Roger Bufler and Sandy Bufler v. Texas Department of Transportation ( 2015 )

ACCEPTED
03-14-00383-CV
3729717
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/12/2015 11:53:45 AM
JEFFREY D. KYLE
CLERK
NO. 03-14-00383 -CV
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS 1/12/2015 11:53:45 AM
AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
ROGER BUFLER AND SANDY BUFLER,
Appellants,
v.
TEXAS DEPARTMENT-OF TRANSPORTATION
Appellee.
On Appeal from the 51st District Court
Of Coke County, Texas; Cause No. CV1204444
BRIEF OF APPELLEE, THE TEXAS DEPARTMENT OF
TRANSPORTATION
KEN PAXTON MICHAEL RATLIFF
Attorney General of Texas Assistant Attorney General
Transportation Division
CHARLES E. ROY P. 0. Box 12548
First Assistant Attorney General Austin, Texas 78711-2548
Telephone: (512) 463-2004
DAVIDC.MATTAX Fax Number: (512) 472-3855
Deputy Attorney General for michael.ratliff@texasattorneygeneral.gov
Defense Litigation State Bar No. 16564300
RANDALL K. HILL ATTORNEYS FOR APPELLEE
Assistant Attorney General TEXAS DEPARTMENT OF
Chief, Transportation Division TRANSPORTATION
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Parties
Roger and Sandy Butler Plaintiffs/Appellants
Texas Department of Transportation Defendant/Appellee
Counsel
Trey L. Dolezal Trial and Appellate Counsel for Roger
Kasling, Hemphill, Dolezal & and Sandy Butler
Atwell, L.L.P
301 Congress Ave., Suite 300
Austin, TX 78701
Alan Grundy Trial Counsel for Texas Department of
Assistant Attorney General Transportation
Transportation Division
P. 0. Box 12548
Austin, Texas 78711-2548
Michael Ratliff Appellate Counsel for Texas Department
Assistant Attorney General of Transportation
Transportation Division
P. 0. Box 12548
Austin, Texas 78711-2548
11
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES .................................................................................... iv
STATEMENT OF Tlffi CASE ................................................................................ vi
ISSUES PRESENTED ............................................................................................ vii
STATEMENT OF FACTS ........................................................................................ 2
SUMMARY OF ARGUMENT ................................................................................. 2
ARGUMENT AND AUTHORITIES ....................................................................... 3
PRAYER ................................................................................................................. 14
CERTIFICATE OF COMPLIANCE ...................................................................... 16
CERTIFICATE OF SERVICE ................................................................................ 16
111
INDEX OF AUTHORITIES
Cases Page
Brownsville Navigation Dist. v. Izaguirre,
829 S.W.2d 159 (Tex. 1992) ...................................................................... 8, 9
City of Corsicana v. Stewart,
249 S.W.3d 412 (Tex. 2008) (per curiam) ................................. 11, 12, 13, 14
City ofDallas v. Reed,
258 S.W.3d 620 (Tex. 2008) (per curiam) .................................................... 13
City ofDallas v. Thompson,
210 S.W.3d 601 (Tex. 2006) (per curiam) .................................................... 13
Gen. Servs. Comm 'n v. Little-Tex Insulation Co.,
39 S.W.3d 591 (Tex. 2001) ............................................................................. 4
Johnson Cnty Sheriffs Posse, Inc. v. Endsley,
926 S.W.2d 284 (Tex.1996) ........................................................................ 8, 9
Maxwell v. Tex. Dep 't ofTransp.,
880 S.W.2d 461 (Tex.App.-Austin 1994, writ denied) ............................... 7
Mayhew v. Town ofSunnyvale, .
964 S.W.2d 922 (Tex. 1998) ........................................................................... 5
M 0. Dental Lab v. Rape,
139 S.W.3d 671 (Tex. 2004) ....................................................................... 8, 9
Price Constr., Inc. v. Castillo,
147 S.W.3d 431 (Tex. App.-San Antonio 2004, pet. denied) ................... 12
Reyes v. City ofLaredo,
335 S.W.3d 605 (Tex. 2010) ........................................................................ 13
Scott & White Memorial Hospital v. Fair,
310 S.W.3d 411 (Tex. 2010) ..................................................................... 9,10
lV
State v. Rodriquez,
985 S.W.2d 83 (Tex. 1999) (per-curiam) ......................................................... 7
State v. Tennison,
509 S.W.2d 560 (Tex. 1974) ......................................................................... 11
Tex. Dep 't ofTransp. v. Jones,
8 S.W.3d 636 (Tex. 1999) (per curiam) ...................................................... 3, 5
Tex. Dep 't ofTransp. v. Martinez,
No 04-04000867-CV, 2006 WL 1406571
(Tex. App.-San Antonio May 24, 2006, pet. denied, mem.op) ........... 10, 11
Tex. Dep 't ofParks & Wildlife v. Miranda,
133 S.W.3d 217(Tex. 2004) ..................................................................... 3, 4, 5
Tex. Dep 't ofTransp. v. York,
284 S.W.3d 844 (Tex. 2009) (per curiam) .................................................. 5, 6
Uni. of Tex. at Austin v. Hayes,
327 S.W.3d 113 (Tex. 2010) ......................................................................... 13
Univ. ofTex.-Pan Am. v. Aguilar,
251 S.W.3d 511 (Tex. 2008) (per curiam) .................................................. 13
Wichita Falls State Hasp. v. Taylor,
106 S.W.3d 692 (Tex. 2003) .......................................................................... 4
Statutes
Tex. Civ. Prac. & Rem. Code§ 101 ...................................................................... .4, 5
Tex. Civ. Prac. & Rem. Code§ 101.021 ................................................................... 5
Tex. Civ. Prac. & Rem. Code§ 101.022 .................................................................. 5
Tex. Civ. Prac. & Rem. Code§ 101.056.:................................................................. 7
v
STATEMENT OF THE CASE
Nature ofthe Case: This is a suit for personal injury damages brought under the
Texas Tort Claims Act. Plaintiffs allege that factual issues
preclude summary disposition that a sidewalk wet from rain
is not unreasonably dangerous as a matter of law. Plaintiffs
further allege that factual issues preclude summary
disposition that TxDOT did not have actual notice of an
allegedly dangerous condition.
Trial Court: The Honorable Barbara Walther, Judge of the 51st Judicial
District Court, Coke County, Texas.
Trial Court Disposition: The trial court granted the Texas Department of
Transportation's Plea to the Jurisdiction and No-Evidence
Motion for Summary Judgment. CR 138.
Vl
ISSUE PRESENTED
I. Under the Texas Tort Claims Act, does a wet sidewalk constitute an
unreasonably dangerous condition and did the State have the requisite actual
knowledge of the allegedly dangerous condition, thereby waiving its sovereign
immunity?
vii
NO. 03-14-00383
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS
AUSTIN, TEXAS
ROGER BUFLER AND SANDY BUFLER,
Appellants,
v.
TEXAS DEPARTMENT OF TRANSPORTATION
Appellee.
On Appeal from the 51st District Court
Of Coke County, Texas; Cause No. CV1204444
BRIEF OF APPELLEE, THE TEXAS DEPARTMENT OF
TRANSPORTATION
TO THE HONORABLE COURT OF APPEALS:
The Texas Department of Transportation (TxDOT) submits this Appellee's
Brief requesting that the claims of Appellants, Roger and Sandy Bufler, (Buflers) be
dismissed for want of jurisdiction. Buflers' claims should be dismissed because a
wet sidewalk constructed of varying surfaces does not present an unreasonably
dangerous condition as a matter of law. Further, TxDOT did not have actual
knowledge of an allegedly dangerous condition presented by a wet varied surface
sidewalk. As two essential elements of a premises defect claim are absent, there is
no waiver of sovereign immunity. Accordingly, this court lacks subject matter
jurisdiction.
STATEMENT OF FACTS
Roger and Sandy Butler sued TxDOT for personal injuries sustained when
Mr. Butler slipped and fell on a wet side!'falk at a TxDOT rest area. CR 31. It was
drizzling at the time and the Plaintiff was in a hurry, desperate to get to the restroom.
CR 118. TxDOT brought a Plea to the Jurisdiction and No-Evidence.Motion for
Summary Judgment contending that a wet sidewalk is not an unreasonably
dangerous condition as a matter of law and further, that it had no actual notice of the
alleged unreasonably dangerous condition, essential elements of a premises cause of
action under the Texas Tort Claims Act. CR 41. The trial court granted TxDOT's
Plea and Motion CR 138. The Butlers' timely brought this appeal, contending that
factual issues preclude summary disposition. The trial court likewise granted a
similar motion for summary judgment filed by Apeck Construction, LLC, the
company charged under contract with TxDOT to maintain the rest area. The Butlers
appeal the granting of this summary judgment as well.
SUMMARY OF THE ARGUMENT
The Texas Department of Transportation has sovereign immunity unless
waived by the Tort Claims Act. The Tort Claims Act provides a limited waiver of
immunity under certain conditions, one of which includes unreasonably dangerous
2
premises conditions of which the governmental unit has actual knowledge. The
sidewalk at a TxDOT rest area facility, wet from a drizzling rain, does not constitute
an unreasonably dangerous condition as a matter of law. Furthermore, there was no
evidence that TxDOT had actual notice that the sidewalk posed an unreasonable risk
ofharm. Accordingly, there is no waiver of sovereign immunity and thus no subject
matter jurisdiction of this cause.
ARGUMENT AND AUTHORITIES
A. Standard of review.
1. Plea to the jurisdiction.
A trial court must have subject matter jurisdiction to adjudicate the subject
matter of a cause of action. Tex. Dep 't ofParks & Wildlife v. Miranda, 133 S.W.3d
217, 225-28 (Tex. 2004). Whether a court has subject matter jurisdiction is a
question of law that is reviewed de novo. Id. at 226. Subject matter jurisdiction may
be challenged by a plea to the jurisdiction. Tex. Dep 't ofTransp. v. Jones, 8 S.W.3d
636, 638-39 (Tex. 1999) (per curiam).
If a plea to the jurisdiction challenges the pleadings, a court must determine if
the pleader has sufficiently alleged facts that affirmatively demonstrate the court's
jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. If the pleadings
affirmatively negate the existence of the court's jurisdiction, then a plea to the
3
jurisdiction may be granted without allowing plaintiffs an opportunity to amend.
Miranda, 133 S.W.3d at 227.
If a plea to the jurisdiction challenges the existence of jurisdictional facts, the
court must consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues. Miranda, 133 S.W.3d at 227. Where the
jurisdictional challenge implicates the merits of the plaintiffs cause of action, the
court must review the relevant evidence to see if a fact issue exists. !d. If the relevant
evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the
court must rule on the plea to the jurisdiction as a matter of law. Miranda, 133
S.W.3d at 228. Whether undisputed evidence of jurisdictional facts establishes the
trial court's jurisdiction is reviewed de novo by this Court. Miranda, 133 S.W.3d at
226.
2. Sovereign immunity.
Sovereign immunity protects the State, its agencies and officials, and political
subdivisions from suit, unless immunity from suit is waived. Gen. Servs. Comm 'n
v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex. 2001). Immunity from suit
may only be waived by legislative consent or constitutional amendment. Wichita
Falls State Hosp. v. Taylor, 106 S.W.3d 692, 695 (Tex. 2003). A limited waiver of
sovereign immunity was enacted with the Texas Tort Claims Act. TEX. Crv. PRAC.
4
& REM. CODE Chapter 101. Under the Act, a governmental unit is liable for injuries
"caused by a condition or use of ... real property" if the unit would be liable if it were
a private person. TEx. CIV. PRAc. & REM. CODE§ 101.021(2). Where immunity has
not been waived, the trial court lacks subject matter jurisdiction. Miranda, 133
S.W.3d at 225-26.
The burden is on the plaintiff to establish subject matter jurisdiction by
showing that immunity from suit has been waived. Jones, 8 S.W.3d at 638. Subject
matter jurisdiction is a question of law. Mayhew v. Town ofSunnyvale, 964 S.W.2d
922, 928 (Tex. 1998).
3. Licensee standard of care.
Different duties apply to a governmental entity depending on whether a
condition is a premises defect or a special defect. TEx. CIV. PRAC. & REM. CODE §
101.022(a); Tex. Dep'tofTransp. v. York,.284 S.W.3d 844,846-47 (Tex. 2009) (per
curiam). If a claim arises from a premises defect, the government owes a licensee
duty of care. Id. Under a licensee standard, a plaintiff must prove that the
governmental unit had actual knowledge of a condition that created an unreasonable
risk of harm, and also that the licensee did not have actual knowledge of that same
condition. York, 284 S.W.3d at 847. If a claim involves a special defect, an invitee
standard applies. !d. Under an invitee standard, a plaintiff need only prove that the
5
governmental unit should have known of a condition that created an unreasonable
risk of harm. I d. Whether a condition is a special defect or a premises defect is a
question of law which is reviewed de novo. !d. In this case, the parties agree that
the wet sidewalk does not constitute a special defect. CR 34. Rather, the parties
dispute whether a wet sidewalk presents a fact issue of an unreasonably dangerous
condition and whether TxDOT had actual knowledge of the condition.
B. A wet sidewalk is not an unreasonably dangerous condition as a
matter of law.
Roger Bufler claims to have slipped and fallen on a sidewalk at a TxDOT rest
area. CR 32. He claims that it was drizZling at the time and admitted that he was
hurrying, desperate to get to the restroom. CR 118. Mr. Bufler contends that the
condition of the varying surfaces of the wet concrete created an unreasonably
dangerous condition. Appellants' Br. 4; CR 32. The "varying surfaces" were a
combination of textured and smooth concrete. CR 117. As the Plaintiff alleged in
his pleadings: "the sidewalk is composed of smooth concrete squares which
periodically have gravel-like stars placed on them. When Roger stepped on one of
the smooth concrete areas, his feet went completely out from under him." CR 32.
The sidewalk consists of poured concrete slabs interspersed with prefabricated
concrete slabs containing a star shaped graveled medallion. CR 57. A photo is
shown at CR 87. The sidewalk was constructed in the 2001-2002 timeframe as part
6
of the original construction of the rest area and was constructed as designed. CR 76.
Butlers' complaint about the "varying surfaces" invokes the design. discretion
immunity of section §101.056 ofthe Texas Tort Claims Act. "Design of any public
work, such as a roadway, is a discretionary function involving many policy decisions
and the governmental entity responsible may not be sued for such decisions." State
v. Rodriquez, 985 S.W.2d 83, 85 (Tex. 1999 per curiam); See also Maxwell v. Tex.
Dep't ofTransp., 880 S.W.2d 461,463 (Tex. App.-Austin 1994, writ denied).
As this Court stated in Maxwell, "It is not proper for a court to second-guess
the agency's decision that some other type of marker or safety device would have
been more appropriate ... or that the culvert was placed too close to the highway. To
do so would displace the authority of the agency responsible for making such
decisions." /d. at 464.
Just as this Court did not get into questioning highway design in Maxwell,
neither is it appropriate for courts to question sidewalk design in the present case.
There was no evidence to suggest that the sidewalk was not maintained as originally
designed. Indeed, nothing about the sidewalk has been changed since its original
construction. CR 79. Additionally, the same "varying surface" sidewalk design is
in use in other TxDOT rest area facilities. CR 61. Thus, the "varying surfaces" of
the sidewalk, constructed and maintained as designed, cannot form the basis for
7
waiver of sovereign immunity.
Nor does a wet "varying surface" sidewalk create an unreasonably dangerous
premises condition. In M 0. Dental Lab v. Rape, 139 S.W.3d 671, (Tex. 2004), the
Texas Supreme Court addressed whether a condition occurring as the result of
natural conditions constituted a premises defect---that is a condition posing an
"unreasonable" risk of harm:
To prevail in a premises liability case, an invitee must plead and prove,
among other elements, that a condition on the premises posed an
unreasonable risk of harm to the invitee. We held in both Brownsville
Navigation District and Johnson County that ordinary mud or dirt in its
natural state can and often does form a condition posing a risk of harm,
but not an "unreasonable" risk of harm. We further observed in Johnson
County that holding a landowner liable for "[t]he natural state of dirt"
would cause the landowner to "be an insurer against all injury to a
tenant's lessees." Although the court of appeals correctly pointed out
that neither Brownsville Navigation District nor Johnson County
specifically involved the accumulation of mud on a man-made surface,
we find this distinction immaterial. Ordinary mud that accumulates
naturally on an outdoor concrete slab without the assistance or
involvement of unnatural contact is, in normal circumstances, nothing
more than dirt in its natural state and, therefore, is not a condition
posing an unreasonable risk of harm.
!d. at 675-676.
In the case at bar, the condition is even less dangerous than mud on a
concrete slab. The condition Butlers' complain of is wet concrete from pain without
any other foreign substance. CR 118 .. As the Supreme Court in M 0. Dental
elaborated:
8
Holding a landowner accountable for naturally accumulating mud that
remains in its natural state would be a heavy burden because rain is
beyond the control of landowners. Most invitees in Texas will
encounter natural conditions involving ordinary mud regularly, and
accidents involving naturally accumulating mud and dirt are bound to
happen, regardless of the precautions taken by landowners. Generally,
invitees like Rape are at least as aware as landowners of the existence
of visible mud that has accumulated naturally outdoors and will often
be in a better position to take immediate precautions against injury.
Finally, following the rationale of Johnson County,_ to hold otherwise
would make the landowner strictly liable for injuries resulting from
ordinary mud or dirt in its natural state. The ordinary mud found on the
concrete slab outside of the M.O. ·Dental Lab accumulated due to rain
and remained in its natural state; thus, as a matter of law, it was not a
condition that posed an unreasonable risk of harm to Rape necessary to
sustain her premises liability action.
Id at 676 (emphasis added).
The Johnson County case, referred to by the Supreme Court, is Johnson
County Sheriffs Posse, Inc. v. Endsley,926 S.W.2d 284 (Tex.1996). Brownsville
Navigation District is a reference to Brownsville Navigation District v. Izaguirre,
829 S.W.2d 159 (Texas, 1992). Both cases support the principle that a naturally
occurring condition may pose a risk of harm, but not unreasonably so, and therefore
no duty arises on the part of the premises ·owner to adequately warn of the condition
or make it reasonably safe.
The Texas Supreme Court expanded on this principle in Scott and White
Memorial Hospital v. Fair, 310 S.W.3d 411 (Tex. 2010), holding that "naturally
occurring ice that accumulates without the assistance or involvement of unnatural
9
contact is not an unreasonably dangerous condition sufficient to support a premises
liability claim." /d. at 414. The Court acknowledged the relative irregularity of icy
conditions in Texas and stated: "requiring premises owners to guard against wintry
conditions would inflict a heavy burden because of the limited resources landowners
likely have on hand to combat occasional ice accumulations." /d. Further, "the
plaintiff is in a much better position to prevent injuries from ice or snow because the
plaintiff can take precautions at the very moment the conditions are encountered."
Id
If ice in its naturally occurring state is not unreasonably dangerous as a matter
of law, then certainly naturally occurring rain is not unreasonably dangerous as a
matter of law either. The steps the plaintiff asked Scott and White Hospital to take
to melt the ice would reduce the premises condition to the wet sidewalk condition
complained of in this case. And although rain has been rather irregular in Texas of
late also, if requiring premises owners to guard against wintry conditions would
inflict a heavy burden, imagine the burden to protect premises from rain. In Texas
Department of Transportation v. Martinez, No. 04-04-00867-CV, 2006 WL
1406571 (Tex. App.-San Antonio May 24, 2006, pet. denied) (mem.op.) a case
involving a rain-slick highway, the Court ruled that "the evidence that the road was
10
'slippery' may describe a condition posing a risk of harm, but it does not by itself
provide evidence of an 'unreasonable' risk ofharm. Id. at *5.
Clearly, any accumulation on a sidewalk poses a risk of harm, be it dirt, mud,
ice, or water, but just as clearly, such an accumulation does not pose an unreasonable
risk. Accordingly, as an essential element of a premises liability cause of action is
absent, there is no waiver of sovereign immunity and thus no subject matter
jurisdiction over this cause.
A. TxDOT did not have actual knowledge of the allegedly dangerous
condition.
Under the licensee standard of care applicable to premises defects, TxDOT
has a duty not to injure willfully, wantonly or through gross negligence. See State
v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974). An exception to this general rule
exists where the licensor has actual knowledge of a dangerous condition and the
licensee does not. /d. Under these circumstances, TxDOT would have a duty to
either warn the licensee or make the condition reasonably safe. See id. However, a
duty on the part of TxDOT to warn or make safe does not even arise unless TxDOT
has the requisite actual knowledge of a dangerous condition. See id.
Actual knowledge rather than constructive knowledge of the dangerous
condition is required. City of Corsicana v. Stewart, 249 S.W.3d 412, 413-14 & n.1
(Tex. 2008) (per curiam). "Actual knowledge is what a person actually knows as
11
distinguished from constructive or imputed knowledge; that is, what a person does
not actually know, but should know or have reason to know." Price Constr., Inc. v.
Castillo, 147 S.W.3d 431, 437 (Tex. App.-San Antonio 2004, pet. denied).
Where there is testimony that a governmental defendant was not aware of an
allegedly dangerous condition and where a plaintiff presents no direct evidence of a
governmental defendant's actual knowledge of such condition, a plaintiff fails to
raise a fact issue regarding the governmental defendant's knowledge. See, e.g.,
Stewart, 249 S.W.3d at 414-16. In Stewart, the City's Public Works Director
testified that the City first learned that a low-water crossing was flooded when the
Plaintiff called 911 for help, and there was no direct evidence that the City knew the
crossing was flooded prior to the accident. /d. at 414-15. Instead, the City knew
that the crossing tended to flood during heavy rains and that it was raining heavily
on the night of the accident. /d. at 414. The Supreme Court held that Plaintiffs had
failed to raise a fact issue regarding the City's knowledge of a dangerous condition.
See id. at 416. Similarly, in this case it is unquestioned that TxDOT certainly knew
that when it rains, sidewalks become wet. But there was no evidence presented that
TxDOT knew the "varying surfaces" of sidewalks when wet presented an
unreasonably dangerous condition. Indeed, the testimony demonstrated that the
TxDOT engineer in charge of 79 rest areas had never had any complaints relating to
12
the "varying surface" sidewalks. CR 61, 78.
Given the evidence that TxDOT was not aware of the alleged danger created
by a wet "varying surface" sidewalk, Plaintiffs failed to raise a fact issue regarding
TxDOT' s actual knowledge. Thus, TillOT' s plea to the jurisdiction and no
evidence summary judgment motion were properly granted. See Reyes v. City of
Laredo, 335 S.W.3d 605, 608-09 (Tex. 2010) (plea to the jurisdiction sustained
where governmental entity had no actual knowledge of flooded street); Uni. ofTex.
at Austin v. Hayes, 327 S.W.3d 113, 117-18 (Tex. 2010) (plea to the jurisdiction
sustained where governmental entity had no actual knowledge that chain across a
driveway presented a dangerous condition); City ofDallas v. Reed, 258 S.W.3d 620,
622-23 (Tex. 2008) (per curiam) (plea to the jurisdiction sustained where
governmental entity had no actual knowledge that a two-inch roadway drop-off
presented an unreasonable risk of harm); Univ. of Tex.-Pan Am. v. Aguilar, 251
S.W.3d 511, 513-14 (Tex. 2008) (per curiam) (plea to the jurisdiction sustained
where governmental entity had no actual knowledge that a water hose lying across
a sidewalk presented an unreasonable risk of harm); Stewart, 249 S.W.3d at 414-16
(plea to the jurisdiction sustained where governmental entity had no actual
knowledge of flooded low-water crossing); City ofDallas v. Thompson, 210 S.W.3d
601, 603-04 (Tex. 2006) (per curiam) (plea to the jurisdiction sustained where
13
-
governmental entity had no actual knowledge of improperly secured, metal,
expansion-joint cover plate protruding up from airport floor).
Instead of providing direct evidence that TxDOT had actual knowledge of the
alleged dangerous condition, Butlers' assert they have raised a fact issue regarding
actual knowledge of a dangerous condition because a contracted maintenance
employee told a TxDOT employee that the sidewalk was slippery when wet.
Appellants' Br. 8. This does no more than tell TxDOT what is universally known,
that any surface is slippery when wet. It does not inform TxDOT of an unreasonably
dangerous condition presented by a wet varied surface sidewalk. At most, such
allegations are merely an attempt to raise a fact issue on constructive knowledge,
and they clearly fail to raise a fact issue regarding the required element of actual
knowledge of a dangerous condition. See Stewart, 249 S.W.3d at 413-14 & n.l.
PRAYER
For all of the reasons stated herein, the Texas Department of Transportation
asks this Court to affirm the trial court's granting of it Plea to the Jurisdiction and
No-Evidence Motion for Summary Judgment and dismiss this case for lack of
subject matter jurisdiction. TxDOT also requests such further relief, general or
special, to which it may be justly entitled.
14
Respectfully Submitted,
KEN PAXTON
ATTORNEY GENERAL OF TEXAS
CHARLES E. ROY
FIRST ASSISTANT ATTORNEY GENERAL
DAVIDC.MATTAX
DEPUTY ATTORNEY GENERAL FOR
DEFENSE LITIGATION
RANDALL K. HILL
ASSISTANT ATTORNEY GENERAL
CHIEF, TRANSPORTATIONDIVISION
Is/ Michael Ratliff
MICHAEL RATLIFF
State Bar No.16564300
Assistant Attorneys General
P. 0. Box 12548
Austin, Texas 78711-2548
512/ 463-2004; FAX 512/472-3855
Email: michael.ratliff@texasattomeygeneral. gov
COUNSEL FOR APPELLEE,
TEXAS DEPARTMENTOF TRANSPORTATION
15
CERTIFICATE OF COMPLIANCE
I certify that this document contains 3192words as determined by the word
count of the computer program used to prepare this document, excluding the sections
of the document listed in Texas Rule of Appellate Procedure 9.4(i)(l).
/S/ Michael Ratliff
MICHAEL RATLIFF
ASSISTANT ATTORNEY GENERAL
CERTIFICATE OF SERVICE
Icertify that on the /!~ay of J~uary 2015, a true and correct copy of the
foregoing BriefofAppellee, The Texas Department of Transportation has been sent
by via electronic mail and facsimile to the following counsel of record
Trey L. Dolezal
Kasling, Hemphill, Dolezal & Atwell, LLP.
301 Congress Avenue, Suite 300
Austin, Texas 78701
Attorney for Appellants,
Roger Bufler and Sandy Bufler
IS/Michael Ratliff
MICHAEL RATLIFF
Assistant Attorney General
16
ACCEPTED
03-14-00383-CV
3729717
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/12/2015 11:53:45 AM
JEFFREY D. KYLE
CLERK
January 12, 2015
Third Court of Appeals Via Electronic Fling
P.O. Box 12547
Austin, Texas 78711
Attention: Jeffrey D. Kyle
Re: No. 03-14-00383-CV; In the Court of Appeals for the Third District Court
of Texas, Austin, Texas; Roger Bufler and Sandy Bufler v. Texas Department
of Transportation.
Dear Mr. Kyle:
Please find enclosed for filing is the Brief of Appellee, The Texas Department
of Transportation in the above referenced cause.
If you should have any questions or concerns, please feel free to contact either
myself or AAG Michael Ratliff at (512) 463-2004.
Thank you for your assistance in this matter.
Sincerely,
/s/ Michael Ratliff
MICHAEL RATLIFF
Assistant Attorney General
michael.ratliff@texasattorneygeneral.gov
Transportation Division
Phone: (512) 463-2004
Fax: (512) 463-2004
Cc: Trey L. Dolezal Via Electronic Filing
Kasling & Atwell, LLP.
301 Congress Avenue, Suite 300
Austin, Texas 7870
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL:(512) 463-2100 WEB:
WWW.TEXASATTORNEYGENERAL.GOV
An Equal Employment Opportunity Employer