Opinion filed April 23, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00010-CV
                                    __________

                               LISA KARL, Appellant
                                         V.
                 BRAZOS RIVER AUTHORITY, Appellee


                      On Appeal from the 29th District Court
                               Palo Pinto County, Texas
                           Trial Court Cause No. C44624



                                     OPINION
       Lisa Karl brought a premises liability action against the Brazos River
Authority (Authority). The Authority is a conservation and reclamation district
created by statute that is a “river authority, a governmental agency, a municipality,
and a body politic and corporate.” TEX. SPEC. DIST. CODE ANN. § 8502.001(a)
(West Pamph. 2014). The Authority filed a plea to the jurisdiction based on the
ground that Karl’s claims were barred by governmental immunity. The trial court
entered an order granting the Authority’s plea. Karl appeals the trial court’s order.
Because we conclude that the recreational use statute1 applies to Karl’s claims, we
affirm the trial court’s order.
                                       Background Facts
      The underlying facts in this appeal are largely uncontroverted. On July 2,
2011, Karl and her sister, Rebecca Henderson, took their five children to Possum
Kingdom Lake to go swimming. Karl, Henderson, and the children were wearing
swimsuits under their clothes. They had an ice chest full of drinks and snacks with
them. Karl and Henderson intended to go swimming in an area called Sandy
Beach. However, the group instead arrived at the North D&D Public Use Area,
which was owned by the Authority. The North D&D had a swimming area and a
beach area on Possum Kingdom Lake.
      Karl entered the North D&D by driving her pickup through the entrance gate
to the property. She drove to a gatekeeper booth on the North D&D premises. She
stayed in her pickup and talked with an attendant who was working at the booth.
Karl asked the attendant whether there was room at the North D&D for her and her
group to swim. The attendant responded that there was room. Karl pulled her
pickup closer to the booth and then parked there temporarily. She got out of the
pickup and walked up a step onto a concrete slab where the booth was located.
Henderson and the children waited in the vehicle. Karl paid the attendant for a day
pass for her and her group to go swimming. Karl turned around to go back to her
pickup. When she stepped off the slab and onto the step, she fell to the ground and
broke her left ankle. Karl claimed that the step was loose and gave way when she
stepped onto it.


      1
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001–.007 (West 2011 & Supp. 2014).

                                                2
      On February 2, 2012, Karl filed a premises liability suit against the
Authority. She alleged that the condition of the loose step constituted a “premises
defect that posed an unreasonable risk of harm.” She further alleged that she was
an invitee of the Authority at the time of her injury, that the Authority breached the
duty to use ordinary care by failing to reduce or eliminate the unreasonable risk of
harm created by the step, and that she was injured as a result of the Authority’s
failure to use ordinary care.
      The Authority filed a plea to the jurisdiction. The Authority asserted that, at
the time of her injury, Karl was engaged in recreation as that term is defined in the
recreational use statute. Therefore, the Authority argued that Karl’s claims were
barred by governmental immunity.                The trial court held a hearing on the
Authority’s plea and subsequently entered an order granting the plea.
                                       Issues on Appeal
      Karl challenges the trial court’s order in two issues. In her first issue, Karl
contends that the Texas Tort Claims Act2 waives governmental immunity for her
premises defect claims. In her second issue, Karl contends that she was not
engaged in recreation at the time of her accident and that, therefore, the trial court
erred in concluding that the recreational use statute applies to her claims.
                                      Standard of Review
      “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). The 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 has immunity from a pending claim, the trial court lacks
subject-matter jurisdiction as to that claim. Rusk State Hosp. v. Black, 392 S.W.3d
      2
          TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001–.109 (West 2011 & Supp. 2014).

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88, 95 (Tex. 2012). Subject-matter jurisdiction is a question of law. Miranda, 133
S.W.3d at 226. Therefore, 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, we look
to 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 Cnty., 369 S.W.3d 137, 149
(Tex. 2012). When, as here, the plea challenges jurisdictional facts, we consider
relevant evidence submitted by the parties. Miranda, 133 S.W.3d at 227; Blue, 34
S.W.3d at 555. The standard of review applicable to a trial court’s ruling on a plea
to the jurisdiction “generally mirrors” the standard that applies to a traditional
summary judgment under Rule 166a(c) of the Texas Rules of Civil Procedure.
Miranda, 133 S.W.3d at 228. We take as true all evidence favorable to the
nonmovant, and we indulge every reasonable inference and resolve any doubts in
favor of the nonmovant. Id.
      If the evidence creates a fact question regarding the jurisdictional issue, the
trial court cannot grant the plea to the jurisdiction, and the fact issue must be
resolved by the factfinder. 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.
                                        Analysis
      “Sovereign immunity protects the State from lawsuits for money damages.”
Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371, 374 (Tex. 2006).
Governmental immunity provides this protection to political subdivisions of the
State, such as the Authority, and it is derived from the State’s sovereign immunity.
City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011); see CIV. PRAC.
                                            4
& REM. § 101.001(3)(B). The Texas Tort 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,
Section 101.021 of the TTCA waives governmental immunity in three areas:
(1) property damage, personal injury, and death caused by the use of publicly
owned vehicles; (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, 101.022, 101.025; Miranda, 133
S.W.3d at 225. In this case, Karl claims that her injury was caused by a premises
defect—an allegedly loose step—on the Authority’s property.              Thus, Karl’s
premises liability claim fits within the third area of waiver listed above.
      The TTCA provides that “if a claim arises from a premise defect, the
governmental unit owes to the claimant only the duty that a private person owes to
a licensee on private property, unless the claimant pays for the use of the
premises.” CIV. PRAC. & REM. § 101.022(a). If the claimant pays to use the
premises, the governmental unit owes the claimant the duty owed to an invitee.
City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex. App.—Dallas 2009, no pet.).
      However, with regard to premises defect claims, Section 101.058 of the
TTCA modifies a governmental unit’s waiver of immunity “by imposing the
limitations of liability articulated in 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
purpose of the recreational use statute 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
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“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) (emphasis added).
      The recreational use statute applies if a plaintiff is engaged in “recreation”
on the governmental unit’s “premises” at the time of the injury. Id.; City of
Bellmead v. Torres, 89 S.W.3d 611, 613–14 (Tex. 2002). The statute sets forth a
nonexclusive list of activities that constitute “recreation,” including swimming.
CIV. PRAC. & REM. § 75.001(3)(C). In determining whether a particular activity is
“recreational” for purposes of the statute, the relevant inquiry is what the plaintiff
was doing at the time she was injured. Torres, 89 S.W.3d at 614. The statute
defines “premises” to include the land itself, and also “roads,” “buildings,” and
“structures” attached to or located on the land. CIV. PRAC. & REM. § 75.001(2).
      Karl contends that the recreational use statute does not apply to her claims
because she never began the recreational activity of swimming. We disagree.
Based on the definition of “premises” in the statute, courts have concluded that the
statute contemplates “recreation” as occurring not only when a person is actively
engaged in recreation but also when the person is on the “premises” and traveling
to and from the recreational area. City of Plano v. Homoky, 294 S.W.3d 809, 817
(Tex. App.—Dallas 2009, no pet.); Dubois v. Harris Cnty., 866 S.W.2d 787, 789–
90 (Tex. App.—Houston [14th Dist.] 1993, no writ).
      In Homoky, the plaintiff fell and injured herself in the clubhouse on a golf
course after she played a round of golf. Homoky, 294 S.W.3d at 811–12. Initially,
the court explained that, although golfing was not specifically listed in the statute
as a recreational activity, it constituted “recreation” under the statute because it
was an “activity associated with enjoying nature or the outdoors.” Id. at 816
(quoting CIV. PRAC. & REM. § 75.001(3)(L)). Although the plaintiff was not
                                          6
actually playing golf when she was injured, the court concluded that she was
engaged in recreation at the time of her injury. Id. at 817.                                  The Homoky court
relied on the definition of “premises” in reaching its conclusion. Id. at 816. The
clubhouse fell within the statute’s definition of “premises” because it was a
structure attached to the golf course. Id. The court stated that “what [plaintiff] was
doing when she was injured was . . . related to the activity of playing golf” and,
therefore, concluded that the plaintiff was engaged in recreation at the time of her
injury. Id. at 817.
         In Dubois, the plaintiff fell when she stepped into a hole in an area that
separated park grounds from the parking area. Dubois, 866 S.W.2d at 789. Based
on the definition of “premises” in the recreational use statute, the Dubois court
explained that “Section 75.001 recognizes that a parking area or road would be a
necessary and integral part of a recreational area.” Id. The court concluded that
the recreational use statute applied to the plaintiff’s claims. Id. at 790.
         We agree with the sound reasoning of the Homoky and Dubois courts. Thus,
we conclude that a person is engaged in “recreation” under the recreational use
statute when the person is on the governmental unit’s premises for a recreational
activity as defined in the statute and is traveling to and from the recreational area.3
In this case, Karl drove her pickup to the gatekeeper booth. While in her pickup,
she talked with the attendant and determined that there was room for her group to
swim. At that time, Karl decided to buy a day pass for her group. She moved her
pickup closer to the booth, parked there temporarily, approached the booth, and
then paid the attendant for the day pass. Karl headed back to her pickup to move it



         3
          The dissent cites to several cases to show application of the statute when an injury occurs after a person
has engaged in a recreational activity and notes that none of the cases involve injuries that occurred before the
activity. We fail to see how traveling to the activity is any less, if not more, a part of the activity than traveling from
it.

                                                            7
to another location, park it, and then go swimming with her group. However, Karl
was injured when she was on her way back to her pickup.
      The evidence is undisputed that Karl’s injury occurred on the premises
owned by the Authority. The gatekeeper booth was a “structure” and, therefore,
part of the “premises” under the recreational use statute. CIV. PRAC. & REM.
§ 75.001(2). Likewise, the parking area was part of the “premises.” Dubois, 866
S.W.2d at 789–90. The recreational use statute defines “recreation” to include
“swimming.” CIV. PRAC. & REM. § 75.001(3)(C). Karl was in the process of
traveling to the recreational area on the premises when she was injured.
Specifically, she had purchased the day pass, and she was walking to her pickup so
that she could park it and then go swimming. Karl’s conduct on the premises
related to the activity of swimming.      Based on the undisputed evidence, we
conclude that she was engaged in recreation at the time of her injury. See Homoky,
294 S.W.3d at 817.
      Because Karl was engaged in recreation at the time of her injury, the
recreational use statute applies to her claims against the Authority. Id. Under the
statute, the Authority owed Karl the duty owed to a trespasser. CIV. PRAC. & REM.
§ 75.002(f). A premises owner owes a trespasser the limited duty “not to injure
that person willfully, wantonly, or through gross negligence.”       Miranda, 133
S.W.3d at 225. In this case, Karl alleged a gross negligence claim but later
voluntarily nonsuited the claim. In response to Karl’s request, the trial court
entered an order dismissing Karl’s gross negligence claim. Karl has not alleged a
viable claim under the recreational use statute because she has not alleged that the
Authority acted willfully, wantonly, or through gross negligence.               The
requirements for a limited waiver of governmental immunity under the TTCA and
the recreational use statute have not been met. Accordingly, the trial court lacked
subject-matter jurisdiction over Karl’s claims.
                                          8
      We conclude that the trial court did not err in granting the Authority’s plea
to the jurisdiction. Karl’s issues on appeal are overruled.
                                   This Court’s Ruling
      We affirm the order of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


April 23, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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