Opinion issued October 28, 2014




                                      In The

                              C ourt of Appeals
                                     For The

                         First District of Texas
                             ————————————
                              NO. 01-13-00976-CV
                            ———————————
TABITHA HENRY, INDIVIDUALLY AND ON BEHALF OF THE ESTATE
OF KYLIE LAMPSON AND AS NEXT OF FRIEND OF ASHLEY HENRY,
       ZACHARY HENRY AND HANNAH HENRY, Appellants
                                         V.
                    THE CITY OF ANGLETON, Appellee


                   On Appeal from the 239th District Court
                          Brazoria County, Texas
                        Trial Court Case No. 70733


                         MEMORANDUM OPINION

      This is an accelerated appeal from the trial court’s order granting the City of

Angleton’s plea to the jurisdiction. Tabitha Henry sued the City after her 11 year

old daughter, Kylie Lampson, died from complications of near-drowning in a
swimming pool owned by the City. We hold that the trial court properly granted

the City’s plea to the jurisdiction.

                                       Background

      The City owns and operates the Angleton Recreation Center (“Rec Center”)

through the Angleton Better Living Corporation. The Rec Center consists of a

fitness facility, gymnasium, meeting rooms, and a swimming pool known as the

Natatorium. The Natatorium functions as an indoor and outdoor pool and has

zero-depth entry, slides, tipping buckets that fill up with water and pour into the

pool, and a lazy river.

      Tabitha took her four children to the pool. At one point, Kylie was seen

lying face down in the water. After the lifeguard pulled Kylie from the water and

attempted to resuscitate her, Kylie was taken to the hospital. Kylie died seven days

later from “complications of near-drowning.” A video shows that Kylie was face

down in the water for approximately seven minutes before the lifeguard took

action.

      Henry, individually, on behalf of the estate of Kylie, and as next friend of

her three other minor children, sued the City to recover wrongful death, survival,

and bystander damages. Henry alleged that the City’s operation of the Natatorium

was a proprietary function because the Natatorium includes amusement features

such as slides, tipping buckets, and a lazy river. See TEX. CIV. PRAC. & REM. CODE



                                           2
ANN.      §   101.0215(b)   (West Supp.       2014)   (designating “amusements” as

proprietary).     Henry also alleged negligence, gross negligence, and premises

defect.

          After special exceptions, the trial court ordered Henry to replead and

include “specific facts that demonstrate a cause of action or causes of action

against the City of Angleton for which its immunity from suit is waived by the

Texas Tort Claims Act.” In her First Amended Petition, Henry also alleged that

the design of the Natatorium constituted an unreasonably dangerous condition and

that the City “failed to install elevated lifeguard chairs which are industry standard

and required by the requisite codes.”

       The City filed its plea to the jurisdiction “seeking dismissal . . . because

there is no cause of action alleged against the City for which immunity is waived

by the Tort Claims Act.” Henry filed a response supported by evidence, including

the deposition transcript of the City manager, Michael Stoldt, and a picture of a

lifeguard chair used at the Natatorium. After a hearing, the trial court granted the

plea and dismissed Henry’s suit with prejudice.

                              Plea to the Jurisdiction

       A plea to the jurisdiction based on governmental immunity is a challenge to

the trial court’s subject matter jurisdiction.    See City of Waco v. Kirwan, 298

S.W.3d 618, 621 (Tex. 2009); Tex. Dep’t of Parks & Wildlife v. Miranda, 133



                                          3
S.W.3d 217, 225–26 (Tex. 2004).        Whether the trial court has subject matter

jurisdiction is a question of law. State v. Holland, 221 S.W.3d 639, 642 (Tex.

2007). We therefore review a trial court’s ruling on a plea to the jurisdiction de

novo. Id.

      When a plea to the jurisdiction challenges the sufficiency of a plaintiff’s

jurisdictional pleadings, we must determine whether the plaintiff has alleged facts

that affirmatively demonstrate the court’s jurisdiction. See Miranda, 133 S.W.3d

at 226. We construe the pleadings liberally in favor of the plaintiff and look to the

pleader’s intent. Id.; Smith v. Galveston Cnty., 326 S.W.3d 695, 697–98 (Tex.

App.—Houston [1st Dist.] 2010, no pet.). “If the pleadings affirmatively negate

the existence of jurisdiction, then a plea to the jurisdiction may be granted without

allowing the plaintiff an opportunity to amend its petition.” Smith, 326 S.W.3d at

698 (citing Miranda, 133 S.W.3d at 227). If the pleadings neither affirmatively

demonstrate nor negate jurisdiction, “it is an issue of pleading sufficiency and the

plaintiff should be given an opportunity to amend the pleadings.” Kirwan, 298

S.W.3d at 622 (citing Miranda, 133 S.W.3d. at 226–27).

      When a plea to the jurisdiction challenges the existence of jurisdictional

facts, we “‘consider relevant evidence submitted by the parties when necessary to

resolve the jurisdictional issues raised,’ even where those facts may implicate the

merits of the cause of action.” Id. (quoting Miranda, 133 S.W.3d. at 227). The



                                         4
plea to the jurisdiction standard mirrors that of a traditional motion for summary

judgment. Miranda, 133 S.W.3d at 228; Ross v. Linebarger, Goggan, Blair &

Sampson, L.L.P., 333 S.W.3d 736, 744 (Tex. App.—Houston [1st Dist.] 2010, no

pet.). When reviewing the evidence, we must “‘take as true all evidence favorable

to the nonmovant’ and ‘indulge every reasonable inference and resolve any doubts

in the nonmovant’s favor.’” Kirwan, 298 S.W.3d at 622 (quoting Miranda, 133

S.W.3d. at 228). If the evidence creates a fact issue as to the jurisdictional issue,

then the fact-finder will decide that issue. Id. (citing Miranda, 133 S.W.3d. 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.” Miranda, 133 S.W.3d. at 228.

                                    Discussion

        In its plea, the City sought dismissal based on Henry’s pleadings because

Henry failed to allege facts that demonstrated a waiver of immunity under the

Texas Tort Claims Act. Henry challenges the trial court’s order granting the plea

on two grounds: (1) the trial court erred in concluding that the City’s operation of

the Natatorium is a governmental rather than a proprietary function and (2) the trial

court erred in concluding that Henry failed to allege facts to bring her claims

within the waivers of immunity for use of tangible personal property and premises

liability.



                                         5
A.    Governmental Function

      In her first issue, Henry contends that the trial court erred in finding that the

City’s operation of the Natatorium is a governmental rather than a proprietary

function.   According to Henry, the operation of the Natatorium is proprietary

because it is an “amusement” that charges an entry fee and whether the Natatorium

was an “amusement” under section 101.0215(b) of the Texas Tort Claims Act

(“TTCA”) or a “generic pool” was a fact issue for the jury to resolve.

      A city’s immunity from suit for a tort claim may depend on whether its

actions are characterized as governmental or proprietary functions. Tooke v. City

of Mexia, 197 S.W.3d 325, 343 (Tex.2006). A city is immune for torts committed

in the performance of its governmental functions. Id. But a city receives no

protection from suit for torts committed in the performance of its proprietary

functions. Id.

      Section 101.0215 of the TTCA designates certain functions as governmental

or proprietary for tort claims purposes.      TEX. CIV. PRAC. & REM. CODE ANN.

§ 101.0215(a), (b).   The Legislature designated recreational facilities, including

swimming pools, as governmental functions. Id. § 101.0215(a)(23) (“recreational

facilities, including but not limited to swimming pools, beaches, and marinas” are

governmental functions).       But “amusements owned and operated by the

municipality” are proprietary.       Id. § 101.0215(b)(2).      Importantly, section



                                          6
101.0215(c) states that proprietary functions do not include those governmental

activities enumerated under section 101.0215(a). Id. § 101.0215(c).

      Henry argues that the Natatorium is an amusement because it has “a play

structure, water blasters, water buckets, water curtains, [and] a lazy river.” But

swimming pools are expressly designated as governmental under section

101.0215(a). Id. § 101.0215(a)(23). Accordingly, they cannot also be proprietary.

See id. § 101.0215(c) (“The proprietary functions of a municipality do not include

those governmental activities listed under Subsection (a).”); City of Houston v.

Downstream Envtl., L.L.C., 01-12-01091-CV, 2014 WL 2619072, at *5 (Tex.

App.—Houston [1st Dist.] June 12, 2014, no pet.) (“[W]e have no discretion to

determine that a municipality’s action is proprietary if it has been designated as a

governmental function by the Tort Claims Act.”).

      While the Natatorium incorporates modern features designed to enhance the

user’s experience and these features distinguish the Natatorium from a generic

pool, “the introduction of a proprietary element into an activity designated by the

Legislature as governmental does not serve to alter its classification.” City of

Texarkana v. City of New Boston, 141 S.W.3d 778, 784 n.3 (Tex. App.—

Texarkana 2004, pet. denied), abrogated on other grounds by Tooke v. City of

Mexia, 197 S.W.3d 325, 338–42, n.60 (Tex. 2006); City of Plano v. Homoky, 294

S.W.3d 809, 815 (Tex. App.—Dallas 2009, no pet.) (quoting City of San Antonio v.



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Butler, 131 S.W.3d 170, 178 (Tex. App.—San Antonio 2004, pet. denied) (“In

considering whether the City was engaged in a governmental or proprietary

function, a plaintiff may not ‘split various aspects of [a City’s] operation into

discrete functions and recharacterize certain of those functions as proprietary.’”).

Thus, the Natatorium’s additional features do not change its designation as a

governmental function. See Homoky, 294 S.W.3d at 815 (holding city-owned golf

course is governmental function despite evidence that clubhouse, with restaurant

operating within, was located on premises).

      Henry also contends the Natatorium is proprietary because it is “reserved for

those who are willing to pay monthly membership fees or daily fees for use.” In

support, Henry offered the deposition testimony of Michael Stoldt, the city

manager, to prove that users paid to use the Natatorium. But a governmental

entity’s ability to charge fees and make a profit does not in itself transform a

governmental function into a proprietary function. See Butler, 131 S.W.3d at 178

(existence of a profit motive does not transform government function into

proprietary conduct); Texas River Barges v. City of San Antonio, 21 S.W.3d 347,

356–57 (Tex. App.—San Antonio 2000, pet. denied) (regulation of “dinner, tour,

and taxi barges” on river was within government function even though City

contracted for sale of dinner and tours which would produce profits for city).




                                         8
Accordingly, we conclude that the City’s operation of the Natatorium is a

governmental function.

      We overrule Henry’s first issue.

B.    No waiver of immunity under the TTCA

      In her second issue, Henry contends that she alleged facts sufficient to bring

her claims within the TTCA’s waivers of immunity for (1) “misuse/non-use of

tangible personal property” and (2) premises liability.

      1.     Use of tangible personal property

      Henry contends that she pleaded a claim for misuse of tangible personal

property within TTCA section 102.021(2) because she alleged that the

Natatorium’s lifeguard misused the lifeguard chairs. Section 101.021(2) provides

that a governmental unit is liable for personal injury or death caused by the use of

tangible personal 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 ANN. § 101.021(2) (West 2011).

      To fall within the waiver of section 101.021(2), the plaintiff’s injury “must

be proximately caused by the condition or use of tangible property.” Dallas Cnty.

Mental Health & Mental Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998).

“The requirement of causation is more than mere involvement,” and “[p]roperty

does not cause injury if it does no more than furnish the condition that makes the



                                          9
injury possible.” Id.; see Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583,

588 (Tex. 2001).     This is not to say that the tangible property has to have

physically injured the plaintiff in order for proximate cause to exist. See Bossley,

968 S.W.2d at 343.      But, the Texas Supreme Court requires a causal nexus

between the use of the property and the plaintiff’s injury. Dall. Area Rapid Transit

v. Whitley, 104 S.W.3d 540, 543 (Tex. 2003); see Bossley, 968 S.W.2d at 342–43

(incidental involvement of property is insufficient to establish waiver, and property

does not “cause” the injury if it simply furnishes the condition that makes the

injury possible); Univ. of Tex. Med. Branch Hosp. at Galveston v. Hardy, 2 S.W.3d

607, 609 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (there must be a

“direct and immediate relationship” between the injury and the “use” of the

property).

      Henry contends that she alleged a “proper misuse/non-use of tangible

personal property—i.e. the lifeguard chairs.” Her First Amended Petition states:

      [T]he design of the Natatorium constituted an unreasonably dangerous
      condition.     Specifically the Natatorium was designed to place
      lifeguard stations in a manner where the Natatorium cannot be fully
      viewed. Moreover, Defendant failed to install elevated lifeguard
      chairs which are industry standard and required by the requisite codes.

      But nowhere does the petition allege facts to establish a nexus between the

lifeguard stations or chairs and Kylie’s injury. Henry failed to allege how the

Natatorium lifeguard stations or chairs contributed to the incident, i.e., that the



                                         10
stations or chairs were the “instrumentality” of Kylie’s injury. In other words,

Henry nowhere alleged that Kylie’s injury would not have occurred if the stations

or chairs had been higher or located differently. See Miller, 51 S.W.3d at 588

(treatment may have furnished condition that made injury possible, but treatment

did not hurt him, make him worse, or actually cause his death); Dimas v. Tex. State

Univ. Sys., 201 S.W.3d 260, 267 (Tex. App.—Houston [14th Dist.] 2006, no pet.)

(“[A]lthough malfunctioning light timers may have caused the area near [the

scene] to be dark, thus furnishing the condition that made the attack possible, this

condition does not establish the requisite causal nexus . . . .”); Fryman v. Wilbarger

Gen. Hosp., 207 S.W.3d 440, 441–42 (Tex. App.—Amarillo 2006, no pet.)

(sovereign immunity not waived where hospital grounds were simply location of

assault, pleadings do not show hospital grounds caused assault, and plaintiff

complained about failure to use or, in effect, non-use of property). Because Henry

failed to allege facts demonstrating proximate causation, Henry failed to establish

that immunity was waived based on the use of personal tangible property. 1




1
      Although Henry adduced evidence showing the location and design of the
      lifeguard chairs (a photograph of the chair), this is insufficient to raise a fact issue
      on causation. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,
      227 (Tex. 2004) (we consider evidence submitted by the parties when plea to
      jurisdiction challenges jurisdictional facts).

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      2.     Premises Defect

      The TTCA includes a limited waiver of the state’s immunity from suits

alleging personal injury or death caused by premises defects. TEX. CIV. PRAC. &

REM. CODE ANN. §§ 101.021(2), 101.022 (West 2011). In premises-defect cases

generally, the governmental unit owes “only the duty that a private person owes to

a licensee on private property, unless the claimant pays for the use of the premises”

in which case the duty owed is that owed to an invitee. TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(a); see City of Irving v. Seppy, 301 S.W.3d 435, 441 (Tex.

App.—Dallas 2009, no pet.).      However, a different rule applies in a premises

liability case in which the plaintiff was injured while engaging in a recreational

activity within the scope of the Recreational Use Statute. Miranda, 133 S.W.3d at

225 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 101.058 (West 2011); see also

TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001–75.003 (West 2011 & West Supp.

2014). In such a case, the Recreational Use Statute controls over the Tort Claims

Act. TEX. CIV. PRAC. & REM. CODE ANN. § 75.003(g) (West Supp. 2014) (chapter

75 controls over chapter 101 to extent chapter 75 limits liability of governmental

unit under circumstances in which governmental unit would be liable under chapter

101); id. § 101.058 (West 2011) (same).

      When injury or death results on government-owned, recreational land, the

Recreational Use Statute limits the governmental unit’s duty to that owed by a



                                          12
landowner to a trespasser. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c)(2), (f)

(West 2011) (defining duty as that owed to trespasser); see State v. Shumake, 199

S.W.3d 279, 283 (Tex. 2006). Thus, when applicable, the Recreational Use Statute

elevates the plaintiff’s burden to require a showing of gross negligence, malicious

intent, or bad faith. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(d); Stephen

F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 659 (Tex. 2007).

         The Recreational Use Statute applies if a plaintiff is engaged in “recreation”

at the time of the injury. City of Bellmead v. Torres, 89 S.W.3d 611, 613–14 (Tex.

2002).      The statute provides a nonexclusive list of activities that constitute

“recreation,” including swimming and “other water sports.” TEX. CIV. PRAC. &

REM. CODE ANN. § 75.001(3)(C), (K). Because it is undisputed that Kylie was

swimming at the time of the incident, we hold that the Recreational Use Statute

applies in this case. See TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(C).

Accordingly, Henry must allege that Kylie’s injury arose from gross negligence,

malicious intent, or bad faith.         See TEX. CIV. PRAC. & REM. CODE ANN.

§ 75.002(d).

         Henry did not allege that the City acted with malicious intent or in bad faith;

we thus analyze only whether Henry alleged sufficient facts to support a gross

negligence claim. Gross negligence is “an act or omission involving subjective

awareness of an extreme degree of risk, indicating conscious indifference to the



                                            13
rights, safety, or welfare of others.” Shumake, 199 S.W.3d at 287 (citing Transp.

Ins. Co. v. Moriel, 879 S.W.2d 10, 21 (Tex. 1994)). Gross negligence, as applied

under the Recreational Use Statute, involves two components: (1) viewed

objectively from the actor’s standpoint, the act or omission must involve an

extreme degree of risk, considering the probability and magnitude of the potential

harm to others; and (2) the actor must have actual, subjective awareness of the risk

involved, but nevertheless proceeds in conscious indifference to the rights, safety,

or welfare of others. See Miranda, 133 S.W.3d at 225. When reviewing the

second subjective component, “what separates ordinary negligence from gross

negligence is the defendant’s state of mind; in other words, the plaintiff must show

that the defendant knew about the peril, but his acts or omissions demonstrate that

he did not care.” Louis.–Pac. Corp. v. Andrade, 19 S.W.3d 245, 246–47 (Tex.

1999); see also City of Corsicana v. Stewart, 249 S.W.3d 412, 414–15 (Tex. 2008)

(holding that “actual knowledge” element of a premises defect cause of action

requires knowledge that the dangerous condition existed at the time of the

accident).

      The only premises defect alleged in Henry’s petition relates to the lifeguard

chairs:

      [T]he design of the Natatorium constituted an unreasonably dangerous
      condition. Specifically, the Natatorium was designed to place
      lifeguard stations in a manner where the Natatorium cannot be fully
      viewed. Moreover, Defendant failed to install elevated lifeguard

                                        14
      chairs which are industry standard and required by the requisite codes.
      This conduct is so reckless that it constitutes an intentional conduct of
      ignoring a known extreme risk of harm or death.

      Knowledge of the dangerous condition’s existence is an element of gross

negligence claims. See Miranda, 133 S.W.3d at 225. Here, Henry alleged that the

City’s failure to install elevated lifeguard stations or chairs amounted to “ignoring

a known extreme risk of harm or death,” but failed to allege any facts establishing

that the City had actual knowledge or was aware of any risk. Henry alleged only

that the City’s failure to install different lifeguard stations or chairs amounted to

“ignoring a known extreme risk,” without first alleging any facts that the City

knew of the alleged risk. Henry therefore failed to allege facts demonstrating that

the City knew of the allegedly dangerous placement or design of the lifeguard

stations or chairs before Kylie’s injury, or that the City was aware of any extreme

risk. Accordingly, we conclude that Henry failed to allege facts demonstrating

gross negligence with respect to her claims that are based on the lifeguard stations

or chairs, which was the only premises defect Henry alleged. 2 See Flynn, 228


2
      None of the remaining allegations in Henry’s petition relate to a premises defect.
      Henry alleges that the City was negligent in many respects: failing to train
      lifeguards, failing to supervise patrons, and failing to have an adequate number of
      lifeguards on duty. Henry also contends that the lifeguard’s failure to promptly
      react to seeing Kylie face down was “gross negligence.” But these allegations do
      not relate to the property and therefore cannot state a premises defect claim. See
      TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2) (TTCA waives immunity for
      “personal injury and death so caused by a condition or use of tangible personal or
      real property if the governmental unit would, were it a private person, be liable to
      the claimant according to Texas law.”).

                                           15
S.W.3d at 659–60 (“conclusory” allegation that appellee “knew that the use of the

sprinkler   . . . posed a risk of serious injury to others” but that appellee was

“grossly negligent in ignoring and creating that risk” was insufficient “to meet the

standard imposed by the recreational statute”); City of El Paso v. Collins, No. 08-

12-00243-CV, 2013 WL 6665090, at *6, -- S.W.3d -- (Tex. App.—El Paso Dec.

18, 2013, no pet.) (immunity not waived where plaintiffs alleged that City had

knowledge of pool’s defective condition because they did not allege that City was

“aware of the extreme risk” to children); Univ. of Tex. Health Sci. Ctr. at Hous. v.

Garcia, 346 S.W.3d 220, 228 (Tex. App.—Houston [14th Dist.] 2011, no pet.)

(allegation that university “knew that, left unattended, the condition of the

volleyball court would likely deteriorate and expose players to an unreasonable

risk of injury” insufficient to “affirmatively demonstrate the trial court’s

jurisdiction”); Homoky, 294 S.W.3d at 817–18 (appellant’s allegations, including

that landowner “knew or should have known about the dangerous condition . . .

[that] created an unreasonable risk of harm,” failed to satisfy pleading

requirements for gross negligence); Biermeret v. Univ. of Tex. Sys., No. 02-06-240-

CV, 2007 WL 2285482, at *6 (Tex. App.—Fort Worth Aug. 9, 2007, pet. denied)

(“[B]ecause no pleadings or jurisdictional evidence exists that [appellee] possessed

actual or constructive knowledge . . . that on the date in question [the floor]




                                        16
actually had become wet and slick prior to [appellant’s] fall, [appellant] has not

shown that if [appellee] were a private person it would be liable to him.”).

       Accordingly, we conclude that Henry failed to allege facts to bring her

claims within the waivers of the Recreational Use Statute and the TTCA and hold

that the trial court did not err in granting the City’s plea to the jurisdiction.

       We overrule Henry’s second issue.

                                       Conclusion

       We affirm the judgment of the trial court.



                                                 Rebeca Huddle
                                                 Justice

Panel consists of Justices Massengale, Brown, and Huddle.




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