OPINION
Mаrlene Spencer sued the City of Dallas under the Texas Tort Claims Act. 1 The trial court granted the City’s motion for summary judgment. Spencer contends the trial court erred in granting summary judgment. We affirm the trial court’s judgment.
THE PLEADINGS
Spencer sued the City and other defendants for personal injuries she claims resulted from a fall at Tietze Park, a Dallаs city park. She alleged she tripped and fell on the concrete footing of a park slide. Spencer dismissed all defendants except the City when she filed her first amended original petition.
The City moved for summary judgment. Spencer then filed her first amended original petition and response to the City’s motion for summary judgmеnt.
Spencer’s amended petition alleged a cause of action against the City under the Act. She alleged that: (1) the City owed her a duty of ordinary care because she was an invitee at the time of her fall; (2) her fall was not on a premise; (3) the park was a location owned, managed, or controlled by the City; and (4) the City was negligent because it did not exercise ordinary care. Spencer’s first amended original petition did not include any allegations about the City’s design of either the park or the slide. Spencer’s petition did not *615 allege that the City acted willfully, wantonly, or with gross negligence.
The City’s motion for summary judgment alleged as grounds: (1) the City has sovereign immunity because the design of a public park is a discretionary act; (2) the City owed Spencer the standard of care of a trespasser under chapter 75 of the Texas Civil Practices and Remedies Code, 2 and Spencer did not allege that the City acted willfully, wantonly, or with gross negligence toward her; or, alternatively, (3) Spencer was a licensee under section 101.-022 of the Act, and the only duty the City owed Spencer was to warn of or make safe a dangerous condition actually known to the City.
The trial court granted the City’s motion. The trial court’s order does not state the ground on which the court sustained the City's motion.
SPENCER’S POINT OF ERROR
Spencer asserts the trial court erred in granting the City summary judgment. This point is sufficient to permit Spencer to raise every available legal attack on the summary judgment the trial court rendered.
See Malooly Bros., Inc. v. Napier,
STANDARD OF REVIEW
A. Summary Judgment
The Texas Supreme Court has set the standards we apply in reviewing a trial court’s grant of a summary judgment. As mandated by that court, they are:
1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the nonmovant as true.
3. We must indulge every reasоnable inference in favor of the nonmovant and resolve any doubts in its favor.
See Nixon v. Mr. Property Management Co.,
The summary judgment rule does not provide for a trial by deposition or affidavit. The rule provides a method of summarily ending a case that involves only a question of law and no genuine fact.
See Gaines v. Hamman,
A movant must show its entitlеment to summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of its cause of action or defense as a matter of law.
See Swilley v. Hughes,
To show its right to a summary judgment, the defendant must either disprove an essential element of the plaintiff's cause of action as a matter of law or establish all elements of its defense as a matter of law.
See Gibbs v. General Motors Corp.,
A nonmovant need not answer or respond to a motion for summary judgment to contend on аppeal that the grounds expressly presented by the movant’s motion are insufficient as a matter of law to support summary judgment. However, the
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nonmovant may not raise any other issues as grounds for reversal.
City of Houston,
Except to attack the legal sufficiency of the movant’s grounds for summary judgment, the nonmovant must expressly prеsent to the trial court any reason for avoiding the movant’s entitlement to summary judgment, and the nonmovant must present summary judgment proof when necessary to show a fact issue. The non-movant must expressly present to the trial court in a written answer or response to the motion those issues that would defeat the movant’s right tо summary judgment and, failing to do so, may not later assign them as appellate error. Tex.R.Civ.P. 166a(c);
City of Houston,
B. Competency of Summary Judgment Evidence
Rule 166a(c) of the Texas Rules of Civil Procedure provides in part that a summary judgment may be based on uncontroverted testimonial evidence of an interested witness if the evidence is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted. Tex.R.Civ.P. 166a(c). Rule 166a(f) provides that defects in the form of affidavits or attachments will not be grounds for reversal unless specifically pointed out by objection by an opposing party with opportunity by the other party, but refusal, to amend. Tex. R.Crv.P. 166a(f).
If the nonmovant does not point out to the trial court defects in the form of affidavits or attachments before the trial court renders summary judgment, it waives defects of form.
See Life Ins. Co. v. Gar-Dal, Inc.,
The uncontroverted affidavit of an interested party will support a summary judgment without a controverting affidavit or an attempt by the nonmovant to avail himself of the opportunity to seek a delay to secure affidavits or take depositions сontroverting the facts stated by the interested witness.
See Longoria v. Texaco,
THE SUMMARY JUDGMENT EVIDENCE
A. The City’s Evidence
The City based its motion on the pleadings, excerpts of Spencer’s deposition, and the affidavit of Steven M. Park, superintendent of design and construction of the City’s Parks and Recreation Department. Park bases his affidavit on personal knowledge gained from his position with the City and his review of the City’s records.
Spencer’s deposition reflected she went to Tietze Park with her daughter for recreational purposes. She was helping her daughter and a playmate at the slide. She moved to the left of the slide, fell, and fractured her left hip. She said she fell over a concrete block anchoring the metal support holding the lip at the bottom of the slide. She said she did not pay a fee to enter the park.
Park’s affidavit states that: (1) Tietze Park is a free public park for anyone’s use without the payment of a fee; (2) the park is a recreational park with both active and passive recreation activities; (3) the playground slide is open and obvious to all park users; (4) the City had no notice of any defect in the slide before the date of Spencer’s fall; and (5) there was no record of any previous similar accident at the park.
B. Spencer’s Evidence
Spencer filed a written response to the City’s motion. She incorporated her first amended original petition, all discovery in the case, the City’s motion for summary judgment, and Park’s affidavit. Spencer’s response alleged the existence of issues of material fact about the City’s negligence. *617 Spencer’s response also allеged that Park’s affidavit as to notice only raises a question of fact and was self-serving. Finally, Spencer asserts that because she amended her petition, the City’s summary judgment proof did not negate her most recent pleadings. Spencer did not support her response with controverting affidavits.
STATUTORY BASIS FOR THE CITY’S LIABILITY
Spencer’s first amended original petition alleges a cause of action against the City under the Texas Tort Claims Act. She alleged the City owed her the duty of ordinary care because she was an invitee at the time of her fall; Tietze Park was a location owned, managed, or controlled by the City; and her fall was not on a prеmise. The provisions of the Act limit the City’s liability to Spencer.
A. Condition or Use of Tangible Personal or Real Property
The City can be liable to an individual for personal injury when the injury was caused by a condition or use of tangible personal or real property if the City would, were it a private person, be liable to the claimant according to Texas law. See § 101.021(2) of the Act.
Section 75.002 оf the Texas Civil Practice and Remedies Code establishes the standard of care applicable to section 101.-021(2). This section provides that an owner of real property who gives another permission to enter premises for recreational purposes does not owe that person a grеater degree of care than is owed a trespasser on the premises.
See
Tex.Civ.PRAC. & Rem. Code Ann. § 75.002(2) (Vernon 1986). The landowner owes a trespasser the legal duty not to injure him willfully, wantonly, or through gross negligence.
Weaver v. KFC Management, Inc.,
B. Premise Defect
If a claim arises from a premise defect, the City owes Spencer only the duty that a private person owes to a licensee on private property. See § 101.022(a) of the Act.
The landowner owes a duty to a licensee not to injure him willfully, wantonly, or through gross negligence.
Garcia v. State,
SPENCER’S ARGUMENTS
A. Spencer An Invitee
Spencer contends that she was an invitee. She contends her cause of action did not occur on a premise. She argues that an ordinary negligence standard of care applies to her case. Spencer relies on
City of Baytown v. Townsend,
It is true that a premises owner owes an invitee the duty of reasonable care.
See Adam Dante Corp. v. Sharpe,
Spencer’s reliance on Townsend is misplaced for two reasons. First, the Townsend court observed that the suit was neither prosecuted nor defended on a premise defect theory. The court noted there was *618 no allegation or finding that the protruding bolt that caused the plaintiffs injury was a “premise defect.” In this case, Spencer alleged her fall was not on a premise. The City defended by alleging it had no greater duty to Spencer than that provided in section 101.022 of the Act.
Second, section 75.002(2) of the Texas Civil Practice and Remedies Code did not exist in 1972 when the Townsend claim arose. The prеdecessor statute to chapter 75 of the Texas Civil Practice and Remedies Code was article lb of the Texas Revised Civil Statutes. Article lb(l) provided that the real property owner was liable only for permitting persons to enter the property for purposes of hunting, fishing, and/or camping. See Tex.Rev.Cxv.Stat. Ann. art. lb(l) (Vеrnon 1969) (repealed 1985). As is obvious, article lb(l) was more restrictive than section 75.001 of the Code. See Tex.Civ.Prac. & Rem.Code Ann. § 75.001 (Vernon 1986).
B.No Pleading of Governmental Immunity
Spencer contends the City did not plead governmental immunity, a defense that must be pleaded.
See City of Houston v. Bush,
C.Spencer as a Trespasser
If we accept Spencer’s contention that the location where she fell is not a premise, then section 101.021(2) of the Act governs the City’s liability. The City’s duty to Spencer is no greater degree of care than is owed to a trespasser on the premises.
See
Tex.Civ.PRAC. & Rem.Code Ann. § 75.002(2) (Vernon 1986);
Martinez v. Harris County,
Spencer neither pleaded nor provided any summary judgment evidence of willful, wanton, or grossly negligent conduct by the City. We hold the trial court did not err if it granted the City summary judgment under sections 101.021(2) and 75.-002(2) of the Texas Civil Practice and Remedies Code.
D.Spencer as a Licensee
Spencer argues the City presented no summary judgment proof to negate its liability to Spencer under a licensee standard. We disagree. The issue of whether a condition is a “premise” is one of duty and involves statutory interpretation, a matter for the court to decide.
See State Dept. of Highways & Public Transp. v. Payne,
34 Tex.Sup.Ct.J. 793, 794,
The only other statutory ground available to Spencer is section 101.022(a) of the Act. If we conclude from the summary judgment evidence Spencer’s claim arises from a premise defect, then the City’s duty is that of a private person to a licensee on private property. This duty is not to injure the licensee by willful, wanton, or grossly negligent conduct.
See Payne,
34 Tex.Sup. Ct.J. at 794;
Tennison,
The City’s uncontroverted summary judgment evidence rеflects it had no knowledge of the slide’s alleged dangerous condition. Spencer did not plead or offer any summary judgment evidence that the City engaged in willful, wanton, or grossly negligent conduct. We hold that if the trial court granted the City summary judgment on a licensee standard, it did not err because the City owed Spencer no duty to warn or make the condition safe. This conclusion results because Spencer did not show the City knew of the alleged dangerous condition.
See Tennison,
E.The City’s Affidavit Not Incompetent Summary Judgment Evidence
To conclude, we consider Spencer’s contention that Park’s affidavit was defec
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tive and conclusory, was that of аn interested witness, and could not be readily controverted by Spencer and was therefore insufficient to support the City’s motion. Spencer relies on
Zollar v. Smith,
Moreover, thе record reflects Spencer had more than four months to take depositions or conduct other discovery to controvert Park’s factual statements. She did not file her response to the City’s motion until two days before the summary judgment hearing. Furthermore, Spencer neither filed a controverting affidavit nor sought а delay to obtain such evidence.
See
Tex.R.Civ.P. 166a(g). She did not request a trial amendment to allege willful, wanton, or grossly negligent conduct by the City.
See Galvan v. Public Util. Board,
CONCLUSION
We conclude that the City has met its summary judgment burden and proved there was no genuine issue of material fact. The City proved its entitlement to a judgment as a matter of law.
City of Houston,
We affirm the trial court’s judgment.