Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, August 17, 2011

Tort Claims Act & Recreational Use Statute - Premises Liability Suits against Governmental Defendants

GOVERNMENTAL DEFENDANTS AND IMMUNITY FROM SUIT AND LIABILITY

To what extent and under what circumstances does the Texas Tort Claims Act (TTCA) waive immunity of governmental entities? How does it interact with the Recreational Use Statute?


The Texas Tort Claims Act grants a limited waiver of governmental immunity in certain circumstances: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.021, 101.022; see Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). For example, in a claim based on a premises defect, the municipality owes to the claimant only the duty owed a licensee on private property, unless the claimant pays for the use of the property. Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a).

The duty owed some claimants is restricted further by the Tort Claims Act's incorporation of the Recreational Use Statute. See id. § 101.058. That section provides:

To the extent that Chapter 75 [i.e., the Recreational Use Statute] limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under this chapter, Chapter 75 controls.

Id. The Recreational Use Statute, in turn, provides:

[I]f 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.

Id. § 75.002(f) (West Supp. 2010).

The statute lists a number of activities that qualify as “recreation,” including nature study (which specifically includes bird-watching) and any other activity associated with enjoying nature or the outdoors. Id. § 75.001(3). And as to the duty owed, a landowner has no duty to warn or protect trespassers from obvious defects or conditions. State v. Shumake, 199 S.W.3d 279, 288 (Tex. 2006). The only duty a premises owner owes a trespasser is not to injure him willfully, wantonly, or through gross negligence. Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193 (Tex. 1997). See Footnote 1 Thus, a municipality waives immunity under the Tort Claims Act and the Recreational Use Statute if the municipality's conduct is grossly negligent. Miranda, 133 S.W.3d at 225. Gross negligence requires that the landowner be actually, subjectively aware of-and consciously indifferent to-an extreme risk of harm. Shumake, 199 S.W.3d at 288.
The existence of subject matter jurisdiction is a question of law. Miranda, 133 S.W.3d at 226. We review the trial court's ruling de novo. Id at 228. When the plea challenges the claimant's pleadings, we determine whether the claimant has pleaded facts that affirmatively demonstrate the trial court's jurisdiction, construing the pleadings liberally and in favor of the claimant. Id. at 226. If the pleadings affirmatively negate jurisdiction, the plea should be granted. Id. at 227. When the plea challenges the existence of jurisdictional facts, we consider evidence submitted by the parties just as the trial court did. Id. We take as true all evidence favorable to the claimant, and we indulge all reasonable inferences in her favor. Id. at 228. If the evidence is undisputed or if it does not raise a fact question on the jurisdictional issue, then the plea can be resolved as a matter of law. Id. If the evidence raises a fact question on the jurisdictional issue, then the fact finder must resolve the issue at trial. Id.

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11

Premises Liability

In its third issue, the City contends the trial court lacks subject matter jurisdiction over [Plaintiff]'s premises liability claim because the City maintains its immunity under the Tort Claims Act and the Recreational Use Statute. We agree. We have identified the heightened standard a claimant must meet to establish liability for a municipality on a theory of premises liability. See Tex. Civ. Prac. & Rem. Code Ann. § 101.022(a). Although [Plaintiff] did not pay an entry fee herself, the evidence establishes that she obtained entry to the Zoo through her mother's membership. Thus a fee was paid, and-absent that payment-[Plaintiff] could not have entered. See Sullivan v. City of Fort Worth, No. 02-10-00223-CV, 2011 WL 1902018, at *8 n.6 (Tex. App.-Fort Worth May 19, 2011) (regardless of who paid for use of garden for wedding, fee was paid for guests' entry and without fee no guests could enter). We conclude [Plaintiff] meets the requirement of having paid for the use of the premises. Thus, under the Tort Claims Act, the City would owe [Plaintiff] the duty it owed an invitee. [Plaintiff] argues she can meet this standard.
However, if [Plaintiff] came upon the City's property to engage in recreation, then the City owed her no more than the duty it would owe a trespasser. See Tex. Civ. Prac. & Rem. Code Ann. § 75.002(f). According to the statute, “recreation” means an activity such as nature study-including bird watching-and any other activity associated with enjoying nature or the outdoors. Id. § 75.001(3)(I, L). The City's evidence included [Plaintiff]'s statements that she visited the Zoo to have some fun, to let the children learn about the animals, and to enjoy the outdoors. [Plaintiff] relies on portions of the Zoo's website that are devoted to the Zoo's educational goals, and she argues those goals take the Zoo out of the ambit of the Recreational Use Statute. We disagree. Recreation and education need not be mutually exclusive. Again, the statute includes in its definition of recreation the activity of nature study. See id. [Plaintiff]'s stated reasons for visiting the Zoo are evidence in themselves that a visit can simultaneously embrace nature study and enjoying nature and the outdoors. We conclude [Plaintiff] visited the Zoo the day of the incident for purposes of recreation.
Given that [Plaintiff] was engaging in recreation when she tripped, the City has only waived immunity for injuries caused by gross negligence. Miranda, 133 S.W.3d at 230. The City came forward with evidence and attempted to negate gross negligence on its part. Its photographs demonstrated that the curb was not in disrepair; viewed objectively, the curb did not involve an extreme risk of harm to [Plaintiff]. The design of the curb did not violate any standard governing the City. Both the photographs and [Plaintiff]'s deposition testimony establish that no obstruction prevented her seeing the curb. And perhaps most importantly, the City had not received any report or complaint of a patron falling at the site of [Plaintiff]'s fall. Indeed, the City offered [Plaintiff]'s own testimony that she had no knowledge of any other fall at the site. We conclude the City did negate gross negligence on its part.
[Plaintiff], on the other hand, did not come forward with any evidence to raise a fact issue on this issue of gross negligence. There was no evidence of actual awareness on the City's part of any extreme risk to [Plaintiff] or any visitor. In the absence of evidence raising a fact question on the issue of gross negligence, [Plaintiff] has fallen short of satisfying the requirement's for the Legislature's limited grant of a waiver of immunity under the applicable statutes. See id. at 232. The trial court lacked subject matter jurisdiction over [Plaintiff]'s premises liability claim. See id. We sustain the City's third issue.

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11
General Negligence
[Plaintiff] alleges a claim for liability of the City under a general negligence theory; the City challenges this claim in its second issue. [Plaintiff] makes the following allegations under this cause of action:

Defendant owed Plaintiff and others similarly situated the duty to make proper inspections to The Dallas Zoo.

Defendant breached said duty by failing to make proper inspections to The Dallas Zoo.
Defendant breached said duty by failing to warn Plaintiff of the existence of a dangerous condition on the premises of The Dallas Zoo.
Defendant breached said duty by failing to correct the dangerous cement ramp condition prior to Plaintiff's injury.
Defendant breached said duty by failing to inspect the premises of The Dallas Zoo for dangerous conditions.

Here, the City challenges [Plaintiff]'s pleading itself as inadequate to invoke the trial court's jurisdiction. In its plea, the City contends these allegations are-in essence-a claim for premises liability. We agree. The allegations amount to a contention that the City failed to discover a dangerous condition, to warn [Plaintiff] of a dangerous condition, and to correct a dangerous condition. This is the essence of premises liability. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002) (premises defect case is one in which dangerous condition causes resulting injury). The Texas Legislature has identified a specific and heightened standard for claims against a municipality for premises liability. See Tex. Civ. Prac. & rem. Code Ann. § 101.022(a). See Footnote 2 A plaintiff cannot avoid that heightened standard by recasting a premises liability claim as one for condition or use of property. Miranda, 133 S.W.3d at 233.
[Plaintiff] argues her general negligence claim is merely an example of pleading in the alternative, which our rules endorse. However, in this case she has pleaded a claim for which there is no waiver of immunity; the Legislature's waiver of immunity for a premises liability claim extends only as far as the Tort Claims Act provides. There is no cause of action under the Tort Claims Act for condition or use of property separate from [Plaintiff]'s premises defect claim. See id. Because there is no viable claim for negligence under this theory, there is, likewise, no viable claim for gross negligence under this theory. See Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946, 951 (Tex. App.-Austin 1990, writ denied) (gross negligence is not separate, independent cause of action). We sustain the City's second issue.

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11

Negligence Per Se
The unexcused violation of a statute setting an applicable standard of care constitutes negligence per se if the statute is designed to prevent an injury to the class of persons to which the injured party belongs. Kelly v. Brown, 260 S.W.3d 212, 218 (Tex. App.-Dallas 2008, pet. denied).

SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11

Negligence Per Se found inapplicable

[Plaintiff] cites a number of standards within the allegations of her premises liability claim, which she claims were not met by the Zoo in the construction or maintenance of the curb over which she tripped. The final standard cited in her petition is section 4.7.4 of the Texas Accessibility Standards. According to [Plaintiff], section 4.7.4 requires “[f]or purposes of a warning, the full width and depth of curb ramps shall have a light reflective value and texture that significantly contrasts with that of adjoining pedestrian routes.” [Plaintiff] alleges that the City's “failure to comply with this TAS Section 4.7.4 of Texas law constitutes negligence per se.” The City challenges this claim in its fourth issue.

The unexcused violation of a statute setting an applicable standard of care constitutes negligence per se if the statute is designed to prevent an injury to the class of persons to which the injured party belongs. Kelly v. Brown, 260 S.W.3d 212, 218 (Tex. App.-Dallas 2008, pet. denied). The TAS section on which [Plaintiff] relies is a subsection of “Accessible Elements and Spaces: Scope and Technical Requirements.” The standard was promulgated by the Texas Commission of Licensing and Regulation and published by the Texas Department of Licensing and Regulation pursuant to the Architectural Barriers Act. See Tex. Gov't Code Ann. § 469.052 (West 2004) (assigning obligations related to adoption of standards and specifications). The codified Architectural Barriers Act states:

This chapter is intended to further the policy of this state to encourage and promote the rehabilitation of persons with disabilities and to eliminate, to the extent possible, unnecessary barriers encountered by persons with disabilities whose ability to engage in gainful occupations or to achieve maximum personal independence is needlessly restricted.

Tex. Gov't Code Ann. § 469.001(c). This statute and standards promulgated under it are clearly intended to prevent injury to and discrimination against disabled persons. The City's evidence contains [Plaintiff]'s own admission that she is not disabled in any way. Accordingly, she is not a member of the class this standard was intended to protect, and she has no standing to complain of its purported violation. We sustain the City's fourth issue.

We have sustained each of the City's issues challenging the trial court's subject matter jurisdiction as to [Plaintiff]'s specific claims. We therefore sustain its general first issue and conclude the trial court erred by denying the City's plea to the jurisdiction.
SOURCE: Dallas Court of Appeals - 05-10-00727-CV - 8/15/11







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