City of El Paso v. Collins, 440 S.W.3d 879

Background

Six-year-old Jade Collins (non-swimmer) suffered near-drowning injuries at a City of El Paso–owned public pool while in the care of a daycare; water was alleged to be extremely cloudy and pool drains/filtration defective.
Plaintiffs sued the daycare for negligence/gross negligence; the daycare moved to designate the City as a responsible third party; plaintiffs later amended to add the City alleging (1) incorporation of the responsible‑third‑party designation, (2) premises liability, and (3) negligence based on use/misuse of tangible personal property (drain, pump, filtration, water).
The City filed a plea to the jurisdiction challenging each claim; the trial court denied the plea and the City brought an interlocutory appeal under Tex. Civ. Prac. & Rem. Code § 51.014(a)(8).
Key legal context: governmental (sovereign) immunity and the Texas Tort Claims Act (TTCA) limit waivers of immunity to certain categories (including premises liability and injury from use/condition of tangible personal property), modified by the Recreational Use Statute which limits duty to a showing of gross negligence, malicious intent, or bad faith for recreational land uses.
The appellate court reviewed the plea to the jurisdiction de novo, constraining review to subject‑matter jurisdiction issues and to the grounds raised by the City.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plaintiffs may impose liability on City by incorporating daycare’s responsible‑third‑party designation	Incorporation/adoption of daycare’s designation subjects City to liability	A responsible‑third‑party designation does not create liability or waive immunity; it’s procedural only	Reversed dismissal as to that theory — court held designation alone cannot impose liability; plea denied as to other grounds but trial court erred to extent plaintiffs sought to impose liability solely via designation (responsible‑party claim dismissed)
Whether plaintiffs’ premises liability claim waives City’s sovereign immunity (gross negligence; proximate cause)	City maintained/allowed defective drain, cover, filtration and cloudy water; City knew of malfunction; these acts constitute gross negligence causing Jade’s near‑drowning	Pleadings fail to allege gross negligence elements (extreme risk + subjective awareness) and fail to allege proximate causation linking the alleged defect to the near‑drowning	Sustained in part — pleadings insufficient to waive immunity on premises theory; plaintiffs allowed to amend to cure jurisdictional defects; trial court’s denial of plea reversed as to premises liability
Whether plaintiffs’ negligence claim (use/misuse of tangible personal property) waives immunity under TTCA §101.021(2) or is improperly pled as negligent activity	Alleged employees misused pool equipment/water, furnishing defective tangible personal property; negligence claim invokes TTCA respondeat superior waiver	City contended claim is merely premises liability or negligent activity and thus not a valid §101.021(2) waiver	Overruled — court held plaintiffs pleaded negligence based on misuse of tangible personal property (not negligent activity) and §101.021(2) waiver survives; trial court’s denial of plea as to negligence claim affirmed

Key Cases Cited

Reata Construction Corporation v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (sovereign immunity principles and TTCA waiver analysis)
Texas Department of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standard for plea to the jurisdiction and sovereign immunity review)
Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (distinguishing negligent activity from premises defect claims)
DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) (respondeat superior liability for misuse of tangible personal property under TTCA)
Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (elements of premises liability)
State v. Shumake, 199 S.W.3d 279 (Tex. 2006) (duty owed to trespassers and effect of Recreational Use Statute)