Plaintiff did not plead jurisdiction but did not negate it either so can replead says 13th Court of Appeals

MARK BERNHARD v. CITY OF ARANSAS PASS, TEXAS 13-13-00354-CV (Tex. App. — Corpus Christi, July 17, 2014).

This is a Texas Tort Claims Act/Recreational Use Statute case in which the 13th Court of Appeals reversed the granting of the City’s plea to the jurisdiction and remanded.

The City operated a water amusement park, which Bernhard frequented. After going down a water slide, the lifeguard on duty allowed a second patron to follow even though Bernhard had not exited the landing zone.  The second patron collided with Bernhard resulting in a fractured neck. He sued, but the trial court dismissed his suit by granting the City’s plea to the jurisdiction based on the Texas Recreational Use Statute.  Bernhard appealed.

The 13th Court of Appeals first noted that Chapter 75 of the Recreational Use Statute applies and establishes the City owed Bernhard only the duty owed a trespasser. However, “although Bernhard’s current allegations are insufficient to invoke the trial court’s jurisdiction, his pleadings do not affirmatively demonstrate incurable jurisdictional defects to require dismissal.”  Essentially, the court turned the pleadings standard of review on its head and noted that he did not plead jurisdictional facts, but he did not plead a total lack of possible jurisdiction either. He could have still pled gross negligence which would defeat the City’s governmental immunity. The court basically told him he did not plead it correctly and gave him a roadmap to replead and the opportunity. Finally, the court did reject the argument that different standards and duties apply to different types of trespassers noting the Texas Supreme Court rejected the argument in 2006.

If you would like to read this opinion click here. Panel: Justice Rodriguez, Justice Garza, and Justice Benavides.  Memorandum opinion by Justice Benavides. The listed for Bernhard is Robert Sigler.  The attorneys listed for the City are Carlos Villarreal and Lane Jarvis.