In=20 The
For=20 The
BRAZORIA =
COUNTY,=20
Appellant GLENN =
COLQUITT,=20
Appellee
On =
Appeal from the=20
412th District Court Brazoria =
County,=20
Texas Trial =
Court Cause=20
No. 36907
O P I N =
I O=20
N This interlocutory appeal =
arises from the=20
trial court's order denying Brazoria County's ("the County's") =
plea to the=20
jurisdiction filed in response to Glenn Colquitt's personal injury =
suit.=20
In its sole issue, the County argues that the trial court erred in =
denying=20
its plea because Colquitt failed to establish the jurisdictional =
facts=20
required to waive governmental immunity under the Texas Tort =
Claims Act=20
("TTCA"). We affirm. Glenn =
Colquitt, a=20
technician for Volt Telecom Group ("Volt"), was repairing =
telephone lines=20
in the second-floor equipment room of the Brazoria County Jail =
when he=20
fell through the floor and into the women's restroom located =
below. The=20
composition of the floor in the equipment room changes, at some =
point,=20
from concrete to ceiling tiles. When Colquitt stepped onto the =
section=20
consisting only of ceiling tiles, he fell through the ceiling =
because the=20
tiles were incapable of supporting the weight of his body. =
Colquitt=20
alleges that he suffered permanent injuries to his hands, fingers, =
back,=20
heal, foot, and knee as a result of the fall. Colquitt brought suit against =
the County=20
to recover damages, alleging negligence, gross negligence, =
premises=20
liability, and premises liability special defect. The County, =
arguing that=20
Colquitt failed to plead facts sufficient to establish a waiver of =
governmental immunity under the TTCA, filed a plea to dismiss the =
suit for=20
lack of jurisdiction. After hearing argument on the issue and =
allowing the=20
parties time for additional briefing, the trial court found that =
(1)=20
Colquitt did not plead any basis for a gross negligence claim, (2) =
a=20
special defect would not apply to the County, and (3) a fact issue =
could=20
exist as to whether or not the County exercised ordinary care to =
protect=20
Colquitt from danger. The trial court then denied the County's =
plea. The=20
evidence relevant to the trial court's subject matter jurisdiction =
is=20
disputed. The County argues that the tiled area had been sectioned =
off by=20
yellow caution tape in order to warn of the transition from =
concrete to=20
ceiling tile. To its plea, the County attached the affidavit of =
Charles=20
Wagner, a Chief Deputy for the Brazoria County Sheriff's =
Department.=20
Wagner stated that the yellow caution tape was placed around the =
tiled=20
area when the building was constructed in 1994 and that the tape =
had=20
remained in place since that time. According to Wagner, in the =
building's=20
12-year history, "no one [had] ever reported any injury from =
falling=20
through the ceiling at the jail, nor [had] there been any =
complaints=20
involving concerns that someone might fall through the ceiling." =
The=20
County also attached the affidavit of Brandon Griffin, an employee =
of the=20
Sheriff's Department, who stated that, when he escorted Colquitt =
to the=20
equipment room on the day of the incident, he observed the caution =
tape.=20
A series of four photographs, taken after the =
incident,=20
showed the placement of the caution tape around the tiled area and =
the=20
general condition of the equipment room. The County argued that =
the sum of=20
this evidence led to the conclusion that it did not have actual =
knowledge=20
of the allegedly dangerous condition, that it exercised ordinary =
care in=20
warning Colquitt of any potential danger, and that, therefore, =
Colquitt=20
could not establish the County's liability for premises defects =
under the=20
TTCA. In response, =
Colquitt=20
argued that the photographs submitted by the County did not =
accurately=20
reflect the condition of the equipment room on the day he was =
injured.=20
Specifically, Colquitt alleged by affidavit that there was "no =
sunlight or=20
artificial illumination in the subject work area" and stated that, =
it was=20
his belief, that the yellow caution tape was not present at the =
time he=20
fell, or, alternatively, if it was present, that he was unable to =
see it=20
as a result of the height at which it was placed and the poor =
lighting in=20
the area. In addition to his affidavit, Colquitt offered a =
"Supervisor's=20
Investigation Report" prepared by Jim Chapman, a senior manager at =
Volt=20
who was in the equipment room with Colquitt at the time he fell. =
In his=20
report, Chapman indicated that the equipment room "was dark, we =
had been=20
walking on all concrete floors, [the] drop ceiling was the same =
level as=20
the concrete floor. There was nothing indicating there was a drop =
ceiling=20
there. And [Colquitt] did not see it." Chapman further indicated =
that=20
"[h]ad there been proper lighting or a barrier of some sort, it =
would not=20
have happened." This evidence, according to Colquitt, was =
sufficient for=20
purposes of pleading a waiver of sovereign immunity under the =
TTCA.=20
Plea to the Jurisdiction A. Standard of =
Review In this case, =
we address=20
a plea to the jurisdiction in which disputed evidence implicates =
both the=20
subject-matter jurisdiction of the trial court and the merits of =
the case.=20
Whether a trial court has subject-matter jurisdiction is a =
question of law=20
that is reviewed de novo. See Tex. Dep't of Parks and =
Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); =
Tex. Dep't=20
of Family and Protective Servs. v. Atwood, 176 S.W.3d 522, =
527 (Tex.=20
App.--Houston [1st Dist.] 2004, pet. denied). Where the =
jurisdictional=20
challenge implicates the merits of the plaintiff's cause of action =
and=20
relevant evidence is submitted by the parties, the trial court =
reviews the=20
evidence to determine whether a fact issue exists. =
Miranda, 133=20
S.W.3d at 227. If the evidence creates a fact question regarding =
the=20
jurisdictional issue, the trial court cannot grant the plea to the =
jurisdiction, and the fact issue will be resolved by the =
fact-finder.=20
Id. at 227-28. The trial court rules on the plea to the=20
jurisdiction as a matter of law, however, if the relevant evidence =
is=20
undisputed or fails to raise a fact question on the jurisdictional =
issue.=20
Id. at 228. We take as true all evidence =
favorable to=20
the nonmovant and indulge every reasonable inference and resolve =
any=20
doubts in his favor. Id. B. Waiver of Immunity =
Under the=20
TTCA The issue here =
is=20
whether Colquitt's pleadings invoked the waiver of governmental =
immunity=20
under sections 101.021 and 101.022 of the TTCA. Tex. Civ. Prac. =
& Rem.=20
Code Ann. =A7=A7 101.021, 101.022 (Vernon 2005). Generally, the =
State, its=20
agencies, and its subdivisions enjoy sovereign immunity from tort=20
liability unless that immunity has been waived. Both parties in the instant =
appeal agree=20
that the injuries raised in Colquitt's pleadings were the result =
of an=20
alleged premise defect, and they have briefed the issue =
accordingly. With=20
respect to premise defects, the TTCA limits the governmental duty =
owed a=20
claimant to "the duty that a private person owes to a licensee on =
private=20
property." Tex. Civ. Prac. & Rem. Code Ann. =A7 101.022(a) =
(unless the=20
claimant pays for the use of the premises); see also State v.=20
Tennison, 509 S.W.2d 560, 562 (Tex. 1974); Atwood, =
176=20
S.W.3d at 532. This duty entails a responsibility not to injure =
the=20
licensee through willful, wanton, or grossly negligent conduct. =
State=20
Dep't of Highways & Public Transp. v. Payne, 838 S.W.2d =
235, 237=20
(Tex. 1992); Atwood, 176 S.W.3d at 532. It further =
entails a=20
responsibility to "use ordinary care to either warn the licensee =
of, or to=20
make reasonably safe, a dangerous condition of which the owner is =
aware=20
and the licensee is not." Payne, 838 S.W.2d at =
237.=20
Because the trial court found =
that=20
Colquitt had not pleaded any basis for a gross negligence claim =
and=20
because neither party complains of that finding on appeal, we need =
not=20
address whether Colquitt's injuries were the result of the =
County's=20
willful, wanton, or grossly negligent conduct. Rather, we turn our =
attention to the second application of the governmental duty owed =
and ask=20
whether the pleadings and evidence submitted here create a fact =
issue as=20
to whether the County breached its duty to exercise ordinary care =
to warn=20
of, or to make reasonably safe, the dangerous condition presented =
by the=20
ceiling tiles in the equipment room. To establish a breach of this =
duty, a=20
licensee must show that: (1) a condition of the premises created =
an=20
unreasonable risk of harm; (2) the owner actually knew of the =
condition;=20
(3) the licensee did not actually know of the condition; (4) the =
owner=20
failed to exercise ordinary care to protect the licensee from =
danger; and=20
(5) the owner's failure was the proximate cause of injury to the =
licensee.=20
Id. In this case, the elements =
attacked by=20
the County in its plea to the jurisdiction are those of (1) the =
County's=20
actual knowledge of the dangerous condition and (2) its alleged =
failure to=20
exercise ordinary care to protect Colquitt from that danger. The =
County=20
argues, under the authority of City of Houston v. Harris, =
192=20
S.W.3d 167 (Tex. App.--Houston [14th Dist.] 2006, no pet.), that =
actual=20
knowledge may be shown only where the premise owner has received =
reports=20
of prior injuries or reports of the potential danger presented by =
the=20
condition. In Harris, an injured zoo patron brought a =
premise=20
defect suit against the City of Houston under the TTCA after he =
partially=20
severed a finger on a metal elephant statue at the zoo. Id. =
at=20
169. The City filed a plea to the jurisdiction, arguing that the =
plaintiff=20
had failed to plead a claim under the TTCA. Id. The =
Fourteenth=20
Court of Appeals noted that, in the plea to the jurisdiction, "the =
City=20
introduced evidence that it had no knowledge of prior accidents or =
complaints involving the statue. In response, plaintiffs did not=20
controvert the City's evidence or otherwise demonstrate the =
existence=20
of a fact issue relating to the City's knowledge." Id. =
at=20
175 (emphasis added). The court dismissed the suit for lack of=20
jurisdiction because the plaintiff's failed to meet their burden =
to show=20
that there was a disputed question of material fact regarding the=20
jurisdictional issue of the City's knowledge. Id. at=20
175-76. The County's reliance on =
Harris=20
is misplaced. Similarly, the evidence =
pertaining to the=20
County's exercise of ordinary care to warn of the condition, or to =
make it=20
reasonably safe, creates an issue of fact. The placement of yellow =
caution=20
tape around the ceiling tiles is evidence that the County took =
some=20
precautionary steps to warn of the condition. This evidence, =
however, is=20
controverted by Colquitt's affidavit, stating that, it was his =
belief,=20
that the tape was not present at the time he fell, or, =
alternatively, if=20
it was present, that he was unable to see it as a result of the =
height at=20
which it was placed and the poor lighting in the area. Colquitt =
also=20
asserts that it would have been reasonable for the County to =
provide him=20
with an escort while he was working in the equipment room.=20
In light of these assertions, it cannot be said =
that the=20
evidence of the County's exercise of ordinary care fails to raise =
a fact=20
issue or is undisputed. In sum, Colquitt's pleadings =
and the=20
evidence submitted by the parties create questions of fact =
regarding the=20
County's knowledge and exercise of ordinary care in this case. =
Because=20
these questions of fact are pertinent to the jurisdictional issue, =
the=20
trial court did not err in denying the County's plea to the =
jurisdiction.=20
Accordingly, we affirm the =
order of the=20
trial court. George C. Hanks, Jr. Justice Panel consists of Justices =
Taft, Keyes,=20
and Hanks. 1. " " " " " " =A7=20
2. -- ' =