City of El Paso v. Collins
483 S.W.3d 742
| Tex. App. | 2016Background
- On June 13, 2008, six-year-old Jade Collins (non‑swimmer) was on a daycare field trip to a City‑owned pool; she became submerged and was rescued with her hand caught in the pool drain; water was allegedly extremely cloudy.
- The Collins sued the daycare and later amended to add the City of El Paso, asserting (1) premises liability (defective drain/cover/filtration causing entrapment and cloudiness), (2) negligent use/misuse of tangible property (equipment and the water), and (3) a responsible‑third‑party designation (later dismissed).
- The City filed a plea to the jurisdiction asserting governmental immunity under the Texas Tort Claims Act (TTCA) and the Recreational Use Statute; the trial court denied the plea and the City appealed (this is the second interlocutory appeal after Collins I).
- On remand from Collins I, the Collins amended pleadings to allege the City had subjective knowledge (gross negligence standard under the Recreational Use Statute) of (a) suction/entrapping hazard at the drain and (b) filtration failures making water so cloudy that entrapment was concealed; pleadings alleged proximate causation.
- The City did not submit affirmative jurisdictional evidence negating the Collins’ knowledge allegations; the Collins attached police and TDFPS reports and excerpts of employee depositions (some hypothetical) indicating cloudiness, filtration malfunction, and that lifeguards were told to allow swimming despite cloudy water.
- The court in this appeal: (a) affirmed denial of plea as to premises liability (governmental immunity waived under TTCA subject to Recreational Use Statute/gross negligence showing at pleading stage because City never negated knowledge), and (b) reversed/dismissed the negligent‑use claim as not distinct from the premises defect claim and therefore not a separate waiver of immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether pleadings/jurisdictional facts sufficiently allege premises liability (gross negligence) so immunity is waived | Collins pleaded the City had subjective knowledge of an extreme risk (suction + cloudiness), that the hidden suction entrapped Jade, and proximate causation | City argued pleadings remained conclusory and failed to show how City knew; required specific pleaded facts/witnesses or prior incidents | Court: Pleadings sufficient; because City never produced evidence negating City's knowledge, burden never shifted; denial of plea as to premises liability affirmed |
| Whether the City owed a duty despite cloudiness being an open and obvious condition | Collins: Cloudiness concealed a hidden, latent danger (suction) making duty to warn/rectify appropriate | City: Cloudy water is an open, obvious condition negating any duty to warn | Court: Cloudiness alone might be open/obvious, but Collins also alleged a hidden suction hazard; that allegation supports a duty and survives plea at pleading stage |
| Whether defendant presented evidence to shift burden on jurisdictional facts | Collins: City did not present evidence negating knowledge, so Collins was not required to produce proof | City: Collins must plead and prove specific facts showing City’s awareness; attached evidence challenges admissibility and sufficiency | Court: City failed to produce evidence negating knowledge; burden never shifted to Collins; therefore jurisdictional facts as pleaded stand |
| Whether negligent‑use claim under TTCA is a separate valid waiver of immunity apart from premises liability | Collins: Claimed negligent use/misuse of filtration, pump, drain, and water as tangible personal property distinct from premises theory | City: The allegations really attack equipment attached to/part of the premises and thus are premises‑liability in nature subject to Recreational Use Statute | Court: The negligent‑use claim mirrors premises allegations and concerns fixtures/water that constitute the premises; it is not a separate claim — negligent‑use claim dismissed for lack of jurisdiction |
Key Cases Cited
- Miranda v. Texas Dept. of Parks & Wildlife, 133 S.W.3d 217 (Tex. 2004) (governs plea to jurisdiction burden shifting and gross negligence standard under Recreational Use Statute)
- Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006) (sovereign immunity principles and limits on waivers)
- Shumake v. State, 199 S.W.3d 279 (Tex. 2006) (application of Recreational Use Statute; duty on hidden/latent dangers vs open and obvious risks)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (distinguishes premises defect claims from general negligent use claims; substance over labels)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (elements of premises liability: knowledge, failure to exercise care, proximate cause)
- City of El Paso v. Collins, 440 S.W.3d 879 (Tex.App.—El Paso 2013) (Collins I) (prior interlocutory ruling directing amendment to allege subjective awareness and proximate cause)