State of Texas Parks & Wildlife v. Morris

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

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.

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 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.

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 encourage landowners to open their lands to the public for recreational uses. State v. Shumake, 131 S.W.3d 66, 73, No. 03-03-00111-CV, 2003 WL 22860923, at *5, 2003 Tex.App. LEXIS 10169, at *12 (Austin Dec. 4, 2003, no pet.). The statute absolves certain property owners of liability for injuries to others using the property for recreation so long as the property owner does not engage in grossly negligent conduct or act with malicious intent or in bad faith. Tex. Civ. Prac. & Rem.Code Ann. §§ 75.001-.004 (Vernon 1997 & Supp.2004); see City of Bellmead v. Torres, 89 S.W.3d 611, 612 (Tex.2002). When the statute applies, landowners only owe the public the standard of care owed to a trespasser on the premises. Tex. Civ. Prac. & Rem.Code Ann. § 75.002(b)(2), (c)(2) (Vernon 1997 & Supp.2004). Appellant contends the recreational use statute applies under the facts of this case, and thus limits its liability.

Appellees, however, brought their cause of action pursuant to section 101.021(2) of the Texas Tort Claims Act.³ They alleged that M. M.'s injuries were caused by a defective condition or negligent use of tangible real property by appellant. On appeal they contend that the duty of care owed by appellant is governed not by the recreational use statute, but by section 101.022(a) of the tort claims act. Section 101.022(a) provides that if a claim arises from a premise defect, the governmental unit owes 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. Id. § 101.022(a) (Vernon 1997). When the claimant pays for the use of the premises, as in this case, the duty imposed upon the governmental unit is the same duty of care that a private landowner owes to an invitee. See Clay v. City of Fort Worth, 90 S.W.3d 414, 417 (Tex.App.-Austin 2002, no pet.); Vela v. Cameron County, 703 S.W.2d 721, 724 (Tex.App.-Corpus Christi 1985, writ ref'd n.r.e.). It is the invitee duty of care which appellees believe should be applied.

In determining the applicability of the recreational use statute to the facts of this case we must look to section 75.003 of the civil practice and remedies code, which states in relevant part:

(c) Except for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property who:

(1) does not charge for entry to the premises; [or]

(2) charges for entry to the premises [an amount limited by this statute]....

* * * *

(e) Except as otherwise provided, this chapter applies to a governmental unit.

(f) This chapter does not waive sovereign immunity.

(g) To the extent that this chapter limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under Chapter 101, this chapter controls.

Tex. Civ. Prac. & Rem.Code Ann. § 75.003(c), (e)-(g) (Vernon 1997 & Supp. 2004).

Because the language of the recreational use statute is unambiguous, we interpret the statute according to its plain meaning. Section 75.003(e) provides that the recreational use statute applies to "governmental units." Id. § 75.003(e). Appellant is a governmental unit and is, therefore, a party to which this statute applies. See id. §§ 75.001(4) ("governmental unit" has the meaning assigned under section 101.001), 101.001(3)(A) ("governmental unit" includes all departments of the government of this state). We note that the language in subsection (e), "except as otherwise provided," indicates the Legislature contemplated that certain sections or subsections of the statute would not apply to a governmental unit. For example, subsection (c) provides, "[e]xcept for a governmental unit, this chapter applies only to an owner, lessee, or occupant of real property" who does not charge or whose total charges are less than...