Court of Appeals of Texas, Fifth District, Dallas
Barbara E. Rosenberg, Dallas City Attorney's Office, Julie A. Essenburg, Thomas Perkins Jr., Dallas, for Appellant.
Geoffrey E. Schorr, Schorr Law Firm, P.C., Andrew Jared Aldinger, Garland, for Appellee.
Before O'NEILL, LANG-MIERS, and EVANS
This is an interlocutory appeal from an order denying the City of Dallas's plea to
the jurisdiction on Thomas A. Davenport's premise defect claim. Davenport sued the City for damages arising from personal injuries he sustained when he fell on a slippery substance in the terminal at Dallas Love Field Airport. The City argues that the trial court erred by denying its plea to the jurisdiction because it had governmental immunity from Davenport's claim. The resolution of the issues on appeal turns on whether Davenport was a licensee or an invitee at the airport. We conclude that he was a licensee, reverse the trial court's order, render judgment granting the plea to the jurisdiction, and dismiss Davenport's lawsuit.
Davenport and his wife drove to Love Field, parked their car in one of the airport parking garages, and flew to Chicago for vacation. After returning to Dallas, they retrieved their luggage from the baggage claim area and went down an escalator to an underground walkway that led to the airport parking garage. Davenport got off the escalator, took several steps, and then slipped on an orange liquid substance on the floor and fell. He broke his right wrist and sustained other injuries requiring medical treatment. There were no signs or other warnings posted near the spill to alert Davenport or anyone else about the slippery substance on the floor.
Davenport sued the City for damages under the Texas Tort Claims Act and alleged that the City waived its governmental immunity. Davenport alleged that he was an invitee at the airport because he paid for use of the premises by purchasing an airline ticket and paying to park his car in the airport parking garage. He alleged that the duty the City owed him as an invitee was to maintain the premises in a safe condition; the City knew or should have known of the dangerous condition on the floor prior to his fall; the City failed to warn him about the dangerous condition; the City failed to remove or correct the dangerous condition; and the City's negligence proximately caused the injuries he sustained in the fall.
The City filed a plea to the jurisdiction arguing that Davenport was a licensee and not an invitee because the area in the terminal where Davenport fell was open to the public and did not require the public to pay a fee to enter and access the area. The City argued that, as a licensee, and to establish waiver, Davenport must prove that the City had actual knowledge that the substance was on the floor. It contended that the evidence was undisputed that the City did not have actual knowledge.
Davenport responded that he was an invitee because he paid for use of the airport premises and that " ‘ premises' includes real property and anything growing on it, attached to it or erected on it (e.g., trees, streets, roads, bridges, sidewalks, buildings, etc.)." He argued that the airport parking garage was part of the " premises." Davenport also argued that the City waived governmental immunity " when it failed to perform its governmental function of maintaining its airport" by correcting the " hazardous condition created by the liquid spill in its airport within a reasonable time after the condition was created." Davenport attached his affidavit as evidence to support his response. He also attached excerpts from the deposition of an eyewitness, Korey Beard. Beard testified that he was at the airport to pick up his son who was arriving on a plane. He testified that he parked in the airport parking garage, but did not purchase an ...