Date: 10-05-2017

Case Style:

Case Number: 05-17-00157-CV

Judge: Bridges

Court: Texas Court of Appeals, Fifth District on appeal from the 191st District Court, Dallas County

Plaintiff's Attorney: Aaron Herbert and Marissa Maggio for Leslie Papierski

Defendant's Attorney: Sonia Ahmed, Barbara E. Rosenberg, Molly Parks Ward and Jennifer Carter Huggar

Description: Appellee Leslie Papierski sued the City of Dallas after she slipped and fell on a puddle of
water inside the Kay Bailey Hutchison Convention Center arena. The City filed a plea to the
jurisdiction asserting immunity under the Texas Tort Claims Act. The trial court denied the
City’s plea to the jurisdiction. On appeal, the City argues the trial court erred by denying its plea
to the jurisdiction because Papierski failed to demonstrate the City had actual or constructive
notice of a dangerous condition.1 We reverse the trial court’s order and render judgment
dismissing Papierski’s claims for want of subject matter jurisdiction.
1 In a second issue, the City argues there is no subject matter jurisdiction for Papierski’s negligence claim separate from her premises
liability claim. See City of Dallas v. Prado, 373 S.W.3d 848, 855 (Tex. App.—Dallas 2012, no pet.) (concluding general negligence claim based
on City’s alleged failure to make an area safe was subsumed within her premises defect claim and therefore City’s governmental immunity was
not waived). During oral argument, Papierski agreed with the City; therefore, we need not address this argument further on appeal. TEX. R. APP.
P. 47.1.
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Background
On January 12, 2013, the Dallas Convention Center hosted a cheerleading competition.
Papierski attended the competition with her daughter. While walking down a ramp in the arena,
Papierski slipped and fell on a small puddle of water she did not see. She injured her elbow,
knee, and back. At approximately the same time and location, another person slipped and fell
while walking up the ramp. The incidents were reported to the Convention Center. The reports
stated, “building was undergoing water penetration repairs; however, no penetration had ever
occurred previously in this area before.” A subsequent search of incident reports revealed no
reports of past roof leaks or injuries in the area from water on the ramp.
Papierski filed suit against the City alleging, among other things, that it “knew or
reasonably should have known of the dangerous condition located on the premises” and was
negligent for “failing to ensure the [] walking area was safe for invitees to use.” The City filed a
plea to the jurisdiction arguing Papierski could not establish a waiver of governmental immunity
under the Texas Tort Claims Act because there was no evidence it had actual or constructive
knowledge of the puddle on the floor. Both sides filed objections to various documents
supporting either the plea to the jurisdiction or the response; however, the trial court did not rule
on the objections. After a hearing, the trial court denied the City’s plea to the jurisdiction. This
appeal followed.
Standard of Review
A plea to the jurisdiction is a dilatory plea in which a party challenges a court’s authority
to determine the subject matter of the action. Rawlings v. Gonzalez, 407 S.W.3d 420, 425 (Tex.
App.—Dallas 2013, no pet.). The existence of subject matter jurisdiction is a question of law;
therefore, we review de novo the trial court’s ruling on a plea to the jurisdiction. Id.
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The plaintiff bears the burden to plead facts affirmatively demonstrating governmental
immunity has been waived and that the court has subject matter jurisdiction. State v. Holland,
221 S.W.3d 639, 642 (Tex. 2007). A governmental entity’s plea to the jurisdiction can be based
on pleadings or evidence. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226
(Tex. 2004). When, as here, a plea to the jurisdiction challenges the existence of jurisdictional
facts, we consider the relevant evidence submitted by the parties to determine if a fact issue
exists. Id. at 227.
The standard of review for a jurisdictional plea based on evidence “generally mirrors that
of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Id. at 228; City of Dallas
v. Prado, 373 S.W.3d 848, 852 (Tex. App.—Dallas 2012, no pet.). We take as true all evidence
favorable to the nonmovant, indulging every reasonable inference and resolving any doubts in
the nonmovant’s favor. Prado, 373 S.W.3d at 853. The burden is on the City, as movant, to
meet the standard of proof. Id. If the evidence creates a fact question regarding the
jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue
will be resolved by the factfinder. Id. However, if the relevant evidence is undisputed or fails to
raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction
as a matter of law. Id.
The Evidence
Before considering the merits of the City’s plea to the jurisdiction, we must address the
evidence presented in the City’s plea and Papierski’s subsequent objections to that evidence.
The City attached to its plea to the jurisdiction, among other things, the affidavits of City
employees Ernie Williams and Bonnie Zitek. Papierski objected to the affidavits on several
grounds: lack of personal knowledge, hearsay, best evidence rule violations, self-serving
statements of an interested witness, unsubstantiated opinions, and subjective determinations.
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Generally, to preserve an objection for appellate review, the trial court must either make
an express or implicit ruling. TEX. R. APP. P. 33.1. The trial court did not expressly rule in
writing or orally rule on Papierski’s objections to the City’s evidence. However, for purposes of
preservation of error, “an appellate court treats a party’s objections to defects in the ‘form’ and
the ‘substance’ of an affidavit differently.” Stone v. Midland Multifamily Equity REIT, 334
S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.). Defects in substance are those that leave
the evidence legally insufficient and may be raised for the first time on appeal despite the trial
court’s failure to rule on the objections. Id. A defect in form of an affidavit must be objected to
in the trial court, and the failure to obtain a ruling waives the objection. Id.
Objections to hearsay, best evidence, self-serving statements, and unsubstantiated
opinions are considered defects in form. See id. at 374–75 (hearsay); Lagou v. U.S. Bank Nat’l
Ass’n, No. 01-13-00311-CV, 2013 WL 6415490, at *4 (Tex. App.—Houston [1st Dist.] Dec. 5,
2013, no pet.) (mem. op.) (best evidence); S&I Mgmt., Inc. v. Sungju Choi, 331 S.W.3d 849, 858
(Tex. App.—Dallas 2011, no pet.) (self-serving); Montemayor v. Chapa, 61 S.W.3d 758, 763
(Tex. App.—Corpus Christi 2001, no pet.) (unsubstantiated opinion). Because Papierski failed
to obtain a ruling on any of these objections, she has waived her complaints on appeal. To the
extent Papierski argues their affidavits are “sham affidavits,” her objection is likewise a defect in
form for which she obtained no ruling from the trial court. See Hogan v. J. Higgins Trucking,
Inc., 197 S.W.3d 879, 883 (Tex. App.—Dallas 2006, no pet.).2
Papierski attacks Zitek’s and William’s lack of personal knowledge regarding
information in the affidavits and further argues they made subjective determinations. Assuming
Papierski preserved her complaint for appeal, we conclude statements made in the affidavits
2 Moreover, even if she had obtained a ruling on this objection, Papierski has failed to support her argument with any case law explaining
the sham affidavit doctrine and applying it to the facts of this case. See TEX. R. APP. P. 38.1(i).
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show the affiants were speaking from personal knowledge. See Shepherd v. Mitchell, No. 05-14-
01235-CV, 2016 WL 2753914, at *3 (Tex. App.—Dallas May 10, 2016, no pet.) (mem. op.).
Stating that one is “personally acquainted” with the facts contained in the affidavit is
sufficient to meet the personal knowledge requirement. Cooper v. Circle Ten Council Boy
Scouts of Am., 254 S.W.3d 689, 698 (Tex. App.—Dallas 2008, no pet.). Further, one’s
“knowledge concerning its operations and organization” is sufficient to demonstrate how the
affiant became familiar with the facts at issue. Id.; see also Sturm v. Phil Arms Ministries, Inc.,
No. 14-99-01086-CV, 2001 WL 333228, at *3–4 (Tex. App.—Houston [14th Dist.] Apr. 5,
2001, no pet.) (concluding affiant’s position as operations manager provided personal knowledge
of possible dangerous conditions on church property to support affidavit statements).
Here, Zitek’s affidavit stated she “personally acquired the facts stated herein and they are
true and correct.” She explained she was employed as a Facilities Manager III for the
Convention Center. Her duties involved overseeing maintenance and repair of the Convention
Center, which included carpentry, painting, plumbing, electrical, and a variety of other building
maintenance. She further explained a roofing contractor was hired in January 2013 to perform
work on portions of the Convention Center, and the work did not involve repair of the section
where Papierski fell “because water had not penetrated that area prior to the accident in
question.” Based on Zitek’s position as Facilities Manager III and her explanation of her duties
in that position, she established her personal knowledge and familiarity with the facts stated
within her affidavit. See Cooper, 254 S.W.3d at 698; Sturm, 2001 WL 333228 at *4. We
overrule Papierski’s personal knowledge objection to Zitek’s affidavit.
Similarly, Williams’s affidavit establishes that his job responsibilities qualify him to have
personal knowledge of the facts expressed in his affidavit. He stated he was “personally
acquainted with the facts stated herein and they are all true and correct.” He explained he was a
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warehouse supervisor as well as the incident/injury investigator for the Convention Center’s
safety management team. As part of his job, he received notification of any accident or injury
reports in the Convention Center. He stated the Convention Center maintained such records in
the normal course of business. Given his position and duties regarding injury reports, he
established his personal knowledge to provide information regarding his “exhaustive, diligent,
and thorough search of the records maintained by the [Convention Center] concerning any
complaints or accident/incident reports involving water on the floor due to a leaking roof at the
location made the basis of this lawsuit.” See Cooper, 254 S.W.3d at 698; Sturm, 2001 WL
333228 at *4. We overrule Papierski’s personal knowledge objection to Williams’s affidavit.
To the extent Papierski argues the affidavits are based on subjective determinations
because “the affiants claim they obtained information from other sources and/or documents but
do not attach[] documents or records relied on to the affidavits,” she has failed to challenge any
specific statement or identify the documents within either affidavit. See TEX. RS. APP. P. 33.1,
38.1(i). Moreover, she acknowledges the body of case law in which a person’s position or job
responsibilities can qualify them to provide opinions in support of affidavit testimony. As
previously stated, we conclude the affidavits meet this requirement.
Lastly, Papierski objected to the City’s use of her deposition testimony because it did not
contain a court reporter’s certification, and she objected to two exhibits because they were not
properly authenticated and constituted hearsay. Deposition excerpts submitted as summary
judgment evidence are not required to be authenticated. McConathy v. McConathy, 869 S.W.2d
341, 342 (Tex. 1994) (per curiam); Horton v. Stovall, No. 05-14-01477-CV, 2015 WL 7873728,
at *2 (Tex. App.—Dallas Dec. 4, 2015, pet. denied) (mem. op.). An objection that documents
are unauthenticated and hearsay are objections to the form of the evidence that must be ruled on
by the trial court. Freeman Fin. Inv. Co. v. Toyota Motor Corp., 109 S.W.3d 29, 33 (Tex.
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App.—Dallas 2003, pet. denied). Because Papierski did not obtain a ruling on these objections,
they are waived. Having overruled all of Papierski’s objections to the City’s evidence, we now
consider the merits of the City’s plea to the jurisdiction.
Applicable Law
Whether a governmental unit is immune from tort liability for a particular claim depends
entirely upon statute. Dallas Cnty. Mental Health & Mental Retardation v. Bossley, 968 S.W.2d
339, 341 (Tex. 1998). As relevant to this case, the Texas Tort Claims Act provides a limited
waiver of immunity for “personal injury and death so caused by a condition or use of tangible
personal or real property if the governmental unit would, were it a private person, be liable to the
claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (West
2011). If a claim arises from a premises defect, the governmental entity 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). Because Papierski paid for the use of the
Convention Center, the City’s duty owed to her is that of invitee. See City of Dallas v.
Davenport, 418 S.W.3d 844, 847 (Tex. App.—Dallas 2013, no pet.).
For an invitee to establish a premises liability claim, the invitee must show that: (1) a
premises condition created an unreasonable risk of harm to invitee; (2) the landowner had actual
or constructive knowledge of the condition, and that the condition was unreasonably dangerous;
(3) the landowner failed to exercise ordinary care to protect the invitee from danger; and (4) the
landowner’s failure was a proximate cause of injury to the invitee. Zook v. Brookshire Grocery
Co., 302 S.W.3d 452, 454 (Tex. App.—Dallas 2009, no pet.). The City challenged the second
element of her claim in its plea to the jurisdiction.
Actual knowledge on the part of a governmental entity requires knowledge that the
dangerous condition existed at the time of the accident, as opposed to constructive knowledge
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which can be established by facts or inferences that a dangerous condition could develop over
time. Prado, 373 S.W.3d at 854; see Reyes v. City of Laredo, 335 S.W.3d 605, 608 (Tex. 2010)
(per curiam). “Awareness of a potential problem is not actual knowledge of an existing danger.”
Reyes, 335 S.W.3d at 609. Although the absence of reports is just one factor to consider when
determining whether a premises owner had actual knowledge of a dangerous condition, “courts
generally consider whether the premises owner has received reports of prior injuries or reports of
the potential danger presented by the condition.” Prado, 373 S.W.3d at 854 (citing Univ. of
Tex.-Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex. 2008) (per curiam)).
Here, the City presented the following evidence through affidavit and deposition
testimony that it had no actual knowledge of the puddle on the arena floor prior to Papierski’s
fall. Williams conducted an “exhaustive, diligent and thorough search” of the records
concerning any complaints or accident/incident reports involving water on the floor due to a
leaking roof at the location where Papierski fell. He did not find any reported falls in that
location the six months prior to her fall on January 12, 2013. He also reviewed records for the
year prior to her fall and did not find any complaints regarding water leaking from the section of
the roof immediately above the floor where she fell. In his deposition, he testified in the two
years prior to the incident, no one had reported to him any water pooling on the floor.
Zitek acknowledged the Convention Center was undergoing roof repairs—specifically in
Exhibit Halls A and B—because water was penetrating some areas of the 600,000 square-foot
facility. However, the facility consists of numerous exhibit halls3 and the “contractor was not
repairing the section of the roof immediately above the floor where Papierski slipped and fell
because water had not penetrated that area prior to the accident in question.” The City’s answers
3 The Convention Center includes Exhibit Halls A through F, lobbies, different office areas, the theater, the arena, the parking garage, and
various escalators and elevators. The arena comprises approximately 21,000 square feet of the Convention Center.
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to interrogatories also indicated roof replacement prior to the incident in “the lower part of roof
C, and the administration building, which are not the sites of Plaintiff’s fall.” The City, however,
acknowledged the administration building is within a fifty-foot radius of the location where
Papierski fell.
The area where Papierski fell is referred to as an “arena concourse ramp.” Zitek
acknowledged that prior to the incident, other ceiling leaks had been reported in Exhibit Halls A,
B, C. D, and E. The arena, although attached to Exhibit Hall A, is not a part of the exhibit hall;
rather, it is considered a separate area. Zitek could not recall any reported leaks in the arena area
prior to the fall.
Elizabeth Scoggins, the events coordinator, testified she had no knowledge of any reports
of water penetration in the arena concourse area prior to Papierski’s fall.
Securitas provided security for the Convention Center. When an incident occurred, it
was notified and made written reports. Securitas had no written reports of water leaks from the
ceiling at the Convention Center from January 1, 2012 through January 12, 2013.4
There is no evidence the City placed the water on the floor, and the above evidence
establishes the City did not have actual knowledge the water was on the floor. It cannot be
concluded the City had actual knowledge of water on the arena ramp when it had no knowledge
of any leaks above the arena ramp.
Papierski argues the City had actual knowledge because of roof leaks in other locations of
the Convention Center thereby creating a fact issue to defeat the City’s plea to the jurisdiction.
She relies on the deposition testimony of Randy Barner, the maintenance manager, who testified
that between February 2009 and January 2013 he personally investigated “dozens” of ceiling
4 Kent Security also provided security; however, it was “closed” at the time documents were requested via deposition by written questions
and it “do[es] not retain records of a closed business passed retention policy.”
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leaks throughout the entire convention center. “[A]t one point or another, there’s been a leak in
every area.” However, this testimony does not establish the City had actual knowledge of the
puddle on the arena concourse ramp where Papierski fell on January 12, 2013. See, e.g., City of
San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996) (noting evidence of person in
charge of facility knowing it was raining and knowing of leaks in the roof did not necessarily
equate to knowledge of dangerous condition but rather knowledge “might” be inferred by a jury
depending on position of leaks and amount of rain); Coward v. H.E.B., Inc., No. 01-13-00773-
CV, 2014 WL 3512800, at *4 (Tex. App.—Houston [1st Dist.] July 15, 2014, no pet.) (mem.
op.) (evidence store manager knew it was raining, that the store had prior leaks, and she was
looking for leaks in other locations when fall occurred did not demonstrate H.E.B. “actually
knew that there was a dangerous condition on the aisle” where fall occurred). Similarly, the fact
that the administration building, which was within a fifty-foot radius of Papierski’s fall and a part
of the roof replacement project going on prior to January 12, 2013, does not establish the City’s
knowledge of leaks or water puddles in the specific location on the specific date she fell.
Accordingly, there is no evidence to support the conclusion the City had actual knowledge of a
dangerous condition, and Papierski’s evidence does not create a fact issue.
We now consider whether the City had constructive notice of the dangerous condition.
Constructive knowledge can be established by showing the condition existed long enough for the
owner or occupier to have discovered it upon reasonable inspection. Wal-Mart Stores, Inc. v.
Reece, 81 S.W.3d 812, 814 (Tex. 2002). The so-called “time-notice rule” is based on the
premise that temporal evidence best indicates whether the owner had a reasonable opportunity to
discover and remedy a dangerous condition. Id. An employee’s proximity to a hazard, with no
evidence indicating how long the hazard was there, merely indicates that it was possible for the
premises owner to discover the condition, not that the premises owner reasonably should have
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discovered it. Id. Constructive notice demands a more extensive inquiry. Id. Without some
temporal evidence, there is no basis upon which the factfinder can reasonably assess the
opportunity the premises owner had to discover the dangerous condition. Id.
Courts further consider whether the dangerous condition is conspicuous. Id. at 816. For
example, if a large puddle of dark liquid is on a light floor, an employee’s proximity to the
condition might shorten the time in which one could conclude the premises owner should
reasonably have discovered it. Id. Similarly, if an employee was in close proximity to a less
conspicuous hazard for a continuous and significant period of time, that too could affect the
factfinder’s consideration of whether the premises owner should have become aware of the
condition. Id. “But in either case, there must be proof of how long the hazard was there before
liability can be imposed on the premises owner for failing to discover and rectify, or warn of, the
dangerous condition.” Id.
What constitutes a reasonable time for a premises owner to discover a dangerous
condition varies depending upon the facts and circumstances presented. Id. As explained above,
the City demonstrated it had no knowledge of any roof leaks, of any complaints about water
puddling on the floor, or of any other incidents of falls caused by puddles in the area where
Papierski fell.
Papierski admitted in her deposition she did not know how long the water had been on
the ramp prior to her fall. She provided no evidence describing the condition of the puddle that
might indicate how long it had been there. See, e.g., Kofahl v. Randall’s Food & Drugs, Inc.,
151 S.W.3d 679, 681 (Tex. App.—Waco 2004, pet. denied) (concluding testimony that edges of
“large” puddle of liquid were “very tacky and gummy” as if “starting to dry up” supported a
finding liquid had been on floor for sufficient time to charge premises owner with constructive
notice of its presence). She could not remember if her hands or clothes were wet from the fall.
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She described the amount of water as “maybe a puddle . . . maybe six inches, five inches in
diameter.” However, this does not establish the puddle was conspicuous.
Although Papierski again relies on Barner’s testimony that there were leaks
“everywhere” in the Convention Center, such evidence is not relevant for our inquiry. The fact
that other areas of the Convention Center had leaks does not provide the necessary temporal
evidence to establish the puddle was present on the arena ramp long enough to create a fact issue
regarding the City’s constructive knowledge of the dangerous condition at the time she fell. See
Coward, 2014 WL 3512800, at *6; see also Biermeret v. Univ. of Tex. Sys., No. 2-06-240-CV,
2007 WL 2285482, at *6 (Tex. App.—Fort Worth Aug. 9, 2007, pet. denied) (mem. op.)
(“Consequently, because no pleadings or jurisdictional evidence exists that UTA possessed
actual or constructive knowledge not just that the tile floor in the shower area was prone to
become wet and slick, but that on the date in question it actually had become wet and slick prior
to Biermeret’s fall, Biermeret has not shown that if UTA were a private person it would be liable
to him.”). There must be some proof of how long a dangerous condition existed before a
premises owner may be charged with constructive notice. Reese, 81 S.W.3d at 815. This rule “is
firmly rooted in our jurisprudence.” Id. Papierski presented no such evidence.
We conclude Papierski failed to raise a fact issue regarding the City’s actual or
constructive knowledge of a dangerous condition. Therefore, Papierski’s premises liability claim
under the Texas Tort Claims Act is barred by governmental immunity. We sustain the City’s
issue.

Outcome: We grant the City’s plea to the jurisdiction and render judgment dismissing Papierski’s
general negligence and premises liability claims for want of subject matter jurisdiction.

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