Anthonette Todaro, Individually and on Behalf of the Estate of Blake Edward Todaro v. the City of Houston

Affirmed and Opinion filed April 20, 2004

Affirmed and Opinion filed April 20, 2004.

In The

Fourteenth Court of

Appeals

____________

NO. 14-03-00627-CV

____________

ANTHONETTE TODARO,

INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF BLAKE EDWARD TODARO , Appellant

V.

THE CITY OF

HOUSTON ,

Appellee

On Appeal from the 61st

District Court

Harris County, Texas

Trial Court Cause No. 02-37672

O P I N I O N

In this wrongful death action, appellant

Anthonette Todaro, individually and on behalf of the estate of her son, Blake

Edward Todaro, appeals from the trial court = s order (1)

granting appellee The City of Houston = s plea to the

jurisdiction and (2) dismissing Todaro = s claims. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Blake Todaro died as a result of injuries

sustained as he was riding his bicycle on an asphalt hiking and biking trail

maintained by the City. According to the

allegations in the petition, Blake encountered a steep part of the trail, which

caused his bicycle to gather significant speed as it descended. When Blake reached the bottom of the steep

portion, the front wheel of his bicycle struck a hole, causing Blake to fall,

hit the asphalt, and sustain fatal injuries.

There were no signs warning of the hole, which apparently served to

gather water, which was then drained by a pipe running under the asphalt

path. No allegations are made that the

condition of real property effecting the injury was constructed before 1970.

Todaro sued the City. As part of the background facts, she alleged,

A The defective

condition of the path which caused Blake Todaro to fall to his death, was

subject to the control of [the City] and [the City] knew or should of [sic]

known of the dangerous condition and that such dangerous condition would not be

appreciated by young children. @ She also set forth the following allegations

in a separate section, captioned A Attractive

Nuisance @ :

9.

The portion of the City bike path upon which Blake Todaro was injured

was one that the City knew or should have known would be frequented and played

upon by small children. Moreover, the

dangerous condition in and about the bike path was one of which the City know

[sic] or should have known involved an unreasonable risk of death or serious

bodily harm to Blake Todaro and children similarly situated.

10.

Blake Todaro, because of his tender years, did not realize the risk

involved in riding his bicycle down the hill.

Plaintiff would further show that the utility, if any, to the City in

eliminating the danger was slight as compared to the risk . . . of injuries

such as occurred to Blake Todaro as a proximate result thereof.

Todaro prayed for actual damages in an amount not to

exceed $250,000.00, pre-and post judgment interest, costs, and exemplary

damages.

The City answered, asserting multiple

defenses, including governmental and recreational use immunity. The City also filed a plea to the

jurisdiction, in part arguing Todaro = s claims were

barred because (1) the acts of which Todaro complained were discretionary acts

of which there is no waiver of immunity as a matter of law, (2) the doctrine of

attractive nuisance was inapplicable because the case did not involve

trespassing children or a device or machinery and the Texas Tort Claims Act ( A Act @ or A Tort Claims Act @ ) precludes

application of the doctrine, [1]

and (3) Todaro failed to establish waiver of the City = s immunity within

the confines of the recreational use immunity statute. [2] Todaro responded, arguing the Tort Claims Act

and the recreational use statute do not apply to attractive nuisance claims, a

common law sovereign immunity analysis applied, and her attractive nuisance

claims were not barred by common law sovereign immunity. The trial court granted the City = s plea to the

jurisdiction and dismissed Todaro = s claims.

DISCUSSION

Introduction and Standard of Review

Todaro presents the following three issues

for review, all of which are directed at the trial court = s order granting

the City = s plea to the

jurisdiction:

1.

If the Texas Tort Claims Act does not apply to a claim based on

attractive nuisance, is a common law governmental immunity analysis required or

is a Plaintiff completely barred from bringing suit against a municipality for

claims excluded from the Tort Claims Act?

2.

If the Recreational Use Statute does not apply to claims based on

attractive nuisance, does a Plaintiff nonetheless have to plead claims based on

willful wanton acts or gross negligence to defeat a Plea to the Jurisdiction?

3.

Does the attractive nuisance doctrine apply only to a device or

machinery attractive to trespassing children?

A plea to the jurisdiction is a challenge

to the trial court = s authority to adjudicate the subject

matter of the cause of action. City

of Houston v. Lazell‑Mosier , 5 S.W.3d 887, 889 (Tex. App. C Houston [14th

Dist.] 1999, no pet.). It is a dilatory

plea, the purpose of which is to defeat a cause of action without regard to

whether the claims asserted have merit. Bland

Indep. Sch. Dist. v. Blue , 34 S.W.3d

547, 554 (Tex. 2000). The claims may form

the context in which a dilatory plea is raised, but a court should decide the

plea without delving into the merits of the case. Id.

The purpose of a dilatory plea is not to force the plaintiff to preview

its case on the merits but to establish a reason why the merits of the

plaintiff = s claims should never be reached. Id.

In deciding whether to grant a plea to the jurisdiction, the trial court

normally looks only to the allegations in the petition. See id. When reviewing a trial court = s order granting a

plea to the jurisdiction, we construe the pleadings in favor of the plaintiff

and look to the pleader = s intent.

Tex. Ass = n of Bus. v. Tex. Air Control Bd. , 852 S.W.2d 440,

446 (Tex. 1993). Our review of the trial

court = s ruling on a plea

to the jurisdiction is de novo . Mayhew v. Town of Sunnyvale , 964 S.W.2d 922, 928 (Tex. 1998) .

Governmental Immunity and Statutory Waiver

thereof

The City based its plea to the

jurisdiction on governmental immunity. A

unit of State government is immune from suit and liability unless the State

consents. Dallas Area Rapid Transit

v. Whitley , 104 S.W.3d 540, 542 (Tex. 2003). Immunity from suit affects a court = s jurisdiction and

prohibits suits against a governmental unit unless the State expressly consents

to the suit. See Wichita Falls State

Hosp. v. Taylor , 106 S.W.3d 692, 696 (Tex. 2003). For the Legislature to waive governmental

immunity, a statute or resolution must contain a clear and unambiguous

expression of the Legislature = s waiver of

immunity. See id. When determining whether the Legislature has

clearly and unambiguously waived immunity from suit, we generally resolve any

ambiguity in favor of retaining immunity. Id. at 697 .

The Tort Claims Act waives a governmental

unit = s immunity from

suit A to the extent of

liability created @ by the Act. Tex.

Civ. Prac. & Rem. Code Ann. ' 101.025(a)

(Vernon 1997); Tex. Dept. of Transp. v. Ramirez , 74 S.W.3d 864, 866

(Tex. 2002) (per curiam). The City is a A governmental unit @ for purposes of

the Tort Claims Act. Tex. Civ. Prac. & Rem. Code Ann. ' 101.001(3)(B)

(Vernon Supp. 2004). As explained in Ramirez :

The Act waives the State = s immunity for, among other things,

injury or death A caused by a condition or use of

tangible personal or real property. . . . @ Tex. Civ. Prac. & Rem. Code ' 101.021(2). If the dangerous condition is a A premise defect, @ the Act limits the State = s duty to A only the duty that a private person

owes to a licensee on private property. @ Tex. Civ. Prac. & Rem. Code ' 101.022(a). Whether a condition is a premise defect is a

legal question. State v. Burris ,

877 S.W.2d 298, 299 (Tex. 1994).

74 S.W.3d at 866 .

Under the Act, municipalities are liable

for damages arising from a set of non-exclusive, specifically enumerated,

governmental functions, including parks and zoos. See Act of June 3, 1987, 70th Leg.,

1st C.S., ch. 2, ' 3.02, sec. 101.0215(a), 1987 Tex. Gen.

Laws 37 , 47 B 48 (amended 1999, 2001) (current version

at Tex. Civ. Prac. & Rem. Code Ann.

' 101.0215(a)

(Vernon Supp. 2004)). The Act, however,

does not apply to the liability for damages arising from a municipality = s proprietary

functions, which do not include the specifically enumerated governmental

functions. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215(b), (c)

(Vernon Supp. 2004). The Act also does

not apply to certain types of claims, for example, claims based on a

governmental unit = s nonperformance of a discretionary act,

claims based on a theory of attractive nuisance, or torts committed before

1970. Tex.

Civ. Prac. & Rem. Code Ann. ' ' 101.056, .059,

.061 (Vernon 1997).

Finally, the Tort Claims Act provides

that limitation of a governmental unit = s liability under

the recreational use statute controls over any waiver of immunity in the Tort

Claims Act: A To the extent that

Chapter 75 limits the liability of a governmental unit under circumstances in

which the governmental unit would be liable under this chapter, Chapter 75

controls. @ Tex. Civ. Prac. & Rem. Code Ann. ' 101.058 (Vernon

1997). Chapter 75 contains a complementary provision: A To the extent that this chapter

limits the liability of a governmental unit under circumstances in which the

governmental unit would be liable under Chapter 101, this chapter controls. @ Tex. Civ. Prac. & Rem. Code Ann. ' 75.003(g) (Vernon Supp. 2004). Section 75.003 further provides the chapter

does not affect the doctrine of attractive nuisance, but A the doctrine may

not be the basis for liability of an owner, lessee, or occupant of agricultural

land for any injury to a trespasser over the age of 16 years. @ Id. ' 75.003(b). Chapter 75 also A does not relieve any owner, lessee,

or occupant of real property of any liability that would otherwise exist for

deliberate, wilful, or malicious injury to a person or to property. @ Id. ' 75.003(a) .

Analysis

Todaro = s arguments. With the preceding framework in mind, we turn

now to the arguments Todaro makes in support of her three issues. In overlapping arguments, she contends (1) as

a result of Texas Civil Practice and

Remedies Code section 101.059, which states the Act does not apply to claims

based on attractive nuisance, common law sovereign immunity analysis applies to

her claims; (2) her live pleadings set forth claims for which the City has no

common law immunity; (3) because the recreational use statute does not apply to

claims based on attractive nuisance, she was not required to plead willful or

wanton acts or gross negligence; (4) she did not allege a discretionary

function (to which sovereign immunity would apply) as a basis of liability; and

(5) attractive nuisance claims are not limited to a device or machinery

especially alluring to trespassing children.

As discussed below, we disagree with the

premise underlying her first argument, which she sets forth in support of issue

one C that common law

sovereign immunity applies to her claims.

Because our resolution of issue one is dispositive of this appeal, we

need not address Todaro = s remaining issues and arguments.

Todaro = s issue one. In issue one, Todaro asks: If the Tort Claims Act does not apply to

claims based on attractive nuisance, (a) is a common law governmental immunity

analysis required or (b) is a Plaintiff completely barred from bringing suit

against a municipality for claims excluded from the Tort Claims Act? In answering this question, Todaro sets forth

the following propositions and authorities:

1.

Under Texas Civil Practice and Remedies Code section 101.059, the Tort

Claims Act A does not apply to a claim based on the

theory of attractive nuisance. @ Tex.

Civ. Prac. & Rem. Code Ann. ' 101.059 (Vernon

1997).

2.

Because the Act does not apply to claims based on attractive nuisance,

her claims should be determined under the common law. Cf.

City of Tyler v. Likes , 962 S.W.2d 489, 501 (Tex. 1997) (applying

common law to case in which act or omission occurred before January 1, 1970); Lawrence

v. City of Wichita Falls , 906 S.W.2d 113, 116 (Tex. App. C Fort Worth 1995,

writ denied) (same); City of Fort Worth v. Adams, 888 S.W.2d 607, 614

(Tex. App. C Fort Worth 1994, writ denied) (same).

3.

Under the common law, the establishment and maintenance of a city park

was a proprietary function, and claims arising therefrom were not subject to

governmental immunity. See , e.g. ,

Dancer v. City of Houston , 384 S.W.2d 340, 342 (Tex. 1964) (citing

cases); see also Christopher D. Jones, Comment, Texas Municipal

Liability: An Examination of the State and Federal Causes of Action, 40 Baylor L. Rev. 595 , 604 B 05 (1988) (discussing

the proprietary-governmental distinction at common law).

4.

Therefore, her attractive nuisance claims, which are based on an injury

arising from the city = s function in operating the park, are not

subject to governmental immunity.

As the preceding structure reveals, Todaro = s argument,

specifically proposition two, rests on the following premise: case law interpreting the exclusion in

section 101.061, which relates to acts or omissions occurring before January 1,

1970, must be applied to section 101.059, which relates to claims based on the

theory of attractive nuisance, even when the act or omission did not occur

before 1970. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.059, .061 (Vernon 1997). Todaro argues because both sections state the

Act A does not apply @ to the type of

claim at issue, the ramifications of both exclusions should be the same. Therefore, she contends because courts resort

to common law to decide sovereign immunity issues involving pre-1970 acts or

omissions, they similarly should resort to common law to decide claims of

attractive nuisance. We disagree.

The supreme court has cautioned, A Each of the . . .

exemptions . . . is a distinct exemption, complete unto itself. We agree with the . . . statement that courts

must examine the entire [Tort Claims] Act.

This rule of construction, however, does not permit courts to engraft

the limitations of one statutory provision onto another. @ State v. Terrell , 588 S.W.2d 784 , 788 B 89 (Tex. 1979)

(citation omitted). [3] In relying on cases construing the section

101.061 exclusion (regarding pre-1970 acts or omissions), appellant fails to

appreciate the distinction between negligent acts and omissions occurring before

1970 and those occurring after 1970.

As this court explained in Chapman v.

City of Houston , A Clearly [section] 101.061 intended to

provide for abolishment of governmental immunity without causing havoc. @ 839 S.W.2d 95, 99 (Tex. App. C Houston [14th

Dist.] 1992, writ denied). The rationale

for applying the common law for pre-1970 acts and omissions rests on the premise it would be unfair to

expose a governmental entity to liability under the Act for acts or omissions

for which it had previously been immune at common law. Lawrence , 906 S.W.2d at 116 . Thus, the cases applying common law for

pre-1970 acts and omissions are consistent with the presumption in favor of retaining

immunity. See Taylor , 106 S.W.3d

at 697 (regarding presumption in construction of statutes purportedly waiving

sovereign immunity).

In contrast, the purpose of section

101.059 was to eliminate an area of potential governmental liability that may

have existed at common law. [4] In an early draft of the Act, the Legislature

abolished the doctrine of attractive nuisance only in rural areas and only in

limited cases. See J. Bonner

Dorsey, Whither the Texas Tort Claims Act: What Remains After Official

Immunity? , 33 St. Mary = s L.J. 235, 244 n. 44

(2002) (quoting Veto Message of Gov. Preston Smith, Tex. H.B. 117, H.J. of Tex,

61st Leg., R.S. (1969)). Governor

Preston Smith, however, vetoed this bill.

See id. at 243. In

his veto message, Governor Smith expressed his concern with the breadth of the

total bill and the burden it imposed on Texas taxpayers. See Joe R. Greenhill & Thomas V.

Murto III, Governmental Immunity , 49 Tex.

L. Rev. 462 , 467 (1971).

Moreover, Governor Smith specifically recommended that the Legislature A > [a]bolish the

doctrine of attractive nuisance as applied against governmental units in all

cases. = @ Dorsey, supra at

244 n.44. The subsequently enacted bill

did so. See Dorsey, supra ,

at 244; see also Tex. Civ. Prac.

& Rem. Code Ann. ' 101.059 (Vernon

1997).

Lawrence is the only case

Todaro cites in which a court resorted to the common law to analyze an

attractive nuisance claim against a city. [5] The attractive nuisance in Lawrence ,

however, was a concrete syphon constructed before 1970, and the section 101.061

exclusion was applicable. Lawrence,

906 S.W.2d at 115, 116 . Therefore, as

subsequently confirmed in Likes , resort to common law was appropriate

under section 101.061 regardless of the implications of the section 101.059

exclusion for attractive nuisance; the common law applied because the syphon

was allegedly negligently constructed before 1970. Id. at 116 B 17; see Likes ,

962 S.W.2d at 501 (citing Lawrence for proposition common law governs

causes of action occurring before January 1, 1970, the effective date of the

Tort Claims Act). Without a pre-1970 act

or omission supporting her claim to trigger application of the common law,

Todaro = s claims are

subject only to the Act and its exclusions.

See Adams , 888 S.W.2d at 614 .

Given the preceding authority and

considerations, we decline Todaro = s invitation to

apply case law construing section 101.061, relating to pre-1970 acts or

omissions, to her claims based on acts or omissions occurring after 1970. Her claims are specifically excluded from

being brought under the Act by section 101.059.

Thus, Todaro = s claims do not fall under the waiver of

immunity created by the Tort Claims Act.

Accordingly, we overrule Todaro = s issue one.

Todaro = s remaining

issues. In issue two, Todaro raises

questions related to application of Texas Civil Practice and Remedies Code

chapter 75, commonly known as the recreational use statute. Our analysis of the City = s liability,

however, does not reach the recreational use statute unless we first determine

that Todaro = s claims fall under the waiver of immunity

created by the Tort Claims Act. City

of Houston v. Morua, 982 S.W.2d 126, 130 (Tex. App. C Houston [1st

Dist.] 1998, no pet.), overruled on other grounds by Smith v. Brown, 51

S.W.3d 376, 381 (Tex. App. C Houston [1st

Dist.] 2001, pet. denied); see Tex.

Civ. Prac. & Rem. Code Ann. ' 75.003(g) (Vernon

Supp. 2004) (stating, A To the extent that this chapter limits the

liability of a governmental unit under circumstances in which the governmental

unit would be liable under Chapter 101, this chapter controls @ ) (emphasis

added). As discussed above, we concluded Todaro = s claims do not

fall under the waiver of immunity created by the Tort Claims Act. Accordingly, we need not reach Todaro = s issue two.

In issue three, Todoro argues the fact

Blake was not a trespasser or injured by a device or machinery does not

preclude application of the attractive nuisance doctrine to her case. Throughout the preceding discussion, we have

treated Todaro = s claims as based on attractive nuisance,

as she would have us do. So treated,

Todaro = s claims fall

squarely within the exclusion of Texas Civil Practice and Remedies Code section

101.059, and Todaro = s issue three presents nothing further for

review.

CONCLUSION

We conclude Todaro = s claims fall

within an exception to the waiver of governmental immunity in the Tort Claims

Act and that her claims, based on post-1970 acts or omissions, are not to be

determined under common law analysis.

The trial court therefore correctly granted the City = s plea to the

jurisdiction and dismissed Todaro = s claims based on

attractive nuisance.

We affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment

rendered and Opinion filed April 20, 2004.

Panel

consists of Justices Yates, Anderson, and Hudson.

[1] See Tex. Civ. Prac. & Rem. Code Ann. ' ' 101.001 B .109

(Vernon 1997 & Supp. 2004).

[2] See Tex. Civ. Prac. & Rem. Code Ann. ' 75.001 (Vernon Supp. 2004).

[3] In Terrell ,

the supreme court was interpreting the predecessors to present sections 101.055

(regarding claims based on responses to emergency calls or situations) and .057

(regarding claims based on injury or death arising from civil disobedience,

riot, etc.). See State v. Terrell , 588 S.W.2d 784 , 788 B 89 (Tex. 1979) ( interpreting Act of May 14, 1969, 61st Leg., R.S., ch. 292 ' 14 (8), (9), 1969 Tex. Gen. Laws

874 , 878 (subsequently repealed and recodified) (current version at Tex. Civ. Prac. & Rem. Code Ann. ' ' 101.055, 057 (Vernon 1997)).

[4] In cases

decided prior to the Tort Claims Act, however, plaintiffs asserting the

doctrine of attractive nuisance against governmental units were generally not

successful. See , e.g. , Bennett v. Brown County Water Imp. Dist.

No. 1 , 153 Tex. 599 , 272 S.W.2d 498 (1954); Gotcher v. City of

Farmersville , 137 Tex. 12 , 151 S.W.2d 565 (1941); Woolf v. City of

Dallas , 311 S.W.2d 78 (Tex. Civ. App. C Dallas

1958, writ ref = d n.r.e.); Murphy v. City of Rotan , 139 S.W.2d

134 (Tex. Civ. App. C Eastland 1940, writ dism = d); Braissaird

v. Webb County, 128 S.W.2d 475, 477 (Tex. Civ. App. C San Antonio 1939, no writ).

[5] The exclusions

and exceptions to the Tort Claims Act are set forth in sections 101.051 through

101.066. See Tex. Civ. Prac. & Rem. Code Ann. ' ' 101.051 B .066

(Vernon 1997 & Supp. 2004).