City of San Antonio v. Fran Magri ( 2024 )

NUMBER 13-23-00280-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CITY OF SAN ANTONIO, Appellant,
v.
FRAN MAGRI, Appellee.
ON APPEAL FROM THE 225TH DISTRICT COURT
OF BEXAR COUNTY, TEXAS
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña
Memorandum Opinion by Justice Silva
Appellant the City of San Antonio, Texas (the City) challenges the trial court’s
denial of its plea to the jurisdiction seeking to dismiss appellee Fran Magri’s premises
liability suit. 1 Magri filed suit against the City after she slipped at the public library while
walking over a grate. By a single issue, the City argues that Magri failed to establish a
waiver of the City’s immunity pursuant to the Texas Torts Claims Act (TTCA) because the
evidence negated the City’s actual knowledge of any dangerous condition. See TEX.
GOV’T CODE ANN. § 311.034; TEX. CIV. PRAC. & REM. CODE ANN. § 101.025. We reverse
and render.
I. BACKGROUND
On January 27, 2021, Magri sued the City alleging that her fall was caused by a
slippery condition, “possibly by condensation or chemicals used to clean [the floor], but
definitely because of the failure to have it cleaned to prevent it from remaining slippery.”
The City filed a timely answer and thereafter a plea to the jurisdiction asserting its
immunity from suit under the TTCA because the City was without actual knowledge of the
dangerous condition that allegedly caused Magri’s injuries. The City argued that Magri
had not pleaded any facts supporting an allegation that the City knew about the
“dangerous condition of the floor, if any.” The City attached the following exhibits to its
plea: Magri’s original petition; an affidavit by a City employee who swore there was no
record of a single slip and fall incident in the two years preceding Magri’s fall; and Magri’s
deposition transcript, wherein Magri stated she did not recall whether it had been raining
1 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio
pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN.
§§ 22.220(a) (delineating the jurisdiction of appellate courts), 73.001 (granting the supreme court the
authority to transfer cases from one court of appeals to another at any time that there is “good cause” for
the transfer).
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and did not see anything that would have indicated the existence of a slippery or wet
condition.
Magri filed a response and attached several exhibits, including: a written sworn
declaration, wherein she stated it had been “a wet, rainy day”; two different weather
reports which listed the following weather conditions on the morning of Magri’s fall:
“cloudy,” “light drizzle,” “drizzle and fog” and indicated there had been “0.0” inches of
precipitation; and the deposition transcript of library branch manager Timothy Francis
Johnson Jr., wherein Johnson stated he was unaware of any wet or slippery condition,
there was no rain on the day in question, and if there had been wet conditions present,
library staff would have put out warning signage and cleaned up any excess liquid.
The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal
followed. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8).
II. STANDARD OF REVIEW AND APPLICABLE LAW
Subject matter jurisdiction is essential to a court’s authority to decide a case. Teal
Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324,
331 (Tex. 2020) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex.
2000)). Whether a trial court has subject matter jurisdiction is a question of law that we
review de novo. Sw. Elec. Power Co. v. Lynch, 595 S.W.3d 678, 682 (Tex. 2020) (citing
Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)).
Sovereign immunity protects the State and its agencies from lawsuits for money
damages and deprives a trial court of subject matter jurisdiction over a plaintiff’s claims.
Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008).
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Governmental immunity offers the same protections for political subdivisions of the State,
including municipalities. Id.; see City of San Antonio v. Maspero, 640 S.W.3d 523, 528
(Tex. 2022); Tex. Dep’t of Fam. & Protective Servs. v. Parra, 503 S.W.3d 646, 660 (Tex.
App.—El Paso 2016, pet. denied). To prevail on an assertion of governmental immunity,
the governmental defendant “may challenge the pleadings, the existence of jurisdictional
facts, or both.” Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex.
2018). When a plea to the jurisdiction challenges jurisdictional facts, our review mirrors
that of a traditional summary judgment motion. Maspero, 640 S.W.3d at 528 (citing
Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012)). To that
end, “all the evidence is reviewed in the light most favorable to the plaintiff to determine
whether a genuine issue of material fact exists.” Town of Shady Shores v. Swanson, 590
S.W.3d 544, 550 (Tex. 2019); see Maspero, 640 S.W.3d at 528–29 (“[W]e take as true
all evidence favorable to the nonmovant and indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor.”). “A genuine issue exists if ‘the evidence is
such that a reasonable jury could find that fact in favor of the non-moving party.’” Smith
v. Mosbacker, 94 S.W.3d 292, 294 (Tex. App.—Corpus Christi–Edinburg 2002, no pet.)
(quoting Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998,
pet. denied)). “Material facts are those facts which ‘affect the outcome of the suit under
the governing law.’” Id. (quoting Moore, 981 S.W.2d at 269). If “the pleadings and
evidence generate a ‘fact question on jurisdiction,’ dismissal on a plea to the jurisdiction
is improper,” and the fact issue will be resolved at trial by the factfinder. Maspero, 640
S.W.3d at 529 (citing Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 116 (Tex. 2010)
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(per curiam)). “However, ‘if the evidence is undisputed or fails to raise a fact question,’
the plea must be granted.” Id. (quoting Hayes, 327 S.W.3d at 116).
Magri’s suit is brought under the TTCA, which provides, in relevant part, a limited
waiver of immunity for claims arising from 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), 101.025; see generally
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 386 (Tex. 2016) (treating slip and
fall claims as premises defect claims). Where, as here, the claimant did not pay for the
use of any premises, “the governmental unit owes to the claimant only the duty that a
private person owes to a licensee on private property.” TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.022(a). Absent evidence of willful, wanton, or grossly negligent conduct by the
governmental unit, to establish a breach of duty in this circumstance, a claimant must
prove five elements: (1) the premises condition created an unreasonable risk of harm to
the claimant; (2) the governmental unit actually knew of the condition; (3) the claimant did
not actually know of the condition; (4) the governmental unit failed to exercise ordinary
care to protect the claimant from the danger; and (5) the governmental unit’s failure
proximately caused the claimant’s injuries. Sampson, 500 S.W.3d at 391; see also City
of Laredo v. Torres, No. 04-22-00453-CV, 2023 WL 6453823, at *5 (Tex. App.—San
Antonio Oct. 4, 2023, no pet.) (mem. op.).
“Actual knowledge, rather than constructive knowledge of the dangerous condition
is required.” Sampson, 500 S.W.3d at 392 (quoting State v. Tennison, 509 S.W.2d 560,
562 (Tex. 1974)). “Hypothetical knowledge will not suffice.” Id. In determining whether a
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governmental unit has actual knowledge of a dangerous condition, “courts generally
consider whether the [governmental unit] has received reports of prior injuries or reports
of the potential danger presented by the condition.” Id. (quoting Univ. of Tex.-Pan Am. v.
Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam)).
III. DISCUSSION
It is undisputed that the City is a governmental unit. See TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021. Additionally, the pleadings and evidence show that Magri did not
pay to use or access the area where she was injured. See id. § 101.022(a). Thus, Magri
was required to establish a genuine issue of material fact as to the City’s requisite
knowledge of the dangerous condition. See Sampson, 500 S.W.3d at 392.
At the outset we note that there is no evidence that the City created the slippery
condition or that it received prior reports of a slippery condition immediately prior to
Magri’s fall. See id. Moreover, in the two years prior to Magri’s fall, there was not a single
slip and fall incident reported at the public library. See Aguilar, 251 S.W.3d at 513; see
also Univ. of Tex. MD Anderson Cancer Ctr. v. Simpson, No. 01-20-00679-CV, 2021 WL
3083104, at *6 (Tex. App.—Houston [1st Dist.] July 22, 2021, no pet.) (mem. op.)
(collecting cases where courts concluded there was no evidence of actual knowledge
absent reports of prior slip and fall incidents).
Magri, however, relies on weather reports which indicated it had been “lightly
drizzl[ing]” outside and her affidavit stating that it had been raining. These documents are
not evidence of the City’s actual knowledge of a dangerous condition. See generally City
of Houston v. Gilbert, 656 S.W.3d 603, 615–16 (Tex. App.—Houston [14th Dist.] 2022,
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pet. denied) (“The fact that materials deteriorate over time and may become dangerous
does not itself create a dangerous condition, and the actual knowledge required for
liability is of the dangerous condition at the time of the accident, not merely of the
possibility that a dangerous condition can develop over time.”) (cleaned up); see also City
of San Antonio v. Anderson, No. 04-20-00320-CV, 2021 WL 883472, at *1 (Tex. App.—
San Antonio Mar. 10, 2021, no pet.) (mem. op.) (reversing trial court’s denial of the City’s
plea to the jurisdiction where claimant stated “it was moisture out there” but otherwise
failed to present evidence regarding the City’s awareness of a wet ground prior to his slip
and fall). In fact, Magri acknowledged she had not seen anything which would have
indicated a hazardous condition and stepped over the same grate without any incident
just minutes prior to her fall. See Gilbert, 656 S.W.3d at 615; see also City of McAllen v.
Quintanilla, No. 13-18-00062-CV, 2019 WL 3023325, at *4–5 (Tex. App.—Corpus
Christi–Edinburg July 11, 2019, no pet.) (mem. op.) (concluding that there was no
evidence the city had actual knowledge of the allegedly hazardous condition where the
claimant had previously walked past the same area without incident); Ransom v. Univ. of
Tex. at El Paso, No. 08-22-00063-CV, 2023 WL 3471702, at *4 (Tex. App.—El Paso May
15, 2023, pet. denied) (mem. op.) (concluding the same where claimant admitted the
condition was not conspicuous and the governmental unit was unaware how long the
condition had been present). Moreover, Johnson’s deposition was unequivocal: Johnson
had not observed any condition which would have warranted caution signage or a
cleanup.
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We conclude that Magri has failed to raise a genuine issue of material fact as to
the City’s requisite knowledge of the dangerous condition. See Sampson, 500 S.W.3d at
384. Absent any evidence that the City had actual knowledge of the dangerous condition,
Magri cannot establish that the City breached its duty, which is necessary to invoke the
TTCA’s waiver of immunity. See id.; see also Quintanilla, 2019 WL 3023325, at *5. We
affirm the City’s sole issue.
IV. CONCLUSION
We reverse the trial court’s order denying the City’s plea to the jurisdiction and
render judgment dismissing Magri’s suit for want of subject matter jurisdiction.
CLARISSA SILVA
Justice
Delivered and filed on the
23rd day of May, 2024.
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