Opinion issued October 28, 2014
In The
C ourt of Appeals For The
First District of Texas ———————————— NO. 01-13-00976-CV ——————————— TABITHA HENRY, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF KYLIE LAMPSON AND AS NEXT OF FRIEND OF ASHLEY HENRY, ZACHARY HENRY AND HANNAH HENRY, Appellants V. THE CITY OF ANGLETON, Appellee
On Appeal from the 239th District Court Brazoria County, Texas Trial Court Case No. 70733
MEMORANDUM OPINION
This is an accelerated appeal from the trial court’s order granting the City of
Angleton’s plea to the jurisdiction. Tabitha Henry sued the City after her 11 year
old daughter, Kylie Lampson, died from complications of near-drowning in a swimming pool owned by the City. We hold that the trial court properly granted
the City’s plea to the jurisdiction.
Background
The City owns and operates the Angleton Recreation Center (“Rec Center”)
through the Angleton Better Living Corporation. The Rec Center consists of a
fitness facility, gymnasium, meeting rooms, and a swimming pool known as the
Natatorium. The Natatorium functions as an indoor and outdoor pool and has
zero-depth entry, slides, tipping buckets that fill up with water and pour into the
pool, and a lazy river.
Tabitha took her four children to the pool. At one point, Kylie was seen
lying face down in the water. After the lifeguard pulled Kylie from the water and
attempted to resuscitate her, Kylie was taken to the hospital. Kylie died seven days
later from “complications of near-drowning.” A video shows that Kylie was face
down in the water for approximately seven minutes before the lifeguard took
action.
Henry, individually, on behalf of the estate of Kylie, and as next friend of
her three other minor children, sued the City to recover wrongful death, survival,
and bystander damages. Henry alleged that the City’s operation of the Natatorium
was a proprietary function because the Natatorium includes amusement features
such as slides, tipping buckets, and a lazy river. See TEX. CIV. PRAC. & REM. CODE
2 ANN. § 101.0215(b) (West Supp. 2014) (designating “amusements” as
proprietary). Henry also alleged negligence, gross negligence, and premises
defect.
After special exceptions, the trial court ordered Henry to replead and
include “specific facts that demonstrate a cause of action or causes of action
against the City of Angleton for which its immunity from suit is waived by the
Texas Tort Claims Act.” In her First Amended Petition, Henry also alleged that
the design of the Natatorium constituted an unreasonably dangerous condition and
that the City “failed to install elevated lifeguard chairs which are industry standard
and required by the requisite codes.”
The City filed its plea to the jurisdiction “seeking dismissal . . . because
there is no cause of action alleged against the City for which immunity is waived
by the Tort Claims Act.” Henry filed a response supported by evidence, including
the deposition transcript of the City manager, Michael Stoldt, and a picture of a
lifeguard chair used at the Natatorium. After a hearing, the trial court granted the
plea and dismissed Henry’s suit with prejudice.
Plea to the Jurisdiction
A plea to the jurisdiction based on governmental immunity is a challenge to
the trial court’s subject matter jurisdiction. See City of Waco v. Kirwan, 298
S.W.3d 618, 621 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda, 133
3 S.W.3d 217, 225–26 (Tex. 2004). Whether the trial court has subject matter
jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639, 642 (Tex.
2007). We therefore review a trial court’s ruling on a plea to the jurisdiction de
novo. Id.
When a plea to the jurisdiction challenges the sufficiency of a plaintiff’s
jurisdictional pleadings, we must determine whether the plaintiff has alleged facts
that affirmatively demonstrate the court’s jurisdiction. See Miranda, 133 S.W.3d
at 226. We construe the pleadings liberally in favor of the plaintiff and look to the
pleader’s intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex.
App.—Houston [1st Dist.] 2010, no pet.). “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 its petition.” Smith, 326 S.W.3d at
698 (citing Miranda, 133 S.W.3d at 227). If the pleadings neither affirmatively
demonstrate nor negate jurisdiction, “it is an issue of pleading sufficiency and the
plaintiff should be given an opportunity to amend the pleadings.” Kirwan, 298
S.W.3d at 622 (citing Miranda, 133 S.W.3d. at 226–27).
When a plea to the jurisdiction challenges the existence of jurisdictional
facts, we “‘consider relevant evidence submitted by the parties when necessary to
resolve the jurisdictional issues raised,’ even where those facts may implicate the
merits of the cause of action.” Id. (quoting Miranda, 133 S.W.3d. at 227). The
4 plea to the jurisdiction standard mirrors that of a traditional motion for summary
judgment. Miranda, 133 S.W.3d at 228; Ross v. Linebarger, Goggan, Blair &
Sampson, L.L.P., 333 S.W.3d 736, 744 (Tex. App.—Houston [1st Dist.] 2010, no
pet.). When reviewing the evidence, we must “‘take as true all evidence favorable
to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts
in the nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133
S.W.3d. at 228). If the evidence creates a fact issue as to the jurisdictional issue,
then the fact-finder will decide that issue. Id. (citing Miranda, 133 S.W.3d. 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.” Miranda, 133 S.W.3d. at 228.
Discussion
In its plea, the City sought dismissal based on Henry’s pleadings because
Henry failed to allege facts that demonstrated a waiver of immunity under the
Texas Tort Claims Act. Henry challenges the trial court’s order granting the plea
on two grounds: (1) the trial court erred in concluding that the City’s operation of
the Natatorium is a governmental rather than a proprietary function and (2) the trial
court erred in concluding that Henry failed to allege facts to bring her claims
within the waivers of immunity for use of tangible personal property and premises
liability.
5 A. Governmental Function
In her first issue, Henry contends that the trial court erred in finding that the
City’s operation of the Natatorium is a governmental rather than a proprietary
function. According to Henry, the operation of the Natatorium is proprietary
because it is an “amusement” that charges an entry fee and whether the Natatorium
was an “amusement” under section 101.0215(b) of the Texas Tort Claims Act
(“TTCA”) or a “generic pool” was a fact issue for the jury to resolve.
A city’s immunity from suit for a tort claim may depend on whether its
actions are characterized as governmental or proprietary functions. Tooke v. City
of Mexia, 197 S.W.3d 325, 343 (Tex.2006). A city is immune for torts committed
in the performance of its governmental functions. Id. But a city receives no
protection from suit for torts committed in the performance of its proprietary
functions. Id.
Section 101.0215 of the TTCA designates certain functions as governmental
or proprietary for tort claims purposes. TEX. CIV. PRAC. & REM. CODE ANN.
§ 101.0215(a), (b). The Legislature designated recreational facilities, including
swimming pools, as governmental functions. Id. § 101.0215(a)(23) (“recreational
facilities, including but not limited to swimming pools, beaches, and marinas” are
governmental functions). But “amusements owned and operated by the
municipality” are proprietary. Id. § 101.0215(b)(2). Importantly, section
6 101.0215(c) states that proprietary functions do not include those governmental
activities enumerated under section 101.0215(a). Id. § 101.0215(c).
Henry argues that the Natatorium is an amusement because it has “a play
structure, water blasters, water buckets, water curtains, [and] a lazy river.” But
swimming pools are expressly designated as governmental under section
101.0215(a). Id. § 101.0215(a)(23). Accordingly, they cannot also be proprietary.
See id. § 101.0215(c) (“The proprietary functions of a municipality do not include
those governmental activities listed under Subsection (a).”); City of Houston v.
Downstream Envtl., L.L.C., 01-12-01091-CV, 2014 WL 2619072, at *5 (Tex.
App.—Houston [1st Dist.] June 12, 2014, no pet.) (“[W]e have no discretion to
determine that a municipality’s action is proprietary if it has been designated as a
governmental function by the Tort Claims Act.”).
While the Natatorium incorporates modern features designed to enhance the
user’s experience and these features distinguish the Natatorium from a generic
pool, “the introduction of a proprietary element into an activity designated by the
Legislature as governmental does not serve to alter its classification.” City of
Texarkana v. City of New Boston, 141 S.W.3d 778, 784 n.3 (Tex. App.—
Texarkana 2004, pet. denied), abrogated on other grounds by Tooke v. City of
Mexia, 197 S.W.3d 325, 338–42, n.60 (Tex. 2006); City of Plano v. Homoky, 294
S.W.3d 809, 815 (Tex. App.—Dallas 2009, no pet.) (quoting City of San Antonio v.
7 Butler, 131 S.W.3d 170, 178 (Tex. App.—San Antonio 2004, pet. denied) (“In
considering whether the City was engaged in a governmental or proprietary
function, a plaintiff may not ‘split various aspects of [a City’s] operation into
discrete functions and recharacterize certain of those functions as proprietary.’”).
Thus, the Natatorium’s additional features do not change its designation as a
governmental function. See Homoky, 294 S.W.3d at 815 (holding city-owned golf
course is governmental function despite evidence that clubhouse, with restaurant
operating within, was located on premises).
Henry also contends the Natatorium is proprietary because it is “reserved for
those who are willing to pay monthly membership fees or daily fees for use.” In
support, Henry offered the deposition testimony of Michael Stoldt, the city
manager, to prove that users paid to use the Natatorium. But a governmental
entity’s ability to charge fees and make a profit does not in itself transform a
governmental function into a proprietary function. See Butler, 131 S.W.3d at 178
(existence of a profit motive does not transform government function into
proprietary conduct); Texas River Barges v. City of San Antonio, 21 S.W.3d 347,
356–57 (Tex. App.—San Antonio 2000, pet. denied) (regulation of “dinner, tour,
and taxi barges” on river was within government function even though City
contracted for sale of dinner and tours which would produce profits for city).
8 Accordingly, we conclude that the City’s operation of the Natatorium is a
governmental function.
We overrule Henry’s first issue.
B. No waiver of immunity under the TTCA
In her second issue, Henry contends that she alleged facts sufficient to bring
her claims within the TTCA’s waivers of immunity for (1) “misuse/non-use of
tangible personal property” and (2) premises liability.
1. Use of tangible personal property
Henry contends that she pleaded a claim for misuse of tangible personal
property within TTCA section 102.021(2) because she alleged that the
Natatorium’s lifeguard misused the lifeguard chairs. Section 101.021(2) provides
that a governmental unit is liable for personal injury or death caused by the use of
tangible personal property “if the governmental unit would, were it a private
person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM.
CODE ANN. § 101.021(2) (West 2011).
To fall within the waiver of section 101.021(2), the plaintiff’s injury “must
be proximately caused by the condition or use of tangible property.” Dallas Cnty.
Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).
“The requirement of causation is more than mere involvement,” and “[p]roperty
does not cause injury if it does no more than furnish the condition that makes the
9 injury possible.” Id.; see Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,
588 (Tex. 2001). This is not to say that the tangible property has to have
physically injured the plaintiff in order for proximate cause to exist. See Bossley,
968 S.W.2d at 343. But, the Texas Supreme Court requires a causal nexus
between the use of the property and the plaintiff’s injury. Dall. Area Rapid Transit
v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); see Bossley, 968 S.W.2d at 342–43
(incidental involvement of property is insufficient to establish waiver, and property
does not “cause” the injury if it simply furnishes the condition that makes the
injury possible); Univ. of Tex. Med. Branch Hosp. at Galveston v. Hardy, 2 S.W.3d
607, 609 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (there must be a
“direct and immediate relationship” between the injury and the “use” of the
property).
Henry contends that she alleged a “proper misuse/non-use of tangible
personal property—i.e. the lifeguard chairs.” Her First Amended Petition states:
[T]he design of the Natatorium constituted an unreasonably dangerous condition. Specifically the Natatorium was designed to place lifeguard stations in a manner where the Natatorium cannot be fully viewed. Moreover, Defendant failed to install elevated lifeguard chairs which are industry standard and required by the requisite codes.
But nowhere does the petition allege facts to establish a nexus between the
lifeguard stations or chairs and Kylie’s injury. Henry failed to allege how the
Natatorium lifeguard stations or chairs contributed to the incident, i.e., that the
10 stations or chairs were the “instrumentality” of Kylie’s injury. In other words,
Henry nowhere alleged that Kylie’s injury would not have occurred if the stations
or chairs had been higher or located differently. See Miller, 51 S.W.3d at 588
(treatment may have furnished condition that made injury possible, but treatment
did not hurt him, make him worse, or actually cause his death); Dimas v. Tex. State
Univ. Sys., 201 S.W.3d 260, 267 (Tex. App.—Houston [14th Dist.] 2006, no pet.)
(“[A]lthough malfunctioning light timers may have caused the area near [the
scene] to be dark, thus furnishing the condition that made the attack possible, this
condition does not establish the requisite causal nexus . . . .”); Fryman v. Wilbarger
Gen. Hosp., 207 S.W.3d 440, 441–42 (Tex. App.—Amarillo 2006, no pet.)
(sovereign immunity not waived where hospital grounds were simply location of
assault, pleadings do not show hospital grounds caused assault, and plaintiff
complained about failure to use or, in effect, non-use of property). Because Henry
failed to allege facts demonstrating proximate causation, Henry failed to establish
that immunity was waived based on the use of personal tangible property. 1
1 Although Henry adduced evidence showing the location and design of the lifeguard chairs (a photograph of the chair), this is insufficient to raise a fact issue on causation. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227 (Tex. 2004) (we consider evidence submitted by the parties when plea to jurisdiction challenges jurisdictional facts).
11 2. Premises Defect
The TTCA includes a limited waiver of the state’s immunity from suits
alleging personal injury or death caused by premises defects. TEX. CIV. PRAC. &
REM. CODE ANN. §§ 101.021(2), 101.022 (West 2011). In premises-defect cases
generally, the governmental unit owes “only the duty that a private person owes to
a licensee on private property, unless the claimant pays for the use of the premises”
in which case the duty owed is that owed to an invitee. TEX. CIV. PRAC. & REM.
CODE ANN. § 101.022(a); see City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex.
App.—Dallas 2009, no pet.). However, a different rule applies in a premises
liability case in which the plaintiff was injured while engaging in a recreational
activity within the scope of the Recreational Use Statute. Miranda, 133 S.W.3d at
225 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.058 (West 2011); see also
TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001–75.003 (West 2011 & West Supp.
2014). In such a case, the Recreational Use Statute controls over the Tort Claims
Act. TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(g) (West Supp. 2014) (chapter
75 controls over chapter 101 to extent chapter 75 limits liability of governmental
unit under circumstances in which governmental unit would be liable under chapter
101); id. § 101.058 (West 2011) (same).
When injury or death results on government-owned, recreational land, the
Recreational Use Statute limits the governmental unit’s duty to that owed by a
12 landowner to a trespasser. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c)(2), (f)
(West 2011) (defining duty as that owed to trespasser); see State v. Shumake, 199
S.W.3d 279, 283 (Tex. 2006). Thus, when applicable, the Recreational Use Statute
elevates the plaintiff’s burden to require a showing of gross negligence, malicious
intent, or bad faith. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(d); Stephen
F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659 (Tex. 2007).
The Recreational Use Statute applies if a plaintiff is engaged in “recreation”
at the time of the injury. City of Bellmead v. Torres, 89 S.W.3d 611, 613–14 (Tex.
2002). The statute provides a nonexclusive list of activities that constitute
“recreation,” including swimming and “other water sports.” TEX. CIV. PRAC. &
REM. CODE ANN. § 75.001(3)(C), (K). Because it is undisputed that Kylie was
swimming at the time of the incident, we hold that the Recreational Use Statute
applies in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(C).
Accordingly, Henry must allege that Kylie’s injury arose from gross negligence,
malicious intent, or bad faith. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 75.002(d).
Henry did not allege that the City acted with malicious intent or in bad faith;
we thus analyze only whether Henry alleged sufficient facts to support a gross
negligence claim. Gross negligence is “an act or omission involving subjective
awareness of an extreme degree of risk, indicating conscious indifference to the
13 rights, safety, or welfare of others.” Shumake, 199 S.W.3d at 287 (citing Transp.
Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)). Gross negligence, as applied
under the Recreational Use Statute, involves two components: (1) viewed
objectively from the actor’s standpoint, the act or omission must involve an
extreme degree of risk, considering the probability and magnitude of the potential
harm to others; and (2) the actor must have actual, subjective awareness of the risk
involved, but nevertheless proceeds in conscious indifference to the rights, safety,
or welfare of others. See Miranda, 133 S.W.3d at 225. When reviewing the
second subjective component, “what separates ordinary negligence from gross
negligence is the defendant’s state of mind; in other words, the plaintiff must show
that the defendant knew about the peril, but his acts or omissions demonstrate that
he did not care.” Louis.–Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex.
1999); see also City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008)
(holding that “actual knowledge” element of a premises defect cause of action
requires knowledge that the dangerous condition existed at the time of the
accident).
The only premises defect alleged in Henry’s petition relates to the lifeguard
chairs:
[T]he design of the Natatorium constituted an unreasonably dangerous condition. Specifically, the Natatorium was designed to place lifeguard stations in a manner where the Natatorium cannot be fully viewed. Moreover, Defendant failed to install elevated lifeguard
14 chairs which are industry standard and required by the requisite codes. This conduct is so reckless that it constitutes an intentional conduct of ignoring a known extreme risk of harm or death.
Knowledge of the dangerous condition’s existence is an element of gross
negligence claims. See Miranda, 133 S.W.3d at 225. Here, Henry alleged that the
City’s failure to install elevated lifeguard stations or chairs amounted to “ignoring
a known extreme risk of harm or death,” but failed to allege any facts establishing
that the City had actual knowledge or was aware of any risk. Henry alleged only
that the City’s failure to install different lifeguard stations or chairs amounted to
“ignoring a known extreme risk,” without first alleging any facts that the City
knew of the alleged risk. Henry therefore failed to allege facts demonstrating that
the City knew of the allegedly dangerous placement or design of the lifeguard
stations or chairs before Kylie’s injury, or that the City was aware of any extreme
risk. Accordingly, we conclude that Henry failed to allege facts demonstrating
gross negligence with respect to her claims that are based on the lifeguard stations
or chairs, which was the only premises defect Henry alleged. 2 See Flynn, 228
2 None of the remaining allegations in Henry’s petition relate to a premises defect. Henry alleges that the City was negligent in many respects: failing to train lifeguards, failing to supervise patrons, and failing to have an adequate number of lifeguards on duty. Henry also contends that the lifeguard’s failure to promptly react to seeing Kylie face down was “gross negligence.” But these allegations do not relate to the property and therefore cannot state a premises defect claim. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (TTCA waives immunity for “personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.”).
15 S.W.3d at 659–60 (“conclusory” allegation that appellee “knew that the use of the
sprinkler . . . posed a risk of serious injury to others” but that appellee was
“grossly negligent in ignoring and creating that risk” was insufficient “to meet the
standard imposed by the recreational statute”); City of El Paso v. Collins, No. 08-
12-00243-CV, 2013 WL 6665090, at *6, -- S.W.3d -- (Tex. App.—El Paso Dec.
18, 2013, no pet.) (immunity not waived where plaintiffs alleged that City had
knowledge of pool’s defective condition because they did not allege that City was
“aware of the extreme risk” to children); Univ. of Tex. Health Sci. Ctr. at Hous. v.
Garcia, 346 S.W.3d 220, 228 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(allegation that university “knew that, left unattended, the condition of the
volleyball court would likely deteriorate and expose players to an unreasonable
risk of injury” insufficient to “affirmatively demonstrate the trial court’s
jurisdiction”); Homoky, 294 S.W.3d at 817–18 (appellant’s allegations, including
that landowner “knew or should have known about the dangerous condition . . .
[that] created an unreasonable risk of harm,” failed to satisfy pleading
requirements for gross negligence); Biermeret v. Univ. of Tex. Sys., No. 02-06-240-
CV, 2007 WL 2285482, at *6 (Tex. App.—Fort Worth Aug. 9, 2007, pet. denied)
(“[B]ecause no pleadings or jurisdictional evidence exists that [appellee] possessed
actual or constructive knowledge . . . that on the date in question [the floor]
16 actually had become wet and slick prior to [appellant’s] fall, [appellant] has not
shown that if [appellee] were a private person it would be liable to him.”).
Accordingly, we conclude that Henry failed to allege facts to bring her
claims within the waivers of the Recreational Use Statute and the TTCA and hold
that the trial court did not err in granting the City’s plea to the jurisdiction.
We overrule Henry’s second issue.
Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle Justice
Panel consists of Justices Massengale, Brown, and Huddle.