LIT immune from trip-and-fall suit, appeals court rules

David Yates Apr. 19, 2011, 11:14am

Texas justices seated on the Ninth Court of Appeals recently determined a local judge did not err in granting the Lamar Institute of Technology immunity in a trip-and-fall lawsuit.

In February 2008, plaintiff Marilyn Stern-Duhon sued LIT after tripping over an electrical junction during a free dental exam at the school's dental hygiene training clinic.

Last April, Judge Donald Floyd, 172nd District Court, ruled that LIT had immunity from the suit, dismissing the case with prejudice.

Stern-Duhon appealed the decision, arguing the Judge Floyd erred and asking that the case be remanded for further proceedings, court records show.

On Thursday, April 14, justices found that LIT, a state funded institution, is protected by sovereign immunity and had not waived its immunity.

According to the original complaint, Stern-Duhon tripped over an electrical-injunction box when she dismounted from a dental chair while having some free dental work done by an LIT dental hygiene student.

Stern-Duhon claims she was forced to exit the chair from the wrong side because of a swivel tray; on appeal she argued that LIT waived its immunity due to the negligent design of the chair, court papers say.

She left the dental chair during an examination in order to go to the restroom.

Stern-Duhon further alleged that LIT's negligence caused her injuries by painting the electrical box with a color resembling the floor's color, the suit states.

"A claim of negligent implementation of policy does not establish a waiver of immunity if the injury does not arise from the use or condition of tangible personal property," states the Ninth Court's opinion, authored by Justice David Gaultney.

"Here, the negligent implementation of policy claim does not establish a waiver of immunity for use of the swivel arm and tray, because the pleadings and evidence relevant to the jurisdictional issues show that the fall was the result of appellant's tripping over the junction box rather than the use or implementation of the swivel arm and tray table.

"We overrule appellant's issue and affirm the trial court's order."

Stern-Duhon is represented by The Hudgins Law Firm of Houston.

LIT is represented by Assistant Attorney General Jason Warner.

Jefferson County case No. E181-362
Appeals case No. 09-10-00191-CV

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