Michelle Hudson v. the University of Texas of the Permian Basin ( 2008 )

Opinion filed July 24, 2008

Opinion filed July 24, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-07-00021-CV

                                                     __________

MICHELLE HUDSON, Appellant

vs.

THE UNIVERSITY OF TEXAS OF THE PERMIAN BASIN, Appellee

On Appeal from the 70th District Court

 Ector County, Texas

Trial Court Cause No. A119,122

                                              M E M O R A N D U M   O P I N I O N

The trial court granted summary judgment for the University of Texas of the Permian Basin in this suit for personal injuries.  We affirm that summary judgment.

Michelle Hudson sued UTPB after she fell down some stairs in one of UTPB=s buildings.  A detailed recitation of the facts of this case is not necessary because of the decisive legal question upon which our decision is based.  Suffice it to say that Hudson maintained that a windstorm had caused a problem with the lighting in the stairwell and that the stairwell was dark at the time that she fell.  UTPB filed its answer and subsequently filed in one instrument a plea to the jurisdiction, a no-evidence motion for summary judgment, and a traditional motion for summary judgment. The trial court granted the traditional motion for summary judgment, but it denied the plea to the jurisdiction and the no-evidence motion for summary judgment.

Hudson brings one issue on appeal:  ADid the trial court err in granting summary judgment against Appellant Michelle Hudson in light of the numerous fact issues surrounding Appellee=s knowledge of its unreasonably dangerous stairwell?@

It is not disputed that UTPB is a governmental unit.  It is further not disputed that, as a governmental unit, UTPB enjoys governmental immunity from this lawsuit unless that immunity has been waived in the Texas Tort Claims Act.  Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (Vernon 2005 & Supp. 2007).

Section 101.021 of the Tort Claims Act provides in relevant part:

A governmental unit in the state is liable for:

(2) personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

Insofar as this case is concerned, UTPB owed Hudson the duty that a private person would owe to a licensee on private property.  Section 101.022.  A private landowner owes a licensee the duty not to injure him by willful, wanton, or gross negligence.  State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). However, when the licensor has knowledge of a dangerous condition and the licensee does not, the licensor owes a duty to use ordinary care to either warn the licensee or to make the condition reasonably safe.  State Dep=t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).  A claimant must show that the licensor had actual knowledge of the dangerous condition.  City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006).  The elements of such a claim are:  (1) a condition of the premises created an unreasonable risk of harm to the licensee, (2) the owner actually knew of the condition, (3) the licensee did not actually know of the condition, (4) the owner failed to exercise ordinary care to protect the licensee from danger, and (5) the owner=s failure was a proximate cause of injury to the licensee.  Payne, 838 S.W.2d at 237.

When the trial court entered summary judgment in this case, it did not state its reasons for granting it; therefore, the judgment will be upheld if any of the grounds in the motion have merit.  The reviewing court must affirm summary judgment if any of the summary judgment grounds are meritorious.  Tex. Workers= Comp. Comm=n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004).

In its motion for summary judgment, UTPB alleged that as a matter of law the condition of the premises did not create an unreasonably dangerous condition, that Hudson knew about the alleged inadequate lighting, and that it did not have actual knowledge of the alleged inadequate lighting.  UTPB provided summary judgment evidence on the grounds that it alleged.

Even if we were to agree with Hudson on her complaint regarding actual knowledge on the part of UTPB, she could not prevail on this appeal.  Hudson=s sole attack on appeal is that the trial court erred when it granted the summary judgment because there was enough evidence to raise an issue of material fact regarding UTPB=s actual knowledge that there was a condition of the premises that created an unreasonable risk of harm to her.  No complaint is made concerning UTPB=s allegations and the summary judgment proof that as a matter of law the premises did not create an unreasonably dangerous condition or that Hudson knew about the alleged insufficient lighting.  The trial court could have found that there was no issue of material fact as to those additional elements.  However, Hudson has waived any complaint as to the other elements of her cause of action by failing to include such errors in this appeal.  Therefore, even if the trial court did err on the issue of Hudson=s knowledge of the condition of the premises, there would be no harm.  See Tex. R. App. P. 44.1(a)(1).

Because Hudson=s failure to raise issues regarding the unreasonably dangerous condition of the premises and her failure to raise issues regarding her knowledge of the condition are dispositive of this appeal, we need not discuss her remaining arguments. Hudson=s sole issue is overruled.

We affirm the judgment of the trial court.

JIM R. WRIGHT

July 24, 2008                                                                           CHIEF JUSTICE

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.