                                                                                ACCEPTED
                                                                            04-15-00254-CV
                                                                FOURTH COURT OF APPEALS
                                                                     SAN ANTONIO, TEXAS
                                                                        6/8/2015 6:54:08 PM
                                                                             KEITH HOTTLE
                                                                                     CLERK

                        NO. 04-15-00254-CV
__________________________________________________________________
                                                    FILED IN
                                             4th COURT OF APPEALS
                  IN THE COURT OF APPEALS     SAN ANTONIO, TEXAS
              FOURTH COURT OF APPEALS DISTRICT
                                             06/08/15 6:54:08 PM
                     SAN ANTONIO, TEXAS        KEITH E. HOTTLE
                                                     Clerk
__________________________________________________________________
 THE CITY OF SAN ANTONIO and SAN ANTONIO RIVER AUTHORITY,
                                                              Appellants
                                V.
                       OSVALDO PERALTA,
                                                                Appellee
__________________________________________________________________
                       BRIEF OF APPELLANT
__________________________________________________________________
                                     THE CITY OF SAN ANTONIO
                                     Martha G. Sepeda
                                     Acting City Attorney
                                     State Bar No. 13143100
                                     Deborah Lynne Klein, Attorney IV
                                     State Bar No. 11556750
                                     Office of the City Attorney
                                     Litigation Division
                                     111 Soledad, 10th Floor
                                     San Antonio, Texas 78205
                                     Deborah.Klein@sanantonio.gov

     ATTORNEYS FOR APPELLANT THE CITY OF SAN ANTONIO

    APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
                  IDENTITY OF PARTIES AND COUNSEL

In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellant presents
the following list of all parties and counsel to the order from which appeal is taken:
1.    Appellants/Defendants Below

      The City of San Antonio
      San Antonio River Authority

2.    Counsel for Appellant, City of San Antonio

      Martha G. Sepeda
      Deborah Lynne Klein
      City of San Antonio
      Office of the City Attorney
      Litigation Division
      111 Soledad Street, 10th Floor
      San Antonio, Texas 78205

3.    Counsel for Appellant, San Antonio River Authority

      Patrick Bernal
      Clarissa Rodriguez
      Denton, Navarro, Rocha, Bernal, Hyde & Zech
      2217 N. Main
      San Antonio, Texas 78212

4.    Appellee/Plaintiff Below

      Osvaldo Peralta




                                          i
5.   Counsel for Appellee

     Corbin L Snow III
     Snow and Laurel, L.L.P.
     310 W. Sunset
     San Antonio, Texas 78209




                                ii
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ...................................................................................... iii
INDEX OF AUTHORITIES ................................................................................. iv
STATEMENT OF THE CASE ............................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT ........................................ vii
ISSUE PRESENTED ........................................................................................... viii
STATEMENT OF FACTS ......................................................................................1
SUMMARY OF THE ARGUMENT .....................................................................3
ARGUMENT AND AUTHORITIES .....................................................................3
  I. The City of San Antonio Retains Its Sovereign Immunity Absent Clear
  and Unambiguous Waiver....................................................................................3
  II.      Peralta’s Recovery is Precluded by the Texas Recreational Use Statute
           ……………………………………………………………………………..6
     A. Peralta’s Claims are Governed by the Limitations on Waiver of
     Immunity set forth in the Recreational Use Statute .......................................6
     B. Peralta failed to plead facts and/or offer evidence to establish willful or
     wanton conduct or gross negligence by the City. .........................................10
PRAYER .................................................................................................................13
CERTIFICATE OF SERVICE ............................................................................15




                                                           iii
                                   INDEX OF AUTHORITIES

Cases
City of Fort Worth v Crockett
 142 S.W.3d 550, (Tex. App. – Fort Worth 2004, pet. denied). ..........................7, 9

City of Plano v Homoky
 294 S.W.3d 809 (Tex. App. – Dallas, no pet.). ...................................... 10, 12, 15

City of San Antonio v Vasquez
 340 S.W.3d 844 (Tex. App. – San Antonio, 2011) ..........................................9, 10

City of Waco v Kirwan,
 298 S.W.3d 618 (Tex. 2009). ..............................................................................13

Harris County v Sykes
 136 S.W. 635 (Tex. 2004); .....................................................................................4

Lewis v City of Fort Worth
 126 Tex. 458, 89 S.W.2d 975 (1936) .....................................................................5

Liberty Mutual Ins. Co. v Garrison Contractors, Inc.
  966 S.W. 2d 482 (Tex. 1998) ................................................................................8

National Liability & Fire Ins. Co. v Allen
 15 S.W.3d 525 (Tex. 2000)....................................................................................8

Perkins v State
 367 S.W. 140 (Tex. 1963)......................................................................................8

Sam Houston State Univ. v Anderson
 2008 W.L. 4901233, (Tex. App. – Waco, Nov. 12, 2008, no pet.)(mem. op.) ....16

Texas Dep’t Parks & Wildlife v Miranda
 133 S.W.3d 217 (Tex. 2004) ........................................................................ 3, 4, 7


                                                       iv
Tooke v City of Mexia
 197 S.W.3d 325 (Tex. 2006). .............................................................................4, 5

West v City of Crandall
 130 S.W.3d 784 (Tex. App. – Dallas 2004, no pet.) ............................................13
Statutes
TEX. CIV. PRAC. & REM. CODE § 75.001........................................................... 5, 7, 9
TEX. CIV. PRAC. & REM. CODE §75.002........................................................ 1, 5, 7, 8
TEX .CIV. PRAC. & REM. CODE § 75.003....................................................................5
TEX. CIV. PRAC. & REM. CODE §101.001...................................................................4
TEX. CIV. PRAC. & REM. CODE §101.021...................................................................5
TEX. CIV. PRAC. & REM. CODE § 101.0215............................................................4, 5
TEX. CIV. PRAC. & REM. CODE §101.022...................................................................5
TEX. CIV. PRAC. & REM. CODE §101.025...................................................................5




                                                      v
                      STATEMENT OF THE CASE

Nature of the Case:   Plaintiff Osvaldo Peralta filed suit against the City of San
                      Antonio and the San Antonio Housing Authority alleging
                      a premises liability claim. (CR 1-4). Plaintiff’s claim
                      arose out of injuries allegedly sustained while cycling on
                      a public bicycle path running alongside the San Antonio
                      River. (CR 2) Plaintiff alleges the path in question is
                      controlled by the City of San Antonio and/or the San
                      Antonio River Authority. (CR 3). Plaintiff sought to
                      recover monetary damages.

Trial Court:          The Honorable Cathy Stryker of the 224th Judicial
                      District Court, Bexar County, Texas, is the presiding
                      judge of the court to which this case was assigned.
                      However, the Honorable Martha Tanner, sitting as a
                      Visiting Judge in the 166th District Court, Bear County,
                      Texas, heard the Plea to the Jurisdiction and signed the
                      Order denying same which is the subject of this appeal.

Trial Court’s         The Trial Court signed an Order denying the City of San
Disposition:          Antonio’s Plea to the Jurisdiction on April 6, 2015(CR
                      255)

Parties in the        The Appellants, City of San Antonio and San Antonio
Court of Appeals:     River Authority, are the Defendants below. The
                      Appellee, Osvaldo Peralta, is the Plaintiff below.

Requested             The City of San Antonio seeks reversal of the Order
Disposition           denying its Plea to the Jurisdiction, coupled with the
From this Court:      grant of its Plea to the Jurisdiction and dismissal of the
                      Plaintiff’s claims against it.




                                      vi
              STATEMENT REGARDING ORAL ARGUMENT

The City of San Antonio believes that its Brief presents a compelling justification
for reversing the trial court’s order denying the City’s Plea to the Jurisdiction.
However, should the Court wish to hear argument of counsel regarding the matters
at issue herein, the City requests that it be allowed to participate in oral argument.




                                         vii
                               ISSUE PRESENTED

Issue No. 1:

Whether the Trial Court erred in denying the City of San Antonio’s Plea to the
Jurisdiction and in refusing to dismiss the underlying action against the City, given
the application of Chapter 75 of the Texas Civil Practice and Remedies Code, i.e.,
the Recreational Use Statute, and the absence of any competent jurisdictional
pleading or evidence supporting Plaintiff’s allegations of willful or wanton behavior
or of gross negligence on the City’s part.

The Appellee alleges injuries sustained while bicycling along a public bike path
allegedly controlled by either Appellant City of San Antonio or Appellant San
Antonio River Authority. Chapter 75 limits the liability of a governmental unit for
injuries on premises it owns, operates, or maintains to persons in recreation on those
premises to liability resulting from acts done willfully, wantonly, or with gross
negligence. Because Chapter 75, by its plain and express language, applies to the
circumstances of this case and because the Appellee failed to proffer any evidence
to support his jurisdictional allegations of willful and wanton behavior on the part of
the City, the Appellee’s suit must be dismissed.




                                          viii
                                 STATEMENT OF FACTS

       This suit arises from injuries sustained by Plaintiff/Appellee Osvalda Peralta

on October 10, 2011 while riding his bicycle on a bike and hike path along the San

Antonio River. (CR 2) Peralta alleges that he was injured when, without warning,

his bike dropped into an uncovered storm sewer drain on the path. (CR 2) This

drain was normally covered by a metal plate, but on the date in question the plate

was missing. (CR 2) On October 8, 2013, Peralta, filed this suit against the City of

San Antonio and San Antonio River Authority. (CR 1-4)

       Both the City of San Antonio (City) and San Antonio River Authority (SARA)

filed answers to the suit and asserted protections of governmental immunity. 1 (CR

5-7, 8-12) On November 11, 2013, the City and SARA filed Pleas to the Jurisdiction,

setting the pleas to be heard November 21, 2013. (CR13-16, 46-55) Based on

Peralta’s admission that the incident occurred on a marked bike and hike trail, the

City asserted that immunity had been waived only for actions of willful, wanton

gross negligence under the provisions of the Texas Recreational Use Statute, TEX.

CIV. PRAC. & REM. CODE §75.002(c) and that Peralta failed to plead any facts

supporting such actions. (CR 13-14)

1
  The City does not concede ownership, operation, maintenance, or control of the premises in
questions. Instead, the City asserts that, assuming the claimants’ allegations in that regard are true,
their claims against the City cannot continue by virtue of the Texas Recreational Use Statute and
must be dismissed.
                                                  1
      In response to the pleas, Peralta filed his First Amended Petition asserting

willful and wanton conduct and gross negligence. (CR 55-62) He further alleged

that after the incident he was approached by an employee of either the City or SARA

who informed him that the stretch of the bike path was to be closed off because of

the missing metal plate and that the problem would be fixed. (CR 58) Peralta also

filed a response to the pleas offering an affidavit setting forth the identical facts as

plead. (CR 63-79) Based on this response, the parties agreed to postpone the hearing

on the pleas until discovery on jurisdictional issues could be conducted.

      On April 29, 2014, Peralta was deposed. In deposition, he was specifically

questioned regarding the statements contained in his affidavit, to which Peralta

stated that he could not testify to that statement. (CR 147, ll. 12-22) The City and

SARA refiled their pleas, offering Peralta’s testimony as evidence on the

jurisdictional question and again asserting its entitlement to dismissal for lack of

jurisdiction. (105-133, 137-153) The matter was heard by the Honorable Judge

Martha Tanner, sitting as a visiting judge. After taking the matter under advisement,

Judge Tanner denied the pleas to the jurisdiction. (CR 255) the City subsequently

filed this appeal.




                                           2
                       SUMMARY OF THE ARGUMENT

      The City is entitled to dismissal of the claims asserted as Peralta has failed to

plead or prove sufficient jurisdictional facts to warrant waiver of governmental

immunity. Specifically, Peralta has alleged that the incidents made the basis of this

suit were incurred while he was cycling on a recognized hike and bike trail. The City

contends that the higher standard of care provided by the Texas Recreational Use

Statute, TEX. CIV. PRAC. & REM. CODE CH. 75, applies, requiring evidence of willful,

wanton or grossly negligent conduct to invoke the Court’s jurisdiction. The City

contends that Peralta failed to plead facts or to present competent evidence to support

jurisdiction. As such, Peralta has failed to establish facts supporting the Trial Court

has jurisdiction over this case and therefore the Plea to the Jurisdiction should have

been granted.


                       ARGUMENT AND AUTHORITIES

I.   The City of San Antonio Retains Its Sovereign Immunity Absent Clear
and Unambiguous Waiver

      “[S]overeign immunity deprives a trial court of subject matter jurisdiction for

lawsuits in which the state or certain governmental units have been sued unless the

state consents to suit.” Texas Dep’t Parks & Wildlife v Miranda, 133 S.W.3d 217,

224 (Tex. 2004). A plea to the jurisdiction seeks to dismiss a case for want of

jurisdiction and, thus, is a proper vehicle to assert a municipality’s immunity from

                                          3
suit. Id. at 226-27. Whether a court has subject matter jurisdiction is a question of

law that appellate courts review de novo. Id. at 226. In reviewing a trial court’s

decision on a plea, appellate courts look to the pleadings to determine if jurisdiction

is proper and whether they allege facts that affirmatively demonstrate the court’s

jurisdiction to hear the cause. Id.

      The City of San Antonio, as a government entity, is entitled to the protections

of sovereign immunity unless the Texas Legislature clearly and explicitly waives

that immunity. Harris County v Sykes, 136 S.W. 635, 638 (Tex. 2004); see also

TEX. CIV. PRAC. & REM. CODE §101.001(3)(B)(defining “governmental unit” to

include cities). Municipal immunity from suit depends, as a preliminary matter,

upon whether the functions in question are governmental or proprietary. Tooke v

City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). Governmental functions, for

which a city is immune from suit and liability, are those involving governmental

matters done for the public’s benefit. Id.; see also TEX. CIV. PRAC. & REM. CODE §

101.0215(a)(providing non-exclusive list of governmental acts for tort claims

purposes). By contrast, a city’s proprietary functions, for which it receives no

protection from suit, are those conducted “in its private capacity, for the benefit only

of those within its corporate limits, and not as an arm of the government.” Tooke,

197 S.W.3d at 343; see also TEX. CIV. PRAC. & REM. CODE §101.0215(b)(providing

non-exclusive list of proprietary acts for tort claims purposes).         Recreational


                                           4
facilities are governmental functions as defined by the Tort Claims Act, as are street

maintenance and design. See TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(3), (4),

(23).; see also Lewis v City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, 978 (1936)

(interpreting “recreation” to have broad meaning); TEX. CIV. PRAC. & REM. CODE

§ 75.001(3)(L).

      As a result, the City of San Antonio can only be liable to the extent its

immunity is waived under the Texas Tort Claims Act and further limited by the

Recreational Use Statute. Under the Texas Tort Claims Act, the government waives

its immunity from suit for “personal injury and death so caused by a condition . . .

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);

see also TEX. CIV. PRAC. & REM. CODE §101.025 (Immunity waived to the extent

provided by the Act). The Act further provides that a governmental unit owes a

claimant in a premises defect case only the duty owed to a licensee. TEX. CIV. PRAC.

& REM. CODE §101.022(a).

      However, the Texas Recreational Use Statute further modifies the duty set

forth in the Tort Claims Act, setting the standard applicable to a governmental unit,

such as a municipality, as requiring willful or wanton conduct or gross negligence.

TEX. CIV. PRAC. & REM. CODE §75.002(f); see also TEX .CIV. PRAC. & REM. CODE §

75.003(g)(“To the extent that this chapter limits the liability of a governmental unit


                                          5
under circumstances in which the governmental unit would be liable under Chapter

101, this chapter controls.”)”

      Thus, the City retains immunity in the absence of allegations of willful or

wanton conduct or gross negligence. Miranda, 133 S.W. 3d at 227-28; see also City

of Fort Worth v Crockett, 142 S.W.3d 550, 553 (Tex. App. – Fort Worth 2004, pet.

denied). (Texas Tort Claims Act limits its waiver of immunity from suit to the extent

that its waiver of immunity from liability is limited by the Recreational Use Statute).

Because the Recreational Use Statute modifies the Texas Tort Claims Act’s waiver

of immunity, it is the proper subject of the City’s plea to the jurisdiction and

interlocutory appeal challenging its denial. Id. at 224-25.

II.   Peralta’s Recovery is Precluded by the Texas Recreational Use Statute

A.  Peralta’s Claims are Governed by the Limitations on Waiver of
Immunity set forth in the Recreational Use Statute

      In its Amended Plea to the Jurisdiction, the City asserted application of the

Texas Recreational Use Statute and requested dismissal given Peralta’s failure to

plead or prove any competent jurisdictional facts to support an allegation of gross

negligence or willful or wanton conduct on the City’s part. (CR 139-140) Peralta

challenged the application of that statute its lower standard of care. (CR 156-157)

       The primary objective in construing a statute is to determine and give effect

to the Legislature’s intent as expressed through the plain language use therein.


                                          6
National Liability & Fire Ins. Co. v Allen, 15 S.W.3d 525, 527 (Tex. 2000). A

court must begin with the plain and common meaning of the statute’s words, viewing

them in context and giving them full effect. Liberty Mutual Ins. Co. v Garrison

Contractors, Inc., 966 S.W. 2d 482, 484 (Tex. 1998). “Every word in a statute is

presumed to have been used for a purpose; and a cardinal rule of statutory

construction is that each sentence, clause and word is to be given effect if reasonable

and possible.” Perkins v State, 367 S.W. 140, 146 (Tex. 1963).

      Texas Civil Practice and Remedies Code Section 75.002(f) states:

      . . . if a person enters premises owned, operated, or maintained by a
      governmental unit and engages in recreation on those premises, the
      government unit does not owe to the person a greater degree of care than is
      owed to a trespasser on the premises.

The Act specifically defines “recreation” to include bicycling. TEX. CIV. PRAC. &

RM. CODE §75.001(3)(M). The Act defines “premises” broadly 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

way.” TEX. CIV. PRAC. & REM. CODE §75.001(2).

      Under the clear and express language of the statute, the Texas Legislature

intended and did include bicycling on a designated cycling path, whether on or off a

roadway, to be a recreational activity to which the Texas Recreational Use Statute

applies. TEX. CIV. PRAC. & REM. CODE §75.001(3)(M); See also City of San



                                          7
Antonio v Vasquez, 340 S.W.3d 844(Tex. App. – San Antonio, 2011), City of Fort

Worth v Crockett, 142 S.W.3d 550, 551-552 (Tex. App. – Fort Worth, pet. denied).

      This Court has previously heard and determined that a designated bike path,

even if on a roadway, is covered by the Recreational Use Statute in City of San

Antonio v Vasquez, 340 S.W.3d 844(Tex. App. – San Antonio, 2011). In Vasquez,

five plaintiff filed suit against the City of San Antonio for injuries suffered while

cycling over a bridge made part of the Mission Trail hike and bike path by the City.

Id. at. 845. This is the identical path at issue in this lawsuit. Id. at fn.1; (CR172).

Finding in favor of the City, the Court applied the trespass standard as provided in

the Recreational Use Statute and determined that the plaintiffs had failed to allege

any gross negligence, malicious intent or bad faith. Id. at. 847.

      Peralta’s pleadings in this case conceded that the incident at issue occurred

while he was cycling on the Mission Trail bike and hike path. The City contends

that the acknowledgement that he was on a designated bike trail previously found by

this court to be subject to the Recreational Use Statute, and engaged in a defined

recreation activity – biking, subject this case to the standard of care of the

Recreational Use Statute.     To avoid dismissal, Peralta needed to allege facts

affirmatively demonstrating that his injuries arose from gross negligence and/or

willful or wanton conduct on the City’s part. TEX. CIV. PRAC. & REM. CODE §

75.002(d); see also City of Plano v Homoky, 294 S.W.3d 809, 817 (Tex. App. –


                                          8
Dallas, no pet.). As will be discussed below, Peralta failed to do so, thus warranting

dismissal for want of jurisdiction.

      In responding to the Plea to the Jurisdiction, Peralta argued that the

Recreational Use Statute does not apply because his personal motivation in using the

path was not “recreational” but was for purposes of transporting him to work. (CR

156) The only authority relied upon is reference to a portion of the definition of

“recreation” contained in the Recreational Use Statute. TEX. CIV. PRAC. & REM.

CODE § 75.001(2)(L)(referencing “any other activity associated with enjoying

nature or the outdoors”). Peralta ignores the definition immediately following,

which specifically defines “recreation” as “biking”, with no limitation as to the

purpose behind the biking. TEX. CIV. PRAC. & REM. CODE § 75.001(2)(M).

      There is nothing in the Recreational Use Statute that limits its protection to

recreational properties only if the intent of the person using the property was to enjoy

the outdoors, even if the specific activity they are engaged in is defined as

“recreation.” In fact, Courts have already determined that the statute applies not only

to persons when actively engaged in recreation, but also when the person is on the

premises or journeying to or from the recreation area. City of Plano v Homoky, 294

S.W.3d 809, 816 (Tex. App. – Dallas 2009, no pet.)

      Applying Peralta’s interpretation, the liability of a government entity relies

solely on the intent of the individual entering the property, not on the purpose for


                                           9
which the property was opened to the public. Thus, a government entity would owe

a lower standard of care to a person hiking across park land to enjoy nature than to

a person hiking across park land as a shortcut to work. If this is true, however, a

government entity, by necessity, would be responsible for maintaining all

recreational lands at the higher standard, thus negating the purpose of the protections

afforded by the Recreational Use Statute. Such an interpretation flies in the face of

basic code construction, which is to give meaning to the Legislature’s intent. In the

present case, Peralta has admitted that at the time of the incident, he was on a bike

path which was an integral part of a bike lane system and that he was cycling. Thus,

the Recreational Use Statue is applicable.

B.   Peralta failed to plead facts and/or offer evidence to establish willful or
wanton conduct or gross negligence by the City.

      Applying the standard of care set forth by the Recreational Use Statute, Peralta

was required to plead facts establishing the City of San Antonio acted in a willful

and wanton manner or with gross negligence such that Peralta incurred injury.

Homoky, 294 S.W.2d at 817. While Peralta plead the magic words, he failed to

plead any facts establishing such behavior on the part of the City and failed to bring

forth any such evidence at the hearing on the plea.

      In applying the Recreational Use Statute, the Texas Supreme Court

acknowledge that, although the standard is referenced as a “trespasser standard,” it


                                          10
is actually a specialized standard of care. City of Waco v Kirwan, 298 S.W.3d 618,

623 (Tex. 2009). Under the statute, landowners must not act with “malicious intent

or in bad faith.” Id. The Court accepted the commonly accepted meaning of “gross

negligence” which is “an act or omission involving subjective awareness of an

extreme degree of risk, indicating conscious indifference to the rights, safety or

welfare of others.” Id., see also West v City of Crandall 130 S.W.3d 784, 787(Tex.

App. – Dallas 2004, no pet.)(two components – act/omission involves extreme risk

and actor had actual, subjective awareness of risk but proceeded in conscious

indifference to rights, safety or welfare of others). Absent allegations of facts

supporting these two components, government immunity is not waived and a trial

court lacks jurisdiction over the claim.

      Peralta has failed to plead facts to support a claim of gross negligence against

the City. Peralta alleged merely that an unknown person, assumed to be an employee

of either the City or SARA, approached him after the incident and stated that the

path would be shut down because he was aware the plate covering the drain was

missing and would be replaced later. (CR 56) These facts do not allege willful or

wanton conduct or gross negligence on the part of the City as they do not assert,

much less establish, any subjective knowledge on the part of the City of any extreme

risk nor any conscious indifference by the City in ignoring such risk. There is no

pleading that the City had any knowledge of the missing plate prior to the incident.


                                           11
      Even assuming for purposes of argument that the pleading does state minimal

jurisdictional allegations, the allegations are not supported by competent evidence.

In response to the City’s Plea to the Jurisdiction, Peralta offered an affidavit

swearing to the facts as alleged in the petition. (CR 73-74) However, during the

course of his deposition, Peralta was questioned as follows:

      Q:    Is that correct what it says in that statement? I’m going to read it. After
            the incident plaintiff was approached by an employee of City of San
            Antonio and/or San Antonio River Authority and was told by the
            employee that he was coming to close off that section of the path
            because he knew the metal plate was missing and they were going to
            fix the problem later. Is that true?
      A:    Well, the last part of the statement I can’t swear to. I just know that he
            said that he was going to – that he was coming to close off the area. I
            don’t know that he mentioned the metal plate or –
      Q:    Okay. Very good, thank you. So you don’t know how long he knew
            that that metal plate was missing?
      A:    No.

(CR 147, ll. 12-25) Peralta further testified that he did not know if the individual

who made these remarks was a SARA employee or a City of San Antonio employee

nor did he have any knowledge of how long prior to the incident the plate was

missing. (CR146, ll. 22-24, CR 148, ll. 9-15)

      In response to the City’s Amended Plea to the Jurisdiction, Peralta offered no

other evidence that the City of San Antonio had any prior knowledge regarding the

missing plate, other than a resubmission of the affidavit previously filed and which

he denied sufficient knowledge of to swear to in deposition. (CR 154-191) There



                                         12
was no pleading or evidence of the City’s subjective knowledge of an extreme risk

or decision to ignore such risk in conscious indifference to the welfare of others.

      Peralta merely alleged that an unknown person, assumed to be an employee

of either the City or SARA, approached him after the incident and stated that the

path would be shut down because he was aware the plate covering the drain was

missing and would be replaced later. These facts do not allege willful or wanton

conduct or gross negligence on the part of the City as they do not assert, much less

establish, any knowledge of the missing plate prior to the incident. As such, the

pleading fails to state a cause of action under the Recreational Use Statute and should

be dismissed. City of Plano v Homoky, 294 S.W.3d at 818; see also Sam Houston

State Univ. v Anderson, No. 10-07-00403-CV, 2008 W.L. 4901233, *3 (Tex. App.

– Waco, Nov. 12, 2008, no pet.)(mem. op.)(holding that because recreational use

statute applied and because claimant failed to state cause of action in terms of gross

negligence, claimant failed to affirmatively demonstrate trial court’s jurisdiction;

plea to the jurisdiction should have been granted).


                                       PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant the City of San

Antonio respectfully requests that this Court reverse the Trial Court’s Order denying

the City’s Plea to the Jurisdiction, grant the City’s Plea to the Jurisdiction, and render



                                           13
a dismissal of Appellees’ claims in the City’s favor. The City also requests such

other and further relief to which it is entitled.

                                  Respectfully submitted,


                                                 THE CITY OF SAN ANTONIO
                                                 Martha G. Sepeda
                                                 Acting City Attorney
                                                 State Bar No. 13143100
                                                 Deborah Lynne Klein, Attorney IV
                                                 State Bar No. 11556750
                                                 Office of the City Attorney
                                                 Litigation Division
                                                 111 Soledad, 10th Floor
                                                 San Antonio, Texas 78205
                                                 Deborah.Klein@sanantonio.gov


                                                 By:/s/Deborah Lynne Klein
                                                    Deborah Lynne Klein




                                            14
                          CERTIFICATE OF SERVICE

I certify that a true copy of the foregoing Brief of Appellant was on this 8th day of
June, 2015, served by electronic service on the following:

Corbin L. Snow, III
Snow & Laurel, LLP
310 West Sunset
San Antonio, Texas 78209

Patrick Bernal
Clarissa M. Rodriguez
Denton, Navarro, Rocha, Bernal
Hyde & Zech
2217 N. Main
San Antonio, Texas 78212

                                               By:/s/Deborah Lynne Klein
                                               Deborah Lynne Klein


                       CERTIFICATE OF COMPLIANCE

In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the Brief of
Appellant, City of San Antonio, contains 3,317 words, not including the caption,
table of contents, index of authorities, statement of issues presented, signature, proof
of service, certificate of compliance and appendix.


                                               By:/s/Deborah Lynne Klein
                                               Deborah Lynne Klein




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