City of Midland & Wash. Aquatic Ctr. v. Bunch, 11-16-00276-CV

• Decision Date: 29 September 2017
• Docket Number: No. 11-16-00276-CV,11-16-00276-CV
• Parties: CITY OF MIDLAND AND WASHINGTON AQUATIC CENTER, Appellants v. HERBERT BUNCH, INDIVIDUALLY AND AS NEXT FRIEND OF TREBREH BUNCH, Appellee
• Court: Texas Court of Appeals

CITY OF MIDLAND AND WASHINGTON AQUATIC CENTER, Appellants v. HERBERT BUNCH, INDIVIDUALLYAND AS NEXT FRIEND OF TREBREH BUNCH, Appellee

No. 11-16-00276-CV

State of Texas in the Eleventh Court of Appeals

September 29, 2017

On Appeal from the County Court at Law Midland County, Texas

Trial Court Cause No. CC18606

MEMORANDUM OPINION

Herbert Bunch, individually and as next friend of Trebreh Bunch, sued the City of Midland and the Washington Aquatic Center for injuries that Herbert Bunch suffered when a bench broke while he was seated on it. Bunch specifically asserted negligence and premises liability claims in his original petition. The City of Midland, which owned and operated the Center (together, the City), filed a plea to the jurisdiction in which it asserted that Bunch's claims related to recreational use and were barred by governmental immunity. Bunch subsequently amended his pleadings to add a cause of action for gross negligence. The trial court denied the City's plea in its entirety. The City filed an interlocutory appeal. We affirm in part and reverse and render in part.

In both his original and his amended pleadings, Bunch alleged that, on June 8, 2014, he "visited the Washington Aquatic Center swimming pool run by the City of Midland" and "paid $3.00 for entry into the pool on the day of the incident in question with his son." Bunch further alleged, "Upon entry into the swimming park, [Bunch] sat down on a park-styled bench in the swimming area; when he leaned back, the bench broke causing him to fall backwards to the ground, causing bodily injury and other damages." In his second amended petition, Bunch added that an employee of the City had approached him after his injury and told him that the bench was supposed to have been replaced but that the City had failed to replace it.

In his original petition, Bunch alleged ordinary negligence and premises liability based on "the condition of the rusted bench," which "presented an unreasonable risk of harm." He further alleged that he was an invitee of the City at the time of his injury; that the City breached its duty of care when it failed to inspect, warn, or correct hazardous conditions the City knew about; and that he was injured as a result of the City's failure to use ordinary care.

The City filed a plea to the jurisdiction in which it asserted that, at the time of the alleged injury, Bunch was engaged in recreation as that term is defined in the recreational use statute. The City also noted that Bunch had not alleged gross negligence. Therefore, the City argued, Bunch had not pleaded a cause of action for which governmental immunity had been waived. Bunch subsequently filed a first and second amended petition in which he alleged gross negligence in addition to hisordinary negligence claims. The parties submitted no evidence relating to the trial court's jurisdiction. The trial court entered an order by which it denied the plea to the jurisdiction in its entirety.

"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). Such a plea challenges the trial court's subject-matter jurisdiction over a pleaded cause of action. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). If a governmental unit is immune from a pending claim, the trial court lacks subject-matter jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d 89, 95 (Tex. 2012). "Subject-matter jurisdiction is a question of law." Karl v. Brazos River Auth., 494 S.W.3d 168, 171 (Tex. App.—Eastland 2015, pet. denied) (citing Miranda, 133 S.W.3d at 226). Thus, we apply a de novo standard of review to a trial court's ruling on a plea to the jurisdiction. Id.

When a plea to the jurisdiction challenges the plaintiff's pleadings, as is the case here, we must examine the plaintiff's intent, construe the pleadings liberally in favor of the plaintiff, and accept the allegations in the plaintiff's pleadings as true to determine whether the plaintiff has alleged sufficient facts to affirmatively demonstrate the trial court's jurisdiction to hear the case. Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). A plaintiff bears the burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction. Miranda, 133 S.W.3d at 226.

Sovereign immunity generally protects the State from lawsuits for money damages. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Sovereign immunity extends to political subdivisions of the State, including cities. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.001(3)(B) (West Supp. 2016). However, the Texas TortClaims Act (TTCA) provides a limited waiver of governmental immunity. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655-56 (Tex. 2008); Miranda, 133 S.W.3d at 224. Specifically, the TTCA waives governmental immunity for three types of claims: (1) property damage, personal injury, and death caused by the use of a vehicle; (2) personal injury and death caused by a condition or use of tangible personal or real property; and (3) personal injury and death caused by premises defects. CIV. PRAC. & REM. §§ 101.021, .022, .025 (West 2011); Miranda, 133 S.W.3d at 225.

Liability under the TTCA, however, is further limited by "the recreational use statute." Miranda, 133 S.W.3d at 225; see CIV. PRAC. & REM. § 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 TTCA], Chapter 75 controls."). The recreational use statute's purpose is to encourage landowners to open their lands to the public for recreational purposes. State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). The statute limits the liability of the State and others who open their land for recreational purposes. Id. The statute provides in relevant part that, "if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises." CIV. PRAC. & REM. § 75.002(f) (West 2017) (emphasis added). The degree of care owed to a trespasser is "not to injure that person willfully, wantonly, or through gross negligence." Miranda, 133 S.W.3d at 225.

The recreational use statute applies to a plaintiff who is engaged in "recreation" on the governmental unit's "premises." Id.; City of Bellmead v. Torres, 89 S.W.3d 611, 613-14 (Tex. 2002). The statute provides a nonexclusive list of activities that constitute "recreation," including "swimming" and "any other activity associated with enjoying nature or the outdoors." CIV. PRAC. & REM.§ 75.001(3)(C), (L). The statute defines "premises" to include not only the land itself, but also "buildings, structures, machinery, and equipment attached to or located on the land." Id. § 75.001(2).

When we interpret statutes, we "give statutory terms their ordinary or common meaning unless context or a supplied definition indicates that a different meaning was intended." Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp., 520 S.W.3d 887, 893 (Tex. 2017) (citing Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 765 (Tex. 2014)). Therefore, in order to determine whether sitting on a "bench in the swimming area" (as alleged in Bunch's pleadings) is "swimming" or is an activity associated with swimming or with enjoying nature or the outdoors, we take note of the common, ordinary meaning of the word "associated." See Harris Cty. Appraisal Dist. v. Tex. Workforce Comm'n, 519 S.W.3d 113, 129 (Tex. 2017) (stating that, to "determine the ordinary meaning of statutory terms, 'we typically look first to their dictionary definitions'" (quoting Tex. State Bd. of Exam'rs of Marriage & Family Therapists v. Tex. Med. Ass'n, 511 S.W.3d 28, 35 (Tex. 2017))). The dictionary defines "associate" as "closely connected (as in function or office) with another" and as "closely related esp. in the mind." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 75 (2004).

The facts alleged by Bunch in his pleadings indicate that he was involved in recreation at the time of his injury: either swimming or an activity associated or closely related to swimming or enjoying the outdoors. See City of Dalhart v. Lathem, 476 S.W.3d 103, 108 (Tex. App.—Amarillo 2015, pet. denied) (holding that person was engaged in the recreational activity of swimming when she was injured, even though she was not in the water at the time, during a break while she sat with other swimmers at a picnic table on pool premises); Karl, 494 S.W.3d at 173 (holding that a person engages in recreation when the person is on the governmental unit's premises for a recreational activity as defined in the statute and is traveling to andfrom the recreational area); City of Plano v. Homoky, 294 S.W.3d 809, 817 (Tex. App.—Dallas 2009, no pet.) (holding that person was engaged in an activity associated with enjoying nature or the outdoors when she fell in the clubhouse after a...