                                   NO. 07-01-00248-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL D

                                 JANUARY 28, 2002
                          ______________________________

                                THE CITY OF LUBBOCK,


                                                         Appellant

                                             v.

              RUEDE DON RULE and DEBORAH ANN RULE, individually
                          and as next friend of G.R.,

                                                Appellees
                        _________________________________

             FROM THE 99th DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2000-510,019; HON. MACKEY HANCOCK, PRESIDING
                        _______________________________

Before Boyd, C.J., Quinn, and Reavis, J.J.

       In this interlocutory proceeding, the City of Lubbock appeals from an order denying

its motion to dismiss for want of jurisdiction. The two issues before us involve whether the

trial court erred in denying the motion and in refusing to receive live evidence proffered by

the city at the hearing on the motion. For the reasons which follow, we reverse.

                                       Background

       Ruede Don and Deborah Rule sued the City to recompense damages allegedly

suffered by their 20 month old daughter, G.R. The child purportedly suffered burns to her
hands while attempting to climb upon a slide. The slide was located in a park or

playground owned and operated by the City. Upon being served with suit, the City joined

issue and urged that it was immune from suit, among other things. It also moved to

dismiss the suit for want of jurisdiction. Accompanying the motion was another motion

through which it sought summary judgment. Though the record does not reflect that the

trial court acted upon the latter motion, it does illustrate that the court denied the former.

And, it is from the order denying the motion to dismiss that the city appeals.

                     Issue One – Sovereign Immunity and Jurisdiction

        The city initially contends that the trial court erred in overruling its motion to dismiss.

This is allegedly so because the Rules failed to illustrate that they had a viable premises

defect claim and failed to plead a cause of action within the scope of the Texas Tort Claims

Act.1 We sustain the point.

        Authority

        Whether a trial court has subject matter jurisdiction is a question of law subject to

de novo review. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998), cert.

denied, 526 U.S. 1144, 119 S.Ct. 2018, 143 L.Ed.2d 1030 (1999); City of Lubbock v.

Land, 33 S.W.3d 357, 358 (Tex. App.--Amarillo 2000, no pet.). Furthermore, the obligation

to establish the existence of such jurisdiction lies with the party invoking the trial court’s

authority, normally the plaintiff. Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d



        1
           W e note that in alleging this issue on appeal, the City included grounds that went unmentioned
below. Indeed, it is those arguments unmentioned below which we find determinative on appeal. N orm ally,
such a circumstance would result in waiver for a trial cou rt usu ally must be afforde d first oppo rtunity to
con sider them . See T EX . R. A PP . P. 33.1. However, because the issue is one of jurisdiction and cannot be
waived, we are obligated to consider the new contentions to assess whether they illustrate the absence of
jurisdiction.

                                                      2
440, 446 (Tex. 1993). It is his duty to allege facts affirmatively illustrating the presence of

jurisdiction. Id.2 Yet, if no one questions jurisdiction and unless it is clear from the

pleadings that the court lacks same, jurisdiction must be presumed.3 Peek v. Equip. Serv.

Co., 779 S.W.2d 802, 804 (Tex. 1989). On the other hand, if the complainant’s pleading

is attacked and the jurisdictional allegations found wanting, the trial court must grant the

complainant reasonable opportunity to correct the deficiency through amendment. Id. at

805; see Texas Ass’n Bus. v. Air Control Bd, 852 S.W.2d at 805 (recognizing that

opportunity to amend is normally afforded the complainant). Only after affording that

opportunity and the complainant fails to assert a claim within the trial court’s jurisdiction

may it dismiss the suit. Id.

        Next, it is beyond dispute that municipalities enjoy aspects of sovereign immunity.

This immunity insulates them from suit and effectively deprives a trial court of jurisdiction

to entertain the cause. See Texas Dept. Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999)

(describing how immunity from suit, such as that bestowed by sovereign immunity, vitiates

the trial court’s jurisdiction). Moreover, the claim of immunity may be presented via a

motion to dismiss for want of jurisdiction or a plea to the jurisdiction of the trial court. Id.

To survive such a motion or plea, it is incumbent upon the complainant to illustrate that the

immunity was somehow waived by statute or express legislative grant. Id. One way to do


        2
           Fin ally, in considering the jurisdictional allegations contained in a petition, they are to be construed
liberally. City of Lubbock v. Land, 33 S.W .3d 361, 367 (Tex. App.--Amarillo, no pet.). So too are they to be
read in a manner favoring the litigant plead ing the m . Texas Ass'n of Bus. v. Air Control Bd., 852 S.W .2d 440,
446 (Te x. 1993); City of Lubbock v. Land, 33 S.W .3d at 358.

        3
           This presumption does not relieve the complainant from proving jurisdiction at trial. He must still do
so. Peek v. Equip. Serv. Co., 779 S.W .2d 802, 804 (Tex. 1989)(stating that “[i]n the absence of special
exceptions or other motion, defendant waives the righ t to c om plain of such defect if plaintiff es tablishes . . .
jurisdiction before res ting its case.”).

                                                         3
that is via the Texas Tort Claims Act, TEX . CIV. PRAC . & REM . CODE ANN . §101.001 et. seq

(Vernon Supp. 2001).

       Through the Tort Claims Act, our legislature declared that a governmental entity

(including municipalities) could be held liable for 1) damage, injury or death arising from

the negligent operation or use of a motor-driven vehicle or motor-driven equipment and 2)

damage, injury, or death caused by a condition or use of tangible personalty or realty “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(1)(A) & (2). Thus, to avoid

immunity via this Act, the complainant, through his pleadings, must allege facts illustrating

a viable cause of action involving damage, injury or death 1) arising from the negligent

operation or use of the type of vehicle or equipment described above or 2) caused by a

condition or use of tangible personalty or realty under circumstances wherein a private

person would be liable. E.g., McBride v. Texas Dep’t Criminal Justice, 964 S.W.2d 18, 22

(Tex. App.–Tyler 1997, no pet.) (holding that to state a cause of action under the Act, the

plaintiff must allege facts showing that the negligence was the proximate cause of his

injuries and that it involved the use or condition of tangible property). In other words, for

one to enjoy the window opened by the Tort Claims Act, they must plead facts which, if

accepted as true, satisfy the elements of the Tort Claims Act.

       We caution, however, that the trial court is not to assess the merits of the underlying

cause of action when determining if the pleadings meet the requisite standard. Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). That is, it must not require the

complainant to prove the merits of his underlying cause of action. Again, the pleadings are



                                              4
normally the focus of the inquiry, though extraneous evidence may be received by the court

depending upon the nature of the jurisdictional attack. Id.; see Texas Dep’t Criminal

Justice v. Miller, 51 S.W.3d 583, 587 (Tex. 2001) (stating that “we must examine the

plaintiff’s pleadings to decide whether sovereign immunity has been waived” but also

consider the evidence presented).4

         Application of Authority

         As mentioned above, the factual allegations illustrating the cause of action asserted

by the Rules must be read liberally and in favor of the Rules. Those allegations illustrate

that 1) the Rules’ twenty month old daughter placed her hands on a slide which had

absorbed heat from the sun, 2) the heat which had been absorbed burned her hands, 3)

the city maintained the slide in a park it owned, 4) the heat was absorbed by the slide

because protective coating had worn away from the situs at which G.R. placed her hands,

5) the condition of the slide created an unreasonable risk of harm, 6) the city “admit[ed]

actual knowledge of the defect” and “acknowledge[d] no actions [were] taken to cure said

defect,” and 7) the city’s conduct (i.e., knowingly maintaining the defective condition of the

slide) constituted “not only negligence but wilful, wanton and gross negligence as defined

by law.” Conceivably, these allegations could be read as averring a claim of premises




         4
            To the extent that the City argued below and at bar that jurisdiction was wanting since the Rules
could not prove it had knowledge of the defective slide or because the defect did not proximately cause the
inju ry, the City was asking the trial court to do that which was cautioned against in Bland. Contending that the
cause sho uld be dism issed for wan t of jurisdiction due to the plaintiff’s inability to prove elem ents o f their
claim , i.e., knowledge and causation, differs from contending that it should be dismissed since they failed to
allege a cause of action within the scope of the Tort Claim s Act. The form er entangles the trial court in the
m erits of the case contrary to the directive in Bland while the latter does not. The latte r, inste ad, sim ply
requ ires perus al of the plead ings to see wh at wa s alleged a nd w heth er tho se a llegation s fit within the Ac t.

                                                          5
liability, i.e., breach by an occupier of land of the duties owed to a licensee.5 See Knorpp

v. Hale, 981 S.W.2d 469, 471-72 (Tex. App.–Texarkana, no pet.)(describing the elements

of such claims).

        Yet, given that the pleadings indicate G.R.’s injuries were caused by contact with

playground equipment in a city park, another statute comes into play. It is found at

§75.002 of the Civil Practice and Remedies Code. Through that provision, the legislature

modified the duty of care normally owed to those granted permission to enter realty. It

declared that an owner, lessee, or occupant of realty (other than agricultural land) who

gives permission to another to enter the premises for “recreation” does not 1) assure that

the premises are safe for that purpose, 2) owe to the person to whom permission is

granted a greater degree of care than that owed a trespasser, or 3) assume responsibility

or incur liability for any injury to any individual or property caused by any act of a person

to whom permission is granted. TEX . CIV. PRAC . REM . CODE ANN . §75.002(c) (Vernon Supp.

2001). Furthermore, the term “recreation” was defined as including hunting, fishing,

swimming, boating, camping, picnicking, hiking, pleasure driving, nature study,

birdwatching, cave exploration, waterskiing, water sports, and “any other activity associated

with enjoying nature or the outdoors.” Id. at §75.001(3). That journeying to a park to enjoy

its facilities and playground equipment is akin to “picnicking” (albeit without the food) and

within the category of an “activity associated with enjoying nature or the outdoors” cannot

reasonably be disputed. See Flye v. City of Waco, 50 S.W.3d 645, 647 (Tex. App.--Waco

2001, no pet.)(wherein the use of playground equipment, i.e. a swing, at a city park was


        5
       W e ackn ow ledge that a licensee need not aver or pro ve wilful, wanton or grossly negligent
misconduct on the part of the defendan t to recover. Such is not an element of the general cause of action.

                                                    6
considered to be within the statutory definition of recreation). And, therein lies the obstacle

that proves fatal to the Rules’s live pleadings.

        While the legislature may not have intended for §75.001 et. seq (or what has

become known as the Recreational Use Act) to waive a governmental entity’s sovereign

immunity, id. at §75.003(f), the statute nevertheless affects such an entity’s liability under

the Tort Claims Act if the premises were used for recreational purposes. This is so

because the Recreational Use Act not only applies to governmental entities, id. at

§75.003(e), but also controls the extent of their liability “under circumstances in which. . .

[they] would be liable under . . .” the Tort Claims Act. Id. at §75.003(g). That is, to the

extent that §75.002(c) applies, the governmental entity need only treat those entering upon

the property as a trespasser. It owes them no duties normally due licensees or invitees.6

Nor must it act as a reasonable person would viz-a-viz the potential claimants. Instead, the

entity may do that which it would as long as it does not injure the visitor through wilful,

wanton, or grossly negligent conduct. See Texas Utils. Elec. Co. v. Timmons, 947 S.W.2d

191, 193 (Tex. 1997) (stating that the duty of care owed to a trespasser is to forego injuring

him through wilful, wanton, or grossly negligent conduct). And, in stressing the word

conduct, we emphasize that the duty does not encompass injury arising from the condition

of realty but only injury arising from the activity or conduct of the occupier. Flye v. City of

Waco, 50 S.W.3d 645, 648 (Tex. App.--Waco 2001, no pet.), quoting Smither v. Texas

Utils. Elec., 824 S.W.2d 693, 695 (Tex. App.--El Paso 1992, writ dism’d). This is so

        6
          Consequently, §75.002(c) effectively supplants §101.022(a) of the Texas Civil Practice and
Rem edies Code when the premises are used for recreational purposes. Section 101.022(a) obligates a
governmental entity to treat those appearing upon its lands as licensees unless payment is made for the use
of the prem ises. T EX . C IV . P RAC . & R EM . C ODE A N N . §101.022(a) (Vernon 1997). However, if the premises
are b eing use d for recreation al purpos es, the en tity need o nly treat the visitors as tre spa sse rs.

                                                        7
because trespassers take the premises as they find them. Id. So, no duty is owed them

viz the condition of those premises.

       What all the foregoing means in simple terms is that to state a viable cause of action

within the scope of §101.021(2) of the Tort Claims Act when the injury involves realty (and

appurtenances thereto) used for recreational purposes, the claimant must do the following.

It must allege facts illustrating that injury or death arose from the wilful, wanton, or grossly

negligent conduct of the entity. With this in mind, we return to the Rules’ live pleading.

       Again construing the Rules’ first amended petition in a liberal manner, we see that

they seek redress for injuries allegedly caused by the condition of the slide found at the

playground, and the City’s failure to ameliorate or rectify that condition or otherwise warn

others of same. So construed, their complaints liken to those of the plaintiff in Flye. There,

a child was struck by a swing located in a city park, which swing supposedly lacked a

protective guard. His parents sued for redress contending that the City was grossly

negligent in failing to warn of the swing’s dangerous condition and failing to correct prior

incidents, maintain the condition of the park, maintain the park equipment, and repair the

park equipment. Flye v. City of Waco, 50 S.W.3d at 647. These allegations did not

evince, according to the Flye court, activity or conduct causing contemporaneous injury.

Rather, they evinced misconduct creating a condition which belatedly caused injury. And,

since the injury did not arise contemporaneously with the improper omissions but rather

a condition made by the omissions, the chose-in-action sounded in premises liability. Id.

at 648-49; see Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998)

(distinguishing between a cause of action founded upon negligent activity or conduct and



                                               8
one sounding in premises liability and holding that recovery under a negligent activity

theory requires the injury to be a contemporaneous result of the supposed misfeasance

as opposed to a condition created by the misfeasance); Keetch v. Kroger Co., 845 S.W.2d

262, 264 (Tex. 1992) (holding the same).7 Finally, because the claim was one of premises

liability and the park and swing were being used for recreational purposes (i.e. as a park

and swing), the city owed the Flyes no duty regarding the condition of the premises since

they were trespassers. Flye of Waco, 50 S.W.2d 649.

         So, to the extent that the Rules complain (via their first amended petition) about

Lubbock’s failure to repair or maintain the playground equipment or warn about its

purportedly hazardous condition, they complain of injury that does not arise

         7
           O ur Suprem e Court continues to recognize a distinction between negligent conduct comm itted by
an occupier of property that imm ediately causes injury and the same negligent conduct that does not inflict
imm ediate or “contemporaneous” harm. The former is actionable via a claim sounding in simple negligence
wh ile the latter m ust be pu rsued throug h a claim foun ded upo n pre m ises liability. Tim berw alk Apts., Partners,
Inc. v. C ain, 972 S.W .2d 749, 753 (Tex. 1998 ); Keetch v. Kroger Co., 845 S.W .2d 262, 264 (T ex. 1992).
Thus, for instance, one who slips on a substance covering a gro cery store floor at the sam e time the store
employee carelessly sprays the substance must sue under the theory of negligent activity while a customer
who slips on the same patch of floor an hour after the employee stopped carelessly spraying the substance
must allege a claim sounding in pre m ises liability. Keetch v. Kroger Co., supra. Should the injured person
in the first scenario aver a premises liability claim or the injured in the second scenario allege a claim sounding
in mere negligence, neither could recover despite the fact that the same act effectively caused the same
inju ry. W hy the tem poral rela tion ship betw een the im proper act and injury should be left to dictate the nature
of the cause of action and create a hazardous pitfall for the injured is questionable, as discussed in Chief
Justice Hardberger’s concurrence in W al-Mart Sto res, Inc. v. G arza, 27 S.W .3d 64 (Tex. Ap p.--San Anton io
2000, pet. de nied). This is espec ially true when the Recreation al Us e Ac t m ay com e into play. In that
situation, the mere passage of time between the misconduct and the occurrence of the injury may determine
whether the injured has any claim whatsoeve r. For instance, if a hiker in a city park is injured by falling
construction material which a city employee is then stacking in a wilful, wanton, or grossly negligent way, the
city could arguably be held liable under Keetch. Yet, if another hiker encounters the same falling material the
next day, then he would have no cause o f action. This would be true desp ite the fact that both hikers are
trespasse rs under the Recreational Use Act. And, the simple reason why it would be true concerns the
temporal relationship between the improper conduct and the injury. Having occurred the day after the
employee completed his misconduct, the second hiker’s injuries would not be “contem poraneous” with the
m iscondu ct, and his claim wou ld be lim ited to one o f prem ises liability, i.e. one founded upon the condition
of the property. And, because a land owner owes trespassers no duty regarding the condition of the pro perty,
the second hiker would recove ry noth ing. O n the other hand, the first hiker’s injuries would be
“contemporaneous” with the misconduct and therefore actionable under a claim of negligent activity conducted
wilfully, wan tonly or with gross negligence. Simply put, the mere passage of time would dictate which one
wins and which one loses. An interesting quirk, but apparently the law nonetheless.

                                                          9
contemporaneously with any misconduct on the part of the city. Flye v. City of Waco,

supra. Under that circumstance, binding Supreme Court precedent restricts them to

averring a chose-in-action founded upon premises liability, which the Rules attempted. Id.;

accord, Timberwalk Apts. Partners, Inc. v. Cain, supra; Keetch v. Kroger, Inc. Yet, this is

of no moment since they also alleged facts illustrating that the injury was caused by a slide

located in a city park and on which they played. In making that allegation, the Rules

triggered application of the Recreational Use Act which bestowed upon them the status of

trespassers. TEX . CIV. PRACT. & REM . CODE ANN . §75.002(c)(2). And, being trespassers,

they were owed no duty by the City with regard to the condition of the playground and its

appurtenances. Flye v. City of Waco, supra. Consequently, the live pleading before us

fails to allege facts illustrating a cause of action upon which the City of Lubbock could be

found liable if it were a private person. And, because it does not allege such a cause of

action, the Rules fell short of stepping through the window of opportunity created by the

Tort Claims Act.

       In sum, the doctrine of sovereign immunity deprives the trial court of jurisdiction over

the choses-in-action at bar, and the trial court erred in denying the City’s motion to dismiss

for want of subject matter jurisdiction. Moreover, the error is harmful in that the trial court

may not allow the Rules to continue their prosecution of the suit in absence of jurisdiction.

However, before we can dismiss the action, see TEX . R. APP. PROC . 43.2 (c) (stating that

the appellate court may enter the judgment which the trial court should have entered), the

Rules must be afforded an opportunity to amend their pleadings and allege a cause of

action within the trial court’s jurisdiction. Texas Ass’n Bus. v. Air Control Bd., supra.



                                              10
Should the Rules fail to allege such a claim or opt not to, then dismissal is necessary.

Thus, we reverse the order of the trial court denying the City of Lubbock’s motion to

dismiss for want of jurisdiction and remand the cause for further proceedings

commensurate with this opinion.8



                                                                    Brian Quinn
                                                                      Justice


Publish




      8
          Having sustained the City’s first issue relieves us of having to address its second.

                                                      11
