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

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

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
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)

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


Texas Opinions Home Page | Texas Supreme Court Decisions (Tex. 2008) | 2007 Texas Supreme Court
Opinions |