City of Cedar Park v. Delapena

1

CITY OF CEDAR PARK, Appellant, v. JUAN DELAPENA, INDIVIDUALLYAND AS NEXT FRIEND OF C.D.L.P, A MINOR; AND KORINA DELAPENA, INDIVIDUALLY AND ON BEHALF OFTHE ESTATE OF C.D., A DECEASED MINOR, Appellees.

No. 13-21-00341-CV

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

November 17, 2022

On appeal from the 201st District Court of Travis County, Texas.

Before Chief Justice Contreras and Justices Benavides and Tijerina

MEMORANDUM OPINION

GINA M. BENAVIDES JUSTICE

In this case involving the tragic drowning of a young child at a public pool, the City of Cedar Park (City) appeals from the denial of its plea to the jurisdiction. In what we construe as a single issue, the City contends that the circumstances of this case fall outside the Texas Tort Claims Act's (TTCA) limited waiver of immunity.^[1] We reverse and render a judgment of dismissal for want of jurisdiction.^[2]

I. Background

On June 4, 2019, High Hopes Summer Camp took its campers to Buttercup Pool, which is owned and operated by the City. One of those campers was Catiana, a six-year-old girl with autism and Down Syndrome, who could not swim. Catiana's parents appellees Juan and Korina Delapena, had multiple conversations with camp staff about Catiana's inability to swim. The staff assured them that Catiana would be taken care of and that there was no need for them to provide a life jacket for Catiana because one would be available at the pool.

Buttercup Pool's written safety policy requires camps to actively supervise campers with at least one camp counselor for every ten campers. Under the policy, if a camp does not have enough counselors present to satisfy this requirement, the camp should be denied entry to the pool. Some evidence in the record suggests that, on the day in question, High Hopes Summer Camp was admitted to the pool with only ten counselors available to supervise 112 campers.^[3]

According to an eyewitness, three lifeguards were on duty, and although there was a bin full of lifejackets available for campers to use, none of the campers were wearing lifejackets. According to one of the campers, Catiana entered the pool while camp staff had their backs turned to the campers. A lifeguard noticed Catiana in distress, but by the time Catiana was pulled from the water, she was unresponsive. Catiana died the next day.

The Delapenas originally filed a friendly suit against High Hopes Summer Camp. They subsequently amended their petition to bring survival and wrongful death claims against the City, as well as a bystander claim on behalf of Catiana's sister who witnessed Catiana's drowning. They alleged the City was negligent in: (1) operating the pool without an adequate number of qualified lifeguards; (2) failing to provide Catiana with an available life jacket; and (3) negligently implementing the City's pool safety policy.

The City filed a plea to the jurisdiction arguing that the Delapenas failed to allege a valid waiver of immunity under the TTCA. The City also submitted jurisdictional evidence, including copies of the City's written rules and policies concerning the operation of Buttercup Pool and a document the City referred to as the "Cedar Park Aquatics Safety Plan," which is a report authored by a risk management consultant prior to the incident. The City also submitted evidence from the Cedar Park Police Department's investigation, including reports, diagrams, witness statements, and bodycam video taken by responding officers.

The Delapenas filed a response to the plea and submitted their own jurisdictional evidence, including a copy of a "Texas Health and Human Services Commission Child-Care Licensing Investigation Report." Citing multiple acts and omissions, the report concluded by a preponderance of the evidence that the camp's director breached the duty of care owed to Catiana and that his "negligence result[ed] in the death of [a] child in his care." In particular, the report found that the director placed camp counselors in positions where they could not monitor the shallow end of the pool. According to the report, the director then "released" some children, including Catiana, into the shallow end without life jackets, even though these children had not taken swim tests and the Delapenas had informed the camp that Catiana could not swim.

The trial court denied the plea to the jurisdiction, and this interlocutory appeal ensued. See Tex. Civ. Prac. & Rem. Code. Ann. § 51.014(a)(8).

II. Standard of Review & Applicable Law

Subject matter jurisdiction is essential to a court's authority to decide a case. In re Abbott, 601 S.W.3d 802, 807 (Tex. 2020) (original proceeding) (per curiam) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)). Whether a trial court has subject matter jurisdiction is a question of law we review de novo. Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).

Sovereign immunity is a common-law doctrine that protects the State and its agencies from lawsuits for money damages and deprives a trial court of subject matter jurisdiction over the plaintiff's claims. Mission Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655 & n.2 (Tex. 2008). Governmental immunity offers the same protections for the State's political subdivisions, including its cities. Dohlen v. City of San Antonio, 643 S.W.3d 387, 392 (Tex. 2022) (first citing Hillman v. Nueces County, 579 S.W.3d 354, 357 (Tex. 2019); and then citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694 n.3 (Tex. 2003)). By design, immunity shields public treasuries from mistakes made by government officials and employees. Tooke v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). "[I]mmunity thus protects the public as a whole by preventing potential disruptions of key government services that could occur when government funds are unexpectedly and substantially diverted by litigation." Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117, 121 (Tex. 2015).

On the other hand, protecting the public fisc is cold comfort for an injured person barred from the judicial remedies that would otherwise be available to them had the complained-of-acts been committed by a private person. See id.; Bacon v. Tex. Hist. Comm'n, 411 S.W.3d 161, 172 (Tex. App.-Austin 2013, no pet.) (noting that "sovereign immunity generally shields our state government's improvident acts-however improvident, harsh, unjust, or infuriatingly boneheaded these acts may seem" (internal quotation marks and citation omitted)). Consequently, courts "defer to the Legislature in waiving immunity because it is in a better position to weigh the conflicting public policy interests associated with subjecting the government to liability." Dohlen, 643 S.W.3d at 392 (citing Wasson Ints., Ltd. v. City of Jacksonville, 489 S.W.3d 427, 432-33 (Tex. 2016)).

The TTCA provides a limited waiver of immunity for certain tort claims against governmental entities, including claims for "personal injury and death so caused by a condition or use of tangible personal or 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 Ann. § 101.021(2). This waiver encompasses "two distinct tort causes of action: one arising from tangible personal property and one arising from a premises defect." Sampson, 500 S.W.3d at 385 (citing Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004)). A plaintiff's claim must be one or the other, but it cannot be both. Id. (citing Miranda, 133 S.W.3d at 233).

It is the plaintiff's initial burden to plead facts that affirmatively demonstrate the trial court's subject matter jurisdiction, and we review this question as a matter of law. City of Austin v. Leggett, 257 S.W.3d 456, 461 (Tex. App.-Austin 2008, pet. denied) (citing Miranda, 133 S.W.3d at 226). We construe the pleadings liberally, accept the plaintiff's allegations as true, and look to the plaintiff's intent. See id. (citing Miranda, 133 S.W.3d at 226). If the pleadings are deficient but do not demonstrate an incurable defect, then the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend their pleadings. Id. (citing Miranda, 133 S.W.3d at 226-27). Conversely, if it becomes clear that the plaintiff cannot allege a viable waiver of immunity, then the suit should simply be dismissed. Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).

A governmental defendant may challenge the existence of jurisdictional facts and support its argument with evidence. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). In such instances, the analysis "mirrors that of a traditional summary judgment." Tex. Dep't of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (quoting Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 634 (Tex. 2012)). When a governmental entity establishes the absence of a jurisdictional fact, the burden shifts to the plaintiff to raise a genuine issue of material fact for the jury to resolve; otherwise, the trial court should rule on the jurisdictional question as a matter of law. Miranda, 133 S.W.3d at 228. "[I]n evaluating the parties' evidence, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor." City of San Antonio v. Maspero, 640 S.W.3d 523, 528-29 (Tex. 2022) (citing Miranda, 133 S.W.3d at 228).

III. Analysis

The City contends that the Delapenas' pleadings and the jurisdictional record do not support a waiver of immunity. The Delapenas respond that they have alleged two valid claims under the TTCA, and they stress that neither claim is a premises defect claim....