City of Diboll, Texas v. Louie Lawson, Representative of the Estate of Carolyn Burns

NO. 12-13-00344-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

CITY OF DIBOLL, TEXAS, § APPEAL FROM THE 159TH

APPELLANT

V. § JUDICIAL DISTRICT COURT

LOUIE LAWSON, REPRESENTATIVE

OF THE ESTATE OF CAROLYN BURNS,

APPELLEE § ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION

The City of Diboll, Texas, appeals the trial court‘s order denying its plea to the

jurisdiction, seeking that the trial court dismiss the claim against it pursued by Louie Lawson, as

the personal representative of the estate of Carolyn Burns. In two issues, the City argues that the

recreational use statute applies to Lawson‘s claim, and that his pleadings and the undisputed

evidence conclusively establish that the City was not grossly negligent as required by the

recreational use statute. We reverse and render judgment.

BACKGROUND

In the early afternoon hours of March 27, 2010, Burns went to Old Orchard Park, which

was owned and operated by the City, to watch her granddaughter‘s softball game. After the

game concluded, Burns exited the park. While returning to her vehicle, Burns tripped on an

approximately four inch hollow pipe protruding upward from the center of the walkway on park

grounds. The pipe would ordinarily act as a receptacle for a pole, creating a barrier that prevents

vehicles from entering that area of the park. The pole was not in place when Burns tripped and

fell, and she suffered serious injuries as a result of the fall.

Burns sued the City, raising a premises defect claim. Following her death in an unrelated

automobile accident, Louie Lawson, the personal representative of Burns‘s estate, was

substituted as the plaintiff. The City filed a plea to the jurisdiction and a motion for summary

judgment. The trial court denied both. The City filed this interlocutory appeal challenging only

the trial court‘s denial of its plea to the jurisdiction.1

PLEA TO THE JURISDICTION

In its first issue, the City argues that Burns was engaged in ―recreation‖ under the

recreational use statute, and that consequently, Lawson was required to plead and prove that the

City acted with gross negligence. In its second issue, the City contends that Lawson‘s petition

does not allege that the City acted with gross negligence, and the undisputed evidence establishes

that it was not grossly negligent. Accordingly, its argument continues, the trial court should have

granted its plea to the jurisdiction and dismissed Lawson‘s suit. Because these issues are related,

we address them together.

Standard of Review

A plea to the jurisdiction is a dilatory plea, and its purpose 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 plea challenges the trial court‘s jurisdiction over the subject

matter of a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). Subject matter jurisdiction is a question of law. Id. Therefore, we apply

a de novo standard of review to a trial court‘s ruling on a plea to the jurisdiction. Id.

The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court‘s

jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002)

(per curiam). When a trial court‘s decision concerning a plea to the jurisdiction is based on the

plaintiff‘s pleadings, we accept as true all factual allegations in the pleadings to determine if the

plaintiff has met her burden to plead facts sufficient to confer jurisdiction on the court. Dallas

Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We examine the pleader‘s

intent and construe the pleadings in the plaintiff‘s favor. Cnty. of Cameron v. Brown, 80

S.W.3d 549, 555 (Tex. 2002); Ramirez, 74 S.W.3d at 867. A plea to the jurisdiction may be

granted without allowing the plaintiff to amend if the pleadings affirmatively negate the

existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867.

1

A governmental unit has a right of interlocutory appeal from a district court‘s order that denies its plea to

the jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2014).

2

If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider

relevant evidence submitted by the parties. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.

2008) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555.

After the defendant ―asserts and supports with evidence that the trial court lacks subject matter

jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject

matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the

jurisdictional issue.‖ Miranda, 133 S.W.3d at 228. This standard ―generally mirrors‖ that of a

traditional motion for summary judgment. Id. We take as true all evidence favorable to the

nonmovant and indulge every reasonable interest and resolve any doubt in favor of the

nonmovant. Id.

If the evidence creates a fact question regarding the jurisdictional issue, then the trial

court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact

finder. Id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact

question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter

of law. Id. at 228.

Texas Tort Claims Act (TTCA)

Sovereign immunity generally protects the State against lawsuits for money damages

absent clear and unambiguous legislative consent to sue. City of Houston v. Williams, 353

S.W.3d 128, 134 (Tex. 2011). Governmental immunity provides this protection to political

subdivisions of the State, including cities, and is derived from the State‘s sovereign immunity.

Id. at 134 n.5. Section 101.021 of the TTCA waives immunity in three scenarios: (1) negligent

operation or use of a motor-driven vehicle or equipment by an employee of a governmental unit;2

(2) negligent use of tangible personal property by an employee of a governmental unit; and (3)

premises defects. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)-(2) (West 2011).

Lawson‘s cause of action in this case is for premises liability.

Recreational Use Statute

With regard to premises liability claims, Section 101.058 of the TTCA further modifies a

governmental unit‘s waiver of immunity by imposing the additional limitations on liability

articulated in the recreational use statute. Miranda, 133 S.W.3d at 225 (citing TEX. CIV. PRAC.

2

Under the TTCA, the definition of a ―governmental unit‖ includes cities. TEX. CIV. PRAC. & REM. CODE

ANN. § 101.001(3)(B) (West Supp. 2014).

3

& REM. CODE ANN. § 101.058 (West 2011) (―To the extent that Chapter 75 limits the liability of

a governmental unit under circumstances in which the governmental unit would be liable under

[the TTCA], Chapter 75 controls.‖)).

The recreational use statute provides, in relevant part, that ―if a person enters premises

owned, operated, or maintained by a governmental unit and engages in recreation on those

premises, the governmental unit does not owe to the person a greater degree of care than is owed

to a trespasser on the premises.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(f) (West 2011)

(emphasis added).

The statute provides a nonexclusive list of activities that constitute ―recreation,‖

including picnicking and hiking. Id. § 75.001(3)(F), (G) (West 2011). The statute also defines

―recreation‖ as ―any other activity associated with enjoying nature or the outdoors.‖ Id.

§ 75.001(3)(L); see City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002). In determining

whether a particular activity is ―recreational‖ for purposes of the recreational use statute, the

relevant inquiry is what the plaintiff was doing at the time the plaintiff was injured. Torres, 89

S.W.3d at 614. The courts have decided that various other activities constitute recreation under

the statute, even though they are not expressly listed. See, e.g., City of Bellmead, 89 S.W.3d at

614–15 (―In our view, sitting on a swing is the type of activity that the Legislature intended to

include as recreation when they enacted the Statute.‖); City of Plano v. Homoky, 294 S.W.3d

809, 817 (Tex. App.—Dallas 2009, no pet.) (concluding that walking through clubhouse in

between holes at golf course was recreation); Dubois v. Harris Cnty., 866 S.W.2d 787, 789 (Tex.

App.—Houston [14th Dist.] 1993, no writ) (holding that plaintiff was engaged in recreation

when she fell because of hole in ground that normally held missing traffic deterrent pole at

county park).

Gross Negligence

The law is well established that a premises owner owes a trespasser only a duty ―not to

injure that person willfully, wantonly, or through gross negligence.‖ Miranda, 133 S.W.3d at

225. As such, gross negligence is the minimum degree of culpability in order for a governmental

unit to waive its immunity and invoke the subject matter jurisdiction of the trial court when the

recreational use statute applies. See id. In the recreational use statute context, gross negligence

means an ―act or omission involving subjective awareness of an extreme degree of risk,

4

indicating conscious indifference to the rights, safety, or welfare of others.‖ State v. Shumake,

199 S.W.3d 279, 287 (Tex. 2006).

Discussion

The City argues that Burns was engaged in recreation while she walked to her car after

spectating at her granddaughter‘s softball game, and that Lawson‘s petition and proof

conclusively negate gross negligence. Lawson argues that relevant legal authorities hold that

such activity is not recreation, and he was not required to plead or prove that the City acted with

gross negligence.

1. Burns was engaged in “recreation” when she was injured.

There is a conflict among the courts of appeal as to whether spectating at a sporting event

constitutes recreation. Compare Univ. of Tex. at Arlington v. Williams, No. 02–12–00425–CV,

2013 WL 1234878, at *3 (Tex. App.—Fort Worth Mar. 28, 2013, pet. granted) (mem. op., not

designated for publication) (―Neither spectating at a sporting event nor exiting the premises after

spectating is like the activities listed as recreation under the recreational use statute. Nor do these

activities fall within the section‘s catchall of ‗any other activity associated with enjoying nature

or the outdoors.‘‖) with Sam Houston State Univ. v. Anderson, No. 10–07–00403–CV, 2008

WL 4901233, at *3 (Tex. App.—Waco Nov. 12, 2008, no pet.) (mem. op., not designated for

publication) (holding that sitting on bleachers at an outdoor baseball stadium and watching state

university baseball game was recreation under recreational use statute).

We agree with the holding in Anderson that spectating at a sporting event constitutes

recreation. See Anderson, 2008 WL 4901233, at *3. The statute identifies picnicking and

hiking as recreation. TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(F), (G). If walking and,

separately, sitting while consuming food at an outdoor public park constitute recreation, then we

likewise conclude that spectating at an outdoor public park sporting event is ―associated with

enjoying the outdoors.‖

The recreational use statute contemplates recreation not only when the person is actively

engaged in recreation but also when the person is traveling to and from the recreational area

while on the ―premises.‖ See, e.g., Homoky, 294 S.W.3d at 816; Dubois, 866 S.W.2d at 789–90

(recognizing that a parking area or road would be a necessary and integral part of a recreational

area). Other courts have concluded that traveling from the event after its conclusion is not

recreation. See Vidrine v. Ctr. for the Performing Arts at the Woodlands, No. 09–12–00378–

5

CV, 2013 WL 5302654, at *4–5 (Tex. App.—Beaumont Sept. 19, 2013, pet. denied) (mem. op.,

not designated for publication) (holding that the plaintiff was not engaged in recreation where

her injury occurred after leaving a concert at the Woodlands Pavilion ―when she fell down a set

of steps along the Woodlands Waterway,‖ an area between the Pavilion and the lot where she

parked her car); Williams, 2013 WL 1234878, at *3 (―Neither spectating at a sporting event nor

exiting the premises after spectating is like the activities listed as recreation under the

recreational use statute.‖).

The statute applies to recreational activities that occur on the ―premises.‖ TEX. CIV.

PRAC. & REM. CODE ANN. § 75.002(f). It defines ―premises‖ to include not only the land itself,

but ―roads‖ and ―private ways‖ attached to or located on the land. Id. § 75.001(2). Thus, we

agree with the analysis in Homoky and Dubois that an injury occurring on the premises while

walking to and from the activity is part of the larger recreational event, and also qualifies as

recreation. Homoky, 294 S.W.3d at 816; Dubois, 866 S.W.2d at 789–90.

In summary, we hold that Burns was engaged in recreation when she was injured on the

premises while returning to her vehicle after spectating at her granddaughter‘s softball game.

See Dubois, 866 S.W.2d at 789 (holding that plaintiff was engaged in recreation when she fell

because of hole in ground that normally held missing traffic deterrent pole at county park).

2. Lawson’s petition affirmatively negates jurisdiction.

Because Burns was engaged in ―recreation,‖ Lawson must also plead facts, and the

evidence must raise a fact issue, that the City acted with gross negligence to invoke the trial

court‘s subject matter jurisdiction. See Miranda, 133 S.W.3d at 225, 227. As we previously

stated, a plea to the jurisdiction may be granted without allowing the plaintiff to amend if the

pleadings affirmatively negate the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez,

74 S.W.3d at 867.

Lawson alleged in his petition that the City owed Burns ―the same duties that a private

person owes to a licensee on private property because she was not charged an admission fee.‖

He alleged in conclusory terms, without alleging supporting facts, that the City had actual

knowledge that the pole had been removed. Lawson also asserted in his petition that the City

had a duty to ensure the premises did not present a danger to Burns, and that it had the duty to

either warn of the danger or make the condition reasonably safe. These are the elements required

to prove a premises defect claim as a licensee, not as a trespasser. See Stephen F. Austin State

6

Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007) (citing State Dep’t of Highways & Pub.

Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (reciting elements of premises defect claims

and noting that even licensee must prove owner had actual knowledge of condition)).

Importantly, Lawson also stated in his petition that ―no exception to the waiver of immunity bars

the claim because no exception applies.‖

Moreover, Lawson concedes in his brief that he ―has not alleged or attempted to prove

that the City of Diboll acted with gross negligence.‖ Instead, his argument rests on his

contention that Burns was not engaged in recreation at the time she was injured. This is

consistent with the allegation in the petition that ―no exception to the waiver of immunity bars

the claim because no exception applies.‖

Based upon the above referenced allegations in Lawson‘s petition and the concession in

his brief that he has not alleged or attempted prove the City acted with gross negligence, we hold

that Lawson‘s petition affirmatively negates the trial court‘s subject matter jurisdiction.

Consequently, Lawson failed to invoke the trial court‘s jurisdiction.

We sustain the City‘s first and second issues.

DISPOSITION

Having sustained the City‘s first and second issues, we reverse the trial court‘s order

denying the City‘s plea to the jurisdiction, and dismiss Burns‘s suit for lack of subject matter

jurisdiction. See TEX. R. APP. P. 43.2(c).

SAM GRIFFITH

Justice

Opinion delivered December 3, 2014.

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

(PUBLISH)

7

COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

DECEMBER 3, 2014

NO. 12-13-00344-CV

CITY OF DIBOLL, TEXAS,

Appellant

V.

LOUIE LAWSON, REPRESENTATIVE OF THE ESTATE OF CAROLYN BURNS,

Appellee

Appeal from the 159th District Court

of Angelina County, Texas (Tr.Ct.No. CV-01271-12-3)

THIS CAUSE came to be heard on the oral arguments, appellate record

and the briefs filed herein, and the same being considered, because it is the opinion of this court

that the county court had no jurisdiction of the subject matter in this case and that its judgment

same should be reversed and rendered, and the case dismissed.

It is therefore ORDERED, ADJUDGED and DECREED by this court that

the judgment of the trial court in favor of Appellee, LOUIE LAWSON, REPRESENTATIVE

OF THE ESTATE OF CAROLYN BURNS, be, and the same is, hereby reversed and

judgment is rendered dismissing the case for lack of subject matter jurisdiction. All costs in

this cause expended in this court be, and the same are, hereby adjudged against the Appellee,

LOUIE LAWSON, REPRESENTATIVE OF THE ESTATE OF CAROLYN BURNS, for

which let execution issue; and that this decision be certified to the court below for observance.

Sam Griffith, Justice.

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