ACCEPTED
04-15-00254-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
6/8/2015 6:54:08 PM
KEITH HOTTLE
CLERK
NO. 04-15-00254-CV
__________________________________________________________________
FILED IN
4th COURT OF APPEALS
IN THE COURT OF APPEALS SAN ANTONIO, TEXAS
FOURTH COURT OF APPEALS DISTRICT
06/08/15 6:54:08 PM
SAN ANTONIO, TEXAS KEITH E. HOTTLE
Clerk
__________________________________________________________________
THE CITY OF SAN ANTONIO and SAN ANTONIO RIVER AUTHORITY,
Appellants
V.
OSVALDO PERALTA,
Appellee
__________________________________________________________________
BRIEF OF APPELLANT
__________________________________________________________________
THE CITY OF SAN ANTONIO
Martha G. Sepeda
Acting City Attorney
State Bar No. 13143100
Deborah Lynne Klein, Attorney IV
State Bar No. 11556750
Office of the City Attorney
Litigation Division
111 Soledad, 10th Floor
San Antonio, Texas 78205
Deborah.Klein@sanantonio.gov
ATTORNEYS FOR APPELLANT THE CITY OF SAN ANTONIO
APPELLANT RESPECTFULLY REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellant presents
the following list of all parties and counsel to the order from which appeal is taken:
1. Appellants/Defendants Below
The City of San Antonio
San Antonio River Authority
2. Counsel for Appellant, City of San Antonio
Martha G. Sepeda
Deborah Lynne Klein
City of San Antonio
Office of the City Attorney
Litigation Division
111 Soledad Street, 10th Floor
San Antonio, Texas 78205
3. Counsel for Appellant, San Antonio River Authority
Patrick Bernal
Clarissa Rodriguez
Denton, Navarro, Rocha, Bernal, Hyde & Zech
2217 N. Main
San Antonio, Texas 78212
4. Appellee/Plaintiff Below
Osvaldo Peralta
i
5. Counsel for Appellee
Corbin L Snow III
Snow and Laurel, L.L.P.
310 W. Sunset
San Antonio, Texas 78209
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ......................................................... i
TABLE OF CONTENTS ...................................................................................... iii
INDEX OF AUTHORITIES ................................................................................. iv
STATEMENT OF THE CASE ............................................................................. vi
STATEMENT REGARDING ORAL ARGUMENT ........................................ vii
ISSUE PRESENTED ........................................................................................... viii
STATEMENT OF FACTS ......................................................................................1
SUMMARY OF THE ARGUMENT .....................................................................3
ARGUMENT AND AUTHORITIES .....................................................................3
I. The City of San Antonio Retains Its Sovereign Immunity Absent Clear
and Unambiguous Waiver....................................................................................3
II. Peralta’s Recovery is Precluded by the Texas Recreational Use Statute
……………………………………………………………………………..6
A. Peralta’s Claims are Governed by the Limitations on Waiver of
Immunity set forth in the Recreational Use Statute .......................................6
B. Peralta failed to plead facts and/or offer evidence to establish willful or
wanton conduct or gross negligence by the City. .........................................10
PRAYER .................................................................................................................13
CERTIFICATE OF SERVICE ............................................................................15
iii
INDEX OF AUTHORITIES
Cases
City of Fort Worth v Crockett
142 S.W.3d 550, (Tex. App. – Fort Worth 2004, pet. denied). ..........................7, 9
City of Plano v Homoky
294 S.W.3d 809 (Tex. App. – Dallas, no pet.). ...................................... 10, 12, 15
City of San Antonio v Vasquez
340 S.W.3d 844 (Tex. App. – San Antonio, 2011) ..........................................9, 10
City of Waco v Kirwan,
298 S.W.3d 618 (Tex. 2009). ..............................................................................13
Harris County v Sykes
136 S.W. 635 (Tex. 2004); .....................................................................................4
Lewis v City of Fort Worth
126 Tex. 458, 89 S.W.2d 975 (1936) .....................................................................5
Liberty Mutual Ins. Co. v Garrison Contractors, Inc.
966 S.W. 2d 482 (Tex. 1998) ................................................................................8
National Liability & Fire Ins. Co. v Allen
15 S.W.3d 525 (Tex. 2000)....................................................................................8
Perkins v State
367 S.W. 140 (Tex. 1963)......................................................................................8
Sam Houston State Univ. v Anderson
2008 W.L. 4901233, (Tex. App. – Waco, Nov. 12, 2008, no pet.)(mem. op.) ....16
Texas Dep’t Parks & Wildlife v Miranda
133 S.W.3d 217 (Tex. 2004) ........................................................................ 3, 4, 7
iv
Tooke v City of Mexia
197 S.W.3d 325 (Tex. 2006). .............................................................................4, 5
West v City of Crandall
130 S.W.3d 784 (Tex. App. – Dallas 2004, no pet.) ............................................13
Statutes
TEX. CIV. PRAC. & REM. CODE § 75.001........................................................... 5, 7, 9
TEX. CIV. PRAC. & REM. CODE §75.002........................................................ 1, 5, 7, 8
TEX .CIV. PRAC. & REM. CODE § 75.003....................................................................5
TEX. CIV. PRAC. & REM. CODE §101.001...................................................................4
TEX. CIV. PRAC. & REM. CODE §101.021...................................................................5
TEX. CIV. PRAC. & REM. CODE § 101.0215............................................................4, 5
TEX. CIV. PRAC. & REM. CODE §101.022...................................................................5
TEX. CIV. PRAC. & REM. CODE §101.025...................................................................5
v
STATEMENT OF THE CASE
Nature of the Case: Plaintiff Osvaldo Peralta filed suit against the City of San
Antonio and the San Antonio Housing Authority alleging
a premises liability claim. (CR 1-4). Plaintiff’s claim
arose out of injuries allegedly sustained while cycling on
a public bicycle path running alongside the San Antonio
River. (CR 2) Plaintiff alleges the path in question is
controlled by the City of San Antonio and/or the San
Antonio River Authority. (CR 3). Plaintiff sought to
recover monetary damages.
Trial Court: The Honorable Cathy Stryker of the 224th Judicial
District Court, Bexar County, Texas, is the presiding
judge of the court to which this case was assigned.
However, the Honorable Martha Tanner, sitting as a
Visiting Judge in the 166th District Court, Bear County,
Texas, heard the Plea to the Jurisdiction and signed the
Order denying same which is the subject of this appeal.
Trial Court’s The Trial Court signed an Order denying the City of San
Disposition: Antonio’s Plea to the Jurisdiction on April 6, 2015(CR
255)
Parties in the The Appellants, City of San Antonio and San Antonio
Court of Appeals: River Authority, are the Defendants below. The
Appellee, Osvaldo Peralta, is the Plaintiff below.
Requested The City of San Antonio seeks reversal of the Order
Disposition denying its Plea to the Jurisdiction, coupled with the
From this Court: grant of its Plea to the Jurisdiction and dismissal of the
Plaintiff’s claims against it.
vi
STATEMENT REGARDING ORAL ARGUMENT
The City of San Antonio believes that its Brief presents a compelling justification
for reversing the trial court’s order denying the City’s Plea to the Jurisdiction.
However, should the Court wish to hear argument of counsel regarding the matters
at issue herein, the City requests that it be allowed to participate in oral argument.
vii
ISSUE PRESENTED
Issue No. 1:
Whether the Trial Court erred in denying the City of San Antonio’s Plea to the
Jurisdiction and in refusing to dismiss the underlying action against the City, given
the application of Chapter 75 of the Texas Civil Practice and Remedies Code, i.e.,
the Recreational Use Statute, and the absence of any competent jurisdictional
pleading or evidence supporting Plaintiff’s allegations of willful or wanton behavior
or of gross negligence on the City’s part.
The Appellee alleges injuries sustained while bicycling along a public bike path
allegedly controlled by either Appellant City of San Antonio or Appellant San
Antonio River Authority. Chapter 75 limits the liability of a governmental unit for
injuries on premises it owns, operates, or maintains to persons in recreation on those
premises to liability resulting from acts done willfully, wantonly, or with gross
negligence. Because Chapter 75, by its plain and express language, applies to the
circumstances of this case and because the Appellee failed to proffer any evidence
to support his jurisdictional allegations of willful and wanton behavior on the part of
the City, the Appellee’s suit must be dismissed.
viii
STATEMENT OF FACTS
This suit arises from injuries sustained by Plaintiff/Appellee Osvalda Peralta
on October 10, 2011 while riding his bicycle on a bike and hike path along the San
Antonio River. (CR 2) Peralta alleges that he was injured when, without warning,
his bike dropped into an uncovered storm sewer drain on the path. (CR 2) This
drain was normally covered by a metal plate, but on the date in question the plate
was missing. (CR 2) On October 8, 2013, Peralta, filed this suit against the City of
San Antonio and San Antonio River Authority. (CR 1-4)
Both the City of San Antonio (City) and San Antonio River Authority (SARA)
filed answers to the suit and asserted protections of governmental immunity. 1 (CR
5-7, 8-12) On November 11, 2013, the City and SARA filed Pleas to the Jurisdiction,
setting the pleas to be heard November 21, 2013. (CR13-16, 46-55) Based on
Peralta’s admission that the incident occurred on a marked bike and hike trail, the
City asserted that immunity had been waived only for actions of willful, wanton
gross negligence under the provisions of the Texas Recreational Use Statute, TEX.
CIV. PRAC. & REM. CODE §75.002(c) and that Peralta failed to plead any facts
supporting such actions. (CR 13-14)
1
The City does not concede ownership, operation, maintenance, or control of the premises in
questions. Instead, the City asserts that, assuming the claimants’ allegations in that regard are true,
their claims against the City cannot continue by virtue of the Texas Recreational Use Statute and
must be dismissed.
1
In response to the pleas, Peralta filed his First Amended Petition asserting
willful and wanton conduct and gross negligence. (CR 55-62) He further alleged
that after the incident he was approached by an employee of either the City or SARA
who informed him that the stretch of the bike path was to be closed off because of
the missing metal plate and that the problem would be fixed. (CR 58) Peralta also
filed a response to the pleas offering an affidavit setting forth the identical facts as
plead. (CR 63-79) Based on this response, the parties agreed to postpone the hearing
on the pleas until discovery on jurisdictional issues could be conducted.
On April 29, 2014, Peralta was deposed. In deposition, he was specifically
questioned regarding the statements contained in his affidavit, to which Peralta
stated that he could not testify to that statement. (CR 147, ll. 12-22) The City and
SARA refiled their pleas, offering Peralta’s testimony as evidence on the
jurisdictional question and again asserting its entitlement to dismissal for lack of
jurisdiction. (105-133, 137-153) The matter was heard by the Honorable Judge
Martha Tanner, sitting as a visiting judge. After taking the matter under advisement,
Judge Tanner denied the pleas to the jurisdiction. (CR 255) the City subsequently
filed this appeal.
2
SUMMARY OF THE ARGUMENT
The City is entitled to dismissal of the claims asserted as Peralta has failed to
plead or prove sufficient jurisdictional facts to warrant waiver of governmental
immunity. Specifically, Peralta has alleged that the incidents made the basis of this
suit were incurred while he was cycling on a recognized hike and bike trail. The City
contends that the higher standard of care provided by the Texas Recreational Use
Statute, TEX. CIV. PRAC. & REM. CODE CH. 75, applies, requiring evidence of willful,
wanton or grossly negligent conduct to invoke the Court’s jurisdiction. The City
contends that Peralta failed to plead facts or to present competent evidence to support
jurisdiction. As such, Peralta has failed to establish facts supporting the Trial Court
has jurisdiction over this case and therefore the Plea to the Jurisdiction should have
been granted.
ARGUMENT AND AUTHORITIES
I. The City of San Antonio Retains Its Sovereign Immunity Absent Clear
and Unambiguous Waiver
“[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.” Texas Dep’t Parks & Wildlife v Miranda, 133 S.W.3d 217,
224 (Tex. 2004). A plea to the jurisdiction seeks to dismiss a case for want of
jurisdiction and, thus, is a proper vehicle to assert a municipality’s immunity from
3
suit. Id. at 226-27. Whether a court has subject matter jurisdiction is a question of
law that appellate courts review de novo. Id. at 226. In reviewing a trial court’s
decision on a plea, appellate courts look to the pleadings to determine if jurisdiction
is proper and whether they allege facts that affirmatively demonstrate the court’s
jurisdiction to hear the cause. Id.
The City of San Antonio, as a government entity, is entitled to the protections
of sovereign immunity unless the Texas Legislature clearly and explicitly waives
that immunity. Harris County v Sykes, 136 S.W. 635, 638 (Tex. 2004); see also
TEX. CIV. PRAC. & REM. CODE §101.001(3)(B)(defining “governmental unit” to
include cities). Municipal immunity from suit depends, as a preliminary matter,
upon whether the functions in question are governmental or proprietary. Tooke v
City of Mexia, 197 S.W.3d 325, 343 (Tex. 2006). Governmental functions, for
which a city is immune from suit and liability, are those involving governmental
matters done for the public’s benefit. Id.; see also TEX. CIV. PRAC. & REM. CODE §
101.0215(a)(providing non-exclusive list of governmental acts for tort claims
purposes). By contrast, a city’s proprietary functions, for which it receives no
protection from suit, are those conducted “in its private capacity, for the benefit only
of those within its corporate limits, and not as an arm of the government.” Tooke,
197 S.W.3d at 343; see also TEX. CIV. PRAC. & REM. CODE §101.0215(b)(providing
non-exclusive list of proprietary acts for tort claims purposes). Recreational
4
facilities are governmental functions as defined by the Tort Claims Act, as are street
maintenance and design. See TEX. CIV. PRAC. & REM. CODE § 101.0215(a)(3), (4),
(23).; see also Lewis v City of Fort Worth, 126 Tex. 458, 89 S.W.2d 975, 978 (1936)
(interpreting “recreation” to have broad meaning); TEX. CIV. PRAC. & REM. CODE
§ 75.001(3)(L).
As a result, the City of San Antonio can only be liable to the extent its
immunity is waived under the Texas Tort Claims Act and further limited by the
Recreational Use Statute. Under the Texas Tort Claims Act, the government waives
its immunity from suit for “personal injury and death so caused by a condition . . .
of real property if the governmental unit would, were it a private person, be liable to
the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE §101.021(2);
see also TEX. CIV. PRAC. & REM. CODE §101.025 (Immunity waived to the extent
provided by the Act). The Act further provides that a governmental unit owes a
claimant in a premises defect case only the duty owed to a licensee. TEX. CIV. PRAC.
& REM. CODE §101.022(a).
However, the Texas Recreational Use Statute further modifies the duty set
forth in the Tort Claims Act, setting the standard applicable to a governmental unit,
such as a municipality, as requiring willful or wanton conduct or gross negligence.
TEX. CIV. PRAC. & REM. CODE §75.002(f); see also TEX .CIV. PRAC. & REM. CODE §
75.003(g)(“To the extent that this chapter limits the liability of a governmental unit
5
under circumstances in which the governmental unit would be liable under Chapter
101, this chapter controls.”)”
Thus, the City retains immunity in the absence of allegations of willful or
wanton conduct or gross negligence. Miranda, 133 S.W. 3d at 227-28; see also City
of Fort Worth v Crockett, 142 S.W.3d 550, 553 (Tex. App. – Fort Worth 2004, pet.
denied). (Texas Tort Claims Act limits its waiver of immunity from suit to the extent
that its waiver of immunity from liability is limited by the Recreational Use Statute).
Because the Recreational Use Statute modifies the Texas Tort Claims Act’s waiver
of immunity, it is the proper subject of the City’s plea to the jurisdiction and
interlocutory appeal challenging its denial. Id. at 224-25.
II. Peralta’s Recovery is Precluded by the Texas Recreational Use Statute
A. Peralta’s Claims are Governed by the Limitations on Waiver of
Immunity set forth in the Recreational Use Statute
In its Amended Plea to the Jurisdiction, the City asserted application of the
Texas Recreational Use Statute and requested dismissal given Peralta’s failure to
plead or prove any competent jurisdictional facts to support an allegation of gross
negligence or willful or wanton conduct on the City’s part. (CR 139-140) Peralta
challenged the application of that statute its lower standard of care. (CR 156-157)
The primary objective in construing a statute is to determine and give effect
to the Legislature’s intent as expressed through the plain language use therein.
6
National Liability & Fire Ins. Co. v Allen, 15 S.W.3d 525, 527 (Tex. 2000). A
court must begin with the plain and common meaning of the statute’s words, viewing
them in context and giving them full effect. Liberty Mutual Ins. Co. v Garrison
Contractors, Inc., 966 S.W. 2d 482, 484 (Tex. 1998). “Every word in a statute is
presumed to have been used for a purpose; and a cardinal rule of statutory
construction is that each sentence, clause and word is to be given effect if reasonable
and possible.” Perkins v State, 367 S.W. 140, 146 (Tex. 1963).
Texas Civil Practice and Remedies Code Section 75.002(f) states:
. . . if a person enters premises owned, operated, or maintained by a
governmental unit and engages in recreation on those premises, the
government unit does not owe to the person a greater degree of care than is
owed to a trespasser on the premises.
The Act specifically defines “recreation” to include bicycling. TEX. CIV. PRAC. &
RM. CODE §75.001(3)(M). The Act defines “premises” broadly 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
way.” TEX. CIV. PRAC. & REM. CODE §75.001(2).
Under the clear and express language of the statute, the Texas Legislature
intended and did include bicycling on a designated cycling path, whether on or off a
roadway, to be a recreational activity to which the Texas Recreational Use Statute
applies. TEX. CIV. PRAC. & REM. CODE §75.001(3)(M); See also City of San
7
Antonio v Vasquez, 340 S.W.3d 844(Tex. App. – San Antonio, 2011), City of Fort
Worth v Crockett, 142 S.W.3d 550, 551-552 (Tex. App. – Fort Worth, pet. denied).
This Court has previously heard and determined that a designated bike path,
even if on a roadway, is covered by the Recreational Use Statute in City of San
Antonio v Vasquez, 340 S.W.3d 844(Tex. App. – San Antonio, 2011). In Vasquez,
five plaintiff filed suit against the City of San Antonio for injuries suffered while
cycling over a bridge made part of the Mission Trail hike and bike path by the City.
Id. at. 845. This is the identical path at issue in this lawsuit. Id. at fn.1; (CR172).
Finding in favor of the City, the Court applied the trespass standard as provided in
the Recreational Use Statute and determined that the plaintiffs had failed to allege
any gross negligence, malicious intent or bad faith. Id. at. 847.
Peralta’s pleadings in this case conceded that the incident at issue occurred
while he was cycling on the Mission Trail bike and hike path. The City contends
that the acknowledgement that he was on a designated bike trail previously found by
this court to be subject to the Recreational Use Statute, and engaged in a defined
recreation activity – biking, subject this case to the standard of care of the
Recreational Use Statute. To avoid dismissal, Peralta needed to allege facts
affirmatively demonstrating that his injuries arose from gross negligence and/or
willful or wanton conduct on the City’s part. TEX. CIV. PRAC. & REM. CODE §
75.002(d); see also City of Plano v Homoky, 294 S.W.3d 809, 817 (Tex. App. –
8
Dallas, no pet.). As will be discussed below, Peralta failed to do so, thus warranting
dismissal for want of jurisdiction.
In responding to the Plea to the Jurisdiction, Peralta argued that the
Recreational Use Statute does not apply because his personal motivation in using the
path was not “recreational” but was for purposes of transporting him to work. (CR
156) The only authority relied upon is reference to a portion of the definition of
“recreation” contained in the Recreational Use Statute. TEX. CIV. PRAC. & REM.
CODE § 75.001(2)(L)(referencing “any other activity associated with enjoying
nature or the outdoors”). Peralta ignores the definition immediately following,
which specifically defines “recreation” as “biking”, with no limitation as to the
purpose behind the biking. TEX. CIV. PRAC. & REM. CODE § 75.001(2)(M).
There is nothing in the Recreational Use Statute that limits its protection to
recreational properties only if the intent of the person using the property was to enjoy
the outdoors, even if the specific activity they are engaged in is defined as
“recreation.” In fact, Courts have already determined that the statute applies not only
to persons when actively engaged in recreation, but also when the person is on the
premises or journeying to or from the recreation area. City of Plano v Homoky, 294
S.W.3d 809, 816 (Tex. App. – Dallas 2009, no pet.)
Applying Peralta’s interpretation, the liability of a government entity relies
solely on the intent of the individual entering the property, not on the purpose for
9
which the property was opened to the public. Thus, a government entity would owe
a lower standard of care to a person hiking across park land to enjoy nature than to
a person hiking across park land as a shortcut to work. If this is true, however, a
government entity, by necessity, would be responsible for maintaining all
recreational lands at the higher standard, thus negating the purpose of the protections
afforded by the Recreational Use Statute. Such an interpretation flies in the face of
basic code construction, which is to give meaning to the Legislature’s intent. In the
present case, Peralta has admitted that at the time of the incident, he was on a bike
path which was an integral part of a bike lane system and that he was cycling. Thus,
the Recreational Use Statue is applicable.
B. Peralta failed to plead facts and/or offer evidence to establish willful or
wanton conduct or gross negligence by the City.
Applying the standard of care set forth by the Recreational Use Statute, Peralta
was required to plead facts establishing the City of San Antonio acted in a willful
and wanton manner or with gross negligence such that Peralta incurred injury.
Homoky, 294 S.W.2d at 817. While Peralta plead the magic words, he failed to
plead any facts establishing such behavior on the part of the City and failed to bring
forth any such evidence at the hearing on the plea.
In applying the Recreational Use Statute, the Texas Supreme Court
acknowledge that, although the standard is referenced as a “trespasser standard,” it
10
is actually a specialized standard of care. City of Waco v Kirwan, 298 S.W.3d 618,
623 (Tex. 2009). Under the statute, landowners must not act with “malicious intent
or in bad faith.” Id. The Court accepted the commonly accepted meaning of “gross
negligence” which is “an act or omission involving subjective awareness of an
extreme degree of risk, indicating conscious indifference to the rights, safety or
welfare of others.” Id., see also West v City of Crandall 130 S.W.3d 784, 787(Tex.
App. – Dallas 2004, no pet.)(two components – act/omission involves extreme risk
and actor had actual, subjective awareness of risk but proceeded in conscious
indifference to rights, safety or welfare of others). Absent allegations of facts
supporting these two components, government immunity is not waived and a trial
court lacks jurisdiction over the claim.
Peralta has failed to plead facts to support a claim of gross negligence against
the City. Peralta alleged merely that an unknown person, assumed to be an employee
of either the City or SARA, approached him after the incident and stated that the
path would be shut down because he was aware the plate covering the drain was
missing and would be replaced later. (CR 56) These facts do not allege willful or
wanton conduct or gross negligence on the part of the City as they do not assert,
much less establish, any subjective knowledge on the part of the City of any extreme
risk nor any conscious indifference by the City in ignoring such risk. There is no
pleading that the City had any knowledge of the missing plate prior to the incident.
11
Even assuming for purposes of argument that the pleading does state minimal
jurisdictional allegations, the allegations are not supported by competent evidence.
In response to the City’s Plea to the Jurisdiction, Peralta offered an affidavit
swearing to the facts as alleged in the petition. (CR 73-74) However, during the
course of his deposition, Peralta was questioned as follows:
Q: Is that correct what it says in that statement? I’m going to read it. After
the incident plaintiff was approached by an employee of City of San
Antonio and/or San Antonio River Authority and was told by the
employee that he was coming to close off that section of the path
because he knew the metal plate was missing and they were going to
fix the problem later. Is that true?
A: Well, the last part of the statement I can’t swear to. I just know that he
said that he was going to – that he was coming to close off the area. I
don’t know that he mentioned the metal plate or –
Q: Okay. Very good, thank you. So you don’t know how long he knew
that that metal plate was missing?
A: No.
(CR 147, ll. 12-25) Peralta further testified that he did not know if the individual
who made these remarks was a SARA employee or a City of San Antonio employee
nor did he have any knowledge of how long prior to the incident the plate was
missing. (CR146, ll. 22-24, CR 148, ll. 9-15)
In response to the City’s Amended Plea to the Jurisdiction, Peralta offered no
other evidence that the City of San Antonio had any prior knowledge regarding the
missing plate, other than a resubmission of the affidavit previously filed and which
he denied sufficient knowledge of to swear to in deposition. (CR 154-191) There
12
was no pleading or evidence of the City’s subjective knowledge of an extreme risk
or decision to ignore such risk in conscious indifference to the welfare of others.
Peralta merely alleged that an unknown person, assumed to be an employee
of either the City or SARA, approached him after the incident and stated that the
path would be shut down because he was aware the plate covering the drain was
missing and would be replaced later. These facts do not allege willful or wanton
conduct or gross negligence on the part of the City as they do not assert, much less
establish, any knowledge of the missing plate prior to the incident. As such, the
pleading fails to state a cause of action under the Recreational Use Statute and should
be dismissed. City of Plano v Homoky, 294 S.W.3d at 818; see also Sam Houston
State Univ. v Anderson, No. 10-07-00403-CV, 2008 W.L. 4901233, *3 (Tex. App.
– Waco, Nov. 12, 2008, no pet.)(mem. op.)(holding that because recreational use
statute applied and because claimant failed to state cause of action in terms of gross
negligence, claimant failed to affirmatively demonstrate trial court’s jurisdiction;
plea to the jurisdiction should have been granted).
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant the City of San
Antonio respectfully requests that this Court reverse the Trial Court’s Order denying
the City’s Plea to the Jurisdiction, grant the City’s Plea to the Jurisdiction, and render
13
a dismissal of Appellees’ claims in the City’s favor. The City also requests such
other and further relief to which it is entitled.
Respectfully submitted,
THE CITY OF SAN ANTONIO
Martha G. Sepeda
Acting City Attorney
State Bar No. 13143100
Deborah Lynne Klein, Attorney IV
State Bar No. 11556750
Office of the City Attorney
Litigation Division
111 Soledad, 10th Floor
San Antonio, Texas 78205
Deborah.Klein@sanantonio.gov
By:/s/Deborah Lynne Klein
Deborah Lynne Klein
14
CERTIFICATE OF SERVICE
I certify that a true copy of the foregoing Brief of Appellant was on this 8th day of
June, 2015, served by electronic service on the following:
Corbin L. Snow, III
Snow & Laurel, LLP
310 West Sunset
San Antonio, Texas 78209
Patrick Bernal
Clarissa M. Rodriguez
Denton, Navarro, Rocha, Bernal
Hyde & Zech
2217 N. Main
San Antonio, Texas 78212
By:/s/Deborah Lynne Klein
Deborah Lynne Klein
CERTIFICATE OF COMPLIANCE
In compliance with Tex. R. App. P. 9.4(i)(3), this is to certify that the Brief of
Appellant, City of San Antonio, contains 3,317 words, not including the caption,
table of contents, index of authorities, statement of issues presented, signature, proof
of service, certificate of compliance and appendix.
By:/s/Deborah Lynne Klein
Deborah Lynne Klein
15
16
APPENDIX