Town of Little Elm v. Richard Climer

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00250-CV ___________________________

TOWN OF LITTLE ELM, Appellant

V.

RICHARD CLIMER, Appellee

On Appeal from the 481st District Court Denton County, Texas Trial Court No. 21-11351-16

Before Sudderth, C.J.; Kerr and Birdwell, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION

Richard Climer filed a negligence suit against the Town of Little Elm (Little

Elm) for injuries he received when he fell from his bicycle on a pathway subject to its

control. Little Elm appeals the trial court’s order denying its plea to the jurisdiction.

Because we hold that the trial court erred by denying the plea to the jurisdiction, we

reverse.

I. Background

Climer alleged in his petition that he fell from his bicycle on a pathway in Little

Elm 1 as a result of faulty concrete causing him severe injury. He stated that he did not

see the hole in the concrete prior to his fall. In its plea to the jurisdiction, Little Elm

stated that it was aware of the condition of the pathway and had closed that section of

the pathway. Little Elm attached the affidavit of Phil Kemmerer, the Parks

Superintendent for Little Elm, to its plea to the jurisdiction.

Kemmerer explained in the affidavit that Cottonwood Trail is a walking,

jogging, and biking trail controlled by Little Elm through a perpetual trail, drainage,

and access easement. A subdivision runs along the south side of the easement, and a

retaining wall was constructed to support the subdivision. After a homeowner in the

subdivision later built another retaining wall, the area in question began to suffer

1 Climer alleged in his petition that he was riding on a pathway in McCord Park in Little Elm. In its plea to the jurisdiction, Little Elm stated that the location of the incident was actually on Cottonwood Trail, which is not part of McCord Park but is controlled by Little Elm through a perpetual easement.

2 distress. Little Elm closed the area and erected T-posts and construction fencing to

barricade the damaged area. Kemmerer stated that Little Elm became aware of

additional damage to the trail including buckling and lateral movement and also a

sewer manhole that had significant displacement. Little Elm decided to conduct a

geotechnical distress investigation of the area to determine what was causing the

problem and the best plan of action to correct it.

Kemmerer further stated that while the investigation was pending, Little Elm

checked the trail weekly and warned trail users of the condition of the trail. On several

occasions the barricades were removed by either trail users or extreme weather

conditions, but Little Elm immediately replaced them upon discovering their removal.

Kemmerer also testified at the hearing on Little Elm’s plea to the jurisdiction and

explained how Little Elm attempted to block off the damaged area of the trail.

II. Plea to the Jurisdiction

In the first issue, Little Elm argues that the trial court erred by denying the plea

to the jurisdiction based upon its governmental immunity from suit under the Texas

Tort Claims Act because Climer had not provided a single jurisdictional fact to

overcome the presumption of governmental immunity for the discretionary decisions

of a governmental entity. In the second issue, Little Elm argues that the trial court

erred by denying the plea to the jurisdiction based upon its governmental immunity

from suit under the Recreational Use Statute because Climer’s mere assertion of gross

3 negligence, without more, does not establish a waiver of Little Elm’s governmental

immunity.

A. Standard of Review

Sovereign immunity from suit defeats a trial court’s subject matter jurisdiction

and is properly raised in a plea to the jurisdiction. Tex. Dep’t. of Parks and Wildlife v.

Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). Whether a court has subject matter

jurisdiction is a question of law reviewed de novo. Id. at 226.

When a plea to the jurisdiction challenges the pleadings, we determine if the

pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear

the cause. Id. We construe the pleadings liberally in favor of the plaintiff and look to

the pleader’s intent. Id. If 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, as the trial court is required to do.

Id. at 227. In a case in which the jurisdictional challenge implicates the merits of the

plaintiff’s cause of action and the plea to the jurisdiction includes evidence, the trial

court reviews the relevant evidence to determine if a fact issue exists. Id.

B. Applicable Law

The Texas Tort Claims Act provides a limited waiver of sovereign immunity.

Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001–.109. The Tort Claims Act expressly

waives sovereign immunity in three areas: (1) use of publicly owned automobiles,

(2) premises defects, and (3) injuries arising out of conditions or use of property.

4 Miranda, 133 S.W.3d at 225; see Tex. Civ. Prac. & Rem. Code Ann. § 101.021. Section

101.058 of the Tort Claims Act further modifies a governmental unit’s waiver of

immunity from suit by imposing the limitations of liability articulated in the Texas

Recreational Use Statute. Miranda, 133 S.W.3d at 225 (citing Tex. Civ. Prac. & Rem.

Code Ann. § 101.058). 2 The Recreational Use Statute limits the governmental unit’s

liability as a premises owner if the plaintiff engages in recreation on the premises. City

of Dallas v. Hughes, 344 S.W.3d 549, 554 (Tex. App.—Dallas 2011, no pet.); Tex. Civ.

Prac. & Rem. Code Ann. § 75.001–.021. Bicycling is included in the definition of

recreation. Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3)(M).

The Recreational Use Statute limits the governmental unit’s duty for premises

defects to that which is owed a trespasser. Miranda, 133 S.W.3d at 225. The limited

duty owed a trespasser is not to injure that person willfully, wantonly, or through

gross negligence. Id. Therefore, a governmental unit waives sovereign immunity under

the Recreational Use Statute and the Tort Claims Act only if it is grossly negligent. Id.;

Tex. Civ. Prac. & Rem. Code Ann. § 75.002(c)–(d). There are two components to

gross negligence: (1) viewed objectively from the actor’s standpoint, the act or

omission complained of must involve an extreme degree of risk, considering the

probability and magnitude of the potential harm to others; and (2) the actor must

2 Section 101.058 states, “To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.” Tex. Civ. Prac. & Rem. Code Ann. § 101.058.

5 have actual, subjective awareness of the risk involved, but nevertheless proceed in

conscious indifference to the rights, safety, or welfare of others. Id. (citing La–Pac

Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999)).

C. Analysis

In his original petition, Climer did not allege gross negligence on the part of

Little Elm. In its plea to the jurisdiction, Little Elm argued that Climer had not

properly alleged a cause of action against it under the Tort Claims Act, as limited by

the Recreational Use Statute, because he did not allege Little Elm acted with gross

negligence. Little Elm further argued that allowing Climer an opportunity to amend

would be futile because there is no evidence to support an allegation of gross

negligence. Climer filed a second amended petition in which he alleged that the

following acts or omissions by Little Elm constituted negligence or gross negligence:

• Failing to keep such a lookout as a person of ordinary prudence would have kept under similar circumstances.

• Failing to keep the premises safe.

• Failing to warn [Climer] that a dangerous condition existed on the premises.

• Failing to adequately repair the dangerous condition that existed on the premises.

• Failing to inspect the premises prior to allowing citizens on the premises.

• Res Ipsa Loquitor.

6 Climer also responded to the plea to the jurisdiction and stated that gross negligence

exists because Little Elm was aware of the dangerous condition and chose not to

protect the general public. Climer attached photos to his response that he claimed

clearly showed that Little Elm did not safeguard the area.

In City of Dallas v. Hughes, a bicyclist, Hughes, was injured after he fell from his

bicycle when he encountered protruding planks on a bridge on a biking trail in Dallas.

344 S.W.3d at 552. Hughes claimed the City of Dallas was grossly negligent by failing

to repair or warn of the defect. Id. at 553. To show gross negligence, Hughes relied on

evidence showing that the wood used on the bridge was not of good quality and also

that the city employees were aware of the damaged bridge over the weekend but did

not repair it because city employees did not work on the weekends. Id. at 555.

The court noted that the legislature created exceptions to the Tort Claims Act’s

limited waiver of immunity and that Section 101.056 of the Civil Practice and

Remedies Code preserves immunity for discretionary public policy decisions. Id. An

act that requires the exercise of judgment is discretionary. Id. at 556. If a plaintiff’s

injury results from the formulation of a policy, the governmental unit is immune from

liability. Id. A governmental unit is not immune from liability if a plaintiff’s injury is

caused by the negligent implementation of that policy or the negligent maintenance of

the premises. Id. The court stated that Hughes did not argue his injury was caused by

the negligent implementation of a policy and concluded that Hughes pointed to no

authority to support an argument that these were non-discretionary decisions. Id.

7 As in Hughes, we find that Little Elm’s decision to close the damaged portion of

the trail and conduct a geotechnical distress investigation prior to repairing the

sidewalk was a discretionary decision protected by governmental immunity. Little Elm

was aware of damage on the Cottonwood Trail and closed that portion of the trail

with barricades. Because there was additional damage around the trail, Little Elm

decided to conduct a geotechnical distress investigation to determine the cause of the

problem and develop a plan to correct it before repairing the sidewalk. Little Elm

closed the area of the sidewalk and erected T-posts with construction fencing to

protect trail users. Decisions about installing safety features are discretionary

decisions. See Tex. Dep’t. of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002). In his

brief, Climer argues that his pleadings gave fair notice to Little Elm of the allegations

against it. Climer has not pointed to any legal authority or provided jurisdictional facts

to support an argument that these were not discretionary decisions. See Hughes, 344

S.W.3d at 556.

In addition, Climer’s factual allegations do not establish gross negligence. Gross

negligence involves not only actual knowledge of a risk, but knowledge of an extreme

degree of risk, considering the probability and magnitude of potential harm to others.

Id. at 557. There is no dispute that Little Elm knew of the condition of the sidewalk;

however, Climer did not allege facts that show Little Elm was aware of an extreme

degree of risk and consciously ignored the risk. Id. at 558. Again, Climer argues that he

alleged factual allegations that gave Little Elm fair notice of the claims.

8 Little Elm produced evidence that it blocked off the damaged area of the

sidewalk with T-posts and construction fencing. Little Elm inspected the area every

week to make sure the barricade was in place and would replace the barricade as

necessary. Little Elm considered metal fencing but determined that the construction

fencing was safer for bicyclists. In his response to the plea to the jurisdiction, Climer

attached photos that he says show Little Elm did not safeguard the area. The photos

focus on the damaged sidewalk and are not from an angle to show any barricade of

the area. Little Elm does not dispute the sidewalk was damaged but presented

evidence that it erected barricades to protect the public using the trail. Additionally,

there is no evidence that Little Elm was aware of other accidents at the barricaded

area, and Climer does not claim that there had been other accidents. Id. at 557–58. We

cannot conclude that Little Elm was aware of an extreme degree of risk and

consciously ignored the risk. See id. at 558. We hold that the trial court erred by

denying Little Elm’s plea to the jurisdiction.

III. Conclusion

Because we conclude that the trial court erred by denying Little Elm’s plea to

the jurisdiction, we reverse the trial court’s order denying the plea to the jurisdiction

and dismiss Climer’s claims against Little Elm.

/s/ Wade Birdwell Wade Birdwell Justice

Delivered: December 7, 2023