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03/13/2014

Houston Team Wins Reversal for Municipality in Premises Liability Appeal

In the Houston Court of Appeals, Gordon & Rees senior counsel Steve Selbe and Heidi Gumienny recently won the reversal of a denial of a plea to the jurisdiction in a premises liability suit brought against a Texas municipality.

The plaintiff sued the city of Deer Park for negligence and gross negligence for injuries he sustained after falling into a large trash bin at the city’s trash transfer facility. The plaintiff alleged that the city failed to use ordinary care to warn him of, or make safe, the allegedly dangerous condition of which the city was aware. In its plea to the jurisdiction, the city argued that the plaintiff failed to establish any waiver of immunity under the Tort Claims Act, because (1) the plaintiff was a licensee at the time he fell into the bin, and (2) the plaintiff was aware of the dangerous condition on the city’s premises and thus could not establish that the city violated any duty owed to him, under negligence or gross negligence theories of liability. The trial court denied the city’s plea to the jurisdiction.

On March 11, Houston’s 14th Court of Appeal reversed and rendered judgment in the city’s favor. In City of Deer Park v. Hawkins, the court held that the plaintiff failed to establish the necessary waiver of governmental immunity. The appellate court found that the plaintiff’s deposition testimony established his knowledge that the trash bin constituted an open and dangerous condition, and that the city did not owe him a duty to warn of a dangerous condition of which he was aware. The appellate court also found that, because there was no issue of fact regarding the plaintiff’s knowledge of the dangerous condition of the trash bin, the city could not be grossly negligent.

Finally, the 14th Court of Appeals held that the plaintiff failed to plead a theory of negligent implementation of policy, and that even if he had pleaded such theory, the plaintiff could not establish a waiver of immunity under a premises defect theory for the reasons discussed above.

The appellate court reversed the trial court’s order denying the city’s plea to the jurisdiction and rendered judgment dismissing the plaintiff’s suit against the city for lack of subject matter jurisdiction.

To read the opinion, click here.

Heidi Gumienny
Steven D. Selbe



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