Stephanie Brundage v. Harris County, et al.--Appeal from 215th District Court of Harris County

IN THE

TENTH COURT OF APPEALS

No. 10-93-207-CV

STEPHANIE BRUNDAGE,

Appellant

v.

HARRIS COUNTY, ET AL.,

Appellees

From the 215th District Court

Harris County, Texas

Trial Court # 92-29586

O P I N I O N

This is an appeal from a summary judgment. Plaintiff-Appellant, Stephanie Brundage, brought this suit against Defendant-Appellees, Harris County, the City of Hunters Creek, and the City of Piney Point, for damages for personal injuries allegedly received when she fell from her bicycle on a sidewalk designated as a "hike and bike" trail along Memorial Drive in Harris County, Texas. The suit against Defendant-Appellees was based upon their negligence, gross negligence and wilful and wanton conduct which proximately caused her injuries.

Plaintiff-Appellant alleged that Defendant-Appellees collectively and individually owned, operated, maintained, landscaped, and controlled the "hike and bike" trail in question.

Both the cities and the county contend that either Ms. Brundage was only owed the duty owed to a licensee (since there was no "special defect" under Tex. Civ. Prac. & Rem. Code 101.022) or only the duty owed to a trespasser (if the premises were used for "recreation" under Tex. Civ. Prac. & Rem. Code 75.002(c)).

The duty owed to licensees and trespassers is not to injure them through wilful, wanton, or gross negligence. State v. Tennison, (Tex. 1974) 509 S.W.2d 560, 562 (licensee); Rowland v. City of Corpus Christi, (Tex. App. Corpus Christi 1981, writ ref'd n.r.e.) 620 S.W.2d 930, 933 (trespasser).

Appellant Brundage properly pleaded in her petition that the cities and county injured her through gross negligence and wilful and wanton conduct.

None of the movants for summary judgment attempted to disprove these allegations of gross negligence. Moreover, a fact issue of gross negligence was established by the non-movant's proof.

The movants made no attempt to disprove Ms. Brundage's allegations of gross negligence. In short, neither the cities or the county offered any evidence at all to rebut Ms. Brundage's allegations of gross negligence. See Payne v. Cinco Ranch Venture, (Tex. App. Houston [1st Dist.] 1992, no writ) 822 S.W.2d 364, for a case directly on point dealing with this problem. In Cinco the plaintiff was injured when he dived into a rice pool on Cinco's land. As in the case at bar, Cinco relied upon Tex. Civ. Proc. & Rem. Code 75.002 and contended that since the plaintiff used Cinco's land for recreation, it owed no duty to the plaintiff because plaintiff was, in law, a trespasser.

The court of appeals reversed the summary judgment granted in Cinco. The court of appeals held that, "even if we treat Payne as a trespasser, Cinco cannot prevail because it did not conclusively prove it carried out its duty to Payne as a trespasser, i.e., that it did not injure him through gross negligence."

The court also noted: "Payne alleged Cinco injured him through its gross negligence. Cinco had no summary judgment proof to conclusively disprove Payne's gross negligence contentions." Since, as in the case at bar, there was no summary judgment proof to conclusively disprove the gross negligence allegations, the court of appeals in Cinco reversed the summary judgment and remanded for trial.

Applying this same reasoning in the case at bar, we reverse the summary judgment of the trial court as applied to all three Appellees, and remand the cause to the trial court for trial on the merits.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Justice James (Retired)

Reversed and remanded

Opinion delivered and filed December 14, 1994

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