Richard Lee Fuller v. T.D.C.J.-I.D., et al--Appeal from 349th District Court of Anderson County

NO. 12-04-00024-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

RICHARD LEE FULLER, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

TEXAS DEPARTMENT OF

CRIMINAL JUSTICE INSTITUTIONAL

DIVISION, ET AL., ANDERSON COUNTY, TEXAS

APPELLEES

MEMORANDUM OPINION

Richard Lee Fuller, an inmate proceeding pro se, appeals the trial court s dismissal with prejudice of his lawsuit against the Texas Department of Criminal Justice-Institutional Division ( TDCJ ) and certain unnamed employees thereof. Fuller raises two issues on appeal. We reverse and remand.

Background

On December 12, 2003, Fuller filed suit against TDCJ and certain of its unnamed employees. // In his original petition, Fuller alleged that on September 2, 2003, a TDCJ officer instructed Fuller to paint a prison cell. Fuller alleged that he asked the officer for a step ladder so that he could paint the ceiling, but that the officer handed Fuller a milk crate and told him to stand on it, the toilet, and the prison cell bunk to reach the ceiling. Fuller further alleged that as he was painting, while standing on the toilet and the milk crate, he put his hand on a light fixture to brace himself. The light fixture, which according to Fuller was not properly resecured by the light crew who was working on the cell earlier, flipped open. As a result, Fuller claims that he lost his balance, slipped off the milk crate, and landed, causing him to sustain extremely painful injuries. Fuller further claimed that TDCJ is liable for its employees actions dealing with tangible real property, the light fixture. Fuller also alleges that the maintenance officer was grossly negligent for his failure to assure that the light fixture was properly secured upon the completion of the work in the cell, or, alternatively, for his failure to warn of the unsafe condition of the light fixture by red tagging the cell. In his petition, Fuller sought compensatory, nominal, and punitive damages. //

On December 12, 2003, without conducting a hearing, the trial court found that Fuller s suit was frivolous or malicious and dismissed it with prejudice pursuant to Texas Civil Practice and Remedies Code, section 14.003. This appeal followed.

Dismissal Pursuant to Texas Civil Practice and Remedies Code Chapter 14

In his first issue, Fuller argues that the trial court erred in dismissing his suit as frivolous or malicious. We review the trial court s dismissal of an in forma pauperis suit under an abuse of discretion standard. Hickson v. Moya, 926 S.W.2d 397, 398 (Tex. App. Waco 1996, no writ). A trial court abuses its discretion if it acts arbitrarily, capriciously, and without reference to any guiding rules or principles. Lentworth v. Trahan, 981 S.W.2d 720, 722 (Tex. App. Houston [1st Dist.] 1998, no pet.). We will affirm a dismissal if it was proper under any legal theory. Johnson v. Lynaugh, 796 S.W.2d 705, 706-07 (Tex. 1990); Birdo v. Ament, 814 S.W.2d 808, 810 (Tex. App. Waco 1991, writ denied). The trial courts are given broad discretion to determine whether a case should be dismissed because (1) prisoners have a strong incentive to litigate; (2) the government bears the cost of an in forma pauperis suit; (3) sanctions are not effective; and (4) the dismissal of unmeritorious claims accrues to the benefit of state officials, courts, and meritorious claimants. See Montana v. Patterson, 894 S.W.2d 812, 814-15 (Tex. App. Tyler 1994, no writ).

However, the trial court is limited to determining whether the claim has an arguable basis in law or fact. See Smith v. Tex. Dep t of Criminal Justice Inst l Div., 33 S.W.3d 338, 340 (Tex. App. Texarkana 2000, pet. denied). When the trial court dismisses a claim without conducting a fact hearing, we are limited to reviewing whether the claim had an arguable basis in law. Id.; see also Sawyer v. Tex. Dep t of Criminal Justice Inst l Div., 983 S.W.2d 310, 311 (Tex. App. Houston [1st Dist.] 1998, pet. denied).

Premises Liability

To determine if a condition amounts to a premises defect, the courts look to the ordinary meaning of the words. See Cobb v. Tex. Dep t of Criminal Justice Inst l Div., 965 S.W.2d 59, 62 (Tex. App. Houston [1st Dist.] 1998, no pet.). Premises is defined as a building, its parts, grounds, and appurtenances. Id. A defect is defined as an imperfection, shortcoming, or want of something necessary for completion. Id. We conclude that the condition alleged by Fuller constitutes a premises defect. See, e.g., id. (citing University of Texas Med. Branch v. Davidson, 882 S.W.2d 83, 85 86 (Tex. App. Houston [14th Dist.] 1994, no writ) (defective elevator, while a separate piece of equipment, was held an integral part of the building, thus a premise defect); Billstrom v. Mem l Med. Ctr., 598 S.W.2d 642, 646 47 (Tex. Civ. App. Corpus Christi 1980, no writ) (a defective window screen, as an appurtenance to the building, held to be a premise defect)).

A governmental unit in the state is liable for personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon 2005). 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. See Tex. Civ. Prac. & Rem. Code Ann. 101.022(a) (Vernon 2005). Where the plaintiff is an invitee, a defendant is liable if it is proven that (1) the defendant was the possessor of the premises, (2) a condition on the premises posed an unreasonable risk of harm, (3) the defendant knew or reasonably should have known of the danger, (4) the defendant breached its duty of ordinary care by both (a) failing to adequately warn the plaintiff of the condition, and (b) failing to make the condition reasonably safe, and (5) the defendant s breach proximately caused the plaintiff s injuries. See CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). A defendant is a possessor if it exercises control over the premises. See Thornhill v. Ronnie s I-45 Truck Stop, 944 S.W.2d 780, 788 (Tex. App. Beaumont 1997, writ dism d). TDCJ is, by statute, the possessor of the property at issue in the instant case. See Tex. Gov t Code Ann. 493.004 (Vernon 2004).

In the case at hand, Fuller alleged a TDCJ officer instructed Fuller to paint a prison cell. Fuller alleged that he asked the officer for a step ladder so that he could paint the ceiling, but that the officer handed Fuller a milk crate and told him to stand on it, the toilet, and the prison cell bunk to reach the ceiling. Fuller further alleged that as he was painting, while standing on the toilet and the milk crate, he put his hand on a light fixture to brace himself. The light fixture, which according to Fuller was not properly resecured by the light crew who was working on the cell earlier, flipped open. As a result, Fuller claims that he lost his balance, slipped off the milk crate, and landed causing him to sustain extremely painful injuries. Fuller further claimed that TDCJ is liable for its employees actions dealing with tangible real property, the light fixture. Fuller also alleges that the maintenance officer was grossly negligent for his failure to assure that the light fixture was properly secured upon the completion of the work in the cell, or, alternatively, for his failure to warn of the unsafe condition of the light fixture by red tagging the cell. In his petition, Fuller sought compensatory, nominal, and punitive damages.

We conclude that Fuller s allegations as set forth above, construed liberally in the interest of justice, // provide reasonable notice of a claim for premises defect. Therefore, we hold that the trial court improperly dismissed Fuller s suit as frivolous or malicious. Fuller s first issue is sustained. //

Disposition

Having sustained Fuller s first issue, we reverse the trial court s order dismissing Fuller s lawsuit and remand the cause for further proceedings consistent with this opinion.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 24, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)