CITY OF HOUSTON v. GRINER (2025)

OPINION

Christopher Griner sued the City of Houston after he slipped on water on the floor of a restroom at Bush Intercontinental Airport. The City argues that it is immune from Griner's suit because (1) his pleadings do not allege facts showing it had actual knowledge of an unreasonable risk of harm at the time of his accident, and (2) its affidavit established it lacked actual knowledge. We disagree and affirm.

Background

Griner sued the City for negligence, gross negligence, and premises liability, claiming he suffered severe injuries when he slipped and fell on “a slippery, water-like substance” in terminal D's restroom floor on January 9, 2019. Almost five years later, the City filed a plea to the jurisdiction, asserting Griner could not establish a premises defect waiver under the Texas Tort Claims Act because the City lacked knowledge that a dangerous condition—the wet floor—existed at the time of his accident.

The City attached the affidavit of Bobby Miller, the Division Manager for Landside Operations of the Houston Airport System. He stated that Landside Operations Agents are responsible for responding to liquid spills, water on floors, terminal inspections, and third-party calls. He stated that agents would enter all incidents at terminal D into the Airport Safety and Operations Compliance System, specifically averring that “any report of a dangerous condition” in the airport would be included. He thoroughly reviewed the records in the ASOCS, he said, and “[t]here are no records or reports concerning notice of a dangerous condition, of a slippery, water-like substance on the floors in either of the bathrooms in Terminal D from a search performed on the ASOCS system using a date range from June 9, 2018, to January 9, 2019.”

Griner filed a response to the City's plea. He attached a string of emails titled “Flooding in restroom D6” showing that the airport infrastructure manager and airport workers had emailed about flooding in the terminal D restroom beginning November 7, 2018, with one worker telling the manager: “[t]he drain issue was not resolved and clogged again today leading to the flooding/overflow,” and the manager replying, “[w]e have talked about this but not fixed it.”

The trial court denied the plea after a hearing.

Analysis

On appeal, the City asserts the trial court erroneously denied its plea to the jurisdiction because no waiver for premises defect under the Texas Tort Claims Act applies, and the City therefore retained its governmental immunity.

I. Standard of Review and Applicable Law

The Texas Tort Claims Act waives immunity for a governmental unit that causes injury or death 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.” See Tex. Civ. Prac. & Rem. Code § 101.021. Premises defects claims can fall within this waiver because they are caused by a condition of real property. Harris Cnty. v. Lopez, 665 S.W.3d 874, 880 (Tex. App.—Houston [14th Dist.] 2023, pet. denied).

When a plaintiff brings a premises defect claim, the governmental unit owes him only the duty that a landowner owes to a licensee. See Tex. Civ. Prac. & Rem. Code § 101.022(a). In other words, it owes two duties to the plaintiff: (1) to refrain from injuring him willfully, wantonly, or through gross negligence; and (2) to warn of or make safe a dangerous condition about which it actually knows but he doesn't. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016); Lopez, 665 S.W.3d at 880.

Griner argues that the City breached its second duty. Both parties agree that this means Griner must prove five elements to establish a waiver of immunity: (1) the water on the restroom floor created an unreasonable risk of harm to him, (2) the City actually knew about the water on the floor, (3) Griner did not actually know about the water on the floor, (4) the City failed to exercise ordinary care to protect him from danger, and (5) the City's failure was a proximate cause of injury to him. See Sampson, 500 S.W.3d at 391.

The current dispute is about the second prong—the City's actual knowledge. The City argues that Griner's pleadings are conclusory and do not allege facts showing it had actual knowledge of an unreasonable risk of harm at the time of Griner's accident, and that, even if Griner's pleadings were sufficient, the City's affidavit established as a matter of law that it lacked actual knowledge.

II. Insufficient Pleading

When a plea to the jurisdiction challenges the pleadings—as the City's first argument does—we are tasked with determining if the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We construe the pleadings liberally in Griner's favor, look to his intent, and accept as true the factual allegations in his pleadings. Lopez, 665 S.W.3d at 879.

Griner pleaded that the City “had actual knowledge ․ of the unreasonably dangerous condition,” which he identified as “a slippery, water-like substance on the floor.” Griner's pleading satisfied his burden of affirmatively demonstrating the trial court's jurisdiction because he alleged a valid waiver of immunity—indeed, his pleading is almost identical to the pleading in Ayala that the City “was aware of the dangerous substance prior to [her] fall” and “had actual knowledge of the condition,” which we held alleged a valid waiver of immunity. City of Houston v. Ayala, 628 S.W.3d 615, 619 (Tex. App.—Houston [14th Dist.] 2021, no pet.); City of Tex. v. Woodkins, No. 14-15-01053-CV, 2017 WL 2367515, at *4 (Tex. App.—Houston [14th Dist.] May 31, 2017, no pet.) (mem. op.) (holding plaintiff met her initial burden by pleading city's actual knowledge).

The City claims that the Supreme Court of Texas required more in Rattray v. City of Brownsville, 662 S.W.3d 860 (Tex. 2023). It argues that, after Rattray, “[r]eferring to the TTCA is not enough.” But Griner didn't just refer to the Act; he pleaded circumstances that fit within a provision of the Act—that the City actually knew about the water on the floor. That is sufficient under Rattray. See id. (requiring a plaintiff to begin by “alleging circumstances that fit within a provision of the Act that authorizes a waiver” of immunity).¹

III. Actual Knowledge

When a plea to the jurisdiction challenges the existence of jurisdictional facts—as the City's second argument does—we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227. The standard of review for a jurisdictional challenge based on evidence generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Sampson, 500 S.W.3d at 384. We take as true all evidence favorable to Griner, indulging every reasonable inference and resolving any doubts in his favor. Id. The City must present conclusive proof that the trial court lacks subject matter jurisdiction. Id.; Lopez, 665 S.W.3d at 879. If the City discharges this burden, Griner must present evidence sufficient to raise a material issue of fact regarding jurisdiction, or else the jurisdictional challenge will be sustained. Lopez, 665 S.W.3d at 879.

The City can satisfy its initial burden to negate actual knowledge by pointing to the ASOCS records, see Ayala, 628 S.W.3d at 622, but not if they show “a lack of trustworthiness.” See Tex. R. Evid. 803(7) (evidence that a matter is not included in a record can be used to prove its nonoccurrence, but not if other circumstances indicate a lack of trustworthiness); Dallas Cnty. v. Wadley, 168 S.W.3d 373, 378 (Tex. App.—Dallas 2005, pet. denied).

The City contends that Miller's affidavit established as a matter of law that it lacked actual knowledge of the water because (1) reports of dangerous conditions in the airport were logged and maintained in the ASOCS records, (2) the City completed a thorough review of the ASOCS records from June 9, 2018, to January 9, 2019 for injuries or slip and falls in the bathroom where Griner was injured, and (3) there were “no records of any notice of a dangerous condition, of a slippery, water-like substance on the floors in either of the bathrooms in Terminal D.” True enough. But the records also didn't include a report of the November 2018 bathroom flooding or of Griner's own slip and fall—both of which would have been included if the records had been trustworthy. The City offers no explanation for this deficiency.

But this deficiency makes a difference. In Ayala, 628 S.W.3d at 622-24, the City satisfied its burden of showing that it did not have actual knowledge of the dangerous condition—orange soap by the escalator—because the supervisor attested that the ASOCS records showed no record of notice of a dangerous condition, including water or other liquid substance, except for the record of Ayala's incident. Contrast that holding with Wadley, in which the Dallas Court of Appeals held that the county had not satisfied its burden because the maintenance records on which it relied did not contain an entry of the incident—an elevator dropping to the basement because it was overloaded causing plaintiffs’ injuries—and were therefore not trustworthy. 168 S.W.3d at 378. Because the county's records did not meet its initial burden of showing a lack of actual knowledge, the court did not need to progress to the next step—whether the plaintiff had produced evidence showing knowledge. Id. at 379 (“Appellees, however, had no burden to present evidence of the County's knowledge until the County had established its lack of knowledge.”).

This case is similar to Wadley: Miller's affidavit does not conclusively establish that the City lacked actual knowledge of the dangerous condition, so it doesn't matter whether Griner's evidence was sufficient to show actual knowledge; Griner can't be put to his proof until the City shows its lack of knowledge. See id.

We conclude the trial court did not err in denying the City's plea to the jurisdiction, and we overrule the City's sole issue.

Conclusion

We affirm the trial court's denial of the City's plea to the jurisdiction.

FOOTNOTES

1.   The supreme court in Rattray also held that a plaintiff must negate any possible exceptions that withdraw that waiver. Id. at 866-67. But this part of the court's holding is not relevant to the analysis today because the City has not argued any exceptions apply, and we have found none.

Katy Boatman, Justice