CAUSE NO. 03-14-00326-CV

IN THE COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT

AUSTIN, TEXAS

BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM

AND TEXAS STATE UNIVERSITY,

 Appellants,

v.

STEPHANIE PAIGE STEINBACH, 

 Appellee. 

On Appeal From the 428th Judicial District Court of Hays County, Texas

Trial Court Cause No. 10-0281

The Honorable R. Bruce Boyer, Judge Presiding

APPELLANTS' REPLY BRIEF

KEN PAXTON NICHELLE A. COBB

Attorney General of Texas Assistant Attorney General

 State Bar Number 00786301

CHARLES E. ROY Tort Litigation Division, MC-030

First Assistant Attorney General P.O. Box 12548, Capitol Station

 Austin, Texas 78711-2548

JAMES E. DAVIS (512) 463-2197 - Telephone

Deputy Attorney General (512) 463-2224 - Facsimile

for Defense Litigation 

KARA L. KENNEDY

Chief, Tort Litigation Division

ORAL ARGUMENT REQUESTED

ACCEPTED

03-14-00326-CV

4076854

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/9/2015 3:16:32 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/9/2015 3:16:32 PM JEFFREY D. KYLE Clerk
TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................... iii

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE

(APPELLEE’S BRIEF, PAGE 15-30) ............................................................2

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER TWO

(APPELLEE’S BRIEF, P. 31-35) ...................................................................7

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE

(APPELLEE’S BRIEF, P. 36-39) ...................................................................9

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR

(APPELLEE’S BRIEF, P. 36-39) .................................................................11

CONCLUSION........................................................................................................13

PRAYER..................................................................................................................13

CERTIFICATE OF COMPLIANCE.......................................................................15

CERTIFICATE OF SERVICE ................................................................................15

ii
INDEX OF AUTHORITIES

CASES 

Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006).....................2, 5, 6

City of Dallas v. Thompson, 210 S.W.3d 601 (Tex. 2006) (per curiam) ..................4

City of Orange v. Jackson,

927 S.W.2d 784 (Tex.App.—Beaumont 1996, no writ) ...............................11

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97 (Tex. 2000).....................................5, 6

Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp., 

962 S.W.2d 193 (Tex. App. Houston [1st Dist.] 1998, pet. denied)............6, 7

Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996) ................................. 8

Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992) ................................................8

Leleaux v. Hamshire-Fannet ISD, 835 S.W.2d 49 (Tex. 1992) ...................... 8

Stephen F. Austin University v. Flynn, 228 S.W.3d 653 (Tex. 2007).....................10

Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 

781 S.W.2d 427(Tex.App.—Fort Worth, 1989.) ....................................10, 11

Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).... 8

Wal-Mart Stores, Inc. v. Diaz, 109 S.W. 3d 584 (Tex.App.—Fort Worth 2003) .....6

Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934 (Tex.1998)..............................5

Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812 (Tex. 2002)....................................5

iii
RULES

Texas Rules of Appellate Procedure, Rule 38.3 ........................................... 1

STATUES

Texas Civil Practice & Remedies Code §101.021...................................................11

Texas Civil Practice & Remedies Code §101.021(2) .................................... 8, 9

Texas Civil Practice & Remedies Code §101.056 ..................................................10

Texas Civil Practice & Remedies Code §101.061.............................................11, 12

iv
CAUSE NO. 03-14-00326-CV

IN THE COURT OF APPEALS

FOR THE THIRD JUDICIAL DISTRICT

AUSTIN, TEXAS

BOARD OF REGENTS, TEXAS STATE UNIVERSITY SYSTEM

AND TEXAS STATE UNIVERSITY,

Appellants,

v.

STEPHANIE PAIGE STEINBACH,

Appellee.

On Appeal From the 428th Judicial District Court of Hays County, Texas

Trial Court Cause No. 10-0281

The Honorable R. Bruce Boyer, Judge Presiding

APPELLANTS' REPLY BRIEF

TO THE HONORABLE COURT OF APPEALS: 

COMES NOW the Appellants, Board of Regents, Texas State 

University System and Texas State University, pursuant to Rule 38.3, Texas 

Rules of Appellate Procedure and submits this Brief in Reply to the 

Appellee’s Brief. Appellee, Stephanie Paige Steinbach, has failed to allege 

facts sufficient to establish that her claim for damages falls within the 

waiver of Appellants’ immunity under the Tort Claims Act. The Court 

should reverse the trial court’s judgment denying Appellants’ plea to the 
jurisdiction, motion for summary judgment and no evidence motion for 

summary judgment and dismiss the case for lack of subject-matter 

jurisdiction.

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER ONE

(APPELLEE’S BRIEF, P. 15-30)

A. Steinbach Has Not Offered Evidence That the Stairs Were an 

Unreasonably Dangerous Condition.

Steinbach produced no evidence that on the day in question, Appellants had 

actual or constructive knowledge that a condition existed on its premises that 

created an unreasonable risk of harm. In the instant case, Steinbach has alleged 

both the rubberized material on the staircase and the spilled liquid substance

constituted an unreasonably dangerous condition. Steinbach has impermissibly 

attempted to merge these allegations into one premises liability claim, when the 

evidence shows that the only unreasonably dangerous condition in this case was 

the spilled liquid substance on the staircase, not the staircase itself. Brookshire 

Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex. 2006). 

In Brookshire Grocery Co, Plaintiff Mary Francis Taylor sued Brookshire 

Grocery Co. for injuries she suffered to her knee when she slipped and fell on a 

piece of partially melted ice on a tile floor in front of a self-service soft drink 

dispenser in the grocery store. Id at. 407. Taylor argued that both the dispenser 

and the particular piece of ice on which she slipped was an unreasonably 

2
dangerous condition, and that Brookshire was well aware of the risks the dispenser 

posed to customers. Id at 408. Brookshire argued the ice on which Taylor slipped 

was the only unreasonably dangerous condition and that they did not have actual 

knowledge of the ice on which Taylor slipped. Id at 409. They further argued 

there was no evidence that the condition had existed long enough, the ice not 

having fully melted, for them to have constructive notice. Id at 409. The Texas 

Supreme Court agreed. The judgment of the court of appeals was reversed and 

judgment was rendered in favor of Brookshire. Id at 409. 

As stated, the only unreasonably dangerous condition in this case was the 

spilled liquid substance on the staircase. Steinbach produced no evidence 

Appellants had actual knowledge of the spilled liquid substance on the staircase 

prior to her fall and Steinbach produced no evidence the spilled liquid was on the 

staircase long enough for the Appellants to discover. 

B. No Evidence Appellants Had Actual Knowledge of the Alleged 

Condition.

 

Belinda Frazier, the custodian assigned to the staircase where Steinbach fell, 

testified she had no knowledge of the clear liquid substance on the stairs before

Steinbach’s accident. [CR 342]. She further testified she was not notified by a 

Resident Advisor or any students of any spills on the stairs that day. [CR 342]. 

Even if the custodians had noticed, the Texas Supreme Court has expressly 

stated that the possibility of an employee’s awareness of a problem on the premises

3
does not itself constitute actual knowledge. City of Dallas v. Thompson, 210 

S.W.3d 601, 602 (Tex. 2006) (per curiam). In City of Dallas v. Thompson, a 

plaintiff was injured when she tripped on a coverplate that had become loose and 

protruded slightly from an airport floor. The Texas Supreme Court held that 

without evidence showing how long the alleged protrusion had existed, the 

proximity of the employees is no evidence of actual knowledge. Id at 603-04. The 

Texas Supreme Court also held that evidence of past accidents more than three 

years prior and evidence of a subsequent repair did not constitute actual 

knowledge. Id at 604. Steinbach has failed to show that Appellants had actual 

knowledge of the spilled liquid substance on the staircase in Sterry Hall prior to 

her fall. Steinbach has not met her burden of proof on this critical jurisdictional 

element.

C. No Evidence Appellants Had Constructive Knowledge of the 

Alleged Condition.

 

Steinbach concedes she does not have a “smoking gun” proving Appellants’ 

actual knowledge of an unreasonably dangerous condition and that the Court’s 

focus should be on Appellants’ constructive knowledge of the dangerous condition 

instead. (Appellee’s Brief Pages 8-9). Steinbach’s evidence, however, has also 

failed to show Appellants had constructive notice of the spilled liquid substance on 

the staircase leading to the laundry room in Sterry Hall prior to her fall. 

4
For a property owner to have constructive notice of a premises defect, the 

defect must have existed long enough for the owner or occupier to have discovered 

it upon reasonable inspection. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 

814 (Tex. 2002); Wal-Mart Stores, Inc. v. Gonzalez, 968 S.W.2d 934, 936 

(Tex.1998). To impose constructive knowledge when the owner or occupier did 

not have actual knowledge and would not have discovered the dangerous condition 

from a reasonable inspection is to dramatically alter premises law. CMH Homes,

Inc. v. Daenen, 15 S.W.3d 97, 102-03 (Tex. 2000); see also Brookshire Grocery, 

222 S.W.3d at 409.

Steinbach offered no evidence as to when the liquid was spilled on the 

staircase. Nothing in the record indicates that Appellants should have been aware 

that there was liquid spilled on the staircase leading to the laundry room at Sterry 

Hall prior to Steinbach’s fall. Nothing in the record indicates that the custodians 

who cleaned the area knew of the problem and failed to report it. Nothing in the 

record indicates the Resident Advisor or any student informed the University of 

any spills on the stairs on that day. [CR 342]. Likewise, there is no evidence that 

Appellants’ employee spilled the clear liquid substance. [CR 314]. As such 

Steinbach has not produced evidence demonstrating Appellants had constructive 

knowledge of the spilled substance on the staircase prior to Steinbach’s fall. 

5
D. Steinbach Has Not Alleged Evidence That Appellants Failed to 

Exercise Ordinary Care or That Appellants’ Failure Proximately 

Caused the Accident.

When a condition is not unreasonably dangerous and the proprietor did not 

have actual or constructive notice of the defect, the proprietor by definition cannot 

have failed to exercise ordinary care to warn against the defect, nor can that failure 

have proximately caused the accident. The Texas Supreme Court has held that a 

property owner must be on either actual or constructive notice of a defect before he 

can be liable for failing to exercise ordinary care. See Wal-Mart Stores, Inc. v. 

Diaz, 109 S.W. 3d 584 (Tex. App.—Fort Worth 2003); see also Brookshire 

Grocery, 222 S.W.3d at 408-09; CMH Homes, 15 S.W.3d at 102. Because 

Steinbach has not established facts sufficient to prove Appellants had actual or 

constructive notice of the defect, she also cannot demonstrate that the Appellants 

failed to exercise ordinary care or that such failure caused her accident.

E. Conclusion 

Steinbach has not met her burden to allege facts establishing Appellants 

knew or reasonably should have known of the spilled liquid substance on the 

staircase leading to the laundry room at Sterry Hall at the time of her fall, she also 

cannot establish Appellants failed to exercise ordinary care or that Appellants’ 

failure proximately caused her injuries for the reasons articulated. As set forth in 

Esco Oil & Gas, Inc. v. Sooner Pipe & Sup. Corp., 962 S.W.2d 193, 197 (Tex. 

6
App. Houston [1st Dist.] 1998, pet. denied), the plaintiff as the non-movant has the 

burden to raise a triable issue on each element essential to the plaintiff’s case. 

There being no evidence on a number of essential elements, even under the invitee 

standard, Steinbach cannot assert a claim within the waiver of the Appellants’ 

immunity.

Issue Number One should be sustained and judgment rendered in favor of

the Appellants. 

REPLY TO APPELLEE’S AGRUMENT ISSUE NUMBER TWO

(APPELLEE’S BRIEF, P. 31-35)

Steinbach contends she has plead sufficient facts to show her claims fall

within the Act’s waiver of immunity because her claims are based on 

negligence involving use or misuse of tangible personal property. Steinbach

alleges the rubberized material attached to the stairs and flooring leading to the 

laundry room presented a negligent condition and use of tangible property that 

proximately caused her injuries and damages. Steinbach asserts Appellants,

therefore, have waived their immunity from her suit under both a premises 

liability and a general negligence theory of liability. 

Under the Texas Tort Claims Act, Steinbach is barred from asserting

and submitting both premises defect and general negligence theories of

liability based on her allegation that she was injured after falling on a clear 

7
liquid substance on the stairs leading to the laundry room in Sterry Hall.

(CR. Pages 313-314). Once a claim has been determined to involve a premise

defect, Steinbach is confined to pleading and proving a premises defect

theory of liability. Texas Dept. of Parks & Wildlife v. Miranda, 133 S.W .3d

217 (Tex. 2004). As Steinbach’s claim is arguably a premise defect claim,

Steinbach is limited to this cause of action and cannot claim or recover for

alleged use of tangible personal property pursuant to Section 101.021(2) of the 

Texas Tort Claims Act. 

In addition, even if the Court considered Steinbach’s general

negligence allegations as claims independent of a premises cause of action,

these allegations still would not waive the University’s immunity because the

allegations do not involve any negligent “use” of tangible personal property

by Appellants’ employees that allegedly caused Steinbach’s injuries. See

Harris County v. Dillard, 883 S.W.2d 166 (Tex. 1996); Leleaux v. HamshireFannet ISD, 835 S.W.2d 49 (Tex. 1992). As the Texas Supreme Court held in 

Keetch v. Kroger Co., 845 S.W. 2d 262 (Tex. 1992), a negligent use theory of 

recovery requires that the plaintiff be harmed by or as a contemporaneous result of 

the activity itself. Id at 264. Although Steinbach alleges she was injured by 

Appellants’ previous act of putting rubber mats on the staircase, Steinbach was not 

8
injured by any contemporaneous activity by Appellants. 

As such, Steinbach has impermissibly attempted to re-cast her claim as

a negligent use or condition of tangible personal property. Because Steinbach’s

claim is arguably a premise defect claim, Steinbach is limited to this cause of 

action and cannot claim or recover for alleged use of tangible personal property 

pursuant to Section 101.021(2) of the Tort Claims Act. The trial court erred in 

denying Appellants’ Plea to the Jurisdiction, Motion to Dismiss and No-Evidence 

Motion for Summary Judgment on Steinbach’s general negligence allegations.

Issue Number Two should be sustained and judgment rendered in favor of

the Appellants. 

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER THREE

(APPELLEE’S BRIEF, P. 36-39)

On page 11 of Steinbach’s brief, Steinbach concedes that the placement of 

the hand rails on the left side of the stairwell and the use of rubberized material 

leading to the laundry room are discretionary decisions, and therefore, not a waiver 

of sovereign immunity under the Texas Tort Claims Act. Steinbach alleges a claim 

for the Appellants’ negligent implementation of a policy carried out by the 

Appellants. 

To state a negligent implementation claim; however, Steinbach had to 

identify a particular policy adopted by Appellants and state facts which raise a 

claim that the policy was negligently carried out at the operational level. See 

9
Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781 S.W.2d 427, 

433 (Tex. App.—Fort Worth, 1989). Steinbach has failed to do so. Steinbach 

failed to identify any specific policy of the Appellants which was negligently 

implemented by Appellants or plead any facts which would demonstrate the 

violation of such policy. In short, Steinbach never raised a claim of negligent 

implementation of policy in her petitions. 

The essence of Steinbach's allegation is the spilled liquid substance on the 

staircase. Steinbach's attempt to separate Appellants’ design decisions regarding 

the handrails and the choice of materials used on the stairs from her complained of 

issue - the spilled liquid substance - makes no sense in light of the policy rationale 

behind §101.056 to preclude courts from second-guessing the State's decisionmaking process. Stephen F. Austin University v. Flynn, 228 S.W.3d 653, 657

(Tex. 2007). To say that the State is immune from suit for complaints regarding 

the design of the stairs, but not for the condition that the design created, would 

render §101.056 meaningless.

As Steinbach's allegations are merely complaints about an alleged 

unreasonably dangerous condition caused by the clear liquid substance spilled on 

the stairs in Sterry Hall, these allegations do not present a negligent 

implementation theory of liability for which Appellants’ immunity would be 

waived. Any claims by Steinbach implicating the staircase structure, design, 

10
handrails or defective materials are barred by sovereign immunity. Moreover, 

even if such a claim had been made, the assertion of a negligent implementation 

theory of liability arises only after Steinbach has properly asserted a waiver of 

immunity under Texas Civil Practice & Remedies Code §101.021, which she has 

not. City of Orange v. Jackson, 927 S.W.2d 784, 786 (Tex. App.—Beaumont 

1996, no writ).

Issue Number Three should be sustained and judgment rendered in favor of 

Appellants. 

REPLY TO APPELLEE’S ARGUMENT ISSUE NUMBER FOUR

(APPELLEE’S BRIEF, P. 40)

There is no waiver of immunity based on premises constructed before 1970. 

It is undisputed that the stairs in Sterry Hall of which Steinbach complains was 

constructed prior to 1970 and have remained in substantially the same condition 

since its completion. [CR 302]. Under §101.061 of the TTCA, there is no waiver 

of immunity for premises defect claims related to structures built prior to 1970. 

Regardless of Steinbach’s contentions of negligence concerning a premises defect, 

Appellants maintains their entitlement to sovereign immunity to a claim based on 

an act or omission that occurred before January 1, 1970. Tex. Civ. Practice and 

Remedies Code Ann. §101.061. 

In Tarrant County Water Control and Imp. Dist. No. 1 v. Crossland, 781 

S.W.2d 427 (Tex. App.—Fort Worth, 1989.), boaters were killed when they struck 

11
their heads on the underside of a bridge. A wrongful death action was brought 

against several governmental defendants. In reversing a judgment in favor of the 

Plaintiffs, the Court noted that the reservoir and bridge in question had been 

completed by 1967 and had not been modified. Plaintiffs complained that the 

deaths resulted from the failure to place warning lights on the low bridge. 

Unconvinced by such argument, the Court held that the state cannot be held liable 

under §101.061 of the TTCA based on the State’s failure to include lights, signs, 

and safety features in the original pre-1970 design. The Appellees in Crossland, 

like Steinbach, were asking this court to hold §101.061 does not apply to the 

omission of safety devices because the State could have warned of the danger after 

1970. Id at 433. The Fort Worth Court of Appeals held the plain language of 

§101.061 does not admit this interpretation. Id at 433. In the instant case, 

Steinbach’s failure to offer any evidence of any act or omission of Appellants or 

the Appellants’ agents subsequent to 1970, unrelated to the original design of the 

stairs in Sterry Hall, failed to penetrate Appellants’ veil of immunity outlined in 

§101.061 of the TTCA. 

As Appellants have conclusively established this affirmative defense, as a 

matter of law, Issue Number Four should be sustained and judgment rendered in 

favor of Appellants.

12
CONCLUSION

Appellants’ sovereign immunity under the Texas Tort Claims Act has not 

been waived. The evidence in this case conclusively negates Steinbach’s 

allegations that Appellants breached the duty of care under the Act with regard to 

the spilled liquid substance on the staircase leading to the laundry room in Sterry 

Hall which allegedly injured Steinbach. Steinbach presented no evidence that,

at the time of her accident, Appellants had actual knowledge of the presence

of the spilled liquid on the staircase leading to the laundry room in Sterry 

Hall prior to her fall. Even if Steinbach was entitled to the heightened status of 

an invitee at the time of her accident, Steinbach presented no evidence that the 

Appellant should have been aware of the spilled liquid on the stairs leading to the 

laundry room on the day of Steinbach’s fall. There is no applicable waiver of 

Appellants’ sovereign immunity under the Act. This Court should reverse 

the trial court’s order denying Appellants’ Third and Fourth Supplemental 

Plea to the Jurisdiction, Motion for Summary Judgment and No-Evidence 

Motion for Summary Judgment and dismiss Steinbach’s lawsuit for lack of 

subject-matter jurisdiction. 

PRAYER

WHEREFORE, PREMISES CONSIDERED the Appellants pray that 

this Honorable Court reverse the order of the trial court denying the 

13
Appellants’ Third and Fourth Supplemental Plea to the Jurisdiction, Motion 

for Summary Judgment and No-Evidence Motion for Summary Judgment; 

and, render judgment dismissing this cause of action with prejudice. 

Further, Appellants pray that all costs, in the trial court and Court of 

Appeals, be taxed against the Appellee. The Appellants further pray for all 

other relief, legal and equitable, to which they may be justly entitled.

Respectfully submitted,

KEN PAXTON

Attorney General of Texas

CHARLES E. ROY

First Assistant Attorney General

JAMES E. DAVIS

Deputy Attorney General for Civil 

Litigation

KARA L. KENNEDY

Chief, Tort Litigation Division

__________________________________

NICHELLE A. COBB

Assistant Attorney General

State Bar #00786301

Tort Litigation Division, MC-030

P.O. Box 12548, Capitol Station

Austin, Texas 78711-2548

(512) 463.2197

FAX: (512) 463.2224

14
CERTIFICATE OF COMPLIANCE

Relying on the word count function in the word processing software used to 

produce this document, I certify that the number of words in this Appellants' Reply 

Brief (excluding any captions, identify of the parties and counsel, statement 

regarding oral argument, table of contents, index of authorities, statement of the 

case, statement of issues presented, statement of jurisdiction, statement of 

procedural history, signature block, proof of service, certification, certificate of 

compliance, and appendix) is 2,847. 

____________________________________

NICHELLE A. COBB 

Assistant Attorney General 

CERTIFICATE OF SERVICE

I certify that on this, the 9th day of February, 2015 at approximately 3:00 

P.M. I served a copy of the Appellants’ Reply Brief on the party listed below by 

electronic service concurrently with the electronic filing of the document. The 

electronic transmission of the document was reported as complete. My e-mail 

address is Nichelle.Cobb@texasattorneygeneral.gov and my fax number is (512)

457-4442:

Mr. Mark Cusack Via Electronic Service 

Attorney at Law

242 North Guadalupe Street 

San Marcos, Texas 78666 

cusacklaw@centurytel.net

____________________________________

NICHELLE A. COBB 

Assistant Attorney General 

15