NO. 03-14-00749-CV

IN THE COURT OF APPEALS FOR THE 

THIRD JUDICIAL DISTRICT, AUSTIN 

THE UNIVERSITY OF TEXAS AT AUSTIN, 

APPELLANT 

V.

WILLIAM A. BELLINGHAUSEN, JR., 

APPELLEE

__________________________________________________________________ 

On Appeal from the 345th Judicial District Court of Travis County 

__________________________________________________________________ 

APPELLEE’S BRIEF 

__________________________ 

 Counsel for Appellee 

 Robert L. Ranco 

 SBN: 24029785 

 The Carlson Law Firm, PC 

 11606 N. IH-35

 Austin, TX 78753 

 (512) 346-5688 

 (512) 719-4362 (fax) 

 Rranco@carlsonattorneys.com 

ACCEPTED

03-14-00749-CV

4377534

THIRD COURT OF APPEALS

AUSTIN, TEXAS

3/4/2015 5:26:08 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/4/2015 5:26:08 PM JEFFREY D. KYLE Clerk
1

Table of Contents

TABLE OF AUTHORITIES .....................................................................................2

SUMMARY OF THE ARGUMENT ........................................................................5

ARGUMENT.............................................................................................................9

I. Standard of Review.............................................................................................9

II. There Is Evidence That UT-Austin Knew That An Unreasonably Dangerous 

Condition Existed At The Place And Time Bellinghausen Fell ............................9

A. Direct Evidence Exists That UT-Austin Knew That An Unreasonably 

Dangerous Condition Existed Mere Hours Before The Incident In Question..10

B. Circumstantial Evidence Creates a Better Picture of Appellant’s Knowledge 

of the Dangerous Condition ..............................................................................13

C. Officer Gonzalez’s Report Creates A Fact Issue Regarding Whether UTAustin Knew Of The Unreasonably Dangerous Condition ..............................17

1. Henry Saw The Dangerous Condition ..........................................................17

2. Officer Gonzalez Identified The Same Protruding Crack ............................18

3. The Inattentiveness Is A Fact Question, And Circumstantial Evidence 

Supports Knowledge Of The Crack..................................................................20

4. Henry Saw Someone Fall On The Crack And Knew That Cracks Existed All 

Over The Campus. Therefore A Reasonable Jury Could Find That Henry 

Knew Of The Dangerous Condition, But Bellinghausen Did Not. ..................21

5. Henry’s “Clarification” Creates A Fact Issue...............................................22

PRAYER..................................................................................................................24

CERTIFICATE OF SERVICE ................................................................................25

CERTIFICATE OF COMPLIANCE.......................................................................26
2

TABLE OF AUTHORITIES

Cases

Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989)...................................................9

City of Corsicana, v. Stewart, 249 S.W.3d 412, 414-15 (Tex. 2008)............... 10, 15

City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) .............................14

City of Houston v. Harris, 192 S.W.3d 167 (Tex. App.—Houston [14th Dist.] 

2006, no pet.)........................................................................................................13

City of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996).............. 11, 16

Hammerly Oaks Inc. v. Edwards, 958 S.W.2d 387, 392, 392 (Tex. 1997).............17

Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex 2001)..................................................9

Marathon Corp v. Pitzner, 106 S.W.3d 724, 729 (Tex. 2003)............... 9, 17, 19, 20

Reyes v. City of Laredo, 335 S.W.3d 605, 608-609 (Tex. 2010).............................14

Rice Food Market, Inc. v. Hicks ̧ 111 S.W.2d 610, 613 (Tex. App.—Houston [1st 

Dist.] 2003, pet. denied) ................................................................................ 13, 14

State v. Gonzalez, 82 S.W.3d 322. 330 (Tex. 2002)................................................10

Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.2d 217, 227 (Tex. 2004) .......9

University of Texas-Pan American, v. Aguilar, 251 S.W.3d 511 (Tex. 2008)........14

Statutes

TEX. R. CIV. P. 266a .................................................................................................11

Tex. R. Evid. 702 .....................................................................................................17
3

STATEMENT REGARDING ORAL ARGUMENT

Oral argument would likely not assist the Court in the instant case. The 

existence of a fact question regarding actual notice is clear. Regarding whether or 

not Appellant had actual knowledge the witness testified:

Q. And then towards the bottom it says, “A facility staff member, David 

Henry was working nearby all morning and said that he saw another person 

trip and fall on the same protruding crack about 9:00 A.M.” Do you 

remember telling the officer that?

A. Yes Sir. (CR 266; 40:1-6).

Granting oral argument and thus intimating that the court needs further explanation 

on this point would only serve to validate the outrageous suggestions and prism of 

truth through which the Defendants present their motion. Nevertheless, Appellee 

is prepared for oral argument if the court deems it necessary.
4

NO. 03-14-00749-CV

IN THE COURT OF APPEALS FOR THE

THIRD JUDICIAL DISTRICT, AUSTIN

THE UNIVERSITY OF TEXAS AT AUSTIN,

APPELLANT

V.

WILLIAM A. BELLINGHAUSEN, JR., 

APPELLEE

On appeal from the 345th Judicial District Court of Travis County

Appellee’s Brief

TO THE HONORABLE THIRD COURT OF APPEALS:

All credibility, all good conscience, all evidence of truth comes only from 

the senses.

- Friedrich Nietzsche

When David Henry said “Right there” it can mean “right there.” That a 

witness stated that something occurred “right there,” and that statement may have 

been altered, clarified, or even retracted, the original statement only points to that 

issue of credibility. A reasonable jury could determine that right there means right 

there. As credibility of a witness is the definitive jury issue, it is for the jury to 

decide whether or not to trust Henry’s initial statement or to grant greater weight to 
5

the clarification. That the witness statement could be interpreted to mean different 

things does not mean that no reasonable fact finder could determine that Appellant 

had knowledge of the unreasonably dangerous condition. 

It is undisputed that an employee of The University of Texas at Austin saw 

someone fall in the general area where Mr. Bellinghausen fell mere hours before 

the incident in question. It is also undisputed that he told the investigating officer 

immediately following the incident that he saw someone fall “right there” and that 

he fell on “the same protruding crack.” Relying on this testimony, any reasonable 

fact finder could find Henry saw the incident occur on the same crack. Because 

Henry saw someone fall on the same crack he and UT-Austin had actual 

knowledge of the unreasonably dangerous condition. Therefore Defendant’s Plea 

to the Jurisdiction was properly denied.

SUMMARY OF THE ARGUMENT

The argument can best be summarized by the opinion of the trial court. In a 

letter accompanying the order, the court reasoned:

There is evidence that the University had actual 

knowledge of the hazard. It is rare to have one person 

witness two people fall in any proximity to one another. 

Even rarer to have the witness’ recorded statement at the 

scene. Corrections, qualifications, or clarifications cannot 

undo the factual question. Credibility becomes the issue.

(CR 315).
6

This is a rare fact issue. Premises cases so often revolve around circumstantial 

evidence to create actual knowledge. This is not that case. An employee of the 

Appellant saw someone fall, on the same crack mere hours before the incident in 

question. As part of a statement to the police he was recorded to say that someone 

fell “right there.” The police officer, to whom the witness spoke, identified that 

Bellinghausen fell on the same protruding crack as the prior fall. A reasonable fact 

finder could very easily read the phrase “right there” and “the same protruding 

crack” to mean those plain language phrases and that Appellant had knowledge of 

the unreasonably dangerous condition prior to the incident in question. Therefore, 

Appellant’s plea to the jurisdiction was properly denied. 

Pragmatic organization of the relevant evidence would be to separate the 

evidence into “pre-deposition evidence,” i.e., the evidence that was available and 

undisputed before the deposition of David Henry, and “deposition evidence,” i.e., 

the modifications Mr. Henry made to that evidence during his deposition. 

The pre-deposition evidence consists primarily of information available in 

the police report and on the audio recording from the scene of the incident. In 

reviewing these items, the following are uncontroverted:

1) Mr. Henry told the police officer at the scene that Mr. Bellinghausen’s fall 

was the second time today that someone had fallen. (CR 276;50:10)

2) Mr. Henry told the police office that the guy who fell earlier fell “right 

there.” (CR 276; 50:20-23)
7

3) Mr. Henry told the police officer at the scene he saw another person trip and 

fall on the same protruding crack about 9:00 a.m. (CR 266; 40:1-6)

4) Mr. Henry saw someone fall around “right there” around 9:00 a.m. (CR 279; 

53:7-10)

5) Mr. Henry said the other person who fell was in his 30s or 40s. (CR 279; 

53:11-15)

6) Mr. Henry saw the other guy fall on all fours. (CR 279; 53:16-18)

7) Mr. Henry told the police officer “We’ve got a lot of [uneven expansion

joints] on campus.” (CR 281; 55: 9-11)

8) The investigating police officer, who had the benefit of Mr. Henry’s words, 

as well as everything else incumbent in personal interaction with an 

eyewitness such as nonverbal communication, wrote the report indicating

that another person had fallen, pursuant to Mr. Henry’s description, on the 

“same protruding crack” earlier. 

Nothing in the police report nor on the audio recording suggests that Mr. Henry’s 

understanding that the earlier fall occurred on the same protruding crack was a new 

realization after the Bellinghausen fall. There is no indication that Henry realized 

the condition existed only after the second fall.

Moreover, the fact finder must ask herself: Why did Mr. Henry leave the 

scene of his work to talk to the investigating police officer at the scene of the 

Bellinghausen fall? This fall occurred outside of Mr. Henry’s work zone at U.T. 

(CR 249; 23: 7-8) Mr. Henry did not witness the fall as he had witnessed the earlier 

fall. Mr. Henry did nothing to assist Mr. Bellinghausen. Mr. Henry has no medical 

training. EMS and police were on the scene to take care of the injured man. The 

sole reason Mr. Henry left his post and talked to the police officer- indeed, the only 

thing he accomplished during that detour from primary duties- was to inform the 
8

investigating officer that this was the second fall of the day “right there” on the 

“same protruding crack.” 

All of the pre-deposition evidence supports a dispositive finding as to actual 

notice prior to the Bellinghausen fall. There is no genuine issue of material fact on 

this issue prior to the Henry deposition. All evidence indicates that Henry and UTAustin knew after the first fall that an attentive, phoneless pedestrian tripped on the 

same dangerous crack hours before Bellinghausen.

It is only Henry’s deposition testimony, three years after the incident that recasts this evidence and where we first encounter the notion of a possible later 

understanding of the dangerous condition. It is in the deposition that Mr. Henry, 

for the first time, suggests that the first fall involved a potentially distracted man 

using his cell phone. None of this information was conveyed to the police officer at 

the scene. Mr. Henry, who was so intent at the scene of the fall to assist the officer 

in his understanding by drawing parallels between the two falls, had a decidedly 

different approach after being prepped for deposition by his attorneys. It is only 

this change that raises the fact issue.

There lies the fact issue. A jury could rely on the earlier statement where he 

told the officer that someone fell on the same protruding crack, and determine that 

knowledge arose prior to the incident in question. That a fact issue exists means 

the Plea to the Jurisdiction was properly denied.
9

ARGUMENT 

I. Standard of Review

When a plea to the jurisdiction challenges the existence of jurisdictional 

facts, the court can consider relevant evidence to resolve the issues raised. Tex. 

Dep’t of Parks & Wildlife v. Miranda, 133 S.W.2d 217, 227 (Tex. 2004). If the 

evidence presented creates a fact question then the court many not grant the plea. 

Id. at 228. All evidence favorable to the nonmovant is to be taken as true. Id. at 

228.

This is similar standard to a motion for summary judgment. Id. It is 

important to note that in a summary judgment motion if the credibility of the 

witness is likely to be a dispositive fact in the resolution of the case, summary 

judgment is not appropriate. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). To 

support a finding of material fact on a record that includes only slight 

circumstantial evidence there is need for “something else” to make one fact more 

probable than another. Marathon Corp v. Pitzner, 106 S.W.3d 724, 729 (Tex. 

2003) (quoting Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex 2001)).

II. There Is Evidence That UT-Austin Knew That An Unreasonably 

Dangerous Condition Existed At The Place And Time Bellinghausen Fell
10

A. Direct Evidence Exists That UT-Austin Knew That An Unreasonably 

Dangerous Condition Existed Mere Hours Before The Incident In 

Question 

David Henry saw someone fall in the same area mere hours before the 

incident in question (CR 307). This knowledge is then imputed to UT-Austin. 

Appellant does not deny Henry’s employment or that the knowledge would be 

imputed to them. Rather, Appellant only denies the facts of which David Henry 

knew. 

Actual knowledge requires knowledge that the dangerous condition existed 

at the time of the incident. City of Corsicana, v. Stewart, 249 S.W.3d 412, 414-15 

(Tex. 2008). It can be obtained from direct or circumstantial evidence. Id. 

Circumstantial evidence establishes actual knowledge when it “either directly or 

indirectly” supports that conclusion. Id. (quoting State v. Gonzalez, 82 S.W.3d 322,

330 (Tex. 2002). For example, it could not be inferred that TxDOT knew traffic

signs would be missing merely because they knew stop signs could be repeatedly 

vandalized. Gonzalez, 82 S.W.3d at 330. Without direct evidence, merely knowing 

it was raining and knowing there was flooding in the area does not create an 

inference that the City of Corsicana knew the specific crossing was a dangerous 

condition. Stewart, 249 S.W.3d at 415-16. More circumstantial evidence makes the 

inference more reasonable. When City of San Antonio employees knew rain would 

drip to the floor through leaks, coupled with knowledge of the leaks in the vicinity 
11

of the hazard, and that it was raining, the Court held that a reasonable fact finder 

could find that the city had actual knowledge of the dangerous condition. City of 

San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996). 

Here, direct evidence exists regarding Defendant’s actual knowledge of the 

unreasonably dangerous condition. David Henry knew of the dangerous condition 

prior to the incident in question. While working nearby he saw someone fall on the 

same sidewalk. (CR 252, 26:23-25). He reported to Sgt. Gonzalez that “he saw 

another person trip and fall on the same protruding crack about 9:00 AM” (CR 

266; 40:1-6). Although not in the police recording, Henry testified to telling the 

officer this very statement. (CR 266; 40:1-6) Henry told the officer that the subject 

appeared to be a white male in his mid 30s, and that he fell forward and ended up 

on all fours. (CR 266; 40:7-10). 

Based on this direct evidence, a reasonable fact finder could determine that

Henry had actual knowledge of the dangerous condition at the time of the incident 

in question. Therefore, Appellant had actual knowledge of the dangerous condition 

and the Plea to the Jurisdiction was properly denied. 

Three years later David Henry’s story changed. To the extent his testimony 

changed, this is an issue of his credibility and a question for the jury. See, TEX. R.

CIV. P. 266a. The inconsistencies include:
12

Day of Incident (8/28/2011) Day of Deposition (8/20/2014)

Saw him fall “right there”(CR 293; 67) Intent was to actually say somewhere 

near there (CR 294; 68:11-15)

“same protruding crack”(CR 266; 40:1-

6)

“I wouldn’t say it was the same point, I 

would say in the same vicinity.” (CR 

255; 29:2-13)

No mention that the prior fall victim was 

on his phone or inattentive. (CR 307)

The man appeared to be “checking 

voicemail or texting.” (CR 252; 26:18-

22).

Somehow after three years of time Henry’s story became more detailed and 

nuanced. “Right there” became “same vicinity.” Notably, Henry never says that the 

first fall did not happen on the same crack, only that he cannot guarantee the first 

victim tripped on the same crack (CR 255; 29:16-20). He also does not deny saying 

“right there.” A cell phone appeared in the prior fall victim’s hand and he was either 

texting (a task that usually requires looking at the phone) or checking voicemail (a 

task that requires listening to the phone). Henry now adds details he found 

unimportant while watching a man bleeding on the sidewalk. He also decided not to 

tell these important facts to the investigating police officer. Conveniently, the 

details added were also only those to make the existence of actual knowledge more 
13

suspect. These inconsistencies, changes, recantation, clarifications, or obfuscations

(depending on your perspective) only create issues of credibility for the jury to 

decide on the matter of UT-Austin’s actual knowledge. The jury could believe 

Henry’s statement at the time of the incident or the one three years later. Believing 

the first story is not an unreasonable inference, nor is it a stack of inferences. It 

would be more reasonable to believe the one made near the time of the incident. 

Because it is a fact question regarding Defendant’s knowledge, the plea to the 

jurisdiction was properly denied.

B. Circumstantial Evidence Creates a Better Picture of Appellant’s 

Knowledge of the Dangerous Condition

Appellant addresses Henry’s deposition testimony and tries to paint away 

that he said initially “right here.” Assuming arguendo all clarification are still read 

in the light most favorable to the Appellant, something the court must do the 

opposite of, there is still a clear picture of circumstantial evidence that can only 

point to Appellant’s actual knowledge of the dangerous condition.

The existence of prior incidents is a fact to consider when determining 

whether Defendant had prior actual knowledge. City of Houston v. Harris, 192 

S.W.3d 167 (Tex. App.—Houston [14th Dist.] 2006, no pet.). The court may also 

consider whether there were prior similar incidents. Rice Food Market, Inc. v. 

Hicks ̧ 111 S.W.2d 610, 613 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). 
14

The more recent the similar incident the more favor it points towards actual 

knowledge. City of Dallas v. Thompson, 210 S.W.3d 601, 603 (Tex. 2006) (finding 

that because the last similar incident was over three years ago this did not create 

actual notice).

A review of case law cited by Appellant finds no case similar to the one at 

bar. Each case lacks a fundamental element that is unique to this one: an employee 

of the entity saw a prior fall in the same vicinity hours before the incident in 

question. In Thompson, a cover plate had a habit of coming loose and the court 

found without more evidence the City did not have actual knowledge of the 

dangerous condition. 210 S.W.3d at 602. Though employees walked across it no 

one fell that same day or saw someone fall that same day. Id. In Reyes, knowledge 

that a low-water crossing tended to flood without more was no evidence to support 

actual knowledge. Reyes v. City of Laredo, 335 S.W.3d 605, 608-609 (Tex. 2010). 

Once again, no evidence was presented that an employee witnessed the condition.

Id. In Aguilar, guidelines in the safety manual did not create actual knowledge of 

the dangerous condition. University of Texas-Pan American, v. Aguilar, 251 

S.W.3d 511 (Tex. 2008). No evidence was presented that an employee saw the 

condition. Id. In Hicks, a representative of defendant testified that he knew of no 

similar incident. 111 S.W.3d at 613. No evidence was presented that an employee 

saw a similar incident. Id. No case presented includes a similar fact pattern. It is 
15

likely because the statement of an employee similar to that of Henry’s tips the 

knowledge argument over the edge. UT-Austin had knowledge prior to the incident 

in question.

Appellant does not dispute that there were uneven sidewalks all around the 

UT-Austin campus. (CR. 139;35:18-36:4). David Henry knew about them prior to 

the two falls. (CR 256; 30:8-10). It was common knowledge this is what happens 

with expansion joints. (CR 256; 30:14-16). He was also aware that this can occur 

around tree roots. (CR 257; 30-17-24). This was also not an event that occurred 

overnight, but something that would take considerable time. (CR 259; 33:3-13). 

This is circumstantial evidence can be used to show actual knowledge. See, 

Stewart, 249 S.W.3d at 414. Couple the knowledge of the cracks with Henry’s 

knowledge that someone fell in the general vicinity of the area where 

Bellingshausen fell and a reasonable fact finder could determine UT had actual 

knowledge of the unreasonably dangerous condition.

If Henry only identified someone fell in the area, at the time of Mr. 

Bellinghausen’s fall, David Henry and UT-Austin knew the following:

(1) there were uneven sidewalks all across campus;

(2) it was a common occurrence with expansion joints;

(3) cracks of this nature took considerable time to make

(4) the uneven sidewalk can be caused by trees;
16

(5) there was a tree in the area; and

(6) someone fell in the same vicinity of Mr. Bellinghausen.

This alone is enough for a reasonable fact finder to determine that Appellant had 

actual knowledge of the unreasonably dangerous condition. In Rodriguez, the 

Texas Supreme Court held that the City’s knowledge of leaks in the roof coupled

with its knowledge that it had been raining meant “the jury might have inferred 

that the person in charge knew that there would be water on the floor.” Rodriguez, 

931 S.W.2d at 537. The Court reasoned that the jury could decide the issue based 

on the position of the leaks above the floor. Id. That situation is less knowledge 

than the case at bar. What we have is essentially a rainy day, with knowledge of 

leaks, and then seeing someone slip on the floor. Similar to Rodriguez, the jury 

could decide the issue based on the position of “right here” and “the same 

protruding crack.” Therefore, a material fact issue exists regarding Appellant’s 

knowledge of the dangerous condition.

Knowledge that there were uneven sidewalks all across campus, that they 

could be made by tree roots, and that there was a tree nearby makes seeing the 

initial fall and connecting it to the crack a more reasonable inference for Henry and 

a jury to make. When Henry saw the first fall on a sidewalk he could draw the 

conclusion that the person tripped on the thing he saw all around campus

sidewalks, near the tree that may cause cracks. This is a reasonable inference. If, 
17

however, the first victim tripped on a rake, connecting it to a dangerous condition 

on campus would have been a stretch. Henry could not think that dangerous rakes 

existed all across campus. Nevertheless, when he saw someone trip on something 

he knew existed all across campus, a reasonable fact finder could determine that he 

saw someone fall on the same crack. Appellant’s actual knowledge of the cracks 

around campus makes one inference “more probable than another.” Pitzner, 106 

S.W.3d at 729 (quoting, Hammerly Oaks Inc. v. Edwards, 958 S.W.2d 387, 392, 

(Tex. 1997)). Because the broader circumstantial picture supports the underlying 

direct evidence, the plea to the jurisdiction was properly denied.

C. Officer Gonzalez’s Report Creates A Fact Issue Regarding Whether UTAustin Knew Of The Unreasonably Dangerous Condition

1. Henry Saw The Dangerous Condition

There is no testimony supporting that it was impossible for Henry to see the 

crack that far away. Henry does not state he could not see it nor does any expert 

opinion support that fact. Tex. R. Evid. 702. Henry’s testimony that he told the 

officer the first fall occurred on the same protruding crack negates this inference. 

(CR 266; 40:1-6).

Following Appellant’s analogy, if a referee made a call from the end zone it 

may be reason to throw the challenge flag. That does not make the call 

unreasonable or wrong. The other referees would look at the replay and determine 

what happened. Nevertheless, when the tape says the fall occurred “right there” the 
18

other referees would back the initial call. In the parlance of the NFL the ruling on 

the field stands.

Moreover, evidence suggests that Henry did see the crack. After 

Bellinghausen fell, Henry went over to see what was going on. (CR 248; 22:22-

23:1). He went over at or near the same time the officer arrived (CR 249; 23:17-

19). He offered information to Sgt. Gonzalez of his own fruition, and likely offered 

the information he thought relevant. He told the officer about the similarity of the 

falls and that it happened right there likely because he was worried of this 

happening again. He would have no other reason to do so. This behavior coupled 

with the prior discussion of the many things he knew about the campus and cracks 

in the sidewalk could lead a reasonably jury to believe he saw the unreasonably 

dangerous condition.

2. Officer Gonzalez Identified The Same Protruding Crack

Appellant details a possible solution regarding how Officer Gonzalez came to 

identify the same protruding crack. In short, he placed the phrase into the report 

based on the interview of David Henry, his review of the scene, and his 

investigation. It is a good story. Appellant, however, cannot point to evidence in the 

record detailing that this story is how the events happened. More importantly to the 

extent it is a story, it is a credibility issue for the jury. Henry distinctly remembers 

telling the officer that he saw another person trip on the same protruding crack.
19

Q. And then towards the bottom it says, “A facility staff member, David 

Henry was working nearby all morning and said that he saw another person 

trip and fall on the same protruding crack about 9:00 A.M.” Do you 

remember telling the officer that?

A. Yes Sir. (CR 266; 40:1-6).

That Officer Gonzalez identified the same protruding crack supports the fact 

that a reasonable fact finder could find that Appellant had actual knowledge of the 

dangerous condition. Officer Gonzales saw the incident where the location 

occurred. (CR 307). He took the photographs of the crack and the sidewalk. (CR 

307). He also spoke to David Henry. (CR 307). As a witness he would have seen 

Henry’s facial expressions, what he may have pointed to, tone of voice, and any 

other specific detail about the situation. Based on this information he reasoned that 

Henry saw someone fall on the same protruding crack. If inferences were made he 

made reasonable ones based on his knowledge of the scene. As he was in all 

likelihood a reasonable person a similarly placed reasonable fact finder could find 

that Appellant saw someone fall on the same unreasonably dangerous condition 

prior to the incident.

This is not the stack of inferences identified by the Appellant. In Pitzner, the 

Court held that the long chain of suppositions and hypotheses was not enough to 

create a fact issue. Marathon Corp., 106 S.W.3d at 729. The court outlines six facts 

that must have occurred for the incident to have happened as the plaintiff’s expert 

detailed. Id. There were too many other possible causes of the limited physical 
20

evidence that were just as likely, therefore the inferences were not reasonable. Id.

This is not a similar unsupported chain because Henry’s statement regarding the 

prior incident as well as his knowledge thereof support every inference regarding 

UT-Austin’s knowledge of the condition.

3. The Inattentiveness Is A Fact Question, And Circumstantial Evidence 

Supports Knowledge Of The Crack

Henry only decided to include in his story of the prior fall that the victim 

was on a cell phone when he retold the story three years after the incident in 

question. At the time of the incident, he only told the officer that the man landed 

on all fours. (CR 307). He did not tell him why he fell on all fours, detail a 

dropping of a phone, or give any details regarding the phone. It’s a suspicious and 

important detail to forget. A jury could easily decide that the earlier statement is 

simply more credible. It happened closer to the time of the incident, it was spoken 

to a police officer, and it did not have the usual taint of protracted litigation. 

Appellant did not cite case law, nor does there appear to be any that the addition of 

a cell phone three years after the fact means as a matter of law one existed or that 

the pedestrian was inattentive. Because the phone usage of the prior fall victim is 

in dispute a fact issue still remains regarding Appellant’s knowledge of the 

dangerous condition.
21

Moreover, assuming again that Henry’s later statement is true, couple this 

with his additional knowledge that cracks existed all around campus, and he did 

have reason to believe the prior victim tripped on a crack. There were not rakes, or 

sticks, or protruding pipes all over campus. There were cracks in the sidewalk of 

which he and UT-Austin knew. Seeing someone trip on a sidewalk known to be 

littered with cracks, it is then reasonable to believe he tripped on a crack. Couple 

this knowledge with the large nearby tree, a factor caused in the creation of cracks 

and visible in the photos, and any reasonable person could see even that the prior 

victim tripped on a crack. Because evidence supports that Henry knew the prior 

fall was caused by the crack the Plea to the Jurisdiction was properly denied.

4. Henry Saw Someone Fall On The Crack And Knew That Cracks 

Existed All Over The Campus. Therefore A Reasonable Jury Could Find That 

Henry Knew Of The Dangerous Condition, But Bellinghausen Did Not. 

Appellant contends that for Henry to have seen the dangerous condition 

Bellinghausen must have as well, if only because Bellinghausen was closer to the 

crack. This is a misstatement of the evidence because distance is not the only

difference between Bellinghausen and Henry. 

First, Henry testified that he was actually looking at the area when he saw the 

first victim fall. (CR 252; 26:23-25). Looking at the area is the first step to seeing 

something in the area. Bellinghausen was not looking at the area prior to the time he 
22

fell, so he simply could not have seen it. To presume Bellinghausen saw something 

when he was not looking in the area is the absurdity. 

Second, Henry knew there were cracks in the sidewalk all across campus.(CR 

256; 30:8-10). Henry would have had a reason to notice something in the sidewalk 

and a reason to look at the sidewalk. Bellinghausen was not gifted with similar 

foreknowledge. He would not be looking for something of which he was unaware. 

To presume Bellinghausen saw something of which he was not looking in an area at 

which he was not looking is again, absurd.

There is no reason, factually or legally, to impose knowledge on 

Bellinghausen simply because of his general proximity to the condition. Such a 

result would dismantle the issue of actual knowledge making every employee 

knowledgeable about the dangerous conditions around him. Because there is no 

evidence supporting the inference Bellinghausen knew of the condition, and such an 

inference would be absurd denial of the plea to the jurisdiction is proper.

5. Henry’s “Clarification” Creates A Fact Issue 

A fact issue exists about Henry’s clarification simply because there are 

inconsistencies of the statement. The day of the incident he said “right there” but 

three years later Henry now purports to realize what he meant to say was general 

vicinity. Though UT-Austin tries to paint these as consistent, that simply is not the 

case. If these were two contracts we would use plain language to interpret them
23

and a clear inconsistency exists. If Henry were hired to plant trees “right there” but 

planted them in the general vicinity he would likely get fired. Similarly, for Henry 

to say the general vicinity and clarify the very meaning of his words creates an 

inconsistency in his statement and a fact question for the jury to ultimately 

determine.

Moreover, though the words stated cannot be disputed, how the words were 

said can be. Officer Gonzalez saw how the words were said and determined that 

Henry meant the same protruding crack. Now after three years Henry means 

something different. This adds more fuel to the fire that is the underlying 

credibility issue. 

CONCLUSION

The issue of actual notice exists on a continuum. At the far ends of the 

continuum, each party could present a dispositive motion on the issue and expect 

to succeed. In the much larger middle section, a fact question exists. The Attorney 

General’s office would have the Court believe that the deposition testimony swung 

the pendulum on this issue decidedly and irrefutably into the area of their favor at 

the far end of that that continuum. It is clear, however, that the recantation and 

modification of the pre-deposition evidence does not eliminate that evidence, it 

only serves to muddy his testimony and create a credibility issue for Mr. Henry. 
24

A reasonable jury could determine that seeing someone fall “right there” 

means that he saw someone fall “right there.” When you then add that David 

Henry and UT-Austin knew that there were cracks in the sidewalk, a reasonable 

fact finder could determine that the university had knowledge of the dangerous

condition. Because there is a genuine fact dispute the trial court properly denied 

UT-Austin’s plea to the jurisdiction.

PRAYER

The Court should affirm the trial court’s ruling denying UT-Austin’s 

jurisdictional plea.

Respectfully submitted,

THE CARLSON LAW FIRM, P.C.

11606 N. IH-35

Austin, Texas 78753

Telephone: (512) 346-5688

Fax: (512) 719-4362

By: /s/ Robert L. Ranco 

Robert L. Ranco 

SBN: 24029785 

Rranco@carlsonattorneys.com 

Counsel for Appellee
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CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was served in 

accordance with Rule 21 and 21a, Texas Rules of Civil Procedure on this 4th day 

of March 2015 to all counsel of record.

Attorney: Served by

Office of the Attorney General

Joseph D. Hughes

Jason Warner

PO Box 12548

Austin, Texas 78711

(512) 936-1729

(512)474-2697

Jody.hughes@texasattorneygeneral.gov

____ Facsimile:

____ Email:

X E-service: via TexFile

____ CMRRR:

____ Other:

/s/ Robert L. Ranco 

Robert L. Ranco 
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CERTIFICATE OF COMPLIANCE

In compliance with Texas Rule of Appellate Procedure 9.4(i)(2), I certify 

that this brief contains 4,798 words, excluding portions exempted by Rule 

9.4(i)(1). In making this certification I rely on the Microsoft Word software word 

count feature. 

/s/ Robert L. Ranco 

Robert L. Ranco