                                             OPINION
                                        No. 04-10-00575-CV

                                     CITY OF SAN ANTONIO,
                                            Appellant

                                                   v.

                 Arnold and Janie VASQUEZ, Mark Unger, Kim and Robert Frame,
                                         Appellees

                     From the 225th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2008-CI-08135
                             Honorable Michael Peden, Judge Presiding

Opinion by:       Sandee Bryan Marion, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Sandee Bryan Marion, Justice

Delivered and Filed: March 16, 2011

REVERSED AND RENDERED

           This is an accelerated appeal from the trial court’s denial of the City of San Antonio’s

plea to the jurisdiction. We reverse the trial court’s order and render a dismissal of appellees’

claims against the City.
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                                               DISCUSSION

        Arnold Vasquez, Mark Unger, and Kim Frame were all injured, on different dates, while

riding their bicycles on a bridge along the Mission Trails Phase 1 Bicycle Path. 1 Arnold and his

wife, Mark, and Kim and her husband all filed suit against multiple defendants, including the

City of San Antonio. The plaintiffs, who are all appellees in this appeal, alleged the City

possessed the property in question and either owned, controlled, occupied, or maintained the

premises located at Mission Trails Phase 1 Bicycle Path as a public bike path. The plaintiffs

alleged the City owed a duty to provide safe surroundings to those people invited to the premises

to conduct business; the City breached this duty by failing to warn or make the dangerous

condition safe for invited persons; and the City breached its duty to inspect the premises to

discover defects on the bridge, along with construction defects caused by contractors and

subcontractors. The City filed its plea to the jurisdiction arguing it was entitled to the protections

provided by the Recreational Use Statute. The trial court denied the plea and this appeal ensued.

                                                 ANALYSIS

        Under the Recreational Use Statute, if the City “gives permission to another to enter the

premises for recreation,” the City “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 is

owed to a trespasser on the premises; or (3) assume responsibility or incur liability for any injury

to any individual or property caused by any act of the person to whom permission is granted.”

TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c) (West Supp. 2010). The statute defines

“premises” to include “land, roads, water, watercourse, private ways, and buildings, structures,

machinery, and equipment attached to or located on the land, road, water, watercourse, or private


1
 The Mission Trail stretches nine miles along the San Antonio River, with The Alamo being the northernmost of the
missions. Visitors may drive the entire San Antonio Mission Trail or travel along a hike-and-bike trail.

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way.” Id. § 75.001(2). “Recreation” is defined to include “an activity such as . . . bicycling.”

Id. § 75.001(3)(M). However, under subsection (c), the statute “shall not limit the liability of an

owner, lessee, or occupant of real property who has been grossly negligent or has acted with

malicious intent or in bad faith.” Id. § 75.002(d).

        Thus, the Recreational Use Statute, when applicable, “raises the burden of proof [in a

premises liability case] by classifying the recreational user of [government]-owned property as a

trespasser and requiring proof of gross negligence, malicious intent, or bad faith” on the part of

the governmental unit. State v. Shumake, 199 S.W.3d 279, 281 (Tex. 2006). A landowner has

no duty to warn or protect trespassers from obvious defects or conditions. Id. at 288. “[T]he

owner may assume that the recreational user needs no warning to appreciate the dangers of

natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.” Id.

“But a landowner can be liable for gross negligence in creating a condition that a recreational

user would not reasonably expect to encounter on the property in the course of the permitted

use.”   Id.   Gross negligence requires that the landowner be subjectively aware of, and

consciously indifferent to, an extreme risk of harm. Id.; see also TEX. CIV. PRAC. & REM. CODE

§ 41.001(11)(B) (West 2008).

        Whether a court has subject-matter jurisdiction is a question of law. Tex. Dep’t of Parks

& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction can make

two types of challenges: a challenge to the existence of jurisdictional facts or a challenge to the

sufficiency of the pleadings. Id. at 226-27. Here, in its plea to the jurisdiction, the City asserted

“Plaintiffs have failed to plead and cannot prove the City of San Antonio acted willfully,

wantonly or with gross negligence with respect to any of the Plaintiffs.” The City attached no

affidavits or other evidence to its plea. After the City filed its plea, the plaintiffs did not amend,



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or seek to amend, their petition to allege gross negligence. Nor did the plaintiffs file any

response to the plea. The docketing statement filed in this appeal indicates the hearing on the

plea took approximately twenty minutes and it was not recorded. Therefore, with no evidence

presented on the issue of jurisdiction it appears the trial court based its order on the sufficiency

of the plaintiffs’ fifth amended petition.

       When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has

alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Id.

Whether a plaintiff has alleged such facts is a question of law reviewed de novo. Id. When a

plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts

that affirmatively demonstrate the court’s jurisdiction to hear the cause. Id. We construe the

pleadings liberally in favor of the plaintiffs and look to their intent. Id. If the pleadings do not

contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not

affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading

sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the

pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be

granted without allowing the plaintiffs an opportunity to amend. Id.

       The plaintiffs’ allegations against the City are contained in a section entitled “Liability of

[the City] Under General Negligence Theory.” (emphasis added).             In their fifth amended

petition, the plaintiffs alleged the City possessed the property in question and either owned,

controlled, occupied, or maintained the premises located at Mission Trails Phase 1 Bicycle Path

as a public bike path. The plaintiffs also alleged the bike path near Espada Dam is listed on the

“recommended bicycle trails of Bexar County” and “is open to the public, and the public is

encouraged to use the facility.” The petition alleges Arnold, Mark, and Kim as invitees were



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injured on different dates, but all in the same manner: they fell from their bikes when the front

tire of the bike fell into a long groove that was left open and unprotected by a county road repair

employee while creating an expansion joint on the bridge over the dam. The petition alleges the

City “had knowledge of the dangerous condition and failed to instruct the contractor to perfect

the dangerous area for access by the public.” The petition also alleges the long groove was not

visible to the cyclists and there were no warning signs left by the road repair employees.

       In order to establish jurisdiction, the plaintiffs had to allege that their injuries were the

result of the City’s gross negligence, malicious intent, or bad faith. Our review of their petition

reveals no such allegation. We conclude the plaintiffs did not, even when we read their petition

liberally, meet their burden to assert any claim, or allege any fact, affirmatively establishing the

trial court’s subject-matter jurisdiction. They did not seek leave to amend their petition and

alleged no facts in the record that could establish jurisdiction with respect to their claims of

general negligence. Accordingly, we reverse the trial court’s order denying the plea to the

jurisdiction and render judgment dismissing the plaintiffs’ claims against the City.




                                                 Sandee Bryan Marion, Justice




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