City of Houston v. Lucy Caro

Affirmed and Memorandum Opinion filed April 23, 2024

In The

Fourteenth Court of Appeals

NO. 14-23-00319-CV

CITY OF HOUSTON, Appellant

V.
LUCY CARO, Appellee

On Appeal from the 127th District Court
Harris County, Texas
Trial Court Cause No. 2020-63763

MEMORANDUM OPINION

In this interlocutory appeal appellant, the City of Houston, appeals from the
trial court’s order denying its plea to the jurisdiction. Tex. Civ. Prac. & Rem.
Code § 51.014(8). Because there is a fact issue on whether Houston waived its
immunity from suit, we affirm.

BACKGROUND

Houston owns Bush Intercontinental Airport (IAH). Appellee Lucy Caro is
a United Airlines flight attendant. Caro was walking to work in the Terminal D/E
Automated People Mover (APM) area of IAH about 5:00 a.m. when she slipped on
water that had accumulated beneath an air conditioning vent. According to Caro,
she did not see any water or other liquid on the floor before she fell. While laying
on the floor after her fall, Caro observed water drip from the air conditioning vent
above her. Caro could not get up after her fall, and she remained on the floor until
paramedics arrived to take her to the hospital. According to Caro, she did not see a
puddle on the floor after she fell, and there were no warning signs or barricades
present. Caro explained that, after her fall, she “wasn’t looking for a puddle. I
wasn’t even paying attention to tell you the truth.” There were no other witnesses
to Caro’s fall.

Caro injured her right eye and the right side of her body when she landed on
the wet floor. Caro suffered an inoperable tear of a tendon in her right leg. Caro
continues to suffer pain in her right leg when she engages in daily activities such as
walking, sitting, or standing. Caro’s injured right eyebrow experienced nerve
damage. According to Caro, her right eyebrow area remains numb, and it does not
move the same as her left eyebrow.

Houston contracts with Comfort Systems USA, Inc. to operate and maintain
the air conditioning and heating systems at IAH. Houston, on the other hand, is
directly responsible for airport maintenance and custodial work at IAH. This
includes responsibility for inspecting walkways at the airport for “liquids, spills
and debris.”

There were condensation issues affecting the air conditioning vents in the
area where Caro fell as early as 2013. The problems included water dripping from
the vent down to the floor below. The condensation problems persisted for years
after Caro fell. Houston was aware that Comfort Systems was on notice that the

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air conditioning and heating system in the Terminal D/E APM area was in need of
service.

The day before Caro slipped and fell, Houston custodial supervisor Yadira
Gonzalez observed condensation slowly dripping from the air conditioning vent
down onto the floor in the Terminal D/E APM area where Caro would fall the next
morning. Gonzalez also saw a wet floor sign was present. Gonzalez alerted
custodial staff to clean up the water on the floor, and she waited until it was
removed. Gonzalez checked the area again a few hours later, and there was no
water on the floor. Gonzalez checked the floor at the end of her shift about 2:30 in
the afternoon and she saw no water on the floor. Additionally, the wet floor sign
had been moved beside the wall.

Caro filed suit against Comfort Systems and Houston. Eventually, Houston
filed a Traditional and No-Evidence Plea to the Jurisdiction for Final Judgment on
Immunity and Motion for Severance. Houston argued that it had not waived its
immunity under the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem.
Code § 101.025. After conducting discovery relevant to the jurisdictional issue,
Caro filed her response to Houston’s motion. Houston filed a reply in support of
its motion and moved to exclude some of Caro’s evidence. The trial court denied
Houston’s plea without ruling on Houston’s evidentiary objections. This
interlocutory appeal followed.

ANALYSIS

In a single issue, Houston argues that the trial court erred when it denied its
plea to the jurisdiction because it did not have actual knowledge of the water on the
floor that caused Caro to slip and fall.

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I. Standard of Review and Applicable Law

Governmental units are immune from suit unless immunity is waived by
state law. City of San Antonio v. Maspero, 640 S.W.3d 523, 528 (Tex. 2022). A
plaintiff bears the burden of establishing a waiver of immunity under the TTCA.
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). If a
governmental unit has immunity from suit, a trial court lacks subject matter
jurisdiction. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012). A
challenge to a trial court’s subject matter jurisdiction may be asserted by a plea to
the jurisdiction or in a motion for summary judgment. Tex. Dept. of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). We review a trial
court’s ruling on a plea to the jurisdiction de novo. Id. at 228.

A defendant’s plea may challenge either the plaintiffs’ pleadings or the
existence of jurisdictional facts. Id. When, as here, the governmental unit
challenges the existence of jurisdictional facts, we consider relevant evidence
submitted by the parties. See City of Houston v. Ranjel, 407 S.W.3d 880, 887
(Tex. App.—Houston [14th Dist.] 2013, no pet.) (citing Miranda, 133 S.W.3d at
228). If that evidence raises a fact issue as to jurisdiction, the governmental
entity’s plea must be denied because the issue must be resolved by the trier of fact.
Miranda, 133 S.W.3d at 227–28. If the relevant evidence is undisputed or fails to
present a jurisdictional fact issue, however, the governmental unit’s plea must be
granted. Maspero, 640 S.W.3d at 529. The standard of review for a plea to the
jurisdiction based on evidence generally mirrors that of a motion for summary
judgment. Quested v. City of Houston, 440 S.W.3d 275, 280 (Tex. App.—Houston
[14th Dist.] 2014, no pet.). We therefore must credit evidence favoring the
nonmovant and draw all reasonable inferences in the nonmovant’s favor. Id.

The TTCA waives governmental units’ immunity from suit in certain areas

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when the statutory requirements are met, including, as relevant here, cases arising
from alleged premises defects. See Tex. Civ. Prac. & Rem. Code §§ 101.022(a);
Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Miranda,
133 S.W.3d at 224-25. The legislature waived the immunity of governmental units
as to personal injury “so caused by a condition . . . of real property if the
governmental unit would, were it a private person, be liable to the claimant
according to Texas law.” See Tex. Civ. Prac. & Rem. Code §§ 101.021(1)(B), (2),
101.025. Generally, “if a claim arises from a premise 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.” Id.
§ 101.022(a). The duty owed to a licensee requires that “a landowner not injure a
licensee by willful, wanton or grossly negligent conduct, and that the 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.” Sampson, 500
S.W.3d at 391; see City of Houston v. Ayala, 628 S.W.3d 615, 619 (Tex. App.—
Houston [14th Dist.] 2021, no pet.). Here, Caro does not dispute that she must
establish waiver as a licensee.1

To establish waiver under the TTCA, Caro, as a licensee, must prove the
following five elements: (1) a condition of the premises created an unreasonable
risk of harm; (2) the governmental defendant had actual knowledge of the
condition; (3) Caro did not have actual knowledge of the condition; (4) the
governmental defendant failed to exercise ordinary care to protect the licensee
from danger; and (5) the governmental defendant’s failure proximately caused

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Caro did allege that she was an invitee in both her Original Petition and First Amended
Petition. In her response to Houston’s Plea, however, Caro argued only that she was a licensee.
Caro continues that argument on appeal. We therefore need not address whether Caro met the
requirements to qualify as an invitee the day she slipped and fell at IAH.

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injury to the licensee. Sampson, 500 S.W.3d at 391 (citing Payne, 838 S.W.2d at
237).

II. The evidence submitted by the parties creates a fact issue which must be
resolved by the factfinder.
The dispute here focuses on elements 2, 3, and 4 above. Houston initially
argues that Caro failed to establish that it had actual knowledge of the wet floor.
Houston begins its argument by asserting that “the mere possibility that a
dangerous condition could develop over time is insufficient to establish
knowledge.” But then, citing City of Corsicana v. Stewart, Houston acknowledges
that “[a]ctual knowledge may be satisfied by circumstantial evidence if it directly
or reasonably supports a conclusion of knowledge.” 249 S.W.3d 412, 415 (Tex.
2008) (per curiam). We therefore turn to the evidence in the record relevant to the
actual knowledge element.

Caro presented deposition testimony from Patrick McCoy who worked for
Comfort Systems as a manager for building automation at IAH commencing in
2013.2 McCoy testified that he was responsible for the technical and software
controls on IAH’s air conditioning and heating system in 2019. According to
McCoy, the condensation issue with the IAH air conditioning vents dated back to
at least 2013 and continued years past the date Caro fell. The problem created by
the condensation was water would accumulate on the metal air conditioning vents
and then drip down on the floor creating a dangerous situation. According to
McCoy, this problem occurred throughout IAH and, in an effort to correct the
problem, numerous metal vents were replaced with wooden vents. The vent over
the spot where Caro slipped and fell was not replaced as part of this effort to

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McCoy testified that he left Comfort Systems at IAH for a short period of time, but he
returned to working at IAH for Comfort Systems in 2016.

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eliminate the condensation problem.

In addition to Houston’s knowledge of a condensation issue with IAH’s air
conditioning vents spanning years, a City of Houston Custodial Supervisor at IAH,
Yadira Gonzalez, saw the vent above the spot where Caro would slip and fall
dripping less than 24 hours before Caro fell. According to Gonzalez, she worked
as a Custodial Supervisor in the building where the Terminal D/E APM was
located. Gonzalez explained that, as part of her job duties, she “was responsible
for walking my assigned area and checking the area for liquids, spills and debris.”
Gonzalez continued:

On June 20, 2019, I was working First shift at IAH. My shift
began at approximately 6:00 a.m. and ended at approximately 2:30
p.m. While performing my first walkthrough in the area where
Plaintiff allegedly fell, I saw a wet floor sign present. I saw four very
small drops of water in a line approximately five feet before the
escalator. I saw one drop of condensation drip from the A/C’s duct
ventilation in the approximately fifteen minutes I observed the area. I
alerted a custodian to clean the water, waited for her to complete the
task, and then checked to ensure the floor was dry. I took the attached
pictures showing the wet floor signs at approximately 8:48 a.m. and
sent them to my direct supervisors.
I checked this area again sometime before 12:00 p.m. At that
time, there was no water on the floor, and the wet floor sign was
positioned in the area against the wall. I visited the area again at or
before 2:00 p.m. The floor was dry; there was no water on the floor,
and the wet floor sign was positioned in the area against the wall. At
or around 2:35 p.m., I passed through this same area on my way
home. There was no water on the floor, and the wet floor sign was
positioned in the area against the wall.

While Gonzalez states that she notified her supervisors about the spill and
placement of warning signs, no entry was made in the Airport Safety and
Operations Compliance System. In addition, no entry or note was made in the
custodial management system alerting custodial workers in future shifts about the

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dripping air conditioning vent. Then, early the next morning about 5:00 a.m., Caro
did not see a wet floor sign warning pedestrians about the dripping condensation.

Houston argues that Caro failed to present evidence creating a fact issue on
its actual knowledge of a dangerous condition by focusing exclusively on the water
drips on the floor. We instead conclude that the dangerous condition at issue here
is not just the water drips on the floor, but encompasses the air conditioning vent
producing condensation, which in turn drips on the floor, thereby endangering
pedestrians walking in the Terminal D/E APM area. We conclude that the record
evidence, when viewed under the appropriate standard of review, creates a fact
issue on Houston’s actual knowledge of this existing dangerous condition in
Terminal D/E APM. See City of Groves v. Lovelace, No. 09-21-00281-CV, 2023
WL 2533188, at *8 (Tex. App.—Beaumont Mar. 16, 2023, no pet.) (mem. op.)
(“Stated another way, the plaintiffs needed to prove that some City employee or a
City official realized either from the way the tree looked or from being notified by
someone that a dead tree that was in danger of falling was in the City’s right-of-
way on Jackson Boulevard before Scott was injured by the tree.”).

We turn to the next element, Caro’s lack of knowledge of the dangerous
condition. Here, the only evidence in the record on this topic was Caro’s
deposition testimony that she was unaware of the dripping vent or the water drips
on the floor until after she slipped and fell. (CR175, 195) We conclude this
evidence, once again when viewed under the appropriate standard of review,
creates a fact issue on her lack of knowledge of the dangerous condition. See City
of Houston v. Crawford, No. 01-18-00179-CV, 2018 WL 4868306, at *5 (Tex.
App.—Houston [1st Dist.] Oct. 9, 2018, no pet.) (mem. op.) (affirming denial of
governmental unit’s plea to the jurisdiction because there was a fact issue on the
plaintiff’s lack of knowledge regarding the dangerous condition).
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Finally, we turn to the final challenged element, Houston’s duty of ordinary
care. When a governmental unit has actual knowledge of a dangerous condition
and the plaintiff does not, the governmental unit owes a duty to either warn of the
hidden dangers or to make the condition safe. City of Dallas v. Reed, 258 S.W.3d
620, 622 (Tex. 2008). Once again examining the record evidence under the
appropriate standard of review, we conclude there is a fact issue on whether
Houston breached its duty to Caro. Here, the evidence shows that Houston
attempted to eliminate the condensation problem by changing the metal air
conditioning vents in other areas of IAH to wooden vents, but it had not done so in
the area where Caro slipped and fell. In addition, while Houston points to
evidence from its Custodial Supervisor that the water spill had been cleaned up the
day before Caro’s fall, there is other evidence in the record that water was dripping
from the vent immediately after Caro fell, and there was no warning sign or
barricade around the splash area beneath the air conditioning vent.

Because there is a fact issue on each of the three elements challenged by
Houston, we conclude that the trial court did not err when it denied Houston’s plea
to the jurisdiction. We overrule Houston’s single issue on appeal.

CONCLUSION

Having overruled Houston’s issue on appeal, we affirm the trial court’s
order and remand to the trial court for further proceedings.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Bourliot, Zimmerer, and Spain.

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