Cameron County, Texas v. Francisco Salinas ( 2012 )


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  •                              NUMBER 13-11-00745-CV
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI – EDINBURG
    CAMERON COUNTY, TEXAS,                                                     Appellant,
    v.
    FRANCISCO SALINAS, ET AL.,                                                   Appellees.
    On appeal from the103rd District Court
    of Cameron County, Texas.
    MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
    Memorandum Opinion by Justice Garza
    Cameron County (“the County”) brings this interlocutory appeal from the trial
    court’s denial of its plea to the jurisdiction. By a single issue, the County contends that
    the trial court erred in denying its plea to the jurisdiction because its governmental
    immunity is not waived for the premises defect claim asserted by appellees, Francisco
    Salinas and Gregoria Salinas, individually and as personal representatives of the estate
    of their deceased minor daughter, L.E.S. We affirm.
    I. BACKGROUND
    On February 23, 2011, L.E.S., a seven-year-old child with Down Syndrome,
    drowned in a pool controlled by the County at the Santa Maria Community Center in
    Santa Maria, Texas. L.E.S. entered the pool area through a hole in the perimeter fence
    surrounding the pool. At the time of the accident, the pool was filled with water and
    debris and was not open to the public. Appellees’ petition alleged that the County had
    actual knowledge for approximately four months that a hole existed in the fence large
    enough for people to gain access to the pool.
    Appellees sued the County asserting a premises defect claim under the Texas
    Tort Claims Act (“TTCA”).    See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021(2),
    101.022(a) (West 2011). Specifically, appellees alleged that the pool perimeter fence
    was defective in that it was in disrepair and posed an unreasonably dangerous condition
    because the pool area entry points were unsecured. Appellees further alleged that the
    County had actual knowledge of the premises defect and L.E.S. did not.
    The County filed a plea to the jurisdiction, in which it argued that the County’s
    governmental immunity was not waived because under the recreational use statute, the
    County’s duty was limited to only the standard of care owed a trespasser. See 
    id. § 75.002(f)
    (West 2011) (providing that “if a person enters premises owned, operated, or
    maintained by a governmental unit and engages in recreation on those premises, the
    governmental unit does not owe to the person a greater degree of care than is owed to
    a trespasser on the premises.”). The County asserted that the recreational use statute
    2
    applies in this case because the statute defines “recreation” to include, among other
    things, “swimming.” See 
    id. § 75.001(3)(C)
    (West 2011). According to the County,
    section 75.002(f) of the recreational use statute, which was amended in 2005, clearly
    establishes a common law trespasser standard of care on governmental units in
    recreational use statute cases. The County further argued that under the common law
    trespasser standard, it owed no duty regarding the allegedly dangerous condition of the
    pool area premises. The County attached to its plea copies of the current recreational
    use statute, the pre–2005 amendment version of the statute, and copies of legislative
    notes and bill analyses regarding the 2005 amendment to the statute.
    Appellees filed a response to the County’s plea, in which they asserted that their
    pleadings establish a waiver of governmental immunity under sections 101.021(2) and
    101.022(a) of the TTCA and under the recreational use statute. Appellees asserted that
    the County’s gross negligence in failing to maintain the perimeter fence is the type of act
    or omission for which governmental entities have been held liable in similar
    circumstances. Appellees also asserted that even under the amended version of the
    recreational use statute, a properly pleaded claim for gross negligence waives
    sovereign immunity. Appellees did not offer any evidence in support of their response.
    On November 10, 2011, the trial court denied the County’s plea to the
    jurisdiction.   The order states that appellees’ petition “alleges sufficient facts that
    establish a waiver of sovereign immunity by [the County] under the Texas Tort Claims
    Act and the Recreational Use Statute which establish jurisdiction in this matter.” This
    appeal followed.
    II. STANDARD OF REVIEW AND APPLICABLE LAW
    3
    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
    jurisdiction over the subject matter of a pleaded cause of action. Tex. Dep't of Parks &
    Wildlife v. Miranda, 
    133 S.W.3d 217
    , 226 (Tex. 2004); Tex. Parks & Wildlife Dep't v.
    Morris, 
    129 S.W.3d 804
    , 807 (Tex. App.—Corpus Christi 2004, no pet.). Subject matter
    jurisdiction is a question of law; therefore, an appellate court reviews de novo a trial
    court's ruling on a plea to the jurisdiction. 
    Miranda, 133 S.W.3d at 226
    ; 
    Morris, 129 S.W.3d at 807
    .
    Because immunity from suit defeats a trial court's subject-matter jurisdiction, it
    may be properly asserted in a jurisdictional plea. 
    Miranda, 133 S.W.3d at 225
    –26. In a
    suit against a governmental unit, the plaintiff must affirmatively demonstrate the court's
    jurisdiction by alleging a valid waiver of immunity. Dallas Area Rapid Transit v. Whitley,
    
    104 S.W.3d 540
    , 542 (Tex. 2003). We assume the truth of the jurisdictional facts
    alleged in the pleadings unless the defendant presents evidence to negate their
    existence. 
    Miranda, 133 S.W.3d at 226
    –27. If a plea to the jurisdiction challenges the
    jurisdictional facts, we consider relevant evidence submitted by the parties to resolve
    the jurisdictional issues raised. City of Waco v. Kirwan, 
    298 S.W.3d 618
    , 622 (Tex.
    2008) (citing 
    Miranda, 133 S.W.3d at 227
    ); see Bland Indep. Sch. 
    Dist., 34 S.W.3d at 555
    . If that evidence creates a fact issue as to jurisdiction, then it is for the fact-finder to
    decide. City of 
    Waco, 298 S.W.3d at 622
    ; 
    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,
    
    4 133 S.W.3d at 228
    . After the defendant “asserts and supports with evidence that the
    trial court lacks subject matter jurisdiction, we simply require the plaintiffs, when the
    facts underlying the merits and subject matter jurisdiction are intertwined, to show that
    there is a disputed material fact regarding the jurisdictional issue.” 
    Id. This standard
    “generally mirrors” that of a traditional motion for summary judgment.        
    Id. When reviewing
    a plea to the jurisdiction in which the pleading requirement has been met and
    evidence has been submitted to support the plea that implicates the merits of the case,
    we take as true all evidence favorable to the non-movant. Id.; see County of Cameron
    v. Brown, 
    80 S.W.3d 549
    , 555 (Tex. 2002). We do not “weigh the claims’ merits but
    must consider only the plaintiffs’ pleadings and the evidence pertinent to the
    jurisdictional inquiry.” 
    Brown, 80 S.W.3d at 555
    .
    If a claim arises from a premise defect, and the recreational use statute does not
    apply, the governmental entity owes to 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. TEX. CIV. PRAC. & REM CODE ANN. § 101.022(a); City of Irving v. Seppy, 
    301 S.W.3d 435
    , 441 (Tex. App.—Dallas 2009, no pet.). This duty requires the landowner
    to avoid injuring a licensee by willful, wanton or grossly negligent conduct, and to use
    ordinary care either to warn a licensee of, or to make reasonably safe, a dangerous
    condition of which the owner is aware and the licensee is not. State Dep't of Highways
    & Pub. Transp. v. Payne, 
    838 S.W.2d 235
    , 237 (Tex. 1992) (op. on reh'g); 
    Seppy, 301 S.W.3d at 441
    .    To be subject to the duty to warn or make reasonably safe, the
    governmental entity must have actual knowledge of the dangerous condition. City of
    Corsicana v. Stewart, 
    249 S.W.3d 412
    , 413–14, 416 (Tex. 2008) (per curiam); City of
    5
    Dallas v. Giraldo, 
    262 S.W.3d 864
    , 869, (Tex. App.—Dallas 2008, no pet.); 
    Payne, 838 S.W.2d at 237
    .      Constructive knowledge of the defect is insufficient.   
    Stewart, 249 S.W.3d at 414
    –16.
    Actual knowledge on the part of a governmental entity requires knowledge that
    the dangerous condition existed at the time of the accident, as opposed to constructive
    knowledge which can be established by facts or inferences that a dangerous condition
    could develop over time. 
    Stewart, 249 S.W.3d at 414
    –15; see also Reyes v. City of
    Laredo, 
    335 S.W.3d 605
    , 608 (Tex. 2010) (per curiam). “Awareness of a potential
    problem is not actual knowledge of an existing danger.” 
    Reyes, 335 S.W.3d at 609
    .
    When determining whether a premises owner had actual knowledge of a dangerous
    condition, “courts generally consider whether the premises owner has received reports
    of prior injuries or reports of the potential danger presented by the condition.” Univ. of
    Tex.-Pan Am. v. Aguilar, 
    251 S.W.3d 511
    , 513 (Tex. 2008) (per curiam); see City of
    Dallas v. Reed, 
    258 S.W.3d 620
    , 623 (Tex. 2008) (per curiam) (finding that no prior
    accidents or complaints about road condition contributed to conclusion of no actual
    knowledge at the time of the motorcycle accident).
    Actual knowledge of a dangerous condition can sometimes be proven through
    circumstantial evidence. See City of Austin v. Leggett, 
    257 S.W.3d 456
    , 476 (Tex.
    App.—Austin 2008, pet. denied).        However, “[c]ircumstantial evidence establishes
    actual knowledge only when it ‘either directly or by reasonable inference’ supports that
    conclusion.” 
    Stewart, 249 S.W.3d at 415
    (quoting State v. Gonzalez, 
    82 S.W.3d 322
    ,
    330 (Tex. 2002)).
    6
    As noted, if the recreational use statute applies, the governmental entity’s duty is
    limited to that which is owed to a trespasser. A landowner or premises occupier owes
    to a trespasser only the duty not to injure him willfully, wantonly, or through gross
    negligence. Smither v. Tex. Util. Elec. Co., 
    824 S.W.2d 693
    , 695 (Tex. App.—El Paso
    1992, writ dism’d).    “Gross negligence requires that the landowner be subjectively
    aware of, and consciously indifferent to, an extreme risk of harm.” State v. Shumake,
    
    199 S.W.3d 279
    , 288 (Tex. 2006).
    III. DISCUSSION
    The County presents its sole issue on appeal as follows: “Section 75.002(f) of
    the Recreational Use Statute, Civ. Prac[.] & Rem. Code, imposes a common law
    trespasser standard on governmental units, and thus, [the County’s] governmental
    immunity is not waived for Appellees’ premises defect claim because [the County] owed
    no duty to Decedent to warn of or make safe a dangerous condition.”             Thus, the
    County’s sole argument—on appeal and in its plea to the jurisdiction—is that because
    the recreational use statute governs this case, the County’s governmental immunity is
    not waived for appellees’ premises defect claims.       We are not persuaded that the
    recreational use statute applies to this case.
    Section (f) of the recreational use statute provides:             “Notwithstanding
    Subsections (b) and (c), if a person enters premises owned, operated, or maintained by
    a governmental unit and engages in recreation on those premises, the governmental
    unit does not owe to the person a greater degree of care than is owed to a trespasser
    on the premises. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(f) (emphasis added).
    Here, appellees’ pleadings asserted jurisdictional facts, which we must assume as true
    7
    unless the County presented evidence to negate their existence, see 
    Miranda, 133 S.W.3d at 226
    –27, as follows: (1) L.E.S. “gained entry into the pool area . . . at a time
    when the pool was closed and drowned in the pool which was filled with water and
    debris”; (2) the County and its employees “were aware of the unreasonable risk of harm,
    injury and death to the residents, and specifically minors, of allowing the pool area
    premises to remain in a dangerous condition, unattended and unsecured as a result of
    prior incidents where entry had been gained through the fence and open entry areas”;
    (3) the County and its employees “had actual knowledge for a period of time of
    approximately four (4) months prior to the death of [L.E.S.] that a hole existed in the
    fence large enough for people to get inside the pool area and gain access to the pool,
    yet failed to remedy the dangerous condition of the premises knowing that it posed an
    unreasonable risk of death by drowning to area resident children”; and (4) the County’s
    acts and omissions “involved an extreme degree of risk” and the County “had actual
    subjective awareness of the risk involved, but nevertheless proceeded with conscious
    indifference to the rights, safety, or welfare of Decedent and others” and “acted with
    malice.” The pleadings assert only that L.E.S. “gained entry” to the pool area through a
    hole in the perimeter fence and that the County had actual knowledge of the hole in the
    fence for approximately four months “as a result of prior incidents where entry had been
    gained through the fence and open entry areas.” The pleadings do not state that L.E.S.
    entered the pool area through the fence and went swimming. The pleadings do not
    indicate what time of day or night the incident occurred or whether the pool, partially
    filled with water and debris, was even recognizable as a swimming pool. Thus, the
    pleadings do not assert—and nothing in the record supports an inference—that L.E.S.
    8
    was “engag[ing] in recreation” when she fell into the pool and drowned. Moreover, the
    County presented no evidence to negate any of the jurisdictional facts alleged in
    appellees’ pleadings.    Assuming the truth of the jurisdictional facts alleged in the
    pleadings, see 
    Miranda, 133 S.W.3d at 226
    –27, we cannot say that the trial court erred
    in denying the County’s plea under the recreational use statute.
    Moreover, the order denying the County’s plea to the jurisdiction states that
    appellees’ petition “alleges sufficient facts that establish a waiver of sovereign immunity
    by [the County] under the Texas Tort Claims Act and the Recreational Use Statute.”
    (emphasis added).       Thus, the order states as grounds both the TTCA and the
    recreational use statute. In its plea to the jurisdiction—and on appeal—the County only
    challenged one of the grounds stated in the order: the applicability of the recreational
    use statute. The County made no argument before the trial court regarding how it
    retained its immunity for appellees’ premises defect claim for gross negligence under
    the TTCA.
    When reviewing a trial court’s ruling on a plea to the jurisdiction, we may not
    consider independent grounds not considered by the trial court.           See Hendee v.
    Dewhurst, 
    228 S.W.3d 354
    , 376 (Tex. App.—Austin 2007, pet. denied) (“When
    reviewing a summary judgment, an appellate court cannot consider independent
    grounds—much less summary judgment evidence—not presented to the trial court. We
    believe that Miranda compels the same result regarding the State Defendants’ attempt
    to attack jurisdictional facts with evidence on appeal.”) (internal citation omitted); see
    also Britton v. Tex. Dep’t of Criminal Justice, 
    95 S.W.3d 676
    , 681 (Tex.App.—Houston
    9
    [1st Dist.] 2002, no pet.) (affirming order granting plea to the jurisdiction because
    appellant did not challenge all grounds on which order could have been based).
    Because appellees’ pleadings alleged a ground for waiver of immunity that was
    not challenged by the County and was not considered by the trial court, we cannot say
    that the trial court erred in denying the County’s plea to the jurisdiction under the TTCA.
    IV. CONCLUSION
    We affirm the trial court’s order denying the County’s plea to the jurisdiction.
    DORI CONTRERAS GARZA
    Justice
    Delivered and filed the
    27th day of August, 2012.
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