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City of Canadian v. Klein

Court of Appeals of Texas, Seventh District, Amarillo

May 22, 2017


         On Appeal from the 31st District Court Hemphill County, Texas Trial Court No. 7030, Honorable Steven Ray Emmert, Presiding

          Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.[1]


          James T. Campbell Justice.

         Appellant, the City of Canadian, Texas, brings this interlocutory appeal from an order denying its plea to the jurisdiction.[2] The City contends it is immune from the suit for damages brought by appellee Jenny Klein as next friend of her minor son, E.K. We find that Klein's suit has not invoked a waiver of the City's governmental immunity from suit, will reverse the order of the trial court and will render judgment dismissing the suit for want of jurisdiction.


         During an afternoon in July 2011, thirteen-year-old E.K. was swimming at the City's public swimming pool. One of the lifeguards on duty was seventeen-year-old C.D. The pool manager on duty was Shannon Burns. The pool had posted rules forbidding, among other things, more than one person on the diving board at a time and "horseplay." Burns was aware of the pool rules and was trained by the Red Cross.

         While on a break from his lifeguard duties that day, C.D. was "double bouncing" swimmers from the diving board. The parties' descriptions of the practice of "double bouncing" are similar. The City's description reads: "double bouncing involves two individuals on a diving board, wherein one is a bouncer, and one is the diver. The diver stands at the pool end of the board, and the bouncer stands several feet behind. Together they bounce downward, and the additional weight creates additional upward spring, allowing the diver to get some extra height on his jump. The bouncer remains on the board, and the diver jumps into the water."

         Some evidence shows pool manager Burns was aware that double bouncing sometimes took place at the pool and did not object as long as the participants were not young children. On this afternoon, that evidence shows, Burns observed that divers were double bouncing and made no effort to stop C.D. from doing so. E.K. joined in, but was injured during his turn on the board with C.D. Klein's pleadings allege E.K. and the diving board collided, causing his patella tendon to snap, dislocating his knee cap and breaking a small bone. His treatment required surgery and a six-month convalescence.

         Applicable Law

         The City presents two issues. First, it challenges the trial court's order denying its plea to the jurisdiction. Second, it contends the trial court erred by overruling its objections to an affidavit offered by Klein. We need discuss only the City's first issue.

         A trial court's subject-matter jurisdiction may be challenged through a plea to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004); Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a court lacks subject-matter jurisdiction is a question of law that we review de novo. State v. Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226. When the pleadings are challenged, we consider the allegations in favor of the plaintiff to determine if the plaintiff alleged facts affirmatively demonstrating the jurisdiction of the trial court to hear the case. Miranda, 133 S.W.3d at 226. To the extent relevant to the issue of jurisdiction, we also consider any evidence received by the trial court. Blue, 34 S.W.3d at 555; Texas Tech Univ. v Ward, 280 S.W.3d 345, 348 (Tex. App.-Amarillo 2008, pet. denied). In our review of evidence bearing on the jurisdictional issue, we take as true all evidence favorable to the plaintiff, and indulge every reasonable inference and resolve any doubts in the plaintiff's favor. City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009). If there is no question of fact as to the jurisdictional issue, a trial court must rule on the plea to the jurisdiction as a matter of law. Id.

         "Sovereign immunity and its counterpart, governmental immunity, exist to protect the State and its political subdivisions from lawsuits and liability for money damages." Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 (Tex. 2008); Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).[3] Sovereign and governmental immunities encompass two distinct principles, immunity from suit and immunity from liability. Miranda, 133 S.W.3d at 224. Immunity from liability is an affirmative defense subject to waiver, but immunity from suit deprives a court of subject-matter jurisdiction. Id.; see Rusk State Hosp. v. Black, 392 S.W.3d 88, 95 (Tex. 2012) (immunity from suit implicates courts' subject-matter jurisdiction). Thus, trial courts lack subject-matter jurisdiction to adjudicate suits for damages against subdivisions of state government, like municipalities, absent a valid statutory or constitutional waiver of governmental immunity. Suarez v. City of Texas City, 465 S.W.3d 623, 631 (Tex. 2015).

         The Texas Tort Claims Act contains a legislatively-granted, limited waiver of sovereign immunity. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001-.109 (West 2011 & Supp. 2016). The Tort Claims Act's waiver provides:

         A governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting ...

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