Max Nelson and Carolyn Nelson, as Co-Guardians of Matthew Nelson v. City of Plano

AFFIRMED; Opinion Filed November 18, 2022

S In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-21-00708-CV

MAX NELSON AND CAROLYN NELSON,

AS CO-GUARDIANS OF MATTHEW NELSON, Appellants

V.

CITY OF PLANO, Appellee

On Appeal from the 219th Judicial District Court

Collin County, Texas

Trial Court Cause No. 219-02317-2020

MEMORANDUM OPINION

Before Justices Schenck, Smith, and Garcia1

Opinion by Justice Smith

The trial court granted the City of Plano’s plea to the jurisdiction in this

personal injury suit brought on behalf of Matthew Nelson by his parents and co-

guardians Max Nelson and Carolyn Nelson. In a single issue, the Nelsons contend

the trial court’s ruling was error because the City is not immune from liability for its

negligence in causing Matthew’s injuries. Concluding that the City has not waived

1

The Honorable Leslie Osborne participated in the submission of this case; however, she did not

participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The

Honorable Dennise Garcia has substituted for Justice Osborne in this case. See TEX. R. APP. P. 41.1

(a), (b)(1). Justice Garcia has reviewed the briefs and the record before the Court.

its immunity with respect to the Nelsons’ ordinary negligence claim, we affirm the

trial court’s order.

BACKGROUND

Matthew Nelson, a 26-year-old man with cognitive disabilities, was riding his

bicycle on a sidewalk in the City of Plano when he collided with a truck driven by a

City of Plano employee. Matthew was on his way to a 7-Eleven store a few blocks

from home. Matthew cannot legally drive because of his disabilities; bicycling is his

mode of transportation. Matthew suffered pelvic fractures, broken ribs, and internal

injuries in the accident.

The Nelsons sued the City, alleging a sole claim of ordinary negligence. The

City answered and pleaded affirmative defenses including governmental immunity.

The parties engaged in discovery. The Nelsons responded to the City’s

requests for admissions, admitting that:

1. At the time of the accident, Matthew was riding a bicycle;

2. At the time of the accident, Matthew was riding a bicycle “on

City of Plano property, a City sidewalk,”

3. At the time of the accident, Matthew was “riding a bicycle and

had entered premises owned, operated, or maintained by the City

of Plano, specifically, either a City of Plano sidewalk or street,”

and

4. The Nelsons are suing the City only for “negligence” as alleged

in Paragraph V(11) of their operative petition.

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Based on these admissions and other discovery, the City filed a plea to the

jurisdiction alleging governmental immunity. The trial court granted the City’s plea

and dismissed the Nelsons’ claims with prejudice. This appeal followed.

ISSUE AND STANDARD OF REVIEW

In their sole issue, the Nelsons contend the trial court erred by granting the

City’s plea to the jurisdiction. They contend that the City’s governmental immunity

is waived under the Texas Tort Claims Act (“TTCA”), TEX. CIV. PRAC. & REM.

CODE § 101.021, and that the Recreational Use Statute (“RUS”), TEX. CIV. PRAC. &

REM. CODE § 75.002(f), does not apply. We review the trial court’s ruling on a plea

to the jurisdiction de novo. Suarez v. City of Texas City, 465 S.W.3d 623, 632 (Tex.

2015).

APPLICABLE LAW

Under the TTCA, a governmental unit such as the City is liable for personal

injury “proximately caused by the wrongful act or omission or negligence of an

employee acting within his scope of employment” if the personal injury “arises from

the operation or use of a motor-driven vehicle.” TTCA § 101.021(1)(A).

Under the RUS, however, “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.” RUS § 75.002(f). As explained by the supreme

court in University of Texas v. Garner, 595 S.W.3d 645, 647 (Tex. 2019) (per

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curiam), the RUS “limits the [TTCA’s] waiver of governmental immunity by

lowering the duty of care owed to a person who enters and engages in ‘recreation’

on a governmental unit’s property.” “Specifically, the governmental unit owes that

person only the degree of care owed to a trespasser—that is, the duty not to injure

intentionally or through gross negligence—and thus retains immunity from ordinary

negligence claims even when the [TTCA] would otherwise waive such immunity.”

Id.

“Recreation” as defined in the RUS includes “bicycling and mountain biking.”

RUS § 75.001(2)(M). “Bicycling” is not further defined, nor is any intent or purpose

on the part of the rider specified. “Premises” is defined under the RUS to include

“land, roads, water, watercourse, private ways, and buildings, structures, machinery

and equipment attached to or located on the land, road, water, watercourse, or private

way.” Id. § 75.001(2).

DISCUSSION

The Nelsons pleaded that a City employee negligently operated a motor

vehicle and injured Matthew. They argue the City’s governmental immunity is

waived for that claim under TTCA § 101.021(1)(A). They contend the RUS does not

apply—and should not apply—to bar that claim because Matthew “was clearly not

engaged in ‘recreation’ as contemplated by the [RUS].” See RUS § 75.002(f).

Instead, Matthew was “riding a bicycle for transportation purposes only,” on a City-

owned sidewalk, because he cannot drive. The Nelsons assert that classifying all

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bicycle riding as “recreational” is inconsistent with the purpose of the RUS “to limit

the duty to warn of potentially dangerous, naturally occurring conditions outdoors

for the protection of landowners so Texans can more easily and cost-efficiently enjoy

outdoor recreation.” Matthew was not enjoying outdoor recreation, the Nelsons

argue; he was running an errand next to a busy street via his only method of

transportation.

The City, in turn, relies on the supreme court’s opinion in Garner. In Garner,

the court held the RUS applied to a bicyclist’s negligence claim against the

University, so that the University’s immunity was not waived. Garner, 595 S.W.3d

at 651. The City argues that Matthew’s purpose in riding his bicycle—for

transportation rather than recreation—does not control the RUS’s applicability. See

id. at 650 n.4 (plaintiff’s subjective intent does not control).

In Garner, the plaintiff was struck by a city vehicle while riding her bicycle

on a road through a student-housing complex on the University of Texas campus.

Id. at 647–48. She was biking to the trail head at Eilers Park, where she planned to

meet a friend and “ride the trail” when the accident occurred. Id. at 648. She sued

the University for negligence, contending that the University’s immunity was

waived under the TTCA. Id. The University filed a plea to the jurisdiction, arguing

that Garner was a trespasser, for two reasons: (1) the RUS classified her as a

trespasser, and (2) there were “no trespassing” signs on either end of the road

through the housing complex. Id. at 648.

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The court of appeals affirmed the trial court’s denial of the University’s plea,

but the supreme court reversed, concluding that RUS subsection 75.002(f) “is

dispositive.” Id. at 649. The court explained, “subsection (f) requires only that a

person (1) enter premises owned, operated, or maintained by a governmental unit

and (2) engage in recreation on those premises.” Id. at 650. The court concluded that

“[i]f those two conditions are met, the governmental unit owes the person only the

duty owed to a trespasser.” Id. Because it was undisputed that Garner entered

premises owned by a governmental unit and engaged in activity that qualified as

“recreation” under the statute, “the University owed Garner only the duty not to

injure her intentionally or through gross negligence.” Id.

The Nelsons argue that Garner should not apply here because, unlike the

Garner plaintiff who was on her way to “ride the trail,” Matthew was not “enjoying

nature or exploring the outdoors in any fashion.” See id. at 648. They contend

Matthew’s bicycle riding was not “recreational”; it was a matter of necessity given

his disabilities. The City responds that the court rejected a similar argument in

Garner:

To the extent Garner argues that she was bicycling on Alvin for

transportation rather than recreational purposes, her subjective intent

does not control. See City of Bellmead v. Torres, 89 S.W.3d 611, 614

(Tex. 2002) (explaining that whether the plaintiff was engaged in

recreation hinged on her activity when she was injured—sitting on a

swing—not her reason for being at the venue—to play softball); City of

San Antonio v. Peralta, 476 S.W.3d 653, 658 (Tex. App.—San Antonio

2015, no pet.) (rejecting the plaintiff’s argument that his bicycling was

not “recreation” because he was commuting to work). Under the

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statute’s plain language, bicycling is recreation. TEX. CIV. PRAC. &

REM. CODE § 75.001(3)(M).

Id. at 650 n.4.

The Nelsons also argue that the Garner plaintiff had entered on

“governmentally controlled property that had ‘no-trespassing’ signs at both ends of

the road,” see id. at 647, while Matthew was riding on a public sidewalk. But the

City responds that under § 75.002(f), “a person receives the legal protection of a

trespasser even though she is not trespassing,” and accordingly, Matthew “is entitled

to the legal protection of a trespasser even though he was not trespassing.” The City

concludes that if § 75.002(f) applied only to trespassers, it would be meaningless.

The Nelsons further argue the trial court’s ruling is inconsistent with the

RUS’s purpose to limit—not abrogate—the liability of property owners who open

their land for recreational activities. They assert that “ignor[ing] a bicyclist’s

subjective intent abrogates common law negligence for a large number of

bicyclists,” and that Garner “deprives injured parties of legal recourse” against a

government employee’s negligence merely because those parties happen to be riding

a bicycle rather than walking or driving a vehicle.2 They contend that “a child with

a summertime paper route, the environmentally-conscious commuter, someone who

cannot afford a vehicle who must bike to work, the average teenager biking a few

2

We note that both “hiking” and “pleasure driving, including off-road motorcycling and off-road

automobile driving and the use of off-highway vehicles” are included in the definition of “recreation” in

the RUS. See RUS § 75.001(3)(G), (H). Consequently, not all pedestrians and drivers are excluded from

the RUS’s limitation of liability.

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blocks to school, [and] a bicycle delivery driver”—in addition to those like Michael

with cognitive difficulties who are not able to drive—have no recourse even though

their bicycling has no connection to the outdoor recreation the RUS was designed to

encourage.

These arguments are not without force. But this Court “must take the

Legislature at its word, respect its policy choices, and resist revising a statute under

the guise of interpreting it.” Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d

651, 654 (Tex. 2013). Nor may we adopt a statutory construction different from

supreme court precedent. See, e.g., Tex. Office of Comptroller of Pub. Accounts v.

Saito, 372 S.W.3d 311, 315–16 (Tex. App.—Dallas 2012, pet. denied) (this Court is

bound by supreme court precedent addressing whether statute waived governmental

immunity). The trial court applied the statute’s plain language in accordance with

supreme court precedent. We must do the same. Accordingly, we decide the

Nelsons’ sole issue against them.

CONCLUSION

We affirm the trial court’s order granting the City’s plea to the jurisdiction.

/Craig Smith/

CRAIG SMITH

JUSTICE

Schenck, J., dissenting.

210708F.P05

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S

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

MAX NELSON AND CAROLYN On Appeal from the 219th Judicial

NELSON, AS CO-GUARDIANS OF District Court, Collin County, Texas

MATTHEW NELSON, Appellants Trial Court Cause No. 219-02317-

2020.

No. 05-21-00708-CV V. Opinion delivered by Justice Smith.

Justices Schenck and Garcia

CITY OF PLANO, Appellee participating.

In accordance with this Court’s opinion of this date, the judgment of the trial

court is AFFIRMED.

It is ORDERED that appellee City of Plano recover its costs of this appeal

from appellants Max Nelson and Carolyn Nelson, as Co-Guardians of Matthew

Nelson.

Judgment entered this 18th day of November, 2022.

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