Working in a concession stand at a recreational event is not “recreation” that would be covered by the recreational use statute.


Special contributing author Laura Mueller, City Attorney for Dripping Springs

City of Cleveland v. Macie Martin LaFrance and Penny Martin, 09-20-00189-CV, (Tex. App – Beaumont, June 9, 2022) (mem. op.).

In this appeal from a trial court’s denial of the city’s plea to the jurisdiction and no evidence summary judgment, the city appealed that governmental immunity has not been waived because it either did not control the area where the injury occurred or that it did not have knowledge of the defect which caused the injury. The Ninth Court of Appeals affirmed the trial court’s judgment because there was no evidence presented by the City that negated the issues of control or knowledge of defect presented by the plaintiff.

The plaintiff sued the city after the plaintiff was electrocuted by an outlet in a concession stand during the city’s livestock show. The plaintiff sued due to an electrical defect in the outlet that caused the injury and argued that the city had knowledge of the defect and that the defect caused an unreasonable risk of harm. The city filed a plea to the jurisdiction and a no evidence motion for summary judgment arguing that: (1) the plaintiff was contributorily negligent; (2) that it did not have control of the concession stand; (3) that the recreational use statute applied; and (4) it had no knowledge of the defect. The trial court denied the city’s plea to the jurisdiction and no evidence summary judgment, and the city appealed.

Immunity is waived if a governmental entity causes personal injury or property damage with the use of tangible personal property or through premises defect on the property of the governmental entity.  Tex. Civ. Prac. & Rem. Code § 101.021.  The Texas Recreational Use Statute limits an entity’s liability as a premises owner if the plaintiff engaged in recreation on the premises at the time of the injury. Tex. Civ. Prac. & Rem. Code §§ 75.001-.007. To waive governmental immunity for a premises defect, if the recreational use statute does not apply, the plaintiff has to show that: “(1) a condition of the premises created an unreasonable risk of harm to the plaintiff; (2) the governmental unit actually knew of the condition; (3) the plaintiff did not actually know of the condition; (4) the governmental unit failed to exercise ordinary care to protect the plaintiff from danger; and (5) the governmental unit’s failure was a proximate cause of the injury to the plaintiff.” If the recreational use statute applies, the entity owes the user only the duty to not injure the user willfully, wantonly, or through gross negligence. However, the recreational use statute did not apply in this case because working in a concession stand, even if the concession stand is associated with a recreational activity, is not “recreation” under the definition in the recreational use statute. To prevail on a plea to the jurisdiction, the entity must show as a matter of law that it did not owe a duty of care as a matter of law. Tirado v. City of El Paso, 361 S.W.3d 191, 196 (Tex. App. —El Paso 2012, no pet.).  To negate jurisdictional facts presented by a plaintiff, the entity has to present evidence that negates an essential jurisdictional fact. In this case, the Court of Appeals held that the entity did not adequately prove that it did not owe a duty of care, that it was not in control of the concession stand at the time of injury or that it did not know about the defect, and thus the court upheld the trial court’s denial of the plea to the jurisdiction and no evidence summary judgment.

The court of appeals affirmed the trial court’s judgment because the entity did not provide evidence negating the jurisdictional facts pled by the plaintiff.

If you would like to read this opinion click here.   Panel consists of Justices Kreger, Horton, and Johnson.  Memorandum opinion by Justice Johnson.


Leave a Comment