OPINION
No. 04-10-00575-CV
CITY OF SAN ANTONIO,
Appellant
v.
Arnold and Janie VASQUEZ, Mark Unger, Kim and Robert Frame,
Appellees
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-08135
Honorable Michael Peden, Judge Presiding
Opinion by: Sandee Bryan Marion, Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: March 16, 2011
REVERSED AND RENDERED
This is an accelerated appeal from the trial court’s denial of the City of San Antonio’s
plea to the jurisdiction. We reverse the trial court’s order and render a dismissal of appellees’
claims against the City.
04-10-00575-CV
DISCUSSION
Arnold Vasquez, Mark Unger, and Kim Frame were all injured, on different dates, while
riding their bicycles on a bridge along the Mission Trails Phase 1 Bicycle Path. 1 Arnold and his
wife, Mark, and Kim and her husband all filed suit against multiple defendants, including the
City of San Antonio. The plaintiffs, who are all appellees in this appeal, alleged the City
possessed the property in question and either owned, controlled, occupied, or maintained the
premises located at Mission Trails Phase 1 Bicycle Path as a public bike path. The plaintiffs
alleged the City owed a duty to provide safe surroundings to those people invited to the premises
to conduct business; the City breached this duty by failing to warn or make the dangerous
condition safe for invited persons; and the City breached its duty to inspect the premises to
discover defects on the bridge, along with construction defects caused by contractors and
subcontractors. The City filed its plea to the jurisdiction arguing it was entitled to the protections
provided by the Recreational Use Statute. The trial court denied the plea and this appeal ensued.
ANALYSIS
Under the Recreational Use Statute, if the City “gives permission to another to enter the
premises for recreation,” the City “does not: (1) assure that the premises are safe for that
purpose; (2) owe to the person to whom permission is granted a greater degree of care than is
owed to a trespasser on the premises; or (3) assume responsibility or incur liability for any injury
to any individual or property caused by any act of the person to whom permission is granted.”
TEX. CIV. PRAC. & REM. CODE ANN. § 75.002(c) (West Supp. 2010). The statute defines
“premises” to include “land, roads, water, watercourse, private ways, and buildings, structures,
machinery, and equipment attached to or located on the land, road, water, watercourse, or private
1
The Mission Trail stretches nine miles along the San Antonio River, with The Alamo being the northernmost of the
missions. Visitors may drive the entire San Antonio Mission Trail or travel along a hike-and-bike trail.
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way.” Id. § 75.001(2). “Recreation” is defined to include “an activity such as . . . bicycling.”
Id. § 75.001(3)(M). However, under subsection (c), the statute “shall not limit the liability of an
owner, lessee, or occupant of real property who has been grossly negligent or has acted with
malicious intent or in bad faith.” Id. § 75.002(d).
Thus, the Recreational Use Statute, when applicable, “raises the burden of proof [in a
premises liability case] by classifying the recreational user of [government]-owned property as a
trespasser and requiring proof of gross negligence, malicious intent, or bad faith” on the part of
the governmental unit. State v. Shumake, 199 S.W.3d 279, 281 (Tex. 2006). A landowner has
no duty to warn or protect trespassers from obvious defects or conditions. Id. at 288. “[T]he
owner may assume that the recreational user needs no warning to appreciate the dangers of
natural conditions, such as a sheer cliff, a rushing river, or even a concealed rattlesnake.” Id.
“But a landowner can be liable for gross negligence in creating a condition that a recreational
user would not reasonably expect to encounter on the property in the course of the permitted
use.” Id. Gross negligence requires that the landowner be subjectively aware of, and
consciously indifferent to, an extreme risk of harm. Id.; see also TEX. CIV. PRAC. & REM. CODE
§ 41.001(11)(B) (West 2008).
Whether a court has subject-matter jurisdiction is a question of law. Tex. Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). A plea to the jurisdiction can make
two types of challenges: a challenge to the existence of jurisdictional facts or a challenge to the
sufficiency of the pleadings. Id. at 226-27. Here, in its plea to the jurisdiction, the City asserted
“Plaintiffs have failed to plead and cannot prove the City of San Antonio acted willfully,
wantonly or with gross negligence with respect to any of the Plaintiffs.” The City attached no
affidavits or other evidence to its plea. After the City filed its plea, the plaintiffs did not amend,
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or seek to amend, their petition to allege gross negligence. Nor did the plaintiffs file any
response to the plea. The docketing statement filed in this appeal indicates the hearing on the
plea took approximately twenty minutes and it was not recorded. Therefore, with no evidence
presented on the issue of jurisdiction it appears the trial court based its order on the sufficiency
of the plaintiffs’ fifth amended petition.
When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has
alleged facts that affirmatively demonstrate the trial court’s jurisdiction to hear the cause. Id.
Whether a plaintiff has alleged such facts is a question of law reviewed de novo. Id. When 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 their intent. Id. If the pleadings do not
contain sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not
affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading
sufficiency and the plaintiffs should be afforded the opportunity to amend. Id. at 226-27. If the
pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be
granted without allowing the plaintiffs an opportunity to amend. Id.
The plaintiffs’ allegations against the City are contained in a section entitled “Liability of
[the City] Under General Negligence Theory.” (emphasis added). In their fifth amended
petition, the plaintiffs alleged the City possessed the property in question and either owned,
controlled, occupied, or maintained the premises located at Mission Trails Phase 1 Bicycle Path
as a public bike path. The plaintiffs also alleged the bike path near Espada Dam is listed on the
“recommended bicycle trails of Bexar County” and “is open to the public, and the public is
encouraged to use the facility.” The petition alleges Arnold, Mark, and Kim as invitees were
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injured on different dates, but all in the same manner: they fell from their bikes when the front
tire of the bike fell into a long groove that was left open and unprotected by a county road repair
employee while creating an expansion joint on the bridge over the dam. The petition alleges the
City “had knowledge of the dangerous condition and failed to instruct the contractor to perfect
the dangerous area for access by the public.” The petition also alleges the long groove was not
visible to the cyclists and there were no warning signs left by the road repair employees.
In order to establish jurisdiction, the plaintiffs had to allege that their injuries were the
result of the City’s gross negligence, malicious intent, or bad faith. Our review of their petition
reveals no such allegation. We conclude the plaintiffs did not, even when we read their petition
liberally, meet their burden to assert any claim, or allege any fact, affirmatively establishing the
trial court’s subject-matter jurisdiction. They did not seek leave to amend their petition and
alleged no facts in the record that could establish jurisdiction with respect to their claims of
general negligence. Accordingly, we reverse the trial court’s order denying the plea to the
jurisdiction and render judgment dismissing the plaintiffs’ claims against the City.
Sandee Bryan Marion, Justice
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