Temporary construction railing is “personal property” not a premise defect under Texas Tort Claims Act.

Harris County – Houston Sports Authority v Chilei, NO. 14-12-00380-CV (Tex. App. Houston [14 Dist.] April 25, 2012)

Chilei sued Harris County – Houston Sports Authority (“HSA”) for negligence under the Texas Tort Claims Act for injuries sustained while performing electrical work at a park owned by HSA. Chilei was calling to a fellow worker and leaning on a temporary safety railing which was only anchored with zip-ties when it gave way causing Chilei to fall twenty feet to the concrete below. HSA filed a plea to the jurisdiction arguing HSA did not have actual knowledge of the dangerous condition (premise defect standard) and Chilei did not establish he too did not have actual knowledge. Chilei argued he also brought a claim for the negligent use and condition of tangible personal property (zip-ties).  The trial court denied the plea and HSA appeals.

The Fourteenth Court of Appeals held the temporary nature of the railing and plastic zip-ties are personal property, not fixtures attached to real property.  Therefore the premise defect arguments are inapplicable.  HSA’s argument that the pleadings do not demonstrate HSA “used” the zip-ties was also rejected since the court pointed to pleading language of use and noted the trial court affidavit of HSA did not address whether HSA used the zip-ties or not.  Finally, the court noted that a plea to the jurisdiction cannot be used to challenge exemplary damages since the limitation cap concerns only immunity from liability, not immunity from suit.  Therefore the plea was properly denied in all aspects.

If you would like to read this opinion click here.