Notice of water in alcove is not actual notice under TTCA of water in adjoining hallways says Fort Worth Court of Appeals
Tarrant County, Texas v. Margielene Carter-Jones 02-17-00177-CV (Tex. App– Fort Worth, January 25, 2018)
This is a premise defect/Texas Tort Claims Act (“TTCA”) case where the Fort Worth Court of Appeals reversed the denial of a plea to the jurisdiction and rendered judgment for the County.
Marks, a courthouse worker, noticed a puddle of water in front of a restroom, which is in an alcove separate from the hallway. The puddle was confined, was approximately two feet in diameter and was not expanding. She reported it to maintenance. About an hour later, Carter-Jones slipped and fell on water located in the hallway. Carter-Jones sued the County under a premise defect theory. The County filed a plea to the jurisdiction, which was denied. The County appealed.
Merely referring to the TTCA in a petition does not establish a waiver of immunity. Courts must consider the factual allegations and/or evidence. The court first noted Carter-Jones did not plead and therefore did not establish personal property was involved for waiver purposes. Carter-Jones and the County disagree about what the known “dangerous condition” in this case actually was under a premise defect theory. Carter-Jones asserts the water on the alcove floor that later spread to the hallway created an unreasonable risk of harm. The County asserts it must have known of the water in the hallway which caused the fall for a waiver to exist. The County’s evidence established that it did not have actual knowledge of the water in the hallway. Its evidence asserts the facilities-management department would have responded to a water leak or hazard in the corrections-center hallway more quickly than water in front of a closed bathroom in an alcove with no traffic. “Actual knowledge” requires knowing that “the dangerous condition existed at the time of the accident, as opposed to constructive knowledge which can be established by facts or inferences that a dangerous condition could develop over time.” No evidence exists the County had actual knowledge water was in the hallway. While Carter-Jones conclusory pleadings state the County had actual knowledge, the evidence established otherwise, with no contravention. As a result, the plea should have been granted.
If you would like to read the opinion click here. Panel consists of Chief Justice Sudderth, Justice Gabriel Justice Kerr. Memorandum opinion by Justice Kerr. The attorney listed for Tarrant County is David K. Hudson. The attorney listed for Carter-Jones is, Jennifer Kashar.
