West v. City of Crandall, 05-03-00729-CV.

• Court: Court of Appeals of Texas
• Writing for the Court: Fitzgerald
• Citation: 139 S.W.3d 784
• Parties: Nicki WEST, Individually and as Next Friend of Justin West, Appellant, v. CITY OF CRANDALL, Texas, Appellee.
• Docket Number: No. 05-03-00729-CV.,05-03-00729-CV.
• Decision Date: 29 July 2004

139 S.W.3d 784 Nicki WEST, Individually and as Next Friend of Justin West, Appellant,
v.
CITY OF CRANDALL, Texas, Appellee. No. 05-03-00729-CV. Court of Appeals of Texas, Dallas. July 29, 2004.

Appeal from the 86th Judicial District Court, Kaufman County, Howard Tygrett, J.

[139 S.W.3d 785]

Jeffrey Todd Robnett, Law Office of Jeff Robnett, Midland, for Appellant.

Paul K. Pearce, Jr., Robert J. Davis, Matthews, Carlton, Stein, Shiels, Pearce, Dunn & Knott, Dallas, for Appellee.

Before Justices MORRIS, FITZGERALD, and FRANCIS.

OPINION

Opinion by Justice FITZGERALD.

Nicki West, individually and as next friend for her son Justin, appeals the take-nothing summary judgment order rendered by the trial court in favor of the City of Crandall, Texas (the "City"). In a single issue, appellant argues the trial court erroneously granted the City's motion because genuine issues of material fact preclude summary judgment in this case. We affirm the trial court's order.

BACKGROUND

Summary judgment evidence indicates Justin and two of his friends, Heather Andrews and Cody West, went to a City-owned park on the afternoon of June 22, 1999. The three were teenagers on summer vacation; on the date of the incident, Justin was approximately one month shy of his sixteenth birthday. The teenagers played first on a slide and a jungle gym, and then on a swing set. The swing set was not anchored in the ground, and — although both Justin and Heather took a turn swinging without incident — when Cody took his turn, the legs of the swing set rose up and down with his movements.¹ Justin testified that he was standing in front of the swing set and warned Cody to slow down because the swing set was probably going to fall. Eventually the swing set did fall over, landing on Justin and injuring him.

Appellant sued the City for negligence, and her petition included allegations of attractive nuisance, res ipsa loquitur, and gross negligence. In anticipation of an immunity defense, appellant also pleaded that the City was engaged in a proprietary function in maintaining the park and that her son's injury stemmed from the City's use of tangible property. The City answered, and discovery ensued. In response to an interrogatory from appellant, the City described its activities related to the swing set around the time of Justin's injury:

[T]he Public Works crew [began] moving dirt to Web Park from a construction project at the City's wastewater treatment plant to raise and level the ground at the Park. Around that time, the Public Works crew removed the swing set and other park equipment and relocated it to the northwest corner of the Park. The swing set was laid on its side to discourage people from using it until the project was completed.

More than two years after the case was filed, the City moved for summary judgment on both traditional and no-evidence grounds. The motion set forth five bases for judgment:

139 S.W.3d 786

(1) Pursuant to the Recreational Use Act, TEX. CIV. PRAC. & REM.CODE ANN. § 75.001 et seq. (Vernon Supp.2004), the City owed the teenagers only the duty owed to a trespasser, and the City did not breach that duty as a matter of law;

(2) Alternatively, pursuant to the Torts Claim Act, TEX. CIV. PRAC. & REM.CODE ANN. § 101.001 et seq. (Vernon 1997 and Supp.2004), appellant's claims (a) are not within the City's limited waiver of tort immunity, or (b) alternatively, are subject to analysis under the duty owed a licensee, which the City did not breach as a matter of law;

(3) Appellant's attractive nuisance theory is barred as matter of law;

(4) Appellant's res ipsa loquitur claim is subject to the City's unwaived immunity or, alternatively, implicates no duty that was breached by the City; and

(5) After adequate time for discovery, there is no evidence that:

(a) the City breached any duty under the Recreational Use Act;

(b) the City breached any legal duty owed to appellant;

(c) Justin did not have actual knowledge of the purported dangerous condition;

(d) the City had actual knowledge of the purported dangerous condition;

(e) the attractive nuisance claims are not barred by the Tort Claims Act;

(f) appellant can prevail on its res ipsa loquitur claim;

(g) the City is not entitled to governmental immunity.

The City's summary judgment evidence included excerpts from the depositions of appellant and Justin. It also included the affidavit of Shannon Barnes, a City employee who testified she had been by the park three days before the incident, and she saw the swing set "laying completely down" and "clearly not operational." Finally, the City's evidence included the affidavit of Moss Kines, a representative of the City's volunteer fire department, who was called to the scene of the incident. Kines testified that Cody told him that he and Justin found the swing set laying on the ground, stood it back up, and were swinging when the accident occurred.

Appellant responded to the City's motion with affidavits from Justin and Cody that categorically denied standing the swing set up or telling anyone they had done so. Appellant also submitted the City's responses to appellant's interrogatories, which described the City's activities viz a viz the swing set before and after the incident. Based on this evidence, appellant argued summary judgment would be inappropriate because there were material issues of fact on her negligence claim, whether one applied the standard in...