### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00323- CV

Roger Buf

ler and San dy Bu fl er, A ppellan ts

v. Apeck Construct ion, L LC, Appellee

F ROM TH E DISTRI CT COURT O F CO KE COUNTY , 51S T JUDICI AL DISTRICT NO. CV12- 0444 4, H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

NO. 03-14-00383- CV

Roger Buf

ler and San dy Bu fl er, A ppellan ts

v. Texas Depart m ent of Transp ortat ion, App ellee

F ROM TH E DISTRI CT COURT O F CO KE COUNTY , 51S T JUDICI AL DISTRICT NO. CV12- 0444 4, H ONO RAB LE B ARB ARA L. WALTH ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellants Roge r Buf

ler and S an d y Buf

ler, husband and wife, appea l from the judgme nt of the district court of Coke County in a premises-liability suit. The district court sustained the plea to the jurisdictio n filed by appellee Texas Depa rtment of Transpor

tation and g rante d appellee Apec k Construction, L .L .C.’s motion for summary judgme nt. We will aff irm the judgme nt.Roge r B ufler w as i njured in the l ate a fternoon of Dec ember

18, 2011, when he fell

on the sidewalk of the Depa rtment’s rest stop loc ated on Hig hway 87 in Coke County

. Buf ler was walking to the lavatory when he fell. I t was drizz ling rain and the sidewalk was wet. Buf ler slipped and fell when he stepped on a smooth part of the sidewalk wet from the rain. The sidewalk consisted of poured concr ete slabs intersper sed with pref abric ated smooth concr ete slabs that contained starshaped me dallions made of g rave l.

Buf ler filed suit a g ainst the Depa rtment and Apec k, which was under contra ct with the Depa rtment to provide janitorial ser vices for the re st-stop area
.
Claim against the Departm ent Buf ler maintained that the “var y ing surfa ces” of the sidewalk constituted a premises defe ct. He claimed that the wet surfa ce of t h e concr ete was not the “main fac tor” causing him to slip and fall. Buf

ler cast his case ag ainst the Depa rtment as one coming within the t er m s o f the Texas Tort Claims Act waiving sovere ign immunit y for claims involving p ersona l injury cause d by a condition or use of real property if the gover nmental uni t would, wer e i t a p ri v at e person, be liable to the claimant under Texas law. See Tex. Civ. Prac. & Rem. Code § 101.021(a)

. He asser ted that the Depa

rt m en t o we d h im the duty that a private person owes a licensee on private proper ty
. See id. § 101.022(a)

.

The Depa rtment filed a plea to the jurisdiction asser ting sovere ign immunit y . To invoke waiver of the sovere ign immunit y provi s i o n s of the Texas Tort Claims Act, Buf ler, as a licensee , had to plead and prove, am o n g o ther elements, that a condition of t he property posed an

unrea sonable risk of harm to him. See State v. W illiams , 940 S.W .2d 583, 584 (Tex. 1996) (noting

2elements of premises-liability claim wher e plaintiff is licensee ). Buf ler sug g ests that the “condition of the vary

ing surfa ces [of concr ete] cre ated an unrea sonably dang erous condition.” Buf ler claimed that “the wet slick surfac e of c erta in portions of the conc rete sidewalk posed an unreasonable risk of harm, in part beca

use the use of this ty

pe of [sm ooth] concr ete on an outdoor side wa l k step is neg lige nt in and of itself and [ is] particula rly defe ctive when wet.” Buf ler, him self a long- time veter an in the construction trade , testified by deposition that “any body in the construction business should kn o w [t hat] smooth concr ete [used] on an exterior [surface ] is a no-no.” Cruz Rubio, Buf ler’s e x pert witness, opined on deposition that sm ooth concr ete should not be used f or outside projec ts beca

use it can be come slick whe n wet. The involved sidewalk was constructe d, as desig ned, betwee n 2 0 0 1 an d 2002 as a part of the orig inal building of the rest-stop are a. Nothing about the sidewalk has been chang ed since its inception. The “var y ing surfa ce” sidewalk is in use in at least one other of the Depa rtment’s rest stops. Buf

ler’s complaint conce rning the “var y ing surfa ces” of the sidewalk speaks to the desig n-discre tion immunit y found in section 101.056 of the Act. By that provision, the S t ate prese rves its immunit y for an act “if the law leave s the p er formanc e or nonperf ormanc e of the act to the discretion of the g overnme ntal unit.” Id. § 101.056(2). Acc ording ly , if the State’s act is discretionar

y , it does not waive its immunit y . An ac t i s d i scre tionary if it require s the ex erc ise of judgme nt and the law does not mandate the perf ormanc e of the act with such prec ision that nothing is left to discretion or judgme nt. “De sign of any public work, such as a roadw ay , is a discretionar y function involving many policy decisions and the g overnme ntal entity responsible may not be sued for such decisions.” State v. Rodriguez , 985 S.W .2d 83, 85 (Tex. 1999), (per curia m), overruled on 3other grounds by De nton Cty. v. Beynon , 283 S.W .3d 329, 331 n.11 (Tex. 2009); see Tex as Dep’t

of Transp. v. Perches , 388 S.W .3d 652, 655 (Tex. 2012) (quoting Id. ).

Also contra

ry to Buf ler’s position, neither does a wet “v ar y i n g surfa ce” sidewalk create an unrea sonably dang erous premises condition. The Supreme Court in M.O. Dent a l L a b

v. Rape considere d whether a conditio n o ccurring as the result of natura l conditions constituted a premises de fec t, i.e., a condition posing an “unr easona ble” r isk of harm:

To preva il in a premises liability case, an invitee [l icense e] must plead and prove, among other elements, that a condition on the premises posed an unrea sonable risk of harm to the invitee [l icense e]. We held in both Brownsville Navigation District and 1 Johnson County that ordinary mud or dirt in its natura l state ca n an d o ft en does 2 form a condition posing a risk of harm, but not an “unre asonable ” risk of harm. We further observe d in Johnson County that holding a landowner liable for “[t] he natura l state of dirt” would cause the landowner to “be an insurer ag ainst al l i n j ury to a tenant’s lessees.” Although the court of appea ls c orre ctly pointed out that neither Brownsville Navigation District nor Johnson C ounty specific ally involved the acc umulation of mud on a man-made surfa ce, we find this distinction immateri al. Ordinar y mud that acc umulates natura l l y o n an outdoor concr ete slab without the assistance or involvement of unnatura l contac t is, in normal circ umstances, nothing more than dirt in its natura l state and, there fore , is n o t a condition posing an unrea sonable risk of ha

rm.

139 S.W .3d 671, 675–76 (Tex. 2004) (footnotes omitted). Rain o n a s i d ew alk can and often does form a condition posing a risk of harm, but not an “unre asonable ” risk of harm. Id. at 675. The holding a nd rea soning in M.O. De ntal Lab control the disposition of Bufle r’s c laim.

Brownsville Navigation Dist . v. Izaguirre , 829 S.W .2d 159, 160 (Tex. 1992). 1 Johnson County Sheriff’s Posse, Inc . v. Endsley , 926 S.W .2d 284, 287 (Tex. 1996). 2 4Claim s against Apeck Buf ler also asser

ted a premises-liability claim ag ainst Apec k, shaping his pleading so

as to cast himself as an invitee on Apec k’s premises (the sidewalk). Al t h oug h not case deter minative here , the summary -judg ment proof, previously rec ited, demonstrates that Buf ler was not a n invitee, as claimed, but r ather a licensee

. Moreove r, in his response to A peck’ s motion for 3 summary judgme nt, Bufle r admits his status as a license e. Apec k contra cted with the Depa rtment to provide janitorial service s to the rest-stop building and to clea

r litter and trash from the rest-stop g rounds. Apec k also had cer tain contra ctual responsibility reg arding the sidewalks: it was to repla ce the sidewalk if it wer e cra cked or broken; it was to apply salt to the sidewalk if it wer e iced; and it was to remove from the sidewalk litter and debris, including chew ing g um, oil slicks, and other things that might jeopar dize safe ty
. Apec k was not contrac tually

obliga ted to remove water

from the sidew alk while it was ra ining. Buf ler pleade d, among other things, that the conditions of the smooth, wet concr ete sidewalk a t the rest stop prese nted an unr easona ble risk of ha

rm. Apec k filed a traditional motion for summary judgme nt, see Tex. R. Civ. P. 1 6 6 a( a– b ), as well as a no-evide nce motion for summary judgme nt, see id. 166a(i), claiming , among other things, that assuming arg uendo that it owe d a duty to B ufler as a landowner or quasilandowner , Buf

ler fa iled to show that a condition of the pr operty was unre asonably

dang erous.

A l icense e enters l and with the ex press o r i m p l i ed consent of the owner, but does so for 3 his own convenie nce or on business for someone other than the owner . W eave r v. KFC Mgmt., Inc. , 750 S.W .2d 24, 26 (Tex. App.—Dallas 1988, wr it denied). 5I n his brief, Buf ler arg ues that cer

tain portions of the sidewalk posed an unrea sonable risk of harm when wet, partly beca use use of t he sm ooth ty

pe of con cr et e on an outdoor sidewalk

was “neg lige nt in and of itself.” As we understand, Buf ler’s primary compl aint on appea l is that the subject si d ew alk was unrea sonably dang erous beca use of the makeup of the concr ete and not

s o much beca

use of the wet condition of the sidewalk. Buf ler’s arg ument overlooks th e fa ct t h at Apec k was in no way involved in the desig n or construction of the concr ete sidewalk. Also, Apec k contra cted its service s to the Depa rtment many y ear s afte r the sidewalks we re d es igne d and constructe d. Acc ording ly , Apec k has no liability to Buf ler stemming from decisions made by others

conce rning the kind of conc rete used in the sidewa lks.

W e have previously deter mined that the wet sidewalk here involved was not an

unrea sonably

dang erous c ondition. The judg ment is affirme d.

__________________________________________ Bob E. Shannon, Justice Be fore J ustices Pury ear , Bour land, and Shannon* Affir med Filed: June 21, 2016

* Be fore Bob E

. S h an n on, Chief J ustice (retired) , Third C ourt of Appeals, sitti ng by assig nment. See Tex. Gov’t Code § 74.003(b).

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