347 S.W.3d 452
Tex. App.2011Background
- Patrick visited the City-owned Dallas Zoo with her mother and grandchildren and tripped on a curb.
- She asserted premises liability, general negligence, negligence per se, and a Recreational Use Statute claim under the Texas Tort Claims Act.
- The City moved for plea to the jurisdiction, asserting immunity and lack of standing; it attached photos, deposition excerpts, and affidavits.
- Patrick argued the City had waived immunity; the trial court denied the plea, and the City appealed interlocutorily.
- The court addresses immunity, the duty standards for premises liability, and the applicability of the Recreational Use Statute and TAS-based negligence per se claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Premises liability jurisdiction | Patrick paid for use via a membership; City liable as owner of premises. | Zoo entry implicates immunity; only gross negligence can waive under recreation. | Trial court lacked jurisdiction; premises liability barred. |
| General negligence viability | General negligence pled to allege inspection/warning failures. | Claims are essentially premises liability and thus barred by immunity. | Pleadings fail; no viable general negligence claim. |
| Negligence per se viability | Cites TAS § 4.7.4 to show statutory violation and duty. | Patrick is not within the protected class and lacks standing. | Statutory violation not applicable; no standing; negligence per se sustained against Patrick. |
| Recreational Use Statute applicability | Zoo visit constitutes recreation under § 75.002(f). | Recreation limits the duty to that owed to trespassers; gross negligence required to waive immunity. | Patrick engaged in recreation; gross negligence shown insufficient; immunity not waived. |
Key Cases Cited
- Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547 (Tex.2000) (plea to jurisdiction is a dilatory measure)
- City of Galveston v. State, 217 S.W.3d 466 (Tex.2007) (governmental immunity when performing governmental functions)
- Texas Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex.2004) (waiver under Tort Claims Act and Recreational Use Statute; gross negligence standard)
- State v. Shumake, 199 S.W.3d 279 (Tex.2006) (gross negligence requires actual awareness of extreme risk)
- Trevino v. Lightning Laydown, Inc., 782 S.W.2d 946 (Tex.App.-Austin 1990) (gross negligence not a separate cause of action)