City of San Antonio v. Realme

1

CITY OF SAN ANTONIO, Appellant v. Nadine REALME, Appellee

No. 04-23-00885-CV

Court of Appeals of Texas, Fourth District, San Antonio

August 28, 2024

From the 73rd Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-14297 Honorable Christine Vasquez-Hortick Judge Presiding

Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A Rodriguez, Justice

MEMORANDUM OPINION

Beth Watkins, Justice

Appellant the City of San Antonio challenges the trial court's order denying the City's traditional and no-evidence motion for summary judgment, which sought the dismissal of appellee Nadine Realme's claims under the Recreational Use Statute (RUS). Because, as members of the Supreme Court of Texas have noted, an activity is not subject to the RUS simply because it occurs outside, we affirm the trial court's order.

Background

This is the second appeal to this court arising out of the underlying dispute. See generally City of San Antonio v Realme, No. 04-20-00119-CV, 2021 WL 1009330 (Tex. App.-San Antonio Mar. 17, 2021, pet. denied) (mem. op.). On Thanksgiving Day of 2017, Realme participated in a Turkey Trot 5K race held in downtown San Antonio. During the race, Realme tripped over a metal object protruding from the ground as she was attempting to pass some slower participants. She then fell into a utility pole and broke her arm. Realme brought a premises liability claim against the City, alleging negligence and gross negligence.

The City filed a plea to the jurisdiction challenging the trial court's subject-matter jurisdiction under the Texas Tort Claims Act, and the trial court denied the plea. See id. at *1-2. In its appeal from that order, the City argued Realme's claims were barred by both the TTCA and the RUS. See id. at *2, *6. We affirmed the trial court's ruling under the TTCA, but we declined to address the City's claim of immunity under the RUS because Realme had not yet had "the opportunity to conduct discovery and develop the record" on that issue. See id. at *6. The Texas Supreme Court denied the City's petition for review.

On remand, the City moved for traditional and no-evidence summary judgment based on the RUS. "After considering the City's motion and evidence; [Realme's] response and Exhibits B, C, D, and F attached thereto; and the City's reply," the trial court denied the motion.^[1] The City again appealed to this court.

Analysis

Standard of Review

The City is a governmental entity and thus is generally entitled to governmental immunity from liability and suit. See e.g., Lubbock Cnty. Water Control & Improvement Dist. v. Church & Akin, L.L.C., 442 S.W.3d 297, 300 (Tex. 2014). A plaintiff suing a governmental entity must establish the entity has consented to suit, "which may be alleged either by reference to a statute or to express legislative permission." City of San Antonio by & Through City Pub. Serv. Bd. of San Antonio v. Smith, 562 S.W.3d 75, 80 (Tex. App.-San Antonio 2018, pet. denied). If the entity has not consented to suit, the trial court lacks subject-matter jurisdiction over the plaintiff's claims. See Fraley v. Tex. A&M Univ. Sys., 664 S.W.3d 91, 96 (Tex. 2023). A governmental entity may challenge a trial court's subject-matter jurisdiction through a motion for summary judgment. See Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); see also Harris Cnty. Flood Control Dist. v. Kerr, 499 S.W.3d 793, 798 (Tex. 2016) (in determining whether jurisdictional evidence raises a fact question, appellate review mirrors traditional summary judgment review).

When a jurisdictional plea challenges the pleadings, we must determine "if the plaintiff has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the case." Meyers v. JDC/Firethorne, Ltd., 548 S.W.3d 477, 486 (Tex. 2018). "We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent." Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). If the pleaded facts do not affirmatively demonstrate the trial court's jurisdiction but also do not reveal incurable jurisdictional defects, the plaintiff should be allowed to amend. Id. at 226-27. However, "[i]f the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend." Id. at 227. "Our ultimate inquiry is whether the particular facts presented affirmatively demonstrate a claim within the trial court's subject-matter jurisdiction." Smith, 562 S.W.3d at 79.

Where the jurisdictional issue implicates the merits of the parties' claims, "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 is undisputed or does not raise a fact question, the trial court rules on the plea as a matter of law. Miranda, 133 S.W.3d at 228. If the evidence raises a fact question on the jurisdictional issue, "then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder." Id. at 227-28.

In addition to our review of the parties' pleadings and evidence, this jurisdictional dispute requires us to construe the RUS. Statutory construction presents a legal question we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Our primary goal "is to ascertain and give effect to the Legislature's intent." Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013). "The plain meaning of the text, given the context of the statute as a whole, provides the best expression of legislative intent." Id.

Applicable Law

The TTCA generally waives a governmental entity's immunity when, inter alia, a plaintiff's claims arise from an injury caused by a condition 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 Ann. § 101.021(2); Realme, 2021 WL 1009330, at *2-3. The RUS provides, however, that "if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises." Tex. Civ. Prac. & Rem. Code Ann. § 75.002(f). The RUS therefore operates as a limit on the TTCA's waiver of immunity. See Univ. of Tex. v. Garner, 595 S.W.3d 645, 648 (Tex. 2019) (per curiam). When the RUS applies and the defendant is a governmental entity, the plaintiff does not satisfy her burden to establish a waiver of immunity for a premises-liability claim unless she presents evidence that raises a fact question about whether the governmental entity acted with gross negligence, malicious intent, or bad faith. See id.; City of Dallas v. Patrick, 347 S.W.3d 452, 457 (Tex. App.-Dallas 2011, no pet.).

"The [RUS], however, only applies to certain recreational uses that it defines through a list of activities it considers to be 'recreation.'" Univ. of Tex. at Arlington v. Williams, 459 S.W.3d 48, 49 (Tex. 2015) (plurality op.); Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3). Because the legislature has defined "recreation" for purposes of applying the RUS, our analysis must be guided by the statutory definition rather than by the term's ordinary meaning. See Tex. Gov't Code Ann. § 311.011(b); Hughes, 246 S.W.3d at 625.

Application

The RUS Does Not Expressly Apply to 5K Participation

It was undisputed below that at the time of her injury, Realme was running, jogging, or walking on City-owned property during a competitive 5K race organized by non-governmental third parties.^[2] If the RUS defined competitive running, jogging, or walking as "recreation," then the question of the statute's application would present a simple answer. But the RUS does not expressly define either competitive or non-competitive running, jogging, or walking as "recreation." See generally Tex. Civ. Prac. & Rem. Code § 75.001(3) (defining "recreation" to include, inter alia, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, cave exploration, waterskiing and water sports, bicycling, disc golf, dog-walking, radio control flying, and rock climbing); Garner, 595 S.W.3d at 649-50 (RUS applied to plaintiff who was injured while bicycling); Patrick, 347 S.W.3d at 457 (RUS's "nature study" provision applied to plaintiff injured at zoo). Additionally, there is no evidence that Realme's running, jogging, or walking during the 5K race was directly associated with any of the statutorily identified forms of recreation. See Meredith v. Chezem, No. 03-18-00256-CV, 2018 WL 6425017, at *2-3 (Tex. App.-Austin Dec. 7, 2018, no pet.) (mem. op.) (RUS applied to plaintiff injured while returning from pleasure driving); City of Corpus Christi v. Ferguson, No. 13-12-00679-CV, 2014 WL 495146, at *4-5 (Tex. App.-Corpus Christi-Edinburg Feb. 6, 2014, no pet.) (mem. op) (RUS applied to plaintiff injured while walking to marina shower because that action was "part of her broader boating-camping activities"). Finally, there is no suggestion that Realme was traveling to or from any activity the statute expressly defines as "recreation" at the time of her injury. See, e.g., Karl v. Brazos River Auth., 494 S.W.3d 168, 173 (Tex. App.-Eastland 2015, pet. denied) (RUS applied to plaintiff who "was in the process of traveling to the recreational [swimming] area on the premises when she was injured").

Subsection (L) Provides a...