the City of Houston v. Bobby Terry ( 2020 )

Opinion issued January 23, 2020
In The
Court of Appeals
For The
First District of Texas
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NO. 01-19-00197-CV
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CITY OF HOUSTON, Appellant
V.
BOBBY TERRY, Appellee
On Appeal from the 80th Judicial District
Harris County, Texas
Trial Court Case No. 2018-06593
MEMORANDUM OPINION
The City of Houston appeals from the trial court’s denial of its plea to the
jurisdiction. We reverse and render a judgment dismissing for lack of jurisdiction.
BACKGROUND
Bobby Terry was electrocuted while performing maintenance work on a
communication tower leased by the City. He sued the City under two theories of
liability. He asserted a negligence claim contending that the City had waived its
governmental immunity under the Tort Claims Act’s provision covering personal
injuries caused by the use of tangible personal property. See TEX. CIV. PRAC. & REM.
CODE § 101.021(2). He also asserted a premises defect claim contending that the
City had waived its governmental immunity under the Tort Claims Act’s premises
liability provision. See id. §§ 101.021(2), 101.022(a).
The City filed a plea to the jurisdiction contending that it had not waived its
governmental immunity. With respect to Terry’s negligence claim, the City asserted
that its lone employee at the accident site had not caused any injury through the use
of tangible personal property. As to Terry’s premises defect claim, the City asserted
that it had not waived its immunity because it did not have actual knowledge of the
dangerous condition before Terry was injured.
Both parties submitted evidence in support of their respective positions. In the
summary that follows, we view the evidence in the light most favorable to Terry,
indulging every reasonable inference raised and resolving any doubts in his favor.
Terry was an employee of an independent contractor hired by the City to
maintain communications towers. On the day of the accident, Terry was assigned to
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climb a tower that was about 300 feet tall to replace a lightbulb at the top. He was
accompanied to the site by an employee of the City, Onterrion Hunter, who was there
to unlock the gate to the premises, unlock the box housing the tower’s control panel,
and turn off the electricity that powered the tower. For Terry’s safety, the power
needed to be shut off before he could climb the tower and replace the lightbulb.
The control box is at the tower’s base. Removing the control box’s faceplate
turns off the power to the tower—or at least that is how the control box is designed
to work. There is a factual dispute as to who removed the faceplate that day—Terry
says it was Hunter and Hunter says it was one of Terry’s coworkers who was also at
the site—but it is undisputed that the faceplate was removed before Terry began his
ascent. Terry testified that he asked Hunter if the power had been turned off before
he began climbing and that Hunter told him it had.
It took Terry a half hour to an hour to climb up to the lightbulb. Once Terry
reached the top of the tower, he secured himself in place with a safety lanyard and
removed the housing encasing the lightbulb. When he grabbed the lightbulb itself,
he was electrocuted and passed out. After Terry regained consciousness, he climbed
back down the tower and subsequently was taken to the hospital in an ambulance.
After the accident, Hunter put the faceplate back on the control box. Once the
faceplate was in place, Hunter saw the other lights on the tower turn back on and
heard the humming of electricity as power returned to the tower.
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In his deposition, Terry testified that he was electrocuted because “the power
wasn’t turned off or it wasn’t turned off correctly.” Hunter testified that he did not
know the source of the electricity that shocked Terry. Hunter maintained, however,
that the power was off because (1) power immediately stops running to the tower
when the control box’s faceplate is removed and (2) Terry’s injuries would have
been far more severe had the power been on.
Hunter noted that there are capacitors in or near the control box and on the
tower, both of which may retain some residual voltage after the power is turned off.
He knew that the capacitors associated with the control box retained voltage only for
a short while. A manual concerning the control box indicates that this residual
voltage should dissipate after about one minute. Hunter stated that the power stored
in these capacitors would last from “seconds to maybe a couple of minutes.” He did
not know if the tower’s capacitors were like the ones in or near the box. He agreed
that it was possible that the tower’s capacitors might retain residual voltage for a
longer period of time, but he had no training as to them and did not know how long
they retained voltage.
The trial court granted the City’s jurisdictional plea as to Terry’s negligence
claim but denied the plea as to his premises defect claim. The City appeals from the
denial of its jurisdictional plea contending that it is immune from suit on the premises
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defect claim. Terry has not appealed from the trial court’s ruling that his negligence
claim is barred by governmental immunity.
DISCUSSION
Standard of Review
We review de novo a trial court’s ruling on a plea to the jurisdiction. City of
Houston v. Houston Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex. 2018).
When, as here, the plea challenges the existence of jurisdictional facts, we decide
whether the record raises a fact issue that must be resolved by the trier of fact. Klumb
v. Houston Mun. Emps. Pension Sys., 458 S.W.3d 1, 8 (Tex. 2015). In doing so, we
accept as true all evidence favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts in the nonmovant’s favor. Suarez v. City of Tex.
City, 465 S.W.3d 623, 633 (Tex. 2015). If the evidence raises a fact issue, then the
plea must be denied; if not, then the plea must be granted. Id.
Applicable Law
This appeal requires us to decide whether the City is immune from suit as to
Terry’s premises liability claim. Because Terry did not appeal from the trial court’s
order, his negligence claim is not before us. See TEX. R. APP. P. 25.1(c); Lubbock
Cty. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 584 (Tex. 2002).
A claim for premises liability is distinct from a claim for general negligence.
See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384–91 (Tex. 2016); Oncor
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Elec. Delivery Co. v. Murillo, 449 S.W.3d 583, 591–92 (Tex. App.—Houston [1st
Dist] 2014, pet. denied) (en banc). The latter is not a basis for the waiver of
governmental immunity under the Tort Claims Act’s premises liability provision.
See TEX. CIV. PRAC. & REM. CODE §§ 101.021(2), 101.022(a); Sampson, 500 S.W.3d
at 385–86. The Tort Claims Act’s premises liability provision imposes heightened
requirements for liability, and they cannot be avoided by recasting a premises defect
claim as one for general negligence. Sampson, 500 S.W.3d at 385–86.
A governmental unit generally is subject to suit for premises defects to the
same extent that a private person would be with respect to a licensee on private
property. TEX. CIV. PRAC. & REM. CODE § 101.022(a). Thus, a governmental unit
owes a duty not to injure those on its property by willful, wanton, or grossly
negligent conduct and must use ordinary care either to warn of, or make reasonably
safe, a dangerous condition that it is aware of and persons on its property are not.
Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 664 (Tex. 2019).
Awareness means actual knowledge of the dangerous condition at the time of
the accident. Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (per
curiam). Constructive knowledge is not enough. City of Corsicana v. Stewart, 249
S.W.3d 412, 415–16 (Tex. 2008) (per curiam). There is no one test for deciding
whether there was actual knowledge. Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d
511, 513 (Tex. 2008) (per curiam). Circumstantial evidence suffices to show actual
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knowledge only when it does so directly or by reasonable inference. Stewart, 249
S.W.3d at 415.
Analysis
Terry does not allege that Hunter’s conduct was willful or wanton or that
Hunter was grossly negligent. Terry solely relies on the Tort Claims Act’s premises
defect provision as the basis for waiver of the City’s governmental immunity. During
the course of litigation, he has advanced at least two distinct positions as to how he
was electrocuted. He has argued that Hunter failed to turn off the electricity
altogether, and he has argued that residual electricity retained by the capacitors
remained when he tried to change the tower’s lightbulb. In either case, the dangerous
condition of which he complains relates to the tower’s electricity.
We reject Terry’s implicit contention that Hunter’s alleged failure to turn off
the electricity, or to do so correctly, is a premises defect claim. In Oncor, we
distinguished between claims of general negligence and premises liability in the
context of a suit alleging injuries from electrocution. 449 S.W.3d at 591–92. We
explained that malfeasance theories of liability alleging injury resulting from
affirmative, contemporaneous conduct of another, rather than by a condition created
by the other’s act, state a claim for general negligence, not premises liability. Id.
Premises liability instead concerns nonfeasance theories of liability based on the
failure to take measures to make the property safe. Id. Discussing the facts of that
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case, we noted that telling a contractor that the electricity to a transformer had been
turned off when in fact it had not would be an allegation of general negligence. See
id. at 593. Terry’s allegation that Hunter did not turn off the power but nevertheless
assured Terry that he had done so likewise is a complaint about affirmative,
contemporaneous conduct that allegedly caused the injury and therefore constitutes
a general negligence claim. See Sampson, 500 S.W.3d at 388–91; Oncor, 449
S.W.3d at 591–93.
A general negligence claim cannot serve as the basis for the waiver of
governmental immunity under the premises defect provision of the Tort Claims Act.
See TEX. CIV. PRAC. & REM. CODE § 101.022(a); Sampson, 500 S.W.3d at 385–86.
Any fact issue relating to Hunter’s alleged failure to turn off the electricity to the
tower therefore is immaterial to the merits of the lone issue before us on appeal.
As to Terry’s alternate theory about the residual electricity stored in the
capacitors, the record does not raise a fact issue as to whether Hunter knew that this
residual electricity posed a danger to Terry. Hunter was familiar with the capacitors
in or near the control box, but it is undisputed that any residual electricity stored in
them should have dissipated about a minute or two after the power was turned off.
Given that it took Terry at least 30 minutes to climb the tower and reach the lightbulb
where he was electrocuted, Hunter’s awareness that these capacitors briefly held
residual voltage does not support an inference that he had actual knowledge of the
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dangerous condition that Terry encountered. Hunter testified that he would not
expect there to be any power left in control box’s capacitors by the time Terry
reached the lightbulb at the top of the tower.
Hunter acknowledged that it is possible that the capacitors on the tower itself
could retain electricity for a longer period of time, but he did not know if they did
so or not. His testimony makes it clear that he did not have actual knowledge of the
dangerous condition that allegedly existed at the time of the accident:
Q. And the only way that power could still go to the tower once the
faceplate’s removed is through the capacitors?
A. Yes. For a short amount of time, yes.
Q. A short amount of time based on the capacitors that are on the
ground near the box, correct?
A. Yes.
Q. But you did—
A. That’s what I’m basing it off of, yes.
Q. Yes, sir. But you did testify that there’s additional capacitors on the
tower, right?
A. Yes.
Q. And you were never trained on those capacitors?
A. No.
Q. So, you can’t sit here and—and tell our jury one way or another
about the time that those additional capacitors would hold power?
A. Correct.
Q. So, it could hold power for 20 or 30 seconds? It’s possible?
A. Yes.
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Q. It could hold power for 45 minutes to an hour?
A. Yes.
Q. And, unfortunately, you don’t know one way or another?
A. No.
At most, Hunter’s testimony about the tower’s capacitors raises an inference
that he may have been aware of a hypothetical hazard. That is not enough. See
Sampson, 500 S.W.3d at 392 (“Hypothetical knowledge will not suffice.”); see also
Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) (“Awareness
of a potential problem is not actual knowledge of an existing danger.”). To affirm
the trial court’s ruling, there must be a fact issue as to whether Hunter had actual
knowledge of the existing dangerous condition that Terry encountered. There is not.
Terry relies on Jefferson County v. Akins, 487 S.W.3d 216 (Tex. App.—
Beaumont 2016, pet. denied), in support of his contrary position. But Akins is not
like Terry’s suit. Akins was a slip-and-fall case, in which a jury found for the plaintiff
and a divided court of appeals affirmed. Id. at 220, 234. The defendant contended
on appeal that there was legally insufficient evidence that it knew about the
dangerous condition—a wet floor—when the plaintiff fell. Id. at 228–29. The jury
heard evidence that a mopping crew was near the spot where the plaintiff fell and
that the plaintiff and the floor surrounding the spot where she fell were wet
afterward. Id. at 222, 228. The crew’s supervisor was aware that wet floors posed a
safety risk and she scolded her crew immediately after the accident for having left
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the area wet. Id. at 222, 228–29. The panel’s majority held that a reasonable jury
could infer that the defendant actually knew of the dangerous condition at the time
of the accident because there was evidence that the defendant’s employees created
the condition. See id. at 228–29. One member of the panel dissented. Id. at 234–37.
Assuming without deciding that Akins was correctly decided, its reasoning is
inapposite here. The majority relied on the principle that when a property owner
creates the dangerous condition at issue, this circumstance is some evidence that it
actually knew about the condition, which creates a fact issue for the jury to resolve.
Id. at 228 (citing Keetch v. Kroger Co., 845 S.W.2d 262, 266 (Tex. 1992)). But
Terry’s lone viable premises defect claim is not premised on Hunter having created
the dangerous condition that Terry encountered. Assuming that the tower’s
capacitors were the source of the electricity that injured Terry, any power they stored
was present because that is how the capacitors operate. Hunter, however, did not
know they posed a danger, and Terry does not allege that Hunter did anything that
affected how they operated. Hunter’s act of turning off the tower’s power, which did
not electrocute Terry, is not analogous to mopping the floor and leaving it wet.
CONCLUSION
We reverse the trial court’s order denying the City’s plea to the jurisdiction
and render a judgment of dismissal for lack of jurisdiction.
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Gordon Goodman
Justice
Panel consists of Justices Lloyd, Goodman, and Landau.
Justice Landau, concurring without separate opinion.
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