                                     NO. 12-13-00344-CV

                            IN THE COURT OF APPEALS

                TWELFTH COURT OF APPEALS DISTRICT

                                        TYLER, TEXAS

CITY OF DIBOLL, TEXAS,                                §     APPEAL FROM THE 159TH
APPELLANT

V.                                                    §     JUDICIAL DISTRICT COURT

LOUIE LAWSON, REPRESENTATIVE
OF THE ESTATE OF CAROLYN BURNS,
APPELLEE                                              §     ANGELINA COUNTY, TEXAS

                                    MEMORANDUM OPINION
        The City of Diboll, Texas, appeals the trial court‘s order denying its plea to the
jurisdiction, seeking that the trial court dismiss the claim against it pursued by Louie Lawson, as
the personal representative of the estate of Carolyn Burns. In two issues, the City argues that the
recreational use statute applies to Lawson‘s claim, and that his pleadings and the undisputed
evidence conclusively establish that the City was not grossly negligent as required by the
recreational use statute. We reverse and render judgment.


                                             BACKGROUND
        In the early afternoon hours of March 27, 2010, Burns went to Old Orchard Park, which
was owned and operated by the City, to watch her granddaughter‘s softball game. After the
game concluded, Burns exited the park. While returning to her vehicle, Burns tripped on an
approximately four inch hollow pipe protruding upward from the center of the walkway on park
grounds. The pipe would ordinarily act as a receptacle for a pole, creating a barrier that prevents
vehicles from entering that area of the park. The pole was not in place when Burns tripped and
fell, and she suffered serious injuries as a result of the fall.
        Burns sued the City, raising a premises defect claim. Following her death in an unrelated
automobile accident, Louie Lawson, the personal representative of Burns‘s estate, was
substituted as the plaintiff. The City filed a plea to the jurisdiction and a motion for summary
judgment. The trial court denied both. The City filed this interlocutory appeal challenging only
the trial court‘s denial of its plea to the jurisdiction.1


                                          PLEA TO THE JURISDICTION
         In its first issue, the City argues that Burns was engaged in ―recreation‖ under the
recreational use statute, and that consequently, Lawson was required to plead and prove that the
City acted with gross negligence. In its second issue, the City contends that Lawson‘s petition
does not allege that the City acted with gross negligence, and the undisputed evidence establishes
that it was not grossly negligent. Accordingly, its argument continues, the trial court should have
granted its plea to the jurisdiction and dismissed Lawson‘s suit. Because these issues are related,
we address them together.
Standard of Review
         A plea to the jurisdiction is a dilatory plea, and its purpose 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). The plea challenges the trial court‘s jurisdiction over the subject
matter of a pleaded cause of action. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). Subject matter jurisdiction is a question of law. Id. Therefore, we apply
a de novo standard of review to a trial court‘s ruling on a plea to the jurisdiction. Id.
         The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court‘s
jurisdiction to hear a case. Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864, 867 (Tex. 2002)
(per curiam). When a trial court‘s decision concerning a plea to the jurisdiction is based on the
plaintiff‘s pleadings, we accept as true all factual allegations in the pleadings to determine if the
plaintiff has met her burden to plead facts sufficient to confer jurisdiction on the court. Dallas
Area Rapid Transit v. Whitley, 104 S.W.3d 540, 542 (Tex. 2003). We examine the pleader‘s
intent and construe the pleadings in the plaintiff‘s favor. Cnty. of Cameron v. Brown, 80
S.W.3d 549, 555 (Tex. 2002); Ramirez, 74 S.W.3d at 867. A plea to the jurisdiction may be
granted without allowing the plaintiff to amend if the pleadings affirmatively negate the
existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez, 74 S.W.3d at 867.


         1
           A governmental unit has a right of interlocutory appeal from a district court‘s order that denies its plea to
the jurisdiction. TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2014).


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        If a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider
relevant evidence submitted by the parties. City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex.
2008) (citing Miranda, 133 S.W.3d at 227); see Bland Indep. Sch. Dist., 34 S.W.3d at 555.
After the defendant ―asserts and supports with evidence that the trial court lacks subject matter
jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject
matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the
jurisdictional issue.‖ Miranda, 133 S.W.3d at 228. This standard ―generally mirrors‖ that of a
traditional motion for summary judgment. Id. We take as true all evidence favorable to the
nonmovant and indulge every reasonable interest and resolve any doubt in favor of the
nonmovant. Id.
        If the evidence creates a fact question regarding 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. However, if the relevant evidence is undisputed or fails to raise a fact
question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter
of law. Id. at 228.
Texas Tort Claims Act (TTCA)
        Sovereign immunity generally protects the State against lawsuits for money damages
absent clear and unambiguous legislative consent to sue. City of Houston v. Williams, 353
S.W.3d 128, 134 (Tex. 2011). Governmental immunity provides this protection to political
subdivisions of the State, including cities, and is derived from the State‘s sovereign immunity.
Id. at 134 n.5. Section 101.021 of the TTCA waives immunity in three scenarios: (1) negligent
operation or use of a motor-driven vehicle or equipment by an employee of a governmental unit;2
(2) negligent use of tangible personal property by an employee of a governmental unit; and (3)
premises defects. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(1)-(2) (West 2011).
Lawson‘s cause of action in this case is for premises liability.
Recreational Use Statute
        With regard to premises liability claims, Section 101.058 of the TTCA further modifies a
governmental unit‘s waiver of immunity by imposing the additional limitations on liability
articulated in the recreational use statute. Miranda, 133 S.W.3d at 225 (citing TEX. CIV. PRAC.


        2
         Under the TTCA, the definition of a ―governmental unit‖ includes cities. TEX. CIV. PRAC. & REM. CODE
ANN. § 101.001(3)(B) (West Supp. 2014).


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& REM. CODE ANN. § 101.058 (West 2011) (―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 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.‖ TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(f) (West 2011)
(emphasis added).
       The statute provides a nonexclusive list of activities that constitute ―recreation,‖
including picnicking and hiking. Id. § 75.001(3)(F), (G) (West 2011). The statute also defines
―recreation‖ as ―any other activity associated with enjoying nature or the outdoors.‖           Id.
§ 75.001(3)(L); see City of Bellmead v. Torres, 89 S.W.3d 611, 615 (Tex. 2002). In determining
whether a particular activity is ―recreational‖ for purposes of the recreational use statute, the
relevant inquiry is what the plaintiff was doing at the time the plaintiff was injured. Torres, 89
S.W.3d at 614. The courts have decided that various other activities constitute recreation under
the statute, even though they are not expressly listed. See, e.g., City of Bellmead, 89 S.W.3d at
614–15 (―In our view, sitting on a swing is the type of activity that the Legislature intended to
include as recreation when they enacted the Statute.‖); City of Plano v. Homoky, 294 S.W.3d
809, 817 (Tex. App.—Dallas 2009, no pet.) (concluding that walking through clubhouse in
between holes at golf course was recreation); Dubois v. Harris Cnty., 866 S.W.2d 787, 789 (Tex.
App.—Houston [14th Dist.] 1993, no writ) (holding that plaintiff was engaged in recreation
when she fell because of hole in ground that normally held missing traffic deterrent pole at
county park).
Gross Negligence
       The law is well established that a premises owner owes a trespasser only a duty ―not to
injure that person willfully, wantonly, or through gross negligence.‖ Miranda, 133 S.W.3d at
225. As such, gross negligence is the minimum degree of culpability in order for a governmental
unit to waive its immunity and invoke the subject matter jurisdiction of the trial court when the
recreational use statute applies. See id. In the recreational use statute context, gross negligence
means an ―act or omission involving subjective awareness of an extreme degree of risk,




                                                4
indicating conscious indifference to the rights, safety, or welfare of others.‖ State v. Shumake,
199 S.W.3d 279, 287 (Tex. 2006).
Discussion
       The City argues that Burns was engaged in recreation while she walked to her car after
spectating at her granddaughter‘s softball game, and that Lawson‘s petition and proof
conclusively negate gross negligence. Lawson argues that relevant legal authorities hold that
such activity is not recreation, and he was not required to plead or prove that the City acted with
gross negligence.
   1. Burns was engaged in “recreation” when she was injured.
       There is a conflict among the courts of appeal as to whether spectating at a sporting event
constitutes recreation. Compare Univ. of Tex. at Arlington v. Williams, No. 02–12–00425–CV,
2013 WL 1234878, at *3 (Tex. App.—Fort Worth Mar. 28, 2013, pet. granted) (mem. op., not
designated for publication) (―Neither spectating at a sporting event nor exiting the premises after
spectating is like the activities listed as recreation under the recreational use statute. Nor do these
activities fall within the section‘s catchall of ‗any other activity associated with enjoying nature
or the outdoors.‘‖) with Sam Houston State Univ. v. Anderson, No. 10–07–00403–CV, 2008
WL 4901233, at *3 (Tex. App.—Waco Nov. 12, 2008, no pet.) (mem. op., not designated for
publication) (holding that sitting on bleachers at an outdoor baseball stadium and watching state
university baseball game was recreation under recreational use statute).
       We agree with the holding in Anderson that spectating at a sporting event constitutes
recreation. See Anderson, 2008 WL 4901233, at *3. The statute identifies picnicking and
hiking as recreation. TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(F), (G). If walking and,
separately, sitting while consuming food at an outdoor public park constitute recreation, then we
likewise conclude that spectating at an outdoor public park sporting event is ―associated with
enjoying the outdoors.‖
       The recreational use statute contemplates recreation not only when the person is actively
engaged in recreation but also when the person is traveling to and from the recreational area
while on the ―premises.‖ See, e.g., Homoky, 294 S.W.3d at 816; Dubois, 866 S.W.2d at 789–90
(recognizing that a parking area or road would be a necessary and integral part of a recreational
area). Other courts have concluded that traveling from the event after its conclusion is not
recreation. See Vidrine v. Ctr. for the Performing Arts at the Woodlands, No. 09–12–00378–



                                                  5
CV, 2013 WL 5302654, at *4–5 (Tex. App.—Beaumont Sept. 19, 2013, pet. denied) (mem. op.,
not designated for publication) (holding that the plaintiff was not engaged in recreation where
her injury occurred after leaving a concert at the Woodlands Pavilion ―when she fell down a set
of steps along the Woodlands Waterway,‖ an area between the Pavilion and the lot where she
parked her car); Williams, 2013 WL 1234878, at *3 (―Neither spectating at a sporting event nor
exiting the premises after spectating is like the activities listed as recreation under the
recreational use statute.‖).
        The statute applies to recreational activities that occur on the ―premises.‖ TEX. CIV.
PRAC. & REM. CODE ANN. § 75.002(f). It defines ―premises‖ to include not only the land itself,
but ―roads‖ and ―private ways‖ attached to or located on the land. Id. § 75.001(2). Thus, we
agree with the analysis in Homoky and Dubois that an injury occurring on the premises while
walking to and from the activity is part of the larger recreational event, and also qualifies as
recreation. Homoky, 294 S.W.3d at 816; Dubois, 866 S.W.2d at 789–90.
        In summary, we hold that Burns was engaged in recreation when she was injured on the
premises while returning to her vehicle after spectating at her granddaughter‘s softball game.
See Dubois, 866 S.W.2d at 789 (holding that plaintiff was engaged in recreation when she fell
because of hole in ground that normally held missing traffic deterrent pole at county park).
    2. Lawson’s petition affirmatively negates jurisdiction.
        Because Burns was engaged in ―recreation,‖ Lawson must also plead facts, and the
evidence must raise a fact issue, that the City acted with gross negligence to invoke the trial
court‘s subject matter jurisdiction. See Miranda, 133 S.W.3d at 225, 227. As we previously
stated, a plea to the jurisdiction may be granted without allowing the plaintiff to amend if the
pleadings affirmatively negate the existence of jurisdiction. Brown, 80 S.W.3d at 555; Ramirez,
74 S.W.3d at 867.
        Lawson alleged in his petition that the City owed Burns ―the same duties that a private
person owes to a licensee on private property because she was not charged an admission fee.‖
He alleged in conclusory terms, without alleging supporting facts, that the City had actual
knowledge that the pole had been removed. Lawson also asserted in his petition that the City
had a duty to ensure the premises did not present a danger to Burns, and that it had the duty to
either warn of the danger or make the condition reasonably safe. These are the elements required
to prove a premises defect claim as a licensee, not as a trespasser. See Stephen F. Austin State



                                                6
Univ. v. Flynn, 228 S.W.3d 653, 660 (Tex. 2007) (citing State Dep’t of Highways & Pub.
Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992) (reciting elements of premises defect claims
and noting that even licensee must prove owner had actual knowledge of condition)).
Importantly, Lawson also stated in his petition that ―no exception to the waiver of immunity bars
the claim because no exception applies.‖
         Moreover, Lawson concedes in his brief that he ―has not alleged or attempted to prove
that the City of Diboll acted with gross negligence.‖             Instead, his argument rests on his
contention that Burns was not engaged in recreation at the time she was injured. This is
consistent with the allegation in the petition that ―no exception to the waiver of immunity bars
the claim because no exception applies.‖
         Based upon the above referenced allegations in Lawson‘s petition and the concession in
his brief that he has not alleged or attempted prove the City acted with gross negligence, we hold
that Lawson‘s petition affirmatively negates the trial court‘s subject matter jurisdiction.
Consequently, Lawson failed to invoke the trial court‘s jurisdiction.
         We sustain the City‘s first and second issues.


                                                    DISPOSITION
         Having sustained the City‘s first and second issues, we reverse the trial court‘s order
denying the City‘s plea to the jurisdiction, and dismiss Burns‘s suit for lack of subject matter
jurisdiction. See TEX. R. APP. P. 43.2(c).
                                                                    SAM GRIFFITH
                                                                       Justice

Opinion delivered December 3, 2014.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                         DECEMBER 3, 2014


                                         NO. 12-13-00344-CV


                       CITY OF DIBOLL, TEXAS,
                              Appellant
                                 V.
   LOUIE LAWSON, REPRESENTATIVE OF THE ESTATE OF CAROLYN BURNS,
                               Appellee


                                Appeal from the 159th District Court
                     of Angelina County, Texas (Tr.Ct.No. CV-01271-12-3)

                       THIS CAUSE came to be heard on the oral arguments, appellate record
and the briefs filed herein, and the same being considered, because it is the opinion of this court
that the county court had no jurisdiction of the subject matter in this case and that its judgment
same should be reversed and rendered, and the case dismissed.
                       It is therefore ORDERED, ADJUDGED and DECREED by this court that
the judgment of the trial court in favor of Appellee, LOUIE LAWSON, REPRESENTATIVE
OF THE ESTATE OF CAROLYN BURNS, be, and the same is, hereby reversed and
judgment is rendered dismissing the case for lack of subject matter jurisdiction. All costs in
this cause expended in this court be, and the same are, hereby adjudged against the Appellee,
LOUIE LAWSON, REPRESENTATIVE OF THE ESTATE OF CAROLYN BURNS, for
which let execution issue; and that this decision be certified to the court below for observance.
                     Sam Griffith, Justice.
                   Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
