City of El Paso, Texas v. Harold Collins, et al, 08-12-00243-CV (Tex. App. – El Paso, December 18, 2013)
This is an interlocutory appeal arising from the denial of a plea to the jurisdiction in a premise liability/negligence case involving injuries to a minor at a City swimming pool. The El Paso Court of Appeals affirmed in part, reversed and remanded in part, and reversed and rendered in part.
A six-year-old girl was at the City swimming pool. She did not know how to swim, but went unsupervised and went under water for a long period of time. She suffered substantial injuries. The parents sued the daycare (which took her to the pool and failed to supervise) and the City. The daycare designated the City as a responsible third-party. The court first held that to the extent the Plaintiff’s pleadings seek to impose liability solely on the designation, no waiver of immunity exists. The City also argued that the pleadings to not satisfy the Tex. R. Civ. P. §33.004 (designation of responsible third-party) but the court held that such a challenge could not be brought in an interlocutory appeal.
As to the premise defect claims (alleging faulty filtration system causing cloudy water and defective drain which could trap a child), the Recreational Use Statute limits a landowner’s liability when the plaintiff engages in recreation on the premises. The Plaintiffs failed to properly allege the City was aware of any extreme risk a child could be trapped in the defective drain or that cloudy water prevented others from seeing that a child had been trapped. As a result, the City’s immunity from suit is not waived for the premises liability claim. Further, the pleadings do not factually support proximate cause. But both defects are ones the Plaintiffs should be allowed to try and amend. The court then noted that a cause of action for premises liability is different from one for negligent activity, however the Plaintiffs pleadings do not sufficiently allege such a claim. They did properly allege the negligent use of personal property.
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