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Jackson v. City of Texas City

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

April 20, 2017

LECREASE JACKSON, INDIVIDUALLY AND AS SURVIVING PARENT OF XX, A DECEASED MINOR, AND CEDRIC CORBIN, INDIVIDUALLY AND AS SURVIVING PARENT OF XX, A DECEASED MINOR, Appellants,
v.
THE CITY OF TEXAS CITY, TEXAS, Appellee.

         On appeal from the 405th District Court of Galveston County, Texas.

          Before Justices Rodriguez, Contreras, and Longoria

          MEMORANDUM OPINION

          NELDA V. RODRIGUEZ Justice

         Appellants Lecrease Jackson and Cedric Corbin appeal from an order dismissing their suit against appellee the City of Texas City. Appellants filed suit individually and as the surviving parents of Kaloni, [1] a two-year-old girl who tragically drowned in a public park owned and maintained by Texas City. By one issue on appeal, appellants contend that the trial court erred in granting Texas City's plea to the jurisdiction on the basis of governmental immunity. We affirm.

         I. Background

         At the time the trial court granted dismissal, appellants' live petition alleged as follows.[2] On July 6, 2013, appellants and their daughter Kaloni attended a family reunion at Carver Park in Texas City. During the reunion, appellants took turns watching Kaloni, with one parent present at all times. Over the course of several hours, Kaloni played at the park's playground, which was approximately forty feet away from the edge of a pond- one of two ponds which Texas City constructed at Carver Park in 1974. Kaloni also sat with her parents and relatives at a group of picnic tables, which were approximately thirty feet away from the pond.

         At the conclusion of the reunion, Jackson went to help relatives round up their children, leaving Kaloni with Corbin. According to the petition, Corbin "turned to gather items from the picnic table and seconds later noticed that [Kaloni] was not present." Corbin immediately began searching for Kaloni, and he was soon joined by Jackson. They soon contacted authorities, fearing that Kaloni had fallen in the water. In the hours that followed, a diving team arrived and discovered Kaloni's body at the bottom of the pond.[3]

         It is undisputed that Texas City had posted at least one warning sign near the ponds which read "No Swimming, Beware of Snakes." The parties also agree that there were no barriers or fences along the edge of the pond nearest to the playground and picnic areas.

         Appellants filed suit based on these allegations, raising claims for negligence and gross negligence. As to gross negligence, appellants alleged that Texas City had actual awareness of the extreme degree of risk that children would drown in its "unprotected, artificially created bodies of water, which were positioned near the playground and easily accessible by children." According to appellants, Texas City "allowed children and others to visit Carver Park with conscious indifference of this risk." Further, appellants alleged that Texas City was grossly negligent in failing to place protective barriers around the pond or to adequately warn of the dangers associated with the water.

         Texas City submitted a plea to the jurisdiction and a supplemental plea. The supplement argued that there had been no incidents at Carver Park which would provide Texas City with notice that the pond presented some risk beyond the understanding of ordinary recreational users. Attached to the supplement was an affidavit by the custodian of records for the Texas City Police Department. The affidavit certified that the custodian was unable to locate any records of drownings or near-drownings in Carver Park in the last five years.

         Appellants submitted a response with new allegations-among them, that Texas City had fenced off a concrete structure near a different area of the ponds. According to appellants' response, the alleged presence of the fence demonstrated Texas City's awareness of the ponds' risks. Appellants attached exhibits to this response, including photographs which showed various aspects of Carver Park. One photograph showed a picnic table near a body of water. Another depicted a playground, though no water was pictured. A third showed what was called a "splash pad"-an area with several fountains in which children could play. Also included were three aerial photos of Carver Park, with measurements between various structures and the ponds, as well as a newspaper article concerning Kaloni's untimely death. Finally, at the hearing on the plea to the jurisdiction, appellants asked the trial court to review portions of a video taken by appellants' counsel. This video was apparently intended to show various aspects of Carver Park, including the ponds. However, the video was not entered into evidence and does not appear in the appellate record, and the trial court reviewed only a few unspecified portions of this video rather than its entirety. No other evidence was received.

         According to appellants, their photos and other submissions demonstrated at least four dangerous features of the pond: its proximity to areas frequented by children, its unsafe depth, its steep banks, and that certain parts of the banks were made of unstable soil which would easily give way under pressure.

         At the conclusion of the hearing, the trial court granted Texas City's plea to the jurisdiction on the basis of governmental immunity. This appeal followed.

         II. Discussion

         On appeal, appellants do not contest the dismissal of their negligence claim. Instead, appellants contend that they demonstrated Texas City's gross negligence and that the trial court therefore erred in dismissing this claim. Appellants argue that this showing of gross negligence was sufficient to survive the plea to the jurisdiction under the ...


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