Opinion issued April 6 , 2023

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 22 - 00405 - CV

——————————— TEXAS DEPARTMENT OF PUBLIC SAFETY , Appe l la nt V. BRUCE GAIBLE , Appell e e On Appeal from the 61st District Court Harris County , Texas Trial Court Ca se No. 2020 - 65469

MEMORANDUM OPINION This is an interlocutory appeal from the denial of a plea to the jurisdiction. Appellee B ruce Gai ble sued the Texas Department of P ublic Safe ty ( “ DPS ” ) under a premises liability theory for damag es susta ined when he fell in the parking lot of

a DPS office. DPS asserted sover eign immunity, arguing that Gaible had the status2

of a licensee, not a n invitee. In a single issue on appe a l, t he Depa rtment asserts that Gaible did not demonstrate a w aive r of sovereign immunity. DPS maintains that it owed Gai ble the duty owed to a licens ee because G aible did not pay for the use of the premises and that Gai ble did not raise a question of fact about whe ther DPS had actual or constructive k nowledge of the all eged ly hazardo us con d ition , which Gaible conte nds caused hi s parking lot fall. We conclude th at Gaible did not demonst rate a waiver of sover eign immunity sufficient to i nvoke the jurisdicti o n of the court. We vacate the trial
court ’ s order, and we render judg ment di smi ssing Gaibl e ’ s claims against D PS

. Background App ellee Bruce Gaible needed to renew his driver ’ s license. He arrived at the office on Dacom a Street at approximately 7:30 a.m. , before the office o pene d at 8:00 a.m. As he got out of his car, he n oticed 30 or 40 people already were in line. H e took “ probably 10 or 12 steps or so , ” before his feet became entangled in

“ what turned ou t to be some wire. ” He fell on hi s right side, br e aking his femur. Unable to use his broken leg, Gaible s cooted tow ard his car to avoid being hit by parking lot traffic. A young woman , Meredith Kirk, approached him, offered help, and called 9

- 1

- 1 at his request. Kirk noticed a wire r i ng on the ground and tossed it onto the nearby grass while aw aiting the arri val of eme rgen cy service s .3

Meanwhile, a D PS employee , who noticed Ga ible on the ground , informed his supervisor Misty Verdu zco that a man outside need ed help. Verduzco, w ho had worked at the D acoma Stre et DPS office for ten years was the acting s upervisor at the ti me. Verduzco w ent outside , spoke to Kirk about th e incident, and placed traffic cones to p rotect Gaible

. Verduzco also took photographs, obtained a written
stat e ment from Kirk, and completed and submitted a DPS incident report
. Gaible w as taken to the eme rgen cy room, w here he underwent surgery

. He stay ed in the hospital for several days

. He spent months recuperating and rehabilitating from his injuries. Ga i ble s u ed DPS f

or damages under a premises defect theory of liability , alleging that DPS had a duty t o wa rn of or m ake safe any condition that posed a n unreasonable risk of harm and about which it had actual or con structive knowledge. DPS answered with a g eneral denial and a plea t o the jurisdiction asserting sove r eign immunity

. Gaible responded t hat he w as a n invitee because “ he entered the premises with [DPS ’ s] knowledge and f or the mutual benefit of both parties , ” and because “ [m] aintaining a cu r rent and active driver ’ s license mutually benefits the State of Texas and its drivers. ” He argued that he ple aded a via ble waiver of immunity under the Texas Tort Clai ms Act becau se DP S ’ s premises “ are used by the public to obtain or renew driver ’ s lice ns e s, a service for wh ich the premises are held open to the public and for which the public pays. ” He a sserted4

t hat DPS reason ably should have known that the wire ring was in the parking lot and that it created a dang erous condition, but it negligently faile d to inspect and maintain the premises. He attached the transcript of Verduzco ’ s deposition in support of his con t entions. DPS responded with the followi ng evidence : ( 1 ) Gaible ’ s depo sition transcript ; (2) Verduzco ’ s deposition transcript; (3) the internal incident report, Kirk ’ s witness statement, and photos from the incident; ( 4 ) the janitorial contract and wor k l o g in effec t at the time of the inc ident, along with a business records affidavit ; and (5) the affidavit of D PS employee Syl via Guerra

. DPS arg ued that Gaible has the status of a licensee, not an invitee , because payin g for lic ense renewal is not payin g fo r the use of the premises. DPS further argued that the standard of care for a licens ee require s actu a l knowledge on the part of the defendant, not the lesser standard of constructive knowledge. DPS asserted that its evidence showed that i t had neither actu al know led ge nor constructive knowledge of the existen ce of the wire ring before Gaible ’ s accident. V e rdu zco t estified that she did not know how or when the wire ring came to be present in the parking lot , and she said that she was not aware of any pri or s lip

and

- fa ll accidents during the ten y ear s she had worked at that location

. Janitorial

rec o rds indicated that the parking lot had been cleaned of paper and tr ash the night before Ga i ble ’ s fall. Guerra averred in her affidavit that she was the regional5

man age r, she had searched the records, and there were no records of injuries in the parking lot du e to da ngerous conditions, including tr ipping hazards. In addition, Gaible and Verduzco both tes tified that the ring was not co nspicuous though it could be s een by the nak ed eye

. The trial court denied the plea to the jurisdic tion, and DPS appealed. A n alysis In a si ngle issue on appeal, DPS argues th at the trial court erred by denying its plea to the jurisdiction because the undisputed evidence established t hat DP S lacked both actual and constructive knowledge of the existence of the w ire ring in its p a rking lot

. I. Legal standards A. Standard of re view on plea to the jurisdiction A party may challenge a trial court ’ s subject matter jurisdiction by f iling a plea to the jurisdicti on, whic h we review de novo. Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie , 5 78 S.W.3d 506, 512 (Tex. 2019) (citing Tex. Dep ’ t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004)). Ordinarily a plea to the ju risdiction chal leng es the plai ntiff ’ s pleadings, asserting that the alleged facts do not affirmatively demonstra t e the court ’ s jurisdiction. See Mission Consol. Indep. Sch. Dist. v. Garcia , 372 S.W.3d 629, 635 (Tex. 2012). A plea to the jurisdiction may al so challenge th e ex istence of jurisdic tional facts or implicate the6

merits of the plaintiff ’ s cause of action. S e e Alamo Heights Indep. Sch. Dist. v. Clark , 544 S.W.3d 755, 770

– 71 (Tex. 2018). Because a plea to the jurisdiction is a dilatory plea, a plaintiff is not requ ired to put on her case simply to establish jurisdiction

. Bland Indep. Sch. Dist. v. Blue , 34 S.W

. 3d 547, 554 (Tex. 2000). When a plea to the jurisdiction challenges jurisdictional facts, a trial court ’ s review “ mirrors that of a traditio nal summary judgme nt m otion.” Gar cia , 372 S.W.3d at 635. We take as true all evidence favorable to the non movant , a n d we indulge every reasonable inference and resolve any doubts in the non movant ’ s favor. Miranda , 133 S.W.3d at 22 8

. I f the evidence is undisputed or fails to r ai se a fact i ssue, the plea must be determined as a matter of law. Garcia , 372 S.W.3d at 635. But i f the evidence raises a fact issue about jurisdiction, the plea cannot be granted, and a fact finder must resolve the issue. Miranda , 133 S.W.3d at 22 8

. Thu s, t o avoid dis missal, a plaintiff must establish the existence of a genuine question of material fa c t on the jurisdictional issue. Alamo Heights Indep. Sch. Dist. , 544 S.W.3d at 771. B. Governmental immunity and the Texas Tort Claims Act Governmental immunit y, l ike soverei gn immunity from which it is derived, exists to protect political subdivisions, such as municipalities, from suit and liability for monetary damages. Mission Consol. Indep. Sch. Dist. v. Garcia , 253 S.W.3d 653, 655 n.2 (Tex. 2008)

. Governmen tal immunity de prives a trial court of7

subject matter jurisdiction over lawsuits in which the State ’ s political subdivisions have been sued u n less immunity is waived by the Legislature. See Gar cia , 372 S.W.3d at 636 ; Miranda , 133 S.W.3d at 225

– 26. “We inte rpre t statutory waivers of immunity narrowly, as the Legislature ’ s intent to waive immunit y must be clear and unambiguous.” See Mission Consol. , 253 S.W.3d at 655 (citing T EX
. G O V ’ T C ODE § 311.034). Thus, we initially focus exclusively on the statute permi ttin g a party t o sue the state, without regard to evidence of injury or the need for a par t y to have a remedy for a violation of his rights. See id. The Legislature has expressly waived immunity to the extent provided by the Texas Tort Claims Act. See Miss ion Consol. , 25 3 S.W.3d at 655; see also T EX
. C IV
. P RAC
. & R EM
. C ODE §§ 101.001

– .109 (TTCA). As relevant to this appeal, the TTCA generally waives governmental immunity for “personal injury and death so caused by a condition or use of tangible personal or real property i f the governmental unit would, were it a private person, be liable to the claima n t according to Texas law.” T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.021(2) ; see State v. Shumake , 199 S.W.3d 279, 283 (Tex. 2006) (“ The Texas Tort Claims Act includ es,

amo ng other things, a limited waiver of the s tate ’ s immunity from suits alleging personal i n

jury or death caused by premises defects. ”). Because premises defect claims have heightened standards, a claim for a premises defect must be analyzed under the more s p ecific p rovisions in section 101.022 of the TTCA. Sam pson v.8

Univ. of Tex. at Austin , 50 0 S.W.3d 380, 386 (Tex. 2016) . Under section 101. 022, when a claim arises from a premises defect, “ the governmental unit owe s to the claimant only the duty that a priva te perso n owes to a licensee on private pr operty, unless the claimant pays for the use o f t he premises. ” Id. § 101.02 2 ( a ) ; see Shu make , 199 S.W.3d at 283

. “ If the plaintiff pays for the use of the premises, the governmental unit owes the plaintiff the duty owed to an invitee. ” Ogueri v. Tex. S. Univ. , No. 01

- 10

- 00228

- CV, 2011 WL 1233568, at * 1 (Tex. App.

— Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (quoting City of Irving v . Seppy , 301 S.W.3d 435, 441 (Tex. App.

— Dallas 2009, no pet.) )

. C. P r emises l iability “The threshold question in a premises liability case is whether the defendant owes a duty t o the injured plaintiff.” Watanabe v. Summit Path Partners, LLC , 650 S.W.3d 112, 125 (Tex. App.

— Houston [1st Dist.] Aug. 10, 2021, no pet.) (citing Hillis v . McCall , 602 S.W.3d 436, 440 (Tex. 2020)). The existence of a duty is a questi on of law for the co u rt to decide based on the facts of the case. Hillis , 602 S.W.3d at 440. For a duty to exist, the defendant must have possession or control over the premises where t he injury occurred. Cnty. of Cameron v. Brown , 80 S.W.3d 549, 554 (Tex. 2002). The nature o f the duty owed depends on the p laintiff ’ s status, for example as an invitee or licensee. See Hillis , 602 S.W.3d at9

440; W. Invs., Inc. v. Urena , 162 S.W.3d 547, 550 (Tex. 2005); Watanabe , 650 S. W.3d at 12 5

.

“ To prevail in a premises

- liability case, the in v itee plaintiff must show that (1) the owner had actual or constructive knowledge of the condition at issue; (2) the condition was unreasonably dange rous; (3 ) the ow ner did not exercise reasonable care to reduce or eliminate the unreasonable risk of harm; a nd (4) the

owner ’ s failure to reduce or eliminate the unreasonable risk of harm p roximately caused the plaintiff ’ s injuries. ” United Supermarkets, L LC v. Mc Intire , 646 S.W.3d 800, 802 n.4 (Tex. 2022) (per curiam) (citing Keetch v. Kroger Co. , 845 S.W.2d 2 6 2, 264 (Tex. 1992) ). A landowner gen erally has no duty to warn invitees of hazards that are open, obvious, or known to the invitee. Austin v. Kroger Tex., L .P. , 465 S.W.3d 193, 20 3

– 0 4 (Tex. 2015)

. “The duty owed to a licensee on private property requires that ‘a landowner not i n jure a licensee by willful, wanton or grossly negligent conduct, and that the owner use ordinary care either to warn a licens ee of, o r to mak e reasonably safe, a dangerous condition of which the owner is aware and the licensee is not.’ ” Sampson , 500 S.W.3 d at 391 (quoting State Dep ’ t of Highways & Pub. Transp. v. Payne , 838 S.W.2d 235, 237 (Tex. 1992)). Absent willful, wanton, o r grossl y neglig ent conduct, to prevail in a premises

- liabil ity case, the licensee plaintiff must show that : (1) a condition of th e premises created an unreasonable risk of harm to10

the licensee; (2) the owner actually knew of the condition; (3) the license e did no t actuall y kn ow of the condition; (4) the owner failed to exercise ordinary care to protect the licensee from danger; (5) the owner ’ s failure was a proximate cause of injury to the licensee. Payne , 838 S.W.2d at 237. II. G a ible is a licensee becaus e he did no t pay fo r the use of the premises. The parties dispute whether G a ible is a licensee or an invitee. DPS asserts that G aible is a licensee because driver ’ s l icense renewal fees merely relate t o the pr emises . Gaible maintains t hat he paid for the u se of th e premises because he intended to pay license renewal fees and that absent hi s avail ing himself o f D PS services at its office , he w ould not have been allowed to stay there. Texas court s interpreting section 101.022 (a) have determined that to
const itute pa ying a fee for the use of the p remises , the fee must be paid specifically for entry onto and use of the p ublic premises. See C ity of Houston v. Crawford , No. 01

- 18

- 00179

- CV, 2018 WL 4868306, at *3 (Tex. App.

— Houston [1st Dist.] Oct. 9, 2018, no pet .) (mem. op.) (quot ing City of Dallas v. Davenport , 418 S.W.3d 844, 847

–

4 8 (Tex. App.

—

Dallas 2013, no pet.) ). For example, the Fort Worth
court o f appeals he ld that pa ying to hold a private event at a public premises during hours when the public is otherwi se exclu ded was pay ment “ for the use of the premises ” under the TTCA. See Sullivan v. City of Fort Worth , No. 02

- 10

- 00223

- CV, 2011 WL 1902018, a t *8 (Tex. App.

— Fort Worth May 19, 2011, p et. denied )11

(mem. op.) ( holding that plaintiff was invitee because pa y ment of rental fee to hold wedding rece ption in city park after closing hours was payment for use of premises)

. C ourts have found invitee status whe r e the plaintiff entered the premises through use of a paid membership and when the plaintiff paid tu ition t o a scho ol where she slipped and fell. 1 City of Dallas v. Patrick , 347 S.W.3d 452, 457 (Tex. App.

— Dallas 2011, no pet.) (holding that plaintiff was in v itee because she obtained entry to city zoo through her mother ’s paid membership) ; Ogueri v. Tex. S. Univ

. , No. 0 1

- 10

- 00228

- CV , 2011 WL 1233568, at * 3 (Tex. App.

— Houston [1st Dist.] Mar. 31, 2011, no pet.) (mem. op.) (holding that slip

- and

- fall plaintiff was invitee because payment of tuition was payment for use of state

- owned law school premises )

. On the ot h er hand , Te xas court s have concluded that payment that merely relate s to the premises did not constitute payment “for the use of the premises ” under the TTCA

. S e e City of Houston v. Crawford , No. 01

- 18

- 00179

- CV, 2018

1 C ourts of appeals have also found that payment of fees to a th ird party, who in turn paid the city for the use of the public p remises by their patrons or members constituted payment “for the use of the premises ” und er the TTCA. See City of Houston v. Gilbert , 656 S.W.3d 603, 614 (Tex. App.

— Houston [14th Dist.] No v. 10, 20 22, pet. filed) ( concluding that “ payments made indirectly to a municipality through an intermediary

— such as a little league

— can be sufficient evidence to raise a fact issue on invitee status under section 101.022(a), as long as the payment spe cif ically allowed the claimants to use the premises ”); C ity of Fort Worth v. P osey , 593 S.W.3d 924, 930

– 31 (Tex. App.

— Fort Worth 2020, no pet.) ( holding that pla in tiff raised question of fact about in vitee status because payment of parking fee to city and pay ment of entry fee to civic organization that in turn paid city to ren t prem ises for pa tron s ’ use was payment for use of premises)

.12

WL 4868306, at *3 (Tex. App.

— Houston [ 1st Dist .] Oct. 9, 20 18, no pet.) (holding that plaintiff who slipped and fell in airport terminal was licens ee because purchase of air line ticket did not con sti t ute payment for use of premi ses) ; Davenport , 418 S.W.3d at 847

–

4 8 ( same ) ; Churchman v. City of Houston , No. 01

- 96

- 0 0211

- CV, 1996 WL 544250, at * 2

– 3 (Tex. App.

— Houston [1st Dist.] Sept. 26, 1996, writ de n ied) (mem. op.; not designated for publication) (same) . For example, payment of taxes and driver ’s license fees are not p ayments for the use of the premise s. S ee State Dep ’ t of Highways & Pub. Transp. v. Kitchen , 867 S.W.2d 784, 786

– 87 (Tex. 1993) (holding that payment of vehicle registration and l icensing fees was

no t payment for use of premises when plaintiffs sued for injuries from moto r vehicle a ccident on icy bridge ) , abrogated on other grou nds by Denton Cnty. v. Beynon , 283 S.W.3d 329 (T ex. 2009 ) ; Mitchell v. City of Dallas , 855 S.W.2d 741, 7 4 6

– 4 7 (Tex. App.

— Dallas 1993) ( holding that payment of city taxes alone did
not confer invitee status on plaintif f who fell fr om bicycle at muni cipal park ) , aff ’ d , 870 S.W.2d 21 (Tex. 1994) ; Garcia v. State , 817 S.W.2d 741, 743 (Tex. App.

— San Antonio 1991, w r it denied) ( holding that payment of driver ’s l icense fees and fu el taxes d id not conf

er invitee status on plai ntiff who sue d for damages sustaine d in hi ghway accident )

. And the Fo u rteenth Court of Appeals has held that payment of a filing fee in a divorce case was not a payment for the use of the pr emises,13

when the plaintiff slip ped and fell on wet courtho us e step s. Simpson v. Harris Cnty. , 951 S.W.2d 251, 253 (Tex. App.

— Houston [14th Dist.] 1997, no writ)

. In this case , G a ible argues that he has the statu s of an invitee because he was in the p arking lot near the DP S office because he intended to renew his driver ’ s license, in part by paying the fees. This is a case where the p a yment

– or intended payment

– merely relates to the premises

. See Crawford , 2018 WL 4868306, at *3

. On appeal, G ai b le argues that the DPS office is not open to the public the way a park o r lib rar y is open to the public. Our standard does not require us to consi der whether the public premises in question is fully accessible to the publi c . Rather, sectio n 101.022(a) requires us to determine whether the plaintiff has paid for the use of the premis es. See T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.022(a). W e ar e required to strictly construe statu tes waiving governmen tal immunity, and there is neither a pleadin g nor juri sdictional ev idence to show that Gaible paid for the use of the parking lot where his acc ide nt occur red. See Mission Consol. , 253 S.W.3d at 655 (citing T EX
. G O V ’ T C ODE § 311.034). G aible also a rgues that he should be considered an invitee , not a licen see, because he entered the DPS premises to renew his driver ’s license, which he contends was fo r the mu tual benefit of himself and the state. In a premises liability case in which the defendant is a private party, an invitee is “ one who enters the p r opert y of another with the owner ’ s knowledge and for the mutual benefit of14

both. ” Austin , 465 S.W. 3d a t 202 (quoting Motel 6 G.P., Inc. v. Lopez , 929 S.W.2d 1, 3 (Tex. 1996))

. While the TTCA generally waives immunity for premises liability “if the governm e ntal unit would, were it a private person, be liab le to claim a nt ” under Texas law, see T EX
. C IV
. P RAC
. & R EM
. C ODE § 101.021(2) , it also modifies the elements of a premises liability case by limiting the duty owed by a governmental unit. See id. § 101.022 ; Harr is Cnty. v. Shook , 634 S.W.3d 942, 953 (Tex. App.

— Houston [1st Dist.] 2021, pet. denied)

. Gai ble ’s argument attempts to import the status of invitee from cases involv ing pr ivate p remises into the public premis es context, and in doing so, this argumen t igno res the specific requiremen ts of section 101.022(a). This is improper, because a premises lia bil ity claim against a governmental entity must be analyzed under the more s pecific provisions in section 101.022 of the TTCA. See Sam pson , 500 S.W.3d at 38 6

. Acco rdingly, we conclude that G aible ha d the status of a licensee because he did not pay for the use of the pr emises. III. Gaible did not show that there is a question of fact about DPS ’ s actual knowledge of the alleged hazard. D P S argues that Gai ble d i d not demonstrate that governmental immunity has been waived in this case. Because Gaible is a lic ens e e, to demonstrate a waiver of

s over eign immunity , he was required to establish that the wire ring posed an unreasonable risk of harm, DPS had actual know l edge of its presen ce in the park ing lot before the incident, and t hat DPS failed to warn about wir e r i ng or15

remove it. See Sampson , 500 S.W.3d at 391

. DPS argues that its jurisdictional evidence con clusively proved that it did not have actual knowle dge of the p resence of the wire ring in the parking lot before the inci dent

. To prove actual knowle dge, a l icens ee must show that the premises owner actually knew that the dangerous condition existed at the time of the incident

. Sampson , 500 S.W.3d at 392

. Prio r repo rts of in juries caused by the d angerous condition or the potential ly dangerous nature of the con dition is som e evidence that the owner had actual knowledge of t he dangerous condition. I d. The absence of such evidence, however, does not negate actual k nowle dge , and circumstantial evidence can establish actual knowledge so long as it supports such a co nclusion dir ectly or by reasonable inference. Id. In his brief, Gaible concedes that there are no facts to show that DPS had actual knowledge of the wire on th e lot. He in stead argues that he was an invitee and that DPS had constructive knowledge of th e p resence of the wire ring on the lot and its potential hazardou sne ss. We have already concluded that Gaible was a licens ee , and , therefo r e, Gaible ’ s arguments ar e unavailing. Moreover, DPS produced jurisdictional evidence that established that it did

no t h ave actu al knowledge of the wire on the lot. Verduzco testified that she had worked at the Dacoma Street office for ten years and was n o t aware of any prior inc idents when a p erson fell due to a tripping haz ard. Sylvia Gue rra , a regional16

manager since 1 996 , averred that she i s responsible for overseeing the DPS office on Dacoma Street , and she h as access to DPS reco rds regarding reports o f injuries on the premise s . She averred that there were no reports of injuries alleged to have resulted from a dangero us condition in the par king lot before December 28, 2018, and specifically, no r eports of wire rings or other tripping hazards in the park i ng lot before December 2 8, 2018. The janitorial contract showed that picking up trash and paper in the par king lot wa s a d aily service, and the work log indicated that this service was performed the night before G aibl e ’ s accident. We conclude that G a ible f ailed to demonstrate a question of fact existed as to whether DPS had actual knowledge of the wire ring that he cont end s caused his accident. Accor dingly, government al immunity has not been waived in this case, and we hold that the t r ial court erred by denying DPS ’ s plea to the jurisdiction. We sus tain DPS ’s sole issue. Conclusion We vacate the trial court ’ s order deny ing the plea to the jurisdiction , and we render judgment di smissing Gaibl e ’ s claims against D PS

.

Peter Kelly Justice P anel cons i sts of Chief Justice Ad a ms and Justices Kelly and Goodman.