Opinion
05-21-00708-CV
11-18-2022
MAX NELSON AND CAROLYN NELSON, AS CO-GUARDIANS OF MATTHEW NELSON, Appellants v. CITY OF PLANO, Appellee
On Appeal from the 219th Judicial District Court Collin County, Texas Trial Court Cause No. 219-02317-2020
Before Justices Schenck, Smith, and Garcia
The Honorable Leslie Osborne participated in the submission of this case; however, she did not participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The Honorable Dennise Garcia has substituted for Justice Osborne in this case. See Tex. R. App. P. 41.1 (a), (b)(1). Justice Garcia has reviewed the briefs and the record before the Court.
In addition to my dissent to the judgment, I include this footnote to express my objection to the reconstitution of this panel after the decision in this case. Our rules oblige the court to determine at the outset whether a case will be decided by a panel or the en banc court and where two or more justices "agree on the judgment[,]" the "panel opinion constitutes the court's opinion, and the court must render judgment in accordance with the panel opinion." See Tex. R. App. P. 41.1; id. 47.2 (requiring names of participating justices be noted on all written opinions or orders of court or panel of court). After an opinion has circulated in an argued case, no other justice must join it, but at least two must concur in the judgment. Id. 41.1. It is only where a panel member cannot "participate" in the decision may a substitution take place. Id. Justice Osborne authored the opinion here and approved of the judgment it dictates prior to her resignation, as did another justice. She therefore participated. As the Clerk, not the justices, communicates the Court's opinion to the parties, there was in fact no further "participation" permitted, apart from the unrealized potential for her to withdraw her assent to the judgment. Nevertheless, after Justice Osborne's departure, a majority of the Court voted to substitute other sitting justices or visiting justices on any case on which Justice Osborne was originally assigned to the panel-regardless of whether she had participated or communicated her approval of the judgment to the Clerk prior to her resignation. In this case, the substitution, while improper in my view, does not alter the judgment and is disclosed to the parties. I have previously and broadly expressed my view that this Court's practices concerning the assignment and decision of cases do not comport with my understanding of the rules of procedure or the due process rights of litigants to a decision derived by random processes. See, e.g., Steward Health Care Sys. LLC v. Saidara, 633 S.W.3d 120, 153-154, 164 (Tex. App.-Dallas 2021, no pet.) (interpreting rule 41.1 to provide that once two or more justices have agreed on judgment, case is "decided" and objecting to substitution of new justice after original panel member participated in opinion and judgment not released before expiration of original panel member's term of office).
MEMORANDUM OPINION
CRAIG SMITH JUSTICE
The trial court granted the City of Plano's plea to the jurisdiction in this personal injury suit brought on behalf of Matthew Nelson by his parents and co-guardians Max Nelson and Carolyn Nelson. In a single issue, the Nelsons contend the trial court's ruling was error because the City is not immune from liability for its negligence in causing Matthew's injuries. Concluding that the City has not waived its immunity with respect to the Nelsons' ordinary negligence claim, we affirm the trial court's order.
Background
Matthew Nelson, a 26-year-old man with cognitive disabilities, was riding his bicycle on a sidewalk in the City of Plano when he collided with a truck driven by a City of Plano employee. Matthew was on his way to a 7-Eleven store a few blocks from home. Matthew cannot legally drive because of his disabilities; bicycling is his mode of transportation. Matthew suffered pelvic fractures, broken ribs, and internal injuries in the accident.
The Nelsons sued the City, alleging a sole claim of ordinary negligence. The City answered and pleaded affirmative defenses including governmental immunity.
The parties engaged in discovery. The Nelsons responded to the City's requests for admissions, admitting that:
1. At the time of the accident, Matthew was riding a bicycle;
2. At the time of the accident, Matthew was riding a bicycle "on City of Plano property, a City sidewalk,"
3. At the time of the accident, Matthew was "riding a bicycle and had entered premises owned, operated, or maintained by the City of Plano, specifically, either a City of Plano sidewalk or street," and
4. The Nelsons are suing the City only for "negligence" as alleged in Paragraph V(11) of their operative petition.
Based on these admissions and other discovery, the City filed a plea to the jurisdiction alleging governmental immunity. The trial court granted the City's plea and dismissed the Nelsons' claims with prejudice. This appeal followed.
Issue and Standard of Review
In their sole issue, the Nelsons contend the trial court erred by granting the City's plea to the jurisdiction. They contend that the City's governmental immunity is waived under the Texas Tort Claims Act ("TTCA"), Tex. Civ. Prac. & Rem. Code § 101.021, and that the Recreational Use Statute ("RUS"), Tex. Civ. Prac. & Rem. Code § 75.002(f), does not apply. We review the trial court's ruling on a plea to the jurisdiction de novo. Suarez v. City of Texas City, 465 S.W.3d 623, 632 (Tex. 2015).
Applicable Law
Under the TTCA, a governmental unit such as the City is liable for personal injury "proximately caused by the wrongful act or omission or negligence of an employee acting within his scope of employment" if the personal injury "arises from the operation or use of a motor-driven vehicle." TTCA § 101.021(1)(A).
Under the RUS, however, "if a person enters premises owned, operated, or maintained by a governmental unit and engages in recreation on those premises, the governmental unit does not owe to the person a greater degree of care than is owed to a trespasser on the premises." RUS § 75.002(f). As explained by the supreme court in University of Texas v. Garner, 595 S.W.3d 645, 647 (Tex. 2019) (per curiam), the RUS "limits the [TTCA's] waiver of governmental immunity by lowering the duty of care owed to a person who enters and engages in 'recreation' on a governmental unit's property." "Specifically, the governmental unit owes that person only the degree of care owed to a trespasser-that is, the duty not to injure intentionally or through gross negligence-and thus retains immunity from ordinary negligence claims even when the [TTCA] would otherwise waive such immunity." Id.
"Recreation" as defined in the RUS includes "bicycling and mountain biking." RUS § 75.001(2)(M). "Bicycling" is not further defined, nor is any intent or purpose on the part of the rider specified. "Premises" is defined under the RUS to include "land, roads, water, watercourse, private ways, and buildings, structures, machinery and equipment attached to or located on the land, road, water, watercourse, or private way." Id. § 75.001(2).
Discussion
The Nelsons pleaded that a City employee negligently operated a motor vehicle and injured Matthew. They argue the City's governmental immunity is waived for that claim under TTCA § 101.021(1)(A). They contend the RUS does not apply-and should not apply-to bar that claim because Matthew "was clearly not engaged in 'recreation' as contemplated by the [RUS]." See RUS § 75.002(f). Instead, Matthew was "riding a bicycle for transportation purposes only," on a City-owned sidewalk, because he cannot drive. The Nelsons assert that classifying all bicycle riding as "recreational" is inconsistent with the purpose of the RUS "to limit the duty to warn of potentially dangerous, naturally occurring conditions outdoors for the protection of landowners so Texans can more easily and cost-efficiently enjoy outdoor recreation." Matthew was not enjoying outdoor recreation, the Nelsons argue; he was running an errand next to a busy street via his only method of transportation.
The City, in turn, relies on the supreme court's opinion in Garner. In Garner, the court held the RUS applied to a bicyclist's negligence claim against the University, so that the University's immunity was not waived. Garner, 595 S.W.3d at 651. The City argues that Matthew's purpose in riding his bicycle-for transportation rather than recreation-does not control the RUS's applicability. See id. at 650 n.4 (plaintiff's subjective intent does not control).
In Garner, the plaintiff was struck by a city vehicle while riding her bicycle on a road through a student-housing complex on the University of Texas campus. Id. at 647-48. She was biking to the trail head at Eilers Park, where she planned to meet a friend and "ride the trail" when the accident occurred. Id. at 648. She sued the University for negligence, contending that the University's immunity was waived under the TTCA. Id. The University filed a plea to the jurisdiction, arguing that Garner was a trespasser, for two reasons: (1) the RUS classified her as a trespasser, and (2) there were "no trespassing" signs on either end of the road through the housing complex. Id. at 648.
The court of appeals affirmed the trial court's denial of the University's plea, but the supreme court reversed, concluding that RUS subsection 75.002(f) "is dispositive." Id. at 649. The court explained, "subsection (f) requires only that a person (1) enter premises owned, operated, or maintained by a governmental unit and (2) engage in recreation on those premises." Id. at 650. The court concluded that "[i]f those two conditions are met, the governmental unit owes the person only the duty owed to a trespasser." Id. Because it was undisputed that Garner entered premises owned by a governmental unit and engaged in activity that qualified as "recreation" under the statute, "the University owed Garner only the duty not to injure her intentionally or through gross negligence." Id.
The Nelsons argue that Garner should not apply here because, unlike the Garner plaintiff who was on her way to "ride the trail," Matthew was not "enjoying nature or exploring the outdoors in any fashion." See id. at 648. They contend Matthew's bicycle riding was not "recreational"; it was a matter of necessity given his disabilities. The City responds that the court rejected a similar argument in Garner:
To the extent Garner argues that she was bicycling on Alvin for transportation rather than recreational purposes, her subjective intent does not control. See City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002) (explaining that whether the plaintiff was engaged in recreation hinged on her activity when she was injured-sitting on a swing-not her reason for being at the venue-to play softball); City of San Antonio v. Peralta, 476 S.W.3d 653, 658 (Tex. App.-San Antonio 2015, no pet.) (rejecting the plaintiff's argument that his bicycling was not "recreation" because he was commuting to work). Under the
statute's plain language, bicycling is recreation. Tex. Civ. Prac. & Rem. Code § 75.001(3)(M).Id. at 650 n.4.
The Nelsons also argue that the Garner plaintiff had entered on "governmentally controlled property that had 'no-trespassing' signs at both ends of the road," see id. at 647, while Matthew was riding on a public sidewalk. But the City responds that under § 75.002(f), "a person receives the legal protection of a trespasser even though she is not trespassing," and accordingly, Matthew "is entitled to the legal protection of a trespasser even though he was not trespassing." The City concludes that if § 75.002(f) applied only to trespassers, it would be meaningless.
The Nelsons further argue the trial court's ruling is inconsistent with the RUS's purpose to limit-not abrogate-the liability of property owners who open their land for recreational activities. They assert that "ignor[ing] a bicyclist's subjective intent abrogates common law negligence for a large number of bicyclists," and that Garner "deprives injured parties of legal recourse" against a government employee's negligence merely because those parties happen to be riding a bicycle rather than walking or driving a vehicle. They contend that "a child with a summertime paper route, the environmentally-conscious commuter, someone who cannot afford a vehicle who must bike to work, the average teenager biking a few blocks to school, [and] a bicycle delivery driver"-in addition to those like Michael with cognitive difficulties who are not able to drive-have no recourse even though their bicycling has no connection to the outdoor recreation the RUS was designed to encourage.
We note that both "hiking" and "pleasure driving, including off-road motorcycling and off-road automobile driving and the use of off-highway vehicles" are included in the definition of "recreation" in the RUS. See RUS § 75.001(3)(G), (H). Consequently, not all pedestrians and drivers are excluded from the RUS's limitation of liability.
To be direct, the plaintiff here did not need any permission from anyone to travel on a public right of way, unlike the plaintiff in Garner or any case cited as support therein. See Garner, 595 S.W.3d at 650 n.4 (citing City of Bellmead v. Torres, 89 S.W.3d 611, 614 (Tex. 2002); City of San Antonio v. Peralta, 476 S.W.3d 653, 658 (Tex. App.-San Antonio, 2015, no pet.)).
These arguments are not without force. But this Court "must take the Legislature at its word, respect its policy choices, and resist revising a statute under the guise of interpreting it." Christus Health Gulf Coast v. Aetna, Inc., 397 S.W.3d 651, 654 (Tex. 2013). Nor may we adopt a statutory construction different from supreme court precedent. See, e.g., Tex. Office of Comptroller of Pub. Accounts v. Saito, 372 S.W.3d 311, 315-16 (Tex. App.-Dallas 2012, pet. denied) (this Court is bound by supreme court precedent addressing whether statute waived governmental immunity). The trial court applied the statute's plain language in accordance with supreme court precedent. We must do the same. Accordingly, we decide the Nelsons' sole issue against them.
Conclusion
We affirm the trial court's order granting the City's plea to the jurisdiction.
Schenck, J., dissenting.
DISSENTING OPINION
While my colleagues' opinion takes a reasonable view of the decision in University of Texas v. Garner, 595 S.W.3d 645 (Tex. 2019) (per curiam), I find myself unable to join in it. Rather, because I read Garner and Chapter 75 of Civil Practice and Remedies Code more narrowly, I must dissent.1
The City's plea to the jurisdiction challenges the trial court's authority to adjudicate the claims in this case. Under controlling authority, the waiver of immunity necessary to sustain that jurisdiction is limited to the substantive extent of liability on the merits. See Garner, 595 S.W.3d at 648. We are constrained, therefore, to consider whether the claim might prevail on the pleaded facts, taking all evidence favorable to the plaintiff as true. See Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016).
The accident giving rise to this case is alleged to have taken place in and along the public right of way on a sidewalk along West 15th Street, as a parking lot of a 7-Eleven store meets the street. The City urges that the accident occurred on a City sidewalk. Crediting that assertion as controlling at this stage, we are left with two controlling questions posed by the so-called Recreational Use Statute in Chapter 75: did the accident take place on property within its reach and, if so, whether the activity taking place there amounts to recreation that would, in the absence of explicit permission, require the user to be treated as a presumptive trespasser when setting the relevant standard of care? As to the latter question, the statute sets forth a list of activities that may (or perhaps must) amount to recreation. See Tex. Civ. Prac. & Rem. Code § 75.001(3). "Bicycling" is plainly among them. See id. § 75.001(3)(M). The statute does not attempt to define "owns" or "operates" or to discern between uses that may (or must) amount to "recreation" other than to include a non-exclusive list of some uses "such as . . . bicycling" and "pleasure driving," among many others. See id. § 75.001. Where government owned, maintained, or operated "premises" are concerned, still further uses are included in the definition of "recreation." See id. § 75.002(e).
I see this case as posing two questions: did this accident take place on real property that is either "owned," "leased," or "occupied" by the City within the natural and plain contemplation of meaning of "owned, operated, or maintained" by the City within the meaning of 75.002(f) in the first instance, so as to trigger the next question of what use, recreational vel non, was involved here. See id. § 75.002(f). As to the latter question, Garner surely answered that the use of a bicycle could amount to recreation-though not necessarily invariably. See Garner, 595 S.W.3d at 650. As to the former question, Garner is even less informative, as the accident in Garner clearly took place on land owned in fee by the governmental defendant, as Garner's injury took place as she rode her bicycle through a state university-owned residential complex on her way to a bike trail. See id. at 647-48.
In this case, according to the City's recounting, a reasonable fact-finder could conclude that the accident took place within the dedicated public right of way or a parking lot adjacent to it. The law governing "ownership" of the right of way is not helpful to the City's position here. Generally, when land is platted, the fee owner retains his ownership over the land. See Strait v. Savannah Court P'ship, 576 S.W.3d 802, 813 (Tex. App.-Fort Worth 2019, pet. denied) (quoting Mitchell v. Bass, 26 Tex. 372, 380 (1862)) ("The owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public."). The public is conferred a general right of use akin to an easement for all purposes typically associated with a right of way, which the state, rather than the municipality, holds in trust. See id. The public right to make that use cannot be denied, bartered, or withheld by the municipality. See Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 320 S.W.3d 829, 843 (Tex. 2010) ("Certain powers are conferred on government entities 'for public purposes, and can neither be delegated nor bartered away'"); see also Sw. Bell Tele. Co. v. City of El Paso, 346 F.3d 541, 548 (5th Cir. 2003) (neither state nor its political subdivisions retain authority to restrict or deny use of public right of way for all transportation purposes). In all events, there is no evidence that the City "owned" the land at issue here in fee, as was apparently the case in Garner.2
While a city might argue that it "operates" or "maintains" the roads generally, so as to trigger the liability limits found in section 75.002(f), there is no evidence in this case that the City, as opposed to the state or the landowner, "operated" or "maintained" the road at issue, much less the adjacent sidewalk or parking lot where the accident apparently occurred. At a minimum, I would find at least a fact question to obtain on our current record.
But, even assuming that either the statute or our record here could reach to routine collisions adjacent to (or even in) the public right of way as a general matter, the notion that use of that area by the public for whom it was dedicated for transportation is perforce "recreational" because it occurs on a bicycle, as happened to be the case in Garner, seems unwarranted by the statutory text or the facts in Garner. The plaintiff in Garner was traveling by bicycle to a trail head in a park where she planned to meet a friend to "ride the trial." See Garner, 595 S.W.3d at 648. In order to reach the trail, the plaintiff used a road within a state university-owned apartment complex. See id. at 647.
In this case, by contrast, we are told that Mr. Nelson is an individual with cognitive challenges who was using the public right of way and his bicycle for basic transportation to purchase groceries, presumably because he does not have the ability to use a car. I reject a reading of Garner or the statute that would treat this or every use of as a bicycle as "recreation." I take it as obvious that minors, adults of limited means or functionality, ecologists, and countless others will use bicycles for non-recreational purposes. Until relatively recently, Swiss soldiers were expected to report to war with their own firearms and on bicycles.
The City relies on a footnote to Garner to argue that the court rejected the idea there was any legal distinction between bicycling for transportation and bicycling for recreation. See Garner, 595 S.W.3d at 650 n.4. However, the Garner court was not presented with the question presented here of whether the legislature may act to limit the State's liability for injuries sustained on a public right of way. Thus, any statement purporting to do so would be dicta. Moreover, any such statement would be in conflict with longstanding law. See Kirby Lake Dev., 320 S.W.3d at 843; see also Sw. Bell, 346 F.3d at 548.
BBC News | EUROPE | End of road for Swiss army cyclists, available at http://news.bbc.co.uk/2/hi/europe/1325485.stm (last visited Nov. 17, 2022).
I will also note that the definition of "recreation" reaches to use based on its apparent purpose, "such as" bicycling and "pleasure driving." See Civ. Prac. & Rem. § 75.001(3)(H). Meanwhile, the TTCA waives sovereign immunity for general negligence claims in all "accidents involving motor driven vehicles" virtually all of which would take place in the public rights of way. Id. § 101.021(1)(A). That general waiver cannot be meant to apply only in yards and gardens or "pleasureless" automobile journeys. While the City accepts that "pleasure" driving indicates an intention to focus on the particular subjective intended use of property, it reads that purpose as evident only with respect to driving, suggesting the lack of the modifier "pleasure" implies a different legislative intent with respect to bicycles. I disagree. Having already constrained the reach of the entire rule to "recreation," there would have been no need of further textual modification with respect to either mode of transportation. If anything, declaring "pleasure" driving to be within the possible recreational uses of another's property seems more consistent with the idea that general transportation uses of the public right of way were generally outside of the legislature's intended sweep, regardless of the mode that might be involved.
In all events, I disagree with the majority's conclusion to limit the liability of the City where a person who happened to commute by bicycle rather than car on a public right of way and was injured in a collision with a truck driven by the City's own employees.
Accordingly, I dissent.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee City of Plano recover its costs of this appeal from appellants Max Nelson and Carolyn Nelson, as Co-Guardians of Matthew Nelson.