Lavonda Gray and Lavonda Gray, as Surviving parent of Labroderick Gray v. The City of Galveston, The County of Galveston, and The Park Board of Trustees of the City of Galveston--Appeal from 56th District Court of Galveston County

Affirmed and Memorandum Opinion filed December 11, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00298-CV

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LAVONDA GRAY, INDIVIDUALLY AND AS SURVIVING PARENT OF LABRODERICK GRAY, Appellant

V.

THE CITY OF GALVESTON, THE COUNTY OF GALVESTON, AND THE PARK BOARD OF TRUSTEES OF THE CITY OF GALVESTON, Appellees

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On Appeal from the 56th District Court

Galveston County, Texas

Trial Court Cause No. 01CV1031

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M E M O R A N D U M O P I N I O N

Appellant Lavonda Gray, individually and as the surviving parent of Labroderick Gray ( Gray ), appeals the dismissal of her wrongful death suit against appellees, the City and County of Galveston, and the City s Park Board of Trustees. In one issue, Gray contends the trial court erred by granting appellees pleas to the jurisdiction. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4.

Background

On July 9, 2000, appellant s nine-year-old son, Labroderick Gray, was swimming with two other boys in water off the east end of the Galveston Seawall. All three boys began to drown. Labroderick s uncle was able to save the other two boys, but not Labroderick. Gray sued appellees as owners of the property, claiming they were negligent. Appellees filed pleas to the jurisdiction based on their sovereign immunity from suit. Initially, the trial court refused to rule on the pleas to the jurisdiction, and granted appellant a continuance so that she could conduct discovery. In an original mandamus proceeding, this court held the trial court abused its discretion by not ruling on the pleas to the jurisdiction. City of Galveston v. Gray, 93 S.W.3d 587 (Tex. App. Houston [14th Dist.] 2002, pet. denied). The trial court then granted the pleas to the jurisdiction and dismissed appellant s suit. On appeal, Gray claims the trial court erred in granting appellees pleas to the jurisdiction because their immunity is waived under the Texas Tort Claims Act.

Discussion

Sovereign immunity from suit defeats a trial court s subject matter jurisdiction. Tex. Dept t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999). Generally, cities and counties enjoy sovereign immunity unless that immunity has been waived. County of Cameron v. Brown, 80 S.W.3d 549, 554 (Tex.2002). In order to invoke the subject matter jurisdiction of the trial court, the party suing the governmental entity must establish that immunity has been waived by the entity s consent. Jones, 8 S.W.3d at 639. We review the trial court s determination of subject matter jurisdiction de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998).

The Texas legislature granted a limited waiver of immunity from suit under the Texas Tort Claims Act which provides that a governmental unit is liable for injury or death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable under Texas law.[1] Tex. Civ. Prac. & Rem. Code Ann. 101.021(2) (Vernon1997). Therefore, we consider whether appellant has alleged facts under which appellees could be liable if they were private persons. See Flye v. City of Waco, 50 S.W.3d 645, 648 (Tex. App. Waco 2001, no pet.).

Under the Texas Recreational Use Statute, if a landowner gives permission to another to enter the land for recreation, the landowner only owes the degree of care owed to a trespasser. Id. at 75.002(c)(2). This duty is to refrain from causing injury through willful, wanton, or grossly negligent conduct. See City of Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex.2002). This duty does not encompass injury arising from a condition of realty, but only injury arising from some affirmative activity or conduct of the defendant. City of Lubbock v. Rule, 68 S.W.3d 853, 859 (Tex. App. Amarillo 2002, no pet.). Therefore, a property owner has no duty to warn a trespasser of a dangerous condition or to make the premises safe. Flye, 50 S.W.3d at 648.

Because Labroderick entered the premises for a recreational activity (swimming), appellees only owed him the duty owed to a trespasser. See Tex. Civ. Prac. & Rem. Code Ann. 75.001(3)(C) (Vernon Supp. 2004); Torres, 89 S.W.3d at 613. Therefore, in order for this case to come within the scope of the Tort Claims Act, appellant must have alleged facts that illustrate the injury arose from the willful, wanton, or grossly negligent conduct of appellees. Rule, 68 S.W.3d at 859. In her pleadings, Gray claims appellees were grossly negligent by (1) allowing access to the premises; (2) failing to provide any/adequate warning signs; (3) failing to provide trained security guards; (4) failing to make corrections after prior incidents involving other children and adults; and (5) failing to impose a ban on swimming in the area. However, these allegations are not based on any affirmative conduct of appellees that led to Labroderick s drowning, they are based on appellees failure to act. See Flye, 50 S.W.3d at 648 (holding claims almost identical to appellant s did not constitute allegations of grossly negligent activity). Because there is no duty owed to trespassers to warn about the condition of premises, or to make the premises safe, appellees had no duty regarding the condition of the premises. See id. Appellant has failed to demonstrate that immunity has been waived because she has not alleged facts under which appellees could be held liable were they private persons. See id. The trial court did not err in granting appellee s plea to the jurisdiction. Accordingly appellant s issue is overruled.[2]

Appellant also requests an opportunity to amend her pleadings. We recognize that an opportunity to amend pleadings is usually given to a plaintiff in the trial court before a case is dismissed for lack of jurisdiction. Tex. Ass n of Bus. v. Tex. Air Control Bd, 852 S.W.2d 440, 446 (Tex.1993). However, appellant did not request an opportunity to amend in the trial court, so she has waived any complaint that she has been denied this opportunity. Tex. R. App. P. 33.1(a); Dahl v. State, 92 S.W.3d 856, 862 n.6 (Tex. App. Houston [14th Dist.] 2002, no pet.).

Appellant also claims she was denied the opportunity to conduct discovery before the trial court ruled on appellees pleas to the jurisdiction. This court held in appellees original mandamus proceeding that the trial court abused its discretion in refusing to rule on appellees pleas to the jurisdiction and permitting appellant to conduct further discovery. Gray, 93 S.W.3d at 592. Because we have already ruled on this claim, our previous ruling is the law of the case, and governs this issue. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986).

Having overruled appellant s issue and denied her other claims for relief, we affirm the judgment of the trial court.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed December 11, 2003.

Panel consists of Justices Anderson, Seymore and Guzman.

[1] Appellees ask us to take judicial notice that Labroderick drowned in the Gulf of Mexico and therefore, hold appellees are not liable because the State of Texas owns the Gulf of Mexico. However, the record is not clear as to exactly where the drowning occurred. Therefore, this is not an appropriate fact for us to judicially notice. Tex. R. Evid. 201(b).

[2] Appellants also claim their pleas to the jurisdiction were properly granted because (1) they do not owe a general duty to provide public safety; (2) the death was not caused by appellants use of property as required by the Texas Tort Claims Act; and (3) the Texas Tort Claims Act does not waive immunity for discretionary functions. We affirm based on appellants claim that they owed no duty under the Texas Recreational Use Act, and, therefore, do not address appellants remaining claims.