Prairie View a & M University and Bill Turner D/B/A Turner Mechanical Services v. Eddie Ray Brooks

Reversed and Rendered and Opinion filed October 20, 2005

Reversed

and Rendered and Opinion filed October 20, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00501-CV

____________

PRAIRIE VIEW

A&M UNIVERSITY AND

BILL

TURNER D/B/A TURNER MECHANICAL SERVICES , Appellants

V.

EDDIE RAY BROOKS , Appellee

On Appeal from the 9th

District Court

Waller County , Texas

Trial Court Cause No. 01-07-15997

O P I N I O N

Prairie View A&M University (the A University @ ) appeals a

judgment granted in favor of Eddie Ray Brooks for injuries Brooks sustained

while repairing a pipe on the University = s campus. After conducting a legal sufficiency review

of the evidence introduced at trial, we conclude there is no evidence that the

University had actual knowledge of the dangerous condition that resulted in

Brooks = injury. For this reason, Brooks cannot establish a

waiver of sovereign immunity under the Texas Tort Claims Act ( A TTCA @ ), and the trial

court lacked jurisdiction to enter judgment.

We accordingly reverse the judgment of the trial court and render

judgment dismissing the case for lack of jurisdiction.

I.

Factual and Procedural Background

The University hires contractors to

maintain and service many of its mechanical systems. Appellant Bill Turner, d/b/a Turner

Mechanical Services ( A Turner @ ), was one of

these contractors and at the time of trial had been servicing systems at the

University sporadically for thirty years.

In October 2000, Turner had a maintenance contract with the University

to maintain and repair the University = s steam delivery

system, among other systems. Appellee

Eddie Ray Brooks was an independent contractor working for Turner. At the time of trial, Brooks had worked for

Turner for approximately ten years, doing most of his work on the University = s campus.

Because of the length of time that Turner

and Brooks had worked on the University = s campus, they

knew some of the University = s employees

well. Aaron Watson was the University = s Plant

Superintendent and had worked for the University for twenty-eight years. Charles Muse was the University = s Chief Engineer

and had worked for the University for

twelve years. The testimony at

trial established that Turner and Brooks had known and worked around Watson and

Muse for a long time. In fact, at the

time of the incident in this case, Watson = s cousin was

actually working on Turner = s crew.

A. The

University = s Health Center Valve Begins Leaking.

On October 25, 2000, Watson went to the

University = s Health Center and heard steam

venting. He investigated the sound and

determined that the steam valve at the Health Center ( A Health Center

Valve @ ) was leaking and

needed to be repaired. He contacted his

supervisor, Muse, to inform him of the situation. Turner was contacted to perform the

repair.

The Health Center Valve needed to be

isolated prior to beginning the repair.

Watson first tried to secure the Health Center Valve by heading upstream

on the campus steam system to find an upstream isolation valve that would

deprive the Health Center of its supply of steam. The first upstream isolation valve that

Watson tried was at Evans Hall ( A Evans Isolation

Valve @ ). The Evans Isolation Valve was not working;

although Watson tried to turn the valve, it would not close. Watson admitted that he had difficulties with

the Evans Isolation Valve in the past, and he knew when he tried to turn it off

that it probably would not work.

When Watson failed to secure the broken

Health Center Valve by shutting off the Evans Isolation Valve, he went further

upstream to find the next isolation valve that was in working order. The second isolation valve that Watson

approached was the isolation valve for a low pressure line that provided steam

and heat to the southwest campus ( A Southwest

Isolation Valve @ ).

Under Watson = s supervision, a colleague used a pipe

wrench to shut off the Southwest Isolation Valve. Watson testified that shutting off this

isolation valve should have deprived steam to the low pressure line feeding

steam to the southwest campus, which included the broken Health Center

Valve. Watson further testified that he

believed he had in fact shut down the steam that fed the broken Health Center

Valve by turning off the Southwest Isolation Valve, and thereafter, he called

his supervisor, Muse, to inform him that the steam to the southwest campus had

been shut off.

Watson testified that, when he shut off

the Southwest Isolation Valve, he heard or felt some turbulence in the

pipe. Turbulence is the movement of

steam through the pipes, and the turbulence or change in pressure that may be

heard or felt when a valve is turned can predict whether a valve was effective

in shutting off steam. [1]

B. Turner = s Crew Arrives to

Repair the Valve.

The next morning, Turner and his crew

showed up to repair the leaking Health Center valve. Muse told Turner that the steam feeding the

southwest campus had been shut off, and Turner informed his crew of this fact. In addition, Watson may have told Turner = s crew that the

steam had been shut off. Turner = s crew accordingly

began to repair the broken valve.

Repair work began, but Turner = s crew, which that

morning included Watson = s cousin, was having difficulty reaching

the bolts that needed to be removed to perform the repair. Because of Brooks = relatively small

size, Brooks climbed into the pit where the valve was located to assist with

the repair. Brooks first checked the

pipe leading to the broken valve to confirm that it was cool to the touch. A pipe being fed with steam would ordinarily

be so hot that a person could not touch it, but could instead feel the heat

inches away from the pipe. The fact that

the pipe was cold assured Brooks that steam was not present in the pipe.

Brooks began his work by hammering two

bolts on the pipe in order to remove the valve.

When this effort was unsuccessful, he began to use his cutting

torch. After working on the first bolt

with his torch, he broke the first bolt loose with his hammer, and a small

amount of water dripped out of it, again suggesting that there was no steam in

the pipe. He then began cutting the

second bolt. When he was finished, he

extinguished his cutting torch. At this

point, steam exploded from the pipe and burned Brooks. His coworkers removed him from the pit, and

after assessing his injuries, took him to the local hospital.

C. An

Open Bypass Line Caused the Accident

The testimony in the record indicates that

Watson should have been able to shut off the steam to the southwest campus by

closing the Southwest Isolation Valve.

The Southwest Isolation Valve should have closed off the low pressure

line that fed steam to the southwest campus, including the Health Center. If steam was not being fed to the University = s southwest

campus, the broken Health Center Valve should have been safe to repair.

But, the low pressure line feeding the

southwest campus was not the only steam line on the University = s campus. Alumni Hall, which housed the University = s dining

facilities, also received steam from a second line, a high pressure line, used

to power the cooking kettles in the Alumni Hall kitchen. Although the Southwest Isolation Valve was

located near this high pressure line, Watson testified that he did not believe

that there was any reason to also turn off this second, high pressure

line. By design, this second, high

pressure line existed for the purpose of feeding the cooking kettles, and not

to supply steam to the low pressure line feeding the southwest campus.

Apparently, however, a bypass line had

been created for the purpose of providing backup steam to the cooking kettles

(the A Bypass Line @ ) in the event

that there was a problem with the high pressure line ordinarily used for this

purpose. The Bypass Line tied the low

pressure line and the high pressure line together, so that steam from the low

pressure line could be used to power the cooking kettles if necessary. Because the Bypass Line tied into the low

pressure line past the point of the Southwest Isolation Valve, it had the

potential to permit steam to enter the low pressure line that should have been

isolated by shutting the Southwest Isolation Valve.

This is in fact what occurred when steam

severely burned Brooks during the repair of the Health Center Valve. After the incident, the University determined

that the Bypass Line was open, permitting steam from the high pressure line to

escape into the low pressure line feeding the southwest campus, and

accordingly, to the broken Health Center Valve which Brooks had been

repairing. The reason that this pipe had

been cold to Brooks = touch was likely that someone had turned

off the broken Health Center Valve, preventing steam in the line from traveling

in this direction. When Brooks

effectively reopened this valve by knocking the bolts off of the pipe, steam

from the high pressure line entered the low pressure line feeding the southwest

campus and escaped to burn Brooks.

D. What

the University Knew About the Bypass Line.

Whether the University had actual

knowledge of the Bypass Line was a subject of dispute at trial. Watson and Muse both denied knowledge of the

Bypass Line, testifying that they were

not aware of its existence in the complex maze of piping underneath Alumni

Hall. [2] According to them, the Bypass Line was not

supposed to exist.

Although there was no testimony indicating

that Muse had actual knowledge of the Bypass Line, Turner directly contradicted

Watson = s testimony that

Watson did not know the line

existed. Turner had installed the Bypass

Line about a year and a half earlier.

Turner testified he believed Watson was aware of the existence of the

Bypass Line because he recalled that Watson was present at the Bypass Line = s fabrication and

installation. Turner also testified that

he would not have installed this line without Watson = s permission,

therefore he believed Watson must have been aware of the Bypass Line.

There was no testimony at trial that

anyone at the University had actual knowledge that the Bypass Line created the

dangerous condition of permitting steam to enter the low pressure line that

supplied the southwest campus. For

example, there was no testimony that Watson or Muse or anyone else at the

University knew that the Bypass Line had been turned on, as opposed to

remaining in an A off @ position for

as-needed use. According to Turner, the

Bypass Line could be turned on and off by a valve on the line itself. Turner testified that the Bypass Line valve

should not have been turned on and that the Bypass Line itself should not have

been open. At the time of the incident,

the high pressure line feeding the cooking kettles was on and working, so there

was no need to open the Bypass Line to obtain additional steam from the low

pressure line. Turner stated that he did

not know who had turned the Bypass Line on, but Turner acknowledged that

Marriott, one of the University = s cooking

contractors, opened and closed valves they needed for cooking regularly.

In addition, there was no testimony that

Watson or Muse understood that the Bypass Line, which was not part of the

piping system = s original design, connected to the low

pressure line downstream of the Southwest Isolation Valve, rendering this valve

ineffective as an isolating mechanism.

Watson testified that he believed he had adequately shut off the steam

to the southwest campus by turning off the Southwest Isolation Valve. No one contradicted Watson = s testimony, and

there is no testimony indicating that Watson had actual knowledge of the

presence of steam in the pipes leading to the valve that needed to be repaired.

E. Brooks = Lawsuit Against

the University.

Brooks sued the University to recover for

his injuries. Brooks = pleadings allege

that the University was negligent by failing to shut off all the steam flowing

through the piping system. Brooks also

alleged a waiver of sovereign immunity because Brooks = claim involved

personal injury caused by the condition or use of property.

By its answer, the University asserted A full sovereign

immunity from suit and liability, @ and specifically

denied that Brooks had asserted a claim under ' 101.021 of the

TTCA. The University also asserted a

third-party claim against Turner for contribution, bringing him into the suit. [3] Thereafter, with respect to its assertion of

sovereign immunity, the University filed special exceptions, arguing that

Brooks had failed to clearly plead a claim that was actionable under the TTCA

and requesting that the court either require Brooks to replead or dismiss the

action.

Brooks filed an amended pleading in

response, alleging alternative theories under the TTCA. He claimed that the University waived

immunity because the use or misuse of the piping and shut-off valves constituted

the negligent use or misuse of either tangible personal or real property. He also alleged that the University was

responsible as an owner of defective or improperly designed real property, by

failing to replace broken valves and by creating a bypass line. At no point did Brooks allege in his

pleadings that the University had actual knowledge of a dangerous condition

existing on the University = s campus.

In response, the University filed a second

set of special exceptions, again arguing that plaintiff = s pleadings were

inadequate, and stating:

Defendant would

move that the allegations be stricken and that Plaintiff be required to plead

with specificity the alleged dangerous condition of the premises in question .

(Defendant, Prairie View A&M University = s Special

Exceptions to Plaintiff = s Second Amended Petition (emphasis

original)).

We cannot determine from the record on

appeal whether the trial court considered the issue of sovereign immunity prior

to trial. Apparently the trial court did

not rule on the University = s special

exceptions until after the first witness, Watson, had testified, at which time

the court simply noted on the record that A [i]t = s denied. @ Prior to the close of the evidence, neither

the trial court, nor the parties, focused on the issue of what the alleged

dangerous condition was, or whether the University had actual knowledge of it.

At trial, Brooks sought to establish

various lapses on the University = s part. Calling Watson adversely as his first

witness, Brooks established among other things that Watson failed to follow

University procedures precisely in attempting to secure the leaking valve; [4]

that there was no updated master diagram detailing the University = s steam system,

which valves were broken, and which valves needed to be shut off in order to

effectively isolate part of the system; and that, if the first isolation valve

Watson had approached, the Evans Isolation Valve, had been working, the accident

would not have occurred.

At the close of the evidence, the

University again urged the issue of sovereign immunity, arguing in a motion for

a directed verdict that the evidence failed to establish a waiver of immunity

under a premises theory. Among other

things, the University challenged the existence of a dangerous condition and

claimed that there was no evidence it had actual knowledge of the condition

that caused the injury. The court took

this motion under advisement, and postponed a ruling on the various issues

raised until after the jury had returned a verdict.

The parties submitted the case to the jury

solely under a premises theory. The

charge expressly instructed the jury A that the only

allegedly dangerous condition was steam in the pipes. @ The charge further instructed the jury that

the University was negligent with respect to the condition of the premises if,

among other things, A Prairie View A&M University had actual

knowledge of the danger. @ [5]

The jury returned a verdict for Brooks,

finding the University and Turner were negligent, but Brooks was not. The University and Turner both moved for

judgment notwithstanding the verdict.

The University again argued that it had no actual knowledge of the

dangerous condition and that the evidence was legally and factually insufficient

to support the jury = s verdict.

The court denied these motions and entered a final judgment. The University and Turner appealed.

II.

Analysis

The University raises five issues on

appeal, asserting that (1)

Chapter 95 of the Civil Practice and Remedies Code imposes additional

limitations on the TTCA = s waiver of sovereign immunity, (2) Brooks failed to

establish that the University had actual knowledge of the dangerous condition

that caused his injuries, (3) the TTCA does not provide a cause of action based

on the failure to use property, (4) the TTCA does not provide a cause of action

based on a discretionary budgetary decision, and (5) the TTCA does not provide

a cause of action based on an improperly designed piping system.

We sustain the University = s second issue and hold the evidence is legally insufficient to

establish that the University had actual knowledge of the dangerous condition

that caused Brooks = injury. [6] Accordingly, there is no waiver of sovereign

immunity under the TTCA, and we must render judgment dismissing the case for

lack of jurisdiction. Because dismissal

is appropriate, we do not address the University = s remaining issues on appeal. Similarly, because the only claim against

Turner is the University = s third-party claim for contribution, which is derivative of

Brooks = claim against the University, it is

unnecessary to address the issues Turner has raised on appeal.

A. A

Court Must Address Subject Matter Jurisdiction.

The Texas Supreme Court has recently

reiterated that courts must address questions of subject matter jurisdiction at

the A earliest

opportunity @ to do so.

Tex. Dep = t of Parks & Wildlife v. Miranda , 133 S.W.3d 217,

226 (Tex. 2004). This is because such

questions implicate a court = s authority to

act. Id. ; see also Harris

County v. Sykes , 136 S.W.3d 635, 638 (Tex. 2004). For the same reason, questions of jurisdiction

A cannot be waived,

and may be raised for the first time on appeal. @ See Waco Indep. Sch. Dist. v. Gibson ,

22 S.W.3d 849, 850 (Tex. 2000) (holding that it was error for appellate court

to decline to address jurisdiction on

ground that issue had not been preserved for review A because subject

matter jurisdiction is essential to the authority of a court to decide a case @ ).

Here, the University asserts its sovereign

immunity, arguing that the TTCA = s limited waiver

of immunity does not apply in this case.

This allegation raises a question of subject matter jurisdiction that we

must address as a preliminary matter on appeal. [7] See Miranda , 133 S.W.3d at 224

(detailing the procedure for raising, and ruling on, a plea to the jurisdiction

based on a waiver of sovereign immunity under the TTCA); Gibson , 22

S.W.3d at 850 . Courts must remain A mindful that this

[jurisdictional] determination must be made as soon as practicable, @ utilizing their

discretion to assess jurisdiction promptly, given the needs of a particular

case. Miranda , 133 S.W.3d at 227 .

The TTCA = s limited waiver

of sovereign immunity, Tex. Civ. Prac.

& Rem. Code ' ' 101.001‑.109, provides that

immunity from suit and immunity from liability are co-extensive. Id. at ' 101.025 ( A Sovereign immunity

to suit is waived and abolished to the extent of liability created by this

chapter. @ ); see also

Miranda , 133 S.W.3d at 224 . This

provision effectively creates a situation in which evaluating whether subject

matter jurisdiction exists in a given case may require a court to examine the

merits of a plaintiff = s claims.

Id. at 226 . We are faced

with such a circumstance here, and we must determine whether jurisdiction

exists by examining the elements of Brooks = claim under the

TTCA.

Brooks = claim against the

University was tried to the jury. It is

not clear from the record why jurisdictional questions were not addressed at an

earlier stage of the proceedings, such as the pleading stage or by a motion for

summary judgment, but perhaps the trial court was taking care not to invade the

jury = s province, given

the fact that the jurisdictional question was intertwined with the merits of

the case. Although Miranda had

not been issued when this case was tried, we note that Miranda

thoroughly details the procedure that courts and litigants should follow in

examining questions of subject matter jurisdiction under the TTCA. See 133 S.W.3d at 226 B 28.

B. A

Deferential Standard of Review Applies to Jury Findings.

Whether a court has subject matter

jurisdiction is a question of law. Tex.

Natural Res. Conservation Comm = n v. IT-Davy , 74 S.W.3d 849,

855 (Tex. 2002). Review of

determinations of subject matter jurisdiction occurs de novo . Miranda , 133 S.W.3 d at 226. However, Miranda recognizes that

reviewing jurisdictional determinations may require appellate courts to examine

the evidence supporting a claim. Id.

at 228 . In such a circumstance, when a

trial court has examined the evidence and made a pre-trial ruling on subject

matter jurisdiction, Miranda requires reviewing courts to employ the

familiar summary judgment standard of review, holding that a reviewing court

must A take as true all

evidence favorable to the nonmovant, @ and A indulge every

reasonable inference and resolve any doubts in the nonmovant = s favor. @ Id . at 228.

This case, however, was tried to a jury,

and accordingly reaches us in a procedural posture different from Miranda ,

and somewhat different from most other cases that raise challenges to subject

matter jurisdiction under the TTCA. [8] As a consequence, Miranda does not

clearly dictate the standard of review we must apply to jury findings that bear

on the showing necessary to establish subject matter jurisdiction. We believe, however, that a review of Miranda

illuminates the path we should take.

Miranda expressly holds

that the existence of a fact issue on the jurisdictional inquiry precludes a

court from granting a plea to the jurisdiction.

The Court stated:

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 fact finder. 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.

*

* *

This standard allows the

state in a timely manner to extricate itself from litigation if it is truly

immune. However, by reserving for the

fact finder the resolution of disputed jurisdictional facts that implicate the

merits of the claim or defense, we preserve the parties = right to present the merits of their

case at trial.

133 S.W.3d at 227 B 28 (citations omitted).

This reasoning makes clear that the court intends for jury findings to

play a role in determinations of subject matter jurisdiction when disputed

facts are relevant to the jurisdictional inquiry.

For this reason, we hold that the proper standard of review

to apply to the jury = s findings in this case is the familiar

legal and factual sufficiency standard for review of determinations by the

finder of fact. Though not expressly

ruling on a question of subject matter jurisdiction, our court has employed

these standards to evaluate a jury verdict on the merits of a claim under the

TTCA in the past. See, e.g., Harris

County v. Gibbons , 150 S.W.3d 877, 881 (Tex. App. C Houston [14th

Dist.] 2004, no pet.) (employing legal and factual sufficiency standards to

review a verdict under the TTCA).

Relying on Texas Department of Criminal Justice v. Miller , 51 S.W.3d 583 ,

587 B 88 (Tex. 2001) , the University argues that this

Court must not defer to the jury = s verdict, or to reasonable

inferences that the jury may have drawn from the evidence produced at trial,

because this case involves a question of jurisdiction. Miller does not stand for such a

proposition. Rather, Miller

involved an interlocutory appeal after summary judgment proceedings, not a jury

verdict, and required only that the reviewing court examine A the evidence submitted by the

parties. @

Id. at 587 . The University

does not have any support for its position that a court must disregard jury

findings, which in any event is contrary to the reasoning of Miranda .

We will accordingly employ the traditional

legal sufficiency review of the jury = s verdict in this

case under the legal sufficiency guidelines that the Texas Supreme Court has

recently reiterated and further explained in City of Keller v. Wilson ,

168 S.W.3d 802 (Tex. 2005). [9] See also Harris County v. Vernagallo ,

__ S.W.3d __, No. 03-00619, 2005 WL 1771128 (Tex. App. C Houston [14th

Dist.] July 28, 2005, n.p.h.) (restating standard pursuant to Keller ). As an appellate court, we consider the

evidence in the light most favorable to the verdict and indulge every

reasonable inference that supports it. Keller , 168 S.W.3d at 821 B 22. The evidence is legally sufficient if it

would enable reasonable and fair-minded people to reach the verdict under

review. Id. at 827 B 28. We credit favorable evidence if reasonable

jurors could, and disregard contrary evidence unless reasonable jurors could

not. See id. The trier of fact is the sole judge of the

witnesses = credibility and the weight to be given

their testimony. See id. at 819 B 21. We cannot substitute our judgment for that of

the jury, so long as the evidence falls within the zone of reasonable

disagreement. See id. at 821 B 22. But, A if the evidence

allows of only one inference, neither jurors nor the reviewing court may

disregard it. @ Id. ; see also Vernagallo , 2005 WL

1771128, at *5 .

We may sustain a legal sufficiency, or no

evidence, point if the record reveals one of the following: (1) the complete absence 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 scintilla, or (4) the evidence established

conclusively the opposite of the vital fact.

Keller , 168 S.W.3d at 810 .

C. The

TTCA Grants a Limited Waiver of Sovereign Immunity.

Before examining the evidence in this

case, we begin by discussing the nature of sovereign immunity under the

TTCA. The TTCA contains only a limited

waiver of sovereign immunity. State

entities such as the University are ordinarily immune from suit and liability. [10] The TTCA creates an exception to the general

rule of immunity A only in certain, narrowly defined

circumstances. @ Miller ,

51 S.W.3d at 587 . The TTCA A does not waive

sovereign immunity for all negligence claims against governmental units. @ Id.

There will accordingly be cases in which a state entity was clearly

negligent but will not be held liable. See,

e.g., id. at 588 (failure to properly recognize and treat symptoms of

meningitis was A allegation only of negligence, @ which does not,

without more, waive immunity under the TTCA).

The TTCA specifically waives immunity

under the following circumstances.

Section 101.021, entitled A Governmental

Liability, @ provides:

A governmental unit in the state is

liable for:

(1) property damage, personal

injury, and death proximately caused by the wrongful act or omission or the

negligence of an employee acting within his scope of employment if:

(A) the property damage, personal

injury, or death arises from the operation or use of a motor-driven vehicle or

motor-driven equipment; and

(B) the employee would be

personally liable to the claimant according to Texas law; and

(2) 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 ' 101.021. This grant of immunity permits recovery

against the State for injuries in three general circumstances, including (1)

the use of motor driven vehicles, (2) the condition or use of personal

property, and (3) premises defects, or the condition of real property. County of Cameron v. Brown , 80 S.W.3d

549, 554 (Tex. 2002).

Recovery for premises liability based on

the condition of real property is further restricted by section 101.022, which

in relevant part imposes upon the State the duty that a private landowner owes

a licensee:

(a) 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.

Tex. Civ. Prac. & Rem.

Code ' 101.022(a). This section provides the only means of

establishing premises liability against the State. Miranda , 133 S.W.3d at 233 (stating

that the TTCA = s A scheme of a

limited waiver of immunity from suit does not allow plaintiffs to circumvent

the heightened standards of a premises defect claim contained in section

101.022 by re-casting the same acts as a claim relating to the negligent

condition or use of tangible property @ ); State v.

Tennison , 509 S.W.2d 560, 561 (Tex. 1974) (rejecting claim that TTCA A creates two entirely

separate grounds of liability @ involving

premises).

A private landowner = s duty to a

licensee A 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. @ State Dep = t of Highways

& Public Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992). Accordingly, the State may be liable for a

dangerous or defective condition on its premises if it either (1) injured a

person by willful, wanton or grossly negligent conduct, or (2) if State had

actual knowledge of the dangerous condition, the injured person had no such

knowledge, and the Stated failed to warn the person of the condition or make

the condition safe.

Here, Brooks did not plead or prove that

the University was grossly negligent or that it injured him by willful or

wanton conduct. Instead, Brooks

submitted this case to the jury only under the theory that a dangerous

condition existed on the premises that the University failed to warn him about

or make safe. To sustain a claim under

this theory, Brooks was required to prove, among other things that the state

had actual knowledge of a dangerous condition and that he had no actual

knowledge of that condition. See

State Dep = t of Highways & Public Transp. v.

Kitchen , 867 S.W.2d 784, 786 (Tex. 1993) ( A [L]iability for a

premise defect requires a finding that the State actually knew of the dangerous

condition. @ ).

D. There Is No Evidence of Actual Knowledge

of the Dangerous Condition.

As the Texas

Supreme Court noted over thirty years ago in Tennison , A [a]ctual knowledge

rather than constructive knowledge of the dangerous condition is required @ to sustain a

premises claim against the State. 509

S.W.2d at 562 ( A The clear intent of the legislature was to

limit the State = s immunity in tort claims arising from

premise defects by imposing the same duty upon the State as that owed by

private persons to a licensee on private property. @ ). This requirement has been reaffirmed through

the years and continues to be a limitation on the State = s liability under

the TTCA. See, e.g., See City

of San Antonio v. Rodriguez , 931 S.W.2d 535, 536 (Tex. 1996) (city = s knowledge of a

leaky roof did not establish its awareness of a wet floor, which was the

dangerous condition that caused injury); Kitchen , 867 S.W.2d at 786 ( A The icy bridge in

this case was a premise defect, and since the jury failed to find that the

State was aware of the defect before the accident, the State is not liable to

plaintiffs. @ ); see also Creek v. Tex. State Dep = t of Highways

& Public Transp. , 826 S.W.2d 797, 802 (Tex. App. C Houston [14th

Dist.] 1992, writ denied) (requiring proof of actual knowledge of damaged sign,

not knowledge of improper sign installation).

Proof of actual knowledge requires a

finding that the State knew of the dangerous condition that caused the injury,

not just proof that the State was aware of a related condition that may create

a danger at some time in the future. In Rodriguez ,

for example, the Texas Supreme Court reversed a jury verdict premised upon a

city = s knowledge that a

roof leaked, stating the A leaky roof was not itself a dangerous

condition; it could only cause a dangerous condition. @ 931 S.W.2d at 536 . The court therefore remanded for a

determination of whether there was actual knowledge of the dangerous condition

that had caused plaintiff = s injury, which was water on the

floor. Id. at 536 B 37 ( A On retrial, the

jury should be instructed that the allegedly dangerous condition was the water

[plaintiff] claims was on the floor. @ ); see also

Dyall v. Simpson , 152 S.W.3d 688, 710 (Tex. App. B Houston [14th

Dist.] 2004, pet. filed) (holding by en banc court that employer = s awareness that

liquid was being pumped through a pipe did not establish awareness of leak in

pipe); Payne , 838 S.W.2d at 238 (holding that the fact a claimant knew

of a culvert = s existence did not establish as a matter

of law his actual knowledge regarding the dangerous location of the culvert).

The requirement that there be proof of

actual knowledge of the dangerous condition that caused the injury is

dispositive in this case. Here, the

dangerous condition that caused Brooks = injury was the

entry of steam into the section of pipe that was being repaired. See, e.g., Rodriguez , 931 S.W.2d at

537 (holding as a matter of law that the dangerous condition was the condition

that actually caused the injury, and not the preliminary A condition [that]

could only cause a dangerous condition @ ); see also

Dallas County Health & Mental Retardation v. Bossley , 968 S.W.2d 339,

343 (Tex. 1998) ( A Property does not cause injury if it does

no more than furnish the condition that makes the injury possible. @ ). Contrary to Brooks = arguments on

appeal, it was not the fact that the Evans Isolation Valve did not work, or the

presence of steam in the pipes generally, [11]

that was the dangerous condition.

Rather, it was the fact that the Bypass Line was open and permitted

steam to enter the section of the pipe that was being repaired. As in Rodriguez , which required a

showing of actual knowledge that water was on the floor, here, the necessary

showing was that the University had actual knowledge that steam would enter the

section of pipe that was being repaired.

There was no evidence at trial that

Watson, or anyone else at the University, actually knew steam would enter the

section of pipe being repaired. Watson

testified that he believed he had shut off steam to the southwest campus, and

no one contradicted this testimony. In

fact, as part of his case, Brooks established that Watson and Muse told Turner

and his employees that steam to the southwest campus had been shut off. In addition, because Watson had turned the

steam off the previous day, any steam remaining in the pipe should have bled

off or cooled by the time the repair was to occur the following morning. Finally, it was undisputed that the pipe that

was being repaired was cool to the touch, and actually dripped water as the

first bolt was removed, suggesting to everyone that it was not filled with

steam. There is no evidence in the

record showing or suggesting that anyone actually knew steam would enter the

pipes near the broken Health Center Valve, but advised repair anyway.

Compounding the absence of direct evidence

of actual knowledge was Brooks = counsel = s argument to the

jury. [12] Despite the clear requirements of the TTCA,

during closing, counsel repeatedly argued that the showing of A actual knowledge @ could be

satisfied by demonstrating that the University should have been aware of

a particular condition. Counsel argued

that A actual knowledge

is something a reasonable person could or should have known under the

circumstances, @ and that A actual knowledge

is knowledge that the person should have, could have, would have known with any

little effort. @

Counsel also argued as follows:

. . . dangerous

steam got into a pipe where it should not have been. And if they would have, should have, could

have, would have known. They should have

known. Don = t get hung up on, A Oh, I didn = t know steam was

in it. @ They should have known steam was in it. Every bit of evidence offered in this case,

every bit of credible evidence tells you they should have known that line was

live. They didn = t know it. No doubt about it. Aaron Watson is not a monster. He = s not credible,

but he = s not a monster. Neither is Charles Muse. But they should have known. Actual knowledge. They should have known steam was in that

line.

Finally, counsel urged the jury not to A get hung up on a

technicality @ like actual knowledge.

Notwithstanding his position at trial,

Brooks nevertheless insists on appeal that the University had actual knowledge

of the presence of steam in the pipe being repaired and claims that this knowledge

was established by inference. We

disagree. Considering all of the

evidence in the record, as we must when state of mind is at issue, Keller ,

168 S.W.3d at 817 B 18 (mandating inclusive standard for A consciousness

evidence @ ), we hold that

none of the facts relied upon by Brooks creates an inference that the

University had actual knowledge that steam would enter the section of the pipe that

was being repaired. As the Texas Supreme

Court stated in Keller , it is error to disregard evidence that is

relevant to a showing of knowledge if a reasonable jury could not have

disregarded such evidence. See id.

at 829 ( A The critical

question in this case was the City = s state of mind C [plaintiffs] had

to prove that the City knew (not should have known) that flooding was

substantially certain. A reviewing court

cannot evaluate what the City knew by disregarding most of what it was told. @ ).

1. Knowledge

of the Bypass Line

Brooks first points to the fact that

Watson knew of the existence of the Bypass Line

to supply the inference that Watson had actual knowledge that steam

would enter the section of pipe being repaired.

Although Watson claimed that he was not aware of this particular Bypass

Line, Turner testified that he believed Watson was aware of the Bypass Line

based on his presence when it was fabricated and installed. Because it is the A province of the

jury to resolve conflicts in the evidence, @ Keller , id.

at 820 , on review, we assume that Watson knew of the Bypass Line = s existence.

Watson = s knowledge of the

existence of the Bypass Line, however, does not establish actual knowledge

that, via the Bypass Line, steam would enter the pipes under repair. There is uncontradicted testimony in the

record supporting the assertion that, because the cooking kettles were working,

the valve on the Bypass Line should have been turned off, rendering the Bypass

Line ineffective. Turner testified that

the Bypass Line was created as a backup steam supply for the cooking kettles,

and that the Bypass Line = s valve should not have been open at the

time of the accident, because the cooking kettles were otherwise being supplied

with steam from the high pressure line.

Turner also testified that the University = s third party

cooking contractors, such as Marriott, had access to this valve and sometimes

turned valves on and off for cooking purposes.

This uncontradicted evidence undermines

Brooks = claim that

Watson, by knowing of the Bypass Line, necessarily knew that steam continued to

supply the low pressure line, and accordingly, the broken Health Center

Valve. In order to support such a claim,

Brooks would have to establish that Watson knew the valve on the Bypass Line

was open. But, there is absolutely no

evidence of this. Rather, assuming

Watson was aware of the Bypass Line, he may have thought it was closed, as

Turner testified that it should have been.

For the jury to conclude that Watson also knew the Bypass Line

was open would have required speculation.

Given the uncontradicted evidence that the Bypass Line should have been

closed, no reasonable jury could have inferred that Watson = s knowledge of the

existence of the Bypass Line, without more, meant that Watson was also aware

that the Bypass Line was open and permitted steam to enter the low pressure

line where the broken valve would be repaired. [13]

2. The

Existence of Turbulence

Brooks also claims that there was no

turbulence when Watson shut down the Southwest Isolation Valve and that this

fact should have alerted Watson that steam continued to flow to the southwest

campus. As an initial matter, we

question whether there was testimony at trial actually showing that Watson

heard no turbulence when shutting down the Southwest Isolation Valve. Watson testified that he heard turbulence,

and in response to an attempt to impeach him with his earlier deposition

testimony, the University = s counsel read into evidence part of

Watson = s deposition, in

which he stated that he A heard some of [the turbulence] cease. @ We will assume for the purposes of review,

however, that this evidence could be viewed as indicating that Watson did not

hear turbulence when shutting the valve.

Even if Watson heard no turbulence when

shutting the Southwest Isolation Valve, an absence of turbulence when shutting

this valve does not establish actual knowledge of the dangerous condition,

i.e., that steam would enter the section of pipe being repaired. The configuration of the University = s piping system

was undisputed, and demonstrates that the Bypass Line tied into the low

pressure line below the Southwest Isolation Valve. Because of this configuration, whether the

Southwest Isolation Valve was open or closed, the Bypass Line, if open, could

continue to supply steam to the low pressure line (and hence, the Health Center

Valve). [14] Therefore, it is not material whether Watson

heard turbulence when shutting the Southwest Isolation Valve, since this fact,

without more, has no bearing on whether the Bypass Line was open and permitted

steam to enter the low pressure line where the repair would be conducted. Given these facts, whether Watson heard

turbulence or not upon shutting the Southwest Isolation Valve does not permit a

reasonable jury to infer that Watson, or anyone at the University, had actual

knowledge of the dangerous condition created by the open Bypass Line.

3. Problems

with Watson = s Credibility

These conclusions are not altered by any

questions that the jury may have had concerning Watson = s

credibility. We note that in conducting

our legal sufficiency review, we have assumed that the jury disbelieved Watson,

both with respect to whether he knew of the Bypass Line and whether he heard

turbulence when shutting the Southwest Isolation Valve. However, even if questions about credibility

permit a jury to disregard a witness = testimony on a

given point, they do not permit a fact finder to disregard uncontradicted facts

that a reasonable juror could not ignore. Keller , 168 S.W.3d at 820 . A Jurors cannot

ignore undisputed testimony that is clear, positive, direct, otherwise

credible, free from contradictions and inconsistencies, and could have been

readily controverted. @ Id. In this case, even assuming that the jury

disbelieved Watson and found that he was not a credible witness, this disbelief

does not overcome other, undisputed facts that were introduced into

evidence. In particular, questions about

Watson = s credibility do

not undercut Turner = s testimony that a valve on the Bypass

Line, which should have been closed, was actually open. Neither do such questions confer significance

on the aspect of turbulence, when it was undisputed that the steam was being

supplied from a source downstream of the isolation valve.

Put simply, A [c]rediting all

favorable evidence that reasonable jurors could believe and disregarding all

contrary evidence except that which they could not ignore, @ we hold that

there is no evidence that the University had actual knowledge of the presence

of steam in the pipes to be repaired. See

Keller , id. at 830 . On the

evidence introduced at trial, a reasonable jury could not have found that the

University had actual knowledge of the dangerous condition that steam would

enter a section of pipe that would be repaired.

We have carefully reviewed the evidence

supporting the element of actual knowledge in this case, because it is clear

that the Legislature insisted upon a showing of actual knowledge, rather than

constructive knowledge, as a factor limiting the State = s liability for

premises defects under the TTCA. See Tex. Civ. Prac. & Rem. Code ' 101.022(a) &

(b); Payne , 838 S.W.2d at 237 ( A premise @ defects cases

require actual knowledge, though A special @ defect cases do

not). In light of this legislative

intent, expressed in the clear language of the statute, it would be error for

us to uphold a jury verdict finding negligence based on anything less than a

showing of actual knowledge. As the

Texas Supreme Court noted in Bossley , A the waiver of

immunity in the Tort Claims Act is not, and was not intended to be,

complete. Arguments for application of

the Act that would essentially result in its waiver becoming absolute must

therefore be rejected as contrary to the Act = s fundamental

purpose. @ 968 S.W.2d at 342 .

IV.

Conclusion

For the foregoing reasons, we find the

evidence legally insufficient to establish that the University had actual

knowledge of the dangerous condition of steam entering the section of pipe that

would be repaired. Absent proof of

actual knowledge, the University was entitled to sovereign immunity under the

Texas Tort Claims Act. We sustain the

University = s second issue, reverse the trial court = s judgment, and

render judgment dismissing this case for lack of subject matter jurisdiction.

/s/ Eva M. Guzman

Justice

Judgment rendered

and Opinion filed October 20, 2005.

Panel consists of

Justices Edelman, Seymore, and Guzman.

[1] Brooks attempted to impeach Watson = s testimony on this point by

relying on earlier deposition testimony and maintains on appeal that Watson did

not hear any turbulence.

[2] The Bypass Line is in the Alumni

Hall basement with several other pipes that are used for purposes including

electricity and hot and cold water.

Watson testified that this Alumni Hall piping system has between 12 and

20 different pipes in the basement, with approximately 30 to 40 different

valves controlling them.

[3] Brooks did not

file a claim against Turner, so the only claim against Turner is the University = s.

[4] Although the

University did not have written procedures in place prior to the accident in

this case, it drafted a A Procedure for Steam Shutdown/Start-Up @ after the accident that reflects procedures that the

University has historically followed.

Considering this written procedure, Watson testified that he should have contacted Muse for

permission to shut off an isolation valve but that he simply decided to take

the required action himself. In

addition, Watson admitted that procedures ordinarily would have required him to

A bleed @ the system after shut off, and

then confirm that the system was no longer pressurized. He stated that he did not follow this

procedure, though, because the Health Center Valve was already leaking and

should have bled down completely by the next morning when the repair would

likely be made.

[5] Neither party

alleges any charge error on appeal.

[6] At trial, the

case was submitted to the jury solely on a premises defect theory. Accordingly, this is the only claim that we

evaluate on appeal. See, e.g., County

of Cameron v. Brown , 80 S.W.3d 549 , 554 n.2 (Tex. 2002) (reviewing only

premises defect claim where lower court and parties focused only on that claim,

despite broader allegations in the pleadings).

[7] Although it is not necessary to our

determination that we must evaluate subject matter jurisdiction on appeal, see

Gibson , 22 S.W.3d at 850 , we note that there is no danger of unfair

surprise arising from a jurisdictional ruling at this stage of the case. A plaintiff unquestionably bears the burden

of pleading and proving facts demonstrating that immunity has been waived. Dallas Area Rapid Transit v. Whitley ,

104 S.W.3d 540, 542 (Tex. 2003). Here,

the fact that the University was asserting immunity from suit, and challenging

the trial court = s jurisdiction to determine the

case, was apparent from its original answer.

In addition, the University re-asserted its right to immunity pre-trial

in two sets of special exceptions, at the close of the evidence in a motion for

a directed verdict, and again, after the verdict, in a motion for judgment

notwithstanding the verdict.

[8] Many denials of sovereign immunity

reach appellate courts prior to any trial on the merits, via interlocutory

appeal. See Tex. Civ. Prac. & Rem. Code ' 51.014 (2003); Sykes , 136

S.W.3d at 638 ( A If the trial court denies the

governmental entity = s claim of no jurisdiction, whether

it has been asserted as a plea to the jurisdiction, a motion for summary

judgment, or otherwise, the Legislature has provided that an interlocutory

appeal may be brought. @ ).

[9] In this case,

we review only for legal sufficiency. It

is not clear that the University properly preserved any factual sufficiency

complaints that it may have had. Brooks

urges that the University waived these complaints, and the University has not

disputed this argument.

[10] It is

undisputed that the University, which is part of the A&M University system,

is a state entity.

[11] Without citing

any authority, Brooks argues that this court cannot determine the dangerous

condition because the University did not object to a jury charge that

instructed that A the only allegedly dangerous condition was steam in

the pipes. @ However, this

instruction is not inconsistent with our determination that the dangerous

condition was the entry of steam into the section of pipe that was being

repaired, caused by the Bypass Line being open.

[12] Counsel made

these arguments without objection from opposing counsel or correction by the

trial court. However, we note this problematic

argument because, as a court reviewing a question of subject matter

jurisdiction, we are obliged to assure ourselves of jurisdiction irrespective of any concerns about

waiver. See Gibson , 22 S.W.3d at

851 . We believe that statements made during closing

argument place the jury = s decision into context, but we note that they do not

affect the standard of review we apply to examine the evidence in this case.

[13] Brooks relies

on Rodriguez and Keetch v. Kroger , 845 S.W.2d 262 (Tex. 1992),

for the proposition that knowledge of factors creating the dangerous condition

supports an inference of knowledge regarding the dangerous condition

itself. This is not, however, what the

Court held in either case. Rather, in Rodriguez

the Court held that, on remand, the plaintiff should be permitted to try to

establish that the City had actual knowledge of water on the floor. 931 S.W.2d at 537 ( A Depending on the position of the leaks above the floor

and the amount of rain, the jury might have inferred that the person in charge

knew that there would be water on the floor. @ ). Keetch , in contrast to this case,

permitted a finding of liability based on either actual or constructive

knowledge. 845 S.W.2d at 265 ( A The fact that the owner or occupier of a premises

created a condition that posed an unreasonable risk of harm may support an

inference of knowledge. However the jury

still must find that the owner or occupier knew or should have known of the

condition. @ ) As discussed

above, unlike Rodriguez or Keetch , this case involves

uncontradicted evidence that undercuts the claim that the University had actual

knowledge of the dangerous condition.

[14] We also note

that, aside from Brooks = arguments about turbulence, there is no evidence in

the record that the Southwest Isolation Valve failed to close.