Plaintiff given opportunity to replead to allege tangible personal property lacked proper safety component under TTCA

City of Austin, Texas v. Jamil Cherry 03-14-00212-CV (Tex. App. – Austin, July 21, 2015)

This is an interlocutory appeal in a Texas Tort Claims Act case in which the Austin Court of Appeals reversed the denial of a plea to the jurisdiction, but remanded to allow the Plaintiff to replead.

Cherry was using a free pass to evaluate using the Montopolis Recreation Center to determine if he wanted to become a paid member for gym use. While working out a bar fell from the weight machine he was using and struck Cherry on the forehead, injuring him.  He originally sued for premise defect, but later amended his pleadings alleging a defective weight machine caused the injuries. The City filed a plea to the jurisdiction which the trial court denied and the City appealed.  The plea, however, was filed prior to the amendment and the arguments originally centered on the premise defect condition.

The court noted that to properly allege a claim against the City for a defective machine Cherry must assert it lacked an integral safety component.  Cherry’s pleadings make no such allegation and are therefore defective.  However, even though the pleadings are defective, the facts alleged do not demonstrate an incurable defect and Cherry should be given the right to replead.  As a result, the case was remanded.

If you would like to read this opinion click here. Justice Puryear, Justice Pemberton and Justice Field.  Memorandum Opinion by Justice Field.  The attorney listed for  Cherry is Mr. J. Luke Dow.  The attorneys listed for the City are Ms. Karen Kennard, Ms. Meghan L. Riley and Ms. Meitra Farhadi.