## IN THE SUPREME COURT O F TEX AS

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. 14-0745

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### J O H N 

### S A M P S O N 

### , P E T IT IO N E R 

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v. 

### T H E 

### U N IV E R S IT Y O F 

### T E X A S A T 

### A U S T IN 

### , R E S P O N D E N T

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E T H I R D D I S T R I C T O F T E X A S

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Argued Novem ber 3, 2015
J U S T I C E G R E E N delivere d the opinion of the Court, in which C H I E F J U S T I C E H E C H T , J U S T I C E W I L L E T T , J U S T I C E G U Z M A N , and J U S T I C E B R O W N joined, and in w hich J U S T I C E J O H N S O N , J U S T I C E L E H R M A N N , J U S T I C E B O Y D , and J U S T I C E D E V I N E joined as to Part I I I

. J U S T I C E L E H R M A N N filed a dissenting opinion, in which J U S T I C E J O H N S O N , J U S T I C E B O Y D , and J U S T I C E D E V I N E joined. Whil e walkin g t o his office on The University of Texas at Austin (UT) campus, J ohn Sampson tripped on an improperly secur ed extension cord and fell, injuring his shoulder. The trial
court denied UT’s plea to the jurisdiction, m o t i o n to dismiss , and motion for summary judgme nt based on a determination that UT waived its g overnme ntal im m u n i t y u nder the Tort C laims Act.
See T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 101.001–.109. The court of appea ls reve rsed. Univ. of Tex.

at Austin v. Sampson , ___ S.W .3d___ , ___ (Tex. App.—Austin 2014, pet. g rante d). We aff irm the court of a ppeals’ judg ment.I. Background

Around 6:30 p.m. on November 21, 2009, Sampson, a tenure d law profe ssor at UT, arr ived

on campus and parke d in his usual parking lot to pick up tickets from his office for the football g ame that evening

. UT was hosting a tailgate p ar t y on the law school lawn from 5:00 p.m. to 7:00 p.m.—kick-off time. As Sampson was walking to his office on a sidewalk adjac ent to the party , he tripped ove r an e x tension cord strung acr oss a pede strian walkwa y betwee n the par

king lot and the law school entra

nce. Sampson claims that a portion of the cord h i t h i s leg about mid-shin, causing Sampson to pitch forwa rd and land on the sidewalk. Sampson tore his r otator cuff , which require d surg ery

and months of phy sical thera py . Austin’s World of Rentals (AWR) had assisted with setup for the tailgate party by installing lights in the tree s. The lights wer e power ed throug h extension cords, including the extension cor d that alleg edly cause d Sampson’s injury

. The extension cor d was plugg ed into a n outlet box on the law school’s la

wn. Sampson filed a neg lige nce suit ag ainst UT and AW R an d alleg ed that UT waived its

sovere ign immunit y pursuant t o T ex as Civil Practice and Remedies Code section 101.021. Following UT’s orig inal answe r, UT filed a plea to the jurisdiction, motion to dismiss , and a noevidenc e motion for summary judgme nt based on sovere ign immunit y . UT arg ued that Sampson’s claim was a premises defe ct claim under the Tort Claims Act and there was no evidenc e that UT had
actua l knowledg e of an unrea sonably dang erous condition on its premises. Sampson fi l ed an amende d petition and response to UT’s pleading s, arg uing that Sampson’s injuries wer e cause d by a condition or use of t ang ible persona l proper ty under the Tort C laims Act, an d al t erna tively , that

2the extension cord was a specia l defe ct or premis es defe ct and UT had actua l knowledg e of a

dang erous condition. I n a supplemental plea, UT arg ued that Sampson failed to plead fac ts sufficie nt
to show that UT waived its sovere ign immunit y under any theory —premises defe ct, specia l defe ct,
or g ener al neg lige nce. T he trial c ourt denied U T’s plea to the jurisdiction, moti on to dismiss, and motion for summary

judgme nt. On interlocutory appea l, U T ag ain asser ted that Sampson failed to demonstrate a waiver of

sovere ign immunit y under the Tort Claims Act. The Third Court of Ap p ea l s reve rsed the trial
court’s order and dismiss ed Sampson’s claim ag ainst UT for lack of jurisdiction , co n cl uding that Sampson alleg ed a premises defe ct claim under the Tort Claims Act and that Samp s on failed to
prese nt evidenc e t o s how that a disputed materia l fac t exis ts reg arding a materia l element—UT ’s
actua l knowledg e of an unrea sonable risk of harm. ___S.W .3d at ___. Sampson appea led to this Court, arg u i ng that his neg lige nce claim was based on a condition or use of an item of tang ible
persona l proper

ty , or alterna

tively , a premises defe ct, and th at t h ere was sufficie nt evidenc e to survive UT’ s motion. For the re asons explained below, we aff irm. 1
II. Stand ard of Review

A. Tort Claim s Act Gene rally , “immunity from suit implicates courts’ subject-matter jurisdiction” for lawsuits in which th e state or cer

tain g overnme ntal units have been sued, unless the s tate consents to suit. Rusk State Hosp. v . Black , 392 S.W .3d 88, 91 (Tex. 2012); accord Tex . Dep’ t of Parks & W ildlif e

I n t h i s C o u r t , S a m p s o n c o n c e d e d t h a t t h e c o r d w a s n o t a s p e c i a l d e f e c t u n d e r t h e T o r t C l a i m s A c t a n d t h e r e f o r e 1 d r o p p e d t h a t a r g u m e n t

. 3v. Miranda , 133 S.W .3d 217, 224 (Tex. 2004) (citing Tex. Dep’ t of Transp. v. Jones , 8 S.W .3d 636,

638 (Tex. 1999) (per curiam ))

. A state ag ency , such as UT, share s this g overnme ntal immunit y . Lowe v. Tex. Tech Uni v. , 5 4 0 S.W .2d 297, 298 (Tex. 1976); see T E X
. C I V
. P R A C
. & R E M
. C O D E § 101.001(3)( D). The state o r go v er n mental unit can be sued only if the L eg islature waives immunit y in “cle ar and unambig uous lang uag e.” T E X
. G O V ’ T C O D E § 311.034. T h er e ar e two distinct principles of sovere ign immunit y : im munity from suit and immunit y from liability

. Miranda , 133 S.W .3d at 224. The Tort Claims Act cre ates “a unique statutory scheme in which the
two immunit ies are co-e x tensive: ‘Sovere ign immunit y to suit is waived and abolished to the extent of liability cre ated by [t he Tort Claims Act].’” Id

. (quoting T E X
. C I V
. P R A C
. & R E M
. C O D E § 101.025(a) ). Thus, a g overnme ntal unit is immune from suit unless the Tort Claims Act expressly waives immunity , which it does i n three are as when the s tatutory require ments are met: (1) use of publicly own ed au t o m obiles; (2) injuries arising out of a condition or use of tang ible persona l
proper ty ; and (3) premises defe cts. Id. at 224–25 (citing Cty. of Cameron v. Brown , 80 S.W .3d 549, 554 (Tex. 2002)); see T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 101.001–.109.
B. Evid entiary Standard Whether a court has subject m atter jurisdiction is a question of l aw, proper l y as s er ted i n a plea to the jurisdiction. Miranda , 133 S.W .3d at 225–26. “Whether a pleade r has alleg ed fac ts that aff irmatively demonstrate a trial court’s subject matter jurisdiction is a question of law revie wed de

novo .” Id. at 226. Genera lly , the standar d mirrors that of a summary judgme nt under Texas Rule of C ivil P roce dure 166a (c)

. Id. at 228. “[I ]f the plaintiffs’ fa ctual alleg ations are challeng ed with supporting evidenc e nece ssary to considerat i o n of the plea to the jurisdiction, to avoid dismiss al

4plaintiffs must raise at least a g enuine issue of m ater ial fac t t o o v ercome t he challeng e to the t rial

court’s subjec t matter jurisdiction.” Id. at 221. When the evidence submi tted to support the plea implicates the merits of the case , we take as t ru e all evidenc e favor able to the plaintiff, indulging

ever y rea sonable infe renc e and r esolving any doubts in the plaintiff’s favor

. Id. at 228 (citing Sci. Spectrum, I

nc. v. M artinez , 941 S.W .2d 910, 911 (Tex. 1997)).
III. Th e Nat ure of Sampson’s Claim : Tangib le P ersonal P ropert y or P rem ises Defect The Tort Claim s Ac t wa i v es immunit y for “per sonal injury and death so cause d by a condition or use of tang ible persona l or rea l proper ty .” T E X
. C I V
. P R A C
. & R E M
. C O D E § 101.021(2).
I f the claim “ar ises from a premise defe ct, the g overnme ntal unit owes to the claimant only the duty that a priva te per son owes to a lice nsee on pr ivate prope rty .” Id. at § 101.022(a ). The duty owed
to a licensee on private proper ty require s that “a landowner not injure a licensee by willful, wanton

or g rossly neg lige nt conduct, and that the owner use ordinary car e either to war n a licensee of, or to make rea sonably safe , a dang erous condition of which the owner is awa re and the licensee is not.” State Dep’ t of Highways & Pub. Transp. v. Payne , 838 S.W .2d 235, 237 (Tex. 1992) (citing State

v. Tennison , 509 S.W .2d 560, 562 (Tex. 1 9 7 4 ))

. The Tort Claims Act thus applies differ ent standards of car e upon a gover nmental uni t for n egl i gen ce claims based on “a condition or use of tang ible persona l proper

ty ” and claims based on a “pre mises defe ct.” See T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 101.021(2) (tang ible persona l proper ty ), 101.022(a) (premises defe ct). Whether a claim is based on a premises defe ct is a leg al question. Tex. Dep’ t of Transp. v. Ramirez , 74 S.W .3d 864,
866 (Tex. 2002) (per curia m) (citing State v. Burris , 877 S.W .2d 298, 299 (Tex. 1994) (per curia m)).

5There fore , we must fir st de cide whether the alleg ed neg lige nce he re is based on a condition or use

of tang ible persona l property , or a pr emises def ect. Sampson arg ues first that his claim fa lls withi n the Tort Claims Act’s waiver of immunit y for injuries a

rising out of

a condition or use of

tang ible persona l property

. See T E X
. C I V
. P R A C
. &
R E M
. C O D E § 101.021 (2 ). R ely ing on court of appea ls’ decisions, Sampson contends that the extension cord he tripped on was clea rly “movable, portable and temporar y in nature ,” and there fore was tang ible persona l property under the Tort Claims Act that is subject t o the gene ral neg lige nce standard. I n the alterna tive, Sampson arg ues that the claim falls under the Tort Claims Act’s waiver of immunit y for premises defe cts. Acc ording ly , we must addre ss what constitutes a “use” of tang ible
persona l proper

ty claim, a “condition” of tang ible persona l proper ty claim, and a “pre mises defe ct” claim to fully

dispose of Sampson’s ar g uments on appea l.
I n Texas Departme nt of Par ks and W ildlif e v. Miranda , this Court considere d whether a claim can b e b o t h a p remises defe ct claim and a claim rela ting to a condition or use of tang ible
proper ty , and held that it cannot. 133 S.W .3d at 233. Fu rt h er m o re, this Court conclude d that the plaintiffs’ alleg ation of injury cause d by a falling tree limb constituted “an alleg ation of a condition

or use of rea l proper

ty and [was] an alleg ation of a premises defe ct

. ” Id. at 230. Miranda relied on

an ear lier case , Tennison , in which this Court reje cted the arg ument that the Tort Claims Act cre ated
“‘two entirely separ ate g rounds of liability ’ for neg lige nt use or condition o f real proper ty and premise[s] defe ct, but instead interpre t[ ed] the premises defe ct provision to further limit the waiver of immunit y for neg lige nt use o r co n d i tion of rea l proper ty .” Id. at 233 (quoting Tennison , 509
S.W .2d at 562). Miranda made clea r that a claim for a condition or use of rea l proper ty is a premises

6defe ct claim under the Tort Claims Act, and there fore the Tort Claims Act waives immunit y for two

distinct tort cause s of action: one arising from tang ible persona l proper ty and one arising from a premises de fec t. Id. at 230; see T E X
. C I V
. P R A C
. & R E M
. C O D E §§ 101.021(2), .022. Additionally , in Miranda , this Court rec og nized the di ffe rent standa rds of c are attache d to the two cause s of action and explained that a plaintiff cannot plead around the heig htened standard for premises defe cts, which require s proof of addi t i o n al el ements such as actua l knowledg e, by casting his claim instead as one for a co n d i t ion or use of tang ible persona l proper ty : “The Tort Claims Ac t ’s s cheme of a limit ed waiver of immunit y from suit does not allow plaintiffs to circ umvent the heig htened standards of a premises defe ct claim contained in section 101.022 by recasting the same acts as a claim rela ting to the neg ligent condition or use of tang ible proper ty .” Miranda , 133 S.W .3d at 233. To eff ectua te the L eg islature’s heig htened require ments for a premises defe ct claim under section 101.022(a) , the premises defe ct prov i s ion of t he Tort Claims Act mus t limit the Tort Claims Act’s p ro v i s i o n for neg lige nt use or condition of t ang ible proper ty

. See id. There fore , if a claim is one for a premises defe ct, it must be analy zed under section 101.022 and not

as a claim for a condition or use of tang ible proper ty under section 101.021(2). See id. Acc ording ly ,

we must first consider the nature of Sampson’s claim and whether it is proper ly cate g orized as based

on a premises defe ct or a condition or use of tang ible persona l proper ty ; if the former , the claim must be ana ly zed acc ording to the heig htened r equire ments of sec tion 101.022. See id. The Tort Claims Act does not define “pre mises defe ct” or “tang ible persona l proper ty .” Nor have we define d those terms within the context of the Tort Claims Act. W e n o t e at t h e outset, howeve r, that this Court, both within and outside o f the Tort Claims Act, has consistently trea ted

7s l ip/trip-and-fa ll case s as prese nting claims for premises defe cts. See, e.g. , The Univ. of Te x. a t Austin v. Haye

s , 327 S.W .3 d 1 13, 117 (Tex. 2010) (per curia m) (ana ly zing a student’s claim as a premises d ef

ec t wh er e the student, while riding a bicy cle, tripped on a metal chain that stretche d

acr oss a service drivewa

y and the student pled the claim as a premises defe ct under the Tort Claims Act); Univ. of T

ex.–P an Am. v. Aguilar , 251 S.W .3d 511, 512–13 (Tex. 2008) (per curia m) (ana ly zing the case under a premises defe ct theory wher e a student tripped over a water hose ly ing

acr oss a campus sidewalk and broke his knee and the student alleg ed a premises defe ct claim under the Tort Claims Act, which the Court did not disag ree with); Brookshire Groce ry Co. v. Taylor , 222
S.W .3d 406, 407–09 (Tex. 2006) (ana ly zing ice on a g roce ry store floor from a self-se rve soft drink dispenser, which cause d a customer to f all and sustain injuries, as a premises defe ct, outside of the
Tort Cl ai m s Ac t’s context); Keetch v. Kroger Co. , 845 S.W .2d 262, 263–64 (Tex. 1992) (conc luding, outside of the Tort Claims Act, that a slippery substance on a g roce ry store floor, which

cause d the customer to slip and sustain injuries, was a premises defe ct and not a neg lige nt activity ); Seidene ck v. Cal Bayreu t h er A s s ocs. , 451 S.W .2d 752, 753–54 (Tex. 1970) (ana ly zing a “wool, pile-ty pe rug ” with “loose-w eave ,” which laid on the store’s otherwise smooth asphalt tile floor and

cause d a woman to trip and fall, as a p re m i s es d ef ec t , outside of the Tort Claims Act’s context). Creative ple ading does not cha ng e the na ture of a

claim. See M

iranda , 133 S.W .3d at 233.
“F or four deca des, Texas jurists have repe atedly expressed conce rns about the difficulty of discerning the L eg islature’s intended meaning behind t he words ‘condition or use’ as t h ey appea r in the

. . . Tort Claims Act.” Abutahoun v. Dow Chem. Co. , 463 S.W .3d 42, 49 (Tex. 2015) (citing Tex. Dep’t of Crim. Justice v. Miller , 51 S.W .3d 583, 590–91 (Tex. 2001) (H ec h t , J

. , concur ring )

8(re counting multipl e instances when members of the Court repe atedly urg ed the L eg islature to g ive

g uidance on how t o interpre t the “use-of-pr operty standard” in the T o rt C laims Act, to no avail)) ;

see Lowe , 540 S.W .2d at 301–02 (Gre enhill, C.J ., concur ring ) (“The purpose of this concur ring opinion is to e ncoura g e the L eg islature to take another look a t the Tort Claims Ac t, a

nd to e x press

more clea rly its intent as to when it direc ts that g overnme ntal immunit y is waived.” ); see also State

v. San Miguel , 981 S.W .2d 342, 346 (Tex. App.—Ho u s t o n [ 1 4 t h Dist.] 1998), rev’ d on other grounds , 2 S.W .3d 249 (Tex. 1999) (per curia m) (“D eter

mining whether the particula r objec t that

cause d the injury falls into the cate g ory of ‘pre mises defe ct’ or ‘use or condition of proper ty ’ is often a difficult task.”). Howeve r, we have never used t he fact t hat t he “‘condition or u s e’ p ro v i s i o n is ‘diffic ult to understand and difficult to apply ’” as an excuse to by pass our duty to interpre t and apply the statute as written. Abutahoun , 463 S.W .3d at 49 (quoting Robinson v

. Cent. Tex. MH MR Ctr. , 780 S. W

. 2 d 169, 171 (Tex. 1989)). I n DeW itt v. Harris County , this Court explained that with “pre mise[s ] defe cts, liability is predic ated not upon the actions of the g overnme ntal unit’s employ ees but by ref ere nce to the duty of car e owed by the g overnme ntal unit to the claimant for premise and specia l defe cts as specified i n section 101.022 of t he . . . Tort Claims Act.” 904 S.W .2d 650, 653 (Tex. 1995). Under the Tort Claims Act, the duty owed for a p re m i s es d ef ec t is that owed to a licensee

. T E X .C I V
. P R A C
. & R E M
. C O D E § 101.022(a) (“[I ]f a claim arises from a premise defe ct, the
g overnme ntal unit owes to the claimant o n l y t h e d u t y that a private person owes to a licensee on private proper

ty , unles s the claimant pay s for the use of the premises.” ). Rather than expressly imposing a particular

duty , as the L eg islature did in section 101.022(b) with the “duty to war n” in specia l defe ct case s, the L eg islature linked the applicable duty under section 101.0 2 2 (a )— for

9premises defe cts—to the common law. See Payne , 838 S.W .2d at 237. “Tha t duty require s that a

landowner not injure a licensee by willful, wanton or g rossly neg lige nt conduct, and that the owner

use ordinary car e either to war n a licensee of, or to make rea sonably safe , a dang erous condition of which the owner is awa

re and the l icense e is not.” Id. Fur thermore , “it is important to reme mber that the Tort Claims Ac t doe s not cre ate a cause of action; it mere ly waives sovere ign immunit y as

a bar to a suit that would otherwise exis t.” City of Tyler v. Likes , 962 S.W .2d 489, 494 (Tex. 1997) (explaining that “unless [ the pl aintiff] would have a claim for me n tal anguish under common law
ag ainst a private defe ndant, we need not rea ch the question of whether mental ang uish is a ‘per sonal injury ’ for which the L eg islature has waived the City ’s sovere ign immunit y ” under section 101.021 of the Tort Claims Act). I n State v. Shumake , this Court considere d the eff ect of the rec rea tional use
statute on a premises defe ct claim broug ht under the Tort Claims Act ag ainst the state. 199 S.W .3d 279, 284–85 (Tex. 2006). This Court explained: “De termining whether a ‘tre s p a s s e r ’ o n s ta te

- o w ned

rec rea tional land has a claim for injuries cause d by the unsafe condition of the proper ty require s that

we construe the statute along with the common law principles the statute ostensibly incorpora tes.” Id. at 284. Her e, the Tort Claims Ac t oste nsibly incorporates common law principles by using the
term “pre mises defe ct,” a term develope d by the common law, and by linking the duty of car e owed under the Tort C laims Act to common law. See Payne , 838 S.W .2d at 237; id. at 245 (Mauzy , J ., dissenting)

. We there fore look to the common law premises defe ct cause of action for g uidance in interpre ting “pre mises defe ct” under the Tort Claims Act. See T E X
. G O V ’ T C O D E § 311.023(4) (“I n construing a statute, whether or not the statute is considere d amb i gu o u s o n i t s fac e, a court may

1 0consider

. . . common law or former statutory provisions, including laws on t h e same or simil ar

subjects.”)

. The definition of “pre mises defe ct” has been develope d at common law throug h case law distinguishing betwee n two subspecies of neg lige nce: cause s of action for premises liability and
neg lige nt activity

. See Clayton W

. W illiams, Jr., Inc. v. Olivo , 952 S.W .2d 523, 527 (Tex. 1997); Keetch , 845 S.W .2d at 264. “We have rec og nized that neg lige nt activity encompa sses a malfea sance theory based on aff

irmative, contemporaneous conduct by the owner that cause d the i njury , while premises liability encompa sses a nonfea sance theory based on the owner ’s failure to take measure s
to make the proper

ty safe .” De l Lago Partners, Inc. v. Smith , 307 S.W .3d 762, 776 (Tex. 2010). When distinguishing betwee n a neg lige nt activity and a premises defe ct, this Court has focuse d on whether the injury o cc urre d by or as a contempora neous result of the activity itself—a neg lige nt activity —or ra ther by a condition cre ated by the activity —a pre mises defe ct. Keetch , 845 S.W .2d
at 264. “At some point, almost ever y artificia l condition can be said to have been cre ated by an activity ,” but we have repe atedly “dec line[d] to eliminate all distinction b e tw e e n p r e mi s e s conditions and neg lige nt activities.” Id. ; see also Del Lag o Partners, Inc. , 307 S.W .3d at 776. J ust as at common law, whe re the artificia l c ondition upon which a premises liability claim is based may

be

cre ated by an activity , we conclude that under the Tort C laims Act, the dang erous condition upon which a premises defec t claim i s based may be crea ted by an it em of tang ible p er s o nal property

. 2

M i r a n d a m a d e c l e a r t h a t a c l a i m f o r a c o n d i t i o n o r u s e o f r e a l p r o p e r t y i s a p r e m i s e s d e f e c t c l a i m u n d e r t h e 2 T o r t C l a i m s A c t , a n d t h a t t h e r e a r e t w o d i s t i n c t c a u s e s o f a c t i o n

— o n e b a s e d o n a c o n d i t i o n o r u s e o f t a n g i b l e p e r s o n a l p r o p e r t y a n d o n e a r i s i n g f r o m a p r e m i s e s d e f

e c t

. 1 3 3 S

. W

. 3 d a t 2 3 0 ; s e e T E X
. C IV
. P R A C
. & R E M
. C O D E § § 1 0 1

. 0 2 1 ( 2 ) ,

. 0 2 2

. 1 1The distinction lies in whether it is the actua l use or condition of the tang ible persona l proper ty itself that alleg edly cause d the injury , or whether it is a condition of rea l proper ty —cre ated by an item of tang ible persona l property —that alleg edly

cause d the injury . We seek to cla rify this dist inction. Wit hin the Tort Claims Act’s context, we have define d “condition” as “either an intentional

or an inadver

tent state of being .” Abutahoun , 463 S.W .3d at 49 (quoting Sparkman v. Maxwell , 519
S.W .2d 852, 858 (Tex.1975)). To state a “condition” claim under the Tort Claims Act, there must be an alleg ation of “def

ective or inadequa te proper ty .” Salcedo v. El Paso Hosp. Dist. , 659 S.W .2d 3 30, 32 (Tex. 1983) ; see Dall. Cty. v. Posey , 290 S.W .3d 869, 872 (Tex. 2009) (per curia m) (“F or a defe ctive condition to be the basis for complaint, the defe ct must pose a hazard in the intended and ordinary use of the pr operty .”). F urthermor e, we have de fined “ use” to mea n “to put or bring into action or service ; to employ for or apply to a g iven purpose.” Miller , 51 S.W .3d at 588 (quoting Tex.
Nat. R es
. C o n s er vati on Comm’n v. W hite , 46 S.W .3d 864, 869 (Tex. 2001)). As with neg lige nt activity claims under common law, to state a “use” of tang ible persona l proper ty claim under the Tort Claims Act, the injury must be contemporane ous with the use of the tang ible persona l
proper ty —“[u] sing that proper

ty must have actua lly cause d the injury .” Id. Alleg ations of mere nonuse of proper

ty cannot support a “use” claim under the Tort Claims Act. See, e.g ., W hite , 46 S.W .3d
at 869–70 (conc luding that the failure to use a pump to dissipate g asoline vapor s did not support a

T h i s C o u r t h a s n o t a d d r e s s e d t h e m e a n i n g o f “ i n a d e q u a t e ” i n t h e c o n t e x t o f a c l a i m b a s e d o n a c o n d i t i o n o f 3 t a n g i b l e p e r s o n a l p r o p e r t y . W e h a v e m e n t i o n e d “ i n a d e q u a t e ” i n t h e c o n t e x t o f “ u s e ” c l a i m s , h o l d i n g t h a t s u c h a c l a i m b a s e d o n t h e c o m p l e t e l a c k o f a n i n t e g r a l s a f

e t y f e a t u r e r a t h e r t h a n a “ m e r e l y i n a d e q u a t e ” f e a t u r e c a n e f

f e c t a w a i v e r o f g o v e r n m e n t a l i m m u n i t y u n d e r t h e T o r t C l a i m s A c t , w h e r e a s a “ n o n - u s e ” c l a i m b a s e d o n “ t h e f a i l u r e t o p r o v i d e a m o r e e f f e c t i v e s a f

e t y f e a t u r e ” d o e s n o t w a i v e t h e g o v e r n m e n t a l u n i t ’ s i m m u n i t y . T e x
. A & M U n i v
. v
. B i s h o p , 1 5 6 S

. W

. 3 d 5 8 0 , 5 8 4 ( T e x . 2 0 0 5 )

. W e e x p r e s s n o o p i n i o n o n t h e m e a n i n g o f “ i n a d e q u a t e ” i n t h e “ c o n d i t i o n ” c o n t e x t , h o w e v e r . 1 2claim for neg lige nt use of tang ible persona l proper ty ). Additionally , we h av e explained that a
g overnme n t al unit “does not ‘use’ tang ible persona l proper ty

. . . within the meaning of section 101.021(2) by mere ly providing , furnishing , or allowing

. . . acc ess to it.” Rusk Stat e Ho s p
. , 3 9 2
S.W .3d at 98. Howeve r, non-use and furnishing acc ess are distinguishable from situations in which
a g overnme ntal unit “provided equipment that lacke d an int eg ral safety component.” See B ishop , 156 S.W .3d at 584 (explaining that providing equipment that lacks “an integ ral safe ty component”
repr esents “the outer bounds of what we have define d as use of tang ible persona l proper ty ,” and we “appl[y ] [our prec edent] narr owly only when an integ ral safe ty component is entirely lacking rathe r than mere ly inadequa

te”)

. The case at hand require s us to differ entiate betwee n a tang ible persona l
proper ty claim and a premises defe ct mo re n ar ro wly

. Dra wing from definitions develope d both under the Tort Claims Act and at common law, we must deter mine whether a claim arises from a use

or condition of tang ible persona l proper ty or a premises defe ct. This deter mination turns on whether the contempora

neous “ac tion or service ” (use) or “state of being ” (condition) of the tang ible persona l
proper ty itself cause d the injury , or whether the tang ibl e p er s o n al proper ty cre ated the dang erous

rea l-proper

ty condition, making it a premises defe ct. J ust as at common law, wher e an activity may

cre ate a condition of the premises, under the Tort Claims Act an item of tang ible persona l proper ty
may cre ate a condition of the premises, resulting in a premises defe ct claim. See Keetch , 845 S.W .2d
at 264. Sampson reje cts two case s relied upon by UT, which addre ss tripping hazards on university
campuse s, arg uing they are inappos i t e b ecause the claims in those case s wer e analy zed only as premises defe ct claims, having not been pled i n the alterna tive under a “use” or “condition” of

1 3tang ible persona l proper ty theory of liability

. See Aguilar , 251 S.W .3d at 512; Haye s , 327 S.W .3d
at 115. As previously explained, howeve r, if a claim is proper ly deter mined to be one for premises defe ct, a plaintiff cannot circ umvent the true nature of the claim by p l ea d i n g it as one for g ener al
neg lige nce, see M

iranda , 133 S.W .3d at 230–33, and both case s illust rate quintessential premises defe ct claims. I n University of Texas–Pan American v. Aguilar , a student of the university tripped

on a water hose ly ing acr oss a campus sidewalk and broke his knee as he was walking to class. 251
S.W .3d at 512. The case was pled only as a premises defe ct cause of action and, without discussion,

we ref err ed to the case as a premises defe ct claim and an al y z ed the issue of actua l knowledg e, concluding that the pl aintiff failed to satisfy that element of the claim. Id. at 512–14. I n Aguilar , the water hose was hooked to a spigot and stretche d acr oss the campus sidewalk. Univ. of Tex.–Pan
Am. v. Aguilar , No. 13-06-450- CV, 2007 WL 610731, *4 ( T e x. App.—Corpus Christi Mar. 1, 2007),
rev’ d on other grounds , 251 S.W .3d at 511–12. Simil arly , in The University of Texas at Austin v. Haye s , the pl aintiffs di d not raise or arg ue a the ory

based on use or condition of t ang ible persona l
proper ty when a m et al chain stretche d acr oss and blocked a campus drivewa y , causing a bicy cle

acc ident. 327 S.W .3d at 115. I n that case , the m eta l ch ain, pl ace d acr oss the s ervic e driveway in
prepa ration for a football g ame the following day , was suspended in the air. Id. We conclude d that the claim was for

premises de fec t, as opposed to a spe cial def ect, without discussion of whether it
may have been a tang ible persona l proper ty claim, and held that the p l ai n t i ff failed to establish a premises defe ct claim for failure to satisfy the actua l knowledg e element. Id. at 118. Neither Aguilar nor Haye

s addre ssed the distinction betwee n a claim based on tang ible persona l proper ty and
a pre mises defe ct claim.

1 4The dist inction betwee n a use or conditi on of tang ible persona l proper ty claim as opposed
to a premises de fec t claim, howeve r, is whether it was the contempora

neous, aff irmative action or service (use) or the state of being (condition) of the tang ible proper ty itself that alleg edly cause d the injury , or whether

it was a c ondition crea ted on the re al prope rty by the tang ible persona l pr operty (a premises defe ct). See Shumake , 199 S.W

. 3 d at 284 (explaining that neg lige nt activity claims require that “the claimant’s injury result from [t he] contempora neous activity itself rathe r than from

a condition c rea ted on the premises by the activity ”); Keetch , 845 S.W .2d at 264 (explaining that a premises defe ct claim exis ts when the injury alleg edly occur red as a result of a condition cre ated by the activity

). I n Aguilar and Haye

s , the water hose and metal chain alleg edly cause d the injuries not beca use of the i nhere nt nature of t he tangible pe rsonal property itself or t he contemporane ous use of the t angible persona l proper ty , but beca

use of the tang ible item’s place ment—strung , pulled
taut—cre ating a hazardous rea l-proper ty condition. Aguilar , 251 S.W .3d at 512; Haye s , 327 S.W .3d
at 115; cf. Ove rt o n Mem

. Hosp. v. McG uire , 518 S.W .2d 528, 528–29 (Tex. 1975) (per curia m) (cha rac terizing a claim for injuries sustained afte r a patient fell from a hospital bed without rails as

a claim based on condition or use of tang ible pers o n al p ro p er ty under the prede cessor to the Tort Claims Ac t—it wa s the hospital be d itself that alleg edly cause d an injury

and not a dang erous rea l
proper ty condition cre ated by the bed’s place ment or position). Her e, the elec trical extension cord

was strung acr oss the pedestria n walkwa y hours ear lier b y either a UT or AWR employ ee. The dang erous condition was the way the extension cord was positioned over the concr ete reta ining wall, resulting in a g ap betwee n the g round and the cord. The injury did not result from the use of tang ible
persona l proper

ty beca use a UT employ ee was not putting or bring ing the cord into action or service

1 5at the time of the injury

. Mi l ler , 51 S.W .3d at 588 (def ining “use” to mean “to put or bring into

ac t i on or service ; to employ for or apply to a g iven purpose. . . . Using that propert y m u s t h av e
actua lly cause d the injury .”) (interna l citation omitted). The cord was not, for example, being pulled
taut acr oss the walkwa

y by a UT employ ee contempora neously with Sampson’s fall, which w ould have been a “use” of the tang ible persona l proper ty

. See Keetch , 845 S.W .2d at 264 (explaining that there was no “ong oing activity ” and there fore the injury was not contempora neou s wh en a s t ore patron slipped and fell approximately thirty minutes afte r a Krog er employ ee had spray ed the plants and cre ated the slick spot o n t h e fl o o r)

. Nor was the g ap betwee n the g round and the cord a condition of tang ible persona l proper ty beca use it was not the defe ctive state of the actua l cord that resulted in the i njury

. See Abutahoun , 463 S.W .3d at 4 9 (q u oting Sparkman , 519 S.W .2d at 858) (def ining “condition ” as “either an intentional or an inadver tent state of being ”); Salcedo , 659
S.W .2d at 32 (re quiring “an alleg ation of defective or inadequa te prope rty when ‘ some condition’ of proper ty is a contributing fac tor to the injury ”). The cord was not, for example, fra y ed with exposed wire that touched Sampson as h e walked by , shocking him, which would have been an i n j u ry cause d by the condition of the tang ible proper ty

. I nstead it was the static place ment of th e extension cord on the re al prope rty , the way it was hung over the concr ete r etaining wall resulting i n a gap betwee n it and the g round, t hat create d the dange rous conditi on—a trippi ng hazard. T h e extension cord thus cre ated a condition on the rea l proper ty —a premises defe ct. See Miranda , 133
S.W .3d at 230. J ust as at common law, wher e slip/t rip-and- fall case s have consistently been trea ted as premises defe ct ca

uses of a ction, under the Tort Claims Act, when a n item of tang ible persona l
proper ty cre ates a condition of real property that results in a sl ip/trip-and-fa ll injury , it is proper ly

1 6char acte rized as a premises defec t cause of action. We ther ef o re h o l d that Sampson’s neg lige nce claim is proper ly char acte rized as based on a premises defe ct, even though the dang erous condition on the re al prope rty

was c rea ted by

tang ible persona l property

. IV. Evidence of Actual Knowl edge Sampson arg ues that even if his claim is one o f premises defe ct, he prese nted sufficie nt evidenc e to establish a waiver of immunit y under s ec t i o n 101.022(a)

. Howeve r, UT alleg es that Sampson’s premises defe ct claim fails to fall within a waiver of UT’s immunit y beca use Sampson is unable to show that UT had actua l knowledg e of an unrea sonable risk of harm. When a claim arises from a premises def ect under the Tort Claims Act, “the g overnme ntal unit owes to the claimant only t h e d u t y t h at a private person owes to a licensee on private proper ty , unless the claimant pay s for the use of the premises.” T E X
. C I V
. P R A C
. & R E M
. C O D E § 101.022(a)

. Sampson does not alleg e that he paid for use of the premises, s o we an aly ze his claim using a licensee standard. The duty owed to a li cense e requires that “a landowner not i n j u re a l i cense e by willful,
wanton or g rossly neg lige nt conduct, and that the owner use ordinary car e either to war n a licensee of, or to make rea sonably safe , a dang erous condition of which the owner is awa re and the licensee is not.” Payne , 838 S.W .2d at 237 (citi n g T en n i s on , 509 S.W .2d at 562); accord R E S T A T E M E N T (S E C O N D ) O F T O R T S § 342 (1965). Absent willful, wanton, or g rossly neg lige nt conduct, a licensee must prove the following elements to establish the bre ach of duty owed to him: (1) a condition of the premises cre ated an unrea sonable risk of harm to the licensee ; (2) the owner actua lly knew of the condition; (3) the licensee did not actua lly know of the condition; (4) the owner failed to exercise ordinary car e to protec t the licensee from dang er; (5) the owner ’s failure was a proxi mate cause of injury to the licensee

.

1 7Payne , 838 S.W .2d at 237. There fore , if UT can show there was no ev i d en ce o f o ne of these

elements, its plea to the jurisdiction should be g rante d

. See A guilar , 251 S.W .3d at 512, 514.
UT alleg es t hat t here is no evidenc e it “ac tually knew” of t he dange rous conditi on cre at ed by the extension cord. Be cause the jurisdictional evidenc e implicates t h e m er i t s , UT’s burden is simil ar to that of a movant for summary judgme nt. See Miranda , 133 S.W .3d at 227–28. Once UT

asser ts and supports with evidenc e that the trial court lacks jurisdiction, we require Sampson to show only that there is a disputed materia l fac t reg arding the jurisdictional issue. See id. at 228. We take

as true all evidenc e favor able to the nonmovant, Sampson, indulging ever y rea sonable infere nce and resolving any doubts in Sampson’s favor

. S ee id. “I f the evidenc e raises a fac t question on jurisdiction, then the trial court cannot g rant the plea to the jurisdiction,” and the fac t question will instead be resolved b y t h e fac t finder. City of Corsicana v. Stewart , 249 S.W .3d 412, 414 (Tex. 2008) (per curia m) (citing Miranda , 133 S.W .3d at 227–28). I f the evidenc e “f ai l s to raise a fac t question, the trial cour

t rules on the plea

to the jurisdiction as a matter of law.” Id.
“Ac tual knowledg e, rathe r than constructive knowledg e of the dang erous condition is require d.” Tennison , 5 0 9 S

. W.2d at 562. Fur thermore , the licensee must show that the owner
actua lly knew of the “dang erous condition at the time of the acc ident, not me rely of the possibili ty that a dang erous condition c[ould] develop over tim e. ” Haye s , 327 S.W .3d at 117 (alter ation in orig inal) (quoting Stewart , 249 S.W .3d at 413–14). Hy pothetical knowledg e will not suffice

. See id. Additionally , that the owner could have done more to warn the l icense e is not direc t evidenc e
to show that the owner had actua l knowledg e of the dang erous condition. Id. at 117–18. “Althoug h there is no one test for deter mining actua l knowledg e that a condition prese nts an unrea sonable risk

1 8of harm, courts g ener ally consider whether the premises owner has rec eived repor ts of prior injuries

or re ports of the potential da ng er pr esente d by

the condition.” Aguilar , 251 S.W .3d at 513.
At the tailgate party that evening , AWR provided four strands of string lights to hang in the
tree s. The parties dispute whether UT or AWR laid the extension cor d used to pow er those lights, which alleg edly cause d Samps o n to trip. The only evidenc e reg arding the fall is from Sampson himself: “[A]s I rounded the bend and heade d towards the atrium I tripped when my rig ht shinbone
caug ht a trip wire . . . it wa s coming down throug h the ivy on the . . . conc rete reta ining wall . . . .
I then pitched for wa rd

. . . . I landed square on my rig ht shoulder with full forc e.” Sampson descr ibed the condition of the cord as coming over from a highe r point, the reta ining wall, then down throug h the ivy at an ang le. The cord was not secur ed or held by tape to either the reta ining wall or
t h e g round, nor wer e there any war ning cones to mark that the cord came down at an ang le and

crosse d the walkwa

y . Finally , the ar ea w as “ve ry dimly illumi nated.”
UT prese nted the following evidenc e that AWR, not UT, laid the cord: (1) AWR used y ellow extension cords, UT used bl ack ext ension cords, and Sampson testified that the extension cord he tripped over was y ellow; (2) Georg e Bates, an AWR employ ee, disc ussed departing from AW R’s usual proce dure of taping cords down and instead routing one of the tree light extension cords above the walkway throug h the t ree s; and (3) the t en ex tension cords pr ovided by UT for the event wer e
arg uably used for differ ent purposes, such as providing elec tricity for food stations, not to power the
tree lights. UT also prese nted evidenc e that no UT employ ee observe d the prese nce of a cord in the

are a wher e Sampson fell befor e his fa l l : (1 ) n o UT personne l testified to seeing a cord wher e Sampson fell; (2) UT did not complete a full walk-throug h afte r setup was complete and, ins tead,

1 9UT employ ees simply “double- chec ked” that there was lig hting a nd elec trical powe r by observing that the l ights a

nd power wer e func tioning—bec ause the y viewed the lights on, there was no ne ed for the UT employ ees to investiga te the power source further ; and (3) when the tree lights went out, a UT e mploy ee, N atzy eli L eug ers, simply “sawthat the cable was unplugg ed,” did not see any one

near the are a, and plugg ed a cord back in, without examining the extension cords or their place ment
to deter mine why the cord came unplugg ed. Finally , L eug ers testified that there had been no repor ts of prior injuries or problems at past events held in the same are a. I n sum, UT arg ues that Sampson only prese nted evidenc e of “hy pothetical knowledg e,” and there fore the action should be dismiss ed for lac k of jurisdiction. Given UT’s evidenc e, it i s S am pson’s burden to raise an issue of materia l fac t as to jurisdiction. Sampson a

rg ues that when viewing the fac ts in the light most fa vorable to him, there is evidenc e that UT employ ees knew about the dang erous co n d i t i o n of the cord: (1) UT was responsible for

lay ing the cord; (2) UT employ ees inspected the se tup, including the pla ceme nt of the cord; and (3) a UT employ ee replug g ed the cord afte r it had become unplugg ed halfwa y throug h the event. As evidenc e that UT was responsible for lay ing the cord, Sampson prese nted evidence that: (1) UT was responsible for bring ing power from the outlet box to the are a wher e elec tricity was neede d, which in this case included UT r unning the extension cord acr oss the walkwa y ; (2) AWR employ ee Ba tes understood on this occa sion that UT would run the cord acr oss the walkwa y for the event, sug g esting to L eug ers that it would be best to run t he cord in the t ree s over the walkwa y to
p re v en t i t from cre ating a tripping hazard; (3) Ba tes also testified that AWR alway s duct-tapes extension cords along the g round or to the wall, evidenc ing this cord was not run by AWR beca use
2 0it wa s not ta ped down; (4) an internal UT w ork orde r reque sted UT Electric al to pr ovide elec trical for the event along with ten extension cords; (5) Rudy Moreno and Ag ustin Carra sco, UT employ ees, walked the site with Ba tes discussing setup for the event; and (6) Carra sco spent two hours running elec tricity for the event. Fur thermore , Sampson points to evidenc e that UT employ ees “inspec t[ ed] the set up prior to the event, and afte r the lights had been strung ,” and that UT employ ees “‘double

chec ked’ ever

y thing befor e the event and made sure that ‘eve ry thing was fine’” to show that UT
actua lly knew of the cord’ s place ment in the walkwa y . I n addition, halfwa

y throug h the event, about
6:00 p.m., the extension cord power ing the lights was pulled out of the outlet and L eug ers discovere d the unplugg ed cord and rec onnecte d it. Finally , Sampson arg ues that the lack of repor ts o f prior injuries or of the potential dang er repr esente d by the condition does not imply that UT lacke d actua l knowledg e that the e x tension cord pr esente d an unre asonable risk of har m. I t is un d i s p u t ed that AWR employ ees installed the lights in the tree s. Ty pically with UT events, UT runs the power from the outlet to wher ever the elec tricity is neede d. Whil e UT was responsi b l e fo r t u rning on the elec tricity for the outlets and unlocking the outlet box es, no one testified that UT actua lly did place the extension cord that cause d Sampson’s injury

. I nstead, there

was repe titive testimony from UT and AWR employ ees who “did not rec all” or “did not know” who
actua lly laid the extension cord at issue. AWR contra cted to provide six extension cords, while UT

was responsible for providing ten extension cords. Ba tes rec alled AWR taping one extension cord to the g round in a diff

ere nt are a of the south lawn that day and explained tha t A WR “alwa y s ducttaped any extension cords down to the g round or to the wall.” Fur thermore , Ba tes stated in deposition testimony that on November 16, 2009, five day s befor e the event, he discussed stringing

2 1the extension cord for the tree lights above the walkwa y throug h the tree s, so that it would not be a tripping hazard, with L eug ers and Ashlie Murra y . Whil e Ba tes ex p l ai n ed t h at UT g ener ally has

someone “bring the elec tricity to us and then plug in,” when asked “whe ther that happene d for this event,” Ba tes did not know. I ndulging ever y rea sonable infere nce in Sampson’s favor , as we must, i t co u l d b e co n cl uded that UT laid the extension cord. See Miranda , 133 S.W .3d at 228. Whil e evidenc e of who laid the cord is one fac tor in deter mining UT’s actua l knowledg e, the critica l inquiry here is not who initially place d the cord, but whether UT had actua l k n owledg e of the dang erous condition cre ated by the cord’ s position at the time of Sampson’s fall, reg ardle ss of who laid it. See Haye s , 327 S.W .3d at 117–18.
B o th L e u g e r s a

n d Murra y explained in deposition testimony how, mid-way th r o u g h th e e v e n t, about 6:00 p.m., the tree lights lost power . Eac h went separ ate way s to try to reme dy the situation, and L euger s found the source of the problem—the extension cord power ing the lights had come unplugg ed fr om the power outlet. L eug ers’ s testimony provided: Q: When the lights we nt out, what happene d? A: Well, [Murray ] and I tried t o fig ure it out. And we split. I h ap p en ed t o go that way , and I saw t h at the cable was unplugg ed from the elec trical cord - - from the plug. Q: Okay . When y ou say

“that wa y ,” y ou went towar d the outlet box . . . ? A: Yes. Corre ct. Q: Okay

. Where did y ou see - - y ou actua lly saw that the extension cord was unplugg ed fr om the power outlet? A: When I walked a ll the way up here , that’s when I

saw that.

. . . . Q: When y ou went in and rec onnecte d the power source to the ligh t s that wer e connec ted to the bulbs

. . . did y ou see any one on the g round as y ou walked towards the power source ? A: No.

2 2Q: Did y ou see any one helping any one up off the g round, as though that person had

f[allen]? A: No. Q: And how long , in y our estimation, wer e the lig hts out? A: Be tween thr ee a

nd five minutes.

. . . . Q: Did y ou look, afte r y ou discovere d that it had become unplugg ed, to try to fig ure out why it became unplugg ed? A: No.
At most, this testimony cre ates an infere nce that L eug ers was awa re something cause d the extension cord to become unplugg ed. Whil e cir cu m s tantial evidenc e can establish actua l knowledg e, such evidenc e must “‘e ither direc tly or by rea sonable infere nce’ support that conclusion.” Suarez v. City of Tex. City , 465 S.W .3d 623, 634 (Tex. 2015) (quoting Stewart , 249 S.W .3d at 415). An infere nce is not rea sonable if premised on mere suspicion—“some suspicion linked t o other suspicion produce s only more suspicion, which is not the sam e as s ome evidenc e.” Id. (quoting Marathon Corp. v. Pitzner , 106 S.W .3d 724, 728 (Tex. 2003) (per curia m)). L eug ers re- plugg ing the extension cord leads at most to suspicion that she was awa re the cor d was a tripping hazard; it cannot be

rea sonably inferr ed that taking three to five minutes to identify why the lights went out and to plug the cord back into the socket meant that L eu ger s ac tually beca me awa re of how the cord was positioned over the r etaining wall and that it cre ated a tripping ha zard. Reg arding the “inspec tion of t he set-up ” b y UT employ ees, the evidenc e shows that a gene ral observation and walk-throug h

occur red, not a detailed r eview of

the pre mises: Q: Can y ou rea d me that entry ? A[Murray ]: 1:30 to 2:30, [Moreno] from Maintenance here to make sure l ights are working

. Q: Did that actua lly

occur ? A: Yes.

2 3. . . .

Q: Who else - - we ll, what was y our under standing that [Moreno] was there f or? A[Murray ]: J ust to make sure e very thing wa s up and running

.

. . . . Q: Okay

. Now, tell me, did [Moreno and Carr asco] - - wer e they chec king the elec tricity to make sure it was working ? What wer e th ey d o i n g there , to y our understanding ? A [L eug ers]: Yeah, just che cking that we ha d power and that eve ry

thing wa s fine. Q: So at the time that they wer e ther e, wa s the lightingalre ady set up by [AW R] ? A: I believe so.

. . . . Q: Did y ou all look at the lighting toge ther while they wer e there , to make sure it was working ? A [L eug ers]: We just looked u p and saw it lit. I mean, that’s the only thing I can think of.
Fur thermore , in a

n email betwee n two UT employ ees a bout the event, one employ ee explained, “ I spoke with

. . . one of our Events folks & she told me that the vendor set up the extension plugs that

our Professor had tripped over BU T she had ever y thing was [si c] double chec ked by a UT Tec hnical
Crew L eade r . . . befor e the event started.” This evidenc e shows that UT employ ees wer e phy sically
prese nt and that the light bulbs a nd other items at the tailga te wer e power ed and functioning

. That employ ees wer e prese nt, “double chec ked” ever y thing, and made sure “eve ry thing was up and running ,” without more, does not show actua l knowledg e o f t h e dange rous pos ition of t he cord at the t i m e o f t h e i n

j u ry —that it was strung throug h the ivy and over the walkwa y in a manner that
prese nted a tripping hazard.
I n City of Dallas v. Thompson , we addre ssed th e C ity ’s actua l knowledg e reg arding a premises defe ct claim under the Tort Claims Act. 210 S.W .3d 601, 603 (Tex. 2006) (per curia m). The evidenc e showed that in the hours befor e the plaintiff’s trip and fall on the lip of an improperly

secur ed expansion-joint cover plate protruding from the floor at the airport, “City employ ees had

2 4been in the ar ea . . . an d p ro bably had walked over it.” Id

. Fur thermore , the “City knew that the

cover plate could become loose and raise s uddenly or over time with ordinary wea

r and tear .” Id.
We explained that “the fac t that materia ls deter iorate over time and may become dang erous does not itself cre ate a dang erous condition, and the actua l knowledg e require d for liability is of the dang erous condition at the time of the acc ident, not mere ly of the possibi l i t y t h at a d anger ous condition can develop over time.” Id. (citing CMH Homes, Inc. v. Daene n , 15 S.W .3d 97, 100–02 (Tex. 2000)). Wit hout evidenc e showing how long the alleg edly protruding plate ex i s t ed , “the proxi mity of the employ ees is no evidenc e of actua l knowledg e.” Id. at 603–04 (citing W al-Mart Stores, Inc. v. Ree ce , 81 S.W .3d 812, 816 (Tex. 2002) (“A n employ ee’ s proxi mity to a hazard, w ith no evidence indicating how long the hazard was there , mere ly indicates that it was p o s s i b l e for the premises

owner to discover t h e condit ion.”)). Finally , althoug h the City added a scre w to the end of the

cover plate wher e it wa s protruding afte r the injury , we reiter ated that “[e]vidence that an owner or occupie r knew of a sa fer , fea sible alterna tive desig n, without more, is not evidence that the owner knew

. . . that a condition on its premises cre ated an unrea sonable risk of harm.” Id. at 604 (quoting
Daene n , 15 S.W .3d at 102). Despite the evidenc e of prior falls, em p l o y ee s i n the are a, and a fea sible, safe r alterna tive desig n, we held that the plaintiff failed to prese nt any evidenc e of the City ’s
actua l knowledg e of the protruding cover plate. Id. at 603–04. There is no more evidenc e of actua l knowledg e here than there was in Thompson. At most, there is evidenc e that UT employ ees initially laid the extension cord, that the extension cord beca me unplugg ed at some point during the event and was simply plugg ed back in with o u t further investiga tion, and that the power was verifie d to be up and running for the tailga te party

. Howeve r,
2 5“the proxi mity of the employ ees is no evidenc e of actua l knowledg e.” Id. at 603 (citation omitted).

The fac t that UT employ ees wer e in the are a d o es n o t mean they actua lly observe d the extension cord, or the specific portion of the extension cord that cre ated the tripping hazard. Fur thermore , the fac t that AWR employ ees and UT employ ees discussed methods of stringing the cord—throug h the
tree s above the walkwa

y , in order to avoid a tripping hazard—doe s not cre ate actua l knowledg e that the decision to lay the cord on the g round cre ated a dang erous condition beca use “[a]warene ss of a potential problem is not actua l knowledg e of an exis ting dang er.” C i t y of Denton v. Paper , 376
S.W .3d 762, 767 (Tex. 2012) (per curia m) (quoting Rey es v. City of Laredo , 335 S.W .3d 605, 609 (Tex. 2010) (per curia m)). I n Thompson , that the employ ees knew the cover plate could become loose and protrude, and eventua lly added a scre w to preve nt this condition, did not amount to actua l knowledg e. 210 S.W .3d at 603–04. Nor will the fac t that an extension cord can be taped down and that alterna tive methods of stringing wer e discussed amount to actua l knowledg e that the cord’ s position at the tim e of the acc ident cre ated a dang erous c ondition. The evidenc e does not c rea te a materia l fac t issue on actual knowle dg e. The d i s sent identifies the dang erous condition as the cord having been laid without being

secur ed to the g round or the reta ining wall. Distinguishing case s discussed above, the dissent arg ues that the dang erous condition here did not develop over time or result from “ordina ry wea r and tear .”

___ S.W .3d. at ___. The dissent distinguishes the defe ct in City of Denton v. Paper from the defe ct here by asser

ting that “no evidence indicated that the City actua lly knew of subsequent settl ing or sinking” in Paper , wher eas the defe ct here did not develop over time. Id. at ___ (citing 376 S.W .3d
at 767). This, howeve r, presumes fac ts not in the rec ord. There is no evidenc e of how the cord was
2 6initially laid; in fac t, the only evidenc e of the cord’ s po s ition is from Professor Sampson when

rec ounting the injury he suffe red. There fore , we do not know how the cord was initially place d—if 4
UT even knew, it may have believed it to be secur e and not prese nting a tripping hazard. The dissent also discusses City of Dalla s v. T h o mp son , explaining that the City was only awa re that the

cover plate may become loose and protr ude, not tha t it was loose and protruding

. Id. at ___ (citing
210 S.W .3d at 603–04). Howeve r, the unsecur ed cove rplate in Thompson is no differe nt from the

unsecur ed extension cord here —while UT may have known the extension cord was capa ble of being pulled off of the ground, thi s amounts to const ru ct i ve knowledge , which is not the s ame as actua l knowledg e of a dang erous condition. “Ac tual knowledg e require s knowledg e that t he dang erous condition exis ted at the time of the acc ident, as opposed to constructiv e knowledg e which can be established by fac ts or infere nces that a dang erous condition could develop over time.” Stewart , 249
S.W .3d at 414–15.
Fr om the rec ord, the most we can conclude is either that UT had constructive knowledg e of

a dang erous condition or that UT had actua l knowledg e of a potential dang er. Neither satisfies the standard her e: “A ct ual knowledge rathe r t han constructive knowledge of t he dange rous conditi on is require d.” Tennison , 509 S.W .2d at 562. UT must have actua lly known of the dang erous position of the cord “at the time of the acc ident, not mere ly of the possibili ty that a d an ger o u s condition

S a m p s o n d e s c r i b e d t h e c o r d a s c o m i n g d o w n t h r o u g h t h e i v y o n t h e c o n c r e t e r e t a i n i n g w a l l , a t a n a n g l e a n d 4
u n s e c u r e d t o e i t h e r t h e r e t a i n i n g w a l l o r t h e g r o u n d

. B e c a u s e i t c r o s s e d t h e w a l k w a y a t a n a n g l e , i t c a u g h t S a m p s o n ’ s s h i n .
2 7c[ould] develop over time.” Haye s , 327 S.W .3d at 117 (alter ation in orig inal) (quoting Stewart , 249
S.W .3d at 413–14). The re is no evide nce tha t UT had such a ctual knowledg e. V. Conclusion Sampson’ s claim is proper ly char acte rized as a premises defe ct claim, and there is no evidenc e that UT had actua l knowledg e of the tripping hazard cre ated by the cord’ s position over the
reta ining wall and across t he si dewa lk. We there fore aff irm the j udg ment of t he court of appeals, which dismissed Sampson’s claim ag ainst UT for la ck of jurisdiction.

___________________________________ Paul W. Green J ustice
OPI NI ON DEL I VERED: J une 10, 2016

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