County of El Paso, Texas v. Janice Baker, 08-18-00012-CV (Tex. App. – El Paso, May 31, 2019)
This is an interlocutory appeal in a premise defect case where the El Paso Court of Appeals held the County was entitled to governmental immunity.
While entering an elevator in the El Paso County Courthouse, Baker claims the doors shut on her, causing bodily injury. She reported the injury that day. After Baker sued, the County filed a plea to the jurisdiction, which was denied. The County appealed.
Under a premise defect theory, a landowner owes a duty not to “injure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.” However, Baker’s petition asserts the County failed to inspect and failed to discover the malfunction in the doors. This is applicable to an invitee status, not a licensee status. Baker filed four amended pleadings and still was not able to properly plead the claims. Therefore, the court was not inclined to remand for a fifth opportunity. Under the licensee status, actual knowledge rather than constructive knowledge is required. The County’s affidavit noted the last time the elevator had been inspected, that no notice of the defect was reported prior to Baker’s incident and no report has reoccurred. Baker’s evidence of a newspaper article that a woman got stuck in the elevator a year and a half later is insufficient to show the County had actual knowledge that the doors were likely to close on Baker. Nor would the fact that the County knew that the elevators were “old” and should be replaced show the kind of knowledge required for a valid licensee-premises-liability claim. The plea should have been granted.
If you would like to read this opinion, click here. Panel consists of Chief Justice McClure, Justice Rodriguez and Justice Palafox. Opinion by Chief Justice McClure. The attorneys listed for the County are Jo Anne Bernal and John Untereker. The attorney listed for Baker is Milad Kaissar Farah.