the University of Texas MD Anderson Cancer Center v. Courtney Simpson ( 2021 )

Opinion issued July 22, 2021
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00679-CV
———————————
THE UNIVERSITY OF TEXAS MD ANDERSON CANCER CENTER,
Appellant
V.
COURTNEY SIMPSON, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2018-51087
MEMORANDUM OPINION
In this interlocutory appeal,1 appellant, The University of Texas MD
Anderson Cancer Center (“MD Anderson”), challenges the trial court’s order
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
denying its plea to the jurisdiction filed in the suit brought against it by appellee,
Courtney Simpson, for premises liability. In its sole issue, MD Anderson contends
that the trial court lacks subject-matter jurisdiction over Simpson’s suit.
We reverse and render.
Background
In her petition, Simpson alleged that on December 15, 2016, she was a visitor
at MD Anderson. While at MD Anderson, Simpson slipped and fell “due to a wet
and slippery floor.” According to Simpson, her fall and resulting injuries were
proximately caused by the negligence of MD Anderson, and MD Anderson had
actual knowledge of the condition that caused her fall. Simpson brought a premises
liability claim against MD Anderson and sought damages for medical expenses,
physical pain, mental anguish, physical impairment, disfigurement, and loss of
earning capacity.
MD Anderson answered, generally denying the allegations in Simpson’s
petition and asserting that the trial court lacks jurisdiction because MD Anderson “is
entitled to full sovereign immunity” and the Texas Tort Claims Act (“TTCA”) did
not waive that immunity.2
2
See id. §§ 101.001–.109
2
In its plea to the jurisdiction,3 MD Anderson asserted that the trial court lacks
subject-matter jurisdiction over Simpson’s suit because it is “a governmental unit of
the State of Texas,” it is entitled to sovereign immunity, and Simpson failed to show
that her suit against MD Anderson fell under the limited waiver of sovereign
immunity provided by the TTCA.4
According to MD Anderson, Simpson’s friend had surgery at MD Anderson
during the week of December 12, 2016. Simpson was at MD Anderson on the day
of her friend’s surgery and stayed with her friend in a patient room from
December 13, 2016 until December 16, 2016. On the morning of December 15,
2016, at approximately 8:45 a.m., Simpson purportedly left her friend’s patient room
to get ice from the ice machine located down the hallway. As she walked down the
hallway, she fell and broke her wrist. Simpson asserted that she slipped on a
round-shaped patch of clear liquid, about three to five inches in diameter. Simpson
allegedly did not know that a clear liquid had caused her to fall “until a person
located near the nurse’s station in the center of the floor purportedly stated after
[Simpson’s] f[a]ll, ‘Oh my gosh. She slipped on that water. I knew we should’ve
cleaned it up.’” According to MD Anderson, Simpson had “no knowledge of that
3
MD Anderson also filed a brief in support of its plea to the jurisdiction. We discuss
together the arguments made in the plea to the jurisdiction and in the brief in support.
4
See id. § 101.021 (“Governmental Liability”); see also id. § 101.022.
3
person’s identity or whether that person was an employee of MD Anderson,” and
Simpson did not know the identity of any of the persons who were present at the
nurse’s station. MD Anderson also asserted that it did not receive any reports of
substances or liquids being spilled or present on the floor where Simpson fell during
Simpson’s stay at MD Anderson. And MD Anderson did not receive any reports of
any person tripping, slipping, or falling on the floor where Simpson fell before
Simpson’s fall.
As to its immunity, MD Anderson asserted that it is a governmental unit
entitled to sovereign immunity and Simpson had the burden of establishing waiver
of MD Anderson’s sovereign immunity for the trial court to have subject-matter
jurisdiction over her suit. The TTCA expressly waives sovereign immunity in three
general areas: use of publicly owned automobiles, premises defects, and injuries
arising out of a condition or use of tangible personal property.5 And as to premises
defects, the TTCA limits the duty owed to a plaintiff to “the duty that a private person
owes to a licensee on private property, unless the [plaintiff] pays for the use of the
premises.”6 (Internal quotations omitted.) Such a duty requires a premises owner to
“not injure a licensee by willful, wanton or grossly negligent conduct, and that the
5
See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); see also
TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.
6
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.022(a). It is undisputed that
Simpson did not “pay[] for the use of the premises.” Id.
4
owner use ordinary care either to warn a licensee of, or to make reasonably safe, a
dangerous condition of which the owner is aware, and the licensee is not.” (Internal
quotations omitted.)
According to MD Anderson, to establish a breach of the duty owed by MD
Anderson and a waiver of sovereign immunity, Simpson had to show that: (1) a
condition of the premises created an unreasonable risk of harm to Simpson; (2) MD
Anderson actually knew of the condition; (3) Simpson did not actually know of the
condition; (4) MD Anderson failed to exercise ordinary care to protect Simpson from
danger; and (5) MD Anderson’s failure was a proximate cause of the injury to
Simpson. If there was no evidence of one of these elements, MD Anderson’s plea
to the jurisdiction had to be granted.
Related to the third element, MD Anderson asserted that the evidence
demonstrated that it “had no knowledge of [the presence of] any clear liquid that
posed a slipping hazard to Simpson or anyone else.” No one at MD Anderson
reported a person slipping, tripping, or falling on the floor where Simpson fell before
Simpson’s fall. MD Anderson did not receive any reports of substances or liquids
being spilled or present on the floor where Simpson fell during Simpson’s entire stay
at MD Anderson. And “no evidence exist[ed] that anyone employed by MD
Anderson made any sort of statement such as: ‘Oh my gosh! She slipped on that
water. I knew we should have cleaned that up,’” as Simpson claimed. Because there
5
was no evidence of MD Anderson’s actual knowledge of the condition that caused
Simpson’s fall, the TTCA did not waive MD Anderson’s sovereign immunity and
dismissal of Simpson’s suit was required for lack of jurisdiction.
MD Anderson attached to its plea to the jurisdiction the deposition of
Simpson, the declaration of Crystal L. McWhirter, MD Anderson’s Risk Manager
in the Legal Services Department, and the declaration of Jennifer Ketchum, an
employee in MD Anderson’s Division of Nursing Surgical Cohort Department.
In response to MD Anderson’s plea to the jurisdiction, Simpson asserted that
MD Anderson had “actual knowledge of the [presence of the] water on the floor of
its premises that caused [Simpson] to fall, fracture her wrist[,] and undergo multiple
surgeries.” (Internal quotations omitted.) According to Simpson, she stayed in a
patient room at MD Anderson with her friend, a patient, during the week of
December 12, 2016. On December 15, 2016, Simpson fell and broke her wrist as
she walked down the hallway to get ice for her friend. Immediately after her fall, a
nurse wearing scrubs with a “larger build” came from behind MD Anderson’s
nurse’s station and exclaimed, “Oh my gosh. She slipped in that water. I knew we
should have cleaned it up.” (Emphasis omitted.) (Internal quotations omitted.)
Simpson also asserted that Dr. Mark V. Schaverien, a MD Anderson employee,
testified that a person who came from behind the nurse’s station would have been a
MD Anderson employee because that area is a restricted area only for nursing. And
6
Robert Saladino, MD Anderson’s Facilities Customer Advocate on the date of the
incident, stated that when he arrived at the location after Simpson’s fall, there was a
yellow sign that said “caution” and “wet floor” near the area where Simpson had
reportedly fallen. (Internal quotations omitted.) Based on Saladino’s investigation
“of the events leading to the placement of the sign,” “the sign had been placed at
th[e] location by the floor technician before mopping the area surrounding the sign.”
(Emphasis omitted.) (Internal quotations omitted.) Additionally, Simpson asserted
that during discovery, MD Anderson failed to deny actual knowledge of the
condition that caused Simpson’s fall. Based on the foregoing, MD Anderson did not
meet its initial burden to negate actual knowledge, but even if it did, Simpson stated
that she had produced evidence of actual knowledge to create a fact issue which
precluded the trial court from granting MD Anderson’s plea to the jurisdiction.
Simpson attached to her response, among other things, her deposition, the
deposition of Schaverien, and the declaration of Saladino.
In its reply to Simpson’s response, MD Anderson reiterated that it had
established its lack of actual knowledge of the presence of the liquid on the floor that
caused Simpson’s fall. And it asserted that Simpson failed to meet her burden to
create a fact issue as to MD Anderson’s actual knowledge because Simpson did not
establish that the unidentified person, with a “larger build” and wearing scrubs that
came from behind MD Anderson’s nurse’s station, was a MD Anderson employee
7
or that the “wet floor” sign was placed in the area before Simpson’s fall. (Emphasis
omitted.)
The trial court denied MD Anderson’s plea to the jurisdiction.
Standard of Review
We review de novo a trial court’s ruling on a jurisdictional plea. See Ben
Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Pol. Subdivisions Prop./Cas.
Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex. 2006); City of Houston v. Vallejo,
371 S.W.3d 499, 501 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). A plea to
the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of
subject-matter jurisdiction. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004);
Villarreal v. Harris Cty., 226 S.W.3d 537, 541 (Tex. App.—Houston [1st Dist.]
2006, no pet.). A defendant may use a plea to the jurisdiction to challenge whether
the plaintiff has met her burden of alleging jurisdictional facts or to challenge the
existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 226–27 (Tex. 2004).
When a plea to the jurisdiction challenges the existence of jurisdictional facts,
we must consider relevant evidence submitted by the parties to resolve the
jurisdictional issues. Miranda, 133 S.W.3d at 227. In reviewing such a plea, we
take as true all evidence favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts in the nonmovant’s favor. Alamo Heights Indep.
8
Sch. Dist. v. Clark, 544 S.W.3d 755, 771 (Tex. 2018); Miranda, 133 S.W.3d at 228.
However, we cannot disregard evidence necessary to show context or evidence and
inferences unfavorable to the nonmovant if reasonable jurors could not do so. See
Alamo Heights, 544 S.W.3d at 771.
This standard mirrors our summary-judgment standard under Texas Rule of
Civil Procedure 166a(c) and places the burden on the governmental unit, as the
movant, to meet the standard of proof to support its contention that the trial court
lacks subject-matter jurisdiction. Miranda, 133 S.W.3d at 228; see also Mission
Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). Once the
governmental unit asserts and provides evidentiary support for its plea, the plaintiff
is then required to show that a disputed fact issue exists on the jurisdictional issue.
Miranda, 133 S.W.3d at 228. If the evidence creates a fact question on the
jurisdictional issue, the trial court cannot grant the plea, and the fact issue is for the
fact finder to resolve. See Alamo Heights, 544 S.W.3d at 771; Miranda, 133 S.W.3d
at 227–28. If the evidence is undisputed or fails to raise a fact question on the
jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of
law. Miranda, 133 S.W.3d at 228.
9
Plea to the Jurisdiction
In its sole issue, MD Anderson argues that the trial court erred in denying its
plea to the jurisdiction because the TTCA does not waive sovereign immunity for
Simpson’s suit.
Sovereign immunity and its counterpart, governmental immunity, exist to
protect the State and its political subdivisions from lawsuits and liability for money
damages. Garcia, 372 S.W.3d at 635; Tex. Nat. Res. Conservation Comm’n v.
IT-Davy, 74 S.W.3d 849, 853 (Tex. 2002); see also Ben Bolt-Palito Blanco Consol.
Indep. Sch. Dist., 212 S.W.3d at 323–24 (“Sovereign immunity protects the State,
its agencies, and its officials from lawsuits for damages.”). Although the terms
“sovereign immunity” and “governmental immunity” are often used
interchangeably, sovereign immunity “extends to various divisions of state
government, including agencies, boards, hospitals, and universities,” while
governmental immunity “protects political subdivisions of the State, including
counties, cities, and school districts.” See Ben Bolt-Palito Blanco Consol. Indep.
Sch. Dist., 212 S.W.3d at 323–24; see also Univ. of Tex. M.D. Anderson Cancer Ctr.
v. Eltonsy, 451 S.W.3d 478, 481 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(“The University of Texas MD Anderson Cancer Center is a governmental unit
generally entitled to sovereign immunity.”); Odutayo v. City of Houston, No.
01-12-00132-CV, 2013 WL 1718334, at *2 n.8 (Tex. App.—Houston [1st Dist.]
10
Apr. 18, 2013, no pet.) (mem. op.). We interpret statutory waivers of sovereign
immunity narrowly, as the Texas Legislature’s intent to waive immunity must be
clear and unambiguous. See LMV-AL Ventures, LLC v. Tex. Dep’t of Aging &
Disability Servs., 520 S.W.3d 113, 120 (Tex. App.—Austin 2017, pet. denied); see
also TEX. GOV’T CODE ANN. § 311.034. Without an express waiver of sovereign
immunity or governmental immunity, courts do not have subject-matter jurisdiction
over suits against the State or its political subdivisions. State v. Shumake, 199
S.W.3d 279, 283 (Tex. 2006); Miranda, 133 S.W.3d at 224–25.
The TTCA provides a limited waiver of immunity for certain suits against
governmental units. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109;
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); City
of Houston v. Garza, No. 01-18-01069-CV, 2019 WL 2932851, at *4 (Tex. App.—
Houston [1st Dist.] July 9, 2019, no pet.) (mem. op.); City of Dallas v. Hillis, 308
S.W.3d 526, 530 (Tex. App.—Dallas Mar. 30, 2010, pet. denied). MD Anderson is
a governmental unit protected by sovereign immunity, absent waiver. See TEX. CIV.
PRAC. & REM. CODE ANN. § 101.001(3); see also Eltonsy, 451 S.W.3d at 481.
Relevant here, the TTCA waives a governmental unit’s immunity for a 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 [plaintiff] according to Texas law.”
See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); see also Shumake, 199
11
S.W.3d at 283 (“The [TTCA] includes, among other things, a limited waiver of the
[S]tate’s immunity from suits alleging personal injury . . . caused by premises
defects.”); City of San Antonio v. Anderson, No. 04-20-00320-CV, 2021 WL
883472, at *3 (Tex. App.—San Antonio Mar. 10, 2021, no pet.) (mem. op.) (“Under
the [TTCA] a claim for a condition or use of real property is a premises defect
claim . . . .”). It further provides that in premises defect cases, the governmental unit
owes the plaintiff only the duty that a private person owes to a licensee on private
property, unless the plaintiff paid for the use of the premises.7 See TEX. CIV. PRAC.
& REM. CODE ANN. § 101.022(a); see also Shumake, 199 S.W.3d at 283.
This limited duty requires the governmental unit, as the premises owner, to
avoid injuring the plaintiff through willful, wanton, or grossly negligent conduct and
to use ordinary care either to warn the plaintiff of, or make reasonably safe, a
dangerous condition of which the governmental unit is aware and the plaintiff is not.
See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384–85 (Tex. 2016); State
Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992); see
also City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008). The governmental
unit is liable to a plaintiff if it had actual knowledge of the condition that injured the
7
It is undisputed that Simpson did not “pay[] for the use of the premises.” See TEX.
CIV. PRAC. & REM. CODE ANN. § 101.022(a); see also City of Irving v. Seppy, 301
S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.) (“If the plaintiff pays for the
use of the premises, the governmental unit owes the plaintiff the duty owed to an
invitee.”).
12
plaintiff. See Wilson v. Nw. Tex. Healthcare Sys., Inc., 576 S.W.3d 844, 850 (Tex.
App.—Amarillo 2019, no pet.); Wong v. Tenet Hosps. Ltd., 181 S.W.3d 532, 537
(Tex. App.—El Paso 2005, no pet.). Absent willful, wanton, or grossly negligent
conduct,8 a plaintiff must prove the following elements to establish the breach of the
duty owed to her: (1) a condition of the premises created an unreasonable risk of
harm to the plaintiff; (2) the governmental unit actually knew of the condition;
(3) the plaintiff did not actually know of the condition; (4) the governmental unit
failed to exercise ordinary care to protect the plaintiff from danger; and (5) the
governmental unit’s failure was a proximate cause of the injury to the plaintiff.
Sampson, 500 S.W.3d at 391. If the governmental unit can show that there is no
evidence of one of these elements, its plea to the jurisdiction must be granted. Id.
In its plea to the jurisdiction, MD Anderson argued that because it had no
actual knowledge of the presence of the liquid on the floor on which Simpson slipped
and fell, its plea to the jurisdiction must be granted. See City of Stafford v.
Svadlenak, No. 14-18-00089-CV, 2018 WL 3734021, at *2 (Tex. App.—Houston
[14th Dist.] Aug. 7, 2018, pet. denied) (mem. op.) (to establish waiver of immunity
under TTCA, plaintiff must show, inter alia, that governmental unit had actual
knowledge of dangerous condition at time of incident).
8
Simpson did not allege that MD Anderson’s conduct was willful, wanton, or grossly
negligent.
13
Actual knowledge, rather than constructive knowledge, of the dangerous
condition is the type of knowledge that is required. Sampson, 500 S.W.3d at 391–
92. To prove actual knowledge, the plaintiff must show that the governmental unit
actually knew of the dangerous condition at the time of the accident. City of
Corsicana v. Stewart, 249 S.W.3d 412, 413–16 (Tex. 2008) (“Actual knowledge
requires knowledge that the dangerous condition existed at the time of the accident,
as opposed to constructive knowledge which can be established by facts or
inferences that a dangerous condition could develop over time.”). Knowledge of the
possibility that the dangerous condition could develop over time is not enough. See
Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010); Wilson, 576
S.W.3d at 850. In determining whether the governmental unit had actual knowledge
of a dangerous condition, “courts generally consider whether the [governmental
unit] ha[d] received reports of prior injuries or reports of the potential danger
presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513
(Tex. 2008); see also Sampson, 500 S.W.3d 392. “Actual knowledge of an
unreasonably dangerous condition can sometimes be proven through circumstantial
evidence.” City of Irving v. Seppy, 301 S.W.3d 435, 444 (Tex. App.—Dallas 2009,
no pet.). Circumstantial evidence establishes actual knowledge only when it “either
directly or by reasonable inference” supports that conclusion. See State v. Gonzalez,
82 S.W.3d 322, 330 (Tex. 2002).
14
In support of its plea to the jurisdiction, MD Anderson challenged the
existence of jurisdictional facts with its own evidence that it had no actual knowledge
of the presence of the liquid on the floor before Simpson fell and thus owed Simpson
no duty as a licensee. See Miranda, 133 S.W.3d at 228 (discussing burdens
generally); City of Dallas v. de Garcia, No. 05-20-00636-CV, 2021 WL 777087, at
*2 (Tex. App.—Dallas Mar. 1, 2021, no pet.) (mem. op.) (governmental unit had
initial burden of presenting evidence sufficient to negate jurisdiction). MD
Anderson’s evidence included the deposition of Simpson, the declaration of
McWhirter, MD Anderson’s Risk Manager in the Legal Services Department, and
the declaration of Ketchum, an employee in MD Anderson’s Division of Nursing
Surgical Cohort Department.
In her declaration, McWhirter stated that, as Risk Manager in the Legal
Services Department of MD Anderson, she had access to the records maintained by
the Legal Services Department “concerning reports of injuries sustained by any
person” and “reports of the physical state or condition of [MD Anderson] facilities
creating situations or circumstances that c[ould] pose a risk of injury or harm to any
person.” According to McWhirter, employees involved with Risk Management in
the Legal Services Department, receive and preserve such reports, and the records
available to her would “include reports of persons injured after having slipped,
tripped, and/or fallen inside MD Anderson facilities[] and reports of substances,
15
materials[,] or objects present in the accessible or walkable areas of [MD Anderson]
facilities that could pose a slipping, tripping, and/or falling hazard.”
McWhirter stated that she had reviewed the records of the Legal Services
Department to determine if there were any reports made concerning water, liquids,
or substances spilled or present on the floors from December 12, 2016 through
December 15, 2016. The only report was dated December 15, 2016 and concerned
Simpson “slipping and falling on floor P11 of the Lutheran Pavilion at MD
Anderson.” McWhirter searched for other reports before December 15, 2016 of
anything regarding water, liquids, or substances or persons tripping, slipping, or
failing on “floor P11,” where Simpson fell, and “found none.” See Reed, 258 S.W.3d
at 622–23 (holding governmental unit lacked actual knowledge where there had been
no prior accidents or complaints about road condition); City of Dallas, 2021 WL
777087, at *2 (“[T]estimony stating that a governmental unit did not receive reports
of a hazardous condition in the two years before the injury—require[d] [the court]
to conclude the [governmental unit’s] evidence [was] sufficient to demonstrate a
lack of actual knowledge . . . [and] the [governmental unit] ha[d] met its initial
burden . . . .”); Harris Cty. Hosp. Dist. v. Peavy, No. 14-19-00953-CV, 2020 WL
6142887, at *2–3 (Tex. App.—Houston [14th Dist.] Oct. 20, 2020, no pet.) (mem.
op.) (to meet its initial burden, governmental unit attached affidavits stating that no
department records showed “reports or notifications of any incident, fall, near fall,
16
trip, or slip, or injury attributable to the door brace (floor strike plate) located in the
hallway on the first floor” where plaintiff fell (internal quotations omitted)); City of
Dallas v. Kennedy, No. 05-19-01299-CV, 2020 WL 3286515, at *3 (Tex. App.—
Dallas June 18, 2020, no pet.) (mem. op.) (governmental unit’s evidence that no
records showed any call, report, or complaint “regarding an eroded, broken, or
depressed area of tile, or any other defects in the flooring in the area of the doorways
located on the premises” where plaintiff was injured negated actual knowledge
(internal quotations omitted)); Tarrant Cty. v. Carter-Jones, No. 02-17-00177-CV,
2018 WL 547588, at *5 (Tex. App.—Fort Worth Jan. 25, 2018, no pet.) (mem. op.)
(governmental unit’s evidence, which included affidavit that “facilities-management
department’s records . . . contain[ed] no reference to any knowledge on the part of
[the governmental unit] or any of its employees of a water hazard,” established that
it did not have actual knowledge of water in hallway at time of plaintiff’s fall
(internal quotations omitted)).
In her deposition, Simpson testified that on December 15, 2016, she was
staying in a patient room at MD Anderson with her friend, who was a patient at MD
Anderson. Around 8:45 a.m. or 9:00 a.m., she left her friend’s room and walked
down the hallway to get some ice from the ice machine. After walking “four [or
five] doors down,” Simpson slipped and fell, breaking her wrist and injuring her
shoulder and knee. Simpson stated that she “slipped on a puddle of [clear] water,”
17
but she did not know that at the time that she fell. She estimated that the puddle was
three to five inches in diameter. Simpson did not see the water before she fell, and
she did not know how the water had “got[ten] there.”
Simpson further testified that as she walked down the hallway before her fall,
she did not see anyone “cleaning up around the hall” and did not see anyone “making
any kind of repair or [doing] any other kind of activity.” Simpson did not see any
floor signs about a “wet floor,” and there were not any “wet floor” signs present
when she slipped and fell. As to who was at the nearby nurse’s station at the time
of her fall, Simpson stated that she saw doctors and “other people,” but she also
testified that she had no knowledge about any persons present at the nurse’s station
at the time she fell. And she testified that she did not know “what type of medical
professional was present at the nurse’s station at the moment” that she fell.
According to Simpson, after she fell, “a nurse from th[e] nurse’s
station . . . came up to [her] and said, ‘Oh, my gosh. She slipped on that water. I
knew we should’ve cleaned it up.’” The woman then asked “somebody,” who
Simpson did not see, “to have somebody come clean up the water.” Simpson had
no knowledge about the person the woman was speaking to—that person was just
one of the people standing around Simpson. Simpson also explained that she did
not actually know who the woman who spoke was, but the woman was standing at
the nurse’s station and she appeared “[v]ery quickly” after Simpson’s fall. Yet,
18
Simpson did not know what the woman was doing at the nurse’s station, and
Simpson could not remember what the woman looked like. Simpson stated that the
woman was wearing scrubs and had a “larger build,” but Simpson did not see any
identification badges on the woman, could not recall the color of the woman’s
scrubs, and did not know the woman’s name. The woman stated that she was going
to get a nurse supervisor. Ultimately though, Simpson testified: “I do not know for
a fact that she was a nurse.” And Simpson acknowledged that, while staying with
her friend at MD Anderson, she saw patients and visitors in the hospital. Simpson
did not see anyone from the medical staff getting ice on December 15, 2016 before
she fell.
In her declaration, Ketchum stated that as a result of her employment with
MD Anderson in the Division of Nursing Surgical Cohort Department, she had
“observed outside visitors who [were] not affiliated with MD Anderson wear[ing]
scrubs while inside MD Anderson facilities on multiple occasions.” She had also
seen “outside visitors at or inside the nurse[’s] stations” in MD Anderson. Those
people were “asking questions and taking supplies such as towels.” Ketchum had
seen “outside visitors wear[ing] scrubs while staying overnight with MD Anderson
patients.”
Because MD Anderson met its initial burden of presenting evidence sufficient
to negate jurisdiction, the burden shifted to Simpson to raise a fact issue as to
19
whether MD Anderson had actual knowledge of the presence of the liquid on which
Simpson slipped and fell. See Sampson, 500 S.W.3d at 391–92; City of Dallas, 2021
WL 777087, at *2; Univ. of Tex. v. Bellinghausen, No. 03-14-00749-CV, 2016 WL
462735, at *3 (Tex. App.—Austin Feb. 3, 2016, no pet.) (mem. op.) (“Because the
[governmental unit] presented evidence to support a finding that it did not have
actual knowledge of an unreasonably dangerous condition of the sidewalk, it met its
burden to present evidence to support its plea to the jurisdiction. . . . The burden
then shifted to [the plaintiff] to present evidence to create a fact issue as to the
[governmental unit]’s actual knowledge.”).
In the trial court, to raise a fact issue as to MD Anderson’s actual knowledge,
Simpson relied on her deposition testimony to support her assertion that a nurse from
MD Anderson told Simpson that she knew about the water before Simpson’s fall. In
her deposition, Simpson testified that after she fell, a “nurse from th[e] nurse’s
station . . . came up to [her] and said, ‘Oh, my gosh. She slipped on that water. I
knew we should’ve cleaned it up.’” According to Simpson, the woman who
approached her was wearing scrubs and arrived “[v]ery quickly because she was
standing right there at the nurse’s station.” Yet, Simpson also testified that she did
not know what the woman was doing at the nurse’s station, she did not see any
identification badges on the woman, and she did not know what color scrubs the
woman was wearing or who the woman was. Simpson acknowledged that she “d[id]
20
not know for a fact that [the woman] was a nurse.” See Carter-Jones, 2018 WL
547588, at *5 (plaintiff did not raise fact issue about governmental unit’s actual
knowledge, where plaintiff could not identify “blonde-haired woman wearing purple
gloves [who] said that she knew that ‘water was there’” as employee of
governmental unit). And Simpson stated that she saw “other people,” apart from
medical staff, at the nurse’s station before her fall. See City of Dallas, 2021 WL
777087, at *2 (“Although circumstantial evidence can be used to establish actual
knowledge, evidence that merely raises a suspicion that the governmental unit had
actual knowledge is insufficient.”); Bellinghausen, 2016 WL 462735, at *6
(evidence that creates nothing more than mere suspicion that governmental unit had
actual knowledge of condition does not create fact issue); see also Sampson, 500
S.W.3d at 395–96.
Simpson also relied on the deposition of Schaverien, a MD Anderson
employee, to support her assertion that the woman at the nurse’s station who
approached Simpson after her fall had to be a MD Anderson employee, rather than
someone else. Schaverien, in his deposition, stated that he could not recall Simpson
or her falling incident at MD Anderson. But as to the nurse’s stations at MD
Anderson, Schaverien testified that there was no policy stating that the nurse’s
stations were for nurses and doctors only, and there were no signs that prohibited an
“outside visitor” from accessing a nurse’s station. There were also not any
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“protocols concerning the nurse[’]s stations at MD Anderson.” The nurse’s stations
were not locked to visitors or the general public; they were “free area[s] for people”
and not “controlled area[s].” According to Schaverien, “there [were] essentially four
entrances” to a nurse’s station that were “just open walkways into” the nurse’s
station. No one was stationed at the nurse’s station, and “[t]here[] [was] no door or
padlock or parcel.” Schaverien stated that “[t]here[] [was] no rule [that] you don’t
go in there” and there was a possibility that “other people” would be in the nurse’s
station. The nurse’s stations were “open,” “so people could walk through there who
[were not] necessarily nurs[es] or doctors.” In Schaverien’s opinion, “[i]t would be
very straightforward for somebody to get in there.” “It[] [was] just a walkway that
somebody could walk through,” and Schaverien stated that it was possible that a
patient could be in the nurse’s station if he or she needed something. It was also
possible for a visitor or a non-MD Anderson employee to “freely go into the
nurse[’]s station” because there would be “no restriction of physical access.” See
Univ. of Tex. at El Paso v. Muro, 341 S.W.3d 1, 5–6 (Tex. App.—El Paso 2009, no
pet.) (“When circumstantial evidence presents two equally plausible, but opposite
inferences, neither can be inferred.”).
Schaverien did testify that he had not “seen anyone other than nurses and
doctors at a nurse[’]s . . . station” and his “assumption” was that the nurse’s stations
were “only for doctors and nurses.” But he stated that his assumption was based on
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the culture, and he was only “hypothesizing.” His assumption was not “based on
anything that [he] ha[d] actually seen.” Schaverien also stated that he did not go into
the nurse’s stations and he never used the nurse’s stations. He could not recall the
last time he had been in a nurse’s station, and he stated that he “wouldn’t necessarily
be the person to ask” or the “best person . . . to ask” because he did not “go into those
areas at all.” Schaverien testified that the proper person to seek out information on
the nurse’s stations would be a nurse. Finally, Schaverien stated that it was possible
that someone could be wearing scrubs inside of MD Anderson who was not an MD
Anderson employee.
Simpson also relied on the declaration of Saladino, MD Anderson’s Facilities
Customer Advocate on the date of Simpson’s fall, to raise a fact issue as to MD
Anderson’s actual knowledge. In his declaration, Saladino stated that on December
15, 2016, he received a report that Simpson had “fallen on floor P11 of the Lutheran
Pavilion Building of MD Anderson.” After the fall, Saladino went to the location of
the fall and saw “a yellow sign that said ‘caution’ and ‘wet floor.’” Saladino
explained that his investigation “of the events [that led] to the placement of the sign
revealed that the sign had been placed at th[e] location by [a] floor technician” before
the technician mopped the area surrounding the sign.
Saladino’s declaration did not state that there was a “yellow sign that said
‘caution’ and ‘wet floor’” present when Simpson fell—only that it was present when
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a floor technician mopped the floor. And Simpson testified in her deposition that
she did not see any floor signs about a “wet floor,” and there were not “wet floor”
signs present when she slipped and fell. See Stewart, 249 S.W.3d at 413–16 (to
prove actual knowledge, plaintiff must show that governmental unit actually knew
of dangerous condition at time of accident). Simpson also testified that after she fell,
and while she was waiting for a gurney, “somebody . . . clean[ed] up the water”
using a mop and paper towels. Simpson did not know that person’s identity and did
not know if the person was a “maintenance person or somebody else.” But her
testimony showed that no one mopped the floor until after Simpson’s fall, meaning
that the yellow-caution-wet-floor sign could not have been placed before Simpson’s
fall.
Based on the record before us, we conclude that Simpson did not raise a fact
issue regarding MD Anderson’s actual knowledge of the presence of the liquid on
the floor on which Simpson slipped and fell. As a result, Simpson’s premise defect
claim under the TTCA is barred by sovereign immunity. Thus, we hold that the trial
court erred in denying MD Anderson’s plea to the jurisdiction.
We sustain MD Anderson’s sole issue.
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Conclusion
We reverse the trial court’s order denying MD Anderson’s plea to the
jurisdiction and render judgment dismissing Simpson’s suit for lack of
subject-matter jurisdiction.
Julie Countiss
Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.
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