State of Texas Parks & Wildlife v. Morris, No. 13-03-509-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Rodriguez
• Citation: 129 S.W.3d 804
• Docket Number: No. 13-03-509-CV.
• Decision Date: 16 March 2004
• Parties: STATE OF TEXAS PARKS & WILDLIFE DEPARTMENT, Appellant, v. Danny J. MORRIS, Lucia R. Morris, and M. M., A Child, Appellees.

129 S.W.3d 804 STATE OF TEXAS PARKS & WILDLIFE DEPARTMENT, Appellant,
v.
Danny J. MORRIS, Lucia R. Morris, and M. M., A Child, Appellees. No. 13-03-509-CV. Court of Appeals of Texas, Corpus Christi-Edinburg. March 16, 2004.

[129 S.W.3d 806]

Cherie K. Batsel, Asst. Atty. Gen., Austin, for Appellant.

Arnold Gonzales Jr., Attorney At Law, Corpus Christi, for Appellees.

Before Justices YAÑEZ, RODRIGUEZ, and GARZA.

OPINION

Opinion by Justice RODRIGUEZ.

Appellant, State of Texas Parks & Wildlife Department, brings this accelerated interlocutory appeal following the trial court's denial of its plea to the jurisdiction.¹ By two issues, appellant contends the trial court erred in denying its plea to the jurisdiction because appellees' petition failed to state an actionable claim. We affirm.

I. BACKGROUND

On March 30, 2002 appellees, Danny J. Morris, Lucia R. Morris, and M. M., a child, arrived at the Goliad State Park (the Park) in Goliad County, Texas. Appellees paid an admission fee for use of the Park and its facilities. Shortly after arriving at the Park, M. M., a three-year-old child, fell into a campfire pit containing smoldering coals from a previous fire. M. M. suffered burns over his hands, arms, and legs and required medical treatment. The Morris family brought suit against appellant for damages resulting from the incident. In

129 S.W.3d 807

their original petition, appellees alleged that the injuries to M. M. were caused by a defective condition or negligent use of tangible real property; conduct for which immunity is waived by the Texas Tort Claims Act. Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001-.109 (Vernon 1997 & Supp.2004). Appellees later amended their pleadings, as ordered by the court, to allege a gross negligence cause of action. Appellant filed a plea to the jurisdiction which was denied by the court.² This appeal ensued.

II. STANDARD OF REVIEW

A plea to the jurisdiction is a dilatory plea; its purpose 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 authority to determine the subject matter of a pleaded cause of action. City of Midland v. Sullivan, 33 S.W.3d 1, 6 (Tex.App.-El Paso 2000, pet. dism'd w.o.j.); State v. Benavides, 772 S.W.2d 271, 273 (Tex.App.-Corpus Christi 1989, writ denied).

Because subject matter jurisdiction is a question of law, we review a trial court's ruling on a plea to the jurisdiction under a de novo standard of review. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2003). In determining whether jurisdiction exists, rather than looking at the claim's merits, we look to the allegations in the pleadings, accept them as true, and construe them in favor of the pleader. See County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). We consider the facts alleged in the petition, and to the extent it is relevant to the jurisdictional issue, any evidence submitted by the parties to the trial court. Tex. Natural Res. Conservation Comm'n v. White, 46 S.W.3d 864, 868 (Tex.2001); Blue, 34 S.W.3d at 555.

It is the plaintiff's burden to allege facts affirmatively demonstrating the trial court's jurisdiction. Tex. Ass'n of Bus., 852 S.W.2d at 446; Mission Consol. Indep. Sch. Dist. v. Flores, 39 S.W.3d 674, 676 (Tex.App.-Corpus Christi 2001, no pet.). When a plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Brown, 80 S.W.3d at 555. On the other hand, if the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend. Id.

III. ANALYSIS

On appeal, appellant argues that the trial court erred in denying its plea to the jurisdiction. Specifically, appellant contends: (1) the recreational use statute limits the tort claims act's waiver of sovereign immunity in this case and dictates that the only standard of care owed to appellees is that of a trespasser; and (2) appellees failed to allege facts or offer evidence showing that the injury to M.M. occurred as a result of wilful, wanton or grossly negligent conduct.

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A. Application of the Recreational Use Statute

In its first issue appellant argues that chapter 75 of the civil practices and remedies code, commonly known as the recreational use statute, should apply in this case to limit its liability. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.001-.004 (Vernon 1997 & Supp.2004). Appellees, however, argue section 101.022(a) of the Texas Tort Claims Act applies, unlimited by the recreational use statute. See id. § 101.022(a). We must, therefore, determine which statute controls in a situation where a claimant is charged a fee to enter government property for recreational purposes. Thus, the issue before this Court is one of statutory construction.

"In construing a statute, our primary objective is to determine and give effect to the Legislature's intent." Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). Our starting point is to look to the plain and common meaning of the statute's words, viewing its terms in context and giving them full effect. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex.1998). If the language is unambiguous, we will interpret the statute according to its plain meaning. State ex rel. State Dep't of Hwys & Pub. Transp. v. Gonzalez, 82 S.W.3d 322, 327 (Tex.2000). We are mindful that "every word in a statute is presumed to have been used for a purpose; and a cardinal rule of statutory construction is that each sentence, clause and word is to be given effect if reasonable and possible." Perkins v. State, 367 S.W.2d 140, 146 (Tex.1963). We should also presume the Legislature intended a "result feasible of execution" when it enacted the statute. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex.1999).

The recreational use statute was passed to...