Boards sitting for 6 years were not being “used” by City for TTCA purposes; swimmer waiting to go into pool was engaged in recreational activity

The City of Dalhart, Texas v. Carol Lathem 07-14-00229-CV (Tex. App. – Amarillo, August 31, 2015)

This is a general negligence and premise liability case where a minor child was injured by falling boards at a public pool. The Amarillo Court of Appeals reversed the denial of the City’s plea to the jurisdiction and rendered judgment for the City.

Carol Latherm’s eight-year-old daughter paid to swim at the City pool. Lifeguards announced a fifteen-minute break and required all swimmers to leave the pool. Six years prior, the City had purchased prefabricated lockers in boxes which city employees later assembled.  Unsure what to do with several six-foot-long board leftovers, the workers placed them on top of the lockers where they sat for many years. When the Latherm child leaned against the lockers the boards fell striking and injuring her legs. The mother sued the City which filed a plea to the jurisdiction. The plea was denied and the City appealed.

The court first noted under the Recreational Use Statute, the City is only liable for gross negligence for the premise defect claim.  And while Latherm was not swimming at the time of the injury, she left the pool only because of the lifeguard’s direction to all swimmers.  She was injured at a picnic table on the pool property and therefore she was engaged in a recreational activity. As to the claim of gross negligence, the boards stayed on top the lockers for six years without incident. Grossly negligent conduct must impose an objectively higher risk than ordinary negligence and nothing indicates the City’s actions rose to that level. There is a difference between “not very safe” and a risk so great as to make it highly probable that harm would follow. The premise defect claims were dismissed. As to the “use” of tangible personal property, the boards sat for six years without moving.  There is no evidence the City “used” them by putting them into action or service.  If anything they were left aside “unused” for years. As a result, there is no waiver under the Texas Tort Claims Act. The court reversed the denial and rendered judgment for the City.

If you would like to read this opinion click here. Justice Campbell, Justice Hancock and Justice Pirtle. Memorandum Opinion by Justice Campbell. The attorneys listed for Lathem are Brent Hamilton and Amber S. Miller.  The attorneys listed for the City are Lee Ann Reno and Alex Yarbrough.