City of Gainesville v. Suzanne Sharp

Fort Worth, Texas – Personal Injury lawyer represented Appellant with filing this interlocutory appeal against a premises liability claim.

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Sharp sued the City for injuries she sustained on the Gainesville airport tarmac.

On May 17, 2020, Sharp and her instructor pilot landed their plane at the Gainesville

airport to purchase fuel for the plane. Sharp deplaned onto the tarmac with a dog and

began walking toward a grassy area. As she was walking the dog, Sharp tripped on an

unmarked tie-down1 protruding from a depression in the ground, which caused her to

"fall violently face-first on the pavement.” The fall resulted in "serious and disabling

injuries requiring surgical intervention,” and Sharp brought a premises defect claim

against the City under the Texas Tort Claims Act (TTCA). The City then filed a plea

to the jurisdiction asserting it was immune from suit because Sharp was a licensee, not

1

For reference, a tie-down is an iron anchor, bolt, or hook embedded in a

depression in the concrete that is used to tie down or secure an airplane by its wings,

which prevents the plane from being damaged during high winds or a storm.

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an invitee, and as a licensee she was unable to prove that the City had actual

knowledge of an unreasonably dangerous condition. Sharp responded that by landing

at the airport for the sole purpose of purchasing fuel, she paid for the use of the

airport and was therefore an invitee. Sharp also argued that regardless of whether she

was an invitee or a licensee, the overwhelming evidence established fact issues as to

the challenged elements of her TTCA claim, which required the trial court to deny the

City's plea. The trial court denied the City's plea, and this appeal followed.

II. Standard of Review and Applicable Law

Unless the state consents to suit, sovereign immunity deprives a trial court of

subject-matter jurisdiction over lawsuits against the state or certain governmental

units. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). Cities

are political subdivisions of the state and, absent waiver, are similarly entitled to

governmental immunity. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.

2006) (op. on reh'g).

A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack

of subject-matter jurisdiction. Harris Cnty. v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004). A

jurisdictional plea's purpose is to defeat a cause of action without regard to the

asserted claims' merits. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea

may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo

Heights ISD v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). The plea to the jurisdiction

standard generally mirrors that of a traditional motion for summary judgment under

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Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228. Under this

standard, the governmental unit must meet the summary judgment standard of proof

by successfully asserting and supporting with evidence that the trial court lacks

subject-matter jurisdiction. Id. The burden then shifts to the plaintiff, who—when the

facts underlying the merits and subject-matter jurisdiction are intertwined—must

show that there is a disputed material fact regarding the jurisdictional issue. Id. (citing

Huckabee v. Time Warner Ent. Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000)).

Whether the trial court has subject-matter jurisdiction is a legal question that

we review de novo. Miranda, 133 S.W.3d at 226. We review a plea to the jurisdiction

by considering the pleadings, the factual assertions, and all relevant evidence in the

record. City of Houston v. Hous. Mun. Emps. Pension Sys., 549 S.W.3d 566, 575 (Tex.

2018). When reviewing a plea to the jurisdiction that incorporates evidence

implicating the merits of the case, we must "take as true all evidence favorable to the

nonmovant” and "indulge every reasonable inference and resolve any doubts in the

nonmovant's favor.” Miranda, 133 S.W.3d at 228 (citing Sci. Spectrum, Inc. v. Martinez,

941 S.W.2d 910, 911 (Tex. 1997)). If the evidence creates a fact question regarding

jurisdiction, the trial court must deny the plea and leave its resolution to the

factfinder. Id. at 227–28. But if the evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea as a matter of law.

Id. at 228.

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III. Discussion

The TTCA provides a limited waiver of governmental immunity for personal

injury claims arising from premises defects. Tex. Civ. Prac. & Rem. Code Ann.

§ 101.021; Miranda, 133 S.W.3d at 224. Specifically, a governmental unit is liable for

personal injury caused by the condition or use of 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. For such claims, "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). If the claimant paid for the use of the premises, she is an invitee. City of

Fort Worth v. Posey, 593 S.W.3d 924, 927 (Tex. App.—Fort Worth 2020, no pet.) (citing

Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018, at *8 (Tex.

App.—Fort Worth May 19, 2011, pet. denied) (mem. op. on reh'g)).

Here, the elements of Sharp's cause of action depend on whether she was a

licensee or an invitee at the time of her accident. See id. If Sharp was a licensee, she

must show that the City had actual knowledge of the unreasonable risk of harm

created by the tie-down. Id. If she was an invitee, Sharp need only show that the City

knew or should have known of the unreasonable risk of harm—i.e., constructive

knowledge. See id.

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A. Sharp's Status as Invitee or Licensee

The City first disputes whether Sharp paid for the use of the airport premises,

arguing that Sharp was a licensee at the time of her accident. Sharp contends that she

paid for the use of the premises because she and her instructor pilot landed their

plane at the City's airport for the sole purpose of purchasing fuel, and accordingly, she

was an invitee. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

To support her contention, Sharp cites our decision in Posey. In that case, the

claimant, Posey, attended an event hosted at a venue owned by the City of Fort

Worth. Posey, 593 S.W.3d at 927. Posey paid a fee to park at the venue and another fee

to attend the event within. Id. As she exited the venue, Posey tripped over an

obstruction on the sidewalk between the venue and the parking lot and injured

herself. Id. She then brought a premises liability claim against the City of Fort Worth,

which filed a plea to the jurisdiction asserting immunity. Id. On appeal, the City of

Fort Worth argued that Posey was a licensee because the sidewalk where she fell was

open to the public generally, and payment was not required to access it. Id. at 928. We

rejected this argument, holding that "a person is entitled to invitee status if the person

paid to use the premises, regardless of whether other members of the public might

also be present without paying.” Id. at 929. "An invitee is one who enters the property

of another with the owner's knowledge and for the mutual benefit of both.” Id. (citing

Austin v. Kroger Tex., L.P., 465 S.W.3d 193, 202 (Tex. 2015)).

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Sharp argues that, like Posey, she landed at the City's airport for the mutual

benefit of both parties—her need for fuel and the City's sale of fuel. Because she

landed at the City's airport for a purpose connected with the business in which the

airport is engaged—selling fuel—Sharp argues she went to the airport under an

implied invitation and therefore was an invitee. See id.

The City responds that Posey is distinguishable because, unlike Sharp's landing

at the City's airport, Posey paid to park her vehicle in the parking lot and then paid to

enter the venue. See id. at 930. The City did not charge landing fees or tie-down fees at

their airport. Comparatively, the City suggests that a landing fee would have been like

Posey's payment to enter the City of Fort Worth's venue, and a tie-down fee would

have been like Posey's payment to park at the venue. But Sharp did not pay a landing

fee or tie-down fee or even a fee to enter the City's airport premises; rather, she and

her instructor pilot landed at the airport and merely purchased fuel with a credit card.

Consequently, the City asserts that Posey would support Sharp's contention only if

Posey had not paid to park and to enter the City of Fort Worth's venue, and instead,

she had merely purchased a gift inside the venue.

The City further analogizes Sharp's claim to invitee status to a person that

enters a courthouse and purchases a soda from a vending machine inside the

courthouse. The person's purchase of the soda does not constitute payment for use of

the courthouse, and therefore, it does not make the person an invitee. Because Sharp

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did not pay for the use of the airport premises, the City contends that Sharp was a

licensee at the time of her accident.

The plain language of Section 101.022(a) supports the City's argument. See Tex.

Civ. Prac. & Rem. Code Ann. § 101.022(a); Liberty Mut. Ins. Co. v. Garrison Contractors,

Inc., 966 S.W.2d 482, 484 (Tex. 1998) (looking to the plain and common meaning of

the statute's words). To obtain the status of invitee, the TTCA explicitly states that the

claimant must pay "for the use of the premises.” Tex. Civ. Prac. & Rem. Code Ann.

§ 101.022(a); see also Posey, 593 S.W.3d at 929 ("The text of the statute makes a

person's status dependent on whether she has paid for use of the premises.”).

A fee or payment that is merely related to the premises does not constitute

payment for the use of the premises. See Tex. Civ. Prac. & Rem. Code Ann.

§ 101.022(a); City of Houston v. Ayala, 628 S.W.3d 615, 621 (Tex. App.—Houston [14th

Dist.] 2021, no pet.) (concluding that purchasing an airline ticket is not payment for

the entry and use of the airport premises); City of Dallas v. Patrick, 347 S.W.3d 452, 457

(Tex. App.—Dallas 2011, no pet.) (stating that the claimant was an invitee only

because she obtained entry to the zoo through her mother's paid zoo membership);

Sullivan, 2011 WL 1902018, at *8 (finding invitee status only where the payment of a

wedding venue's rental fee was tied to entry onto a particular premises); Clay v. City of

Fort Worth, 90 S.W.3d 414, 417 (Tex. App.—Austin 2002, no pet.) ("Only a fee

charged for entry onto a particular premises is sufficient to confer invitee status[.]”);

Simpson v. Harris Cnty., 951 S.W.2d 251, 253 (Tex. App.—Houston [14th Dist.] 1997,

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no writ) (holding that filing fees paid by litigants are not payments for the use of the

courthouse premises); Churchman v. City of Houston, No. 01-96-00211-CV, 1996 WL

544250, at *2 (Tex. App.—Houston [1st Dist.] Sept. 26, 1996, writ denied) ("If [the

claimant] paid for airport parking, she paid for the use of the parking premises, but

not the airport terminal premises.”); Garcia v. State, 817 S.W.2d 741, 743 (Tex. App.—

San Antonio 1991, writ denied) (finding that the payment of general licensing fees and

fuel taxes does not constitute payment for the use of the public highways of Texas).

Neither Sharp nor her instructor pilot paid a fee for entry onto the airport

tarmac. The only payment Sharp made—directly, or indirectly through her instructor

pilot—was the payment for fuel. Sharp's payment for fuel was merely related to the

premises and did not constitute payment for the use of the City's airport premises.

The City's maintenance and operation of its municipal airport is a governmental

function. See City of Corsicana v. Wren, 317 S.W.2d 516, 521 (Tex. 1958). Indeed, the

City's airport is not engaged in the business of selling fuel, and selling fuel is not its

primary purpose. In addition to selling fuel, the City's airport facilities offer car rental

services, vending machines, catering, 24-hour restrooms, pilots lounge and supplies,

conference rooms, and flight planning. The City did not require Sharp to purchase

fuel upon landing at its airport or otherwise pay for the use of its premises. Sharp and

her instructor pilot could have simply landed their plane, stretched their legs, and

taken the dog to use the restroom without fueling their plane. Accordingly, purchasing

fuel does not constitute payment for the use of the City's airport premises as

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contemplated by Section 101.022(a). Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

Because she did not pay for the use of the premises, we hold that Sharp is not entitled

to invitee status as a matter of law.

B. Actual Knowledge of an Unreasonably Dangerous Condition

Because Sharp was a licensee, the City owed her a duty to protect her from a

dangerous condition of which the City had actual knowledge. See City of Denton v.

Paper, 376 S.W.3d 762, 766 (Tex. 2012); Univ. of Tex. at Austin v. Hayes, 327 S.W.3d

113, 117 (Tex. 2010). If the City established with competent evidence that it did not

have actual knowledge of an unreasonably dangerous condition, then the burden

would shift to Sharp to show there is a disputed material fact as to those jurisdictional

elements. See Paper, 376 S.W.3d at 766; Hayes, 327 S.W.3d at 117.

In its plea and on appeal, the City argues that the evidence establishes that the

condition of the tie-down was not unreasonably dangerous and that the City

consequently did not have actual knowledge of any alleged dangerous condition. In

support of its argument, the City relies on the security-camera video of Sharp's

accident, Sharp's deposition, the deposition of the City's airport manager, David

Vinton, and photos of the tie-down. The video shows Sharp holding miscellaneous

items in her hands, walking from the plane toward a grassy area of the airport facilities

with a dog on a leash, and suddenly falling. In her deposition, Sharp testified that she

was looking toward the grassy area and had not been looking at her feet when she fell.

In Vinton's deposition, he testified that the airport's tarmac and original tie-downs

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had remained unchanged since the airport opened at the end of World War II and

that Sharp had been the only person known to have tripped and fallen over a tiedown hook or claimed to have been injured as a result of the condition of the tarmac.

Not one of the thousands of citizens who had previously attended large public events

on the airport tarmac was known by the City to have experienced, reported, or

observed anything problematic with the tie-downs. Vinton also testified that the City's

airport staff had been trained by the Federal Aviation Administration to inspect for

and discover potential hazards on the airport tarmac and that they had inspected the

airport daily. Further, Vinton testified that there are no mandatory federal, state,

county, or city requirements for marking the tie-downs at the City's airport, and the

airport's tie-downs in fact complied with the FAA's recommended guidelines.

In her response to the City's plea, Sharp argued that the overwhelming

evidence established fact issues as to the City's actual knowledge of the unreasonably

dangerous condition of the tie-down. In support of her argument, Sharp's evidence

consisted of the parties' written discovery, the depositions of Sharp and Vinton,

photos of the tie-down, Google Maps photos of the City's airport, and the City's

incident report following Sharp's accident. Vinton testified that the City was aware of

the existence of the unmarked tie-down prior to Sharp's accident. The photos of the

tie-down show that it was unmarked at the time of Sharp's accident, that it blended in

with the tarmac, and that it was not readily distinguishable from the surrounding

tarmac surface or visibly apparent. The Google Maps photos show that there are

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other tie-downs at the airport marked with a yellow "T” shape. Vinton testified that

these other tie-downs were painted in the "T” shape "[p]er Federal regulations” and

to direct aircraft how to approach the tie-down area. But when questioned why some

tie-downs had not been similarly marked, Vinton testified that the City had not

"found a need” to mark all the airport's tie-downs. Sharp also pointed to Vinton's

testimony that the City had marked other areas of the airport that the City had

determined to be trip hazards, including a curb at the airport's terminal and a curb at

the airport's fuel island. Additionally, the City's incident report explains that Sharp

"caught her foot in one of the 'tie-down' hooks that [was] cemented in, in a

depression.” Vinton explained, in his "professional opinion,” that Sharp did not see

the in-ground tie-down depression and, as a result, fell. Notably, the report reflects

that the accident was not investigated.

While the question of whether a specific condition is unreasonably dangerous is

ordinarily a fact question, some "particularly innocuous or commonplace hazards are

not unreasonably dangerous as a matter of law.” United Supermarkets, LLC v. McIntire,

646 S.W.3d 800, 802 (Tex. 2022); see also Scott & White Mem'l Hosp. v. Fair, 310 S.W.3d

411, 415 (Tex. 2010) (holding that a patch of ice on the road causing a patron to slip

and fall was not unreasonably dangerous as a matter of law); Brinson Ford, Inc. v. Alger,

228 S.W.3d 161, 163 (Tex. 2007) (holding that a pedestrian ramp did not pose an

unreasonable risk of harm as a matter of law); Brookshire Grocery Co. v. Taylor, 222

S.W.3d 406, 408–09 (Tex. 2006) (holding that the wet floor in front of a self-serve

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soft-drink dispenser was not unreasonably dangerous as a matter of law); M.O. Dental

Lab v. Rape, 139 S.W.3d 671, 676 (Tex. 2004) (holding that naturally accumulating

mud was not unreasonably dangerous as a matter of law).

In a recent opinion, the Supreme Court of Texas analyzed when a specific

condition may be unreasonably dangerous. See McIntire, 646 S.W.3d at 803.

2

"A

condition is unreasonably dangerous if 'there is a sufficient probability of a harmful

event occurring that a reasonably prudent person would have foreseen it[,] or some

similar event[,] as likely to happen.'” Id. (quoting Seideneck v. Cal Bayreuther Assocs., 451

S.W.2d 752, 754 (Tex. 1970)). To determine what constitutes an unreasonably

dangerous condition, a court must consider the following factors: "whether the

relevant condition was clearly marked, its size, whether it had previously caused

injuries or generated complaints, whether it substantially differed from conditions in

the same class of objects, and whether it was naturally occurring.” Id. at 803 (citing

Brinson Ford, 228 S.W.3d at 163; Brookshire Grocery Co., 222 S.W.3d at 408; M.O. Dental

Lab, 139 S.W.3d at 675–76; and Seideneck, 451 S.W.2d at 754). Here, based on the

2

The McIntire opinion was released after this court heard oral arguments in the

present case. See id. In that case, a customer sued a grocery store after she sustained

serious injuries from tripping over an approximately 3/4-inch divot in the grocery

store's parking lot. Id. at 801. The court held that the divot was not unreasonably

dangerous as a matter of law, emphasizing that "in so holding, [the court] make[s] no

broad pronouncements on whether pavement defects constitute unreasonably

dangerous conditions, and [the court does] not opine on whether another larger or

differentially situated defect could pose an unreasonable risk of harm.” Id. at 805.

Because McIntire is distinguishable, we do not reach the same conclusion.

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factors from McIntire, we cannot say that the condition of the tie-down was not

unreasonably dangerous as a matter of law.

Regarding whether the condition was clearly marked, it is undisputed that the

tie-down was not marked at the time of Sharp's accident.

As for the size of the tie-down and the depression in which it was cemented,

Vinton testified that the tie-down opening was at least one-and-a-half inches, and it

was elevated less than an inch above the ground. Sharp asserts, based on the photos

she submitted with her response, that the depression is ten to twelve inches long and

about four inches wide, which is large enough for a person wearing shoes to step their

foot into, as Sharp did. And the City confirmed that Sharp caught her foot in the tiedown. In contrast, the "profoundly ordinary” divot in McIntire measured only 3/4 of

an inch deep, and unlike here, that divot did not encompass a partially buried, metal

tie-down hook that protruded from the ground. See 646 S.W.3d at 803.

That the tie-down had not previously caused injuries or generated complaints

does not establish as a matter of law that the tie-down was not unreasonably

dangerous. "Although such evidence would be probative, it is not required.” Pitts v.

Winkler Cnty., 351 S.W.3d 564, 573–74 (Tex. App.—El Paso 2011, no pet.) (citing Hall

v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 645 (Tex. App.—Houston [1st Dist.]

2005, pet. denied)). Vinton testified that the City was not aware of anyone else ever

falling on the airport tarmac. But Vinton also conceded to the possibility that

someone could have tripped and simply not notified the City.

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Regarding whether the tie-down substantially differed from conditions in the

same class of objects, there were several tie-downs throughout the airport tarmac like

the one Sharp tripped over. However, unlike other tie-downs at the airport, this

specific tie-down was not marked with a yellow "T.”

Lastly, regarding whether it was naturally occurring, there is no dispute that the

condition of the tie-down did not naturally occur. Vinton testified that the United

States government seized the land and built the airport during World War II to

quickly train pilots. The airport tarmac, including the tie-downs, was originally built by

the U.S. government as part of its airfield operation.

3 In contrast, the parking lot divot

in McIntire was a "[t]iny surface defect[] in pavement” that was "ubiquitous and

naturally occurring.” 646 S.W.3d at 803. The supreme court compared the 3/4-inch

3

These facts are nearly identical to the facts of a federal New York case. See

Venturella v. United States, No. 83-CIV-2585, 1987 WL 15259 (E.D.N.Y. July 27, 1987).

In that case, Venturella was injured at a United States owned and operated park in

New York that had once been an Air Force base. Id. at *1. Part of the park had metal

tie-down loops implanted into the cement that had been used to hold down airplanes

when the area was an airfield. Id. While walking back to his parked car, Venturella

stepped into a four-inch depression and tripped over one of the metal tie-down loops,

causing him to fall. Id. Venturella's resulting injuries required surgical intervention,

and he sued the U.S. government pursuant to the Federal Tort Claims Act. Id. (citing

28 U.S.C. § 1346(b)(1)).

Witness testimony established that the area of the park with the tie-downs was

not restricted to parking, the tie-downs were not marked, and there were no signs

warning guests to watch their step. Id. at *3. The district court concluded that the

government knew of the existence of the tie-downs and took no steps to protect

potential guests from the tie-downs' obvious danger. Id. at *4. Thus, the court found

that under New York law, the omission of adequate warning of the existence of the

tie-downs and the improper maintenance of the premises amounted to negligence for

which the government was liable to Venturella. Id. at *4.

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parking lot divot to the accumulation of mud on a man-made surface, "which may

occur 'without the assistance or involvement of unnatural contact.'” Id. at 803 n.5

(quoting M.O. Dental Lab, 139 S.W.3d at 676). The court stated that claimants "will

encounter small divots like the one at issue . . . regularly[,] and accidents are 'bound to

happen, regardless of the precautions taken by landowners.'” Id. Here, the condition

of the government-built tie-down was not a tiny surface defect in pavement, it was

not "ubiquitous and naturally occurring,” and it in fact occurred only as a result of the

assistance or involvement of unnatural contact. And ultimately, there exists a fact

question regarding whether, had the City taken precaution, Sharp's accident would not

have been "bound to happen.” See id.

Nothing in the McIntire opinion suggests that all factors must be established in

favor of the claimant to show that a specific condition is unreasonably dangerous. See

generally 646 S.W.3d 800. Accepting as true all evidence favorable to Sharp, indulging

all inferences in her favor, and resolving all doubts in her favor, we conclude that

Sharp has raised a fact issue regarding whether the condition of the tie-down was

unreasonably dangerous.

Finally, to prove actual knowledge, Sharp must show that the City had actual

knowledge "of the dangerous condition at the time of the accident.” City of Corsicana v.

Stewart, 249 S.W.3d 412, 413 (Tex. 2008). "[T]here is no one test for determining

actual knowledge[.]” Univ. of Tex.–Pan Am. v. Aguilar, 251 S.W.3d 511, 513 (Tex.

2008). While courts may consider whether the landowner has received reports of prior

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accidents as evidence of actual knowledge, lack of notice of similar accidents does not

conclusively negate actual knowledge. Id.; City of Houston v. Crawford, No. 01-18-00179-

CV, 2018 WL 4868306, at *4 (Tex. App.—Houston [1st Dist.] Oct. 9, 2018, no pet.)

(mem. op.) (citing City of Irving v. Seppy, 301 S.W.3d 435, 444 (Tex. App.—Dallas 2009,

no pet.)). Actual knowledge can sometimes be proven through circumstantial

evidence when the evidence "either directly or by reasonable inference” supports that

conclusion. State v. Gonzalez, 82 S.W.3d 322, 330 (Tex. 2002); Seppy, 301 S.W.3d at 444.

The City, as the entity responsible for the operation and maintenance of the

airport, knew of the existence of the unmarked tie-down prior to Sharp's accident and

had known of its existence since the City first acquired the airport at the end of World

War II. The City knew that, although this tie-down was not marked, there were other

tie-downs at the airport that had been marked with a yellow "T.” The City also knew

of the existence of other trip hazards at its airport, acknowledging that they should be

painted or marked "to advise folks” of their potential hazard and in fact marking them

as such. And the fact that the City had not received reports of prior accidents does

not conclusively negate the City's actual knowledge.

Accepting as true all evidence favorable to Sharp, indulging all inferences in her

favor, and resolving all doubts in her favor, we conclude that Sharp has raised a fact

issue regarding the City's actual knowledge of an unreasonably dangerous condition.

Because Sharp presented sufficient evidence to show there is a disputed

material fact regarding whether the condition was unreasonably dangerous, the trial

court properly denied the City’s plea to the jurisdiction on Sharp’s premises defect

claim. Accordingly, we affirm the trial court’s ruling.