An inspection alone is not sufficient evidence of actual knowledge of swing set defect says Austin Court of Appeals

City of Bastrop v. Chyanne M. Bryant, 03-14-00591-CV (Tex. App. – Austin, August 27, 2015).

This is an interlocutory appeal in a Recreational Use case where the City appealed the denial of a plea to the jurisdiction. The Austin Court of Appeals reversed the denial and rendered a dismissal.

While on an outing with her younger siblings in the City’s Fisherman’s Park, Bryant, then nineteen years of age, was injured on a swing when the chain broke throwing her to the ground. She sued the City alleging a premise defect – specifically the injuries were the foreseeable result of an “extremely hazardous” and “dangerous” condition created by the City’s failure to perform “adequate” or “proper” inspections and maintenance on the swing set.  The City filed a plea to the jurisdiction with evidence, which the trial court denied and the City appealed.

The court noted the Recreational Use Statute applies and Bryant’s pleadings mainly focus on the constructive knowledge of the City, not the actual knowledge required to waive immunity. However, she presented evidence the swing set was inspected the day of the accident and argued a fact question exists as to whether the City had actual knowledge of the defect. However, an inspection alone does not establish evidence of actual knowledge. The City produced evidence from the foreman noting the exact procedures followed for inspections as well as the inspection report performed. The report noted no evidence of a defect was observed. The City also attached inspection reports for several City parks dating years back. The court noted the foreman listed on these reports when inspections revealed defects and that repairs were performed. Such evidence indicates knowledge that the swings would periodically require repair and that repairs were performed, but nothing more. The court seemed to believe it important the City showed a consistent record of inspections, documentation of observable problems and repairs. No evidence existed the swing on the day in question was observably defective. Further, the fact the playground did not have a soft-fiber base to cushion falls was considered “…the sort of open and obvious risks for which the City would not owe a duty… “  As a result, the City negated an essential jurisdictional element and the plea should have been granted.

If you would like to read this opinion click here. Panel: Justice Puryear, Justice Pemberton and Justice Bourland.  Memorandum Opinion by Justice Pemberton.  The attorneys listed for the City are  Ms. Joanna Lippman Salinas, Mr. Neil Solomon, and Mr. Derreck M. Brown.  The attorney listed for Bryant is Mr. J. Marque Moore.