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Click here for the full text of this decision FACTS:The appellee, Jerry Simmons, filed suit for personal injuries after he slipped and fell at a sewage treatment facility operated by the San Jacinto River Authority (SJRA). The fall occurred during the normal course of his employment as a driver for American Water Services Residuals ManagementInc. SJRA raised governmental immunity before the trial court and argued that it was immune from Simmons’ suit under certain provisions of the Texas Tort Claims Act, under which SJRA undisputedly was a governmental unit. SJRA made an interlocutory appeal from the trial court’s denial of its plea to the jurisdiction. HOLDING:The court reverses the trial court’s order denying SJRA’s plea to the jurisdiction and renders judgment that Simmons’ suit be dismissed with prejudice. In a suit against a governmental unit, a plaintiff must affirmatively demonstrate the court’s jurisdiction by alleging a valid waiver of immunity. The court’s examination of Simmons’ amended petition indicates he provided no citation to any provision of the Texas Tort Claims Act for jurisdictional support. Simmons first alleged that he was severely injured at SJRA’s facility because a belt press and a container created the harm proximately causing his injury and, therefore, that his injury was caused by a condition or use of tangible personal property. But Simmons’ reply brief appeared to switch his predominant theory of waiver of immunity to “premises liability.” The court addresses both his waiver by use-or-misuse-of-tangible-personal-property theory, and his waiver by premises defect theory. The Texas Tort Claims Act provides for a limited waiver of immunity for personal injury caused by a governmental employee’s negligent use or misuse of tangible personal property under 101.021(2), but only when the governmental unit is itself the user. The court finds that the only record-evidence alleged to support Simmons’ pleadings as to how the excessive biosolid material came to be present in the area where he fell is his deposition testimony, and that testimony merely describes a generalized scenario, either previously witnessed by Simmons or reported to him in some manner, in which a roll-off container is filled with biosolid material by SJRA employees. At no point in his deposition does Simmons indicate he witnessed or had personal knowledge that SJRA employees did indeed cause the roll-off container to overflow with the specific biosolid material in which he slipped and fell. The court holds that even if the evidence sufficiently indicated the excess biosolid material present on the morning of the accident was indeed the result of the belt press having overfilled the roll-off container, these items of “tangible personal property,” (and/or “motor-driven equipment”) were not responsible for Simmons’ injuries if they did no more than furnish the condition that made his injury possible. The court holds that the record-evidence raises nothing more than an inference that the belt-press and roll-off container furnished the condition (presence of excess biosolid material) that made Simmons’ injuries possible. The court also holds that, under his use-or-misuse-of-tangible-personal-property theory of waiver, Simmons has failed to affirmatively demonstrate the trial court’s jurisdiction. A governmental unit may be subject to suit for personal injury or death caused by a condition of real property if the state would be liable if it were a private person. If a claim arises from a premises defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises. The court holds that Simmons’ attempt to turn his status into a “fact issue” is misplaced, as it ignores both the plain language of the statute and established precedent. Simmons uses interchangeably the terms “premises defect” and “special defect.” Whether a condition is a premise defect or a special defect is a function of the “duty” element in a negligence action requiring statutory interpretation and, therefore, is an issue of law for the court to decide. From the entirety of the deposition excerpt provided, the court declines to find that Simmons’ encounter with an excess amount of biosolid material on the morning in question presented “an unexpected and unusual danger,” or was a condition of “unusual quality outside the ordinary course of events” for him, based upon his four-year experience on the job. Therefore, the court holds that the duty SJRA owed Simmons upon a claim of ordinary premises defect is that duty which an ordinary person owes to a licensee on private property. The court finds, from Simmons testimony, that he was fully aware of the slippery conditions in which he admittedly worked two to three times a day, three to five days a week, for four years. By his own admission, the possibility of an excessively slippery work-area on the day of the accident was well-known to Simmons, or could have been inferred by him from facts within his then-present or past knowledge. The court concludes from Simmons’ testimony that he knew of the potential slip hazard which established that he was aware of the hazardous condition on the date of the accident. The court holds that Simmons cannot sustain an action under the Tort Claims Act for injuries which resulted from a condition of which he was aware. The court finds that Simmons has failed to affirmatively demonstrate the trial court’s subject matter jurisdiction over the causes of action alleged. Neither the pleadings nor the relevant evidence submitted was sufficient to prove waiver of governmental immunity under the provisions of the Texas Tort Claims Act. Therefore, the court holds that the trial court erred in failing to grant SJRA’s plea to the jurisdiction. As the record reflects Simmons amended his original petition following SJRA’s filing of its plea to the jurisdiction, Simmons was given adequate opportunity to remedy any jurisdictional defects present in its original pleadings, or submit evidence sufficient to show his lack of knowledge. OPINION:McKeithen, C.J.; McKeithen, C.J., Gaultney and Horton, JJ.

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