Karl v. Brazos River Auth.

• Decision Date: 23 April 2015
• Docket Number: No. 11–13–00010–CV,11–13–00010–CV
• Parties: Lisa Karl, Appellant v. Brazos River Authority, Appellee
• Court: Texas Court of Appeals

494 S.W.3d 168

Lisa Karl, Appellant

v.Brazos River Authority, Appellee

No. 11–13–00010–CV

Court of Appeals of Texas, Eastland.

April 23, 2015

John K. Dubiel Jr., Murray L. Bristol, Bristol & Dubiel LLP, Dallas, for Appellant.

Roy Lee Barrett, Robert Little, Neal E. Pirkle, Naman, Howell, Smith & Lee, PLLC, Waco, for Appellee.

Panel consists of: Wright, C.J., Willson, J., and Bailey, J.

OPINION

JOHN M. BAILEY, JUSTICE

Lisa Karl brought a premises liability action against the Brazos River Authority (Authority). The Authority is a conservation and reclamation district created by statute that is a “river authority, a governmental agency, a municipality, and a body politic and corporate.” TEX. SPEC. DIST. CODE ANN. § 8502.001(a) (West Pamph. 2014). The Authority filed a plea to the jurisdiction based on the ground that Karl's claims were barred by governmental immunity. The trial court entered an order granting the Authority's plea. Karl appeals the trial court's order. Because we conclude that the recreational use statute¹ applies to Karl's claims, we affirm the trial court's order.

Background Facts

The underlying facts in this appeal are largely uncontroverted. On July 2, 2011, Karl and her sister, Rebecca Henderson, took their five children to Possum Kingdom Lake to go swimming. Karl, Henderson, and the children were wearing swimsuits under their clothes. They had an ice chest full of drinks and snacks with them. Karl and Henderson intended to go swimming in an area called Sandy Beach. However, the group instead arrived at the North D & D Public Use Area, which was owned by the Authority. The North D & D had a swimming area and a beach area on Possum Kingdom Lake.

Karl entered the North D & D by driving her pickup through the entrance gate to the property. She drove to a gatekeeper booth on the North D & D premises. She stayed in her pickup and talked with an attendant who was working at the booth. Karl asked the attendant whether there was room at the North D & D for her and her group to swim. The attendant responded that there was room. Karl pulled her pickup closer to the booth and then parked there temporarily. She got out of the pickup and walked up a step onto a concrete slab where the booth was located. Henderson and the children waited in the vehicle. Karl paid the attendant for a day pass for her and her group to go swimming. Karl turned around to go back to her pickup. When she stepped off the slab and onto the step, she fell to the ground and broke her left ankle. Karl claimed that the step was loose and gave way when she stepped onto it.

On February 2, 2012, Karl filed a premises liability suit against the Authority. She alleged that the condition of the loose step constituted a “premises defect that posed an unreasonable risk of harm.” She further alleged that she was an invitee of the Authority at the time of her injury, that the Authority breached the duty to use ordinary care by failing to reduce or eliminate the unreasonable risk of harm created by the step, and that she was injured as a result of the Authority's failure to use ordinary care.

The Authority filed a plea to the jurisdiction. The Authority asserted that, at the time of her injury, Karl was engaged in recreation as that term is defined in the recreational use statute. Therefore, the Authority argued that Karl's claims were barred by governmental immunity. The trial court held a hearing on the Authority's plea and subsequently entered an order granting the plea.

Issues on Appeal

Karl challenges the trial court's order in two issues. In her first issue, Karl contends that the Texas Tort Claims Act² waives governmental immunity for her premises defect claims. In her second issue, Karl contends that she was not engaged in recreation at the time of her accident and that, therefore, the trial court erred in concluding that the recreational use statute applies to her claims.

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 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 has immunity from a pending claim, the trial court lacks subject-matter jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex.2012). Subject-matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. Therefore, 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, we look to 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 Cnty., 369 S.W.3d 137, 149 (Tex.2012). When, as here, the plea challenges jurisdictional facts, we consider relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227 ; Blue, 34 S.W.3d at 555. The standard of review applicable to a trial court's ruling on a plea to the jurisdiction “generally mirrors” the standard that applies to a traditional summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure. Miranda, 133 S.W.3d at 228. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in favor of the nonmovant. Id.

If the evidence creates a fact question regarding the jurisdictional issue, the trial court cannot grant the plea to the jurisdiction, and the fact issue must be resolved by the factfinder. Id. at 227–28. “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 228.

Analysis

“Sovereign immunity protects the State from lawsuits for money damages.” Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex.2006). Governmental immunity provides this protection to political subdivisions of the State, such as the Authority, and it is derived from the State's sovereign immunity. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex.2011) ; see Civ. Prac. & Rem. § 101.001(3)(B). The Texas Tort Claims 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, Section 101.021 of the TTCA waives governmental immunity in three areas: (1) property damage, personal injury, and death caused by the use of publicly owned vehicles; (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, 101.022, 101.025 ; Miranda, 133 S.W.3d at 225. In this case, Karl claims that her injury was caused by a premises defect—an allegedly loose step—on the Authority's property. Thus, Karl's premises liability claim fits within the third area of waiver listed above.

The TTCA provides that “if a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes to a licensee on private property, unless the claimant pays for the use of the premises.” Civ. Prac. & Rem. § 101.022(a). If the claimant pays to use the premises, the governmental unit owes the claimant the duty owed to an invitee. City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex.App.—Dallas 2009, no pet.).

However, with regard to premises defect claims, Section 101.058 of the TTCA modifies a governmental unit's waiver of immunity “by imposing the limitations of liability articulated in 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 purpose of the recreational use statute 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) (emphasis added).

The recreational use statute applies if a plaintiff is engaged in “recreation” on the governmental unit's “premises” at the time of the injury. Id. ; City of Bellmead v. Torres, 89 S.W.3d 611, 613–14 (Tex.2002). The statute sets forth a nonexclusive list of activities that constitute “recreation,” including swimming. Civ. Prac. & Rem. § 75.001(3)(C). In determining whether a particular activity is “recreational” for purposes of the statute, the relevant inquiry is what the plaintiff was doing at the time she was injured. Torres, 89 S.W.3d at 614. The statute defines “premises” to include the land itself, and also “roads,” “buildings,” and “structures” attached to or located on the land. Civ. Prac. & Rem. § 75.001(2).

Karl contends that the recreational use statute does not apply to her claims because she never began the recreational activity of swimming. We disagree. Based on the definition of “premises” in the statute, courts have concluded that the statute contemplates “recreation” as occurring not only when a person is actively engaged in recreation but also when the person...