Summary
holding that sitting on bleachers at an outdoor baseball stadium and watching state university baseball game was recreation under recreational use statute
Summary of this case from City of Diboll v. LawsonOpinion
No. 10-07-00403-CV
Opinion delivered and filed November 12, 2008.
Appealed from the County Court at Law, Walker County, Texas, Trial Court No. 5113.
Order reversed and case dismissed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
MEMORANDUM OPINION
Thomas Anderson sued Sam Houston State University (SHSU) for injuries he received when he fell off the bleachers while watching a collegiate baseball game at SHSU. The trial court denied SHSU's plea to the jurisdiction, and SHSU brings this interlocutory appeal. See TEX. CIV. PRAC. REM. CODE ANN. § 51.014(a)(8) (Vernon 2008). We will reverse the trial court's order and dismiss the case.
In April of 1998, Anderson went to Huntsville to watch his son play baseball for Southwest Texas State University against SHSU. The game took place at Holleman Field, an outdoor baseball field on SHSU's campus. Anderson chose to sit on the very top row of the bleachers on the visitor's side of the field. The bleacher seating consisted of rows of aluminum seating with an approximately ten-inch panel forming the seat backing joined by a bracket and brace configuration to an approximately ten-inch panel forming the seat bottom. Anderson alleges that the seat backing "gave way" as the result of metal fatigue and caused him to fall approximately six feet off the back row of the bleachers and to sustain a broken arm.
Anderson sued SHSU under the Texas Tort Claims Act, alleging a premises liability claim. See Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3242, 3303 (current version at TEX. CIV. PRAC. REM. CODE ANN § 101.022 (Vernon Supp. 2008)). SHSU filed a plea to the jurisdiction and motion to dismiss, asserting that (1) Anderson's claims fall under the Recreational Use Statute, and his failure to allege or produce evidence of grossly negligent, willful, or wanton conduct by SHSU's employees deprives the trial court of subject-matter jurisdiction; and (2) Anderson cannot produce evidence that SHSU had actual or constructive knowledge that its bleacher was in the allegedly dangerous condition. SHSU reasserts those two issues in this appeal.
"[S]overeign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued unless the state consents to suit." Tex. Dep't Parks Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). The Tort Claims Act includes "a limited waiver of the state's immunity from suits alleging personal injury or death caused by premises defects." State v. Shumake, 199 S.W.3d 279, 283 (Tex. 2006). It "further modifies a governmental unit's waiver of immunity from suit by imposing the limitations of liability articulated in the recreational use statute." Miranda, 133 S.W.3d at 225; see TEX. CIV. PRAC. REM. CODE ANN. § 101.058 (Vernon 2005) ("To the extent that Chapter 75 limits the liability of a governmental unit under circumstances in which the governmental unit would be liable under [the Tort Claims Act], Chapter 75 controls.").
"The recreational use statute recognizes that landowners or occupiers, who open their property to the public for recreational purposes, provide a public benefit." Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 658 (Tex. 2007). "To encourage this use, the statute limits the liability of the 'owner, lessee, or occupant of real property' who gives permission to another to enter the premises for recreation." Id.; see TEX. CIV. PRAC. REM. CODE ANN. § 75.002(c) (Vernon Supp. 2008). "When injury or death results on state-owned, recreational land," the statute limits the state's duty for premises defects to that "owed by a landowner to a trespasser." Shumake, 199 S.W.3d at 283; see TEX. CIV. PRAC. REM. CODE ANN. §§ 75.002, 75.003(g), 101.058 (Vernon 2005 Supp. 2008). "The limited duty owed a trespasser is not to injure that person willfully, wantonly, or through gross negligence." Miranda, 133 S.W.3d at 225.
Whether a court has subject matter jurisdiction is a question of law that we review de novo. Miranda, 133 S.W.3d at 226. If a plea to the jurisdiction challenges the pleadings, "we determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause." Id. "We construe the pleadings liberally in favor of the plaintiffs and look to the pleaders' intent." Id. If a plea "challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised." Id. at 227. "[W]e take as true all evidence favorable to the nonmovant," indulging every reasonable inference and resolving any doubts in the nonmovant's favor. Id. at 228.
The controlling question in SHSU's first issue is whether the Recreational Use Statute applies. The parties agree that the bleachers were a "structure" for purposes of the statute's application. See TEX. CIV. PRAC. REM. CODE ANN. § 75.001(2) (Vernon Supp. 2008). Where they disagree is whether Anderson was engaged in "recreation."
The statute, as it existed when Anderson was injured, itemized a number of activities as recreation, such as: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, cave exploration, waterskiing and other water sports, "any other activity associated with enjoying nature or the outdoors," and indoor hockey or skating at a municipally owned or operated facility. Act of May 15, 1989, 71st Leg., R.S., ch. 736, § 1, 1989 Tex. Gen. Laws 3299; Act of April 24, 1997, 75th Leg., R.S., ch. 56, § 1, 1997 Tex. Gen. Laws 124; Act of June 18, 1999, 76th Leg., R.S. ch. 734, § 1, 1999 Tex. Gen. Laws 3345 (current version at TEX. CIV. PRAC. REM. CODE ANN. §§ 75.001(3)(A)-(P), 75.002(e) (Vernon Supp. 2008)). Our focus is on what activity Anderson was engaged in when he was injured. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002). He was sitting outdoors on bleachers while watching a baseball game. Therefore, the question is whether sitting outdoors on bleachers while watching a baseball game is the type of activity that the Legislature intended to include as recreation under the Recreational Use Statute. Id.
In Torres, the plaintiff was sitting on a swing while watching a softball game at a municipal softball complex, and she was injured when the swing broke. Id. at 612; Torres v. City of Bellmead, 40 S.W.3d 662, 663 (Tex.App.-Waco 2001), rev'd, 89 S.W.3d 611 (Tex. 2002). In determining that the plaintiff's sitting on a swing is recreation, the supreme court focused only on the plaintiff's swing-sitting. Torres, 89 S.W.3d at 614-15. It did not factor in her purpose for sitting on the swing — to watch a softball game. We believe that the same result is warranted in this case.
Anderson is correct that the Legislature included a list of specific activities as recreation and that watching competitive sports outdoors is not one of them. But the Legislature included "any other activity associated with enjoying . . . the outdoors," and that broad language evinces an intent to include myriad other activities as recreation. See Kopplin v. City of Garland, 869 S.W.2d 433, 441 (Tex.App.-Dallas 1993, writ denied) ("recreation definitions found in section 75.001(3) of the Code are not exclusive and do not exhaust the class"); Martinez v. Harris County, 808 S.W.2d 257, 259 (Tex.App.-Houston [1st Dist.] 1991, writ denied) (same), overruled on other grounds by City of Dallas v. Mitchell, 870 S.W.2d 21 (Tex. 1994).
Courts have found a number of unlisted activities to be recreation. E.g., Torres, 89 S.W.3d at 615 (sitting on a swing at city softball complex); City of Edinburg v. Vasquez, 2005 WL 3312976, at *2 n. 7 (Tex.App.-Corpus Christi Dec. 8, 2005, no pet.) (mem. op.) (using playground equipment in city park); City of Galveston v. Garza, 2003 WL 21994741, at *1 (Tex.App.-Waco Aug. 20, 2003, pet. denied) (mem. op.) (acknowledging that parking or driving on pier was recreational); Garcia v. City of Richardson, 2002 WL 1752219 (Tex.App.-Dallas July 30, 2002, pet. denied) (participating in informal soccer game while attending picnic and baby shower at city park); City of Lubbock v. Rule, 68 S.W.3d 853, 858 (Tex.App.-Amarillo 2002, no pet.) ("That journeying to a park to enjoy its facilities and playground equipment is akin to "picnicking" . . . and within the category of an 'activity associated with enjoying nature or the outdoors' cannot reasonably be disputed."), overruled in part on other grounds by State v. Shumate, 199 S.W.3d 279 (Tex. 2006); Flye v. City of Waco, 50 S.W.3d 645, 647 (Tex.App.-Waco 2001, no pet.) (acknowledging that use of playground equipment, a swing, at city park was within statutory definition of recreation); Kopplin, 869 S.W.2d at 441 (playing on playground equipment on city playground was "recreational activity" contemplated under recreational use statute); Martinez, 808 S.W.2d at 259 (swinging on swing-set in county park was "recreational activity" contemplated under recreational use statute).
The definition of "recreation" is broad as well:
1. refreshment by means of some pastime, agreeable exercise, or the like
2. a pastime, diversion, exercise or other resource affording relaxation and enjoyment
WEBSTER'S UNABRIDGED DICTIONARY 1613 (Random House 2001). And "pastime" is defined as "something that serves to make time pass agreeably; a pleasant means of amusement, recreation, or sport." Id. 1419.
We hold that Anderson's sitting on bleachers at an outdoor baseball stadium and watching baseball is within the type of activity "associated with enjoying . . . the outdoors" and is a form of recreation under section 75.001(3)(L).
Because the recreational use statute serves to limit liability under the Tort Claims Act for a premises liability claim, Anderson was required to state his cause of action in terms of gross negligence on the part of SHSU. See TEX. CIV. PRAC. REM. CODE ANN. §§ 75.003(g), 101.022, 101.058; see also Miranda, 133 S.W.3d at 225. Because he failed to do so, his claim fails to affirmatively demonstrate the trial court's jurisdiction over his cause of action. See Miranda, 133 S.W.3d at 226. Accordingly, the trial court erred in overruling SHSU's plea to the jurisdiction and in denying SHSU's motion to dismiss. We sustain issue one and need not address issue two.
We reverse the trial court's order overruling SHSU's plea to the jurisdiction and denying SHSU's motion to dismiss. Anderson's action against SHSU is dismissed for lack of subject-matter jurisdiction. TEX. R. APP. P. 43.2(c).