Reversed and Rendered and Memorandum Opinion filed May 12 , 2022

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 21

- 00156

- CV

THE UNIVERSITY OF HO USTON

- DOWNTOWN , Appellant

V.
JOSE BRIONES , Appellee

On Appeal from the 125th District C ourt

Harris County, T exas Trial Court Cause No. 2019

- 41411

MEMORANDUM OPINION
In a single issue, appellant the University of Houston

- Downtown (UHD), a governmental entity, asserts that the trial court erred in denying its plea to the jurisdiction on the ba si s appellee Jose B rion es did not establish that UHD had actual or constructive knowledge of an alleged premises defect and therefore did
not establish the subject

- matter jurisdiction of the trial court. The issue in contention between the parties was whet her UHD could be ch arge d with constructive knowledge of spilled water on the floor of an academic building2

because no employee of UHD ’ s facilities department was working in the building on the day in question. We r everse the order of the trial court a nd render judgment
dismi ssin g Brione s ’ s suit for want of subject

- matter jurisdiction.

I. B ACKGROUND In September 2017, Briones was a student at UHD . One Saturday, he was
walki ng across the fourth floor with his laptop in f ront of him when he slipped on

water on the floor. Briones th en g ot up and walked to another area of the building to report his fall and the water on the floor. Briones neither saw the water before
his fall , nor does the record reflect t here are any witnesses that could testify about
the wate r

. An incident report pr epared by the UHD Police De partment , which documented Briones’s fall and complaint
, stated that “ [c]leaning services was cleaning spill area before paramedics left.”

Briones su ed UHD in 2019 asserting a premises

- defect claim under t he
Texas Tort C laims Act (TTCA)

. See Tex. Civ. Prac . & Rem. Code Ann. §§ 101.021(2), .022(a). UHD answered and filed a plea to the jurisdiction supported by jurisdictional evidence. After a hearing on UHD’s plea to the jurisdiction, the trial court denied the plea

. UHD n ow appeal s this interlocutory
order of the t rial court See Tex. Civ. Prac. & Rem. Code Ann. § 51 .014 (8) ( permitting appeal from interlocutory order granting or denying plea to jurisdiction ).

II. A NALYSIS

A. S tandard of r eview

We revi ew a plea questioning the tr ial court ’ s subject

- matter jurisdiction de

novo. See Texas Dep ’ t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). We focus first on the plaintiff ’ s petition to determine whether the facts that3

were ple a d ed affirmat i vely demonstrate that subjec t

- matter jurisdiction exists. Id. We construe the pleadings libe rally in favor of the plaintiff. Id. If a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may
consider evidence and must do so when necessary to reso lve the jurisdictional
issues raised. Id. at 227 (citing Bland I ndep. Sch. Dist. v. Blue, 34 S.W .3d 547, 555 (Tex. 2000)).
When evidence is submitted that implicates the merits of the case, as is the case here, our standard of r eview generally mirrors the summary

- judgment
standard under Texas Rule of Civil Procedure 1 66a(c). Miranda, 133 S.W.3d

. at
2 28; see also Tex. R. Civ. P. 166a(c). The burden is on the governmental unit to present evidence to support its plea. Miranda, 133 S .W.3d at 228. If the

governm ental un it meets this burden, the burden shifts to the plaintiff to show that a disputed materia l fact issue exists regarding jurisdiction. Id. We take as true all evidence that is favorable to the plaintiff and indulge every r e asonable inference
and resol ve any d oubts in the plaintiff ’ s favor. Id. If the evidence creates a fact question regarding th e jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact question will be resolved by t h e fact

- finder. Id. at
227

– 28 . If t he relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, however, the trial court rules on the plea to the jurisdiction
as a matter of law. Id. at 228.

B. Governmental immunity

Sovere i gn and governmental immunity are com mon

- law concepts that generally protect the State and its political subdivisions from th e burdens of litigation. See Harris Cty. v. Annab
, 547 S.W.3d 609, 612 (Tex. 2018). “ Sovereign immunity protects the state and it s vari o us divisions, such as agenci es a nd b oards, from suit and liability, whereas governmental immunity provides similar protectio n4

to the political subdivisions of the state, such as counties, cities, and school districts.” Travis Cent. Appraisal Dist. v . Norm a n , 342 S.W.3d 54, 57

– 58 (Tex

. 20 11) (citing Wichita Falls State Hosp. v. Taylor , 106 S.W.3d 692, 694 n.3 (Tex. 2003) )

. UHD, a public university of higher education, is entitled to sovereign immunity. Tex. Civ. Prac. & Rem. Code Ann. § 101.001(3) (go vernme n tal unit in TTCA) ; see also Tex. Edu c. Code Ann. § 111.01

– 02; Dal l as Area Rapid Transit v. Whitley
, 104 S.W.3d 540, 542 (Tex

. 2003) (unit of state government is immune from suit and liability unless state consents).

Sover eign i mmunity has two components: “ immunity from liability, whi ch
b ars enforcement of a judgment against a governmental entity, and immunity from suit, which b ars suit against the entity altogether.” Tooke v. City of Mexia , 197 S.W.3d 325, 332 (Tex. 2006). Immunity from suit im plicates a c o urt ’ s subject

- matter jurisdi ctio n to decide a claim against the State. Rosenberg Dev. Corp. v. Imperial Performing Arts, Inc

. , 571 S.W.3d 738, 746 (Tex. 2019). When a government al defendant challenges jurisdiction on immunity grounds, the plai ntiff
has th e burden to “affirmatively de mons trat e the court ’ s jurisdiction by alleging a valid waiver of immunity.” Whitley , 104 S.W.3d at 542. Immunity is waived only by clear and unambiguous language. See Code Construction Act, T ex. Gov’t Code Ann. § 311.034 (“[A] statute sha ll not be con strued as a w aiver of sovere ign immunity unless the waiver is effected by clear and unambiguous language.”)

. C. Waiver of i mmunity under Te xas Tort Clai ms Act

The TTCA provides a limited waiver of im munity for certain tort claims. See
Tex. Civ. Prac. & Rem. C ode Ann. § 10 1.025 (waiving sovereign immunity “to the extent of liability created by this chapter” and allowing person with claim under
TTCA to sue governmental unit for damages). The TTCA permit s suit against governmental units fo r personal injuries “cau sed by a cond ition or use of tangible5

personal or real property if the governmental unit would, were it a private person,
be liable to the claimant a ccording to Texas law.” Tex. Civ. Prac. & Rem. Code Ann. § 101.021(2). Because prem ises defects arise from a conditi on o n real property , liability for premises defects is implied under section 101.021(2) of the
TTCA. See id. §§ 101.021(2), .022(a) (address ing duty owed for premises defects); Sampson v. Univ ersity of Tex. at Austin , 500 S .W.3d 380, 385 (Tex. 201 6)

. Brion es a lleges that he was an invitee because he was a student at UHD , and
UHD does not dispute Briones’s invitee status. To establish li ability, an invitee must prove: (1) a condition of the premise s created an unreasonable ris k of harm to
the invitee ; (2) th e own er knew or reas onably should have known of the condition; (3) the owner failed to exercise ordinary care to protect the invitee f rom danger;
and (4) the owner’s failure was a proximate cause of injury to the invitee. State Dep ’ t of Highways & Pub. Tra nsp. v. P ayne, 838 S.W.2 d 235, 237 (Tex. 1992);

see also Wal

- Mart Stores, Inc. v. Reece , 81 S.W.3d 812, 814 (Tex. 2002) (noting that premi ses owner owes invitee “duty to exe rcise reasonable care to protect [invitee] from dangero us conditions” that are know n or reas onably discover able but that premises owner is “not an insurer of [invitee ’ s] safety”)

. D. C onstructive notice
A pre mises owner will be charged with constructive notice if “it is more likely than not that the condition exi sted long enough to gi ve the premises owner a

reas onable opportunity to discover it.” Reece, 81 S.W.3d at 814 (citing Wal

- Mart Stores, Inc. v. Gonzale z , 968 S.W.2d 934, 936 (Tex. 1998)). “[C]onstructive knowledge can be established by showing that the cond ition had existed long

enoug h for the owner or occ upier to have discovered it upon reasonable inspection.” CMH Homes, Inc. v. Daenen , 15 S.W.3d 97, 10 2

– 03 (Tex. 2000).

“ [C] onstructive knowledge [] can b e established by facts or inferences that a6

dangerous condition could develo p over time. ” C ity of Corsic ana v. Stewart , 249 S.W.3d 412, 415 (Tex. 2008)

. Our jurisprudence requires “ proof that a dangerous condition existed for some length of time before a premises owner may be charged
with constructive notice

. ” Reece , 81 S.W.3d at 815

. A s explain ed by the sup reme court, this so

- called “time

- notice rule ” indicates whether an owner had a reasonable opportunity to discover and remedy a danger ous condition

. Id . at 816

. Otherwise, constructive knowledge would be imp uted the instant a da ngerous conditio n i s created, whether or not there was a reasonable opportunit y to discover
it. See id. Here, other than Briones’s speculation, there is no evidence in the record of how long the water had been on the ground and whether the water was on the ground long eno ugh to give U HD a reasonabl e opportunity to discover it.

Briones argues tha t he met his burden of rais ing a fact issue on constructive knowledge because he allege d that UHD lacked “ responsible staff for spill reporting an d cleanup. ” H e fur ther ass erts , wi t hout evidenc e or citation
, that while UHD had employees, including professors, working in the academic building at the
time of incident
, thos e individuals had no duty to report or clean water spills.
These arguments are directly contradict ed by UH D ’ s evide nce in suppo rt of its plea to t he jurisdiction includ ing : (1) a time sheet for three i ndividuals employed by an indepe ndent contractor who were working in the bui lding on the day of the
incident providi ng cleaning and j anit orial services a nd (2) t he incid e nt report
p repared by UHD police
, which s tates that “cleaning servi ces” were c leaning up
the water before the paramedics attend ing to Briones left the building

. To the
extent that Briones alleges that a premises ow ner canno t delegate inspe ction or
cleanin g of the prem ises to an ind ependent contract or , he offers no supporting

au thority. Briones also offer s no responsive evidence raising a fact issue

. 1

1 In his ap pellate brief, Briones cite s t o deposi t ion of Ste f any Records, director of UHD ’ s7

Regardless
, the n umber of employees on its own , or lac k thereof, assigned to inspect the area in wh ich an alleged ly da n gerous cond ition is found is not evi dence
of whether a premises owner had a reasonable opportunity to discover and remedy a danger ous condition

. See Reece, 81 S.W.3d at 81 6 ; see also Richardson v. Wal

Mart Stores, Inc

. , 963 S .W.2d 162, 16 6 (Tex. App.

— Texarkan a 1998, no p et.) (rejecting argument by plaintiff that constructive knowledge should be inferre d if owner has inadequate inspection procedure) ; cf. Wal

- Mart Stores, Inc. v. Spates, 186 S.W.3d 566, 567

– 68 (Tex. 2006) (e vidence that em ployee was in close proxim i ty to hazar d legally insufficient to support finding of constructive notice
without evidence of how or when it came to b e on floor)

. Evidence of a lack of
staff ing may establish a breach of the duty of care ; howeve r, it i s not ev idence of the length of ti m e th e water was on the floor. Motel 6 GP, Inc. v. Lopez , 929 S.W.2d 1, 4 (Tex. 1996) (evidence of breach of duty irrelevant b ecause owner

“ cannot breach a duty that it does not owe, and it does not owe a duty to co rrect a defect of which it is not, and sh o uld not be, aware ” )

. Briones ’ s argument that he
satisfied the requirement , or alternatively was relieve d of the requirement
, to establish constructive notice because U HD would not have timely discover ed the

water o n the ground du e to lack of staff is not s upporte d by fact or law. S ee Reece,
81 S.W.3d at 814

. Because we c onclud e that Briones ha s not met his burden to establish the
sub ject

- matter jurisdiction of the trial court, w e sustain UHD ’ s sole issue on

Administrative Operation s and Compliance department
, for the proposition that the proper UHD entity responsible for reporting and remedying water spilled on the g round was the facil ities management depa rt m ent. Ho we ver, Record s ’ s deposition testimony established only that repor ts of water on the ground would have gone to the facilities management department, and not her department. The excerpt from Rec ord s ’ s d eposit ion cited by Briones does not di scuss th e p rocess
or r esponsibility for removing water spilled on the premises . It also does not establish Br iones ’ s assumption that only employees of the facilitie s management department were responsible for inspecting and clea ning the building

.8

appeal.

III. C ONCLUSION

Havi ng sustained UHD ’ s issue
, w e hold th e trial court fund amentally erred in denying UHD ’ s p lea to the j uri sdictio n on Briones ’ s c laims against it . We

reve rse th e order of the trial court and r ender the judgment the trial court should
have render e d, a dism issa l of Briones ’ s claims for w an t of sub je ct

- matter jurisdiction

. Tex. R. App. P. 43.2(c).

/s/ Charles A. S pa in J ustic e

Pan el con sists of Chief Justice Christopher and Justices Bourliot and Spain

.