Employee witnessing one fall in general location is not actual knowledge of a dangerous condition sufficient to attribute liability to second fall says Austin Court of Appeals
The University of Texas at Austin v. William A. Bellinghausen, Jr. 03-14-00749-CV (Tex. App. – Austin, February 3, 2016)
This is an interlocutory appeal in a premise defect case where the Austin Court of Appeals reversed the denial of a plea to the jurisdiction.
Bellinghausen entered the University of Texas at Austin (“UTA”) campus for a Boy Scout event when he tripped on a raised section of sidewalk while walking from the parking garage. A maintenance supervisor was listed in the police report as having told UTA police another pedestrian had fallen “right there” in the same general area but it was due to the person not watching where they were walking while texting. Bellinghausen sued alleging a premise defect. The UTA filed a plea to the jurisdiction which was denied.
The maintenance supervisor testified in his deposition that he did not see Bellinghausen fall or the reason. He did see another pedestrian fall, but not necessarily at the same protrusion. He explained that when he told the officer “right there” he meant at the same general location, not on the protrusion. He was not aware of the protrusion prior to Bellinghausen’s fall, did not investigate the prior pedestrian’s fall (since the pedestrian got up and kept walking) and did not report the first fall. He testified he did not think the sidewalk protrusion played a part in the first fall, which he believed was because of the pedestrian walking while texting. The issue for appeal was whether UTA had actual knowledge of a dangerous condition. UTA produced evidence no prior reports of any accidents or injuries at the location were filed and that a 2008 survey of campus sidewalks indicated that the sidewalk where Bellinghausen fell was in “good” condition and had a remaining service life of 13 to 20 years. The fact the maintenance supervisor, from 150 to 200 feet away, saw a pedestrian fall while looking at his cell phone does not support the inference he saw the uneven section from that distance or was made aware of a dangerous condition, particularly considered in the context of his testimony. At most, the police report would create “nothing more than mere suspicion” that the University, through the supervisor, had actual knowledge of the condition of the sidewalk, and it therefore would not create a fact issue. Further, knowledge that cracks exist in other areas of the campus does not equate to actual knowledge of a dangerous condition at the exact location of Bellinghausen’s fall. As a result, the plea should have been granted.
If you would like to read this opinion click here. Panel: Chief Justice Rose, Justice Goodwin and Justice Field. Memorandum Opinion by Justice Goodwin. The attorneys listed for UTA are Joseph D. Hughes and Jason Warner. The attorney listed for Bellinghausen is Robert L. Ranco.
