Patricia Daniels v. University of Texas Health, Science Center and Harris County, Texas

Opinion issued November 18, 2004 In The Court of Appeals For The First District of Texas NO. 01-03-00997-CV PATRICIA DANIELS, Appellant V. UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AND HARRIS COUNTY, TEXAS, Appellees On Appeal from the 295th District Court Harris County, Texas Trial Court Cause No. 2002-21517 MEMORANDUM OPINION Patricia Daniels, appellant, filed claims against University of Texas Health Science Center (UTHSC) and Harris County, Texas, appellees, under the Texas Tort Claims Act (Tort Claims Act) and a general negligence theory. The trial court granted both appellees’ partial summary judgment on the Tort Claims Act cause of action and their pleas to the jurisdiction on appellant’s general negligence claim. We affirm. BACKGROUND Appellant’s employer, Coach USA, contracted with UTHSC to provide transportation to students around the medical center. While driving her route in the medical center, appellant stopped at the Harris County Psychiatric Center (Psychiatric Center) to pick up students. She stepped off the bus onto a grassy strip between the sidewalk and the curb, and one leg went into a hole approximately 18 inches deep. As a result, appellant injured her ankle, knee, and shoulder. Harris County owns and operates the Psychiatric Center and maintains custodial care of the grounds. UTHSC is the operator of the Psychiatric Center and staffs the hospital. Appellant sued UTHSC and the County for damages. Both appellees filed motions asserting that the evidence established that they were entitled to judgment as a matter of law and, among other things, that there was no evidence (1) to support appellant’s claim that she was an invitee who was entitled to a higher standard of care and (2) that they had actual knowledge of the alleged dangerous condition. In support of its motion for summary judgment, Harris County attached the affidavit of Michael Yancey, Director of Facilities and Property for Harris County, stating that neither he nor any of his employees directly responsible for the area where appellant fell had knowledge that the hole existed. In her response to these motions, appellant submitted, as her only summary judgment evidence, five photographs of the hole and the surrounding grassy area. The trial court granted the motions for summary judgment in part, but ruled that neither motion had addressed appellant’s general negligence claim. Both appellees then filed pleas to the jurisdiction and motions to dismiss on the general negligence claim. Appellees asserted in these pleas that the claims of general negligence did not invoke the jurisdiction of the trial court because the appellees were protected by sovereign immunity, except as that immunity is waived by the Tort Claims Act, and the trial court had rendered summary judgment with respect to appellant’s claims under that Act. The trial court granted the pleas to the jurisdiction and dismissed the cause. On appeal, appellant challenges (1) Harris County’s summary judgment evidence as insufficient to sustain a no-evidence motion for summary judgment, (2) her status as a licensee, (3) the application of sovereign immunity to proprietary functions of counties and state universities, and (4) the validity of any other bases to support the summary judgment. DISCUSSION In their motions for summary judgment, appellees asserted that they were entitled to judgment under subsections (c) and (i) of rule 166a. See Tex. R. Civ. P. 166a. We consider those arguments relating only to subsection (i), their no-evidence motions, as dispositive. I. Standard of Review Under Rule 166a(i), a party is entitled to summary judgment if, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). Thus, a no-evidence summary judgment is similar to a directed verdict. Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The motion for summary judgment may not be general, but must state the elements on which there is no evidence. Tex. R. Civ. P. 166a(i). The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on each of the challenged elements. See Tex. R. Civ. P. 166a(i); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The party with the burden of proof at trial has the same burden of proof in the summary judgment proceeding. Galveston Newspapers, Inc. v. Norris, 981 S.W.2d 797, 799-800 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). That is, under Rule 166a(i), the burden of raising a genuine issue of material fact shifts to the nonmovant upon the filing of the motion. See Tex.R. Civ. P. 166a(i). In reviewing a summary judgment, we must indulge every reasonable inference in favor of the nonmovant and resolve any doubts in its favor. Flameout Design, 994 S.W.2d at 834. II. Duty of Care Under Tort Claims Act In her petition, appellant stated a cause of action under the Tort Claims Act. The Tort Claims Act was enacted to abolish governmental immunity in certain instances and to grant permission to all claimants to bring suit against the state for all claims arising under the Act. Brown v. Owens, 674 S.W.2d 748, 750 (Tex. 1984). The legislature has carved out three areas in which sovereign immunity is waived: (1) claims arising out of the use of motor-driven vehicles and motor-driven equipment; (2) claims arising from the condition or use of real property, also known as a premises defect claim; and (3) claims arising from the condition or use of personal property. See Tex. Civ. Prac. & Rem. Code Ann. § 101.021 (Vernon 2003); City of Denton v. Page, 701 S.W.2d 831, 834 (Tex. 1986); Lowe v. Tex. Tech Univ., 540 S.W.2d 297, 298 (Tex. 1976). Appellant proceeded under a premises defect theory. The statute governing this type of claim provides: If a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a) (Vernon 2003). Therefore, unless appellant paid for the use of the premises on which she was injured, she must prove that (1) the condition of the premises created an unreasonable risk of harm; (2) the governmental unit actually knew of the condition; (3) appellant did not actually know of the condition; (4) the governmental unit failed to exercise ordinary care to protect appellant from the dangerous condition; and (5) the governmental unit’s failure to exercise ordinary care proximately caused appellant’s injury. Corbin v. City of Keller, 1 S.W.3d 743, 748 (Tex. App.—Fort Worth 1999, pet. denied). Licensee v. Invitee In appellant’s second issue, she argues that her status should be that of an invitee, not a licensee. An invitee is one who enters the property with the permission of the owner for their mutual benefit. Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex. 1975). The duty of reasonable care owed by the landowner to an invitee is found in section 343 of the Restatement (Second) of Torts, which was adopted by the Supreme Court in Adam Dante Corp. v. Sharpe. A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. 483 S.W.2d 452, 454-55 (Tex. 1972), abrogated by Parker v. Highland Park, Inc., 565 S.W.2d 512, 518 (Tex. 1978) (recognizing that defense of voluntary assumption of risk had been abolished). A lower standard of care is due a licensee. The duty a property owner owes a licensee is the duty not to injure the licensee through wilful, wanton, or grossly negligent conduct or to make safe a dangerous condition of which the owner is aware. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). To support her claimed status as an invitee, appellant cites Shell Chemical Co. v. Lamb for the proposition that the duty owed by a general contractor to the employees of the subcontractor is the duty owed by an occupier of land to a business invitee. 493 S.W.2d 742, 746 (Tex. 1973). Lamb is inapplicable to this case, not only because the general contractor-subcontractor relationship does not apply, but also because this case is governed by the Tort Claims Act, under which appellees owed appellant only the duty owed to a licensee unless appellant paid for the use of the premises. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). Appellant concedes that she never directly paid a cash fee to either appellee. However, she asks this Court to extend the requirement that a fee be paid for the use of the premises to encompass the rendering of services that benefit the owner or occupier of the premises. Appellant argues that a property owner should not enjoy greater protection when one he pays for services is injured than when one who pays for entry onto his property is injured. We decline to make such an extension, which is clearly in opposition to the language of section 101.022(a). Appellant also cites State Department of Highways & Public Transportation v. Kitchen and Simpson v. Harris County to support her contention that the courts look beyond a literal interpretation of the statute. In Simpson, the plaintiff sued Harris County under the Texas Tort Claims Act after she fell on the steps outside the Harris County Family Law Center. 951 S.W.2d 251 (Tex. App.—Houston [14th Dist.] 1997, no writ). Simpson contended, inter alia, that the status of invitee should be conferred upon her because she had been at the Law Center paying filing fees associated with a divorce case. Id. at 253. In Kitchen, a cause of action arising out of a motor vehicle accident on a highway, the plaintiff argued that because he paid vehicle registration and licensing fees, he was an invitee of the State. 867 S.W.2d 784, 786 (Tex. 1993). The Kitchen and Simpson courts determined that the fees paid by those appellants were not the fees contemplated by section 101.022(a). Id. at 786-87; Simpson, 951 S.W.2d at 253. These cases do not support appellant’s claimed invitee status. Clearly, appellant here did not pay for the use of the premises as contemplated by the statutory language. Therefore, under section 101.022(a), appellees owed to appellant only the duty owed to a licensee. We overrule appellant’s second issue. III. Summary Judgment Evidence In her first point of error, appellant argues that the trial court erred in granting the no-evidence motion for summary judgment because (a) the affidavit of Michael Yancey is that of an interested party and is incapable of being easily controverted and (b) pictorial evidence depicting the dangerous condition is more than a scintilla of evidence that appellees had actual knowledge of the condition. We need not consider appellant’s complaint regarding Yancey’s affidavit because Harris County was not required to produce any evidence in support of its no-evidence motion; therefore, whether the affidavit was improper summary judgment evidence is irrelevant. In the second part of her first issue, appellant argues that, even if she was a licensee, the pictorial evidence submitted by her constitutes more than a scintilla of evidence, thereby satisfying her burden of proof under a no-evidence motion for summary judgment to show actual knowledge on the part of appellees. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). A governmental entity, under the Tort Claims Act, may only be held liable when it had actual knowledge of a defect. Clay v. City of Fort Worth, 90 S.W.3d 414, 418 (Tex. App.—Austin 2002, no pet.). Constructive knowledge of a dangerous condition is an insufficient basis for holding a governmental unit liable. State v. Tennison, 509 S.W.2d 560, 561 (Tex. 1974). The only summary judgment proof offered by appellant to defeat appellees’ no-evidence motions was five photographs showing a grassy area and a dark spot that is presumably a hole. There is no indication of the size or depth of the hole and no evidence to establish when the photographs were taken or by whom. In addition, there is no evidence to establish when the hole was created. Thus, appellant’s summary judgment evidence, even when viewed in a light most favorable to appellant, was not more than a scintilla of evidence that either Harris County or UTHSC had actual knowledge of the hole. We overrule appellant’s first issue as it relates to actual knowledge. IV. Proprietary Functions of Governmental Units In her third issue, appellant asks this Court to impose a legal duty on appellees because they were engaged in proprietary functions in connection with appellant’s injury. Appellant argues that appellees are “quasi-governmental agencies that should not be given sovereign immunity for proprietary functions.” The doctrine of sovereign immunity does not apply to municipalities when they perform “proprietary,” as opposed to “governmental,” functions. Hodge v. Lower Colo. River Auth., 163 S.W.2d 855, 856 (Tex. Civ. App.—Austin 1942, pet. dism’d by agr.). Neither UTHSC nor Harris County is a municipality. UTHSC is a state agency, and Harris County is a political subdivision of the State of Texas. The state, its subdivisions, and its agencies cannot perform proprietary functions. See Delaney v. Univ. of Houston, 792 S.W.2d 733, 736 (Tex. App.—Houston [14th Dist.] 1990), rev’d on other grounds, 835 S.W.2d 56 (Tex. 1992). We cannot extend the law as advocated by appellant. We overrule appellant’s third issue. CONCLUSION In light of our ruling on appellant’s first, second, and third issues, we need not address appellant’s fourth issue regarding other potential grounds for the trial court’s ruling. We affirm the judgment. Sam Nuchia Justice Panel consists of Justices Nuchia, Hanks, and Higley.