CITY OF EDINBURG v. VERONICA VASQUEZ, AS NEXT FRIEND OF SAMANTHA VASQUEZ, A MINOR CHILD--Appeal from 398th District Court of Hidalgo County

NUMBER 13-05-173-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

 CITY OF EDINBURG, Appellant,

v.

VERONICA VASQUEZ, AS NEXT FRIEND OF

SAMANTHA VASQUEZ, A MINOR CHILD, Appellee.

___________________________________________________________________

On appeal from the 398th District Court

of Hidalgo County, Texas.

___________________________________________________ _______________

MEMORANDUM OPINION

Before Justices Hinojosa, Ya ez, and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, the City of Edinburg, brings this accelerated interlocutory appeal following the trial court's denial of its plea to the jurisdiction and motion to dismiss.[1] By its sole issue, appellant contends the trial court erred in denying its plea to the jurisdiction because the allegations raised by appellee, Veronica Vasquez, as next friend of Samantha Vasquez, a minor child, were insufficient to invoke a waiver of appellant's sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. '' 75.001-.003, 101.001-.109 (Vernon 2005 & Supp. 2005). We affirm in part, reverse and remand in part, and reverse and render in part.

I. Background

All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

II. Plea to the Jurisdiction

A. Standard of Review

A plea to the jurisdiction 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 plea challenges the trial court's jurisdiction over the subject matter of a pleaded cause of action. State of Tex. Parks & Wildlife Dep't v. Morris, 129 S.W.3d 804, 807 (Tex. App.BCorpus Christi 2004, no pet.). Whether a trial court has subject matter jurisdiction is a question of law. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Therefore, we review a trial court's ruling on a plea to the jurisdiction de novo. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2003); Morris, 129 S.W.3d at 807.

When a plea to the jurisdiction challenges the pleadings, we determine if the plaintiff has overcome the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993)). Rather than evaluating the claim's merits, we look to the pleader's intent and construe the pleadings liberally in favor of the plaintiff. Id.; Morris, 129 S.W.3d at 807. If the pleadings do not contain facts sufficient to demonstrate the trial court's jurisdiction, but do not affirmatively demonstrate incurable defects in the court's jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be allowed to amend the petition. Miranda, 133 S.W.3d at 226-27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002)); Morris, 129 S.W.3d at 807. If, however, the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff to amend the petition. Miranda, 133 S.W.3d at 227; Morris, 129 S.W.3d at 807.

B. The Law

Under the common law doctrine of sovereign immunity, a municipality is immune from suit in tort for the performance of its governmental functions,[2] see City of Corpus Christi v. Absolute Indus., 120 S.W.3d 1, 3 (Tex. App.BCorpus Christi 2001, pet. denied); however, a city can be sued under the common law for performance of its proprietary functions.[3] See id. Moreover, the Texas Tort Claims Act (the Act) provides a limited waiver of a municipality's sovereign immunity with respect to performance of its governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. '101.0215; see also Miranda, 133 S.W.3d at 224. The Act expressly waives a municipality's sovereign immunity in three areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. See Miranda, 133 S.W.3d at 225 (citing Brown, 80 S.W.3d at 554; Tex. Civ. Prac. & Rem. Code Ann. ' 101.021). However, section 101.058 of the Act modifies a city's waiver of immunity from suit by imposing limitations of liability as articulated in the recreational use statute. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.058 ("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 Texas Tort Claims Act], Chapter 75 controls.");[4] see also Miranda, 133 S.W.3d at 225.

Chapter 75, commonly referred to as the recreational use statute, serves to limit the liability of landowners who allow the public to enter their land for recreational use. Morris, 129 S.W.3d at 808. The recreational use statute provides in pertinent part:

(c) If an owner, lessee, or occupant of real property other than agricultural land gives permission to another to enter the premises for recreation, the owner, lessee, or occupant, by giving the permission, does not:

(1) assure that the premises are safe for that purpose;

(2) owe to the person to whom permission is granted a greater degree of care than is owed to a trespasser on the premises; or

(3) assume responsibility or incur liability for any injury to any individual or property caused by any act of the person to whom permission is granted.

Tex. Civ. Prac. & Rem. Code Ann. ' 75.002(c). Therefore, the recreational use statute limits a governmental unit's duty for premises defects and injuries arising out of conditions or use of property to that which is owed a trespasser. See id. '' 75.002(c), 75.003(g), 101.021-.022, 101.058; see also Miranda, 133 S.W.3d at 225. The limited duty owed to a trespasser is not to injure the trespasser willfully, wantonly, or through gross negligence. Miranda, 133 S.W.3d at 225 (citing Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997)). Thus, a city waives sovereign immunity under the Act as limited by the recreational use statute only if it is grossly negligent.[5] Id. (citing Tex. Civ. Prac. & Rem. Code Ann. ' 75.002(c)-(d); City of Bellmead v. Torres, 89 S.W.3d 611, 613 (Tex. 2002); Timmons, 947 S.W.2d at 193).

C. Analysis

Appellant generally contends that appellee's claims are insufficient to waive its immunity and to confer subject matter jurisdiction on the trial court. More specifically, appellant asserts that appellee's claim for premises defect or special defect is based on a theory of negligence, which is the wrong standard of care to apply in the instant case.[6] We agree with appellant. Because the recreational use statute serves to limit liability under the Act for a claim of premises defect or special defect, appellee was required to state her cause of action for premises defect or special defect in terms of gross negligence on the part of appellant.[7] See Tex. Civ. Prac. & Rem. Code Ann. '' 75.003(g), 101.022, 101.058; see also Miranda, 133 S.W.3d at 225. However, even after liberally construing appellee's claim, we find that she failed to do so. Miranda, 133 S.W.3d at 226; Morris, 129 S.W.3d at 807. Therefore, we conclude that appellee's claim for premises defect or special defect failed to affirmatively demonstrate the trial court's jurisdiction over this cause of action. Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus., 852 S.W.2d at 446). However, because appellee's pleading with respect to this claim does not demonstrate an incurable defect in the court's jurisdiction, appellee should be allowed to amend her petition to state a claim for premises or special defect. See id. at 226-27 (citing Brown, 80 S.W.3d at 555); Morris, 129 S.W.3d at 807.

Next, appellant contends that appellee's alternate theory of liability that appellant is liable under the Act and the recreational use statute, see Tex. Civ. Prac. & Rem. Code Ann. '' 75.001-.003, 101.001-.109, for injuries to the child stemming from appellant's willful, wanton, and/or grossly negligent conduct with respect to its duties and failure to repair the playground equipment in question, does not state a cause of action sufficient to confer jurisdiction. Appellant asserts jurisdiction is not conferred upon the trial court because (1) the recreational use statute limits appellant's treatment of the child to that of a trespasser, and therefore, (2) appellant had no duty regarding the condition of the premises. We disagree with appellant. While appellant is correct in asserting that the recreational use statute limits appellant's treatment of the child to that of a trespasser, the duty owed to a trespasser is such as not to injure the trespasser through gross negligence. Miranda, 133 S.W.3d at 225 (citing Timmons, 947 S.W.2d at 193). In liberally construing appellee's allegation and in looking at her intent, we conclude that this alternate theory of liability affirmatively states a claim for gross negligence with respect to an injury arising out of conditions or use of property as it relates to the playground equipment. See id. at 225-26. Thus, appellee's first amended petition properly alleges a claim for which the Act, as limited by the recreational use statute, waives a city's sovereign immunity. See Tex. Civ. Prac. & Rem. Code Ann. '' 75.003(g), 101.021, 101.0215, 101.025, 101.058; see also Miranda, 133 S.W.3d at 225.

Finally, while appellee asserts a second alternate theory of liability that appellant is liable under the common law for taking on duties and responsibilities outside of its governmental functions, appellant argues that, by statute, recreational facilities and parks are governmental functions, and therefore, there is no common law liability in the instant case. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215(a)(13), (23). We agree with appellant. Historically, a city's operation of a park was a proprietary function for which a city could be liable in tort. Kopplin v. City of Garland, 869 S.W.2d at 433, 439 (Tex. App.BDallas 1993, writ denied). However, the Act re-classified the operation of a city park to a governmental function. Id. (citing Tex. Civ. Prac. & Rem. Code Ann. '101.0215(a)(13)). Because appellant's operation of a city park is a governmental function, rather than a proprietary one, appellant is immune from suit under the common law in relation to such operation.[8] City of Corpus Christi, 120 S.W.3d at 3. Therefore, we conclude that appellee's second alternate theory of liability affirmatively negates the court's subject matter jurisdiction over this cause of action. Miranda, 133 S.W.3d at 227; Morris, 129 S.W.3d at 807. Thus, appellant's plea to the jurisdiction with respect to this common law cause of action should have been granted. Miranda, 133 S.W.3d at 227; Morris, 129 S.W.3d at 807.

Thus, we overrule appellant's issue in part and sustain it in part.

III. Conclusion

Accordingly, we affirm the trial court's order denying appellant's plea to the jurisdiction as to appellee's claim for gross negligence pursuant to the Act and the recreational use statute. We reverse the trial court's order as to appellee's claim for premises defect and special defect and remand this cause of action for further proceedings commensurate with this opinion. We also reverse the trial court's order and render judgment, granting appellant's plea to the jurisdiction, as to appellee's common law theory of liability.

NELDA V. RODRIGUEZ

Justice

Memorandum Opinion delivered and

filed this 8th day of December, 2005.

[1]Section 51.014(a)(8) of the Texas Civil Practice and Remedies Code authorizes a governmental unit to appeal an interlocutory order that grants or denies a plea to the jurisdiction. Tex. Civ. Prac. & Rem. Code Ann. ' 51.014(a)(8) (Vernon 2005 & Supp. 2005). Appellant, being a city, qualifies as such a governmental unit; therefore, it is authorized by statute to bring this interlocutory appeal. See id. '' 51.014(a)(8), 101.001(3)(B).

[2]Governmental functions are those functions "which are enjoined on a municipality by law . . . to be exercised by the municipality in the interest of the general public . . . ." Id. ' 101.0215(a).

[3]Proprietary functions are those functions "that a municipality may, in its discretion, perform in the interest of the inhabitants of the municipality . . . ." Id. ' 101.0215(b).

[4]Likewise, section 75.003(g) of the Texas Civil Practice and Remedies Code provides: "To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under [the Texas Tort Claims Act], this chapter controls." Id. ' 75.003(g).

[5]Gross negligence involves the following two components:

(1) viewed objectively from the actor's standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others.

Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004) (citing Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999)).

[6]In her first amended petition, appellee alleged that Samantha Vasquez, a minor child, was injured as a result of using playground equipment at a City of Edinburg park. Under her allegation of premises defect or special defect, appellee contends that the defect posed an unreasonable risk of harm, appellant owed a duty to appellee to exercise reasonable care, appellant breached that duty by failing to adequately warn the appellee of the condition and by failing to make the condition reasonably safe, and as a direct and proximate result of the appellant's negligent conduct and/or omissions, appellee suffered grievous bodily harm.

[7]Use of playground equipment at a city park is a recreational activity contemplated under the recreational use statute. See Tex. Civ. Prac. & Rem. Code Ann. ' 75.001(3)(L) (providing that recreation includes any other activity associated with enjoying nature or the outdoors); Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App.BDallas 1993, writ denied) (holding that playing on playground equipment in a city park is a recreational activity contemplated under Chapter 75).

[8]However, as previously set out, the Act provides a limited waiver of a city's sovereign immunity for performance of governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215; Miranda, 133 S.W.3d at 224. Therefore, appellee's proper cause of action is under the Act, rather than the common law, for acts related to governmental functions. See Tex. Civ. Prac. & Rem. Code Ann. ' 101.0215; Miranda, 133 S.W.3d at 224.