Opinion filed September 29, 2017




                                     In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-16-00276-CV
                                  __________

CITY OF MIDLAND AND WASHINGTON AQUATIC CENTER,
                    Appellants
                                       V.
  HERBERT BUNCH, INDIVIDUALLY AND AS NEXT FRIEND
            OF TREBREH BUNCH, Appellee


                    On Appeal from the County Court at Law
                            Midland County, Texas
                        Trial Court Cause No. CC18606


                     MEMORANDUM OPINION
      Herbert Bunch, individually and as next friend of Trebreh Bunch, sued the
City of Midland and the Washington Aquatic Center for injuries that Herbert Bunch
suffered when a bench broke while he was seated on it. Bunch specifically asserted
negligence and premises liability claims in his original petition. The City of
Midland, which owned and operated the Center (together, the City), filed a plea to
the jurisdiction in which it asserted that Bunch’s claims related to recreational use
and were barred by governmental immunity. Bunch subsequently amended his
pleadings to add a cause of action for gross negligence. The trial court denied the
City’s plea in its entirety. The City filed an interlocutory appeal. We affirm in part
and reverse and render in part.
      In both his original and his amended pleadings, Bunch alleged that, on June 8,
2014, he “visited the Washington Aquatic Center swimming pool run by the City of
Midland” and “paid $3.00 for entry into the pool on the day of the incident in
question with his son.” Bunch further alleged, “Upon entry into the swimming park,
[Bunch] sat down on a park-styled bench in the swimming area; when he leaned
back, the bench broke causing him to fall backwards to the ground, causing bodily
injury and other damages.” In his second amended petition, Bunch added that an
employee of the City had approached him after his injury and told him that the bench
was supposed to have been replaced but that the City had failed to replace it.
      In his original petition, Bunch alleged ordinary negligence and premises
liability based on “the condition of the rusted bench,” which “presented an
unreasonable risk of harm.” He further alleged that he was an invitee of the City at
the time of his injury; that the City breached its duty of care when it failed to inspect,
warn, or correct hazardous conditions the City knew about; and that he was injured
as a result of the City’s failure to use ordinary care.
      The City filed a plea to the jurisdiction in which it asserted that, at the time of
the alleged injury, Bunch was engaged in recreation as that term is defined in the
recreational use statute. The City also noted that Bunch had not alleged gross
negligence. Therefore, the City argued, Bunch had not pleaded a cause of action for
which governmental immunity had been waived. Bunch subsequently filed a first
and second amended petition in which he alleged gross negligence in addition to his
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ordinary negligence claims. The parties submitted no evidence relating to the trial
court’s jurisdiction. The trial court entered an order by which it denied the plea to
the jurisdiction in its entirety.
       “A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat
a cause of action without regard to whether the claims asserted have merit.” Bland
Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Such a plea challenges
the trial court’s subject-matter jurisdiction over a pleaded cause of action. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225–26 (Tex. 2004). If a
governmental unit is immune from a pending claim, the trial court lacks subject-
matter jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d 89, 95
(Tex. 2012). “Subject-matter jurisdiction is a question of law.” Karl v. Brazos River
Auth., 494 S.W.3d 168, 171 (Tex. App.—Eastland 2015, pet. denied) (citing
Miranda, 133 S.W.3d at 226). Thus, we apply a de novo standard of review to a
trial court’s ruling on a plea to the jurisdiction. Id.
       When a plea to the jurisdiction challenges the plaintiff’s pleadings, as is the
case here, we must examine the plaintiff’s intent, construe the pleadings liberally in
favor of the plaintiff, and accept the allegations in the plaintiff’s pleadings as true to
determine whether the plaintiff has alleged sufficient facts to affirmatively
demonstrate the trial court’s jurisdiction to hear the case. Heckman v. Williamson
Cty., 369 S.W.3d 137, 150 (Tex. 2012). A plaintiff bears the burden of alleging facts
that affirmatively demonstrate the trial court’s jurisdiction. Miranda, 133 S.W.3d at
226.
       Sovereign immunity generally protects the State from lawsuits for money
damages. Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Sovereign immunity extends to political subdivisions of the State, including cities.
City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); see TEX. CIV. PRAC.
& REM. CODE ANN. § 101.001(3)(B) (West Supp. 2016). However, the Texas Tort
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Claims Act (TTCA) provides a limited waiver of governmental immunity. Mission
Consol. Indep. Sch. Dist. v. Garcia, 253 S.W.3d 653, 655–56 (Tex. 2008); Miranda,
133 S.W.3d at 224. Specifically, the TTCA waives governmental immunity for three
types of claims: (1) property damage, personal injury, and death caused by the use
of a vehicle; (2) personal injury and death caused by a condition or use of tangible
personal or real property; and (3) personal injury and death caused by premises
defects. CIV. PRAC. & REM. §§ 101.021, .022, .025 (West 2011); Miranda, 133
S.W.3d at 225.
      Liability under the TTCA, however, is further limited by “the recreational use
statute.” Miranda, 133 S.W.3d at 225; see CIV. PRAC. & REM. § 101.058 (“To the
extent that Chapter 75 limits the liability of a governmental unit under circumstances
in which the governmental unit would be liable under [the TTCA], Chapter 75
controls.”). The recreational use statute’s purpose is to encourage landowners to
open their lands to the public for recreational purposes. State v. Shumake, 199
S.W.3d 279, 284 (Tex. 2006). The statute limits the liability of the State and others
who open their land for recreational purposes. Id. The statute provides in relevant
part 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.” CIV. PRAC. & REM. § 75.002(f) (West 2017) (emphasis added).
The degree of care owed to a trespasser is “not to injure that person willfully,
wantonly, or through gross negligence.” Miranda, 133 S.W.3d at 225.
      The recreational use statute applies to a plaintiff who is engaged in
“recreation” on the governmental unit’s “premises.” Id.; City of Bellmead v. Torres,
89 S.W.3d 611, 613–14 (Tex. 2002). The statute provides a nonexclusive list of
activities that constitute “recreation,” including “swimming” and “any other activity
associated with enjoying nature or the outdoors.”             CIV. PRAC. & REM.
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§ 75.001(3)(C), (L). The statute defines “premises” to include not only the land
itself, but also “buildings, structures, machinery, and equipment attached to or
located on the land.” Id. § 75.001(2).
      When we interpret statutes, we “give statutory terms their ordinary or
common meaning unless context or a supplied definition indicates that a different
meaning was intended.” Melden & Hunt, Inc. v. East Rio Hondo Water Supply
Corp., 520 S.W.3d 887, 893 (Tex. 2017) (citing Greene v. Farmers Ins. Exch., 446
S.W.3d 761, 765 (Tex. 2014)). Therefore, in order to determine whether sitting on
a “bench in the swimming area” (as alleged in Bunch’s pleadings) is “swimming” or
is an activity associated with swimming or with enjoying nature or the outdoors, we
take note of the common, ordinary meaning of the word “associated.” See Harris
Cty. Appraisal Dist. v. Tex. Workforce Comm’n, 519 S.W.3d 113, 129 (Tex. 2017)
(stating that, to “determine the ordinary meaning of statutory terms, ‘we typically
look first to their dictionary definitions’” (quoting Tex. State Bd. of Exam’rs of
Marriage & Family Therapists v. Tex. Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017))).
The dictionary defines “associate” as “closely connected (as in function or office)
with another” and as “closely related esp. in the mind.” MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY 75 (2004).
      The facts alleged by Bunch in his pleadings indicate that he was involved in
recreation at the time of his injury: either swimming or an activity associated or
closely related to swimming or enjoying the outdoors. See City of Dalhart v. Lathem,
476 S.W.3d 103, 108 (Tex. App.—Amarillo 2015, pet. denied) (holding that person
was engaged in the recreational activity of swimming when she was injured, even
though she was not in the water at the time, during a break while she sat with other
swimmers at a picnic table on pool premises); Karl, 494 S.W.3d at 173 (holding that
a person engages in recreation when the person is on the governmental unit’s
premises for a recreational activity as defined in the statute and is traveling to and
                                          5
from the recreational area); City of Plano v. Homoky, 294 S.W.3d 809, 817 (Tex.
App.—Dallas 2009, no pet.) (holding that person was engaged in an activity
associated with enjoying nature or the outdoors when she fell in the clubhouse after
a round of golf).
       Our interpretation of the plain text of the statute also comports with the
recreational use statute’s aim to encourage landowners, including public
landowners, to allow people to enter their premises for recreation by protecting those
landowners from ordinary negligence suits if those same people injure themselves.
See Shumake, 199 S.W.3d at 284; Karl, 494 S.W.3d at 172. The statute’s aim would
be encumbered if parents who bring their minor children onto premises for
recreation, and who then stay to watch their children engage in recreation, could
bring premises liability claims against the landowners under a theory of ordinary
negligence while their children could not bring such suits. See TEX. GOV’T CODE
ANN. § 311.023(1) (West 2013) (“In construing a statute, whether or not the statue
is considered ambiguous on its face, a court may consider among other matters the:
(1) object sought to be attained . . . .”).
       On appeal, Bunch contends that the recreational use statute does not apply to
his claims because he was “parenting” his son and was not engaged in “recreation”
at the time of the injury. Bunch cites two cases in which the Texas Supreme Court
held that the recreational use statute does not apply to the activity of “spectating.”
See Lawson v. City of Diboll, 472 S.W.3d 667, 669 (Tex. 2015); Univ. of Tex. at
Arlington v. Williams, 459 S.W.3d 48, 57 (Tex. 2015). Bunch, however, did not
plead that he was spectating, nor did he plead that he was parenting. We may not
consider factual allegations presented in a party’s brief, and in this appeal, we must
accept the allegations in Bunch’s petition as true and determine whether he alleged
sufficient facts in his petition to affirmatively demonstrate the trial court’s
jurisdiction. We hold that, with respect to his negligence and premises defect claims
                                              6
based on ordinary negligence, Bunch failed to allege sufficient facts to demonstrate
the trial court’s jurisdiction. Consequently, the trial court lacked subject-matter
jurisdiction over those claims, and we sustain the City’s issue on appeal to the extent
that it relates to such claims.
       The City additionally contends that Bunch failed to plead sufficient facts to
establish waiver of sovereign immunity for his gross negligence cause of action. We
disagree.
       As noted previously, we must accept as true all factual allegations in Bunch’s
petition, construe the pleadings liberally, and look to his intent in assessing the
adequacy of his pleading of jurisdictional facts. Miranda, 133 S.W.3d at 226–27.
Bunch pleaded that he entered the swimming park with his son and that he sat on a
bench that broke underneath him, which caused him bodily injury. He alleged that
an employee of the City then approached him and told him that the bench was
supposed to have been replaced but that the City had failed to replace it. Bunch
further alleged that, “[w]hen viewed objectively from the standpoint of Defendant at
the time of the occurrence, the Defendant’s conduct involved an extreme degree of
risk, considering the probability and magnitude of the potential harm to others.”
Additionally, he alleged that the City was “actually, subjectively aware of the risk
involved, but nevertheless proceeded with conscious indifference to the rights,
safety, or welfare of others, which constitutes malice.” We note that the recreational
use statute “permits a premises defect claim for gross negligence.” Shumake, 199
S.W.3d at 287. We hold that Bunch pleaded facts that affirmatively demonstrated
the trial court’s jurisdiction with respect to Bunch’s claim of gross negligence. In
doing so, we note that we have not reached the merits of Bunch’s gross negligence
claim, and we express no opinion in that regard.
       Because the recreational use statute applies to Bunch’s negligence and
premises liability claims that are based on ordinary negligence, we reverse the trial
                                           7
court’s order insofar as it denied the City’s plea to the jurisdiction as to those claims,
and we render judgment dismissing those claims. We affirm the trial court’s order
insofar as it denied the City’s plea with respect to Bunch’s gross negligence claim.




                                                JIM R. WRIGHT
                                                CHIEF JUSTICE


September 29, 2017
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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