Texas Supreme Court lets state university prevail with ostrich defense in premises liability suit - sees no evidence
of knowledge that water hose is a trip-hazard. University argued it did not have actual knowledge that stretching a
water hose across a sidewalk could create a dangerous condition.

UT-PAN AM vs. Aguilar (Tex. 2008) (per curiam),
No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability suit, know nothing defense, ostrich defense)        

Full case style and disposition: THE UNIVERSITY OF TEXAS-PAN AMERICAN v. TONY AGUILAR AND KAY MARIE
AGUILAR; from Hidalgo County; 13th district (13-06-00450-CV, ___ S.W.3d ___, 03-01-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral
argument, the Court reverses the court of appeals' judgment and renders judgment.

Opinion below:
UTPA v. Aguilar No. 13-06-00450-CV, ___ S.W.3d ___, (Tex.App. - Corpus Christi, March 1, 2007, pet. filed)

Other links for this case: Case note by Don Cruse 04-18-2008 Order List (the Supreme Court of Texas blog)
TJCB Comment: Blind Justice: Seeing no evidence of hazard, Supreme Court gives nod to defendant's ostrich defense

Related terms: Texas Tort Claims Act (TTCA) cases | premises liability suit | actual knowledge of danger element |  
Government entity litigation | Sovereign immunity |

Recent cases with links to opinions:
The Univ. of Tex.-Pan Am. v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability suit, know
nothing defense, ostrich defense)  
City of Corsicana vs. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition,
flooded roads)

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The Univ. of Tex.- Pan Am. v. Aguilar, ___ S.W.3d ___ (Tex. 2008) (per curiam)

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PER CURIAM OPINION [Note: bold rendition of key terms and hotlinks are not part of the court's opinion]

In this premises liability case, we must decide whether a workplace safety manual, warning of the dangers of obstructing
office walkways with exposed electrical cords, is evidence of the defendant University’s actual knowledge that a water hose
lying across a sidewalk was an unreasonably dangerous condition. The court of appeals concluded that the University’s
safety manual was sufficient to create a fact issue about whether the University had actual knowledge that the water hose
presented an unreasonable risk of harm. ___ S.W.3d ___, ___. Because the safety manual did not identify this specific risk,
we conclude that it was not evidence that the University had actual knowledge of an unreasonable risk of harm.

Tony Aguilar, a student at the University of Texas-Pan American, was walking to class when he tripped on a water hose
lying across a campus sidewalk and broke his knee. Aguilar and his wife sued the University to recover damages alleging
premises liability. The University filed a plea to the jurisdiction, arguing that the Aguilars failed to plead facts sufficient to
establish a waiver of governmental immunity under the Texas Tort Claims Act. Id. The trial court denied the motion,
and the University filed an interlocutory appeal. The court of appeals affirmed. Id.

Generally, we lack jurisdiction over interlocutory appeals unless an exception applies, such as when a court of appeals
holds differently from a prior decision of this Court or another court of appeals. See Tex. Gov’t Code §§ 22.225(b), (c),
22.001(a)(2); City of San Antonio v. Ytuarte, 229 S.W.3d 318, 319 (Tex. 2007) (per curiam). Decisions that hold differently
are defined to include those that have an “inconsistency in their respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants.” Tex. Gov’t Code § 22.25(e). Such a conflict exists here
because the court of appeals’ opinion is inconsistent with the decisions in
City of Houston v. Harris, 192 S.W.3d 167 (Tex. App.—Houston [14th Dist.] 2006, no pet.), and Rice Food Market, Inc. v.
Hicks, 111 S.W.3d 610 (Tex. App.—Houston [1st Dist.] 2003, pet. denied).

A unit of state government is immune from suit and liability unless the state consents. Tex. Dep’t of Transp. v. Jones, 8 S.W.
3d 636, 638 (Tex. 1999) (per curiam). The Tort Claims Act provides a limited waiver of immunity when an injury is caused by
a premises defect. Tex. Civ. Prac. & Rem. Code § 101.022(a). The Act generally limits the duty owed to “that a private
person owes to a licensee on private property.” Id. This duty requires that the landowner either warn the licensee of, or
make reasonably safe, a dangerous condition of which the landowner has actual knowledge, and the licensee does not.
State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).    

The court of appeals affirmed the denial of the plea to the jurisdiction, holding that a fact issue existed regarding whether
the University had actual knowledge that the water hose created an unreasonable risk of harm. ___ S.W.3d at ___. The
court concluded that the University’s admitted use of water hoses on campus, coupled with the statements in its safety
manual, created a fact issue about whether the University had actual knowledge that the water hose presented an
unreasonable risk of harm. Id. The court found the following guidelines from the University's safety manual pertinent to the
question of actual knowledge:

Floors and other walking areas should be kept unobstructed. Corridors . . . are the primary means of egress. . . . Keep all
means of egress free from obstructions. Do not place hazardous equipment o[r] materials in areas that are used for egress.
Equipment should be arranged so that electrical and telephone cords do not present tripping hazards. Flexible cords should
never cross paths of travel unless suitably protected to avoid damage and the creation of tripping hazards. Id. (internal
citations omitted)

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. Brinson Ford, 228 S.W.3d at 163 (noting that over a ten-year period no customer
visiting the car dealership had been injured by the allegedly dangerous ramp, nor had the dealership received any
complaints about the ramp’s safety); City of Houston, 192 S.W.3d at 175 (finding that a metal elephant statue at the zoo was
not unreasonably dangerous because the City introduced evidence that it had no knowledge of prior accidents or
complaints involving the statue); Rice Food Mkt., 111 S.W.3d at 613 (noting that the allegedly dangerous sign had never
fallen before and there had been no similar incidents). Here, the University’s Director of Health and Safety testified that
there had been no incidents of pedestrians tripping on water hoses on the campus in the past five years. Additionally, the
Assistant Director for Facilities, Operations and Maintenance testified that there were no rules or guidelines for the use and
placement of water hoses because they had never been a problem on campus.

The court of appeals suggests that the University’s safety manual creates such guidelines, but we disagree. The University’
s safety manual has no apparent relevance to water hoses or outdoor safety. Rather, the manual discusses indoor safety,
under such headings as “Working Surfaces,” “Emergency Egress and Emergency Access,” “Housekeeping and Storage,”
“Office Safety,” and “Electrical Safety.” It generally discusses keeping floors, corridors and means of egress clear,
mentioning that flexible cords should not cross paths of travel. No mention is made of outdoor safety precautions or the use
of lawn maintenance equipment. In fact, nothing in the manual remotely suggests that a water hose can present an
unreasonable risk of harm. Thus, we conclude that the safety manual here is not relevant to the risk at issue and thus
cannot be evidence of the University’s actual knowledge.

We conclude, therefore, that there is no evidence of the University’s actual knowledge that the hose’s use under these
circumstances presented an unreasonable risk of harm. Accordingly, we grant the petition for review, and, without hearing
oral argument pursuant to Rule 59.1 of the Texas Rules of Appellate Procedure, we reverse the court of appeals’ judgment,
and dismiss the case.

Opinion delivered:         April 18, 2007

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