University established it did not have constructive knowledge of liquid on stairwell in premise defect suit

Board of Regents, Texas State University System, and Texas State University-San Marcos v. Stephanie Paige Steinbach, 03-14-00326-CV (Tex. App. – Austin, November 24, 2015)

This is an interlocutory appeal in a Texas Tort Claims Act (“TTCA”) slip and fall case were the Austin Court of Appeals reversed the denial of the University’s plea to the jurisdiction and dismissed the Plaintiff’s claims.

Steinbach was a student at Texas State University–San Marcos living in the on-campus dormitories. She was descending the stairs barefoot from the first floor to the basement to do laundry when she slipped on a “clear” and “dirty” liquid that appeared to be laundry detergent and fell, breaking bones in her ankle and leg. The fall occurred prior to the typical time the custodian would do his daily cleaning (midday on Mondays through Fridays). Steinbach sued asserting a premises defect claim and negligent design of the stairwell.  The University filed a plea to the jurisdiction, along with summary judgment motions, which were all denied. The University appealed.

Steinbach paid for the use of the property as part of her dorm fees so was owed the duty owed an invitee. The duty to an invitee requires an owner to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware. The threshold issue for Steinbach’s premises and special defect claims that are based on the liquid substance on the stairs is whether the University had constructive notice of the substance prior to Steinbach’s fall.  A premises owner will be charged with constructive notice if “it is more likely than not that the condition existed long enough to give the premises owner a reasonable opportunity to discover it.” The “time-notice rule” to impute constructive knowledge to a premises owner, however, requires some evidence of the length of time the unreasonably dangerous condition existed. Otherwise, constructive knowledge would be imputed the instant a dangerous condition is created, whether or not there was a reasonable opportunity to discover it. After examining the evidence, the court determined the University established it did not have constructive knowledge of the condition. The custodian cleaned the day before and nothing indicated how long the liquid was on the stairs prior to the fall. The premise/special defect claims were dismissed. Further, the University maintains immunity for the discretionary activity of designing stairways, the placement of safety features, design of the stairs steps and the choice of materials used in construction. But even if they did not, the evidence showed the stairway was constructed prior to 1970 and had not undergone any major upgrades. The TTCA does not apply to acts which occurred prior to 1970. As a result, claims asserting the use of improper materials in construction were dismissed.

If you would like to read this opinion click here. Panel: Chief Justice Rose, Justices Goodwin and Bourland.  Opinion by Justice Goodwin. The attorney for the University is listed as Ms. Nichelle A. Cobb.  The attorney listed for Steinbach is Mr. Mark E. Cusack.