Max Nelson and Carolyn Nelson, as Co-Guardians of Matthew Nelson v. City of Plano ( 2022 )

AFFIRMED; Opinion Filed November 18, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00708-CV
MAX NELSON AND CAROLYN NELSON,
AS CO-GUARDIANS OF MATTHEW NELSON, Appellants
V.
CITY OF PLANO, Appellee
On Appeal from the 219th Judicial District Court
Collin County, Texas
Trial Court Cause No. 219-02317-2020
MEMORANDUM OPINION
Before Justices Schenck, Smith, and Garcia1
Opinion by Justice Smith
The trial court granted the City of Plano’s plea to the jurisdiction in this
personal injury suit brought on behalf of Matthew Nelson by his parents and co-
guardians Max Nelson and Carolyn Nelson. In a single issue, the Nelsons contend
the trial court’s ruling was error because the City is not immune from liability for its
negligence in causing Matthew’s injuries. Concluding that the City has not waived
1
The Honorable Leslie Osborne participated in the submission of this case; however, she did not
participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The
Honorable Dennise Garcia has substituted for Justice Osborne in this case. See TEX. R. APP. P. 41.1
(a), (b)(1). Justice Garcia has reviewed the briefs and the record before the Court.
its immunity with respect to the Nelsons’ ordinary negligence claim, we affirm the
trial court’s order.
BACKGROUND
Matthew Nelson, a 26-year-old man with cognitive disabilities, was riding his
bicycle on a sidewalk in the City of Plano when he collided with a truck driven by a
City of Plano employee. Matthew was on his way to a 7-Eleven store a few blocks
from home. Matthew cannot legally drive because of his disabilities; bicycling is his
mode of transportation. Matthew suffered pelvic fractures, broken ribs, and internal
injuries in the accident.
The Nelsons sued the City, alleging a sole claim of ordinary negligence. The
City answered and pleaded affirmative defenses including governmental immunity.
The parties engaged in discovery. The Nelsons responded to the City’s
requests for admissions, admitting that:
1. At the time of the accident, Matthew was riding a bicycle;
2. At the time of the accident, Matthew was riding a bicycle “on
City of Plano property, a City sidewalk,”
3. At the time of the accident, Matthew was “riding a bicycle and
had entered premises owned, operated, or maintained by the City
of Plano, specifically, either a City of Plano sidewalk or street,”
and
4. The Nelsons are suing the City only for “negligence” as alleged
in Paragraph V(11) of their operative petition.
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Based on these admissions and other discovery, the City filed a plea to the
jurisdiction alleging governmental immunity. The trial court granted the City’s plea
and dismissed the Nelsons’ claims with prejudice. This appeal followed.
ISSUE AND STANDARD OF REVIEW
In their sole issue, the Nelsons contend the trial court erred by granting the
City’s plea to the jurisdiction. They contend that the City’s governmental immunity
is waived under the Texas Tort Claims Act (“TTCA”), TEX. CIV. PRAC. & REM.
CODE § 101.021, and that the Recreational Use Statute (“RUS”), TEX. CIV. PRAC. &
REM. CODE § 75.002(f), does not apply. We review the trial court’s ruling on a plea
to the jurisdiction de novo. Suarez v. City of Texas City, 465 S.W.3d 623, 632 (Tex.
2015).
APPLICABLE LAW
Under the TTCA, a governmental unit such as the City is liable for personal
injury “proximately caused by the wrongful act or omission or negligence of an
employee acting within his scope of employment” if the personal injury “arises from
the operation or use of a motor-driven vehicle.” TTCA § 101.021(1)(A).
Under the RUS, however, “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.” RUS § 75.002(f). As explained by the supreme
court in University of Texas v. Garner, 595 S.W.3d 645, 647 (Tex. 2019) (per
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curiam), the RUS “limits the [TTCA’s] waiver of governmental immunity by
lowering the duty of care owed to a person who enters and engages in ‘recreation’
on a governmental unit’s property.” “Specifically, the governmental unit owes that
person only the degree of care owed to a trespasser—that is, the duty not to injure
intentionally or through gross negligence—and thus retains immunity from ordinary
negligence claims even when the [TTCA] would otherwise waive such immunity.”
Id.“Recreation” as defined in the RUS includes “bicycling and mountain biking.”
RUS § 75.001(2)(M). “Bicycling” is not further defined, nor is any intent or purpose
on the part of the rider specified. “Premises” is defined under the RUS to include
“land, roads, water, watercourse, private ways, and buildings, structures, machinery
and equipment attached to or located on the land, road, water, watercourse, or private
way.” Id. § 75.001(2).
DISCUSSION
The Nelsons pleaded that a City employee negligently operated a motor
vehicle and injured Matthew. They argue the City’s governmental immunity is
waived for that claim under TTCA § 101.021(1)(A). They contend the RUS does not
apply—and should not apply—to bar that claim because Matthew “was clearly not
engaged in ‘recreation’ as contemplated by the [RUS].” See RUS § 75.002(f).
Instead, Matthew was “riding a bicycle for transportation purposes only,” on a City-
owned sidewalk, because he cannot drive. The Nelsons assert that classifying all
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bicycle riding as “recreational” is inconsistent with the purpose of the RUS “to limit
the duty to warn of potentially dangerous, naturally occurring conditions outdoors
for the protection of landowners so Texans can more easily and cost-efficiently enjoy
outdoor recreation.” Matthew was not enjoying outdoor recreation, the Nelsons
argue; he was running an errand next to a busy street via his only method of
transportation.
The City, in turn, relies on the supreme court’s opinion in Garner. In Garner,
the court held the RUS applied to a bicyclist’s negligence claim against the
University, so that the University’s immunity was not waived. Garner, 595 S.W.3d
at 651. The City argues that Matthew’s purpose in riding his bicycle—for
transportation rather than recreation—does not control the RUS’s applicability. See
id. at 650 n.4 (plaintiff’s subjective intent does not control).
In Garner, the plaintiff was struck by a city vehicle while riding her bicycle
on a road through a student-housing complex on the University of Texas campus.
Id. at 647–48. She was biking to the trail head at Eilers Park, where she planned to
meet a friend and “ride the trail” when the accident occurred. Id. at 648. She sued
the University for negligence, contending that the University’s immunity was
waived under the TTCA. Id. The University filed a plea to the jurisdiction, arguing
that Garner was a trespasser, for two reasons: (1) the RUS classified her as a
trespasser, and (2) there were “no trespassing” signs on either end of the road
through the housing complex. Id. at 648.
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The court of appeals affirmed the trial court’s denial of the University’s plea,
but the supreme court reversed, concluding that RUS subsection 75.002(f) “is
dispositive.” Id. at 649. The court explained, “subsection (f) requires only that a
person (1) enter premises owned, operated, or maintained by a governmental unit
and (2) engage in recreation on those premises.” Id. at 650. The court concluded that
“[i]f those two conditions are met, the governmental unit owes the person only the
duty owed to a trespasser.” Id. Because it was undisputed that Garner entered
premises owned by a governmental unit and engaged in activity that qualified as
“recreation” under the statute, “the University owed Garner only the duty not to
injure her intentionally or through gross negligence.” Id.
The Nelsons argue that Garner should not apply here because, unlike the
Garner plaintiff who was on her way to “ride the trail,” Matthew was not “enjoying
nature or exploring the outdoors in any fashion.” See id. at 648. They contend
Matthew’s bicycle riding was not “recreational”; it was a matter of necessity given
his disabilities. The City responds that the court rejected a similar argument in
Garner:
To the extent Garner argues that she was bicycling on Alvin for
transportation rather than recreational purposes, her subjective intent
does not control. See City of Bellmead v. Torres, 89 S.W.3d 611, 614
(Tex. 2002) (explaining that whether the plaintiff was engaged in
recreation hinged on her activity when she was injured—sitting on a
swing—not her reason for being at the venue—to play softball); City of
San Antonio v. Peralta, 476 S.W.3d 653, 658 (Tex. App.—San Antonio
2015, no pet.) (rejecting the plaintiff’s argument that his bicycling was
not “recreation” because he was commuting to work). Under the
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statute’s plain language, bicycling is recreation. TEX. CIV. PRAC. &
REM. CODE § 75.001(3)(M).
Id. at 650 n.4.
The Nelsons also argue that the Garner plaintiff had entered on
“governmentally controlled property that had ‘no-trespassing’ signs at both ends of
the road,” see id. at 647, while Matthew was riding on a public sidewalk. But the
City responds that under § 75.002(f), “a person receives the legal protection of a
trespasser even though she is not trespassing,” and accordingly, Matthew “is entitled
to the legal protection of a trespasser even though he was not trespassing.” The City
concludes that if § 75.002(f) applied only to trespassers, it would be meaningless.
The Nelsons further argue the trial court’s ruling is inconsistent with the
RUS’s purpose to limit—not abrogate—the liability of property owners who open
their land for recreational activities. They assert that “ignor[ing] a bicyclist’s
subjective intent abrogates common law negligence for a large number of
bicyclists,” and that Garner “deprives injured parties of legal recourse” against a
government employee’s negligence merely because those parties happen to be riding
a bicycle rather than walking or driving a vehicle.2 They contend that “a child with
a summertime paper route, the environmentally-conscious commuter, someone who
cannot afford a vehicle who must bike to work, the average teenager biking a few
2
We note that both “hiking” and “pleasure driving, including off-road motorcycling and off-road
automobile driving and the use of off-highway vehicles” are included in the definition of “recreation” in
the RUS. See RUS § 75.001(3)(G), (H). Consequently, not all pedestrians and drivers are excluded from
the RUS’s limitation of liability.
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blocks to school, [and] a bicycle delivery driver”—in addition to those like Michael
with cognitive difficulties who are not able to drive—have no recourse even though
their bicycling has no connection to the outdoor recreation the RUS was designed to
encourage.
These arguments are not without force. But this Court “must take the
Legislature at its word, respect its policy choices, and resist revising a statute under
the guise of interpreting it.” Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d
651, 654 (Tex. 2013). Nor may we adopt a statutory construction different from
supreme court precedent. See, e.g., Tex. Office of Comptroller of Pub. Accounts v.
Saito, 372 S.W.3d 311, 315–16 (Tex. App.—Dallas 2012, pet. denied) (this Court is
bound by supreme court precedent addressing whether statute waived governmental
immunity). The trial court applied the statute’s plain language in accordance with
supreme court precedent. We must do the same. Accordingly, we decide the
Nelsons’ sole issue against them.
CONCLUSION
We affirm the trial court’s order granting the City’s plea to the jurisdiction.
/Craig Smith/
CRAIG SMITH
JUSTICE
Schenck, J., dissenting.
210708F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MAX NELSON AND CAROLYN On Appeal from the 219th Judicial
NELSON, AS CO-GUARDIANS OF District Court, Collin County, Texas
MATTHEW NELSON, Appellants Trial Court Cause No. 219-02317-
2020.
No. 05-21-00708-CV V. Opinion delivered by Justice Smith.
Justices Schenck and Garcia
CITY OF PLANO, Appellee participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee City of Plano recover its costs of this appeal
from appellants Max Nelson and Carolyn Nelson, as Co-Guardians of Matthew
Nelson.
Judgment entered this 18th day of November, 2022.
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