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Loy v. City of Alice

Court of Appeals of Texas, Fourth District, San Antonio

August 7, 2019

Stephanie LOY, Appellant

          From the 79th Judicial District Court, Jim Wells County, Texas Trial Court No. 17-08-57524-CV Honorable Richard C. Terrell, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa, Justice Irene Rios, Justice



         Stephanie Loy appeals an order granting the City of Alice's plea to the jurisdiction and dismissing her gross negligence suit against the City. Because Loy produced evidence raising a fact issue as to whether the City created the dangerous condition, which permits a reasonable inference that the City had subjective awareness of the dangerous condition, we reverse the trial court's order and remand for further proceedings.

         Procedural Background

         After being injured while jogging at Veteran's Park Plaza in the City of Alice, Loy sued the City. She alleged her "foot got caught on a severed metal post that was sticking up approximately two (2) inches from the ground. As a result, [she] fell to the ground and shattered her left elbow." Loy alleged "the severed metal post was partially camouflaged by leaves, dirt and grass." She further alleged the City created the dangerous condition, and was grossly negligent by failing to remove the metal post despite its actual knowledge of the dangerous condition.

         The City filed a plea to the jurisdiction, seeking dismissal of Loy's suit for want of jurisdiction. The sole basis for the plea was whether "the City had actual knowledge or awareness of the alleged unique and dangerous property condition." The City produced affidavits from three employees, stating they and other employees were unaware of the severed metal post. Loy responded with the deposition testimony of two of those employees, as well as with photos of the severed metal post and similar metal posts in the park that had not been severed. The trial court heard and then granted the City's plea. Loy timely appealed.

         Standard of Review

         We review a trial court's ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the plea to the jurisdiction challenges the pleadings, we liberally construe the pleadings to determine if the plaintiff "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 (Tex. 2004). When, as here, the plea to the jurisdiction challenges the existence of jurisdictional facts that implicate the merits, "we consider relevant evidence submitted by the parties to determine if a fact issue exists." Suarez v. City of Tex. City, 465 S.W.3d 623, 632-33 (Tex. 2015). "We take as true all evidence favorable to the nonmovant, indulge every reasonable inference, and resolve any doubts in the nonmovant's favor." Id. at 633. "If the evidence creates a fact question regarding jurisdiction, the plea must be denied pending resolution of the fact issue by the fact finder." Id. If, however, a governmental entity conclusively establishes facts negating the trial court's jurisdiction, "the plea to the jurisdiction must be granted as a matter of law." Id.

         Waiver of Immunity

         Generally, a city has governmental immunity from suit, which defeats a trial court's subject matter jurisdiction unless the Legislature has waived immunity for the suit. See id. at 632. Loy alleged the Legislature waived the City's governmental immunity under the Texas Tort Claims Act (TTCA). The TTCA waives immunity for "personal injury . . . caused by a condition or use of . . . real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law." Tex. Civ. Prac. & Rem. Code § 101.021(2). The TTCA waives immunity only "to the extent of liability created by [the TTCA]." Id. § 101.025(a). When, as here, the recreational use statute applies, the plaintiff must show "gross negligence, malicious intent, or bad faith." Id. § 75.002(d); Suarez, 465 S.W.3d at 632.

         Loy alleged only gross negligence. Under the recreational use statute, gross negligence has two elements:

(1)viewed objectively from the standpoint of the actor at the time of its occurrence, the act or omission involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and
(2)the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the ...

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