Plaintiff failed to plead ordinary negligence under Recreational Use Statute, but properly alleged gross negligence

City of Midland and Washington Aquatic Center v. Herbert Bunch, 11-16-00276-CV (Tex. App. – Eastland, September 29, 2017).

This is a Texas Tort Claims Act/Recreational Use case where the Eastland Court of Appeals reversed in part and affirmed in part a trial court order denying the City’s plea to the jurisdiction.

Bunch alleges he was visiting the Washington Aquatic Center swimming pool run by the City and paid for entry to the premises. After he sat down on a bench, the bench broke causing him to fall backwards to the ground, sustaining injuries.  Bunch sued and alleged the City knew the bench needed to be replaced and did not warn him it was rusted. He sued for premise defects and gross negligence asserting he was simply sitting on a bench to watch his son and was not engaged in recreation. The City filed a plea to the jurisdiction which the trial court denied. The City appealed.

Under the Recreational Use Statute “if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises.” Tex. Civ. Prac. & Rem. Code §75.002(f)(West 2015). The court went through various dictionary definitions examining this subsection and determined Bunch entered the premises and was engaged in “recreation” at the time of his injury. He did not plead he was “spectating” nor did he plead he was parenting. So he did not plead a proper claim for ordinary negligence. However, he did amend his pleadings and properly allege gross negligence. He alleged that the City was “actually, subjectively aware of the risk involved” due to the rusted bench it knew needed to be replaced  “but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others, which constitutes malice.” As a result, the plea should have been granted to the ordinary negligence claims but was properly denied as to the gross negligence claims.

If you would like to read this opinion click here. Panel includes Chief Justice Wright, Justice Willson, and Justice Bailey. Memorandum Opinion by Chief Justice Wright. The attorneys listed for the City are Matthew J. Coolbaugh and Aaron M. Dorfner. The attorney listed for the Plaintiffs is Stacy K. Schroeder Sustaita.

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