No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS CITY OF DALLAS, Defendant/Appellant, MAURYA PATRICK,

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1 ORAL ARGUMENT REQUESTED No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS CITY OF DALLAS, Defendant/Appellant, v. MAURYA PATRICK, Plaintiff/Appellee. REPLY BRIEF OF APPELLANT THOMAS P. PERKINS, JR. CITY ATTORNEY S OFFICE Dallas City Attorney 1500 Marilla Street, Room 7D North Barbara Rosenberg (Texas Bar No ) Dallas, Texas Patricia Medrano (Texas Bar No ) Telephone: Assistant City Attorneys Telecopier: ATTORNEYS FOR APPELLANT

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...ii SUMMARY OF ARGUMENT...2 ARGUMENT... 2 I. The Recreational Use Statute governs this case, and Patrick was engaged in recreation at the time of her injury...2 II. There is no waiver of immunity from suit because after the City presented evidence it was not grossly negligent, Patrick did not present evidence to create a fact issue....4 CONCLUSION AND PRAYER...6 CERTIFICATE OF MAILING AND SERVICE...8 i

3 INDEX OF AUTHORITIES CASES City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. 2002)...3 City of Plano v. Homoky, 294 S.W.3d 809 (Tex. App. Dallas 2009, no pet.)...5 Hidalgo v. Surety Sav. & Loan Ass n, 462 S.W.2d 540 (Tex. 1971)...5 Kopplin v. City of Garland, 869 S.W.2d 433 (Tex. App. Dallas 1993, writ denied)...3 Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004)...4 STATUTES Tex. Civ. Prac. & Rem. Code , 3 Tex. Civ. Prac. & Rem. Code Tex. Civ. Prac. & Rem. Code (11)...5 Tex. Civ. Prac. & Rem. Code , 4 Tex. Civ. Prac. & Rem. Code Tex. Civ. Prac. & Rem. Code , 4 Tex. Civ. Prac. & Rem. Code ii

4 No CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS AT DALLAS CITY OF DALLAS, Defendant/Appellant, v. MAURYA PATRICK, Plaintiff/Appellee. REPLY BRIEF OF APPELLANT TO THE HONORABLE COURT OF APPEALS: The City of Dallas files this reply to Patrick s brief to demonstrate that Patrick s arguments that the Recreational Use Statute does not apply to Zoo property and that she raised a fact issue as to gross negligence are without merit. Her arguments that a zoo is not a recreational property or that she was not using the Zoo for a recreational purposes have no basis in law or fact. Moreover, after the City produced evidence that the City was not grossly negligent, she produced no evidence to create a fact issue. Because Patrick s evidence does not raise a fact issue to establish subject-matter jurisdiction in this cause, this Court should reverse the trial court s denial of the City s plea and dismiss Patrick s claims for want of jurisdiction. 1

5 SUMMARY OF ARGUMENT Patrick has only chosen to respond to two of the arguments in the City s brief, whether the Recreational Use Statute applies and whether there is a fact issue as to the City s gross negligence. She does not dispute (1) that she is bringing a premise liability cause of action, (2) that the City s actions here constitute a governmental function, (3) that her premise cause of action is governed by the Texas Tort Claims Act ( TTCA ), and (4) that she does not have standing to bring a cause of action pursuant to the Texas Accessibility Standards because she is not disabled. Patrick has not created a fact issue for gross negligence under the TTCA or the Recreational Use Statute. Because the City established that the Recreational Use Statute controls in this situation, and established that Patrick s injury did not arise from willful, wanton, or grossly negligent conduct, her claims should be dismissed for want of subjectmatter jurisdiction. ARGUMENT I. The Recreational Use Statute governs this case, and Patrick was engaged in recreation at the time of her injury. Patrick bases her assertion that the court has subject-matter jurisdiction on her argument that the Zoo is not a property for which the Recreational Use Statute would apply. She points to section of the Texas Tort Claims Act. (Appellee s Brief at 6). However, that section of the TTCA merely gives a list of nonexclusive functions that are governmental functions for which a waiver of immunity from suit is required. See Tex. Civ. Prac. & Rem. Code The section provides that the operation of a 2

6 zoo is a governmental function. Id (13). The section has no relevance as to whether a zoo is a recreational property. To make that determination the Court must look to the definitions in the Recreational Use Statute. See id The Recreational Use Statute provides that recreation includes a non-exclusive list of activities, including any other activity associated with enjoying nature or the outdoors and nature study. Id (3)(I), (L); see Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex. App. Dallas 1993, writ denied) (the activities set out in (3) are not exclusive and do not exhaust the class of activities). A premise includes land, roads, building and structures. Tex. Civ. Prac. & Rem. Code (2). The statute provides that if a person enters a premise owned, operated or maintained by a governmental entity and engages in recreation, the duty owed is that owed to a trespasser. Id (f). The statute applies to the City even if an entrance fee is paid. See id (c)(1). Accordingly, the test for the applicability of the statute is whether a person enters a governmental premise and engages in recreational activity, not whether the Zoo is technically a park or the same as a park. Here, there is no dispute that Patrick entered a premises owned, operated and maintained by the City, the Zoo. (CR 79, 81). Thus, in this case for the recreational use statute to apply, the City must only provide sufficient evidence that Patrick was engaged in recreation at the time of her injury. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). The City presented uncontroverted evidence that Patrick was at the Zoo for a [f]amily outing, tak[ing] the children to the zoo, hav[ing] some fun, let[ting] them learn 3

7 about the animals. (CR ). She confirmed that she was there to enjoy the outdoors. (CR 149). Enjoying the outdoors and nature study are defined as recreational activities under the Recreational Use Statute. See Tex. Civ. Prac. & Rem. Code (3)(I), (L). Once the City presents evidence that she was engaged in recreation at the time of her injury, Patrick must present evidence creating a fact issue that she was not engaged in recreation at the time of her injury, which she failed to do. Patrick points to evidence that the Zoo s mission statement reflects that it provides an educational experience to dispute the application of the statute. (Appellee s Brief at 6). The mission statement does not controvert the fact that the Zoo is a governmental premise nor does it create a fact issue as to Patrick s recreational use of the Zoo. Therefore, the Recreational Use Statute is applicable and Patrick is required to meet the gross negligence standard to establish liability under the TTCA. See Tex. Civ. Prac. & Rem. Code (g). II. There is no waiver of immunity from suit because after the City presented evidence it was not grossly negligent, Patrick did not present evidence to create a fact issue. For the City to be liable and immunity from suit to be waived, Patrick would have to prove the City was grossly negligent in its maintenance of the curb. See id (d), (f),.003(f), (g), ; Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, (Tex. 2004). For immunity from suit to be waived, a claimant must be able to establish liability under the TTCA. Tex. Civ. Prac. & Rem. Code (a). The City challenged the jurisdictional facts required to establish the City s gross negligence. Patrick acknowledges that in order to show gross negligence, she must 4

8 show not only an act or omission by the City but also (1) that when viewed objectively from the standpoint of the City at the time of the occurrence, the City s act or omission involved an extreme degree of risk considering the probability and magnitude of the potential harm to others; and (2) that the City had actual subjective awareness of the risk involved but acted with conscious indifference to the rights, safety, or welfare of others. (Appellee s Brief at 7-8 [citing Tex. Civ. Prac. & Rem. Code (11)]). The City presented uncontroverted evidence negating its gross negligence. The evidence showed there were no obstructions that prevented Patrick from seeing the curb and the City did not have any knowledge that anyone had fallen due to the alleged uneven curb at the Zoo. (CR ). The photographs show that the curb was in good condition with no broken concrete or obstructions. (App x Tabs 1, 2). The curb was not damaged. (App x Tabs 1, 2). Moreover, the City provided the affidavit of Little David Session, Chief Building Inspector, showing that curb was not in violation of section of the Dallas Building Code nor the Life Safety Code Handbook because the City has not adopted those guidelines. (CR ). To create a fact issue, Patrick only points to her pleadings and a photograph. Pleadings are generally not competent evidence, even if sworn or verified. Hidalgo v. Surety Sav. & Loan Ass n, 462 S.W.2d 540, (Tex. 1971). And the photograph of the curb does not raise a fact issue as to gross negligence. The courts have explained that what separates ordinary negligence from gross negligence is the defendant s state of mind; in other words, the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care. See City of Plano v. Homoky, 5

9 294 S.W.3d 809, 817 (Tex. App. Dallas 2009, no pet.) The photograph of the curb is not evidence that the curb constituted an extreme risk of danger or that the City had actual, subjective knowledge of that risk, but nevertheless proceeded in conscious disregard for the safety of others. The City s undisputed evidence established that prior to Patrick s fall, the City had no actual knowledge of any problem with the curb. (CR ). There had been no complaints or other notifications of any Zoo patron falling due to the uneven curb. (CR ). Thus, the photograph is just a picture of the curb where Patrick fell. The photograph only shows that the curb exists. No other meaning can be given it. Accordingly, the photograph does not create a fact issue as to gross negligence. CONCLUSION AND PRAYER Patrick has not created a fact issue for gross negligence under the TTCA or the Recreational Use Statute. Accordingly, this Court should reverse the denial of the plea to the jurisdiction and dismiss Patrick s claims for want of jurisdiction. 6

10 Respectfully submitted, THOMAS P. PERKINS, JR. Dallas City Attorney /s Patricia Medrano Texas Bar No Barbara Rosenberg Texas Bar No Assistant City Attorneys DALLAS CITY ATTORNEY S OFFICE 1500 Marilla Street, Room 7D North Dallas, Texas Telephone: Telecopier: ATTORNEYS FOR APPELLANT 7

11 CERTIFICATE OF MAILING AND SERVICE I hereby certify that the original and seven copies of Appellant s Reply Brief were hand-delivered on December 29th, 2010, to Lisa Matz, Clerk, Fifth District Court of Appeals, George L. Allen, Sr. Courts Building, Second Floor, 600 Commerce Street, Dallas, Texas , and that a copy has been sent by first-class U.S. mail on December 29th, 2010, to the following: David Tijerina Chris Johnson Stovall & Associates 6600 LBJ Freeway Hillcrest Oaks IV Suite 180 Dallas, Texas /s PATRICIA MEDRANO 8