Fort Worth Court says under premise defect claim plaintiff paid for use of the property even though she was using public sidewalk

The City of Fort Worth, Texas v. Dianne Posey, 02-19-00351-CV, (Tex. App – Fort Worth, Jan. 16, 2020)

This is a premise liability/Texas Tort Claims Act (TTCA) case where the Fort Worth Court of Appeals held a fact question exists as to Posey’s payment for use of the premises so the plea to the jurisdiction was properly denied.

Posey attended a Christmas gift market put on by the Junior League of Fort Worth at the Will Rogers Memorial Center (“WRMC”). Posey asserts she paid for entry to the  Coliseum. The City asserts Posey purchased the entry ticket to enter the gift market from the Junior League and not the City.  After the market event, Posey walked down the public sidewalk to return to her car and tripped over an unknown metal object located in the concrete sidewalk. Posey fell and suffered injuries. Under the Texas Tort Claims Act, the City owes Posey a duty “that a private person owes to a licensee on private property, unless the claimant pays for use of the premises.” Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). If Posey paid for the use of the premises, she is an invitee; if not, she is a mere licensee.  The City filed a plea to the jurisdiction based on lack of actual knowledge required of a licensee. The plea was denied and the City appealed.

If Posey was a licensee, she must show that the City had actual knowledge of the unreasonable risk of harm created by the obstruction. If she was an invitee, she need only show that the City should have known of the risk—i.e., constructive knowledge. Posey asserts she paid a fee to park at the coliseum, and it is undisputed that the parking fee went directly to the City. Second, Posey offered evidence that she paid a $12 fee to enter Junior League’s gift fair, and Junior League, in turn, paid the City to rent the premises. However, the City asserts Posey fell on a public sidewalk for which she did not have to make any payment. One line of cases would agree with the City that the standard should be “but for” the payment, the claimant would not have access to the area. However, because of the text of the TTCA, the court held Posey “paid for the use of the premises” and the fact others could access the same area without paying is immaterial for statutory construction principles. Further, the statute does not say that the claimant must pay for exclusive or nonpublic use of the premises. Posey introduced multiple forms of evidence—including a contract and testimony from the City’s own representative—showing that the payments also endowed her with the express right to use the walkway to travel between the parking lot and the gift fair. As a result, a fact question exists as to whether Posey is considered an invitee or licensee. The plea was properly denied.

If you would like to read this opinion click here. Affirmed. Panel consists of Justices Birdwell, Bassel, and Wallach. Opinion by Justice Birdwell. Docket page with attorney information found here.