Knowledge of a hypothetical hazard is insufficient to waive immunity under the TTCA for premise defects says 1st Court of Appeals

The City of Houston v. Bobby Terry, 01-19-00197-CV (Tex. App. – Houston [1st Dist.], Jan. 23, 2020).

This is a Texas Tort Claim Act (TTCA) case where the First District Court of Appeals reversed the denial of the City’s plea to the jurisdiction and dismissed the case.

Terry was electrocuted while performing maintenance on a communication tower leased by the  City. Terry was employed by a contractor at the time, but he was accompanied by a City employee (Hunter) at the site. Before having Terry climb the tower to replace a lightbulb, Hunter was to remove the control box faceplate, which theoretically should cut the power.  However, when Terry touched the lightbulb which needed replacing 300 feet up the tower, he was shocked. Hunter testified that he did not know the source of the electricity. Hunter maintained that the power was off because (1) power immediately stops running to the tower when the control box’s faceplate is removed and (2) Terry’s injuries would have been far more severe had the power been on. However, evidence existed several capacitors were near the control box and could have retained a charge for a short while. Terry brought claims under the TTCA for injuries resulting from both the use of tangible personal property and for premise defects. The City filed a plea to the jurisdiction.  The trial court granted the plea as to the negligent use of personal property but denied it as to the premise defect.

The court held a claim for premises liability is distinct from a claim for general negligence. The Tort Claims Act’s premises liability provision imposes heightened requirements for liability, and they cannot be avoided by recasting a premises defect claim as one for general negligence. Under a premise defect theory, the City only owed a duty to warn of dangers it had actual knowledge existed. Failing to turn off the electricity does not fall under a premise defect theory, but is a general negligence theory. Premises liability instead concerns nonfeasance theories of liability based on the failure to take measures to make the property safe. Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the tower is immaterial to the premise defect analysis. Under a premise defect theory, Terry did not establish a waiver. It is undisputed that any residual electricity stored in the capacitors should have dissipated about a minute or two after the power was turned off.  Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb where he was electrocuted, Hunter’s awareness that these capacitors carried a short-term charge does not rise to the level of actual knowledge of a dangerous condition. At most, Hunter’s testimony about the tower’s capacitors raises an inference that he may have been aware of a hypothetical hazard. That is not enough. Assuming that the tower’s capacitors were the source of the electricity that injured Terry, any power they stored was present because that is how the capacitors operate. Hunter, however, did not know they posed a danger.  As a result, the plea should have been granted.

If you would like to read this opinion click here. Panel consists of Justice Lloyd, Justice Goodman, and Justice Landau.  Memorandum opinion by Justice Goodman. The docket page with attorney information can be found here.