Water slides and lazy river does not transform governmental function of public pools to proprietary amusement function under TTCA

Tabitha Henry, Individually and on Behalf of the Estate of Kylie Lampson and as Next of Friend of A.H., Z.H. and H.H. v. The City of Angleton 01-13-00976-CV (Tex. App.- Houston, [1st District] October 28, 2014)

This is an appeal from the granting of the City’s plea to the jurisdiction in a Texas Tort Claims Act death case in which the First District Court of Appeals affirmed the trial court’s dismissal.

The City of Angleton owns a recreation center which includes a pool, waterslide, and other facilities. Kylie Lampson, an 11 year old girl, died due to drowning at the pool. Her parent sued alleging various actions including the facilities were “amusement based” due to water slides, a lazy river and other areas which are not “generic pools” so are proprietary in nature.  Further, if they qualify as governmental functions, the lifeguard chair was negligently positioned to obscure full view of the pool. The City filed a plea which the trial court granted and Henry appealed.

The court first noted that while Tex. Civ. Prac. & Rem. Code §101.0215(b) states that amusement facilities are proprietary, subsection (a) expressly states public pools are governmental. The “introduction of a proprietary element into an activity designated by the Legislature as governmental does not serve to alter its classification.”  The modern facilities merely enhance the pool experience, not alter its character.  Further, the “ability to charge fees and make a profit does not in itself transform a governmental function into a proprietary function.” As a result, the operation of the facility is a governmental function entitling the City to immunity absent a waiver. To fall under the waiver for negligent use of tangible personal property, there must be a nexus between the use and the injury. Henry failed to allege the injury would not have occurred if the chair had been placed in a different position, so no nexus exists. Under the waiver of a premise defect, the recreational use statute applies, noting the City only had the duty owed to a trespasser. Since intentional or bad faith was not alleged, only gross negligence would apply requiring a subjective awareness of the extreme degree of risk. Nothing indicates the City knew the placement of the chair posed or ignored an extreme degree of risk to pool attendees. As a result, the trial court properly granted the plea.

If you would like to read this opinion, click here. Panel consisted of Justices Massengale, Brown and Huddle. Opinion by Justice Huddle. Attorneys for Appellant, Tabitha Henry, are Matthew Skrabanek and Kurt Arnold. Attorneys for Appellee, City of Angleton, are Patricia Hayden and John Hightower.

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