City of Lubbock v. Rule

Decision Date28 January 2002
Docket NumberNo. 07-01-00248-CV.,07-01-00248-CV.
Citation68 S.W.3d 853
PartiesThe CITY OF LUBBOCK, Appellant, v. Ruede Don RULE and Deborah Ann Rule, individually and as next friend of G.R., Appellees.
CourtTexas Court of Appeals

Jeff Hartsell, Asst. City Atty., Lubbock, for appellant.

Ted Liggett, Asst. Crim. Dist. Atty., Lubbock, for appellee.

Before BOYD, C.J., QUINN, and REAVIS, JJ.

BRIAN QUINN, Justice.

In this interlocutory proceeding, the City of Lubbock appeals from an order denying its motion to dismiss for want of jurisdiction. The two issues before us involve whether the trial court erred in denying the motion and in refusing to receive live evidence proffered by the city at the hearing on the motion. For the reasons which follow, we reverse.

Background

Ruede Don and Deborah Rule sued the City to recompense damages allegedly suffered by their 20 month old daughter, G.R. The child purportedly suffered burns to her hands while attempting to climb upon a slide. The slide was located in a park or playground owned and operated by the City. Upon being served with suit, the City joined issue and urged that it was immune from suit, among other things. It also moved to dismiss the suit for want of jurisdiction. Accompanying the motion was another motion through which it sought summary judgment. Though the record does not reflect that the trial court acted upon the latter motion, it does illustrate that the court denied the former. And, it is from the order denying the motion to dismiss that the city appeals.

Issue One—Sovereign Immunity and Jurisdiction

The city initially contends that the trial court erred in overruling its motion to dismiss. This is allegedly so because the Rules failed to illustrate that they had a viable premises defect claim and failed to plead a cause of action within the scope of the Texas Tort Claims Act.1 We sustain the point.

Authority

Whether a trial court has subject matter jurisdiction is a question of law subject to de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert. denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); City of Lubbock v. Land, 33 S.W.3d 357, 358 (Tex.App.-Amarillo 2000, no pet.). Furthermore, the obligation to establish the existence of such jurisdiction lies with the party invoking the trial court's authority, normally the plaintiff. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). It is his duty to allege facts affirmatively illustrating the presence of jurisdiction. Id.2 Yet, if no one questions jurisdiction and unless it is clear from the pleadings that the court lacks same, jurisdiction must be presumed.3 Peek v. Equip. Serv. Co., 779 S.W.2d 802, 804 (Tex.1989). On the other hand, if the complainant's pleading is attacked and the jurisdictional allegations found wanting, the trial court must grant the complainant reasonable opportunity to correct the deficiency through amendment. Id. at 805; see Texas Ass'n Bus. v. Air Control Bd, 852 S.W.2d at 446 (recognizing that opportunity to amend is normally afforded the complainant). Only after affording that opportunity and the complainant fails to assert a claim within the trial court's jurisdiction may it dismiss the suit. Id.

Next, it is beyond dispute that municipalities enjoy aspects of sovereign immunity. This immunity insulates them from suit and effectively deprives a trial court of jurisdiction to entertain the cause. See Texas Dept. Transp. v. Jones, 8 S.W.3d 636, 638 (Tex.1999) (describing how immunity from suit, such as that bestowed by sovereign immunity, vitiates the trial court's jurisdiction). Moreover, the claim of immunity may be presented via a motion to dismiss for want of jurisdiction or a plea to the jurisdiction of the trial court. Id. To survive such a motion or plea, it is incumbent upon the complainant to illustrate that the immunity was somehow waived by statute or express legislative grant. Id. One way to do that is via the Texas Tort Claims Act, Tex. Civ. Prac. & Rem.Code Ann. § 101.001 et. seq (Vernon Supp.2001).

Through the Tort Claims Act, our legislature declared that a governmental entity (including municipalities) could be held liable for 1) damage, injury or death arising from the negligent operation or use of a motor-driven vehicle or motordriven equipment and 2) damage, injury, or death caused by a condition or use of tangible personalty or realty "if the governmental unit would, were it a private person, be liable to the claimant according to Texas Law." Tex. Civ. Prac. & Rem.Code Ann. § 101.021(1)(A) & (2). Thus, to avoid immunity via this Act, the complainant, through his pleadings, must allege facts illustrating a viable cause of action involving damage, injury or death 1) arising from the negligent operation or use of the type of vehicle or equipment described above or 2) caused by a condition or use of tangible personalty or realty under circumstances wherein a private person would be liable. E.g., McBride v. Texas Dep't Criminal Justice, 964 S.W.2d 18, 22 (Tex.App.-Tyler 1997, no pet.) (holding that to state a cause of action under the Act, the plaintiff must allege facts showing that the negligence was the proximate cause of his injuries and that it involved the use or condition of tangible property). In other words, for one to enjoy the window opened by the Tort Claims Act, they must plead facts which, if accepted as true, satisfy the elements of the Tort Claims Act.

We caution, however, that the trial court is not to assess the merits of the underlying cause of action when determining if the pleadings meet the requisite standard. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). That is, it must not require the complainant to prove the merits of his underlying cause of action. Again, the pleadings are normally the focus of the inquiry, though extraneous evidence may be received by the court depending upon the nature of the jurisdictional attack. Id.; see Texas Dep't Criminal Justice v. Miller, 51 S.W.3d 583, 587 (Tex.2001) (stating that "we must examine the plaintiff's pleadings to decide whether sovereign immunity has been waived" but also consider the evidence presented).4

Application of Authority

As mentioned above, the factual allegations illustrating the cause of action asserted by the Rules must be read liberally and in favor of the Rules. Those allegations illustrate that 1) the Rules' twenty month old daughter placed her hands on a slide which had absorbed heat from the sun, 2) the heat which had been absorbed burned her hands, 3) the city maintained the slide in a park it owned, 4) the heat was absorbed by the slide because protective coating had worn away from the situs at which G.R. placed her hands, 5) the condition of the slide created an unreasonable risk of harm, 6) the city "admit[ed] actual knowledge of the defect" and "acknowledge[d] no actions [were] taken to cure said defect," and 7) the city's conduct (i.e., knowingly maintaining the defective condition of the slide) constituted "not only negligence but wilful, wanton and gross negligence as defined by law." Conceivably, these allegations could be read as averring a claim of premises liability, i.e., breach by an occupier of land of the duties owed to a licensee.5 See Knorpp v. Hale, 981 S.W.2d 469, 471-72 (Tex.App.-Texarkana, no pet.) (describing the elements of such claims).

Yet, given that the pleadings indicate G.R.'s injuries were caused by contact with playground equipment in a city park, another statute comes into play. It is found at § 75.002 of the Civil Practice and Remedies Code. Through that provision, the legislature modified the duty of care normally owed to those granted permission to enter realty. It declared that an owner, lessee, or occupant of realty (other than agricultural land) who gives permission to another to enter the premises for "recreation" 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 that owed a trespasser, or 3) assume responsibility or incur liability for any injury to any individual or property caused by any act of a person to whom permission is granted. Tex. Civ. Prac. Rem.Code Ann. § 75.002(c) (Vernon Supp.2001). Furthermore, the term "recreation" was defined as including hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, birdwatching, cave exploration, waterskiing, water sports, and "any other activity associated with enjoying nature or the outdoors." Id. at § 75.001(3). That journeying to a park to enjoy its facilities and playground equipment is akin to "picnicking" (albeit without the food) and within the category of an "activity associated with enjoying nature or the outdoors" cannot reasonably be disputed. See Flye v. City of Waco, 50 S.W.3d 645, 647 (Tex. App.-Waco 2001, no pet.) (wherein the use of playground equipment, i.e. a swing, at a city park was considered to be within the statutory definition of recreation). And, therein lies the obstacle that proves fatal to the Rules's live pleadings.

While the legislature may not have intended for § 75.001 et. seq (or what has become known as the Recreational Use Act) to waive a governmental entity's sovereign immunity, id. at § 75.003(f), the statute nevertheless affects such an entity's liability under the Tort Claims Act if the premises were used for recreational purposes. This is so because the Recreational Use Act not only applies to governmental entities, id. at § 75.003(e), but also controls the extent of their liability "under circumstances in which ... [they] would be liable under ..." the Tort Claims Act. Id. at § 75.003(g). That is, to the extent that § 75.002(c) applies, the governmental entity need only treat those entering upon the property as a trespasser. It owes them no duties normally due licensees or invitees.6 Nor must it act as a reasonable person would ...

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