No recasting of premise defect claims as general negligence claims; circumstantial evidence not enough to create fact issue on actual knowledge

The University of Texas at Austin v. John Sampson, 03-12-00265-CV (Tex. App. – Austin, August 8, 2014).

This is an interlocutory appeal from the denial of jurisdictional motions in a Texas Tort Claims Act (“TTCA”) case. The Austin Court of Appeals reversed the denial and dismissed Sampson’s claims.

Sampson, professor at UT Austin, tripped over an extension cord strung across a pedestrian walkway and sustained injuries.  He sued the University under the Texas Tort Claims Act. The University filed a plea to the jurisdiction, motion to dismiss, and motion for summary judgment accompanied by evidence. The University established through its evidence that it contracted with Austin World of Rentals (AWR) to assist with the setup for a “tailgate party.” AWR employees installed lights in the trees, while the University was responsible for getting power from an electrical outlet to the area.  The University presented evidence that none of its extension cords were in the area and it received no prior reports of extension cord problems.  Either way, it was not the University who ran the cord. Sampson presented evidence the University often provides cords for such third party events, but no evidence that directly tied a University employee to placing or controlling the cord. The trial court denied the jurisdictional motions and the University appealed.

The court first held that once a premise defect is identified, a plaintiff cannot rely or bring a general negligence claim, such as failing to tape down or secure the cord. To do otherwise would remove the heightened pleading standard of actual notice associated with the TTCA section on premise defects. The court then analyzed whether the condition constituted a special defect, but held the evidence established the walkway and cord were not adjacent to a roadway, but went across University grounds. To be a special defect under the TTCA, it must be related to a street or roadway and therefore the cord constituted a premise defect. Sampson did not present evidence to create a fact issue the University had actual knowledge the cord was there or posed an unreasonable risk of harm. The fact employees regularly walk the areas to double-check the lighting systems does not establish a fact issue on actual knowledge and is nothing more than “mere suspicion.” As a result, the University’s plea should have been granted.

Chief Justice Jones dissents asserting the evidence established University employees were intricately involved in the electrical work for the party. The circumstantial evidence, in his view, was sufficient to create a fact issue on whether it was a University employee who place the cord, and therefore had knowledge of its existence. He also stated there is no question in his mind that an electric line running unsecured over a walkway creates an unreasonable risk by default. [Comment: the fact Chief Justice Jones outlined what he thought constituted actual knowledge and a dangerous condition but the majority disagreed can be helpful to litigators to establish for other courts the level necessary to establish actual knowledge and dangerous condition.]

If you would like to read this opinion click here. Panel: Chief Justice Jones, Justice Rose, and Justice Goodwin. Majority Memorandum Opinion by Justice Goodwin. Dissent by Chief Justice Jones. The attorney for UT is Ms. Nichelle A. Cobb.  The attorneys listed for Sampson are Mr. Eugene W. Brees II, Ms. Michelle M. Cheng, Mr. William O. Whitehurst.