Austin v. Flynn

• Decision Date: 30 April 2004
• Docket Number: No. 12,12
• Citation: 202 S.W.3d 167
• Parties: STEPHEN F. AUSTIN STATE UNIVERSITY, Appellant v. DIANE FLYNN, Appellee.
• Court: Texas Court of Appeals

202 S.W.3d 167

STEPHEN F. AUSTIN STATE UNIVERSITY, Appellant v. DIANE FLYNN, Appellee.

No. 12-03-00240-CV.

Court of Appeals of Texas, Twelfth District, Tyler.

Opinion delivered April 30, 2004.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and DeVASTO, J.

OPINION ON REHEARING

DIANE DEVASTO, Justice.

On January 21, 2004, we issued an opinion in this cause affirming the trial court's denial of Stephen F. Austin State University's ("SFA") plea to the jurisdiction. SFA subsequently filed a motion for rehearing, which we overrule. We withdraw our previous opinion and judgment of the same date and substitute the following opinion and corresponding judgment on rehearing.

Appellee, Diane Flynn, sued SFA pursuant to the Texas Tort Claims Act for personal injuries. SFA filed a plea to the jurisdiction maintaining its entitlement to a dismissal based on the doctrine of sovereign immunity and application of the recreational use statute. The trial court denied the plea. SFA appealed, asserting in two issues that the trial court erred in determining it had waived sovereign immunity. We affirm the trial court's order.

BACKGROUND

On August 7, 2000, Flynn and her husband were riding their bikes along the Lanana Creek Trail in Nacogdoches. As she rode on the trail adjacent to a shot put field on SFA's campus, she was hit by a stream of water from an oscillating sprinkler located by the shot put field. The sprinkler head was about four feet from the path she rode on. The water hit her on the right side of her head and the force knocked her off her bike.

Flynn sued SFA for personal injuries she incurred from the accident. Flynn alleged in her petition that the portion of the trail running through SFA property was located on an easement owned by the city of Nacogdoches. She alleged that SFA's negligent use of personal property, the sprinkler, caused her injuries. Specifically, she contends SFA negligently caused the water's path to cross the trail where people commonly walk and bicycle and SFA activated the sprinkler at a time of day when people were likely to use the trail.

Alternatively, she alleged that if SFA did occupy that portion of the trail where she was injured, SFA was engaged in a negligent activity on its premises which caused her injuries. She also alleged alternatively that if SFA occupied the trail on which she was injured, the premises on which she was injured were not reasonably safe and presented an unreasonable risk of harm in that the sprinkler came on at unknown times where people were expected to walk, bicycle, and travel. She further alleged that SFA violated its duty to exercise ordinary care by failing to warn of the dangerous condition, failing to repair or remove the dangerous condition, and by creating the unsafe condition by allowing the water sprinkler to be installed such that a forceful stream of water came on at unknown times. She further alleged that SFA knew of the danger the sprinkler posed, while she did not. Flynn also alleged that SFA's negligence proximately caused her injuries.

Finally, she alleged that all of the actions and omissions of SFA were of such a character to make SFA guilty of gross negligence and/or malice. She asserted that SFA's conduct involved an extreme degree of risk, considering the probability and the magnitude of potential harm to others. Further, she alleged that SFA engaged in conduct with conscious indifference to the rights, safety, or welfare of others.

SFA filed a plea to the jurisdiction contending it enjoys sovereign immunity. Specifically, it asserted Flynn did not claim any injury resulting from any alleged negligent act involving the operation or use of motor-driven vehicles or equipment, failed to state any cognizable claim based on an alleged use of personal property, and her allegations amount to claims involving a premise defect. SFA argued that Flynn's allegations are governed by the recreational use statute which bars claims of ordinary negligence. Further, it argued that Flynn's allegations of gross negligence fail to state a cognizable claim and were pleaded as a sham in an attempt to wrongfully obtain jurisdiction. In response to Flynn's argument that she was injured on an easement granted to the city of Nacogdoches, SFA asserted in its supplemental plea that, if the easement exists, it owed no duty to Flynn whatsoever. Finally, SFA contended that the acts about which Flynn complains are discretionary acts for which SFA retains immunity from suit. In support of the plea, SFA relied on Flynn's petition and excerpts from depositions of Flynn and her husband in which they describe their actions and what they saw on the day Flynn was injured.

The trial court found that SFA's watering of the grounds is a discretionary function while the placement and operation of the sprinkler system constitute policy implementation. The court denied SFA's plea to the jurisdiction and motion to dismiss.

APPLICABLE LAW

Immunity from Suit

Immunity from suit bars an action against the State unless the State expressly consents to the suit. Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). A party suing a governmental entity must establish the State's consent, which may be alleged either by reference to a statute or to express legislative permission. Id. Since as early as 1847, the law in Texas has been that, absent the State's consent to suit, a trial court lacks subject matter jurisdiction. Id. The absence of subject matter jurisdiction may be raised by a plea to the jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000).

Plea to the Jurisdiction

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. Id. A plea to the jurisdiction contests the trial court's authority to determine the subject matter of the cause of action. Cornyn v. County of Hill, 10 S.W.3d 424, 427 (Tex. App.—Waco 2000, no pet.). Whether a court has subject matter jurisdiction is a legal question. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). Whether a pleader has alleged facts that affirmatively demonstrate a trial court's subject matter jurisdiction is a question of law reviewed de novo. Texas Dep't of Parks & Wildlife v. Miranda, 47 Tex. Sup. Ct. J. 386, 2004 Tex. LEXIS 304, at *19 (Tex. April 2, 2004). Likewise, whether undisputed evidence of jurisdictional facts establishes a trial court's jurisdiction is also a question of law. Id.

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. Id. at *20. We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at *20-21. If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. at *21.

However, if a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, as the trial court is required to do. Blue, 34 S.W.3d at 555. The trial court reviews the relevant evidence to determine if a fact issue exists. Miranda, 2004 Tex. LEXIS 304, at *22. 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. 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 *22-23.

After the State asserts and supports with evidence that the trial court lacks subject matter jurisdiction, we 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 jurisdiction issue. Id. at *25. When reviewing a plea to the jurisdiction in which the pleading requirement has been met and evidence has been submitted to support the plea that implicates the merits of the case, we take as true all evidence favorable to the nonmovant. Id. at *25-26. We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Id. at 26.

Waiver of Immunity

The Texas Legislature granted a limited waiver of immunity from suit under the Tort Claims Act (the "Act") which provides that a governmental unit is liable for personal injury or death proximately caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant under Texas law. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021 (Vernon 1997). Section 101.058 of the Act further modifies a governmental unit's waiver of immunity from suit by imposing the limitations of liability articulated in the recreational use statute. TEX. CIV. PRAC. & REM. CODE ANN. § 101.058 (Vernon 1997); Miranda, 2004 Tex. LEXIS 304, at * 14-15.

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. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c)(2) (Vernon Supp. 2004). 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). Thus, when the premises is a recreational facility within Chapter 75 of the Texas...