Montgomery County v. David Lanoue ( 2016 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-16-00195-CV
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MONTGOMERY COUNTY, Appellant
V.
DAVID LANOUE, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 15-09-10156-CV
__________________________________________________________________
MEMORANDUM OPINION
This is an accelerated interlocutory appeal by Montgomery County from the
trial court’s order denying its plea to the jurisdiction in a personal injury suit
brought under the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §
51.014(a)(8) (West Supp. 2016). In three issues, Montgomery County argues that
the trial court lacked jurisdiction because appellee’s claim does not fit within the
waiver of governmental immunity contained in the Texas Tort Claims Act
(TTCA). We reverse the trial court’s order denying Montgomery County’s plea to
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the jurisdiction and render judgment dismissing Lanoue’s claim for want of
jurisdiction.
BACKGROUND
Appellee David Lanoue sued Montgomery County for personal injuries he
allegedly sustained when he slipped and fell while walking in the Montgomery
County Courthouse. Lanoue asserted that the trial court had subject-matter
jurisdiction because his claims fit within the TTCA’s waiver of immunity for
certain personal injury claims. Lanoue pleaded that the accident occurred due to a
premises defect about which Montgomery County knew, and that Montgomery
County’s agents, servants, or employees “misused tangible property by placing a
warning sign on the floor which caused confusion about the safety and condition of
the floor.” According to Lanoue, the floor and the warning sign posed an
unreasonable risk of harm, and Montgomery County owed him a duty to exercise
ordinary care to warn him or to “make reasonably safe a known dangerous
condition” of which he was unaware, and not to injure him through “willful,
wanton, or grossly negligent conduct.” Lanoue maintained that Montgomery
County “breached its duty when it failed to give a proper warning, in allowing the
floor to have an improper coefficient of friction[,] and in applying an improper
floor coating, sealant[,] and/or wax.” According to Lanoue, Montgomery County’s
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acts and omissions constituted negligence and proximately caused his alleged
injuries and damages.
Montgomery County entered a general denial and pleaded the following: (1)
the affirmative defense of governmental immunity under the TTCA; (2) by placing
a wet floor sign where Lanoue slipped and fell, it met its obligation to warn; (3) by
orally warning Lanoue that the floor was slippery, it met its obligation to warn; (4)
Lanoue “assumed the risk of walking on a floor that he knew or should have
known was slippery[;]” (5) Lanoue contributed to or was partially or wholly
responsible for “the negligent acts that caused or resulted in the accident[;]” and
(6) Lanoue failed to make reasonable efforts to mitigate his damages. Concurrently
with the filing of its answer, Montgomery County filed a plea to the jurisdiction. In
its plea to the jurisdiction, Montgomery County asserted that governmental
immunity barred Lanoue’s action and deprived the trial court of subject matter
jurisdiction because the pleadings and uncontested facts established that
Montgomery County had fulfilled its duty to warn Lanoue. According to
Montgomery County, Lanoue’s confusion regarding whether the floor was slippery
due to the presence of water or wax is irrelevant because he had notice that the
floor was wet and slippery. Attached as an exhibit to Montgomery County’s plea to
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the jurisdiction was a still photograph of Lanoue falling next to the warning sign.
The warning sign stated that the floor was wet.
In his response to Montgomery County’s plea to the jurisdiction, Lanoue
argued that he had pleaded a cause of action for which immunity is waived, and he
asserted that genuine issues of material fact exist as to whether he had actual
knowledge of the condition and whether Montgomery County’s warning was
adequate. Specifically, Lanoue contended that he was unaware of the slippery floor
because “the warning sign merely warned him that the floor was wet –– not that it
was freshly coated in a concealed wax or sealant.” Lanoue maintained that the
warning sign created confusion because the floor appeared to be dry, and Lanoue
therefore “was both unaware that the floor was improperly waxed and was not
adequately warned of the floor’s condition.” The record also contains Lanoue’s
affidavit, in which he states that he saw the warning sign stating that the floor was
wet, but he examined the floor and determined that it appeared to be dry. Lanoue
averred that when he attempted to cross the floor, he “slipped on some sort of
slippery substance that was concealed but coating the floor.” In addition, Lanoue
averred that several Montgomery County employees told him that they knew the
floor was dangerous because they had applied wax, coating, or sealant to the floor,
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and that they were in the process of removing the wax from the other side of the
hallway.
MONTGOMERY COUNTY’S ISSUES
In three issues, Montgomery County argues that (1) a “wet floor” sign and
people mopping in the area provided Lanoue with actual knowledge that the floor
upon which he was about to walk was wet; (2) a “wet floor” sign placed a few
inches from the spot where Lanoue slipped was in sufficient proximity to the place
where Mr. Lanoue slipped to constitute an adequate warning as a matter of law;
and (3) Lanoue’s decision to disregard the warning sign because he did not
subjectively perceive the danger does not deprive Montgomery County of
governmental immunity under the TTCA. Because it is dispositive, we address
issue two first.
Governmental immunity protects governmental units of the State from suit.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). Unless
the governmental unit has consented to suit, a trial court lacks subject-matter
jurisdiction to consider a claim against it. Wichita Falls State Hosp. v. Taylor, 106
S.W.3d 692, 696 (Tex. 2003); see also Tex. Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 225-26 (Tex. 2004). Whether subject-matter jurisdiction exists is
a question of law, and we review the trial court’s ruling on a plea to the jurisdiction
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de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d
at 226, 228. The plaintiff must plead facts that affirmatively demonstrate that
governmental immunity has been waived and the trial court has subject-matter
jurisdiction. Holland, 221 S.W.3d at 642. When a plea to the jurisdiction
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties to determine if a fact issue exists. City of Waco v. Kirwan,
298 S.W.3d 618, 622 (Tex. 2009). We take as true all evidence favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts in the
nonmovant’s favor. Miranda, 133 S.W.3d at 228.
Section 101.021 of the TTCA provides that a governmental unit is liable for
“personal injury . . . caused by a condition or use of . . . real property if the
governmental unit would, were it a private person, be liable to the claimant
according to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2) (West
2011). “[I]f a claim arises from a premise defect, the governmental unit owes to the
claimant only the duty that a private person owes to a licensee on private property,
unless the claimant pays for the use of the premises.” Id. § 101.022(a) (West
2011). Premises owners have the duty not to injure licensees through willful,
wanton, or grossly negligent conduct, and to either “warn a licensee of, or to make
reasonably safe, a dangerous condition of which the owner is aware and the
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licensee is not.” State Dept. of Highways & Pub. Transp. v. Payne, 838 S.W.2d
235, 237 (Tex. 1992). A licensee must prove that he did not actually know of the
dangerous condition. Id.
Lanoue argues that the “wet floor” warning sign was inadequate because the
floor was actually dry, but was covered with a slippery wax, coating, or sealant.
“To be adequate, a warning must be more than a general instruction such as ‘be
careful’; the warning must notify of the particular condition.” Henkel v. Norman,
441 S.W.3d 249, 252 (Tex. 2014). “A warning of the specific material causing a
condition is not required, so long as the existence of the condition itself is
conveyed.” Id. A warning that a floor is wet is sufficient; that is, the warning need
not identify the specific substance that made the floor wet. Id. at 252-53 (citing
Brooks v. PRH Invs., Inc., 303 S.W.3d 920, 925 (Tex. App.—Texarkana 2010, no
pet.) and Bill’s Dollar Store, Inc. v. Bean, 77 S.W.3d 367, 370 (Tex. App.—
Houston [14th Dist.] 2002, pet. denied)).
Montgomery County had a duty to warn Lanoue of the dangerous condition.
See Payne, 838 S.W.2d at 237. We conclude that the “wet floor” sign inches from
the location where Lanoue fell was adequate as a matter of law to warn Lanoue
that the floor was slippery. See Henkel, 441 S.W.3d at 252-53; Brooks, 303 S.W.3d
at 925; Bean, 77 S.W.3d at 370. Montgomery County was not required to inform
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Lanoue precisely what substance was on the floor, but simply had to warn him of
the dangerous condition. See Henkel, 441 S.W.3d at 252-53. The warning
identified and communicated the existence of the condition in a manner that a
reasonable person would perceive and understand. See id. at 253.
Because Montgomery County discharged its duty to warn Lanoue of the
dangerous condition, its governmental immunity was not waived. See Tex. Civ.
Prac. & Rem. Code Ann. §§ 101.021(2), 101.022(a). Therefore, the trial court
erred by denying Montgomery County’s plea to the jurisdiction. We reverse the
trial court’s order denying Montgomery County’s plea to the jurisdiction and
render judgment dismissing Lanoue’s claim for want of jurisdiction. 1
REVERSED AND RENDERED.
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STEVE McKEITHEN
Chief Justice
Submitted on October 27, 2016
Opinion Delivered December 29, 2016
Before McKeithen, C.J., Horton and Johnson, JJ.
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Because the County’s first and third issues would not result in greater relief,
we need not address them. See Tex. R. App. P. 47.1.
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