Plaintiff’s knowledge that falling in a hole would cause injury equates to knowledge of open and obvious dangerous condition says Houston Court of Appeals.

 

City of Deer Park v. Leonard James Hawkins, 14-13-00695-CV (Tex. App. – Houston [14th Dist.], March 11, 2014).

This is an interlocutory appeal from the denial of a plea to the jurisdiction in a premise defect case, which the 14th Court of Appeals reversed, dismissing Hawkins’ claims.

Hawkins drove to the City’s Trash Transfer Station to dispose of trash and debris.  While in an unloading slot, Hawkins lost his balance while standing on his trailer and fell into the open trash bin.  Hawkins sued under the Texas Tort Claims Act (“TTCA”) alleging a premise defect.  The City filed a plea to the jurisdiction noting it was unaware the bin posed a dangerous condition and Hawkins cannot sue for negligent implementation of a rule to keep citizens away from the debris hole. The trial court denied the plea and the City appealed.

Citing to Hawkins’ testimony that as he threw debris into the bin he could see it went at least 15 feet down and that if he fell, he would become injured (open and obvious danger) the Houston Court of Appeals determined Hawkins knew of the dangerous condition the unloading location posed. As a result, he could not establish a waiver under the TTCA. The court then held Hawkins did not properly allege the negligent implementation of a policy in his pleadings and did not amend. However, even if he had, allegedly negligent implementation of policy does not by itself waive immunity. Waiver of immunity must be demonstrated under some provision of the TTCA before a claim of negligent implementation of policy can be pursued.  Since Hawkins knew of the dangerous condition, no theory of liability can attach. The denial of the plea was reversed and Hawkins’ claims dismissed.

If you would like to read this opinion click here. Panel: Justice Boyce,  Justice Christopher and Justice Brown.  Opinion by Justice Boyce. The attorney listed for the City is Steven D. Selbe.  The attorney listed for Hawkins is Stephen P. Carrigan.