DocketNumber： 11-01-00251-CV
Filed Date： 11/15/2001
Status： Precedential
Modified Date： 9/10/2015
11th Court of Appeals
Eastland, Texas
Opinion
Derrick Polly
Appellant
Vs. No. 11-01-00251-CV B Appeal from Dawson County
Texas Department of Criminal Justice, Institutional Division et al
Appellees
Derrick Polly sued the Texas Department of Criminal Justice, Institutional Division, and four employees of TDCJ-ID for injuries Polly alleged he received when he slipped and fell while taking a shower in his prison cell. Polly alleged that the defendants were grossly negligent and acted with conscious indifference, that they allowed a premise defect to exist when they did not equip the shower area with safety mechanisms, and that the employee defendants were negligent in failing to reduce the risk in the shower area of his cell. Polly sued the employee defendants both individually and in their official capacities and claimed that they were liable under TEX. GOV=T CODE ANN. '' 494.001 & 497.096 (Vernon 1998), under TEX. CIV. PRAC. & REM. CODE ANN. ' 104.002 (Vernon 1997), and under TEX. CONST. art. I, '' 11 & 16. Polly alleged that all the defendants were liable under the Texas Tort Claims Act, TEX. CIV. PRAC. & REM. CODE ANN. ' 101.001 et seq. (Vernon 1997 & Supp. 2001). The trial court dismissed Polly=s suit for failure to Apresent a legal cause of action.@ We affirm.
On appeal, Polly contends that the trial court abused its discretion because his petition stated claims against TDCJ-ID and its employees under the Tort Claims Act; under Sections 104.002, 494.001, and 497.096; and under the Texas Constitution. We disagree.
Neither section of the constitution that appellant cites is relevant to this case, and neither supports appellant=s claims. One relates to bail and the other to ex post facto laws. Furthermore, Sections 104.002, 494.001, and 497.096 do not create a cause of action and do not constitute a waiver of immunity. See, e.g., Montana v. Patterson, 894 S.W.2d 812 (Tex.App. - Tyler 1994, no writ).
Regarding the Tort Claims Act, we hold that the trial court did not abuse its discretion in determining that appellant=s allegations of a premise defect had no arguable basis in law. Appellees owed appellant only the duty that a private person owes to a licensee. Section 101.022. That duty is not breached when an open and obvious condition brings about the injury. McKethan v. McKethan, 477 S.W.2d 357 (Tex.Civ.App. - Corpus Christi 1972, writ ref=d n.r.e.); see also Bishop v. City of Big Spring, 915 S.W.2d 566 (Tex.App. - Eastland 1995, no writ). A wet shower floor is likely to be slippery, and such slipperiness is not a premise defect. Appellant did not allege any willful, wanton, or grossly negligent conduct.
We hold that the trial court did not abuse its discretion in dismissing appellant=s claims under TEX. CIV. PRAC. & REM. CODE ANN. ' 14.003 (Vernon Supp. 2001).
The judgment of the trial court is affirmed.
PER CURIAM
November 15, 2001
Do not publish. See TEX.R.APP.P. 47.3(b).
Panel consists of: Arnot, C.J., and
Wright, J., and McCall, J.