitee

or a licensee. Davenport alleged that he was an invitee because he paid for use of the premises

by purchasing an airline ticket and paying to park his car in the airport parking garage. In its plea

to the jurisdiction, however, the City alleged and attached evidence supporting its contention that

Davenport was a licensee because the area in the terminal where Davenport fell did not require

payment of a fee for entry. Terry L. Mitchell, the City’s Assistant Director of Aviation-

Operations, testified by affidavit that “[t]he baggage claim area and walkway leading from the

baggage claim area to the parking garage is part of the airport terminal that is open to the public.

The payment of a fee is not required for entry into the baggage claim area and airport terminal

walkway leading from the baggage claim area to the parking garage. Members of the public are

not required to show an airline ticket before being allowed access to the baggage area and airport

terminal walkway leading from the baggage claim area to the parking garage.”




                                                  –6–
       Davenport contends that the City “is attempting to dissect the Love Field Airport

facilities,” and that he “provided overwhelming evidence to support his allegations that he paid

for the use of the City’s airport facilities.” He contends that his “use of the City’s interrelated

facilities, including the parking garage, the walkway inside the terminal, the secured portion of

the terminal, the unsecured portion of the terminal, the baggage claim area, was necessary to

accomplish his travel.” And he cites our opinion in City of Plano v. Homoky, 294 S.W.3d 809,

816 (Tex. App.—Dallas 2009, no pet.), to support his argument that the City is wrongly

attempting to “dissect” its premises. We disagree that Homoky controls our analysis.

       In that case, Homoky had been playing golf at a city-owned golf course and tripped and

fell as she walked through the clubhouse. Id. at 812. She sued the city under the Tort Claims Act

asserting liability based on the city’s performance of a proprietary function or, alternatively on a

premise defect. Id. The city argued that the golf course was a governmental function, not a

proprietary function. Id. The trial court denied the city’s plea to the jurisdiction and the city

appealed the denial. Id. On appeal, the city argued that the clubhouse was part of its operation of

the golf course, which was a governmental function. Id. at 814. In contrast, Homoky contended

that although the golf course itself might be a governmental function, the clubhouse was a

proprietary function. Id. at 815. We said that “[t]he dichotomy of governmental and proprietary

functions proposed by Homoky . . . impermissibly dissects the City’s operation.” Id. In other

words, we concluded that the premises—the golf course and clubhouse—could not be

“dissected” into both governmental and proprietary functions.

       Here, Davenport does not argue that the City is attempting to “dissect” the airport

premises into both governmental and proprietary functions, but that the City is attempting to

“dissect” the premises (i.e., by terminal and parking garage) in its argument that he did not raise

a material issue of fact about whether he paid for use of the area where he fell.

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       The undisputed evidence was that people could be in this part of the airport even if they

had not paid to park or purchased an airline ticket. But, under Davenport’s analysis, the City

would owe a lesser duty to people in the area where Davenport fell if they had not purchased an

airline ticket or had not paid to park in the airport parking garage. We see “no rational basis,”

however, for distinguishing between people in this part of the airport on the basis of whether

they purchased an airline ticket, paid to park their car in the airport parking garage, or arrived at

the airport by cab or other means. See Garcia, 817 S.W.2d at 743.

       We conclude that Davenport’s payment to park his car in the airport parking garage was

not a fee he paid specifically for entry onto and use of the terminal in the area where he fell.

Churchman, 1996 WL 544250, at *2–3; see Mitchell, 855 S.W.2d at 747. We further conclude

that Davenport’s purchase of an airline ticket was not a fee he paid specifically for entry onto

and use of the terminal in the area where he fell. See Mitchell, 855 S.W.2d at 747; see also

Churchman, 1996 WL 544250, at *2–3.

                                           Paying PFC

       Davenport also argued below that he paid for use of the premises because the City

collects a PFC “up to $4.50 for every boarded passenger at commercial airports controlled by

public agencies.” He offered evidence that the City “‘ordained’ PFCs at Love Field Airport”

four months before he fell in 2009 and that the fees collected were to be spent on “projects at the

Love Field Airport.” In response, the City argued that payment of a PFC is not payment for use

of the premises and that Davenport presented no evidence that he actually paid a PFC. The City

also presented affidavit testimony from Kenneth Gwyn, the Assistant Director of Aviation, who

stated that the walkway area where Davenport fell was completed several years before

Davenport fell and that no PFCs were used for that area. Davenport did not offer any evidence

controverting Gwyn’s testimony or that he paid a PFC. As a result, Davenport did not raise a

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material issue of fact about whether a PFC, if he paid one, was paid for use of the premises

where he fell.

       In summary, we conclude that Davenport was a licensee at the airport.

                      ACTUAL KNOWLEDGE OF DANGEROUS CONDITION

       As a licensee, and to show the City waived immunity, Davenport had to show that the

City had actual knowledge of the spill.       “Actual knowledge requires knowledge that the

dangerous condition existed at the time of the accident, as opposed to constructive knowledge[.]”

City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008) (per curiam).

       In its plea to the jurisdiction, the City challenged Davenport’s ability to plead and prove

that the City had actual knowledge of the spill. The City produced evidence showing that neither

the eyewitness nor anyone else reported the spill and that the eyewitness did not see a custodian

in the area at any time. Davenport did not produce any evidence controverting the City’s

evidence and, in fact, agreed during oral argument that the City did not have actual knowledge

that the substance was on the floor when he fell. Without a showing that the City actually knew

that the substance was on the floor, Davenport did not establish a waiver of governmental

immunity.

                                          CONCLUSION

       We conclude that the trial court erred by denying the City’s plea to the jurisdiction. We

reverse the order denying the City’s plea to the jurisdiction and render judgment granting the

plea to the jurisdiction and dismissing Davenport’s lawsuit.



                                                     /Elizabeth Lang-Miers/
                                                     ELIZABETH LANG-MIERS
                                                     JUSTICE

130039F.P05

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                                         S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

CITY OF DALLAS, Appellant                             On Appeal from the 192nd Judicial District
                                                      Court, Dallas County, Texas
No. 05-13-00039-CV          V.                        Trial Court Cause No. DC-11-09411-K.
                                                      Opinion delivered by Justice Lang-Miers,
THOMAS A. DAVENPORT, Appellee                         Justices O’Neill and Evans participating.

        In accordance with this Court’s opinion of this date, the order of the trial court is
REVERSED and judgment is RENDERED granting appellant City of Dallas’s plea to the
jurisdiction and dismissing appellee Thomas A. Davenport’s lawsuit.

       It is ORDERED that appellant City of Dallas recover its costs of this appeal from
appellee Thomas A. Davenport.


Judgment entered this 16th day of November, 2013.




                                                    /Elizabeth Lang-Miers/
                                                    ELIZABETH LANG-MIERS
                                                    JUSTICE




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