Ngozi Ogueri v. Texas Southern University

Opinion issued March 31, 2011.

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00228-CV

———————————

NGOZI

OGUERI, Appellant

V.

TEXAS SOUTHERN UNIVERSITY, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Case No. 2009-12939

MEMORANDUM OPINION

This

is a slip-and-fall case. Appellant, Ngozi

Ogueri, appeals the trial court’s grant of appellee Texas Southern University’s

(TSU) plea to the jurisdiction. In five

issues, Ogueri argues that (1) the trial court erred in granting TSU’s plea to

the jurisdiction because TSU’s governmental immunity was expressly waived by

Texas Civil Practice and Remedies Code section 101.021(2); [1] (2) the record “compels the

conclusion” that the slippery floor was a dangerous condition that created an

unreasonable risk of harm; (3) the trial court erred because Ogueri paid for

use of the premises and thus should be regarded as an invitee in analyzing her

premises defect claim; (4) the trial court erred in granting the plea because

Ogueri was unaware of any dangerous condition, and TSU could have discovered

the slippery condition of the floor through reasonable inspection and failed in

its duty to warn Ogueri; and (5) the trial court erred in allowing TSU to use

information it withheld from Ogueri during discovery under a claim of

privilege.

We

affirm.

Background

On

January 17, 2007, Ogueri, a law student at the Thurgood Marshall School of Law

at TSU, fell and sustained injuries to her ankle requiring surgery. Ogueri subsequently filed suit against TSU. She alleged in her petition that “she slipped

and fell on the hard highly polished floor” and that

prior to [her] fall, other

students had slipped on the floor or/and had complained about the unusually or

extremely slippery nature of the floor even when the floor was dry. This condition had existed for several months

prior to this incident, and [TSU’s] agents were aware of the condition but did

not address the problem. Moreover, it

had rained that morning but no “wet floor” signs had been placed to warn about

the dangerous condition. [TSU] placed

the “wet floor” signs only after [Ogueri] fell.

Ogueri also alleged that TSU owed her the duty owed

to an invitee.

TSU filed a plea to the jurisdiction

arguing that Ogueri was a licensee, not an invitee, and that, as a licensee,

she could not establish that TSU had actual knowledge of the allegedly

dangerous condition. TSU also argued

that Ogueri could not show that she had no knowledge of the alleged condition

or that the condition itself created an unreasonable risk of harm. TSU supported its plea with the affidavit of

Gloria Walker, the Chief Operating Officer and Executive Vice President of TSU,

who averred that the Risk Management Department maintained records of all

incidents and claims involving personal injury dating back to 1999 and that

there were no reports or records of any incidents regarding the floor in the

area where Ogueri fell. TSU also attached

similar affidavits from Theresa Harrison, the Police Records Supervisor for the

University Police and Public Safety Department, and Timothy Rychlec, TSU’s

Executive Director of Facilities and Maintenance. TSU also provided a copy of Ogueri’s Spring

2007 financial statement, which indicated that she was billed for the Spring

semester in November 2006 and made her first payment for the semester on

January 31, 2007, after the date of her fall.

TSU also supported its plea with

Ogueri’s deposition testimony. In her

deposition, Ogueri testified that she did not know what caused her to slip and

fall, or whether there was anything on the floor, because she did not go back

to check the floor. She did not describe

the condition of the floor, again repeating her answer that all she knew was

that she walked in and fell and did not go back to examine the floor. Ogueri testified that she was “aware . . .

that students came out later that day and told [her] that there were wet floor

signs up over there for the rest of the day” and that following her accident,

“other students . . . told [her] that the floor was — that the floor was known to be slippery and

that many people had slipped on that floor several times.” She further testified that it was “drizzling”

on the day of her fall and that “there was supposed to be cameras all over the

school so the school would be aware of what was going on and where and how I

fell.” When asked if she was aware of

what made the floor where she fell so slippery, Ogueri answered, “I heard the

floor was always very highly polish[ed] — I don’t know what cleaning agent or polishing agent was used on that

floor, but it was slippery most of the time. . . . [T]hat floor was always very

shiny and — it just really looked shiny,

and I guess that makes it slippery.”

In her response to TSU’s plea,

Ogueri stated that TSU did not have to have actual knowledge of the alleged

condition because she was an invitee, rather than a licensee, that TSU used

information it withheld during discovery under a claim of privilege, that the

condition of the floor created an unreasonable risk of harm, and that she was

unaware of the dangerous condition of the floor. The trial court granted TSU’s plea to the

jurisdiction and dismissed the case with prejudice. This appeal followed.

Plea to the Jurisdiction

In

her first, second, third, and fourth issues, Ogueri challenges the trial

court’s grant of TSU’s plea to the jurisdiction.

A.

Standard of Review

Whether

a trial court has subject matter jurisdiction is a question of law that this

Court reviews de novo. Harris Cnty. v. Luna-Prudencio , 294

S.W.3d 690, 695 (Tex. App.—Houston [1st Dist.] 2009, no pet.). In reviewing a trial court’s ruling on a plea

to the jurisdiction, we do not look to the merits of a case, but consider only

the pleadings and the evidence relevant to the jurisdictional inquiry, and we

construe the pleadings liberally in favor of conferring jurisdiction. Id. at

695–96. If a plea to the jurisdiction

challenges the existence of jurisdictional facts, we consider relevant evidence

submitted by the parties when necessary to resolve the jurisdictional issues

raised, as the trial court is required to do.

Id. at 696 (citing Tex. Dep’t of Parks & Wildlife v.

Miranda , 133 S.W.3d 217 , 226–27 (Tex. 2004)). When the consideration of a trial court’s

subject matter jurisdiction requires the examination of evidence, the trial

court exercises its discretion in deciding whether the jurisdictional

determination should be made at a preliminary hearing or should await a fuller

development of the case, mindful that this determination must be made as soon

as practicable. Id. ; see also Bland Indep.

Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex. 2000) (“Whether a determination of subject-matter jurisdiction can be

made in a preliminary hearing or should await a fuller development of the

merits of the case must be left largely to the trial court’s sound exercise of

discretion.”).

In a case in which the

jurisdictional challenge implicates the merits of the plaintiff’s cause of

action and the plea to the jurisdiction includes evidence, the trial court

reviews the relevant evidence to determine if a fact issue exists. Luna-Prudencio ,

294 S.W.3d at 696 . 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. 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.

Governmental

immunity from suit deprives the trial court of subject matter jurisdiction over

a plaintiff’s claims against a governmental entity. Id. In a suit against a governmental unit,

the plaintiff must affirmatively demonstrate the trial court’s jurisdiction by

alleging a valid waiver of immunity. Id. (citing Dallas Area Rapid Transit v. Whitley , 104 S.W.3d 540, 542 (Tex.

2003)). The legislature granted a

limited waiver of immunity in the Texas Tort Claims Act (the “TTCA”), which

allows suits to be brought against governmental units in limited

circumstances. Tex. Dep’t of Crim. Justice v. Miller , 51 S.W.3d 583, 587 (Tex.

2001).

Civil Practice and Remedies Code section

101.021(2) provides that a governmental unit is liable 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) (Vernon 2005). Liability for

a premises defect is implied under section 101.021(2) because a premises defect

arises from a condition existing on real property. Perez

v. City of Dallas , 180 S.W.3d 906, 910 (Tex. App.—Dallas 2005, no

pet.). Ogueri, as the plaintiff, is

required to plead facts sufficient to invoke a waiver of immunity under the

TTCA. Cnty. of Cameron v. Brown , 80 S.W.3d 549, 555 (Tex. 2002).

B.

Ogueri’s Status as an Invitee or Licensee

In her third issue, Ogueri argues

that she should be regarded as an invitee for purposes of analyzing her

premises defect claim because, as a student at TSU, she paid for the use of the

facilities. [2] TSU argues that Ogueri was a licensee because

the record shows that she did not pay her spring tuition until January 31,

2007, which was several days after her fall.

“The

type of duty owed a plaintiff is part of the waiver analysis under the

TTCA.” City of Irving v. Seppy , 301 S.W.3d 435, 441 (Tex. App.—Dallas

2009, no pet.) (citing Tex. Civ. Prac.

& Rem. Code Ann . § 101.021–.022 (Vernon 2005)). Section 101.022(a) provides that “[i]f a

claim arises from a premises 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 Ann . § 101.022(a) (Vernon Supp. 2010); Seppy , 301 S.W.3d at 441 . “If the plaintiff pays for the use of the

premises, the governmental unit owes the plaintiff the duty owed to an

invitee.” Seppy , 301 S.W.3d at 441 .

“The duty owed an invitee ‘requires an owner to use ordinary care to

reduce or eliminate an unreasonable risk of harm created by a premises

condition of which the owner is or reasonably should be aware.’” Id. (quoting

State Dep’t of Highways & Pub.

Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992)).

TSU’s evidence attached to its plea

to the jurisdiction showed that Ogueri was charged law school tuition and other

fees on November 20, 2006, and she was charged a late payment fee on January

17, 2007. Although Ogueri did not make

an actual payment until January 31, 2007, she was being charged to use the

university premises at the time of her accident. Thus, we conclude that Ogueri was an invitee

of TSU at the time of the accident, and TSU owed her the duty owed to invitees. See

Seppy , 301 S.W.3d at 441 .

We sustain Ogueri’s third issue.

C.

Ogueri’s Premises Defect Claim

In her first issue, Ogueri argues

that the trial court erred in granting TSU’s plea to the jurisdiction because

TSU’s governmental immunity was expressly waived by Civil Practice and Remedies

Code section 101.021(2). In her second

issue, Ogueri argues that the slippery floor was a dangerous condition that

created an unreasonable risk of harm. In

her fourth issue, Ogueri argues that the trial court erred in granting the plea

because Ogueri was unaware of any dangerous condition, and TSU could have

discovered the slippery condition of the floor through reasonable inspection

and failed in its duty to warn Ogueri.

The TTCA requires Ogueri to plead

that a premises defect arose from a condition of real property and that the

governmental unit would, were it a private person, be liable to Ogueri under

Texas law. See Tex. Civ. Prac. &

Rem Code Ann. § 101.021(2). “A

property possessor must not injure a licensee by willful, wanton, or grossly

negligent conduct, and must use ordinary care either to warn a licensee of a

condition that presents an unreasonable risk of harm of which the possessor is

actually aware and the licensee is not, or to make the condition reasonably

safe.” See Brown , 80 S.W.3d at 554 .

Thus, Ogueri, as an invitee, had to plead jurisdictional facts showing

that: (1) TSU had actual or constructive knowledge of some condition on the

premises; (2) the condition posed an unreasonable risk of harm; (3) TSU did not

exercise reasonable care to reduce or eliminate the risk; and (4) TSU’s failure

to use such care proximately caused her injuries. See

Keetch v. Kroger Co. , 845 S.W.2d 262, 264 (Tex. 1992).

In her fourth issue, Ogueri argues

that TSU could have discovered the slippery condition of the floor through

reasonable inspection. TSU argued it did

not have actual or constructive knowledge of the dangerous condition because

there was no record of prior incidents or problems relating to the floor

surface in question.

To establish that TSU possessed the

requisite knowledge, Ogueri was required to show either that TSU knew of the

dangerous condition and negligently failed to correct it or that the condition

of the floor existed for so long that TSU should have discovered and corrected

it in the exercise of reasonable care. See Univ. of Tex. at Austin v. Hayes ,

327 S.W.3d 113, 117 (Tex. 2010) (holding that to establish waiver of immunity

for premises-defect claim, plaintiff must show evidence of elements of

premises-defect claim); Keetch , 845

S.W.2d at 264–66. “Although there is no

one test for determining actual knowledge that a condition presents an

unreasonable risk of harm, courts generally consider whether the premises owner

has received reports of prior injuries or reports of the potential danger

presented by the condition.” Univ. of Tex.-Pan Am. v. Aguilar , 251

S.W.3d 511, 513 (Tex. 2008) (per curiam).

Actual knowledge requires knowledge that the dangerous condition existed

at the time of the accident. City of Corsicana v. Stewart , 249 S.W.3d

412 , 414–15 (Tex. 2008) (per curiam). “[C]onstructive

knowledge can be established by showing that the condition had existed long

enough for the owner or occupier to have discovered it upon reasonable

inspection.” CMH Homes, Inc. v. Daenen , 15 S.W.3d 97 , 102–03 (Tex. 2000). Thus, constructive knowledge can be

established by facts or inferences that a dangerous condition could develop

over time. Stewart , 249 S.W.3d at 415 .

Ogueri alleged in her petition that

the floor was “highly polished,” that the floor was “unusually or extremely

slippery” in nature “even when the floor was dry,” and that it had rained the

morning of her accident. Ogueri also

alleged that TSU “knew, or reasonably should have known, of the slippery floor,

as other persons had complained of the [floor] prior to the incident involving

[Ogueri], and several months had elapsed when [TSU’s] agents observed the

condition.” TSU’s plea to the

jurisdiction challenged these jurisdictional facts. Therefore, the trial court was required to

review the relevant evidence to determine if a fact issue existed, and it could

only grant the plea to the jurisdiction if the relevant evidence failed to

raise a fact question. See Luna-Prudencio , 294 S.W.3d at 696 .

Ogueri’s petition appears to allege

that the floor was unusually slippery or, alternatively, that the floor was

wet. Although her petition alleges that

TSU had received previous complaints regarding the condition of the floor and

that “several months had elapsed when [TSU’s] agents had observed the

condition,” TSU presented evidence with its plea to the jurisdiction showing

that TSU had no record of any previous complaints, incidents, or service

requests. [3]

Ogueri failed to present any

jurisdictional evidence challenging these facts. In her deposition testimony, Ogueri testified

that she did not know what caused her to slip and fall, or whether there was

anything on the floor, because she did not go back to check the floor. She did not describe the condition of the

floor, again repeating her answer that all she knew was that she walked in and

fell and did not examine the floor.

Thus, she did not provide any evidence of what condition TSU should have

noticed. [4] Furthermore, Ogueri testified that other

students told her that TSU placed “wet floor” signs in the area where she fell

following her injury and that other people had slipped in that area

before. However, Ogueri did not plead or

provide any evidence that the floor was actually wet when she fell. Nor does she identify these students or

provide any specific evidence of previous incidents. Thus, Ogueri failed to present any evidence

raising a fact question regarding the jurisdictional issue of TSU’s actual or

constructive knowledge of the allegedly dangerous condition. See Keetch ,

845 S.W.2d at 264 (providing elements of premises liability claim); Luna-Prudencio , 294 S.W.3d at 696

(providing that if jurisdictional challenge implicates merits of plaintiff’s

cause of action and includes evidence, trial court must review evidence to

determine if fact issue exists); see also

Bland Indep. Sch. Dist. , 34 S.W.3d at 554 (holding that it falls within

trial court’s discretion to determine whether ruling on subject-matter

jurisdiction can be made in preliminary hearing or should wait fuller

development of merits).

Because Ogueri failed to present

evidence raising a fact question regarding this element of her premises

liability claim, she failed to present a claim that TSU, as a governmental

unit, would be liable to Ogueri were it a private person. [5] See Tex. Civ. Prac. & Rem. Code Ann. §

101.021(2). Thus, the evidence fails to

raise a fact question on the jurisdictional issue, and the trial court properly

ruled on the plea to the jurisdiction as a matter of law. See

Luna-Prudencio , 294 S.W.3d at 696 .

We overrule Ogueri’s fourth issue.

Because we conclude that the trial

court correctly granted TSU’s plea to the jurisdiction on the ground discussed

above, we do not address Ogueri’s remaining issues complaining of the trial

court’s ruling on the plea to the jurisdiction. [6]

Admissibility of Affidavits

In her fifth issue, Ogueri

complains that the trial court erred in considering TSU’s affidavits from Walker,

Harrison, and Rychlec because the affidavits contained information TSU withheld

from Ogueri under a claim of privilege.

A party waives its complaint

regarding inadmissible evidence if it fails to object to the affidavit

containing the allegedly inadmissible evidence.

See Einhorn v. LaChance , 823

S.W.2d 405, 410 (Tex. App.—Houston [1st Dist.] 1992, writ dism’d w.o.j.); see also Rockwall Commons Assocs. v. MCR

Mortg. Grantor Trust I , No. 08-09-00030-CV, 2010 WL 5387598, at *5 (Tex.

App.—El Paso Dec. 29, 2010, no pet.) (holding that objections to form of

affidavit include “(1) lack of personal knowledge; (2) hearsay; (3) statement

of an interested witness that is not clear, positive, direct, or free from

contradiction; and (4) competence”); Brown

v. Brown , 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied) (holding

that defects in form of affidavit must be objected to in trial court and

opposing party must have opportunity to amend and that failure to obtain ruling

on objection to form of affidavit waives objection).

Here, Ogueri complained in her

response that TSU’s affidavits contained information that it withheld during

discovery under a claim of privilege. However,

Ogueri did not file an objection with the trial court, and the trial court did

not rule on Ogueri’s complaints.

Therefore, this complaint is waived.

See Einhorn , 823 S.W.2d at

410 ; Brown , 145 S.W.3d at 751 .

Conclusion

We affirm

the judgment of the trial court.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

[1] See

Tex. Civ. Prac. & Rem Code Ann.

§§ 101.001–.109 (Vernon 2005 & Supp. 2010) (also known as the Texas Tort

Claims Act (“TTCA”)).

[2]

Ogueri attached documents to her

brief demonstrating that she had made payments to TSU prior to January 2007;

however, these documents were not part of the official clerk’s record. “We cannot consider documents attached to an

appellate brief that do not appear in the record. This Court must hear and determine a case on

the record as filed, and may not consider documents attached as exhibits to

briefs.” Till v. Thomas , 10 S.W.3d 730, 733 (Tex. App.—Houston [1st Dist.]

1999, no pet.).

[3] Ogueri also complains in her fifth

issue that the trial court erred in considering the evidence presented in the

affidavits attached to TSU’s plea to the jurisdiction. We address this complaint below.

[4]

This lack of evidence also

implicates the element requiring that the condition posed an unreasonable risk

of harm. “A condition poses an

unreasonable risk of harm for premises-defect purposes when 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.’” Cnty.

of Cameron v. Brown , 80 S.W.3d 549, 556 (Tex. 2002) (quoting Seideneck v.

Cal Bayreuther Assocs. , 451 S.W.2d 752, 754 (Tex. 1970)); see also Rosas v. Buddies Food Store ,

518 S.W.2d 534, 537 (Tex. 1975) (“Whether a condition constitutes a danger is a

function of reasonableness. That is, if

the ordinarily prudent man could foresee that harm was a likely result of a

condition, then it is a danger.”). The mere fact that Ogueri slipped does

not, by itself, prove that the condition of the floor posed a foreseeable,

unreasonable risk of harm. See Eubanks v. Pappas Rests., Inc. , 212

S.W.3d 838, 841 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (holding that

when plaintiff offered no evidence that “anything other than nature was

involved in the occurrence of the slime or slimy mud” on which he slipped,

plaintiff failed to show existence of unreasonable risk of harm, and holding

that conclusory statements in affidavit and deposition that substance was result

of landscaping crew’s negligence in cleaning up area were not sufficient); see also M.O. Dental Lab v. Rape , 139

S.W.3d 671 , 675–76 (Tex. 2004) (holding that conditions that present risks are

not necessarily unreasonably dangerous).

Here, Ogueri failed to present evidence of any accumulation of water on

the floor or of any specific dangerous condition of the floor beyond her

pleadings and deposition testimony that the floor was “highly polished” and

that “t hat floor was always very shiny and — it just really

looked shiny, and I guess that makes it slippery.” These conclusory statements do not establish

the existence of an unreasonable risk of harm.

See Eubanks , 212 S.W.3d at 841 ; M.O. Dental Lab , 139 S.W.3d at 675–76.

[5]

Ogueri argues in her brief that

she should not be required to prove her entire case to overcome an objection to

the subject matter jurisdiction of the trial court. However, where a jurisdictional challenge

implicates the merits of a case and includes evidence, it is proper for the

trial court to consider the evidence raised and grant the plea to the

jurisdiction if the evidence is undisputed or fails to raise a fact

question. See Harris Cnty. v. Luna-Prudencio , 294 S.W.3d 690, 696 (Tex.

App.—Houston [1st Dist.] 2009, no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217 ,

226–28 (Tex. 2004)). Furthermore,

“[w]hether a determination of subject-matter jurisdiction can be made in a

preliminary hearing or should await a fuller development of the merits of the

case must be left largely to the trial court’s sound exercise of

discretion.” Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 554 (Tex.

2000). Ogueri’s cursory argument on this

issue does not provide a basis for this Court to determine that the trial court

abused its discretion in ruling on TSU’s plea to the jurisdiction when it did.

[6]

We also note that Ogueri did not

ask for the opportunity to replead her cause of action in the trial court or on

appeal, and, thus, we do consider whether the trial court should have allowed

Ogueri the opportunity to amend her pleadings.

See Tara Partners, Ltd. v. City of

S. Houston , 282 S.W.3d 564, 570 (Tex. App — Houston [14th Dist.] 2009, pet. denied) (“[T]hrough

inaction, a plaintiff may lose the opportunity to amend.”); Haddix v. Am. Zurich Ins. Co. , 253

S.W.3d 339, 347 (Tex. App.—Eastland 2008, no pet.) (“While the general rule

expresses a preference for allowing an amendment, a plaintiff can waive this

opportunity through inaction.”) (citing Kassen

v. Hatley , 887 S.W.2d 4 , 13–14 n.10 (Tex. 1994) (holding plaintiffs waived

any complaint when they failed to object or request opportunity to amend their

petition following trial court’s ruling on motion for summary judgment

attacking plaintiff’s pleadings regarding sovereign immunity)); see also Miranda , 133 S.W.3d at 226–27

(“If the pleadings do not contain sufficient facts to affirmatively demonstrate

the trial court[’]s jurisdiction but do not affirmatively demonstrate incurable

defects in jurisdiction, the issue is one of pleading sufficiency and the

plaintiffs should be afforded the opportunity to amend. If the pleadings affirmatively negate the

existence of jurisdiction, then a plea to the jurisdiction may be granted

without allowing the plaintiffs an opportunity to amend.”).