                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-14-00229-CV


                    THE CITY OF DALHART, TEXAS, APPELLANT

                                             V.

         CAROL LATHEM, AS NEXT FRIEND OF E. L., A MINOR, APPELLEE

                           On Appeal from the 69th District Court
                                   Dallam County, Texas
                 Trial Court No. 11400, Honorable Roland D. Saul, Presiding


                                     August 31, 2015

                                        OPINION
                    Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellee Carol Lathem, as next friend of her minor daughter E.L., filed a

negligence and premises liability suit against appellant, the City of Dalhart, after E.L.

was injured by falling boards at a public City pool. When the trial court denied its plea to

the jurisdiction, the City filed this interlocutory appeal. We will reverse the order of the

trial court and dismiss the cause for lack of subject matter jurisdiction.
                                         Background


       In June 2011, eight-year-old E.L. paid to swim at the City pool. While she was

swimming, the lifeguards announced a fifteen-minute break and required all swimmers

to leave the pool. E.L. got out of the pool and sat with other swimmers at a picnic table

underneath a covered area along the front of the concession/locker room building inside

the pool facility. A set of lockers sat against the wall of the building, adjacent the picnic

table. The lockers were made of a plastic or composite material and were purchased,

unassembled, in 2005. When City workers assembled the lockers, there were parts left

over, four six-foot-long boards made of the same composite material. Unsure what to

do with them, they left them on top of the lockers. Two witnesses described them as

“fairly heavy.”1 E.L. sat on her knees at the picnic table with her back to the lockers.

The stacked boards fell from the lockers, striking the back of E.L.’s lower legs. She

sustained injuries to her legs and ankles.


       Lathem sued the City to recover for her daughter’s injuries, alleging causes of

action for personal injury caused by a condition or use of tangible personal property,

injury by premises defect, and, in the alternative, injury while engaged in recreation.


        The City filed a plea to the jurisdiction and motion to dismiss, arguing Lathem’s

pleadings and the evidence did not demonstrate a waiver of the City’s sovereign

immunity for her claims under the Texas tort claims act and the Texas recreational use

statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.001-.109 (West 2014) (tort

       1
         These descriptions came from Cassidy Lenz and Greg Duggan. Another witness, Gilbert
Ramirez, when asked how much each board weighed, responded, “Shoo. I don't know. Fifteen, twenty
pounds, maybe.”


                                               2
claims act); TEX. CIV. PRAC. & REM. CODE ANN. §§ 75.001-.006 (West 2015) (recreational

use statute). Lathem responded. Both sides presented evidence relevant to the trial

court’s jurisdiction. The trial court denied the City’s plea and motion by written order,

and this interlocutory appeal followed. See TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(8) (West 2014).


                                         Analysis


       The City raises four issues. We find it necessary to address three. We first

address the City’s contentions the trial court should have dismissed Lathem’s premises

liability claim because the recreational use statute applies to E.L.’s presence at the City

pool and the evidence does not show gross negligence. We then consider its argument

no evidence showed E.L.’s injuries were caused by the City’s use of tangible personal

property and Lathem’s claim alleging otherwise should have been dismissed.


       A challenge to a trial court's subject matter jurisdiction may be asserted in a plea

to the jurisdiction. Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26

(Tex. 2004); Bland Ind. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Whether a

court has subject matter jurisdiction is a question of law that we review de novo. State v.

Holland, 221 S.W.3d 639, 642 (Tex. 2007); Miranda, 133 S.W.3d at 226. When the

pleadings are challenged, we consider the allegations in favor of the plaintiff to

determine if the plaintiff alleged facts affirmatively demonstrating the jurisdiction of the

trial court to hear the case. Miranda, 133 S.W.3d at 226. To the extent relevant to the

issue of jurisdiction, we also consider any evidence received by the trial court. Blue, 34

S.W.3d at 555; Texas Tech Univ. v Ward, 280 S.W.3d 345, 348 (Tex. App.—Amarillo


                                             3
2008, pet. denied). Unless a jurisdictional fact is challenged and conclusively negated,

we must accept it as true when determining subject-matter jurisdiction. See City of El

Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009) (court reviewing plea to jurisdiction

takes as true all evidence favorable to non-movant, indulging every reasonable

inference and resolving any doubts in its favor).


       Sovereign immunity deprives a Texas trial court of subject matter jurisdiction for

suits against the state and other governmental units, including municipalities, unless the

state consents to suit. Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999);

TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a) (West 2013). The tort claims act

provides a limited waiver of sovereign immunity. See TEX. CIV. PRAC. & REM. CODE ANN.

§§ 101.001-.109 (West 2014).       The tort claims act waives sovereign immunity for

injuries arising out of (1) the use of publicly-owned automobiles; (2) the condition or use

of tangible personal property; and (3) premises defects. County of Cameron v. Brown,

80 S.W.3d 549, 554 (Tex. 2002); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.


       The tort claims act permits tort claims against a municipality arising from its

governmental functions. TEX. CIV. PRAC. & REM. CODE ANN. § 101.0215(a). Operation of

a swimming pool is a governmental function of a municipality. Id. § 101.0215(a)(23)

(“recreational facilities, including but not limited to swimming pools, beaches, and

marinas” are governmental functions).


Premises Defect


       The tort claims act provides that in premises defect cases, the state owes to the

claimant the duty of care that a private person owes to a licensee on private property

                                             4
unless the claimant has paid for the use of the premises. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.022(a); State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). If a

claimant has paid for use of the premises, as E.L. did here, the state owes the claimant

the duty that a private person owes an invitee on private property. See TEX. CIV. PRAC. &

REM. CODE ANN. § 101.022(a); Univ. of Tex. Med. Branch at Galveston v. Davidson, 882

S.W.2d 83, 85 (Tex. App.—Houston [14th Dist.] 1994, no writ) (“Although the [tort

claims act] does not specifically state, case law interpreting the [tort claims act] has held

that if the claimant pays for use of the premises, then § 101.022(a) imposes upon the

State the same duty of care a private landowner owes an invitee.”).


       But if the recreational use statute applies to E.L.’s presence on the pool’s

premises, the City owed her only the duty not to injure her through willful, wanton or

grossly negligent conduct. TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(f) (“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”); Miranda, 133

S.W.3d at 225 (premises owner owes a trespasser only a duty “not to injure that person

willfully, wantonly, or through gross negligence”); City of Bellmead v. Torres, 89 S.W.3d

611, 613 (Tex. 2002) (same).           The combined effect of the tort claims act and the

recreational use statute is that the governmental unit’s sovereign immunity is waived for

a premises defect only if the governmental unit is grossly negligent.                  Miranda, 133

S.W.3d at 225.2 And to determine whether the recreational use statute applies, we



       2
           See TEX. CIV. PRAC. & REM. CODE ANN. § 101.058 (“To the extent that [the recreational use
statute] limits the liability of a governmental unit under circumstances in which the governmental unit

                                                  5
focus on what E.L. was doing when she was injured. City of Bellmead, 89 S.W.3d at

614; City of Corpus Christi v. Ferguson, No. 13-12-00679-CV, 2014 Tex. App. LEXIS

1299, at *9 (Tex. App.—Corpus Christi Feb. 6, 2014, no pet.) (mem. op.).


        The recreational use statute defines “recreation” to include swimming. TEX. CIV.

PRAC. & REM. CODE ANN. § 75.001(3). In response to the City’s assertion in its plea to

the jurisdiction, Lathem argued to the trial court that at the time of her daughter’s injury,

E.L. was not swimming but merely was sitting at the table at the instructions of the

lifeguard. She contends this is not “recreation” within the meaning of the statute.


        A similar argument was made in City of Plano v. Homoky, 294 S.W.3d 809 (Tex.

App.—Dallas 2009, no pet.), in which the plaintiff Homoky was injured in the clubhouse

after she completed her round of golf, returned her clubs to her car, returned the golf

cart to the pro shop, entered the clubhouse, recorded her score in her league’s books,

and sat and talked for a few minutes with her golf partner. Homoky tripped and was

injured as she was leaving the clubhouse. Id. at 816-17. Homoky conceded, and the

court agreed, that playing golf would be considered recreation under the statute. She

contended, however, that when injured she was not playing golf but merely walking

across a room indoors. Id. at 816. The court disagreed, noting “[w]hile Homoky may not

have been swinging her club or walking outdoors in-between holes on the golf course,

what she was doing when she was injured [while walking through the club house]

was . . . related to the activity of playing golf.” Id. at 817.




___________________
would be liable under [the tort claims act], [the recreational use statute] controls.”); TEX. CIV. PRAC. & REM.
CODE ANN. § 75.003(g) (companion statute containing same directive).

                                                      6
        Similarly, this court found that a suit in which parents alleged their child was

burned by sun-heated playground equipment asserted a claim subject to the

recreational use statute. City of Lubbock v. Rule, 68 S.W.3d 853, 858 (Tex. App.—

Amarillo 2002, no pet.), impliedly overruled in part on other grounds by Shumake, 199

S.W.3d 270. We found the family’s visit to the city park was “akin to ‘picknicking’” and

thus was included within the category of an activity associated with enjoying nature or

the outdoors. Id.; see TEX. CIV. PRAC. & REM. CODE ANN. § 75.001(3)(L) (including such

activity within the definition of recreation).


        In Ferguson, 2014 Tex. App. LEXIS 1299, at *14, the plaintiff spent the night on

her family’s sailboat, planning to participate in a boat parade the next day.                      In the

morning, she walked to the marina’s bathroom facility to take a shower. She slipped

and fell on the pier as she walked back to the sailboat from the bathroom. Id. at *2.

Rejecting the plaintiff’s contention that she was not engaged in recreation when she fell

but merely was walking back to her boat, the court held her use of the marina’s shower

facilities was “an inseparable part” of her activity of camping overnight in the boat, and a

part of her “broader boating-camping activities.” Id. at *14.


        In the Texas Supreme Court’s recent analysis of the recreational use statute in

Univ. of Tex. at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015), two members of the

court expressed a view that might call for a more narrow or precise evaluation of what

E.L. was doing at the time of her injuries. Id. at 57-59 (Guzman, J., concurring).3 Even

under those justices’ analysis, however, we would conclude that E.L. was engaged in

        3
           Justice Willett joined Justice Guzman’s concurring opinion. Id. We recognize the opinions in
Williams focus on the application of subpart (L) of section 75.001(3), but we find the justices’ discussion
instructive in our consideration of the breadth to be given an activity like swimming.

                                                    7
an activity closely related to the recreational activity of swimming as she sat at the

picnic table during the mandatory swim break.


          We thus find E.L. was engaged in the recreational activity of swimming when she

was injured even though she was not in the water at the time. E.L. was swimming

before the mandatory swim break, left the water only at the lifeguard’s instruction and

was injured during the break while she sat with other swimmers at a picnic table on pool

premises. As noted, the statute names swimming among recreational activities, and

defines “premises” to include “equipment attached to or located on the land.” TEX. CIV.

PRAC. & REM. CODE ANN. § 75.001(2); see City of Bellmead, 89 S.W.3d at 615 (noting

statute “specifically contemplates recreation related to structures on the property”);

Homoky, 294 S.W.3d at 816 (the recreational use statute contemplates recreation not

only when the person is actively engaged in recreation but also when the person is on

the “premises” or journeying to and from the recreational area). The City owed E.L. the

duty not to injure her through gross negligence. Ferguson, 2014 Tex. App. LEXIS 1299,

at *16.


          We turn to the question whether there is evidence to support a conclusion the

City was grossly negligent by leaving the boards on top of the lockers.            Gross

negligence involves two components: (1) viewed objectively from the actor's standpoint,

the act or omission complained of 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 proceed in

conscious indifference to the rights, safety, or welfare of others. Miranda, 133 S.W.3d at

225 (citing Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245, 246 (Tex. 1999)).

                                             8
      With respect to the test’s first component, the Texas Supreme Court has

explained that grossly negligent conduct must impose an objectively higher risk than

ordinary negligence. Wal-Mart Stores v. Alexander, 868 S.W.2d 322, 326 (Tex. 1993)

(citing Williams v. Steves Indus., Inc., 699 S.W.2d 570, 573 (Tex. 1985)). Referring to

the “extreme risk” component of gross negligence, the court in Alexander quoted

Prosser and Keeton’s reference to “a known or obvious risk that was so great as to

make it highly probable that harm would follow . . . .” Alexander, 868 S.W.2d at 326

(quoting Prosser and Keeton, Law of Torts, § 34, at 213 (5th ed. 1984)).


      The court also has noted that every negligence or gross negligence case

involves an allegation of injury, and that “[d]etermining whether an act or omission

involves extreme risk or peril requires an examination of the events and circumstances

from the viewpoint of the defendant at the time the events occurred, without viewing the

matter in hindsight.” Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).


      So far as this record shows, the boards had remained atop the lockers, without

falling, since they were left there six years before. In Alexander, the evidence showed

Wal-Mart’s store management knew of the existence of a ridge at the base of a

concrete ramp before Mrs. Alexander tripped on the ridge and fell, breaking her hip.

868 S.W.2d at 323-24. The store’s sales manager had stumbled over the ridge two

months before, and he considered it a “serious safety hazard.” He told the store’s

general manager about the problem, but the general manager did not consider it a

safety hazard before Mrs. Alexander fell “because no one had ever fallen.” Id. at 324.

The court held the record contained no evidence that Wal-Mart’s conduct created an

extreme risk of harm. It noted the store had averaged 50,000 patrons per month in the

                                            9
three months it had been open before Mrs. Alexander fell, that no one had tripped and

fallen over the ridge before her, and that only one person, the sales manager, had as

much as stumbled there. Id. at 327.     We likewise find no evidence the City’s conduct

involved the extreme degree of risk required to demonstrate gross negligence.

Miranda, 133 S.W.3d at 225. To raise a fact issue, Lathem points to the deposition

testimony of the lifeguard Cassidy Lenz. She said she noticed the boards on top when

she cleaned out the lockers every day but “never thought twice about it.” Asked if it

occurred to her that the boards would pose a safety risk, she stated, “I think if I was a

manager, I probably would’ve realized it’s not very safe. But since that wasn’t my job, I

didn’t really consider it.” There is a difference between “not very safe” and a risk so

great as to make it highly probable that harm would follow. See Alexander, 868 S.W.2d

at 326. Moreover, Lenz’s testimony cannot be seen as having any greater tendency to

show an extreme degree of risk than that of the sales manager in Alexander, who

regarded the ridge in the concrete as a “serious safety hazard.” 868 S.W.2d at 324.


      Because there is no evidence of the existence of an extreme degree of risk the

boards would fall and injure someone, it follows the City could not have been

subjectively aware of such a risk but ignored it. See Alexander, 868 S.W.2d at 327

(“[h]aving concluded that there is no evidence on this record of an extreme degree of

risk, we need not and indeed cannot consider the second prong” of the gross

negligence analysis).


      The evidence contains no probative explanation why the boards fell when they

did. There is no testimony from a witness who saw them fall. If there was in existence

at the time the boards fell on E.L. a circumstance that would increase the risk they

                                           10
would fall, this record contains no evidence of it, and certainly contains no evidence the

City was subjectively aware of such a circumstance. See Miranda, 133 S.W.3d at 232

(“with regard to the subjective component of gross negligence, it is the defendant's state

of mind - whether the defendant knew about a peril but nevertheless acted in a way that

demonstrated that he did not care about the consequences - that separates ordinary

negligence from gross negligence) (citing Louisiana-Pacific, 19 S.W.3d at 246-47).


       Because we find the recreational use statute applies and the jurisdictional

evidence does not raise a fact issue regarding the City’s gross negligence, we sustain

the City’s first and second issues.


Use of Tangible Property


       We turn next to Lathem’s claim the City “used” tangible personal property that

caused injury to E.L. A governmental unit in the state is liable for, among other things,

personal injury proximately caused by 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. TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). To state a claim that falls

within the limited waiver of immunity under the Act, Latham must allege that the use of

tangible personal property proximately caused E.L.’s injury. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.021(2).


       “Use” has been defined as “to put or to bring into action or service; to employ for

or apply to a given purpose.” Tex. Dep't of Crim. Justice v. Miller, 51 S.W.3d 583, 588

(Tex. 2001). “Use,” by contrast, does not mean a failure to use or “non-use” of personal

property. Kerrville State Hosp. v. Clark, 923 S.W.2d 582, 585 (Tex. 1996). Our courts

                                           11
have observed that “use” of personal property under section 101.021(2) cannot mean

every form of negligence committed by a governmental unit that happens to involve

personal property in some way because such an application would “expand what the

legislature plainly intended as a limited waiver of immunity into effectively a general

waiver.” Tex. Sch. for the Blind & Visually Impaired v. Dugosh, No. 03-07-00681-CV,

2010 Tex. App. LEXIS 2207, at *34 (Tex. App.—Austin Mar. 26, 2010, pet. denied)

(mem. op.) (citing Clark, 923 S.W.2d at 585); see Dallas Cnty. Mental Health & Mental

Retardation v. Bossley, 968 S.W.2d 339, 343 (Tex. 1998) (also referring to tort claims

act’s “basic purpose of waiving immunity only to a limited degree”).


       It is undisputed the City placed the boards on top of the lockers in 2005 and it is

undisputed they fell on E.L. in 2011. But Lathem did not present evidence showing E.L.

suffered injury from the City’s use of the four boards as the term “use” in section

101.021(2) has been applied.       The evidence shows merely that the boards were

unpacked with the rest of the lockers’ assembly, were not used in the assembly, and

were left lying on the lockers. Nothing shows the City put them into action or service, or

that they were employed for or applied to a given purpose. The boards merely were left

unused.


       In Retzlaff v. Tex. Dep’t of Criminal Justice, 135 S.W.3d 731 (Tex. App.—

Houston [1st Dist.] 2003, no pet.), the inmate plaintiff was injured when, during a ball

game, he fell into a section of the prison’s perimeter fence where the Department had

installed razor wire. The court found that the Department put the wire into service for a

given purpose by placing it along the perimeter fence to deter escapes, and held the

plaintiff had plead a claim for injury caused by a use of tangible personal property. Id. at

                                            12
741. Here, by contrast, the boards left stacked on the lockers were not placed into

service for any purpose. Taking as true all evidence favorable to Lathem, it does not

support a conclusion E.L.’s injuries were proximately caused by the City’s use of

tangible personal property.4 We resolve the City’s third issue in its favor.


                                              Conclusion


        We sustain the City’s first and second issues, finding the recreational use statute

applies to Lathem’s premises defect claim and Lathem failed to raise a fact issue with

regard to the City’s gross negligence. We likewise sustain the City’s third issue on

appeal contending Lathem has failed to raise a fact question concerning her claim that

E.L.’s injuries were proximately caused by the City’s use of tangible personal property.

Accordingly, the trial court lacked subject matter jurisdiction over the action. It is

unnecessary for us to address the City’s fourth issue. We reverse the order of the trial

court and render judgment dismissing the cause for lack of subject matter jurisdiction.




                                                         James T. Campbell
                                                            Justice




        4
            Miranda states that plaintiffs may not “re-cast” a premises defect claim by alleging the
defendant’s failure to act to reduce risks or failure to warn of risks also constitutes a negligent use of
tangible property. 133 S.W.3d at 233. The “re-casting” prohibition sometimes has been applied to cases
similar to this one. See, e.g., Dallas County Hosp. Dist. v. Constantino, No. 05-13-01084, 2014 Tex. App.
LEXIS 8703 (Tex. App.—Dallas Aug. 7, 2014, no pet.) (mem. op.) (hospital room visitor injured by falling
television). The parties do not address the potential applicability of such cases.


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