Paying for train ticket is not the same as paying for use of train station under TTCA premise defect claim says 5th Court of Appeals

Special guest author Laura Mueller, City Attorney for Dripping Springs

City of Dallas v. Kennedy, No. 05-19-01299-CV (Tex. App.—Dallas June 13, 2020) (mem. op.)

This is a slip and fall/Texas Tort Claims Act (“TTCA”) case where the Dallas Court of Appeals reversed and rendered on the trial court’s denial of the City’s plea to the jurisdiction.

Vernell Kennedy injured herself when she fell at the City of Dallas’ Eddie Bernice Johnson’s Union Station by tripping on a broken area of tile.  She had traveled by Amtrak train from Kilgore to Dallas before using the Station and had purchased her train ticket in Longview.  She sued the City for failing to repair the floor or warning of the dangerous condition.  The City filed a plea to the jurisdiction claiming that it was protected by governmental immunity on the basis that Ms. Kennedy was a licensee, not an invitee because she did not pay to use the train station.  The trial court denied the city’s plea to the jurisdiction and the city appealed.

Under the Tort Claims Act, a city owes “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.  The duty to a licensee regarding premises defects is to warn of premises defects that the entity has actual knowledge of.  If someone pays for the use of property, the claimant becomes an invitee and the city’s duty to protect the individual from harm is elevated to warning the individual of dangers the person knew or should have known of.  The plaintiff in this case argued that she was an invitee because she had paid to ride the train to the station. The court of appeals disagreed.

“A fee must be paid specifically for entry onto and use of the premises” to change a plaintiff to an invitee.  City of Dallas v. Davenport, 418 S.W.3d 844, 848 (Tex. App.—Dallas 2013, no pet.)(holding that paying for a plane ticket did not make a person an invitee when injured on airport property); but see City of Fort Worth v. Posey, 593 S.W.3d 924, 929 (Tex. App.—Fort Worth 2020, no pet.).  Because Kennedy had purchased only a train ticket, and no payment was made to use the station itself, she was a licensee and the city only owed her a duty to warn her of dangers of which the city had actual knowledge.  Actual knowledge of the danger in this case was not established by Kennedy, because there were no reports on file at the city that the danger existed.

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