Appeal from the 56th District Court Galveston County, Texas
Trial Court Cause No. 15-CV-0228
consists of Justices Busby, Donovan, and Wise.
Brett Busby Justice
Joyce Woodkins sued appellant City of Texas City for injuries
she suffered in a bicycle accident at the city-owned Carlos
Garza Sports Complex. Woodkins alleged the City waived its
governmental immunity under the Texas Tort Claims Act because
her injury was caused by a premise defect: an uncovered drain
trench. The City filed a plea to the jurisdiction, arguing
that it was immune from Woodkins's suit because evidence
showed it did not have actual knowledge of the alleged
defect. The trial court denied the City's plea, and the
City filed this interlocutory appeal.
reasons stated below, we conclude that the City failed to
meet its burden to show there is no genuine issue of material
fact as to its actual knowledge of the alleged defect. We
therefore affirm the trial court's order.
petition, Woodkins alleged that she was riding her bicycle on
a sidewalk in the Carlos Garza Sports Complex when she
unexpectedly crashed into an "uncovered and unmarked
trench" that caused her to fall. As a result, Woodkins
sustained multiple injuries. The trench extends across the
sidewalk and is six inches deep and thirty inches wide. The
trench serves as a drain, directing rain runoff from the
parking lot across the sidewalk into a grassy area.
are two trench drains that cross the sidewalk where Woodkins
fell. Each drain was designed to be covered by a 169-pound
metal plate; the edges of the plate sit in an indentation in
the adjacent sidewalk so that the plate's top is flush
with the sidewalk. According to Woodkins, one of the drains
was missing its metal plate when she encountered it.
sued the City, alleging negligence and gross negligence. She
also alleged that the City had waived its immunity under
provisions of the Texas Tort Claims Act and the recreational
use statute because the case involved premise and special
defects and misuse of tangible personal
City filed an answer followed by a plea to the jurisdiction.
In its plea, the City argued, in part, that the recreational
use statute limits the governmental unit's liability for
premise defects when the injured party is engaged in a
recreational activity. The City argued that under the
statute, it did not owe Woodkins a greater degree of care
than that owed to a trespasser, and therefore the City could
be liable (and its immunity waived) only if it was grossly
negligent or acted with malicious intent or bad faith.
According to the City, Woodkins could not establish gross
negligence without evidence that the City had actual
knowledge of the alleged premise defect, which the evidence
did not show. The City included affidavits from two city
employees who testified that a crew member was assigned to
the complex for routine maintenance on the day of the
incident and the two previous days, but there was no work
request regarding the drain or cover.
hearing, the trial court denied the City's plea. This
issues, the City argues that the trial court erred in denying
the City's plea to the jurisdiction. We address these
issues together and affirm the trial court's order.
Standard of review
subdivisions of the state, including cities, are entitled to
immunity from suit under the common-law doctrine of
governmental immunity. Reata Constr. Corp. v. City of
Dallas, 197 S.W.3d 371, 374 (Tex. 2006). Under this
doctrine, the City is not liable for the torts of its agents
unless there is a constitutional or statutory waiver of
immunity. City of Houston v. Daniels, 66 S.W.3d 420,
424 (Tex. App.-Houston [14th Dist.] 2001, no pet.). A city
may raise its immunity from suit in a plea to the
jurisdiction, and we review the trial court's ruling on a
plea de novo. Tex. Dep't of Parks & Wildlife v.
Miranda, 133 S.W.3d 217, 226, 228 (Tex. 2004). We must
uphold the trial court's order denying the City's
plea to the jurisdiction on any legal theory properly before
the court. See Carroll Indep. Sch. Dist. v. Nw. Indep.
Sch. Dist., 245 S.W.3d 620, 625 n.19 (Tex. App.-Fort
Worth 2008, pet. denied) (citing Guar. County Mut. Ins.
Co. v. Reyna, 709 S.W.2d 647, 648 (Tex.1986)).
to the jurisdiction may challenge whether the facts alleged
in the petition support a cause of action for which immunity
has been waived; it may also challenge the existence of the
alleged jurisdictional facts. City of Houston v.
Ranjel, 407 S.W.3d 880, 887 (Tex. App.-Houston [14th
Dist.] 2013, no pet.). When the plea disputes that the facts
alleged are sufficient to show a waiver of immunity, we
construe the pleadings liberally in favor of the plaintiff,
taking all factual assertions as true and looking to the
pleader's intent. Miranda, 133 S.W.3d at 226. We
also "take as true all evidence favorable to the
non-movant [and] indulge every reasonable inference and
resolve all doubts in the non-movant's favor."
Id. at 228. A plaintiff generally will not be
required to marshal evidence and prove a claim just to
overcome a plea to the jurisdiction. See Mission Consol.
Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 637 (Tex.
2012). If the plaintiff alleges basic facts adequate to
establish the elements of a claim such that the court can
determine whether it is barred by immunity, then the
plaintiff will only be required to submit evidence if the
defendant presents evidence negating one of those basic
the plea challenges the facts alleged and offers contrary
evidence, the standard of review "generally mirrors that
of a [traditional] summary judgment." Miranda,
133 S.W.3d at 228. As movant, the City has the burden to
prove there are no genuine issues of material fact and that
the trial court lacks jurisdiction as a matter of law.
See id. at 227-28. In other words, the governmental
unit must conclusively negate at least one essential element
of the pleaded cause of action for which immunity has been
waived. City of San Antonio v. Peralta, 476 S.W.3d
653, 656, 660 (Tex. App.-San Antonio 2015, no pet.) (citing
Miranda, 133 S.W.3d at 228); see KCM Financial
LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015) ("In
a traditional summary-judgment motion, . . . a defendant who
conclusively negates at least one essential element of a
cause of action . . . is entitled to summary
judgment."). The governmental unit cannot simply deny
the existence of jurisdictional facts and force the plaintiff
to demonstrate the existence of a fact issue. See
Thornton v. Ne. Harris Cty. MUD 1, 447 S.W.3d 23, 38
(Tex. App.-Houston [14th Dist.] 2014, pet. denied) ("A
no-evidence motion for summary judgment is not a valid means
to attack the existence of jurisdictional facts.").
A.Texas Tort ...