the City of Dalhart, Texas v. Carol Lathem, as Next Friend of E. L., a Minor
476 S.W.3d 103
| Tex. App. | 2015Background
- Eight-year-old E.L. paid to swim at the City of Dalhart public pool; during a lifeguard-mandated 15-minute break she sat at a picnic table adjacent to a locker unit.
- Four six-foot composite boards (left on top of the lockers when assembled in 2005) fell and struck E.L.’s lower legs and ankles, causing injury.
- Appellee Lathem (next friend) sued the City for premises defect, injury from condition/use of tangible personal property, and alternatively under the recreational-use statute; the City filed a plea to the jurisdiction asserting sovereign immunity.
- The trial court denied the plea; the City appealed interlocutorily under section 51.014(a)(8).
- The appellate court considered (1) whether the recreational-use statute applied (reducing the duty to gross negligence), (2) whether evidence supported gross negligence, and (3) whether the City’s placement/use of the boards constituted a "use" of tangible personal property under the Tort Claims Act.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the recreational-use statute applies to E.L. while she sat during a mandatory pool break | Lathem: E.L. was not "engaged in recreation" when injured because she was sitting at the lifeguard’s instruction and not actively swimming | City: E.L. was on pool premises engaged in activity related to swimming; statute applies | Held: Statute applies — sitting during the mandatory break was part of the recreational activity of swimming |
| Whether evidence raised fact issue of City gross negligence (required if recreational-use statute applies) | Lathem: Leaving heavy boards atop lockers for years showed gross negligence and subjective indifference | City: No evidence of an extreme degree of risk or subjective awareness; boards had sat for six years without incident | Held: No evidence of the extreme risk or subjective awareness required for gross negligence; claim fails |
| Whether the City’s conduct constituted a "use" of tangible personal property under the Tort Claims Act | Lathem: The boards were personal property of the City and their presence caused the injury, so the City used tangible property | City: The boards were unused and merely left stacked; not put into service or employed for a purpose, so not a "use" | Held: No evidence the City "used" the boards as contemplated by section 101.021(2); claim fails |
Key Cases Cited
- Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (standards for reviewing governmental plea to jurisdiction and limits of waiver under Tort Claims Act)
- Wal-Mart Stores v. Alexander, 868 S.W.2d 322 (Tex. 1993) (gross negligence requires objectively extreme risk beyond ordinary negligence)
- City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. 2002) (recreational-use statute reduces landowner duty to willful/wanton or gross negligence)
- Univ. of Tex. at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015) (interpretive guidance on scope of "recreation" under recreational-use statute)
- Kerrville State Hosp. v. Clark, 923 S.W.2d 582 (Tex. 1996) ("use" of personal property under the Tort Claims Act requires putting property into service)
- County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002) (enumeration of Tort Claims Act waivers)
- Louisiana-Pacific Corp. v. Andrade, 19 S.W.3d 245 (Tex. 1999) (discusses subjective awareness element of gross negligence)
- Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) (gross negligence analysis requires evaluating defendant's viewpoint at the time of conduct)