Opinion By Justice MURPHY.
Appellee James Randell Hughes sued the City of Dallas under a premises-liability theory for injuries he sustained when he was thrown from his bicycle as he attempted to "jump" protruding wooden planks on a bridge on the White Rock Lake hiking-biking trail. The City appeals the denial of its plea to the jurisdiction, contending Hughes cannot establish the City's gross negligence necessary for a premises-liability claim under the Texas Recreational Use Statute and the Texas Tort Claims Act (TTCA). We reverse the trial court's order and dismiss Hughes's action for lack of subject-matter jurisdiction.
Hughes's accident happened sometime before seven o'clock on Monday morning, July 2, 2007. He was riding his bicycle on the White Rock Lake hiking-biking trail in Valley View Park, located at the northeast corner of LBJ Freeway and Hillcrest Road in Dallas. Hughes had ridden the trail many times. Traveling at a speed of approximately eighteen miles per hour, Hughes encountered two protruding wooden planks at the far side of an arched bridge. The planks had buckled, forming an "A" shape and spanning the width of the bridge. The buckled planks had been spray painted orange; otherwise, there were no signs warning of the condition. According to Hughes, he saw the protrusion from approximately ten to twelve feet away; the bridge was wet, and he could not stop, so he attempted to jump over the slats. His back tire caught on the protrusion and Hughes was thrown from his bicycle. He dislocated his clavicle and suffered other injuries.
We review de novo a challenge to the trial court's subject-matter jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004); Perez v. City of Dall., 180 S.W.3d 906, 909 (Tex. App.-Dallas 2005, no pet.). When a plea to the jurisdiction challenges the pleadings, we look to whether the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case. Miranda, 133 S.W.3d at 226 (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993)); City of Dall. v. Heard, 252 S.W.3d 98, 102 (Tex.App.-Dallas 2008, pet. denied). We liberally construe the plaintiff's pleadings in favor of jurisdiction, and we look to the plaintiff's intent. Miranda, 133 S.W.3d at 226.
Where, as here, the City's plea challenges the existence of jurisdictional facts, we must consider relevant evidence to resolve the jurisdictional issues. Id. at 227. In such case, we are not bound by the plaintiff's factual allegations. See id. at 224 n. 4. This standard mirrors our summary-judgment standard under Texas Rule of Civil Procedure 166a(c) and places the burden on Hughes, as the plaintiff, to allege facts that affirmatively demonstrate the trial court's jurisdiction. Id. at 227-28. Once he has done so, the City must meet the summary-judgment standard of proof to support its contention the trial court lacks subject-matter jurisdiction. Id. at 228. Hughes is then required to show only that a disputed fact issue exists. Id.; Heard, 252 S.W.3d at 102. If the relevant evidence fails to raise a fact question or is undisputed on the jurisdictional issue, we determine the plea as a matter of law. Miranda, 133 S.W.3d at 228.
Governmental immunity protects political subdivisions of the State, including cities, counties, and school districts, from suit and liability. Harris Cty. v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 & n. 3 (Tex.2003); see also TEX. CIV. PRAC. & REM.CODE ANN. § 101.001(3)(B) (West 2005) (defining "governmental unit" to include cities). Immunity from suit deprives a court of subject-matter jurisdiction. Miranda, 133 S.W.3d at 224.
The legislature created a limited waiver of immunity from suit under the TTCA, permitting actions against governmental units in three circumstances — for injuries caused by (1) the operation or use of publicly owned vehicles or equipment, (2) a condition or use of tangible personal or real property, and (3) premises defects. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.021, 101.025(a) (West 2005), § 101.022 (West Supp. 2010). A plaintiff must plead sufficient facts to invoke a waiver of immunity under the TTCA. Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex.2002). The type of duty owed a plaintiff is part of the waiver analysis. TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.021 & 101.022. In premises-defect cases, the governmental unit owes "only the duty that a private person owes to a licensee on private property,
The TTCA further modifies a governmental unit's waiver of immunity from suit by imposing the liability limitations prescribed in the recreational-use statute. Miranda, 133 S.W.3d at 225 (citing TEX. CIV. PRAC. & REM.CODE ANN. § 101.058). The Texas Recreational Use Statute limits the governmental unit's liability as a premises owner if the plaintiff engages in recreation on the premises. TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.001-.021, 75.004 (West Supp. 2010), § 75.003 (West 2005); Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659-60 (Tex.2007). In such a case, chapter 75 controls over the TTCA and limits a city's duty to that owed a trespasser. TEX. CIV. PRAC. & REM.CODE ANN. §§ 75.003(g) (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); 101.058 (West 2005) (same); 75.002(c)(2), (f) (duty owed to trespasser). Thus, when applicable, the recreational-use statute operates to raise the plaintiff's burden to show gross negligence, malicious intent, or bad faith. Id. § 75.002(d); Flynn, 228 S.W.3d at 659; City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex.2002). Here, the parties agree the recreational-use statute is applicable. Additionally, our analysis involves only the standard for gross negligence — the City based its plea to the jurisdiction on gross negligence, and Hughes argues no other basis for waiver of immunity.
Gross negligence is "an act or omission involving subjective awareness of an extreme degree of risk, indicating conscious indifference to the rights, safety, or welfare of others." State v. Shumake, 199 S.W.3d 279, 287 (Tex.2006) (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 risk involved, but nevertheless proceeds in conscious indifference to the rights, safety, or welfare of others. See Miranda, 133 S.W.3d at 225.
In six issues, the City argues the trial court erred in denying its plea to the jurisdiction because Hughes did not raise a material fact question as to gross negligence. Hughes alleged in his amended petition that the City's "conduct in failing to make any effort to repair the Bridge, after having actual knowledge of the defective condition, along with [the City's] failure to provide any warning as to the defect on the Bridge, constitutes gross negligence." The City does not challenge Hughes's pleadings. Nor does Hughes challenge the sufficiency of the City's evidence to sustain its burden of proof as to the court's subject-matter jurisdiction.
To answer that question, Hughes focuses primarily on five paragraphs from his affidavit, which was filed in support of his response to the City's plea, related to communications with a City employee, Tim
In addition to his affidavit, in which he claims Ray said there had been "a number of calls and complaints" and "that someone else had been hurt on the Bridge that weekend,"
For purposes of our analysis, we assume the truth of the facts asserted in Hughes's affidavit and indulge all reasonable inferences in Hughes's favor. Miranda, 133 S.W.3d at 228. Having reviewed the record under this standard, we conclude Hughes failed to raise a fact question as to gross negligence.
As evidence of the City's conscious indifference under the gross-negligence standard, Hughes relies in part on testimony the City uses the lowest bidders to purchase wood and the lack of weekend park staff. The City argues that its decisions regarding whether to staff parks with workers on the weekend and what types of materials to use in bridges are discretionary decisions for which the City retains governmental immunity. On this record, we agree.
The legislature created exceptions to the TTCA's limited waiver of immunity. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 101.051-.066 (West 2005), § 101.067 (West Supp. 2010). Under section 101.056, a city's immunity is preserved not only for its discretionary or public-policy decisions, but also for its failure to act when no particular action is required by law. See id. § 101.056; Flynn, 228 S.W.3d at 657; see also Todaro v. City of Hous., 135 S.W.3d 287, 294 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (analysis
The record contains uncontested evidence that, at the time of Hughes's accident, no park employees worked on weekends unless overtime was approved in advance. Further, Hughes relies on Ray's testimony that the City purchased wood from the lowest bidders. Ray's only complaint was that the wood did not last as long as, for example, pine wood. Hughes does not suggest, nor is there any evidence, that whatever wood is purchased by the City, either generally or specific to this incident, fails to meet contract-bidding specifications or requirements. Additionally, Hughes does not argue his injury was caused by the negligent implementation of a policy of not paying overtime for weekend workers or purchasing goods by contract to the lowest bidder. Rather, he characterizes the City's decisions as maintenance. Given the limited resources a city must allocate, decisions to limit overtime for park employees and to purchase supplies based on a low-bidder process are precisely the kinds of governmental policy decisions that are not judicially reviewed. See Perez, 180 S.W.3d at 911 (discretionary-function exception designed to avoid judicial review of governmental policy decisions); see also City of Corsicana v. Stewart, 249 S.W.3d 412, 416 (Tex.2008) (per curiam) ("[T]he City is immune from liability for discretionary decisions concerning the expenditure of limited resources for the safety of its citizens.") (citing TEX. CIV. PRAC. & REM.CODE ANN. § 101.056(2)). Hughes has pointed to no legal authority to support an argument these were non-discretionary decisions, and we have found none.
Turning to the knowledge component of gross negligence, Hughes relies primarily on his affidavit, and specifically paragraphs nine through thirteen quoted above, to show the City knew the bridge was defective at the time of the accident. He attested that Ray, a park employee, arrived at the bridge soon after the accident and stated that the City had received a number of calls and complaints about the bridge and "defect" during the weekend and that someone else had been hurt on the bridge that weekend. Hughes also attested Ray was at the bridge to respond to the complaint calls. Hughes adds in his argument that the orange spray paint on the protruding planks is evidence the City was aware of the problem and elected to paint, rather than repair, the boards.
Assuming that complaints were received by the City during the weekend,
Similarly, City employees testified they arrive in the office early to start work by seven o'clock. Ray had been with the parks department for eighteen years at the time of Hughes's accident. He was a crew chief for his district and his typical day included writing work orders to crews from 311 calls and from issues other supervisors had seen and reported, delegating work to make sure the jobs were done, and going out with crews to complete the work orders. Ray testified that he arrived at work between 6:20 and 6:30 the morning of Monday, July 2.
In addition to the City's procedures for retrieving voice mails and issuing work orders, the uncontroverted testimony also showed that it was normal after a rain to walk the trail in this district to check for silt buildup from the creek. One park employee testified it is the City's number one priority after a lot of rain to check the trail, to start cleanup, and to check the bridges to ensure they are safe. The supervisor for this district testified the trail is inspected at least once a week and that repair of the wood bridge slats is an ongoing process. Hughes confirmed in his affidavit that park employees had arrived first thing Monday morning to repair the bridge. By his own admission, Hughes did not call 911 or seek emergency medical assistance for his accident. Assuming the truth and admissibility of Hughes's affidavit regarding the City's knowledge of any weekend complaints or an injury, no dispute exists that park employees would have become aware of any such complaints at about seven o'clock on Monday morning and workers were dispatched to the site that morning as a priority to inspect and repair the bridge.
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. Miranda, 133 S.W.3d at 225; see also Moriel, 879 S.W.2d at 22 ("extreme degree of risk" for gross negligence not satisfied by remote possibility of injury or high probability of minor harm, but rather "likelihood of serious injury"). Even if there were evidence the City actually became aware during the weekend of complaints about the bridge or that an injury had occurred, that disclosure alone does not necessarily impute knowledge of an extreme risk creating the likelihood of a serious injury. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 327 (Tex.1993). Assuming the truth of Hughes's affidavit that an accident occurred that weekend, the evidence is undisputed that the City had no notice of any
Nor is the City's "expectation of damage after heavy rainfall," as argued by Hughes, evidence of knowledge of an extreme degree of risk on the day of Hughes's accident. "Awareness of a potential problem is not actual knowledge of an existing danger." Reyes v. City of Laredo, 335 S.W.3d 605, 609 (Tex.2010) (per curiam). As emphasized by the Texas Supreme Court in Reyes, "[h]ad there been testimony that a 911 operator received a credible report at about the time of the accident that the crossing had actually flooded and was imperiling motorists, there would have been evidence the City had actual knowledge of a dangerous condition." Id.; see also Stewart, 249 S.W.3d at 414-15 ("Actual knowledge 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."); City of Dall. v. Thompson, 210 S.W.3d 601, 603 (Tex.2007) (per curiam) (that materials deteriorate over time and may become dangerous does not itself create a dangerous condition; actual knowledge required for liability is of dangerous condition at time of accident, not merely possibility dangerous condition can develop); Prairie View A & M Univ. v. Brooks, 180 S.W.3d 694, 707 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (actual knowledge requires finding State knew of dangerous condition that caused injury, not just proof State aware of related condition creating danger); cf. Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406, 408 (Tex.2006) ("A condition is not unreasonably dangerous simply because it is not foolproof.").
Given the regular inspections and repair, the City's prompt attention to the bridge early Monday morning after heavy rains, and the lack of evidence of any prior serious injury, we cannot conclude, as argued by Hughes, that the City's expectation of damage after heavy rains raises a fact issue that the City was aware of an extreme degree of risk and consciously ignored the risk. See, e.g., Howard v. E. Tex. Baptist Univ., 122 S.W.3d 407, 412 (Tex.App.-Texarkana 2003, no pet.) (although employees knew diving board's fulcrum would shift, shifting never caused problems suggesting risk to divers and fulcrum would be repositioned whenever periodic inspection revealed shifting).
Hughes also argues that the City's failure to erect signs, either in compliance with subsection 75.002(g) of the civil practice and remedies code or generally warning of the bridge condition, was evidence of the City's conscious indifference. Subsection 75.002(g) mandates warnings of a governmental unit's limited liability only for identified activities, as follows:
TEX. CIV. PRAC. & REM.CODE ANN. § 75.002(g). The record contains no evidence or allegations that the listed recreational activities were occurring in Valley View Park. In addition, Hughes fails to explain how the statutory warning would apply to his cycling activity or how warning him of the City's limited liability for other activities evidences the City's conscious disregard of an alleged extreme risk to Hughes on the date of his injury. We conclude on this record that the lack of a warning sign under subsection 75.002(g) is inapplicable to Hughes's gross-negligence claim.
Hughes also argues he has created a fact question as to the City's conscious indifference because of the City's failure to erect a warning both as to the specific condition at the time of his accident as well as the "potential for twisted or protruding [p]lanking generally, or after heavy rains." As to the potential for buckling, no warning is required by law. Only the condition existing at the time of Hughes's injuries — the alleged defect — is relevant to our analysis. See Shumake, 199 S.W.3d at 288 (premises-defect claim may be brought under recreational-use statute "as long as there existed a factual dispute regarding the landowner's gross negligence with respect to the alleged defect") (emphasis added); City of Austin v. Leggett, 257 S.W.3d 456, 470 (Tex.App.-Austin 2008, pet. denied) ("The supreme court has repeatedly held that the relevant unreasonably dangerous condition in a premise liability case is generally the condition at the time and place injury occurs. . . ."). We therefore consider the condition existing at the time of Hughes's accident.
"[T]he recreational use statute does not obligate a landowner to warn of known conditions." Flynn, 228 S.W.3d at 660. A landowner could be liable, however, for gross negligence in creating and failing to warn of "a condition that a recreational user would not reasonably expect to encounter on the property in the course of the permitted use." Shumake, 199 S.W.3d at 288. Hughes was an experienced cyclist who had been riding for over twenty years. He testified that he used that specific bridge fifty percent of the time he would ride in Valley View Park,
Texas cases addressing special defects are instructive in our analysis of conditions such as the one depicted here. Both premise- and special-defect claims are recognized under the TTCA, and the proof required to establish a breach of the duties owed for each claim depends on the type of defect alleged. TEX. CIV. PRAC. & REM.CODE ANN. § 101.022; State Dep't of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 237 (Tex.1992) (op. on reh'g). The court decides as a matter of law the question of whether a condition is a premise defect or a special defect. Payne, 838 S.W.2d at 238. The legal distinction between a premise defect and a special defect lies in the duty owed by a city to the person injured. City of Dall. v. Reed, 258 S.W.3d 620, 622 (Tex.2008) (per curiam) (citing Payne, 838 S.W.2d at 238).
A "special defect" is not defined by the TTCA, but the legislature identified representative, non-exclusive examples "such as excavations or obstructions on highways, roads, or streets." TEX. CIV. PRAC. & REM.CODE ANN. § 101.022(b). In determining whether a condition is within the same class of special defects as excavations or obstructions, courts should consider, among other things, whether the condition presents an unexpected and unusual danger to ordinary users of roadways. Tex. Dep't of Transp. v. York, 284 S.W.3d 844, 847 (Tex.2009) (per curiam) (op. on reh'g).
In City of Dallas v. Reed, a special-defect case, the supreme court concluded that "there is nothing unusually dangerous about a slight [two-inch] drop-off between traffic lanes in the roadway" because "[o]rdinary drivers, in the normal course of driving, should expect these slight variations on the road caused by normal deterioration." Reed, 258 S.W.3d at 622; see also City of El Paso v. Bernal, 986 S.W.2d 610, 611 (Tex. 1999) (per curiam) (three-inch depression in sidewalk was not "unexpected or unusual" danger to ordinary users); cf. Hindman v. State Dep't of Highways & Pub. Transp., 906 S.W.2d 43, 45 (Tex.App.-Tyler 1994, writ denied) ("[M]inor flaws in road shoulders are neither unexpected nor unusual, and, though Hindman, as a cyclist, had a perfect right to be traveling on the shoulder rather than the main road, imperfections such as the one he encountered on this occasion [two-and-a-half-inch bump occupying center of shoulder] are conditions that cyclists can and should anticipate when riding on a shoulder."). Even though vehicles — including the motorcycle rider who encountered the two-inch drop-off in Reed — travel at far greater speeds than Hughes's bicycle here, the supreme court nevertheless concluded that drivers should expect such variations caused by normal deterioration of the roadway.
Here, Hughes was riding on a park trail specifically designated for hiking
Based on the record before us, we conclude Hughes has failed to create a fact issue as to his allegations of gross negligence. The trial court therefore erred when it failed to grant the City's plea to the jurisdiction. We reverse the trial court's order denying the City's plea to the jurisdiction and dismiss Hughes's claims against the City.
