Austin Attorneys Successfully Secure Appeals Win for Premises Defect Case

Austin attorneys Wade Crosnoe, Tasha Barnes, and Samantha McCoy successfully represented the Housing Authority of the City of Austin in an appeal that resulted in the Third Court of Appeals reversing the trial court’s decision and dismissing the case for lack of subject matter jurisdiction.

Premises Defect Allegations

This premises defect lawsuit arose out of a trip and fall incident at the Plaintiff’s residence on the back porch of her apartment unit outside. The Housing Authority owned and managed the property, operating under the umbrella of the U.S. Department of Housing and Urban Development. In 2017, the Housing Authority began an extensive renovation of the property to comply with the American Disabilities Act (ADA).

The Housing Authority hired contractors who performed the work and the Plaintiff’s unit was one of several undergoing these renovations. The Plaintiff acknowledged receiving several notification letters from HACA personnel advising of upcoming construction to her unit and followed instructions to remove items from her back porch in anticipation of construction. After completion of the first day of construction, Plaintiff noticed that a plastic tarp covering her belongings had blown off and as she approached the back porch to replace the tarp, she walked alongside a concrete pad that had been poured and tripped and fell in “loose dirt.” Plaintiff subsequently filed suit against the Housing Authority and other parties claiming personal injuries.

The Housing Authority filed its plea to the jurisdiction based on its sovereign immunity as a governmental entity, which the trial court denied. The issues for the Third Court of Appeals were: (1) whether the Housing Authority is a governmental entity entitled to sovereign immunity under the Texas Tort Claims Act; and (2) whether the Housing Authority’s sovereign immunity had been waived based on the facts of this case.

Sovereign Immunity for Governmental Entities

Sovereign immunity from suit defeats a court’s subject-matter jurisdiction. In a suit against a governmental unit, the plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. The Housing Authority is a municipal corporation and is entitled to sovereign immunity unless it is waived. The immunity waiver issue turns on whether Plaintiff has raised a fact issue on key elements of her premises defect claim. In a premises defect case, a plaintiff must prove that the defendant possessed –that is owned, occupied, or controlled—the premises where injury occurred to establish waiver of immunity. The Court of Appeals noted that the owner must have the right to control the means, method, or details of the independent contractor’s work to such an extent that the independent contractor cannot perform the work in its own way. Thus, the Plaintiff was required to establish this requisite control either by evidence of a contractual agreement that explicitly assigns the premises owner a right to control or by evidence that the premises owner actually exercised control over the independent contractor’s work.

The Plaintiff failed to show any contractual agreement that explicitly assigned the Housing Authority the right to control the means, method, or details of the independent contractor’s work, nor any provision in any of the existing contracts that provided the Housing Authority contractual control. Moreover, Plaintiff failed to show evidence that the Housing Authority actually exercised control over the independent contractor’s work. Instead, Plaintiff only relied upon evidence that the Housing Authority managed the premises generally and this is not sufficient to waive sovereign immunity.

The Third Court of Appeals agreed that the Housing Authority is a governmental entity entitled to sovereign immunity under the Texas Tort Claims Act (TTCA). The Court further concluded that Plaintiff failed to raise a fact issue about whether the Housing Authority exercised sufficient control over the contractor’s work on the premises to give rise to a duty of care. The trial court therefore lacks subject-matter jurisdiction over Plaintiff’s suit against the Housing Authority and the trial court’s order denying the Housing Authority’s plea to the jurisdiction is reversed and the case against the Housing Authority was dismissed.