                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                        No. 04-18-00969-CV

                                           Stephanie LOY,
                                              Appellant

                                                  v.

                                     CITY OF ALICE, TEXAS,
                                            Appellee

                    From the 79th Judicial District Court, Jim Wells County, Texas
                                  Trial Court No. 17-08-57524-CV
                           Honorable Richard C. Terrell, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Patricia O. Alvarez, Justice
                  Luz Elena D. Chapa, Justice
                  Irene Rios, Justice

Delivered and Filed: August 7, 2019

REVERSED AND REMANDED

           Stephanie Loy appeals an order granting the City of Alice’s plea to the jurisdiction and

dismissing her gross negligence suit against the City. Because Loy produced evidence raising a

fact issue as to whether the City created the dangerous condition, which permits a reasonable

inference that the City had subjective awareness of the dangerous condition, we reverse the trial

court’s order and remand for further proceedings.
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                                   PROCEDURAL BACKGROUND

       After being injured while jogging at Veteran’s Park Plaza in the City of Alice, Loy sued

the City. She alleged her “foot got caught on a severed metal post that was sticking up

approximately two (2) inches from the ground. As a result, [she] fell to the ground and shattered

her left elbow.” Loy alleged “the severed metal post was partially camouflaged by leaves, dirt and

grass.” She further alleged the City created the dangerous condition, and was grossly negligent by

failing to remove the metal post despite its actual knowledge of the dangerous condition.

       The City filed a plea to the jurisdiction, seeking dismissal of Loy’s suit for want of

jurisdiction. The sole basis for the plea was whether “the City had actual knowledge or awareness

of the alleged unique and dangerous property condition.” The City produced affidavits from three

employees, stating they and other employees were unaware of the severed metal post. Loy

responded with the deposition testimony of two of those employees, as well as with photos of the

severed metal post and similar metal posts in the park that had not been severed. The trial court

heard and then granted the City’s plea. Loy timely appealed.

                                      STANDARD OF REVIEW

       We review a trial court’s ruling on a plea to the jurisdiction de novo. Sampson v. Univ. of

Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016). If the plea to the jurisdiction challenges the

pleadings, we liberally construe the pleadings to determine if the plaintiff “has alleged facts that

affirmatively demonstrate the court’s jurisdiction to hear the cause.” Tex. Dep’t of Parks & Wildlife

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). When, as here, the plea to the jurisdiction

challenges the existence of jurisdictional facts that implicate the merits, “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.


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“If the evidence creates a fact question regarding jurisdiction, the plea must be denied pending

resolution of the fact issue by the fact finder.” Id. If, however, a governmental entity conclusively

establishes facts negating the trial court’s jurisdiction, “the plea to the jurisdiction must be granted

as a matter of law.” Id.

                                             WAIVER OF IMMUNITY

         Generally, a city has governmental immunity from suit, which defeats a trial court’s subject

matter jurisdiction unless the Legislature has waived immunity for the suit. See id. at 632. Loy

alleged the Legislature waived the City’s governmental immunity under the Texas Tort Claims

Act (TTCA). The TTCA waives immunity for “personal injury . . . caused by a condition or use

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 § 101.021(2). The TTCA waives

immunity only “to the extent of liability created by [the TTCA].” Id. § 101.025(a). When, as here,

the recreational use statute applies, the plaintiff must show “gross negligence, malicious intent, or

bad faith.” Id. § 75.002(d); Suarez, 465 S.W.3d at 632.

         Loy alleged only gross negligence. Under the recreational use statute, gross negligence has

two elements:

         (1) viewed objectively from the standpoint of the actor at the time of its occurrence,
         the act or omission involves an extreme degree of risk, considering the probability
         and magnitude of the potential harm to others; and

         (2) the actor has actual, subjective awareness of the risk involved, but nevertheless
         proceeds with conscious indifference to the rights, safety, or welfare of others.

Id. at 633. The City did not challenge the first element in the trial court. The City challenged only

part of the second element, whether it had actual knowledge of the dangerous condition. 1 We will


1
 In its appellee’s brief, the City argues the objective element of gross negligence—an extreme risk of harm—was not
satisfied. However, the plea did not challenge this element. The plea assumed Loy had satisfied this element, stating,
“[E]ven if there is some evidence of an extreme risk considering both the probability and magnitude of the harm . . . .”


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therefore accept as true Loy’s allegation that leaving a severed metal post in the park involved an

extreme degree of risk, considering the probability and magnitude of the potential harm to others.

Applying our standard of review, we must consider whether the City conclusively established it

lacked subjective awareness, or actual knowledge, of the dangerous condition. See id.

A. The City did not establish it lacked actual knowledge of the dangerous condition.

         Loy alleged the City had actual knowledge of the dangerous condition because it created

the dangerous condition. “[T]he government will have actual knowledge of [a dangerous

condition] if it created the condition.” Harris County v. Eaton, 573 S.W.2d 177, 179 (Tex. 1978);

Keetch v. Kroger Co., 845 S.W.2d 262, 265 (Tex. 1992) (“The fact that the owner or occupier of

a premises created a condition that posed an unreasonable risk of harm may support an inference

of knowledge.”); see Capital Metro. Transp. Auth. v. Bartel, No. 03-98-00372-CV, 1999 WL

176058, at *5 (Tex. App.—Austin Apr. 1, 1999, no pet.) (“[T]he supreme court has noted that if

the defendant created the dangerous condition, knowledge of its existence can be inferred.”). The

government can therefore be liable by “creating a condition that a recreational user would not

reasonably expect to encounter on the property in the course of the permitted use.” State v.

Shumake, 199 S.W.3d 279, 288 (Tex. 2006).

         Because Loy’s allegation that the City created the dangerous condition permits an inference

that the City had actual knowledge of the dangerous condition, the burden shifted to the City to

“meet the traditional summary judgment standard of proof.” See City of San Antonio v. Peralta,

476 S.W.3d 653, 656 (Tex. App.—San Antonio 2015, no pet.). To meet this standard of proof as



Although a challenge to the trial court’s subject matter jurisdiction may be raised for the first time on appeal, the
record does not affirmatively demonstrate Loy would be unable to plead and prove the trial court’s jurisdiction if she
had a full and fair opportunity to amend her pleadings and fully develop the record as to this issue. See Rusk State
Hosp. v. Black, 392 S.W.3d 88, 96 (Tex. 2012). We therefore do not dismiss Loy’s suit on this issue, as raised for the
first time in this appeal. See id.



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to Loy’s allegation, the City had the burden to produce evidence conclusively establishing it did

not create the condition. See id. The City’s employees’ affidavits, although from interested

witnesses, can satisfy the traditional summary judgment standard “if the evidence is clear, positive

and direct, otherwise credible and free from contradictions and inconsistencies, and could have

been readily controverted.” TEX. R. CIV. P. 166a(c); accord Peralta, 476 S.W.3d at 656 (citing to

Rule 166a(c) in discussing the summary judgment standard).

       None of the City’s three affidavits positively and directly asserted that the City did not

create the dangerous condition. The affidavit of Yolanda Bueno, the former parks director, stated

she had no knowledge about the post before or after it was modified. The affidavit of Joshua Flores,

the City’s Community Development Director, similarly expressed a lack of knowledge about the

post. This lack of personal knowledge is not positive evidence showing the City did not create the

dangerous condition by modifying or severing the post. The affidavit of Javier Benavides, the

current superintendent of the City’s parks department, stated he became aware of the post after

Loy’s injury. He stated he could not recall whether any employee had ever modified a post in the

past, and stated he and his staff did not know how “it” came to be in “the condition” it was in. A

failure to recall is not positive evidence establishing the City did not create the dangerous

condition, and this testimony is unclear as to what exactly Benavides was referring to and what

“condition” “it” was in. See Peralta, 476 S.W.3d at 656.

       Loy alleged the City created the dangerous condition, and none of the affidavits from the

City’s employees clearly, positively, and directly assert the City did not create the dangerous

condition. The City therefore failed to meet its burden to conclusively negate Loy’s allegation that

the City created the dangerous condition and thus had actual knowledge of the dangerous

condition. Accordingly, the City has not established that the trial court lacked subject matter

jurisdiction and was required to dismiss Loy’s suit for want of jurisdiction. See id.


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B. Alternatively, the evidence raises a fact issue that the City had actual knowledge of the
dangerous condition involving an extreme degree of risk.

        Even if the evidence the City produced affirmatively negated that it did not create the

dangerous condition, the burden would have shifted back to Loy to produce evidence raising a fact

issue. See id. Loy produced deposition testimony from Bueno, the former parks director, and

Benavides, the current parks superintendent. Bueno testified the responsibility falls on park

employees to alter or modify the metal posts located in the parks. Bueno also agreed “a reasonable

conclusion is . . . that [the removal of the posts] was done by the City.” Benavides testified he

never encountered a problem with the general public removing park posts without authorization,

and he could think of no reason why anyone other than a “parks and rec” employee would sever

such a post. Benavides also agreed it is “fair to conclude that to the extent any of these were posts,

have been removed, it was done by the City of Alice parks and rec folks.”

        The parties dispute whether the deposition testimony of Bueno and Benavides is competent

evidence. Loy argues the evidence constitutes an admission that the City created the dangerous

condition. The City asserts this testimony is “speculative and conclusory” and does not attribute

sufficient knowledge to the City. Generally, testimony that is conclusory and speculative is not

competent evidence, but a party’s testimonial declarations that are contrary to its position are

considered quasi-admissions. Villarreal v. Guerra, 446 S.W.3d 404, 412 (Tex. App.—San

Antonio 2014, pet. denied) (citing Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d

692, 694 (Tex. 1980)). Testimonial quasi-admissions constitute some evidence of probative force

as to the underlying factual disputes between the parties. See id. In the trial court, the City’s current

parks superintendent and a former parks director deliberately, clearly, and unequivocally agreed

under oath “a reasonable conclusion is . . . that [the removal of the posts] was done by the City”

and it is “fair to conclude that to the extent any of these were posts, have been removed, it was



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done by the City of Alice parks and rec folks.” This testimony is evidence of probative force

showing the metal post in the park was more than likely severed by the City. See id.

       Although the City asserts its employees’ sworn testimony is “speculative and conclusory,”

a factfinder could believe these witnesses’ testimony, which shows it is more likely than not that

a City parks employee acting in the course of their employment, and not some person in the park

committing a criminal act as the City suggests, severed the metal post. Cf. Hancock v. Variyam,

400 S.W.3d 59, 70–71 (Tex. 2013) (holding a factfinder may reasonably draw an inference if the

inference is more probable than others). This testimony is further supported by evidence of

underlying facts, such as the Parks Department never having had an issue with the general public

going into parks and removing metal posts and “parks and rec” employees being responsible for

altering or modifying the metal posts in the City’s parks. Considering the evidence in its entirety,

we cannot say the testimony of the parks current superintendent, Benavides, and the former parks

director, Bueno, is speculative or conclusory. See id.

       The City also asserts this evidence only permits an inference that some “random City

employee” or a “generic, hypothetical employee” severed the metal post, and notice of any

resulting dangerous condition could not be considered as notice to the City. “[B]efore notice to an

[employee] will be considered as notice to the city, such [employee], at the time he received actual

notice of the [condition], must have been charged with some duty pertaining to the [condition].”

City of Fort Worth v. Davidson, 296 S.W. 288, 289 (Tex. Comm’n App. 1927). In Davidson, the

dangerous condition was a road obstruction discovered by a police officer. Id. Even without direct

evidence that the particular officer had the duty to remove the specific obstruction, the court held

a factfinder could reasonably infer the officer had “some duty pertaining to the removal of such

obstruction” because the dangerous condition “pertain[ed] to a matter fittingly within the control

and supervision of the police department of the city rather than the street or any other department.”


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Id. at 290. Conversely, in Harris County v. Gerber, the court distinguished Davidson and held a

county employee’s knowledge was not imputed to the county when the plaintiff tripped over a

“tree box” by the courthouse, and no evidence established “who was responsible for maintenance

of the tree box” on the sidewalk. No. 14-06-01096-CV (Tex. App.—Houston [14th Dist.] July 10,

2007, pet. denied) (mem op.). The court rejected the plaintiff’s reliance on evidence that county

attorneys who worked at the courthouse knew about the dangerous condition because no evidence

showed the county attorneys had any responsibility for maintaining tree boxes on the sidewalk

outside of the courthouse. Id.

       This is not a case, as the City argues, where the evidence shows some “random City

employee” or a “generic, hypothetical employee” came into the park without any authorization or

direction and severed the metal post. This case is therefore unlike Gerber, which the City cites,

where county attorneys could have had knowledge of the dangerous condition, but were not

responsible for maintaining the area outside of the courthouse. We conclude the facts of this case

fall under Davidson. If Bueno’s and Benavides’s testimony is true, and it is more likely than not

that the removal of the “posts . . . was done by the City of Alice parks and rec folk,” which includes

“maintenance” employees, then under Davidson, the parks employee’s knowledge could be

imputed to the City because the dangerous condition in the park “pertain[ed] to a matter fittingly

within the control and supervision of the [parks] department.” See 296 S.W. at 289–90.

Consequently, under Davidson, the knowledge of “parks and rec” employees is imputed to the

City. See id.

       Even if the City produced evidence conclusively negating Loy’s allegation that it created

the dangerous condition, we hold, alternatively, that Loy produced evidence raising a fact issue as

to whether the City created the dangerous condition. Because the City’s plea very narrowly

challenges only the actual knowledge component of gross negligence, Loy’s only burden was to


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produce evidence raising a fact issue that a City employee with responsibility for maintaining the

parks created the dangerous condition. See id. Because the evidence Loy produced raises a fact

issue that a “parks and rec” employee severed the metal post, then the evidence shows the City

“created the dangerous condition” and “knowledge of its existence can be inferred.” See Capital

Metro. Transp. Auth., 1999 WL 176058, at *5 (citing Eaton, 573 S.W.2d at 179–80). 2

                                                  CONCLUSION

         Having concluded the City failed to satisfy its burden to conclusively negate its actual

knowledge of the alleged dangerous condition and, alternatively, that Loy raised a fact issue as to

actual knowledge, the only issue the City raised in its plea, we reverse the trial court’s order of

dismissal, and remand this case for further proceedings.

                                                          Luz Elena D. Chapa, Justice




2
  In a separate issue, Loy contends the dangerous condition was not open and obvious. As we read the City’s plea, the
“open and obvious” issue was not actually raised. It appears the City’s purpose of including statements about having
no duty to warn of open and obvious conditions was to explain the applicability of the supreme court’s decision in
Suarez, which did not address whether the dangerous condition was open and obvious because the court concluded
the City had no actual knowledge of the dangerous condition. See Suarez, 465 S.W.3d at 633. However, the City’s
plea did not challenge, and appellee’s brief does not argue, the severed metal post was open and obvious. Loy also
alleged the severed metal post stuck up only two inches from the ground and “was partially camouflaged by leaves,
dirt and grass,” and she produced photos supporting these allegations and showing the severed metal post was not
open and obvious.



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