### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00265- CV

The University of T exas at Austin, Appellan t

v. John S am pson , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 1-0 0091 5, H ONO RAB LE GUS J. STRAUSS, JR., J UDGE P RESIDING

D I S S E N T I N G O P I N I O N

I respe ctfully dissent from the majority decision in this case beca use I disag ree with the majority ’s application of the standard of revie w require d to reve rse the denial of the University ’s plea to the jurisdiction. Unlike the majority , I would conclude that Sampson has raised a fac t issue

on the question of whether the University had actua l knowledg e of a condition on the sidewalk that

cre ated a n unrea sonable risk of ha rm. When, as here , the jurisdictional evidenc e implicates the merits, the trial court does
not act as a fac tfinder. University of Tex. v. Poindexte r , 306 S.W .3d 798, 807 (Tex. App.—Austin 2009, no pet.). I nstead, the University ’s burden is very simil ar to that of a movant for summary judgme nt. See Texas Dep’ t of Parks & W ildlif e v. Miranda , 133 S.W .3d 217, 227-28 (Tex. 2004). Once the University “asse rts and support s wi t h evidence that the trial court lacks subject matter jurisdiction,” we require Sampson to “show [onl y ] that there is a disputed materia l fac t reg arding thejuris d i cti onal issue.” Id. at 228. As with summary judgme nt, we revie w the trial court’s leg al

deter mination in such case s de novo, taking as true all evidenc e fa v o ra b l e to the nonmovant and indulging ever

y rea sonable infe renc e and r esolving any doubts in the nonm ovant plaintiff’s f avor. Id. ; Poindexte r , 306 S.W .3d at 807. Appl y i n g t h i s s t an dard, a revie w of the evidenc e shows that Sampson prese nted more than a scintilla of evidenc e that the University had actua l knowledg e of the condition on the sidewalk that pre sented a n unrea sonable risk of ha rm. Sampson prese nted evidenc e that the University contract ed wi th Austin World of Rentals (AWR) to assist with the setup for a “tailg ate party .” AWR employ ees installed lights in the
tree s, while the University was responsible for g etting power from an el ectr ical outlet to the are a wher e the lights wer e located. There was evidenc e that it was standard proce dure for the University
to run power from outlet box es to the are as wher e power was neede d; there fore it could be expected that the University did so in this case as well. Geor g e Ba tes, the AWR contac t person for this event, testified it was his understanding that “someb o d y from [t he University ]” would be running an extension cord from the power source to the are a wher e the lights wer e. Ba tes testified that “[AWR ] alway s duct-tape d extension cords down to the g round or to the wall.” The extension cord Sampson tripped over

was not duct-ta

ped to the g round. This supports an inferenc e that the Unive rsity , not AWR, ran the extension cord from the elec trical outlet to the lights. University event planner Ashleig h Murra

y testified that the University fac iliti es depar tment was responsible for “turn[ing] on the elec tric–unlock[ing] the box es and turn[ing] on the elec trical outlets, or the power .” Murra y had
reque sted that the University ’s elec trical shop p ro v ide elec trical service s and reque sted that the University provide ten extension cords for this purpose. A cost repor t g ener ated by the University ’s

2elec trical shop indicated that a University fac iliti es depar tment employ ee fulfilled this reque st. University event planner Natzy eli L eug ers testified that she saw U n iv e r s it y e le c tr ic a l s h o p e mploy ees walk the site and discuss the setup fo r t h e event on either the day of or the day befor e the event. L eug ers testified that on the day of t he ev en t s h e s aw them “che cking that we had power and that

ever y thing was fine.” L eug ers had repor ted that “eve ry thing was double chec ked by a [University ] Tec hnical Crew L eade r in the Electric Shop

. . . befor e the event started.” This further supports the inferen ce t h at i t was University employ ees who installed the extension cord that Sampson tripped over

. L eug ers and Murra y testified that they observe d that the lights in the tree s went out half way throug h the event. Upon discovering that the extension cord had become unplugg ed from the elec trical outlet, L ueg ers plugg ed the cord back in to the outlet. L eug ers testified that she “saw the cable was unplugg ed from the elec trical cord—f rom the plug.” The evidenc e was that this outag e

occur red around 6:00 p.m. on the day of the event; Sampson testified that he did not arr ive at the law school until around 6:30 p.m.

I believe there was fa r m o re than a scintilla of evidence that University employ ees ini t i al ly place d the cord acr oss the walkwa y , that other University employ ees viewed the setup involving the extension cord acr os s the sidewalk, and that still other University employ ees

rec onnecte d the plug when it bec ame disconne cted pr ior to Sampson’s acc ident.

I am unpersua ded that the supreme court’s holding in University of Te xas-Pan American v. Aguilar , 251 S.W .3d 511 (Tex. 2008), compels the conclusion that, despite the evidenc e outlined above, the U niversity did not have a ctual knowledg e of a n unrea sonable risk of ha rm. I n

3Aguilar , the focus was on whether the University knew that a more-or -less perma nent condition (the
g ener al us e of water hoses on the campus) prese nted an unr easona ble risk of ha

rm. Id. at 513-14. There , the court observe d that the lack of any previous incidents of students tripping on water hoses despite their preva lent use on campus supported the conclusion that there was no evidenc e that the University had actua l k n o wl edg e “that the hose’s use under these circ umstances presented an unreasonable risk of harm. ” Id . at 514 (e mphasis added) . I n the pre sent ca se, in c ontrast, there is

no question that an isolated use of an e lectric al cor d stretche d acr oss and eleva ted slightly above a d ar k en ed sidewalk cre ated an unrea sonable risk of harm (tripping and falling ) to a pedestr i an . Rather, the issue he re is whe ther the U niversity had knowledge that the cor d was so positioned.
I cannot ag ree with the majority ’s conclusion that Sampson w as require d to “ ref ute the University ’s evidenc e that it had not rec eived prior repor ts of injuries or acc idents in the rele vant

are a.” Slip op. at 15. Unlike in Aguilar , wher e the lac k of re ports of tripping over w ater hoses on
campus supported a conclusion that the University had no actua l know ledg e that the hoses cre ated

an unre asonable risk of har m, there is no history

of Univer sity

employ ees or

students succe ssfully navig ating eleva ted elec trical cords that could even tend to show, much less conclusively prove, that the University could have been led to believe that cords positioned in that manner would not prese nt

an unrea sonable risk of harm

. I n an y ev ent, the exis tence vel non of prior repor ts of injuries is

mere ly one fac tor to consider in deter mining knowledg e. Especia lly in a case lik e t h i s one, the absenc e of pr ior repor

ts does not conclusively

neg ate knowle dg e. Finally , the majority relies on University of Texas at El Paso v. Muro , 341 S.W .3d. 1 (Tex. App.—El Paso 2009, no pe t.), as support for its de cision. Slip op. at 12. I n Muro , the cour t

4held that “[w]hen circumstantial evide nce pr esents two equa lly plausible, but opposite infere nces, neither can be inferr ed.” Mu r o , 3 4 1 S

. W.3d at 5. The equal- infere nce rule, howeve r, has no application in the prese nt case top, side, nor bottom. See Lozano v. Lozano , 52 S.W .3d 141, 148-49 (Tex. 2001) (discussing equal- infere nce r ule). Be cause I believe Sampson prese nted more than a s ci n t i l l a of evidenc e that the University had actua l knowledg e of the place ment of the elec trical cord he tripped over, a condition that cre ated an unrea sonable risk of harm to pedestria ns using the sidewalk, I would aff irm the trial court’s or der a

nd there fore dissent from the majority ’s dec ision to reverse it.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Filed: Aug ust 8, 2014

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