
    TEXAS PARKS AND WILDLIFE DEPARTMENT, Appellant, v. Ernest Ray DAVIS, Jr., Appellee.
    No. 03-97-00805-CV.
    Court of Appeals of Texas, Austin.
    March 11, 1999.
    
      Nichelle A. Turner, Asst. Atty. Gen., Tort Litigation Division, Austin, for Appellant.
    Terry Weldon, Law Offices of Terry Weldon, Austin, for Appellee.
    Before Chief Justice ABOUSSIE, Justices B.A SMITH and POWERS. 
    
    
      
       Before John E. Powers, Senior Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov’t Code Ann. § 74.003(b) (West 1998).
    
   ON MOTION FOR REHEARING

MARILYN ABOUSSIE, Chief Justice.

The opinion and judgment filed herein on December 10, 1998, are withdrawn, and the following opinion is issued in lieu of the original one.

Appellee, Ernest Ray Davis, Jr., sued appellant, Texas Parks and Wildlife Department (the “Department”), for personal injuries he sustained when a concrete bench collapsed under him at Inks Lake State Park, which is operated by the Department. After the jury returned a verdict in favor of Davis, the trial court rendered judgment for Davis and sanctioned the Department for its alleged failure to negotiate in good faith during court ordered mediation. The Department appeals the trial court judgment on four grounds. We will affirm the judgment rendered on the jury verdict as to liability and damages as well as that part of the sanction imposing costs of mediation; we will reverse the part of the sanction awarding attorney’s fees.

BACKGROUND

On September 6, 1992, Davis and his family went to Inks Lake State Park (“Inks Lake”) to celebrate Labor Day. Davis sat on a concrete picnic bench at the family’s assigned campsite intermittently throughout the day. At approximately 3:00 p.m. the bench collapsed under Davis without warning, injuring him.

Davis sued the Department, an agency of the State of Texas, pursuant to the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 1997) (“Tort Claims Act,” “Act”). The parties proceeded to a jury trial. After Davis presented his case, the Department moved for a directed verdict, claiming that it was entitled to governmental immunity for two reasons. First, it argued that the Tort Claims Act did not apply in Davis’s case because the bench in question was built before January 1, 1970, and the Act “does not apply to a claim based on an act or omission that occurred before January 1, 1970.” Tort Claims Act § 101.061. Next, the Department argued that the decision not to remove the bench was discretionary and was therefore protected by section 101.056 of the Act, which exempts discretionary governmental decisions from liability. See id. § 101.056.

The trial court overruled the motion and submitted the case to the jury. The jury returned a verdict in favor of Davis, and the trial court rendered judgment for Davis. The trial court also sanctioned the Department for its alleged failure to engage in court ordered mediation in good faith by awarding Davis $250.00 as reimbursement for his mediation fee and $1,200.00 for attorney’s fees incurred in connection with the mediation. The Department filed a Motion for Judgment Notwithstanding the Verdict and For New Trial on substantially the same grounds stated above. The Department further alleged that the trial court erred in the jury charge because it failed to submit a question establishing Davis’s status as either an invitee or a licensee at the time of the accident. Instead, the negligence question in the jury charge assumed Davis’s status as an invitee and imposed a higher duty of care on the Department. The trial court overruled the Department’s motion.

The Department raises four issues on appeal. It reasserts its right to immunity in the first two issues, and it complains that the trial court erred by denying its requested question on Davis’s status in the third issue. In its fourth issue, it urges this Court to reverse the trial court’s monetary sanction against the Department.

DISCUSSION

Governmental Immunity

A Texas state agency, such as the Department, may not be sued for the torts of its agents in the absence of a constitutional or statutory provision that waives the State’s governmental immunity for the alleged wrongful act. See Lowe v. Texas Tech Univ., 540 S.W.2d 297, 298 (Tex.1976). Davis bases his cause of action against the Department on the provision in the Texas Tort Claims Act waiving immunity for “personal injury or death so caused by a condition or use of personal or real property if the government unit would, were it a private person, be liable to the claimant according to Texas law.” Tort Claims Act § 101.021(2).

The Department contends that because the parties stipulated that the structure that injured Davis was built before January 1, 1970, and because Davis failed to satisfy his burden to prove the Department committed an act or omission after that date, the Tort Claims Act does not apply and the Department is entitled to judgment as a matter of law. See id. § 101.061. The construction of a statute is a question of law for the court, and we consider the issue de novo. See City of Dallas v. Cornerstone Bank, 879 S.W.2d 264, 269 (Tex.App.—Dallas 1994, no writ).

We disagree with the Department’s position. In Maxwell v. Texas Department of Transportation, 880 S.W.2d 461 (Tex.App.—Austin 1994, writ denied), this Court held that the State is entitled to immunity if the State can prove that the structure “was completed before 1970 and has remained in the same condition since that time.” Maxwell, 880 S.W.2d at 465 (emphasis added). The evidence presented at trial established that in December 1991 the legal counsel for the Department wrote a memo to the Chief of Park Operations, recommending an inspection of all the concrete benches in the park system and the removal of any unsafe benches. This memo was prompted by a jury verdict in favor of a park patron who was injured when a bench collapsed under her at the Lake Corpus Christi State Recreation Area. Some time after this memo circulated, the park manager at Inks Lake instructed the assistant park manager to have someone inspect all of the concrete picnic table and bench combinations at Inks Lake for signs of deterioration. In April 1992, the assistant manager at Inks Lake assigned the inspection to an employee. The employee developed a code to describe the condition of each picnic table at the numbered campsites; two stars meant the table needed to be replaced first, one star meant it needed to be replaced, and a question mark and a star meant it needed to be replaced some day. The picnic table bench that injured Davis was assigned one star. The employee also wrote “one bench top and legs cracked (bad)” to describe the condition of the bench. She turned in her report to the assistant manager on April 23, 1992, who forwarded it to the Operations and Maintenance Specialist Supervisor for the region in which Inks Lake is located. The Department removed the picnic table and bench combination after it collapsed and injured Davis on September 6, 1992.

The April 1992 report describing the condition of the bench makes clear that, at the time the bench collapsed, it was not in the same condition as when it was constructed. The report also supports Davis’s claim that the Department had actual knowledge of the changed condition and failed to remove the bench or warn the public of the danger. Under section 101.022(a) of the Tort Claims Act, the State owes visitors who pay a fee to use its facilities the same duty a private owner owes an invitee. See Tort Claims Act § 101.022(a). A landowner owes an invitee the duty to use reasonable care to reduce or eliminate a condition posing an unreasonable risk of harm about which the landowner knew or should have known. See State Dep’t of Highways v. Payne, 838 S.W.2d 235, 237 (Tex.1992). Assuming Davis paid the entry fee customarily charged at Inks Lake, the Department owed him the duty owed to an invitee. The jury found that the Department breached that duty, and that the breach proximately caused Davis’s injuries.

The Department’s reliance on cases such as The University of Texas-Pan American v. Valdez, 869 S.W.2d 446 (Tex.App.—Corpus Christi 1993, writ denied) is misplaced. In Valdez, Valdez alleged that the University was negligent in failing to correct or warn of the defective placement of an outfield fence surrounding a baseball field. See id. at 447. There was no allegation that the condition of the fence had changed in any way since its original construction, or that a changed condition contributed to Valdez’s injury. The court rejected Valdez’s claim that the act or omission occurred on the date of his injury, holding instead that the act or occurrence giving rise to Valdez’s claim was the actual construction and placement of the baseball field and the outfield fence. See id. at 449.

In this ease, Davis has not alleged a design defect and has never complained of the original construction or location of the bench, nor has the State contended that the bench was constructed or installed in a badly cracked condition that has remained unchanged. Therefore, the pre-January 1, 1970 construction is not the act or occurrence giving rise to Davis’s cause of action. Rather, Davis complains that the Department had actual knowledge that the bench was not in the same condition as when it was constructed and the Department failed to reduce or eliminate the dangerous changed condition. We hold that the Department’s failure to reduce or eliminate the dangerous condition posed by the cracks constitutes an act or omission that subjects the Department to tort liability under section 101.021(2) of the Tort Claims Act. The Department’s first issue is overruled.

In its second issue, the Department contends that even if it committed an act or omission that would bring it within the purview of the statute, the decision not to remove the bench was a discretionary act protected by the Tort Claims Act. See Tort Claims Act § 101.056(2) (excepting from liability the performance or nonperformance of an act committed to agency discretion). It is well established that the discretionary act exemption in section 101.056(2) applies only to governmental policy decisions. See State v. Terrell, 588 S.W.2d 784, 787-88 (Tex.1979); Simons v. City of Austin, 921 S.W.2d 524, 528 (Tex.App.—Austin 1996, writ denied). Davis asserts that the decision not to remove the bench was not a protected policy decision, but rather an occupational or professional decision. We agree.

In Maxwell, this Court held that “[ajctions involving occupational or professional discretion are devoid of policy implications.” Maxwell, 880 S.W.2d at 464. For example, a physician at a veterans’ hospital exercises his or her professional discretion in deciding whether to operate on a patient. See Christilles v. Southwest Tex. State Univ., 639 S.W.2d 38, 42 (Tex.App.—Austin 1982, writ ref'd n.r.e.) (quoting 3 Kenneth C. Davis, Administrative Law Treatise § 25.08, at 403-04 (Supp.1982)). The State is hable for its employees’ negligent exercise of professional discretion. See Christilles, 639 S.W.2d at 42. We hold that the assistant manager at Inks Lake exercised his professional discretion when he decided not to assign an employee the task of removing the deteriorating bench that eventually injured Davis. The Department’s second issue is overruled.

Davis’s status as a licensee or an invitee

In its third issue, the Department complains that the trial court erred when it denied the Department’s request for the submission of a jury question regarding Davis’s payment of the entry fee to Inks Lake. Under section 101.022(a) of the Tort Claims Act, a claimant in a premises defect case is treated as a licensee “unless the claimant pays for the use of the premises.” Tort Claims Act § 101.022(a). One who pays for entry becomes an invitee. The licensee must prove that the landowner had actual knowledge of the condition and that the licensee had no knowledge of the condition. See Payne, 838 S.W.2d at 237. An invitee need only show that the landowner should have known of the condition; the invitee’s own knowledge is not an issue. See id.

The trial court must submit questions, instructions, and definitions that are raised by the pleadings and evidence. See Tex.R. Civ. P. 278; see also Artripe v. Hughes, 857 S.W.2d 82, 85 (Tex.App.—Corpus Christi 1993, writ denied) (“Only disputed questions of material fact are to be submitted to the factfinder for resolution.”). The Department contends that the evidence raised a fact issue as to payment, so the issue should have been determined by the jury. Furthermore, the Department argues that if the jury found against Davis on the issue of payment, the licensee standard would have been used, and the evidence establishing that Davis worked for the Department and removed deteriorating concrete picnic tables at another park would have shown Davis had knowledge of the condition; thus, the Department might have avoided liability. The trial court, however, determined that the Department presented no evidence of nonpayment and submitted the charge to the jury with instructions defining the standard of care owed to an invitee.

We agree with the trial court’s determination. A visitor to the park is required to pay an admission fee. The Department introduced no evidence that Davis did not pay the entry fee at Inks Lake. It only presented evidence that there was an unwritten policy allowing Department employees complimentary entrance into its parks but that no records were kept to determine whether a person paid for entrance to the park for day visits. Davis was a seasonal employee for the Department at the time of the accident. He testified that he knew he did not have to pay for entry into the park where he was employed, but that he did not know that he did not have to pay to get into other parks. The Department attempted to establish that Davis had knowledge of the unwritten policy through his work as a reservations clerk; however, it established only that Davis worked in that position after his accident.

Although in his deposition Davis stated that he did not remember whether he paid the entry fee, Davis affirmatively testified at trial that he paid for entry into Inks Lake. Davis’s wife also testified at trial that she remembered that Davis paid for entry because when she asked Davis if he got in for free, he said that he did not because he did not identify himself as a park employee. The Department contends that Davis’s lapse of memory at his deposition and his wife’s question create a fact issue. We disagree. Davis’s testimony that at the time of the deposition he did not recall whether he paid the fee is not in conflict with his later trial testimony that he did pay the fee; therefore, no fact issue is raised. Furthermore, even if Davis’s response to his wife’s question might create an inference that Davis thought he could enter the park without paying, one cannot reasonably draw the second inference that Davis therefore did not pay when both Davis and his wife affirmatively testified that he did pay. “[A] proponent cannot establish a critical fact by ‘piling inference upon inference.’ ” William Powers, Jr. & Jack Ratliff, Another Look at “No Evidence” and “Insufficient Evidence,” 69 Tex. L.Rev. 515, 521 (1991). Because we cannot say that the trial court erred by not submitting a question as to Davis’s status, the Department’s third issue is overruled.

Sanctions

In its final issue, the Department contends that the trial court erred in sanctioning the Department for its alleged failure to negotiate in good faith during court ordered mediation. The trial court awarded Davis $250.00 as reimbursement for his mediation fee and $1,200.00 for attorney’s fees incurred in connection with the mediation.

Chapter 154 of the Texas Civil Practice and Remedies Code establishes procedures for a trial court, on its own motion, to refer a dispute to an alternative dispute resolution (“ADR”) procedure. See Tex. Civ. Prac. & Rem.Code § 154.021(a) (West 1997). While a court may compel parties to participate in mediation, it cannot compel the parties to negotiate in good faith or settle their dispute. See Decker v. Lindsay, 824 S.W.2d 247, 250-51 (Tex.App.—Houston [1st Dist.] 1992, orig. proceeding). Furthermore, section 154.073 requires that communications and records made in an ADR procedure remain confidential; consequently, the manner in which the participants negotiate should not be disclosed to the trial court. See Tex. Civ. Prac. & Rem.Code § 154.073 (West 1997).

We decline to followTexas Department of Transportation v. Pirtle, 977 S.W.2d 657 (Tex.App.—Fort Worth 1998, pet. denied), cited by Davis, because the court of appeals in Pirtle based its opinion on facts not present in this case. In Pirtle, the Texas Department of Transportation did not file a written objection within ten days after the trial court ordered the parties into ADR. See id. at 658. Instead, the Department of Transportation attended the mediation but refused to participate. See id. The court of appeals determined that it was not an abuse of discretion for a trial court to assess costs against a party when that party “does not file a written objection to a court’s order to mediate, but nevertheless refuses to mediate in good faith.” Id. In this case, the Department did file an objection, which the trial court overruled. Nevertheless, the Department attended the mediation and made an offer, so it cannot be said that it did not participate in the mediation. We sustain the Department’s complaint as to the trial court’s award of attorney’s fees as a sanction for the Department’s alleged failure to negotiate in good faith.

Finally, we address the mediation fee. Chapter 154 requires the court to “tax the fee for services of an impartial third party as other costs of the suit.” Tex. Civ. Prac. & Rem.Code § 154.054(b) (West 1997). In its judgment, the trial court properly awarded Davis all original costs associated with the suit. Because the $250.00 mediation fee is an original cost under section 154.054(b), and because the trial court properly awarded Davis the costs expended for the suit, there is no error in taxing the mediation fee against the Department.

Conclusion

For the reasons stated above, we conclude that the Department is not entitled to governmental immunity in this case, that the trial court did not err in denying the Department’s request for a jury question on the issue of entry fee payment, and that the trial court properly awarded Davis the cost of his mediation fee. We hold that the award of attorney’s fees incurred in connection with the mediation was improper.

Accordingly, we reverse that part of the trial court judgment sanctioning the Department for its alleged failure to negotiate in good faith and render judgment that Davis take nothing in attorney’s fees; we affirm the remainder of the judgment. 
      
      . Under section 101.022 of the Act, a claimant in a premises defect case is treated as a licensee "unless the claimant pays for the use of the premises.” Tort Claims Act § 101.022(a) (West 1997).
     
      
      . We recognize that the Department contests whether Davis paid the entry fee.
     