NO. 05-10-00727-CV ORAL ARGUMENT REQUESTED IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS CITY OF DALLAS, Defendant/Appellant, v. MAURYA LYNN PATRICK, Plaintiff/Appellee. APPELLEE S BRIEF AND APPENDIX DAVID TIJERINA (Texas Bar No. 00791796) CHRIS JOHNSON (Texas Bar No. 24063939) STOVALL & ASSOCIATES 6600 LBJ FRWY, HILLCREST OAKS IV SUITE 180 DALLAS, TEXAS 75240 (972) 774-1276 TELEPHONE (972) 774-1277 FACSIMILE ATTORNEYS FOR APPELLEE
IDENTITY OF PARTIES AND COUNSEL In accordance with Texas Rules of Appellate Procedure 38.1(a), the following is a list of all parties to the trial court s order from which this appeal is taken, and the names and addresses of all trial and appellate counsel: 1. Plaintiff/Appellee Maurya Lynn Patrick 2. Plaintiff/Appellee s Trial Counsel Aghabie Obisean (Texas Bar No. 24047650) Stovall & Associates 6600 LBJ Frwy., Hillcrest Oaks IV, Suite 180 Dallas, Texas 75240 Telephone No. (972) 774-1276 Facsimile No. (972) 774-1277 3. Plaintiff/Appellee s Appellate Counsel David Tijerina (Texas Bar No. 00791796) dtijerina@stovalllaw.com Chris Johnson (Texas Bar No. 24063939) cjohnson@stovalllaw.com Stovall & Associates 6600 LBJ Frwy., Hillcrest Oaks IV, Suite 180 Dallas, Texas 75240 Telephone No. (972) 774-1276 Facsimile No. (972) 774-1277 4. Defendant/Appellant The City of Dallas 5. Trial/Appellant s Trial Counsel Patricia Medrano (Texas Bar No. 13897900) 6. Defendant/Appellant s Appellate Counsel Patricia Medrano (Texas Bar No. 13897900) Barbara E. Rosenberg (Texas Bar No. 17267700) James B. Pinson (Texas Bar No. 16017700) Office of the City Attorney 7DN Dallas City Hall, 1500 Marilla Street Dallas, Texas 75201 Telephone No.: (214) 670-3519 Facsimile No. (214) 670-0622 i
TABLE OF CONTENTS INDEX OF AUTHORITIES..iii ISSUES PRESENTED..iv 1. Verbatim Issue Number One.iv 2. Verbatim Issue Number One.iv STATEMENT OF THE CASE..2 STATEMENT OF FACTS.3 SUMMARY OF ARGUMENT..3 ARGUMENTS AND AUTHORITIES..4 I. STANDARD OF REVIEW AND APPLICABLE LAW...4-5 II. III. IV. THE RECREATIONAL USE STATUTE DOES NOT APPLY 5-7 EVEN IF THE RECREATIONAL USE STATUTE APPLIES, SOVERIGN IMMUNITY DOES NOT PROTECT THE CITY FROM SUIT FOR A PREMISES CLAIM...7 GROSS NEGLIGENCE...7-9 CONCLUSION..9 PRAYER..10 CERTIFICATE OF SERVICE.10 ii
TABLE OF AUTHORITIES CASES Bland Indep. Schl. Dist. v. Blue, 34 S.W.3d 547, 445 (Tex. 2000)...4 City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002)...7 City of Plano v. Homoky, 294 S.W.3d 809, 813 (Tex. App.-Dallas 2009, no pet.)...5 City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997)..5 Hill v. State, 897 S.W.2d 533, 536 (Tex. App.-Ft. Worth 1995, no pet.)..6 Motel 6, Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996)...5 Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004)..4, 8 Tex. Dep t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)...4-5 Turner v. Franklin, 2010 Tex. App. LEXIS 6544 @ *25...8 STATUTES Tex. Civ. Prac. & Rem. Code 41.001(11) Tex. Civ. Prac. & Rem. Code 75.001(2) Tex. Civ. Prac. & Rem. Code 75.002 Tex. Civ. Prac. & Rem. Code 75.002(c)(2), (d) & (f) Tex. Civ. Prac. & Rem. Code 75.002(f) Tex. Civ. Prac. & Rem. Code 75.003(c)(1) Tex. Civ. Prac. & Rem. Code 101.021(2) Tex. Civ. Prac. & Rem. Code 101.0215 Tex. Civ. Prac. & Rem. Code 101.022(a) Tex. Civ. Prac. & Rem. Code 101.058 iii
ISSUES PRESENTED 1. Under Texas Law, is a city zoo an educational premise rather than a park or other recreational premise so as to preclude application of the Recreational use Statute? 2. If the Recreational Use Statute applies, has the Appellee provided evidence creating a fact issue as to the gross negligence of the City so as to vest the trial court with subject matter jurisdiction over this matter? iv
NO. 05-10-00727-CV IN THE COURT OF APPEALS FOR THE FIFTH JUDICIAL DISTRICT OF TEXAS DALLAS, TEXAS CITY OF DALLAS, Appellant, v. MAURYA LYNN PATRICK, Appellee. APPELLEE S BRIEF TO THE HONORABLE COURT OF APPEALS: In this interlocutory appeal, the City of Dallas ( City ) complained that the trial court erred in denying its plea to jurisdiction as to Maurya Patrick s ( Patrick ) premises liability cause of action. While Patrick s premises liability claim is governed by the Texas Tort Claims Act ( TTCA ), the record demonstrates that the trial court retained jurisdiction over this case as a matter of law. As such, this Court should affirm the trial court s decision denying the City s plea to jurisdiction. 1
STATEMENT OF FACTS On March 31, 2009, Patrick, her two grandchildren, and her mother visited the Dallas Zoo ( Zoo ), which was owned and operated by The City. (CR 6, 113, 147). Patrick did not pay an admission to enter the Zoo beaus her mother was a member of the Dallas Zoo (CR 148). Her purpose for visiting the Zoo that day was to have some fun and to let her grandchildren learn about the animals. (CR 148). As she was walking at the Zoo, she tripped and fell over a curb, which resulted in injuries. (CR 92, 96, 150-54). Patrick was watching where she was walking, and weather was not a factor in causing her fall. (CR 150-51, 156). Patrick brought suit, asserting that the City s immunity was waived for her premises liability claim. (CR 78-88). In Patrick s Second Amended Petition, Patrick detailed how she sustained personal injuries when she tripped and fell on the curb from the walkway to the street, which was a premises defect. (CR 80). Furthermore, Patrick s pleadings included causes of action for premises liability as a business invitee under the TTCA, negligence and gross negligence, and an alternative claim under the Recreational Use Statute for gross negligence. (CR 81-85). The City filed a plea to the jurisdiction, asserting sovereign immunity and challenging the trial court s subject matter jurisdiction under the TTCA and Recreational Use Statute. (CR 115-118). The City alleged that Patrick had failed to allege a waiver through gross negligence under the Recreational Use Statute even though Patrick claims that the City was grossly negligent. (CR 81-85, 143-70). After a hearing in which the trial court denied the City s plea, the City appealed the order by filing its plea to the jurisdiction in this Court. (CR 171-72). 2
SUMMARY OF ARGUMENT This is a response to an interlocutory appeal of the denial of the City s plea to the jurisdiction. Patrick s claim against the City arises from her trip and fall at the Dallas Zoo. Admittedly the operation and maintenance of zoos involve a government function. As such, Patrick is required to demonstrate that her claims invoked a waiver of immunity under Texas Tort Claims Act ( TTCA ). But, while the City attempts to characterize the Zoo as a park, the legislature has distinguished between parks and zoos. Furthermore, even looking at the Zoo s own mission statements, the Zoo supports its characterization as an educational entity rather than a park or recreational entity. As such, the Zoo owed Patrick a standard of care such as that which is afforded to invitees or licensees. Furthermore, as Patrick s mother was a member of the Dallas Zoo, Patrick though she did not pay an admission was a paying visitor. As such, the duty that the Zoo owed to Patrick was that of an invitee. Even if this Court determines that the Recreational Use Statute applies in this case, the City is not shielded from its gross negligence under this statute. Patrick pled gross negligence in her pleadings, and there is evidence that the City was grossly negligent. Thus, there is a genuine issue of fact as to whether the City was negligent, which vests the trial court with subject matter jurisdiction. 3
ARGUMENT AND AUTHORITIES I. Standard of Review and Applicable Law A plea to the jurisdiction contests a trial court s subject-matter jurisdiction. Tex. Dep t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999). The purpose of the pleas is not force the plaintiffs to preview their case on its merits. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Rather, the purpose behind a plea to the jurisdiction is to establish a reason why the merits of the plaintiff s claims should not be reached at all. Id. When a plea to the jurisdiction challenges the pleadings, the court determines if the pleader has alleged facts that affirmatively demonstrate the court s jurisdiction to hear the cause. Tex. Dep t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex. 2004). Courts construe the pleadings liberally in favor of the plaintiff and look to the pleader s intent. Id. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiff should be afforded the opportunity to amend. Id. A plea to the jurisdiction may be granted without allowing the plaintiff an opportunity to amend where the pleadings affirmatively negate the existence of jurisdiction. Id. at 227. When a plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court can consider relevant evidence submitted by the parties to help resolve the issues. Id. When the jurisdictional challenge implicates the merits of a plaintiff s cause of action and the plea to the jurisdiction includes evidence, the trial court reviews the evidence to determine whether a fact issue exists concerning that jurisdictional issue. Id. The trial court grants the plea to the jurisdiction as a matter of law only if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue. Id. at 227-28. 4
This Court reviews the plea to the jurisdiction de novo. Id. II. The Recreational Use Statute Does Not Apply Sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits against the State or other governmental units unless the State consents to suit. Id. This sovereign immunity extends to municipalities to the extent that the municipality engages in the exercise of governmental functions. See City of Tyler v. Likes, 962 S.W.2d 489, 501 (Tex. 1997). If a plaintiff s pleading establishes the legislature s consent to its lawsuit, sovereign immunity will not apply. See Jones, 8 S.W.3d at 638. The plaintiff may establish the legislature s consent to its lawsuit either by reference to a statute or express legislative permission. Id. The TTCA provides for a limited waiver for premises liability. See TEX. CIV. PRAC. & REM. CODE 101.021(2). If a claim arises from a premises defect, the government unit owes the claimant the duty that a private person owes to a licensee on private property, unless a claimant pays for the use of the premises. TEX. CIV. PRAC. & REM. CODE 101.022(a). If the plaintiff pays to use the premises, the governmental unit s duty is that owed to an invitee. City of Plano v. Homoky, 294 S.W.3d 809, 813 (Tex. App. Dallas 2009, no pet.). A land owner owes invitees a duty to exercise ordinary care to protect them from not only those risks of which the owner is actually aware but also the risks that the owner should be aware of after reasonable inspection. Motel 6, Inc v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996). The City has failed to produce evidence conclusively demonstrating that that the Zoo was a recreational premise and that Patrick was engaging in recreation at the time of her injury at the Zoo. (CR 148). Rather, since Patrick was engaged in an educational activity at the time of her 5
injury at the Zoo, the Recreational Use Statute would not govern the standard of care owed to her. See generally TEX. CIV. PRAC. & REM. CODE 75.002(f). While the City has attempted to characterize the Zoo as a park, they ignore the fact that the legislature could have classified zoos as parks had it wished to but have done the opposite. The Texas Civil Practice and Remedies code outlines the liability of a municipality. TEX. CIV. PRAC. & REM. CODE 101.0215. In this section, the legislature has stated that a municipality is liable for damages arising from its governmental functions, which include thirty-six different types of governmental functions. Id. Amongst these governmental functions at number 13, the legislature listed parks and zoos. Id. When interpreting a statute, the terms should be construed in accordance with common usage and must be read in the context in which they are used. Hill v. State, 897 S.W.2d 533, 536 (Tex. App. Ft. Worth 1995, no pet.) (emphasis added). While the Appellant has attempted to classify the Zoo as a park, this Court should look to the context in which those terms are used within Section 101.0215 of the Texas Civil Practice and Remedies Code. In Section 101.0215, the legislature uses both the word zoo as well as the word park, which indicates that the legislature has deemed these to be two separate, albeit related, types of public spaces. Furthermore, while the Appellant has attempted to classify the zoo to be a park according to Webster s New Collegiate Dictionary, the legislature has indicated that they have classified parks and zoos as separate things by the fact that it uses both terms in Section 101.0215. The legislature s actions demonstrate that it believed there to be a distinction between a park and a zoo. Further, the Zoo s own mission statement reflects that the Zoo s primary purpose is to provide an educational experience. (SCR 63-122). And the legislature has done nothing indicating that it has blurred the lines of distinction between a zoo and a park. As the Zoo is not 6
a recreational premise, the standard to be applied to the Zoo is either that of an invitee or licensee. Here, though the Appellant is correct in that the Patrick did not pay an admission to the Zoo, Patrick was the recipient of the benefit conferred to her mother as a member of the Dallas Zoo. (CR 148). As such, Patrick was a person who had paid to use the Zoo for the purposes of Section 101.022(a) of the Texas Civil Practice and Remedies Code. Whether Patrick paid an admission is only part of the analysis as Patrick did not use the Zoo without charge as was contemplated within Section 101.022(a). As such, the correct duty owed her by the Zoo was that of an invitee. III. Even if the Recreational Use Statute applies, sovereign immunity does not protect the City from suit for a premises claim at a zoo where there is gross negligence The Recreational Use Statute applies, regardless of whether the person paid a fee or not, only if a plaintiff engages in recreation on government-owned recreational property and will further limit the duty of care owed in premises liability claims. TEX. CIV. PRAC. & REM. CODE 75.001(2), (3); 75.002, 75.003(c)(1), (g); 101.058. If the Recreational Use Statute applies, the standard of care owed would be that owed to a trespasser. 75.002(f). A government entity must be grossly negligent or must have acted with malicious intent or in bad faith if the Recreational Use Statute applies. 75.002(c)(2), (d) & (f); see City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002). Gross negligence means an act or omission that when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk; considering the probability and magnitude of the potential harm to others and of which the actor has actual, subjective awareness of the risk involved; but nevertheless proceeds with conscious 7
indifference to the rights, safety, or welfare of others. TEX. CIV. PRAC. & REM. CODE 41.001 (11). In other words, if a plaintiff proves that the defendant knew about the peril, but his acts or omissions demonstrated that he didn t care, the plaintiff will have successfully proved gross negligence. Turner v. Franklin, 2010 Tex. App. LEXIS 6544 at *25. A premises defect claim might be brought under the recreational use statute as long as there is a factual dispute regarding the landowner s gross negligence with respect to the alleged defect. Miranda, 133 S.W.3d at 230-31. In her Second Amended Petition, Patrick claims that the City acted with both negligence and gross negligence. Specifically, Patrick states that the City knew or should have known about the condition on the premises, the City failed to exercise ordinary care in the design, construction, and maintenance of the curb that caused her injuries, City failed to warn her of the condition, the City failed to make proper inspections of the Zoo, and failed to provide her with safe surroundings at the Zoo. There is a fact issue as to gross negligence in the case at hand. Along with Patrick s pleadings, the photographs are themselves evidence of the City s gross negligence. (CR 90). Here, the curb is itself proof that the City had actual awareness of its dangerous condition because the curb is a permanent part of the Zoo. (CR 90). Employees would have passed this area of the Zoo numerous times on any given day, but the City failed to take any steps to make this dangerous condition safe for its patrons. For example, the City failed to put up even the most rudimentary warnings that there was a ramp/curb in the area. (CR 90). Additionally, the City failed to even demarcate the area as a potential fall hazard by painting the curb a bright color so as to give Zoo patrons warning. While the Appellant contends that there is no fact issue as to gross negligence, Patrick has provided evidence of the Appellant s gross negligence, which creates an issue of fact and vests the trial court with jurisdiction. 8
While the Appellant contends that these allegations are conclusory, they, along with other evidence, create a fact issue as to whether the City was grossly negligent in regards to this curb. Since there is some evidence that the City acted with gross negligence in the case at issue, this claim is within the jurisdiction of the trial court. Although the Recreational Use Statute works to shield government from owing a duty to a plaintiff as an invitee or licensee, it does not shield government from the duty owed to a trespasser. Here, the City was grossly negligent and failed to even meet this low burden. As such, this Court should affirm the trial court s determination that jurisdiction was proper in this case. CONCLUSION While the city attempts to classify Patrick s activities at the Zoo as recreational activities, Patrick was actually involved in an education activity with her family. As such, the Recreational Use Statute does not govern the standard of care owed to her. As such, she was owed the duty of an invitee or licensee and not a trespasser. As Patrick s mother was a member of the Dallas Zoo, Patrick was not a person using the Zoo without charge as is contemplated within Section 101.022(a). Rather, this Court should determine that the fact that Patrick was the beneficiary of her mother s Dallas Zoo membership to be dispositive and find that she should be afforded the same care as an invitee. Even if this Court determines that the Recreational Use Statute applies, Patrick pled gross negligence and provided some evidence that the City was grossly negligent in the case at issue. This has created a fact issue, which vests the trial court with subject matter jurisdiction over this case. For these reasons, the trial court s order should be affirmed. 9
PRAYER WHEREFORE, PREMISES CONSIDERED, Appellee respectfully requests that this Court (1) affirms the trial court s order, and (2) awards Maurya Lynn Patrick any such other relief to which she is justly entitled. Respectfully submitted, STOVALL & ASSOCIATES BY: David Tijerina State Bar No. 00791796 Chris Johnson State Bar No. 24063939 6600 LBJ Frwy., Hillcrest Oaks IV, Suite 180 Dallas, Texas 75240 (972) 774-1276 TELEPHONE (972) 774-1277 FACSIMILE ATTORNEYS FOR THE PLAINTIFF CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the above attached document was served via facsimile on this the day of, 2010, on counsel for the Appellant. CHRIS JOHNSON Patricia Medrano VIA FACSIMILE: 214-670-0622 Barbara E. Rosenberg James B. Pinson City Attorney s Office 1500 Marilla Street, Room 7D North Dallas, Texas 75201 10