Beware of Boards in Government Facilities

600 Commerce always has its eye out for trends in litigation, and a new one may now be emerging: a plague of boards falling off of government walls onto innocent members of the public. A year ago, it was a whiteboard falling off the wall of Dallas Metrocare Services (held: no sovereign immunity because plaintiff pleaded a dangerous “condition” of property with allegation of an improperly secured whiteboard). This time, the Court of Appeals sustained the Texas Health and Human Services Commission’s sovereign immunity claim after a notice board fell on plaintiff Joseph McRae. The Court agreed with the Commission that McRae’s claim was one for premises defect, not for “negligent use or condition” of the notice board. Because it was in substance a premises defect claim, McRae was required to plead, and ultimately prove, that the Commission had actual knowledge of the condition that caused his injuries. But it was not clear that McRae would be unable to cure that defect in his pleading, so the Court remanded the matter to the trial court for further proceedings.

Texas Health & Human Servs. Comm’n v. McRae, No. 05-14-00894