Opinion
No. 04-06-00050-CV.
Delivered and Filed: December 27, 2006.
Appeal from the 407th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-01859, Honorable Karen H. Pozza, Judge Presiding.
SITTING: SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice, REBECCA SIMMONS, Justice.
MEMORANDUM OPINION
San Antonio State Hospital (SASH) appeals a judgment entered in favor of Rose Guerrero for injuries she sustained while working at the hospital. After conducting a legal sufficiency review of the evidence introduced at trial, we conclude the evidence conclusively establishes that Guerrero had actual knowledge of the dangerous condition that resulted in her injury, thereby precluding her recovery against SASH, a state governmental entity. Accordingly, we reverse the judgment of the trial court and render judgment that Guerrero take nothing.
Background
On June 24, 1999, Guerrero, a 73 year-old cook at SASH's canteen number one, was injured when she slipped and fell on some water that had collected on the floor. The water came from a large refrigerator, and was allegedly caused by a condensation buildup. Guerrero sued SASH, asserting that it failed to properly maintain and control the air conditioning system and room temperature. In particular, Guerrero alleged that SASH routinely turned off the air conditioning system at night, causing the refrigerator to condense water, which in turn accumulated on the floor and created an unreasonably dangerous condition.
Guerrero alleged that her suit could be brought under the Texas Tort Claims Act (TTCA) because her claim involved personal injury caused by a condition or use of real property, and SASH would be liable to her according to Texas law if it were a private person. See Tex. Civ. Prac. Rem. Code Ann. § 101.021 (Vernon 2005). SASH answered that it was immune from both suit and liability, subject only to the limited waiver of immunity provided by the TTCA. Id. Ultimately, the case was tried before a jury, which returned a verdict in favor of Guerrero. This appeal resulted.
SASH also filed a plea to the jurisdiction seeking dismissal of Guerrero's suit, which was denied by the trial court and subsequently affirmed by this court. Guerrero argued that the trial court had jurisdiction over the cause for two reasons: (1) her pleadings fell within the TTCA's waiver of immunity for injuries arising out of uses of property; and (2) her pleadings fell within the TTCA's waiver of immunity for premises defects. SASH appealed the trial court's original denial of its plea to the jurisdiction only on the basis of waiver of immunity for injuries arising out of uses of property. Because SASH did not challenge the trial court's decision based on the alternative theory that Guerrero's pleadings fell within the TTCA's waiver of immunity for premises defects, this court affirmed the trial court's order. See San Antonio State Hosp. v. Guerrero, No. 04-04-00396-CV, 2004 WL 2236619 (Tex.App.-San Antonio Oct. 6, 2004, no pet.).
Governmental Immunity
Absent a waiver of immunity, a state entity, such as SASH, is immune from suit. Tex. Dep't of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000). The TTCA provides a limited waiver of immunity, allowing suits to be brought against governmental entities in certain, narrowly-defined circumstances. See Tex. Civ. Prac. Rem. Code Ann. § 101.021; see also Tex. Dep't of Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001). Here, Guerrero submitted her case to the jury under a premises defect theory of liability. Recovery for premises defects against a state entity is restricted by section 101.022, which imposes upon the State the same duty that a private landowner owes a licensee on private property. See Tex. Civ. Prac. Rem. Code Ann. § 101.022(a) (Vernon Supp. 2006). Specifically, the landowner or licensor owes a duty to not injure a licensee "by willful, wanton or gross negligence. . . . An exception to the general rule is that when the licensor has knowledge of a dangerous condition, and the licensee does not, a duty is owed on the part of the licensor to either warn the licensee or to make the condition reasonably safe." Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706, 709 (Tex. 2003) (per curiam) (citing State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974)). A licensee is owed no duty if the dangerous condition is "perceptible" to the licensee or "can be inferred from facts within his present or past knowledge." Miller, 102 S.W.2d at 709 (citing Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561, 564 (Tex. 1976)). Therefore, in order to establish liability against a state entity for a premises defect, a licensee must prove, among other things, that he had no knowledge of the dangerous condition. Miller, 102 S.W.3d at 709. Additionally, "[i]f the licensee has the same knowledge about the dangerous condition as the licensor, then no duty to the licensee exists." Id.
Standard of Review
SASH raises three issues on appeal, including that Guerrero had actual knowledge of the condition that caused her slip and fall injury, i.e., the accumulation of water on the canteen floor, and this knowledge precludes her premises defect claim against a state hospital. When considering a legal sufficiency challenge, we review the evidence in the light most favorable to the verdict giving "credit [to] favorable evidence if reasonable jurors could, and disregard[ing] contrary evidence unless reasonable jurors could not." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We must determine "whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." Id. Evidence is legally insufficient when the record discloses: (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Id. at 810.
Testimony
We begin by summarizing the relevant evidence introduced at trial. Guerrero testified that she worked as a cook in canteen number one. On June 24, 1999, she had arrived at 6:00 a.m. and began turning on the lights in the kitchen when she slipped and fell, breaking her kneecap. Although Guerrero denied knowing there was water on the floor on the day she was injured, she admitted that she knew there was water on the floor "from time to time." However, on the day in question, Guerrero maintains the water had extended farther than it normally did. During direct examination, Guerrero stated, "[w]ell, I was walking and I stayed towards my left, thinking that there wouldn't be any water there, but there was." Later, Guerrero stated, "I was walking towards my left to go into the kitchen, and the water had gotten far enough where I stepped into it and I didn't see it." Upon discovering the water in the past, Guerrero had complained to her employer, Jesse Rasor. Rasor told her that the water came from condensation.
Jesse Rasor is legally blind. Rasor is employed by the Texas Commission for the Blind and operated the vending facility at SASH through the Texas Commission for the Blind. '
Jesse Rasor and his wife, Martha Rasor, who also worked at the canteen, testified by deposition that the water on the floor was caused by SASH turning off the air conditioning in the evenings. By turning off the air conditioner, a variance in air temperature was created that caused substantial condensation on the refrigeration equipment; the condensation overflowed the water collection pans under the refrigerators, resulting in water accumulation on the floor. Jesse stated that he first noticed the problem in 1997 or 1998 when SASH's air conditioning unit was replaced. Jesse testified that for the year prior to Guerrero's accident, he had experienced a problem every morning with condensation that had developed overnight, causing water to be on the floor in the morning. Jesse also stated that Guerrero knew about the situation because she was the first one to open the canteen in the morning, and many times she called housekeeping herself to have the water removed. Both Jesse and Martha stated that on several occasions prior to Guerrero's fall, they had reported the problem and its cause to SASH's housekeeping and maintenance departments. On those occasions, SASH personnel would clean up the water because the kitchen staff did not have access to mops.
Ruben Acevedo, SASH's Heating, Ventilating, and Air Conditioning (HVAC) system mechanic, testified that in June 1999, the HVAC system was set and kept at 72 degrees at all times. Acevedo stated that he knew the air conditioning was not turned off at night during June 1999 because he made rounds every morning and would have known if it had been shut off. Acevedo further testified that he was not aware of any complaints that the air conditioning was being shut off at night and causing problems.
Martha Fritz, the safety coordinator for SASH, investigated Guerrero's accident. In the course of her investigation, Fritz interviewed Wayne Adkinson, the acting superintendent for SASH, who told her that in June 1999, SASH kept the air conditioning turned on at all times, maintaining the building temperature at 72 degrees. In her report, however, Fritz concluded that condensation resulting from the air conditioning temperature was a factor in the accumulation of the water on which Guerrero slipped and fell.
Discussion
It is undisputed that prior to her fall, Guerrero knew that water accumulated on the canteen floor at least from "time to time." In conducting a legal sufficiency review, an appellate court cannot "disregard undisputed evidence that allows of only one logical inference." City of Keller, 168 S.W.3d at 814. "Thus, a claimant's admission that he was aware of a dangerous premises condition is conclusive evidence he needed no warning about it." Id. at 815 (citing Miller, 102 S.W.3d at 709-10). In Miller, a store employee slipped and fell when he tripped on stacked boxes while he was descending a stairway with a co-worker. Moments earlier, while ascending the stairway, the employee had noticed boxes stacked along both sides of the stairway's middle section and had commented that the stairs were "kind of slippery or slick." Miller, 102 S.W.3d at 707-08. Because the employee admitted noticing the slippery stairs before he fell, the Texas Supreme Court concluded, as a matter of law, that the employee had actual knowledge of the stairway's dangerous condition. Id. at 709. The court was further persuaded by the corroborating testimony of the employee's co-worker who also noticed the stacked boxes and warned the employee about the slippery stairway. Id. at 710.
Guerrero argues that there is more than a scintilla of evidence to support the jury's finding that she had no knowledge of the dangerous condition "on the day of the accident," only knowledge of "occasional prior instances" of water on the floor. Guerrero cites us to no authority that our review of the evidence as to Guerrero's knowledge is limited to the time immediately preceding her fall. In fact, to the contrary, our Supreme Court has held that a licensee is owed no duty if the dangerous condition is "perceptible" to the licensee or " can be inferred from facts within his present or past knowledge." Miller, 102 S.W.3d at 709 (citing Murphy, 536 S.W.2d at 564) (emphasis added). Accordingly, the correct analysis is whether Guerrero knew of the dangerous condition because she perceived it at or near the time of the incident, or because she could infer it from facts within her present or past knowledge. Clearly, Guerrero knew, based on past observations, that the canteen floor could be wet when she arrived in the morning. Guerrero had worked at the canteen for eight years, and there was testimony that the condensation and water accumulation had been an on-going problem for about a year prior to Guerrero's accident. Moreover, evidence of Guerrero's knowledge is corroborated by Jesse and Martha Rasor's testimony that Guerrero had reported the water problem to them in the past. In fact, Jesse Rasor testified that because Guerrero opened the canteen every morning, she knew from experience that there would be condensation buildup on the floor. The evidence at trial conclusively established that the possibility of a slippery canteen floor was well-known to Guerrero, or could have been inferred by her from facts within her then-present or past knowledge. City of Keller, 168 S.W.3d at 810 (evidence is legally insufficient when the evidence establishes conclusively the opposite of a vital fact).
Guerrero also argues that "SASH waived any claim of error on the issue of Mrs. Guerrero's alleged knowledge of the dangerous condition" because SASH failed to "reurge its motion for directed verdict at the close of the case." However, SASH is not complaining on appeal that the trial court erred in denying its motion for directed verdict. See Horton v. Horton, 965 S.W.2d 78, 86 (Tex.App.-Fort Worth 1998, no pet.) (noting that defendant who moves for a directed verdict after the plaintiff rests, but thereafter proceeds with own case, waives motion for directed verdict unless the motion is reurged at the close of case). Accordingly, Guerrero's argument is without merit and we are permitted to address SASH's argument that Guerrero had actual knowledge of the condition that caused her to slip and fall.
Recently, the Beaumont Court of Appeals analyzed a similar scenario where the appellee slipped and fell at a sewage treatment facility where he was employed. See San Jacinto River Auth. v. Simmons, 167 S.W.3d 603, 610 (Tex.App.-Beaumont 2005, no pet.). The appellee testified that prior to the day he fell, he encountered slippery bio-solid material in the area where he worked "every day," and when he arrived at the sewage facility on the day of the accident, he knew that the area where he worked could be "wet and muddy." Id. The court stated that this testimony indicated that the appellee was "fully aware of the slippery conditions in which he admittedly worked '[t]wo to three times a day, three to five days a week . . . [f]or four years.'" Id. The court concluded that "the possibility of an excessively slippery work-area on the day of the accident was well-known to [the appellee], or could have been inferred by him from facts within his then-present or past knowledge." Id.; see also Miller, 102 S.W.3d at 709.
During oral argument, Guerrero argued that, although she may have known there was water on the floor, she did not know the cause of the problem, and therefore cannot be credited with actual knowledge. We find this argument unpersuasive. First of all, Guerrero did testify that condensation was causing the water accumulation. Although she might not have understood the mechanics behind the condensation, she nonetheless realized that water was coming from the refrigeration equipment on an on-going, intermittent, basis. Furthermore, Guerrero cites no case law demonstrating that a licensee must understand the cause of the dangerous condition in order to have actual knowledge of the existence of the condition. The mere fact that Guerrero witnessed the water on the floor herself on several occasions, reported it to her supervisor, who then reported it to SASH's housekeeping and maintenance departments, is sufficient to show that Guerrero had actual knowledge of the dangerous condition.
Moreover, the evidence establishes that even if we were to accept that Guerrero did not have actual knowledge of the dangerous condition on the morning of the accident, her cause of action against SASH, as a state entity, would still fail. On the morning of the incident, SASH could have had no greater knowledge than the first employee to arrive at the canteen. Because the evidence establishes that Guerrero opened the canteen on the day of the accident, if Guerrero had no knowledge of the water on the floor that morning, then SASH would also have had no knowledge. Since both Guerrero and SASH possessed the same knowledge about the dangerous condition, SASH owes no duty to Guerrero. See Miller, 102 S.W.3d at 709.
Conclusion
Because the evidence conclusively establishes as a matter of law that Guerrero possessed actual knowledge of the dangerous condition that caused her injury, SASH is entitled to immunity under the Texas Tort Claims Act. See Tex. Civ. Prac. Rem. Code Ann. § 101.022(a). Accordingly, we reverse the judgment of the trial court, and render judgment that Guerrero take nothing.