State v. Shumake
| Decision Date | 15 April 2004 |
| Docket Number | No. 03-03-00111-CV.,03-03-00111-CV. |
| Citation | 131 S.W.3d 66 |
| Parties | THE STATE OF TEXAS ACTING THROUGH THE TEXAS DEPARTMENT OF PARKS AND WILDLIFE AND THE TEXAS DEPARTMENT OF PARKS AND WILDLIFE, Appellants v. RICKY SHUMAKE AND SANDRA SHUMAKE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAYLA SHUMAKE, DECEASED, Appellees. |
| Court | Texas Supreme Court |
Appeal from the District Court of Blanco County, 33rd Judicial District, No. 5,278, Honorable Guilford L. Jones, Judge Presiding.
Affirmed in Part; Reversed and Rendered in Part.
On Motions for Rehearing and Rehearing en banc.
Before Justices KIDD, B. A. SMITH and PURYEAR:
Opinion by Justice B. A. SMITH; PATTERSON, Justice PEMBERTON Not Participating.
A child drowned in a man-made culvert while swimming in the Blanco River in Blanco State Park. Her parents, Ricky and Sandra Shumake, brought suit against The State of Texas, acting through the Texas Department of Parks and Wildlife, and the Texas Department of Parks and Wildlife (collectively the "Parks Department") for their daughter's wrongful death, alleging that the culvert was a special or premise defect and a nuisance or attractive nuisance. The Shumakes contended that the Texas Tort Claims Act waives sovereign immunity for their claims. See Tex. Civ. Prac. & Rem. Code Ann. ch. 101 (West 1997 & Supp. 2004). The Parks Department filed a plea to the jurisdiction disputing any waiver of immunity under the tort claims act for nuisance or attractive nuisance and alleging that the Recreational Use Statute, which applies to recreational activities such as swimming, removed any waiver for special or premise defects. See Tex. Civ. Prac. & Rem. Code Ann. ch. 75 (West 1997 & Supp. 2004). The Shumakes countered that the benefits of the recreational use statute were not available to the Parks Department because it had charged them an entrance fee; therefore, they insisted that the tort claims act's waiver of immunity for special or premise defects preserved their claims. The Shumakes alternatively pled that the Parks Department had breached the standard of care it owed their daughter under the recreational use statute.
The Parks Department brings this interlocutory appeal challenging the district court's denial of its plea to the jurisdiction. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(8) (West Supp. 2003). The district court found that a governmental unit does not lose the benefit of the recreational use statute when it charges a fee for entrance. See Tex. Civ. Prac. & Rem. Code Ann. ch. 75. The district court further found, however, that the recreational use statute is unconstitutional as applied to this case. See Tex. Civ. Prac. & Rem. Code Ann. chs. 75, 101. We agree with the district court that the Shumakes' payment of an entrance fee does not deprive the Parks Department of the protections of the recreational use statute. We reject the district court's holding that the recreational use statute, as applied to these facts, is unconstitutional. However, for the reasons outlined below, we affirm the denial of the plea to the jurisdiction as to the special and premise defect claim but reverse and render judgment that the Shumakes failed to establish a waiver of immunity for their nuisance or attractive nuisance claims.
In June of 1997, the Shumake family visited Blanco State Park, which is owned and operated by the Parks Department. The Shumakes were allowed entrance into the park for a fee.1 Kayla Shumake, daughter of the Shumakes, was tubing and swimming in the Blanco River when she was allegedly sucked underwater by a powerful undertow and trapped in a man-made culvert that diverted the river water under Park Road 23. Kayla Shumake drowned. The Shumakes were present during the incident but were unable to save their daughter.
After Kayla's death, the Shumakes found that the culvert opening was not protected by a grate or any other safety device. The area had no signs indicating the potential danger the culvert posed to those swimming in the vicinity. The Shumakes later learned that only days before Kayla's death, a park visitor had witnessed three individuals nearly drown in the same culvert. The visitor informed a Parks Department employee at Blanco State Park about the incidents and called the Austin office of the Parks Department to inform them of the dangerous condition.
The Shumakes sued2 the Parks Department in a suit claiming the wrongful death of their daughter due to a special or premise defect and due to a nuisance or attractive nuisance. They pled that the Parks Department had breached both invitee and trespasser duties of care by not correcting or warning of the dangers the culvert posed. The Parks Department filed a plea to the jurisdiction claiming that it was protected from suit by sovereign immunity. The district court denied the Parks Department's plea to the jurisdiction, and this appeal followed.
Subject-matter jurisdiction is essential to the authority of a court to decide a case. Rylander v. Caldwell, 23 S.W.3d 132, 135 (Tex. App.—Austin 2000, no pet.) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993)). "A plea to the jurisdiction challenges the trial court's authority to determine the subject matter of a specific cause of action." Id. (). In order to prevail, the party asserting the plea must show that even if all the allegations in the plaintiff's pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiff's petition to confer jurisdiction on the trial court. See id. Governmental immunity from suit defeats a court's subject matter jurisdiction. See Texas Dep't of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999).
Because subject-matter jurisdiction presents a question of law, we review the district court's decision de novo. Id. In reviewing a trial court's ruling on a plea to the jurisdiction, we do not look at the merits of the case. Rather we "construe the pleadings in favor of the plaintiff," look to the pleader's intent, and accept as true the factual allegations in the pleadings. Id. "The truth of the plaintiff's allegations is at issue only if the defendant pleads and proves that the allegations were fraudulently made to confer jurisdiction on the court." Id. Further, "a court deciding a plea to the jurisdiction is not required to look solely to the pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
On appeal, the Parks Department argues that the district court erred by not granting its plea to the jurisdiction. It specifically contends that the district court erred: (1) by denying its plea to the jurisdiction because there is no waiver of sovereign immunity for the Shumakes' claim for nuisance or attractive nuisance; (2) by denying its plea to the jurisdiction because the Shumakes did not establish a waiver for their special or premise defect claims under the tort claims act and the recreational use statute; and (3) by holding the recreational use statute unconstitutional as applied.
Generally, the State of Texas has sovereign immunity from suit unless immunity has been waived by the legislature. See Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 853-54 (Tex. 2002). In tort cases against the government, the legislature has waived immunity for certain torts under the tort claims act. See Tex. Civ. Prac. & Rem. Code Ann. ch. 101. However, when the recreational use statute applies, that waiver is limited by the standard of care the recreational use statute provides.
The Shumakes argue that the recreational use statute does not apply in this case because they paid an entrance fee to the Parks Department. The Shumakes contend that if the recreational use statute does apply, it is unconstitutional because it treats governmental landowners differently than private landowners. The Shumakes alternatively pled that the Parks Department breached the standard of care owed under the recreational use statute.
The Parks Department argues that the recreational use statute applies to the Shumakes' case even though it charged an entrance fee. It further contends that the recreational use statute protects landowners from liability for special or premise defects, defeating any waiver for such suits under the tort claims act.
Ultimately, our task is to determine what duty of care the Parks Department owed the Shumakes' daughter and whether the Shumakes have alleged sufficient facts that if proven, would establish a waiver of the Parks Department's sovereign immunity. If the recreational use statute provides that a governmental unit owes the same duty to a paying state-park visitor as it does to non-paying visitors, we must then determine whether the Shumakes have pled sufficient facts that their claim for special or premise defect fits within the waiver of sovereign immunity granted by the legislature through the tort claims act, as limited by the recreational use statute.
We will first address the easier question of whether the Shumakes have established a waiver of immunity for their nuisance and attractive nuisance claims. Based on the language in the tort claims act that "this chapter does not apply to a claim based on the theory of attractive nuisance," courts have held that the legislature has not waived sovereign immunity for claims based on attractive nuisance. Tex. Civ. Prac. & Rem. Code Ann. § 101.059 (West 1997); see State of Texas v. Horton, 4 S.W.3d 53, 54 (Tex. App.—Tyler 1999, no pet.); Lawrence v. City of...
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