City of El Paso v. Collins
| Decision Date | 20 January 2016 |
| Docket Number | No. 08–14–00319–CV,08–14–00319–CV |
| Citation | 483 S.W.3d 742 |
| Parties | The City of El Paso, Appellant, v. Harold Collins and Catherine Teague–Collins, Individually and Next Friend s of Jade Collins, A Minor, and Jasmine Collions, A Minor, Appellees. |
| Court | Texas Court of Appeals |
Oscar G. Gabaldon, Jr., Laura P. Gordon, for The City of El Paso.
Joseph Isaac, Jeffrey B. Pownell, for Harold Collins and Catherine Teague–Collins, Individually and Next Friends of Jade Collins, A Minor, and Jasmine Collions, A Minor.
Before McClure, C.J., Rodriguez, and Hughes, JJ.
STEVEN L. HUGHES
The Collins sued the City of El Paso raising premises liability and negligent use claims after their child suffered injuries at a City swimming pool. The City filed a plea to the jurisdiction seeking dismissal based on governmental immunity. The trial court denied the plea, and this interlocutory appeal followed. We reverse the trial court in part and dismiss the Collins' negligent use claim for lack of subject matter jurisdiction. We affirm the trial court's refusal to dismiss the premises liability claim and remand that claim for further proceedings in accordance with this opinion.
On June 13, 2008, the Collins' two six-year-old children, Jade and Jasmine, were taken on a field trip by their day care center to a swimming pool owned and operated by the City. Jade, who was unable to swim, went unsupervised into an area of the pool where she could not stand up. According to a police report attached to the Collins' pleadings, an individual at the pool felt Jade bump against him while she was submerged in the water. The individual dove to the bottom of the pool to rescue her. The individual reported that he could not "tell if [Jade] was actually swimming due to the water being extremely cloudy" and that he could not see the bottom of the pool until he dove into the water. Once he reached the bottom of the pool, the individual observed that Jade's hand was "caught in the grooves" of the drainage grate, but he was nevertheless able to pull Jade out of the water and bring her to the surface. Although Jade survived, she was unconscious when pulled from the pool, and, according to the Collins, she suffered "severe and substantial injuries from her near-death drowning[.]"
The Collins initially sued only the daycare center for its alleged negligence in failing to supervise Jade at the pool, asserting that Jade was under the daycare center's "care and control" and that the daycare center was negligent in allowing Jade to swim in the pool given its cloudy condition. The daycare center subsequently filed a motion to designate the City as a responsible third party, claiming that Jade's injuries were proximately caused by a defect in the pool's filtration system that caused the water to become cloudy.
The Collins then amended their petition to name the City as a defendant as well. In their Fifth Amended Petition, the Collins raised three causes of action against the City: (1) a claim they labeled, "Responsible Third Party Designation," asserting generally that the City was at least partially responsible for Jade's injuries; (2) a premises liability claim, alleging both that the pool had a "defective drain, drain cover, and filtration system which allowed children to become entrapped or entangled, thereby creating a drowning hazard," and that there were malfunctions in the filtration system that caused the water in the pool to become "very cloudy, to the point that the black lines at the bottom of the pool were unnoticeable"; and (3) a negligent use claim, based on City employees' alleged "misuse" of property at the pool, which included using the pool's allegedly defective equipment and allowing the public to "use" the cloudy water.
The City filed a plea to the jurisdiction with regard to the Collins' Fifth Amended Petition, contending that the Collins had failed to properly plead any causes of action for which governmental immunity was waived under the Texas Tort Claims Act. The trial court denied the plea, and the City filed its first interlocutory appeal, which we considered in City of El Paso v. Collins, 440 S.W.3d 879 (Tex.App.—El Paso 2013, no pet.)
("Collins I").
In Collins I,
we were faced solely with the question whether the Collins' pleadings stated a valid claim against the City for which governmental immunity had been waived. Id. at 883. We considered each of the Collins' claims separately, reaching varying conclusions as to each.
First, we agreed with the City that the cause of action seeking to hold the City liable as a "responsible third party" did not state a cause of action for which governmental immunity had been waived, and we reversed and rendered judgment dismissing that claim. Id. at 883, 888–89
.
Second, we recognized that a governmental entity's immunity is waived for a valid premises liability claim under the Tort Claims Act, but concluded that the Collins had failed to properly plead the requisite elements of a premises liability claim. Id. at 886–87
. In particular, we held that the Collins' lawsuit was governed by the Recreational Use Statute, which requires a plaintiff to allege that a defendant who has opened his premises up to recreational use acted with gross negligence and in turn requires a plaintiff to plead that the defendant engaged in an act that involved an extreme degree of risk and that the defendant had actual subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety and welfare of others. Id. at 885–86. We held that while the Collins had made conclusory allegations that the City acted with gross negligence, they had failed to make any allegations that the City had subjective knowledge of any alleged defects or malfunctions in the pool's equipment that posed an extreme risk that children swimming at the pool could become entrapped in the drain, or that the cloudy water prevented others from seeing that a child was trapped. Id. at 886. We also concluded that the Collins had failed to properly allege that the defects were the proximate cause of Jade's injuries. Id. at 886–87. Nevertheless, our review of the record convinced us that it was not impossible for the Collins to plead the requisite elements of their premises liability claim, and we therefore remanded the case to give the Collins the opportunity to amend their pleadings to state a valid premises liability claim for which governmental immunity had been waived. Id.
Third, we construed the Collins' third claim as an attempt to bring a negligent use cause of action against the City under Section 101.021(2) of the Tort Claims Act, for the City's alleged misuse of tangible property at the pool. Id. at 887
. While we noted that the City's immunity is generally waived for a valid negligent use claim under the Tort Claims Act, we declined to consider whether the Collins had properly pleaded a negligent use claim because the City had not directly raised that issue on appeal. Id. at 888.
Proceedings on Remand
On remand, the Collins filed three additional amended petitions—a Sixth Amended, a Seventh Amended, and a Supplemental Petition—in which they alleged, in accordance with our opinion in Collins I,
that the City had been "subjectively aware" of the extreme risk of harm that was posed by two separate allegedly dangerous conditions at the pool.1 In particular, the Collins claimed that the City was aware that the "pool's malfunctioning filtration and draining system created an extreme risk of harm to Plaintiff JADE COLLINS and other children who were authorized and permitted to use and swim in the Veteran's Park Pool, by (1) creating an extremely dangerous suction in the drain at the bottom of the pool, which was substantially certain to trap small children and prevent them from coming up for air that would result in the trapped child's drowning and death; and by (2) allowing the pool water quality to become so cloudy and murky that it would prevent others, including lifeguards and other persons in the immediate vicinity of the pool area, from being able to see a child trapped by the suction in the drain at the bottom of the pool."2
Although the City never came forward with any of its own evidence to dispute any of the Collins' factual allegations, the Collins summarized and attached to their Seventh Amended Petition an excerpt from the deposition testimony of the City's aquatics manager, Wright Stanton, as "jurisdictional evidence" to support their claim that the City acted with "gross negligence." In the attached excerpt, Stanton agreed with a hypothetical question posed to him that if pool water becomes so cloudy that the black lines at the bottom of the pool cannot be seen, it would be "grossly negligent" to allow swimmers to use the pool. Stanton also explained, however, that he was not responsible for the "day-to-day maintenance" of the swimming pool and that he had no personal knowledge of the conditions of the pool at the time of Jade's accident. Stanton also testified that he had never been made aware of any problems with the "drains or the suction of the drains on the bottom of Veterans Park pool[.]"
The City responded to the Seventh Amended Petition by filing yet another plea to the jurisdiction. In that plea, the City alleged that the Collins had made only conclusory allegations that the City had actual knowledge of any dangerous conditions at the pool on the day of Jade's accident. The City argued that the Collins were required to "plead and prove" specific facts demonstrating that the City had actual knowledge of a dangerous condition at the pool, including "how or why the City could have been aware" of the dangerous conditions existing at the pool. The City contended that the Collins' use of Stanton's deposition did not support their allegations, because Stanton testified only from a hypothetical standpoint, and pointed out that Stanton provided no testimony on the...
To continue reading
Request your trial
-
Luttrell v. El Paso Cnty.
...Id. at 895 (citing Texas Department of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004) ); see also City of El Paso v. Collins , 483 S.W.3d 742, 748–49 (Tex. App.—El Paso 2016, no pet.). The question of whether a plaintiff has alleged facts that affirmatively demonstrate a tria......
-
Luttrell v. El Paso Cnty.
...Id. at 895 (citing Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); see also City of El Paso v. Collins, 483 S.W.3d 742, 748-49 (Tex. App.--El Paso 2016, no pet.). The question of whether a plaintiff has alleged facts that affirmatively demonstrate a trial ......
-
Whitehead v. Green
...147 Ga. App. 790, 792 (3), 250 S.E.2d 519 (1978) (declining to find that swimming pool was a mantrap).17 See City of El Paso v. Collins , 483 S.W.3d 742, 754 (Tex. Ct. App. 2016) ("If in fact the [appellees] had alleged in their pleadings that the cloudy water was the only dangerous conditi......
-
Rodriguez v. Cemex, Inc.
...of similar incidents of near-drownings on its premises supported the plaintiff's premises liability claim); see also City of El Paso v. Collins , 483 S.W.3d 742, 751–52 (Tex. App.—El Paso 2016, no pet.) (plaintiffs' pleadings were sufficient to allege a valid premises liability claim where ......