No. 03-14-00749-CV 

## In the Court of Appeals for the Third Judicial District

T HE U NIVERSITY OF T EXAS AT A USTIN , Appellant , v. W ILLIAM A. B ELLINGHAUSEN , J R ., Appellee

. On Appeal from the 345th Judicial District Court, Travis County, Texas

APPELLANT ’ S REPLY B RIEF

KEN P AXTON Attorney General of Texas
C HARLES E. R OY First Assistant Attorney General

O FFICE OF THE ATTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1700 Fax: (512) 474-2697 S COTT A. KELLER Solicitor General J OSEPH D. H UGHES Assistant Solicitor General State Bar No. 24007410 jody.hughes@texasattorneygeneral.gov J ASON W

ARNER Assistant Attorney General

C OUNSEL FOR A PPELLANT

ORAL ARGUMENT REQUESTED ACCEPTED 03-14-00749-CV 4569284 THIRD COURT OF APPEALS

AUSTIN, TEXAS 3/19/2015 3:53:21 PM JEFFREY D. KYLE

CLERKii T ABLE OF C ONTENTS

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 I. Only One Reasonable Inference Can Be Drawn From the Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. No Reasonable Juror Could Believe That the Sidewalk Appeared Dangerously Defective From 150 Feet Away . . . . . . 3 B. Henry’s Statement That the Unidentified Pedestria n Fell “Right There” Identified the Location of the Fall, Not Its Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 C. Henry’s Knowledge That There Are Uneven Sections of Sidewalk on Campus Is Not Knowledge That an Unreasonably Dangerous Condition Existed Where Bellinghausen Fell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 II. Henry Did Not “Change His Story” Before His Depo sition . . . . . . . 11 A. Henry’s Identification of the Location Where the Unidentified Pedestrian Fell Does Not Create a Mate rial Fact Dispute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 B. Henry Consistently Described the Pedestrian as In attentive . . 14 C. There Is No Material Fact Dispute as to Why Henry Interrupted His Work After Bellinghausen’s Fall . . . . . . . . . . . 15 Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18iii I NDEX OF A

UTHORITIES Cases Brinson Ford, Inc. v. Alger

, 228 S.W.3d 161 (Tex. 2007) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 City of Austin v. Leggett

, 257 S.W.3d 456 (Tex. App.—Austin 2008, pet. denied) . . . . . . . . . . . . . . . . . 8 City of Corsicana v. Stewart

, 249 S.W.3d 412 (Tex. 2008) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8 City of Dallas v. Thompson , 210 S.W.3d 601 (Tex. 2006) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 City of San Antonio v. Rodriguez , 931 S.W.2d 535 (Tex. 1996) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Dietz v. Hill Country Rests., Inc. , 398 S.W.3d 761 (Tex. App.—San Antonio 2011, no pet. ) . . . . . . . . . . . . . . . . 5 K-Mart Corp. v. Honeycutt

, 24 S.W.3d 357 (Tex. 2000) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Reyes v. City of Laredo , 335 S.W.3d 605 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . 7, 8, 10
State v. Tennison , 509 S.W.2d 560 (Tex. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Tex. Dep’t of Pub. Safety v. Alexander , 300 S.W.3d 62 (Tex. App.—Austin 2009, pet. denied) . . . . . . . . . . . . . . . . . 10 U.S. Fire Ins. Co. v. Lynd Co. , 399 S.W.3d 206 (Tex. App.—San Antonio 2012, pet. de nied) (op. on reh’g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4-5 Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113 (Tex. 2010) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11No. 03-14-00749-CV 

## In the Court of Appeals for the Third Judicial District

T HE U NIVERSITY OF T EXAS AT A USTIN , Appellant ,

v. W ILLIAM A. B ELLINGHAUSEN , J R ., Appellee

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

APPELLANT ’ S REPLY B RIEF

T O THE H ONORABLE T HIRD C OURT OF A PPEALS :

It is undisputed that David Henry was working 150 t o 200 feet away from where he saw an unidentified pedestrian fall, and that he later reported seeing the pedestrian fall “right there.” Bellinghausen argue s that those words should be interpreted to mean that Henry witnessed not only where the pedestrian fell but also what
caused his fall. But the context in which Henry spoke th em precludes that reading. No reasonable juror could believe that, from 150 feet away, Henry identified the sidewalk as dangerously defective. Accordingly, the evidenc e raises no genuine fact issue as to whether the University had actual knowledge of an u nreasonably dangerous condition.2 A RGUMENT
I. O NLY O NE REASONABLE I NFERENCE C AN B E D RAWN F ROM THE E VIDENCE . The undisputed facts include the following: • maintenance supervisor David Henry was working on the east side of the Skilled Social Work building on the morning of August 27, 2011 when he saw an unidentified pedestrian fall onthe sidewalk on the north side of East 20th Street (CR.116 (26:12-2 5, 29:9-25)); • the location where the pedestrian fell, which was at least 150 feet away (and across the street) from where Henry was w orking, was the same location where Bellinghausen later fell (CR.11 5 (23:2-6); • shortly after Bellinghausen fell, Henry told Offic er Gonzalez that, a few hours earlier, the unidentified pedestrian ha d fallen “right there” (CR.120 (67:3-8)); and • Officer Gonzalez’s police report stated that (1) B ellinghausen said that he “tripped over a protruding crack in the sid ewalk” and (2) Henry “was working nearby all morning and said that he saw another person trip and fall on the same protruding crack at about 9:00 am.” CR.100. It cannot reasonably be inferred from this evidence that, at the time the pedestrian tripped, Henry perceived the sidewalk as uneven or identified it as the cause of the man’s fall. Instead, it is obvious that, when Henry saidthe words “right there,” he was simply indicating to Officer Gonzales that the earlier fall had happened in the same location as the later fall. Bellinghausen had just shown Offic er Gonzalez the expansion joint where the edge of one sidewalk slab was higher than the e dge of the adjacent slab, and the officer reasonably inferred that both men had tripp ed over the same protruding edge.3

Accordingly, Officer Gonzalez’s use of the “same pr otruding crack” language reflects Henry’s identification of the location where the fi rst fall had happened. Bellinghausen offers a different interpretation. I n his version, Henry saw the pedestrian trip on the protruding edge of a sidewal k slab from his post 150 to 200 feet away. Later, after Bellinghausen fell, the manner in which Henry told Officer Gonzalez that the pedestrian had fallen “right there” causedthe officer to understand that Henry
had identified the uneven sidewalk as the cause of the pedestrian’s fall from 150 feet away and prior to Bellinghausen’s fall. See Pl.’s Br. 19; id. at 23 (“Officer Gonzalez saw how the words were said and determined that Henry m eant the same protruding crack.”). Bellinghausen’s interpretation is not credible. Th e notion that Henry could perceive a protruding sidewalk edge from 150 feet a way is absurd—particularly in light of the fact that the protruding edge was not appare nt to Bellinghausen at close range. Because Bellinghausen’s interpretation rests upon the implausible inference that Henry has superhuman powers of perception, the evidence r aises no genuine fact dispute as to whether the University had actual knowledge of an u nreasonably dangerous condition. A. No Reasonable Juror Could Believe That the Sidewalk Appeared Dangerously Defective From 150 Feet Away. The sidewalk section at issue, as it existed at the time of Bellinghausen’s accident, is depicted in the photographs taken by Officer Gon zalez that are attached as Appendices A and B to this brief and were attached as Appendices B and D to the1. The color copies of the photographs used below (and attached as Appendices A and B)

display significantly better contrast than the blac k-and-white copies that appear in the reporter’s re cord. 4 University’s opening brief. App. A, B; see CR.91, 95. 1 Bellinghausen does not dispute that Henry was at least 150 feet away when he saw the pedestrian fall. Accordingly, assuming arguendo

that the uneven expansion joint shown in those pho tographs could be considered unreasonably dangerous, the issue is whe ther Henry plausibly could have identified the hazard from 150 feet away. See City of Corsicana v. Stewart , 249 S.W.3d 412, 413 (Tex. 2008) (per curiam) (to invoke legislative waiver of immunity, plaintiff must show actual knowledge of an unreasonably dangerous condition at the time of the accident); Brinson Ford, Inc. v. Alger , 228 S.W.3d 161, 163 (Tex. 2007) (per curiam) (“A condition is unreasonably dangerous if it presents an unreasonable risk of harm.”). A review of the photographs confirms that he could not have done so. See Apps. A, B. The small difference in the heights of the a djoining slab edges would be impossible to perceive from 150 feet, and no reason able juror could believe otherwise. In an effort to circumvent that problem, Bellinghau sen argues that no expert
witness testified that the uneven sidewalk could no t have been identified from 150 feet. Pl.’s Br. 17. But expert testimony is not needed (and properly should be excluded) regarding matters of common knowledge. See K-Mart Corp. v. Honeycutt , 24 S.W.3d 357, 360 (Tex. 2000) (per curiam) (expert testimony not required to determine whether it was reasonable for plaintiff to sit on rail of cart cor ral in grocery store); U.S. Fire Ins. Co. v.5

Lynd Co. , 399 S.W.3d 206, 217 (Tex. App.—San Antonio 2012, pet. denied) (op. on reh’g) (whether hail fell and caused damage in a pa rticular place did not require expert testimony because it was “a matter of personal obse rvation and common sense”); Dietz v. Hill Country Rests., Inc. , 398 S.W.3d 761, 765-66 (Tex. App.—San Antonio 201 1, no pet.) (expert testimony not needed to determine whe ther restaurant walkway presented an unreasonable risk of harm or premises owner had knowledge of the hazard). For that reason, no expert testimony was required to establi sh that Henry could not have identified the expansion joint as dangerously defec tive from at least 150 feet away. Bellinghausen also argues that Henry himself did no t testify that he could not see the expansion joint from his work site. Pl.’s Br. 17. That argument ignores Henry’s testimony that he saw the pedestrian fall but did n ot see him trip on a protruding sidewalk edge. CR.253 (27:5-13). Bellinghausen do es not explain the difference, from Henry’s perspective, between failing to see the uneven sidewalk and being unable to see it. Henry’s testimony that he saw the pedestrian fall b ut did not see him trip on an uneven sidewalk implicitly reflects that he could not perc eive any defect from where he stood. B. Henry’s Statement That the Unidentified Pedestria n Fell “Right There” Identified the Location of the Fall, Not Its Cause. Bellinghausen acknowledges that what Henry actually told Officer Gonzalez was that the unidentified pedestrian had fallen “right there.” See, e.g. , Pl.’s Br. 6. Those words are audible on the audio portion of the video recording taken from Officer6

Gonzalez’s police car. CR.276 (50:15-23). But the y are a statement of location, not causation. Henry did not tell the officer what hadcaused the pedestrian to trip because he did not see or know the cause. CR.253 (27:7-13) ; CR.290 (64:17-18). Instead, Officer Gonzalez reasonably inferred that both men tripped on the same uneven expansion joint based on Henry’s report that the pedestrian had fallen in the location of the uneven sidewalk where Bellinghausenhad just tripped. Bellinghausen acknowledges this point. See Pl.’s Br. 6 (“The police officer . . . identified that Bellinghausen fell on the same protruding crack as the prior fall.”); id. at 19 (noting that “Officer Gonzalez identified the same protruding cr ack”). But the issue here is not whether the pedestrian tripped on the same expansio n joint; it is whether Henry knew that this particular expansion joint as dangerously defective before he saw it up close in the wake of Bellinghausen’s fall. Henry’s report that the pedestrian had fallen “right there”—indicating the same section of sidewalk wher e Bellinghausen fell—is no evidence that Henry knew, before Bellinghausen fell , that the sidewalk was dangerous. Bellinghausen argues that the “evidence suggests th at Henry did see the crack.”
Pl.’s Br. 18. But the evidence he cites describes Henry’s observation of the expansion joint after Bellinghausen fell. See id. (“After Bellinghausen fell, Henry went over to see what was going on.”). Evidence that Henry perceive d the uneven condition of the expansion joint after the accident cannot be used to show the University’ s actual7

knowledge of a dangerous condition before the accident. See, e.g. , City of Corsicana , 249
S.W.3d at 415-16. C. Henry’s Knowledge That There Are Uneven Sections of Sidewalk on Campus Is Not Knowledge That an Unreasonably Danger ous Condition Existed Where Bellinghausen Fell. Bellinghausen argues that Henry’s knowledge that this particular expansion joint was dangerously defective can be inferred from his observation of the unidentified pedestrian’s fall, combined with his knowledge that sidewalk expansion joints tend to
become uneven over time due to tree roots and other factors. See Pl.’s Br. 16 (“Knowledge that there were uneven sidewalks all ac ross campus, that they could be made by tree roots, and that there was a tree nearb y makes seeing the initial fall and connecting it to the crack a more reasonable infere nce for Henry and a jury to make.”). As an initial matter, there is no evidence that Hen ry noticed the tree when he saw the inattentive pedestrian fall. Moreover, the Texas S upreme Court and this Court have repeatedly rejected similar attempts to establish a ctual knowledge of a dangerous condition by showing awareness of a tendency for pr oblems to develop. See Reyes v. City of Laredo , 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) (“Aw areness of a potential problem is not actual knowledge of an existing dang er.”); City of Dallas v. Thompson , 210 S.W.3d 601, 603 (Tex. 2006) (per curiam) (“[T]he fa ct that materials deteriorate over time and may become dangerous does not itself create a d angerous condition.”).8

Under Bellinghausen’s reasoning, city employees’ kn owledge that an expansionjoint coverplate tended to become loose over time, together with (1) reports of prior falls in the same area several years earlier and (2) evid ence that city employees “had been in the area of the coverplate and probably had walked over it” shortly before the accident, would allow an inference that the city knew that th e coverplate was a tripping hazard. See Thompson , 210 S.W.3d at 603. Similarly, city employees’ kn owledge that a low-water crossing tended to flood during heavy rains, combin ed with a 911 caller’s warning several
hours before the accident that the waters of a near by creek were rising and would sweep away cars if left unchecked, would permit an infere nce that the city knew that a dangerous condition existed at that low-water cross ing at the time of the accident. See Reyes, 335 S.W.3d at 608-09. But the Supreme Court reje cted those arguments. See id. ; Thompson , 210 S.W.3d at 603-04; see also City of Corsicana , 249 S.W.3d at 414-16 (city employees’ knowledge that a low-water crossing tend ed to flood during heavy rains, combined with evidence that it was raining hard on the night of the accident and a road upstream from the crossing was closed due to floodi ng, was insufficient to support an inference that the city knew an unreasonably danger ous condition existed when and where the accident occurred); City of Austin v. Leggett , 257 S.W.3d 456, 476 (Tex. App.—Austin 2008, pet. denied) (evidence that an ou tflow grate on a stormwater retention pond had previously clogged would not sup port inferences that the city actually9

knew, at the time of the accident, that the grate w as clogged or that a dangerous
condition existed at the intersection where the acc ident occurred). Bellinghausen attempts to distinguish these and sev eral other premises-defect cases on the ground that none of them involved an e mployee who witnessed “a prior fall in the same vicinity hours before the incident in question.” Pl.’s Br. 14. But that purported distinction wrongly assumes that it was p ossible for Henry to perceive, from at least 150 feet away, that the unidentified pedes trian’s fall was caused by a dangerously uneven expansion joint. Bellinghausen argues that Henry could draw “a reaso nable inference” that the pedestrian “tripped on the thing [Henry] saw all ar ound campus sidewalks.” Id. at 16. But it is not enough to say that Henry should have assumed that the pedestrian tripped on a sidewalk crack and, based on that assumption, deduced that the sidewalk was dangerously defective. Instead, Henry must have actually known that the sidewalk was dangerously defective. Bellinghausen likens this case to the situation dis cussed in City of San Antonio v. Rodriguez , 931 S.W.2d 535 (Tex. 1996) (per curiam). In that case, the Supreme Court suggested in dicta that a city’s knowledge of a wet gymnasium floor might properly be inferred if the evidence showed that the building m anager knew that there were leaks in the roof and that it was then raining, “[d]epending on the position of the leaks above the
floor and the amount of rain.” Id. at 537. Bellinghausen argues that “[w]hat we have is10

essentially a rainy day, with knowledge of leaks, a nd then seeing someone slip on the floor.” Pl.’s Br. 16. His argument is unpersuasiv e. This case is much closer to Thompson than it is to Rodriguez

. In the situation
discussed in Rodriguez

, knowledge of the dangerous condition (the wet flo or) could be inferred if it was raining hard enough and the roof leaks were located above the floor
because “the nature of the leaks and the amount of rain on the roof could make the presence of water on the floor a virtual certainty. ” Reyes, 335 S.W.3d at 609. By contrast, just because tree roots can create uneven sidewalks over time and a pedestrian has fallen near a tree does not make the existence of a danger ous sidewalk “a virtual certainty.” Id. The pedestrian may have tripped on an uneven expans ion joint, or he may have fallen
for numerous other reasons unrelated to the conditi on of the sidewalk. See Def.’s Br. at 22-25. The latter inference is even more likely, i f, as in this case, the pedestrian was not paying attention. “A fact-finder may not infer an ultimate fact from meager circumstantial evidence that could give rise to any number of inferences, none more probable than another.” Tex. Dep’t of Pub. Safety v. Alexander , 300 S.W.3d 62, 74 (Tex. App.—Austin 2009, pet. denied) (citing Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). In essence, Bellinghausen is arguing that Henry sho uld have surmised, from seeing an inattentive pedestrian trip in the vicinity of atree, that a hazardous condition existed on the sidewalk. But evidence that a premises owne r should have known of a dangerous11

condition is not evidence of actual knowledge. See, e.g. , Univ. of Tex. at Austin v. Hayes, 327 S.W.3d 113, 117 (Tex. 2010) (per curiam); State v. Tennison , 509 S.W.2d 560, 562 (Tex. 1974) (“Actual knowledge rather than constructive knowledge of the dangerous condition is required.”). Bellinghausen failed to create a fact issue as to whether the University had actual knowledge of an unreasonably dangerous condition.
II. H ENRY D ID N OT “C HANGE H IS S TORY ” B EFORE H IS D EPOSITION . Bellinghausen argues that a fact question arises fr om what he describes as differences between Henry’s oral statement to Offic er Gonzalez on the day of the accident and Henry’s later deposition testimony. See Pl.’s Br. at 11-13. Bellinghausen deems it suspicious that Henry’s deposition testimo ny is “more detailed and nuanced”
than his statement to Officer Gonzalez. Id . at 12. But it would be strange if testimony given under oath during a deposition lasting severa l hours were not more detailed than an informal statement given during an interview las ting, at most, a few minutes. Further, a review of the purported differences reveals Belli nghausen’s argument as meritless. A. Henry’s Identification of the Location Where the Unidentified Pedestrian Fell Does Not Create a Material Fact Dis pute. First, Bellinghausen argues that Henry told Officer Gonzalez that the unidentified pedestrian fell “right there,” whereas at his depos ition, he testified that Bellinghausen and the unidentified pedestrian fell in the same vi cinity. See id. But the discrepancy is nonexistent. It is undisputed that Henry told Offi cer Gonzalez that the pedestrian fell12

“right there.” E.g., Pl.’s Br. at 4. At his deposition, Henry listen ed to the audio of the police video and agreed that he used those words. CR.293 (67:1-16). Henry’s deposition testimony thus confirms, rather than contradicts, his initial statement. Bellinghausen makes too much of Henry’s clarificati on regarding what he saw. At his deposition, Henry explained that he saw the unidentified pedestrian fall in the vicinity of where Bellinghausen later fell, i.e. , within five feet in either direction. CR.255 (29:12-15). Bellinghausen argues that Henry must h ave designated a more specific location when he told Officer Gonzalez that the ped estrian fell “right there” because
“Officer Gonzalez saw how the words were said and d etermined that Henry meant the same protruding crack.” Pl.’s Br. 23. In Bellingh ausen’s view, this reveals that Henry changed how specifically he identified the fall loc ation between the day of the incident and the day of his deposition, thereby creating a f act issue as to his credibility. Id. But the evidence reveals a simpler explanation. Al though Henry initially was able to identify only the approximate location of the unidentified pedestrian’s fall from his post at least 150 feet away, he and Officer Gonzale z were at the accident scene when Henry explained that the earlier fall had occurred “right there.” Up close, it was apparent to both men that the same uneven expansionjoint had likely caused both falls. Indeed, Bellinghausen acknowledges that “Officer Go nzalez identified the same protruding crack.” Id. at 19. Associating the morning fall with a partic ular expansion2. Bellinghausen’s argument that Henry “told the o fficer the first fall occurred on the same

protruding crack,” Pl.’s Br. 17, ignores Henry’s su bsequent testimony that he identified “the area, no t that exact spot.” CR.289 (63:19-20). In any event , Henry’s exact words (“right there”) are undispute d. Bellinghausen recognizes that Officer Gonzalez’s wr itten statement about the “same protruding crack” was an inference based on Henry’s statement, not a verbatim quotation of Henry’s words. Pl.’s Br. 19 (“Based on this information he reasoned that Henry saw someone fall on the same protruding crack.” (emphasis added)). 3. Henry’s ability to identify the approximate are a where the pedestrian fell, but not the cause of his fall, is fully consistent with Henry’s locat ion and perspective. As Bellinghausen’s attorney established at Henry’s deposition, the corner the p edestrian was approaching when he fell was the poin t on the sidewalk closest to Henry’s location across the street to the south. CR.296-99 (70:11-73:2); see App. A. Seeing the pedestrian approach from an ang le gave Henry a better perspective from which to identify location than if the pedestrian had been w alking directly toward him. CR.299 (73:3-20). 13 joint provided a more precise location for that fall than what Henry’s initial observation (from at least 150 feet) had allowed. Bellinghausen’s other attempts to create a fact que stion by casting doubt on Henry’s deposition testimony likewise fail. For ex ample, he deems it suspicious that “Henry never says [at his deposition] that the firs t fall did not happen on the same crack, only that he cannot guarantee the first victim trip ped on the same crack.” Id. at 12. 2 But Henry’s inability to identify exactly where the uni dentified pedestrian fell is consistent with the fact that Henry was at least 150 feet away when he witnessed the fall. And Bellinghausen concedes throughout his brief that He nry merely “saw someone fall in the same area,” id. at 10, or “in the same vicinity of Mr. Bellinghaus en,” id. at 16; see also id. at 15 (discussing “Henry’s knowledge that someone f ell in the general vicinity of the area where Bellinghausen fell”). Bellinghausen’s attemp t to manufacture a fact dispute from this chain of events is unavailing. 314

B. Henry Consistently Described the Pedestrian as In attentive. Henry testified at his deposition that the unidenti fied pedestrian appeared to be looking at his cell phone when he fell. CR.251 (26 :20-22); CR.290 (64:23-24). Bellinghausen complains that Henry did not mention the pedestrian’s inattentive state
to Officer Gonzalez. Pl.’s Br. at 20. But his com plaint ignores Henry’s comment, which is audible on the police videorecording, about pede strians tripping because “they’re not looking where they’re going.” CR.276-77 (50:24-51: 11). Significantly, in reviewing that recording with Henry at his deposition, Bellinghaus en’s attorney clarified that Henry’s comment referred to the unidentified pedestrian, no t Bellinghausen: Q: [W]hat we heard on there was something about they ’re not looking where they’re going.
A: Correct. Q: And you told us that for the first guy, that he m ay have been looking down at his phone. Right? A: Yes, sir. Q: You’re not making the same suggestion about Mr. B ellinghausen being inattentive, because you didn’t see him befor e he fell. Right?
A: That is correct. CR.277 (51:8-18). Thus, contrary to Bellinghausen’ s argument, Henry identified the pedestrian as inattentive both in his initial state ment at the scene and at his deposition. Nothing supports Bellinghausen’s naked assertion th at “[a]ll evidence indicates that15

Henry and UT-Austin knew after the first fall that an attentive, phoneless pedestrian tripped on the same dangerous crack hours before Be llinghausen.” Pl.’s Br. 8. Bellinghausen also complains about the absence of a ny mention of the pedestrian’s phone in the police report, arguing th at the phone is “a suspicious and important detail to forget.” Id. at 20. But Henry marked the pedestrian as inatten tive,
which is the detail that is relevant to whether Hen ry had actual knowledge of a dangerous condition. And there was no reason for H enry to think, “while watching a man bleeding on the sidewalk,” id. at 12, that whether an unidentified pedestrian had been carrying a cell phone several hours earlier wa s an important detail. If the phone’s absence from the police report were truly suspicious, as Bellinghausen now insists, then presumably his atto rney would have asked Henry about it at his deposition or deposed Officer Gonzalez. But he did neither. Likewise, although Henry testified that another crew member ( Mark McEnelly) also saw the inattentive pedestrian fall, CR.279-80 (53:19-54:15 ), Bellinghausen did not depose McEnelly. Bellinghausen’s newfound suspicion is tr ansparently manufactured. C. There Is No Material Fact Dispute as to Why Henry Interrupted His Work After Bellinghausen’s Fall. Bellinghausen posits: “the fact finder must ask her self: Why did Mr. Henry leave the scene of his work to talk to the investigating police officer at the scene of the Bellinghausen fall? . . . The sole reason Mr. Hen ry left his post and talked to the police16

officer . . . was to inform the investigating offic er that this was the second fall of the day ‘right there’ on the ‘same protruding crack.’” Pl.’ s Br. 7-8. But Bellinghausen later identifies the real reason: “After Bellinghausen fe ll, Henry went over to see what was going on.” Id. at 18. Bellinghausen’s suggestion that Henry left his work to talk to Officer Gonzalez is further undercut by the fact th at it is unclear whether the officer was on the scene when Henry arrived—as Bellinghausen ob liquely acknowledges. See id. (noting that Henry and Officer Gonzalez arrived “at or near the same time”) (emphasis added); see also

CR.249 (23:14-16) (Henry’s testimony that he couldnot recall whether police officers were on the scene of Bellinghausen’ s fall when he arrived). There is no doubt that Henry left his work to check on Bellinghausen, or that Henry told Officer Gonzalez about the prior fall inorder to share his deduction that both men had fallen in the same place. But neither those facts nor any other evidence suggests that Henry perceived a dangerously defecti ve expansion joint from at least 150 feet away. Because there is no evidence that the U niversity had actual knowledge of an unreasonably dangerous condition, the trial court e rred in denying the plea to the jurisdiction.17 P RAYER The Court should vacate the order denying the Unive rsity’s jurisdictional plea and dismiss Bellinghausen’s claims for lack of jurisdic tion.

Respectfully submitted.
KEN P AXTON Attorney General of Texas
C HARLES E. R OY First Assistant Attorney General
S COTT A. KELLER Solicitor General
/s/ Joseph D. Hughes J OSEPH D. H UGHES Assistant Solicitor General State Bar No. 24007410
MATTHEW J ASON W

ARNER Assistant Attorney General
O FFICE OF THE ATTORNEY G ENERAL P.O. Box 12548 (MC 059) Austin, Texas 78711-2548 Tel.: (512) 936-1729 Fax: (512) 474-2697 jody.hughes@texasattorneygeneral.gov
C OUNSEL FOR A PPELLANT , T HE U NIVERSITY OF T EXAS AT A USTIN18 C ERTIFICATE OF S ERVICE I certify that on March 19, 2015, an electronic cop y of this document was served on the following counsel of record via File&ServeXp ress: Robert Ranco T HE C ARLSON L

AW F IRM , P.C. 11606 N. IH-35 Austin, Texas 78753 rranco@carlsonattorneys.com
C OUNSEL FOR P LAINTIFF /A PPELLEE W ILLIAM A. B ELLINGHAUSEN , J R
.

/s/Joseph D. Hughes Joseph D. Hughes

C ERTIFICATE OF C OMPLIANCE In compliance with Texas Rule of Appellate Procedur e 9.4(i)(2), this brief contains 4,026 words, excluding the portions exempted by Rul e 9.4(i)(1). In making this certification I am relying on the word-count featur e of the Word Perfect software used to prepare this brief. /s/ Joseph D. Hughes Joseph D. Hughes

# AppendixAPPENDIX T ABLE OF C ONTENTS TAB

Photograph showing Skilled Social Work building in background, looking southwest across East 20th Street (CR.91) . . . . . . . . . . . . . . . . . . . . . . . . . . A Photograph showing close-up of uneven sidewalk (CR. 95) . . . . . . . . . . . . . . . . . . . . B

# Tab A

# Tab B